SAN DIEGO (CN) - A San Diego ordinance banning activism with 100 feet of schools, churches and health care facilities doesn't violate the First Amendment, but may not be narrowly tailored enough to prevent certain protests outside of schools, a federal judge found Tuesday.

The city says the ordinance, passed in 1997 and updated in 2024, is meant to protect vulnerable populations and prevent harassment and intimidation.

But U.S. District Judge Gonzalo Curiel sided with an anti-abortion activist who says the city can't prove that the law's intent applies to his distribution of leaflets to students as they leave Patrick Henry High School in San Diego.

"The city's justification for enacting the ordinance is based on little more than mere conjecture, hypotheticals, and vague allusions to practical experience regarding the need to restrict leafleting and one-on-one conversations near schools," the Barack Obama appointee wrote in a Tuesday morning order.

The recently-updated ordinance established a 100-foot buffer zone around schools, churches and health care facilities. In those buffer zones, protesters can't display signs, approach people to talk to them or distribute literature without the consent of the person they approach.

Don Blythe, an anti-abortion activist who has demonstrated across California, sued San Diego last year claiming the city's ordinance violates his and other activists' First and Fourteenth Amendment rights to free speech and to demonstrate. Curiel previously declined to issue a preliminary injunction on the ordinance to Blythe.

The city argues that prior case law recognizes that municipalities can impose content neutral restrictions that balance free speech rights with the need to protect students and other vulnerable populations - like people entering and exiting medical facilities and religious institutions - from "unwanted communication," harassment and intimidation. 

While content-based speech regulations are presumed unconstitutional, content-neutral regulations can be valid if they set a "reasonable time, place and manner restriction." But Blythe argues that the restrictions are unreasonable because his actions don't fall into the type of actions the city says it wants to prevent. 

In response to Blythe's motion to dismiss, the city cites numerous examples of when protests turn hostile or violent and intimidate people from entering churches or health care facilities. But none of the proffered examples are relevant to the goal of preventing disruptions at the school, Curiel said.

"The city's evidence does not support a finding that the ordinance, by restricting plaintiff's leafleting activities, will further its interests," Curiel wrote. 

Though Blythe's First Amendment challenge as applied to the high school passes muster, his remaining claims that the ordinance is unconstitutional on its face fell flat for Curiel.

"Plaintiff fails to carry his burden here because his arguments almost exclusively focus on his own intended speech activities," Curiel wrote. "While plaintiff argues that the ordinance is unlawful as applied to his intended activities near schools, these applications represent only a sliver of the conversations to which the ordinance may apply."

Similarly, Curiel dismissed Blythe's claim that the ordinance is too vague.

Blythe offer hypothetical scenarios, like that of a student complaining about a grade, and suggests that they could be deemed as protest and therefore outlaws by the ordinance. Curiel was unconvinced, reasoning that the fact that anyone could think up a hypothetical far-removed from the ordinance's intent does not undercut the original meaning. 

"With this in mind, the court finds that it is sufficiently clear what the ordinance as a whole prohibits," Curiel wrote. 

Blythe's narrow tailoring claim will survive for now, and Curiel also gave him opportunity to amend his facial free speech claim if he can show "whether a substantial number of the law's applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep."

Neither San Diego nor Blythe immediately replied to a request for comment. 

Source: Courthouse News Service