Lawyers for the Thomas More Society, a pro-life law center based in Illinois, say that an ordinance in Jacksonville, N.C., requiring a permit to stand on public property while witnessing to women defies the First Amendment guarantees of free speech.
A pro-life group was issued a permit to gather in front of the Crist Clinic, an abortion provider, but the permit later was revoked by police who cited "traffic safety concerns."
Peter Breen, lead counsel for the Thomas More Society, told WND that this week he "sought emergency injunctive relief in federal court against the city of Jacksonville, N.C., in order to stop constitutionally protected free speech violations against pro-life activists."
A motion for a temporary restraining order was filed in federal court, he said.
He said that the Jacksonville Police Department revoked a permit it previously had issued to the pro-life group, citing traffic safety concerns regarding where the group had originally been approved to stand.
Jacksonville Police Chief Michael Yaniero was unavailable to speak with WND but told the Charlotte Observer, "The group's desired site at the vehicle entrance to the Crist Clinic for Women was unsafe for picketing because it is on the sharp curve of a side street."
"We felt like standing on the side of the road in a curve like that would be dangerous," he continued.
"The city council supported our contention that there was a public safety need to move their demonstration somewhere else in that vicinity that would be safer," he said.
WND requested accident data on the location from the Jacksonville Police Department, but did not get a response.
A Google Map aerial view of the Crist Clinic shows that it sits on a side street with the roadway curving around the property.
Breen told WND that the "principals at play here are important no matter where you stand in the political spectrum."
"The message of life has been unconstitutionally curtailed and arbitrarily squelched according to unconstitutional ordinances," he said. "Furthermore, the Jacksonville ordinance allows the police chief excessive discretion regarding permit applications, and unlimited expression regarding relocation of permit holders."
Breen said the chief, citing "public safety concerns," wanted to move the pro-life group from the front entrance of the abortion clinic to the rear entrance.
"This would essentially remove the ability of the group to stand on the sidewalk, pray, and offer assistance to women seeking abortions at the clinic," he said.
The Jacksonville Municipal Code broadly defines a "public assembly" as "any gathering of more than two persons for a common purpose as a result of prior planning that … occupies any public area in a place open to the general public."
Breen acknowledges in the motion that the city ordinance he labels a "permit scheme" allows the "city to plan for and alleviate traffic and safety impacts arising from parades and public assemblies."
"The ordinance must be narrowly tailored and not 'burden substantially more speech than is necessary to further that interest," he said. "Even a small group, handing out leaflets without disturbing the flow of sidewalk traffic, falls in its clutches."
The motion says Jacksonville will be hard pressed to establish why the "burdensome ordinance" is necessary for groups as small as three people in "facilitating its interests in keeping the streets and sidewalks safe, orderly and accessible."
They claim the scope of the ordinance "is far broader than necessary to further the city's interests in traffic control and public safety."
Jacksonville City Attorney John Carter did not respond to WND's request for an interview.
Breen told WND "the clinic is not on a dangerous spot of the road."
"The police chief could cite no instances of any vehicle arbitrarily jumping the curb in this area," he said.
"If the police are concerned about safety in this area, they could put up signs, or simply enforce the existing speed limit," he continued.
Moving Dr. Bartolo Spano's group to an area where they will be ineffective "clearly silences their message from reaching their intended audience," he said.
Breen's motion contends, "Although the government may reasonably regulate the use of streets and parks in the interests of all its citizens, 'f]ree expression must not, in the guise of regulation, be abridged or denied.'"
He said Jacksonville police officers ignored this principle when they moved Dr. Spano's group to a position where they could not be seen or heard by their intended audience.
Breen intends to fight for the First Amendment rights of the pro-life group.
"Jacksonville's ordinance restricts speech protected by our federal Constitution," he said. "In the United States, police officers don't have the right to arbitrarily make ad hoc decisions to prohibit an assembly in a public place."