An Iowa law that purports to limit speech outside of abortion businesses actually is an unconstitutional "heckler's veto," according to a court filing in a fight over the speech of pro-life activists Anthony Miano and Nicholas Rolland.
They are challenging the restrictions Iowa has imposed on their speech, and their lawyers, at the American Center for Law and Justice, have filed a brief explaining to the U.S. District Court for the Southern District of Iowa the state's plan cannot be allowed.
The state of Iowa wants to, and has adopted rules to allow authorities to, "silence constitutionally protected speech ... on the basis of a third party's reaction to the speech," the ACLJ explained.
The fight right now is whether an injunction should be issued as the case moves through the court system. But it still holds an important precedent.
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"Defendants (the state) attempt to gloss over the portion of the statute that bases violation of it on a listener's 'unreasonable distress,'" the filing explains. "Defendants propose that the listener is a nebulous member of 'society,' and the speech must be distressing according to the general public's sensibilities.
"In reality, however, violation of the statute actually turns on the reactions of a listener inside the very building where the speech occurs.
"The person to whom a protest or demonstration is directed will naturally be critical of what is said. Protests and demonstrations are inherently rooted in disagreement, no matter their nature; for example, labor protests against a dictatorial boss, women's marches against a sexist system, or wartime protests against an authoritarian government."
The filing continues, "Allowing a biased listener to determine the constitutionality of speech or expression due to his comfort level with what is said is 'so inherently subjective that it would be inconsistent with our longstanding refusal to [punish speech] because the speech in question may have an adverse emotional impact on the audience,'" the filing said.
The Constitution, the filing explains, does not allow authorities to limit the expression of ideas "merely because the ideas themselves are offensive to some of their hearers."
"Alowing a listener who is unhappy with a person's speech to then silence him unequivocally constitutes a heckler's veto," the filing said.
The state's ban on "loud" protesting also runs afoul of the Constitution, the filing explains.
"Even if 'yelling' were the bright line between protected and unprotected speech, which it is not, [the law] is not instructive as to when speech crosses that line. 'Yelling,' according to one officer or speaker, may otherwise be classified as passionate conversing, speaking from a distance, singing, cheering, or giving a speech, to another."
The Iowa law makes it a misdemeanor to make "loud and raucous noise in the vicinity of any residence or public building which causes unreasonable distress to the occupants thereof."
"Our clients conduct pro-life outreach outside of abortion clinics in Iowa, and have suffered arrest and threats of future arrest and prosecution for their pro-life speech activities," the ACLJ reported.
The government in Iowa are trying to convince the court that loud speech is not protected. They also contend that if someone claims to be "distressed" by speech, it can be limited.
"We explained that the First Amendment does not apply only when 'one keeps his or her voice down and engages in a polite protest. . . . Public protest, demonstration, and dissemination of ideas and beliefs are no less protected by the First Amendment simply because they may be loud.' Moreover, speech cannot be prohibited simply because someone takes offense to it. Such a threshold as this would be 'so inherently subjective that it would be inconsistent with [the Supreme Court’s] longstanding refusal to [punish speech] because the speech in question may have an adverse emotional impact on the audience,'" the ACLJ said.