A Tampa federal judge denied an anti-abortion group’s request to remove the protest-free zone at a Clearwater health clinic while its lawsuit challenging the constitutionality of the vehicle safety ordinance plays out.
In March, as protests at the Bread and Roses Women’s Health Center became increasingly volatile, the City Council passed a buffer zone ordinance that prohibits protesters from crossing the driveway or the portion of sidewalk within 5 feet of either side of the driveway. Violators can be issued a civil citation and $130 fine.
Members of the Pinellas Park-based Florida Preborn Rescue sued the city in May, arguing the ordinance violates their First Amendment rights and “targets the speech of people with a pro-life viewpoint,” according to the lawsuit.
They asked a judge to issue an injunction lifting the buffer zone during the litigation.
But in an order issued Friday, U.S. District Court Judge Mary S. Scriven ruled that video footage taken since the buffer zone’s creation shows that “free speech outside the center remains quite robust” and the ordinance “merely requires” the plaintiffs to take two or three steps back from the driveway.
“If the Ordinance curtails speech at all, it does not appear to burden substantially more speech than necessary to serve the significant government interest in vehicular safety,” Scriven wrote.
Former Clearwater Police Chief Dan Slaughter backed the buffer zone in response to protesters who repeatedly rushed up to cars entering and exiting the driveway and blocked the safe flow of traffic. But Florida Preborn stated its members use a different approach as “sidewalk counselors” by handing out leaflets and calmly offering Bread and Roses patients an opportunity to talk about their decision to get an abortion.
They argued that having to stand five-feet from the driveway now makes it impossible to hand out literature and “dramatically curtails” their ability to engage in quiet conversations with occupants in the cars coming and going.
But Florida Preborn member Allen Tuthill admitted at a Sept. 21 hearing that nothing in the ordinance prohibits a Bread and Roses patient who wants information from walking up to him to retrieve a leaflet, Scriven wrote.
Contrary to testimony made by members of Florida Preborn, Scriven said that photos show sidewalk counselors still have “a clear line of sight” to vehicles as they enter and exit the driveway and to the parking areas inside the property.
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Two Florida Preborn members testified at the hearing that with the buffer in place, their voices could not carry the additional five feet to attract the attention of patients. But a demonstration done on the stand “proved the opposite” as they could in fact be heard five feet away while speaking in normal tones, Scriven wrote.
In her order, Scriven also stated she could not issue the injunction because Florida Preborn has not demonstrated “a substantial likelihood of success on the merits for their First Amendment claims.”
“Nothing in the text of the ordinance imposes any restrictions on the content of speech,” Scriven wrote.
Florida Preborn president Scott J Mahurin said the group plans to appeal, as “our speech is clearly being targeted, hindered and blocked by the unconstitutional buffer zone.”
Other buffer zones across the United States have also been challenged in the courts, but Scriven wrote that Clearwater’s is distinguishable from those that have been deemed unconstitutional.
In December, a federal court ruled that a 10-foot buffer zone around a Kentucky abortion clinic violated the First Amendment because it failed “narrow tailoring” as it applied to all medical facilities, among other factors.
Unlike the Kentucky case, Scriven said Clearwater’s ordinance does not preclude counseling along the sidewalk adjacent to the Bread and Roses property other than in the five-foot space on either side of the driveway. She said Clearwater’s buffer is also narrowly tailored to address vehicle safety concerns.