A judge has entered an injunction preventing a Florida teacher from counseling women on public sidewalks outside an abortion clinic, upholding an abortion worker’s claim that the teacher was “stalking.”
Apparently the pro-life counselor, James Thoma of Fort Pierce, was on the same road as the abortion worker, Tamekia O’Neal, on one occasion.
That fact, contends the non-profit legal group Liberty Counsel, is no justification for an injunction.
The legal team has filed a brief with the Fourth District Court of Appeal on behalf of Thoma, a second-grade teacher who for more than 15 years spent parts of Wednesdays and Saturdays peacefully counseling women entering and leaving the abortion business. His aim is to offer the women “alternatives to abortion and care afterwards” and provide literature detailing the services of a nearby pregnancy care center.
Liberty Counsel said Thoma is often the target of “shouting and taunts from clinic employees.”
O’Neal, the lawyers said, took the “extreme step” of seeking a stalking injunction against Thoma to keep him away from the clinic.
When Thoma appeared in court, Liberty Counsel said, the judge “scoffed at Thoma’s First Amendment right to speak against abortion and entered the injunction – not because Thoma had threatened violence or blocked access to the clinic, but because the judge and the clinic employee disagreed with Thoma’s message.”
Liberty Counsel is asking the Florida Fourth District Court of Appeal to throw out the “unconstitutional injunction.”
“Constitutionally protected activity cannot be counted toward a finding of stalking,” said Mat Staver, founder and chairman of Liberty Counsel. “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”
Roger Gannam, senior litigation counsel at Liberty Counsel, said it’s a “sad irony when a statute designed to prevent violence against women is used to prevent a pro-life schoolteacher from peacefully counseling women against the violence of abortion.”
“Every day that Mr. Thoma is prevented from being at the clinic is a violation of his constitutional rights, and women who may be desperate for help in dealing with a crisis pregnancy are denied critical information about alternatives to abortion,” he said.
The brief states the injunction should be reversed “because there is no competent, substantial evidence of repeated stalking incidents.”
“It is undisputed that Thoma has never threatened O’Neal, never blocked her from the clinic, never cursed at her, and never said anything to her outside the context of his opposition to abortion,” the brief explains. “It is undisputed that Thoma has never engaged in violence or intimidation, and that he has intentionally excluded any violent or potentially violent persons from participating in any events he has led.”
Thoma lived about 16 miles south of the clinic, and he’s made the trip back and forth hundreds of times, using different routes, according to the brief.
“On at least one occasion, Thoma ended up directly behind O’Neal as they both left the clinic. … Upon noticing Thoma behind her, O’Neal pulled to the side and let him pass, which he did without incident, and he continued home,” it says.
O’Neal “testified to one occurrence of Thoma driving directly behind her, which she perceived as ‘following,’ though she admitted he was only behind her for ‘a couple’ of turns until she no longer saw him.”
“Remarkably, the court below concluded, on this testimony alone, that ‘Thoma was following her home from work’ and ‘following Ms. O’Neal home,'” the brief says.
The brief also challenges the lower court’s condemnation of a flyer created by Thoma and others to educate the community about the abortion business operations. It describes the educational work as a constitutionally protected activity.
When Thoma attempted to raise First Amendment concerns, the judge cut off his testimony: “I am aware of the law, sir. We don’t have time today to do that.”
Concludes the brief, “A finding of stalking requires repeated incidents of harassment or malicious following.”
It also cites Thoma’s participation in the creation and distribution of a flyer.
“Neither incident could be legally counted towards the repeated incidents required for a finding of stalking,” the brief says.
