Time to kill the “buffer zone” law

“Safety and balance.” That has been the cry parroted by supporters of New Hampshire’s unenforced and unenforceable buffer zone law ever since its introduction and passage in 2014. Keeping people safe means keeping people silent: that’s some screwy balance. No wonder the law has never been used.

It’s time for the Sidewalk Free Speech Act, HB 430, which will have its hearing tomorrow, February 9, at 2 p.m. It will repeal the buffer zone law, if passed.

Four times, efforts to repeal that law have failed. It’s imperative to keep trying. It’s time to erase a blot on New Hampshire’s statutes by getting rid of the buffer zone law. See the end of this post for details on how you can let legislators know that.

HB 430 ought to pass with an overwhelming majority. Anyone who values the First Amendment will support it. Abortion will be unaffected when HB 430 passes, but First Amendment rights will be reaffirmed.

“Safety and balance”

New Hampshire’s buffer zone law allows abortion facility managers to decide the times and places members of the public may occupy public property within 25 feet of the facility. That’s a “buffer zone.” Municipal agencies may be consulted about a proposed zone, but have no say in whether a zone is actually set up.

Is there any wonder that no one has dared to set up a buffer zone so far? Just how hungry for litigation does someone have to be in order to support such a law? And yet legislators have continued to tolerate having the law on the books.

The sponsor of the buffer zone law, Sen. Donna Soucy (D-Manchester, still in office), cited “safety and balance” repeatedly as she shepherded her bill onto then-Gov. Hassan’s desk in 2014. She spoke as though the advocates of safety were somehow in opposition to advocates of peaceful witness.

The buffer zone law makes no distinction between violent action and silent prayer. Neither the actions nor the intentions of a person outside an abortion facility figure into the buffer zone law. Only the opinion of a “reproductive health care facility” manager carries any weight.

Sen. Soucy was concerned about violence, as though people praying on the sidewalk weren’t just as concerned about it. She spoke of safety, even though there was zero documentation by law enforcement that any ordinances or state laws had been used against peaceful pro-life witnesses outside abortion facilities.

Violence is abhorrent, inside and outside an abortion facility. The buffer zone law has done nothing, and can do nothing, to prevent it.

So if the buffer zone doesn’t prevent violence, what’s its purpose? It was written to squelch unpopular speech. The last time a law similar to New Hampshire’s got to the Supreme Court, the Court threw it out on its figurative ear.

Supreme Court says there must be alternatives

A Planned Parenthood of Northern New England lobbyist testified in 2014 that a buffer zone was necessary, as attested by 60 complaints made by patients at the Manchester facility.

Complaints made to police? No. Those 60 complaints were made to PP. None resulted in any law enforcement involvement. So were any laws or ordinances broken in the course of those 60 complaints? Apparently not. Either PP didn’t report any complaints to the police – which even now makes me wonder just how seriously they take patient safety – or PP knew that the “complaints” didn’t rise to the level of criminal activity such as harassment, trespassing, disorderly conduct, or breach of the peace.

That’s not a good enough reason to keep a buffer zone law. Don’t take my word for it. The U.S. Supreme Court ruled 9-0 in McCullen v. Coakley, relative to a Massachusetts buffer zone law, that one could not impose First Amendment restrictions outside an abortion facility without first using less-severe alternatives to address objectionable behavior. In legal parlance, restrictions outside abortion facilities must be narrowly tailored.

The Court affirmed the right of states to impose reasonable restrictions on the time, place, and manner of speech. Overbroad laws, however, won’t withstand Supreme Court scrutiny.

That old struck-down Massachusetts law was the model for the New Hampshire law, by the way.

To quote from Justice Roberts’s opinion in McCullen, which I repeat was a unanimous decision, even as the abortion-friendly Justice Ginsburg was participating:

To meet the requirement of narrow tailoring, the government must demonstrate that alterna­tive measures that burden substantially less speech would fail to achieve the government’s interests, not simply that the chosen route is easier. A painted line on the sidewalk is easy to enforce, but the prime objective of the First Amendment is not efficiency.

If Common­wealth officials can compile an extensive record of obstruc­tion and harassment to support their preferred legislation, we do not see why they cannot do the same to support injunctions and prosecutions against those who might deliberately flout the law.  

McCullen v. Coakley, 573 U.S. 464

You have to enforce other laws and ordinances before impeding anyone’s First Amendment rights. Simple. Yet since 2014, that fact has not been enough to persuade New Hampshire legislators to throw out the buffer zone law. Republicans and Democrats alike bear the responsibility for ignoring McCullen; it’s a bipartisan error.

