League Scuttles Local Attack on Free Speech

Eric Scheidler addresses Aurora City Council

Eric Scheidler addresses the Aurora, IL City Council [Photo by Matt Yonke]

When people think about assaults on our freedom of speech, they tend to look at the national level—measures like the Fairness Doctrine, which some liberals want to use to shut down conservative talk radio, or federal lawsuits like the infamous NOW v. Scheidler case, in which the abortion industry tried to use an anti-mob law to intimidate pro-lifers into silence.

But in practice, we find that threats to free speech—especially the free speech of pro-lifers—are much more likely to appear on the local level, like when police use a vaguely worded municipal ordinance to shut down a pro-life demonstration, or when a city like New York enacts a measure deliberately intended to undermine the outreach of pro-life pregnancy resource centers by requiring them to loudly declare that they don’t do abortions.

Ordinance Seeks to Limit Canvassing

Sometimes the local threat is less sinister in intention, but no less serious in practice. The Pro-Life Action League has been dealing with just such an issue in recent months in Aurora, Illinois, where the League has been fighting Planned Parenthood’s flagship abortuary since 2007.

As part of that fight, I regularly monitor meeting agendas for the various city committees for any items that may have to do with Planned Parenthood or that could threaten our civil rights to speak, assemble and protest. On August 3, 2010, I received an e-mail from an alderman about a public hearing taking place before the Government Operations Committee (GO) that night on some proposed changes to the peddling and canvassing ordinance.

The stated purpose of these changes was to deal with citizen complaints about unwanted advertising circulars making an unsightly mess. But since pro-life activists have to canvass too, I investigated further.

The draft ordinance I obtained from the city legal department justified my concerns. Anyone distributing written material of any kind would have to get a permit from the city 30 days in advance, or face a $150 fine—including a pro-life activist alerting his neighbors that an abortion clinic is opening up in town, exactly as League Executive Director Eric Scheidler did in 2007.

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Public Speaks Out for Speech

Eric and I went to the public hearing that evening and were surprised at how many people showed up. Only one or two spoke in favor of the measure. The vast majority were opposed. Everyone from get-out-the-vote organizers up to small business owners to high-powered lawyers from major newspapers like the Chicago Tribune declared that the measure would place undue constraints on freedom of speech.

In his remarks to the committee, Eric quoted U. S. Supreme Court justice John Paul Stevens in his majority opinion in the 2002 case, Watchtower v. Stratton: “It is offensive, not only to the values protected by the First Amendment, but to the very notion of a free society, that in the context of everyday public discourse a citizen must first inform the government of her desire to speak to her neighbors and then obtain a permit to do so.”

At the conclusion of the August 3 meeting, the committee announced they would hold another hearing to allow further public comment. That hearing wasn’t scheduled for nearly four months—almost as if someone in city government hoped we’d all forget about the matter.

But that wasn’t about to happen. I continued to monitor the city website, and even called the city clerk periodically. The hearing was finally scheduled for October 19.

GO Ignores First Amendment Problems

The second hearing was even better attended than the first. Eric and other residents again told the committee about the harms of the proposed changes, and told the city they would certainly be sued in federal court if they continued with the ordinance as it stood. Once again, the committee thanked the citizens for their input and said they would take it into account.

I continued to watch GO agendae go by for months with no movement on these proposed changes to the peddling ordinance. Then in June of this year, I found the measure had moved from the GO Committee to the Committee of the Whole—just one step away from a City Council vote.

I quickly obtained the revised ordinance draft and the relevant GO meeting minutes via a Freedom of Information Act (FOIA) request, which the city, strangely, provided on audio cassette. The draft showed little change—young children were exempted and the permit waiting period was shortened—and the tape revealed that in an hour of discussion the committee had not once addressed the First Amendment problems raised by the community.

I attended the Committee of the Whole meeting June 7. With little argument, the measure was put on the agenda for the next City Council meeting, June 14.

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City Council Told TMS Eager to Sue

Eric and I both signed up to speak at the meeting, and arrived that evening armed with a letter from our attorneys at the Thomas More Society. We were surprised to find absent Aurora’s Corporation Counsel Alayne Weingartz, whom we suspected was the author of the unconstitutional ordinance. In her place was attorney Lance Malina, one of Aurora’s outside legal counsel.

When time came for public comment, Mayor Tom Weisner asked if we would first allow Malina to address some “misunderstandings” about the ordinance. Malina stated that the measure would not require a permit to simply talk to one’s neighbors door-to-door, or to leave literature with them if they wanted it.

After Malina’s remarks, I came to the podium and read a letter from our attorneys at the Thomas More Society stating their opinion that the ordinance was in flagrant violation of the First and Fourteenth amendments and that, if it passes, they will file a lawsuit in Federal Court “before the ink dries.” I gave the mayor and aldermen copies of the letter, along with the full text of Justice Stevens’ majority opinion in Watchtower v. Stratton.

Eric then spoke, informing the Council that in passing the measure before them, the GO Committee had completely ignored the concerns raised by a wide spectrum of citizens at the two public hearings. He then repeated Justice Stevens’ declaration in Watchtower that this kind of restriction on free speech is “offensive . . . to the very notion of a free society,” and urged the aldermen to vote “No.”

City Council Debates Ordinance

After our comments, the council questioned Malina further. He insisted that going door-to-door speaking to neighbors was regarded by the Supreme Court as qualitatively different from going door-to-door to leave flyers. Eric would have liked to point out that the Watchtower decision actually rejected this distinction, but the time for public comment was over.

As the Council discussed the measure over the next half hour, asking Malina many pointed questions, it became clear that the right to distribute written materials was an issue of particular concern to these elected officials, who frequently canvass for their campaigns and leave literature when residents are not home.

Finally, Alderman-at-Large Bob O’Connor proposed that the measure be returned to GO to have these free speech problems corrected. His proposal passed 10-2. The free speech rights of Aurora citizens remained intact—for the while.

League Vigilance Protects Freedom

Eric and I were gratified that the deeply flawed ordinance did not make it to a vote, but we were concerned that we were the only voices of opposition that day. If it weren’t for the League’s vigilance, the questions we brought up would never have been raised. The requirement to get a permit to leave literature door-to-door would almost certainly have been rubber-stamped, constraining the rights of every citizen of Aurora and encouraging other local governments to do likewise.

The League is keeping a close eye on the GO Committee as they revisit this matter. We are also encouraging other pro-life activists to keep a close eye on city government. It’s at the local level that our freedoms are most likely to be threatened—and when that happens, the lives of unborn babies are on the line.

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