The Supreme Court of the United States has long recognized that the right to use public sidewalks “for purposes of assembly, communicating thoughts between citizens, and discussing public questions . . . has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens.” Unfortunately, some public officials apparently believe that this fundamental right can be cast aside when it comes to pro-life individuals who seek to offer information and counseling to individuals on public sidewalks near abortion clinics.
This week, the ACLJ sued the City of Englewood, New Jersey, on behalf of Jeryl Turco, a Christian pro-life advocate who, for the past seven and a half years, has regularly used the public sidewalk in front of a local abortion clinic each Saturday morning to speak with individuals heading to or from the clinic and to offer them literature and a rosary. She considers it essential to maintain a caring demeanor, a calm tone of voice, and eye contact during her exchanges with these individuals, as she believes that this method of expression is a much more effective means of dissuading women from having abortions than confrontational methods like shouting.
Our lawsuit challenges an Englewood ordinance enacted last year that makes it illegal to enter a large portion of public sidewalk outside of an abortion clinic during the clinic’s business hours. There are exceptions for individuals entering or leaving the clinic, employees or agents of the clinic, law enforcement and other municipal agents acting within the scope of their employment, and people who use the sidewalk solely to reach a destination other than the clinic. Violations of the ordinance are punishable by up to 90 days in jail and/or a fine of up to $1,000.
As a result of the ordinance, our client is prohibited from entering, remaining in, or using a large expanse of public sidewalk—approximately 50 to 60 feet in length and encompassing the entire width of the sidewalk—that runs along the entire front of the abortion clinic and part of a neighboring property during the clinic’s business hours. Since the ordinance was enacted, many individuals have been dropped off right in front of the clinic and have only a 15- to 20-foot walk to the entrance, which is located entirely within the anti-pro-life speech buffer zone, so our client no longer has any opportunity to extend literature to these individuals as they pass by.
Our lawsuit argues that the Englewood ordinance violates our client’s rights under the First Amendment and the New Jersey Constitution. Shortly after the ordinance was enacted, the Supreme Court unanimously held unconstitutional a law that is strikingly similar to the ordinance. In McCullen v. Coakley, a case in which we filed a key amicus brief, the Court held that a law under which pro-life sidewalk counselors were excluded from, among other places, a large stretch of public sidewalk in front of a Boston abortion clinic during the clinic’s business hours violated the sidewalk counselors’ First Amendment rights. The Court concluded that creating a buffer zone on a public sidewalk was not the least restrictive way for the government to protect its interests.
The Englewood ordinance is even more troubling than the McCullen law because Englewood has given exclusive, viewpoint-discriminatory access to the sidewalk near the clinic to individuals vocally supporting what the clinic does. Since the ordinance was enacted, agents of the abortion clinic calling themselves “escorts” have freely used the area of sidewalk located within the buffer zone to sing and shout loudly to drown out our client’s message, and to try to persuade individuals to not accept her literature and rosaries. It is textbook First Amendment law that the government cannot grant exclusive access to a traditional public forum to those expressing one viewpoint while excluding those expressing an opposing viewpoint, which is exactly what Englewood has done.
We will continue to keep you posted as this lawsuit moves forward.
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