Fun fact: Massachusetts taxpayers eventually had to pay $1.2 million in legal fees to the attorneys for Eleanor McCullen, the plaintiff in the Massachusetts case.

Law enforcement avoided

Even today, as buffer zone repeal is introduced, Planned Parenthood of Northern New England seems to avoid calling on law enforcement. From a flyer distributed to patients at its Manchester facility this month: If you feel that you have been harassed or threatened by anyone near the health center at your health care visit today, please send an email to share your thoughts or experience to the email addresses below. Your voice and your privacy are important, and your elected leaders should hear from you: Office of Manchester Mayor Joyce Craig, email mayor@manchesternh.gov; Manchester ward 3 Alderman Pat Long, email long55@comcast.net. You can also call the Mayor’s office right now at (603) 624-6500.

Photo by Catherine Kelley. Used with permission.

There’s something missing from that flyer: contact information for the Manchester police. If patient safety were a concern, the police phone number would be listed first. It’s not listed at all.

How to contact House Judiciary Committee about HB 430

I’m going to urge the members of the House Judiciary Committee to vote OUGHT TO PASS on HB 430. Here’s how.

Sign in on HB 430 immediately. Don’t wait until the hearing begins; the committee might not see your sign-in. Use this online form: choose February 9, House Judiciary Committee, HB 430, representing self, supporting the bill; indicate if you plan to testify and the amount of time you think you’ll need. You may also email your testimony (see below).

Watch and participate in the hearing via Zoom online. (All public participation in hearings is remote for the time being.) Zoom log-in: https://www.zoom.us/j/96805083773, or dial 1-929-205-6099 (note: that is a toll number; keep that in mind if you’re calling from a landline!). The webinar ID is 968 0508 3773.

Email your written testimony to the Judiciary Committee as soon as possible; you need not testify via Zoom. An email to HouseJudiciaryCommittee@leg.state.nh.us will reach all committee members.

Don't buffer the First Amendment

Header photo: Michael Drummond/Pixabay.

The cost of the buffer zone law, so far

A postscript to yesterday’s New Hampshire House committee vote on buffer zone repeal, HB 589: Rep. Gary Hopper (R-Weare) read aloud to his fellow committee members a communication he had received from Deputy Attorney General Ann Rice in response to a query from him about what the state has spent so far defending the buffer zone law.

He read the letter aloud in a meeting that was open to the public; he posted it today on Facebook; his correspondent is a state employee; the topic was state business. Sounds like quotable stuff to me. So here is Deputy AG Rice to Rep. Hopper, as posted by Rep. Hopper this morning:

…So far, the Department has devoted 313.75 hours of attorney time in defending the buffer zone law, which equates to $43,611.25 (313.75 hours x $139.00/hr). We do not track the time that support staff devotes to any particular case so I cannot provide a cost for that. As far as future costs, that will depend on what the plaintiffs chose to do. If they appeal the decision to the US Supreme Court, we would file an objection, which I would estimate would involve approximately 40 hours of attorney time at $139/hr, or $5560 in cost. If the US Supreme Court accepted the appeal, the Department would likely devote several hundred hours on the appeal. I am unable to better estimate the amount of time required.

The plaintiffs could opt to refrain from further litigation unless and until a buffer zone is actually being considered. At this point, I cannot estimate if or when that would occur, or the amount of time that this office would spend on the litigation.

Recall that in the Supreme Court’s McCullen v. Coakley decision overturning a Massachusetts buffer zone law, taxpayers not only covered the cost for the state to defend an ultimately unconstitutional law but were later on the hook for $1.2 million in plaintiffs’ attorneys’ fees.

I’m sure Massachusetts’ costs started small. Look where they ended up.


This Sunday, 9/20: Eleanor McCullen speaking in Dover NH

Eleanor McCullen (Alliance Defending Freedom photo)
Eleanor McCullen (Alliance Defending Freedom photo)

This is short notice, but worth sharing: Eleanor McCullen, the plaintiff in the lawsuit that invalidated Massachusetts’ buffer zone law last year, is coming to New Hampshire. She’ll speak at St. Joseph Church in Dover, New Hampshire tomorrow, Sunday, September 20 at 5 p.m. Light refreshments will be offered.

The church is on Central Avenue in Dover. If you attend, I’d love to see your photos and hear your comments. You can contact me via Facebook.

Whether or not you can go to hear Eleanor, take a look at her web site: hopehelplove.com. My thanks to Nancy Sirois for bringing this event and web site to my attention.

 

Two years ago: the first hint of a NH buffer zone

Peaceful prayer witnesses outside Concord's Feminist Health Center
Still free to be on the sidewalk, for now: peaceful witness outside a Concord abortion facility.

As a House-passed buffer zone repeal bill makes its way through the New Hampshire Senate (where its prospects are uncertain), I recall a post on this blog two years ago when buffer zones first made their way into public discussion in the Granite State.

From April 2013: PPNNE is having “conversations” about no-protest zones outside NH facilities 

The appellate court decision referred to by the PPNNE rep I quoted was of course McCullen v. Coakley, which when later appealed to the U.S. Supreme Court left the Massachusetts buffer zone law in ruins. The Burlington zone she mentioned? Gone. Ditto for one in Portland, Maine.

So much for using appellate decisions to impose censorship zones.

Today, two years later, buffer zone supporters are fighting repeal while backing away from their own handiwork – a neat trick, really. In my thirty years of keeping an eye on the State House, I have never seen anything like this.

The Sunday afternoon team at the halfway point of the Fall 2014 campaign.
A 40DFL team outside Greenland, NH’s abortion facility.

A PPNNE lobbyist at a recent Senate hearing used a Pennsylvania decision from last month to bolster her opposition to repeal. (Yes, another appellate ruling. Some lessons aren’t easily absorbed.) That case is Bruni v. Bader. The federal district court ruled that plaintiffs were unlikely to prevail on the merits and therefore their request for an injunction against a Pittsburgh buffer zone was denied.

I’m not an attorney, I haven’t yet read the text of that decision, and none of the news coverage answers this question: is there a record in Pittsburgh of police action enforcing existing pre-buffer laws relating to trespassing, loitering, harassment, or even parking violations? If there isn’t, then Bruni is a mighty slim reed for New Hampshire buffer supporters to lean on.

Looking back on the April 2013 blog post, it’s interesting to consider just how fast the New Hampshire buffer zone law moved from “conversation” to done deal. The conversations had obviously been going on long before they became public. The same is no doubt true for the current legislative “conversations” about revisiting the existing law.  Let’s hope the people who want straight repeal are equally committed to such private conversations with policymakers.


 

NH buffer zone repeal bill has zone backers looking for cover

The yet-unenforced New Hampshire buffer zone law rammed through the legislature by abortion advocates last year has become politically and legally toxic – so much so that its biggest boosters are asking legislators to fix the mess they made last year. Senator Donna Soucy and Planned Parenthood lobbyist Jennifer Frizzell testified before the House Judiciary Committee last week, arguing that any flaws in the law can be fixed.

The fifteen co-sponsors of House Bill 403 have a better idea: repeal the law altogether.

Supporters of the repeal bill filled the Judiciary Committee’s hearing room a few days ago, and so many of them wanted to testify that the morning’s hearing was carried over to the afternoon. Chief sponsor Kathy Souza of Manchester called the buffer law law “an affront to our state and our state’s motto and our Constitution,”  and she reminded the committee that with the Reddy v. Foster lawsuit pending, “it could cost the state a lot of money quite unnecessarily.”


 

Still no police logs to back up claims that a buffer is needed

Souza (not to be confused with Sen. Soucy) of Manchester arrived at the hearing with an email she had received within the hour from the Manchester police department, reporting the most recent logs available on police calls to the Manchester Planned Parenthood facility. As was the case with earlier logs submitted into testimony when the buffer zone was moving towards passage, these logs showed no evidence of violence or even disruptive behavior resulting in an arrest at that location.

Souza read aloud from the logs she had just received about calls to 24 Pennacook Street: “alarm activation, forgery, sex assault, parking complaints, and an accident. Nothing to do with protesters.”

Frizzell explained the lack of police reports by saying “Moving forward with a complaint requires giving up one’s own privacy … Clearly, we had many patients that wanted to be part of contributing to a solution who weren’t ready to press charges with law enforcement.”

The Supreme Court & the Massachusetts case

As for the Supreme Court’s unanimous decision throwing out the Massachusetts buffer zone law on which the New Hampshire law is based, neither Soucy nor Frizzell find it persuasive. Soucy, chief sponsor of the buffer zone bill, said that when she introduced what became the law, she was “very mindful of the fact that there was a U.S. Supreme Court appeal [McCullen v. Coakley] pending regarding the Massachusetts law.”

She denies that the New Hampshire law is similar enough to the unconstitutional Massachusetts law, specifying two differences: the New Hampshire law has an “up to 25-foot” zone, where Massachusetts had a 35-foot buffer; and New Hampshire’s law has a “posting” requirement whereby the law isn’t enforced in the absence of buffer-zone signs around abortion facilities.

Soucy, an attorney, omitted from her testimony the principal reason the Court gave for striking down the Massachusetts law. It had nothing to do with signs or the size of the zone. The Massachusetts law could not survive because it impermissibly infringed on First Amendment rights. From Justice Roberts’s decision in McCullen: “…here the Commonwealth has pursued those interests [of balancing the rights of patients and demonstrators] by the extreme step of closing a substantial portion of a tradi­tional public forum to all speakers. It has done so without seriously addressing the problem through alternatives that leave the forum open for its time-honored purposes. The Commonwealth may not do that consistent with the First Amendment.”

Which brings us back to the police logs in Manchester and all the other communities hosting New Hampshire abortion providers: within the past few years, there is no police evidence of a pattern of threats or intimidation at any New Hampshire facility. In order for the New Hampshire buffer zone law to be constitutional in accordance with Justice Roberts’s decision, there must first be a documented problem with demonstrators at an abortion facility. Then, before the draconian step of nullifying the First Amendment in the vicinity of an abortion facility, existing less-drastic laws must be used first: laws against disorderly conduct, for example.

“Flies in the face of the First Amendment”

“This [law] not only flies in the face of the First Amendment; it also violates our [New Hampshire] constitution,” Souza testified. “Our constitution takes very seriously our First Amendment rights. We’re the Live Free or Die state. I think it’s a blight on our legislative landscape to have a bill that was in essence ruled a violation of our First Amendment rights. If we think we’re Live Free or Die, we should make it a priority to get this law off our books.”

Rep. Al Baldasaro of Londonderry agreed, calling repeal “a no-brainer. When somebody is out there at a rally, not assaulting anyone, not causing damage, not being out in the street so they’re breaking the laws, I think we owe it to [them] not [to] shut down anyone’s right to protest in those areas, whether you support abortions or not.”

Rep. Dan Itse of Fremont testified in favor of repeal, and he faced questioning from committee member Rep. Paul Berch, who asked “Do you support people being intimidated when they are performing activities that are legal?” “Of course not,” replied Itse. “And I would suspect we have laws against disturbing the public peace. If our laws regarding disturbing the public peace are not adequate, I suggest we make them adequate.”

Rep. JR Hoell of Dunbarton brought up a point not addressed by other speakers: “We violated our [state] constitution on quorum rules” on a tabling motion for the buffer zone bill before it eventually passed. “This bill should never have become law.” Hoell said that the quorum problem, coupled with the lawsuit against the buffer zone, makes repeal “a slam-dunk.”

“I didn’t think that you would even consider not repealing this bill,” said Rep. Jeanine Notter of Merrimack to the committee, “after hearing about the lawsuit and how much it could cost the state – just please do the right thing and just repeal this buffer zone.”

Buffer zone sponsor: “I’d ask you to work with us”

All the speakers at the hearing, pro- and anti-repeal, acknowledged the current stay that is preventing enforcement of New Hampshire’s buffer zone law. Repeal proponents consider this a good reason for getting rid of the law, while those opposing repeal are now suggesting that the delay might allow for tinkering with the law.

Frizzell to the committee: “It does seem to me and to Planned Parenthood that the law on the books as it sits under injunction is not doing any good addressing the concerns that we had where we brought forward. So in your deliberation of whether to let it stand, or whether to repeal it, I would be interested in talking to the committee about some more pragmatic ways that New Hampshire’s law could be enforced.” Anything but repeal, she seemed to be saying.

Soucy concurred. “Repeal of this law in and of itself is a mistake. To the extent there is concern over a particular aspect of the bill, I’d ask you to work with those who continue to face threatening and intimidation. The problem that I brought before this legislature last year is an ongoing problem. It’s one that persists.”

Committee action expected within a week

Committee chairman Robert Rowe expects a committee vote on the bill before the House break the last week of February. Repeal opponents are likely to continue lobbying for adjustments to the existing law. What they didn’t lobby for at the hearing: leaving the law alone. We have the seven plaintiffs in Reddy v. Foster to thank for that.