Walter Hoye, Ii v. City of Oakland , 653 F.3d 835 ( 2011 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WALTER B. HOYE, II,  No. 09-16753
Plaintiff-Appellant,
v.  D.C. No.
3:07-cv-06411-CRB
CITY OF OAKLAND,
OPINION
Defendant-Appellee.

Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Argued and Submitted
October 8, 2010—San Francisco, California
Filed July 28, 2011
Before: Stephen Reinhardt and Marsha S. Berzon,
Circuit Judges, and Louis H. Pollak, Senior District Judge.*
Opinion by Judge Berzon
*The Honorable Louis H. Pollak, Senior District Judge for the U.S. Dis-
trict Court for Eastern Pennsylvania, Philadelphia, sitting by designation.
9649
9652 HOYE v. CITY OF OAKLAND
COUNSEL
For Plaintiff-Appellant Walter B. Hoye, II: Michael Millen,
Law Offices of Michael Millen, Los Gatos, California; Cath-
erine B. Short (argued), Life Legal Defense Foundation, Ojai,
California.
For Defendant-Appellee City of Oakland: Angela L. Padilla,
Sarah C. Marriott, Benjamin C. Geiger, and Katherine C.
Lubin, Greg J. Richardson (argued), Orrick, Herrington &
Sutcliff LLP, San Francisco, California; John Russo and Vicki
Laden, Oakland City Attorney’s Office, Oakland, California.
For Amicus Curiae American Center for Law and Justice: Jay
Alan Sekulow, Stuart J. Roth, Walter M. Weber, American
Center for Law and Justice, Washington, D.C.
For Amici Curiae California Women’s Law Center, The Cali-
fornia Black Women’s Health Project, The Connecticut
Women’s Education and Legal Fund, The Feminist Majority
Foundation, Equal Rights Advocates, Legal Momentum,
Legal Voice, The California National Organization For
Women, Physicians for Social Responsibility-Los Angeles,
The Southwest Women’s Law Center, the Women’s Law Proj-
ect, and The Women’s Law Center of Maryland: J. Cacilia
Kim and Vicky L. Barker, California Women’s Law Center,
Los Angeles, California; Alexandra A. Bodnar, Casey J. T.
McCoy, Squire, Sanders & Dempsey L.L.P., Los Angeles,
California.
HOYE v. CITY OF OAKLAND 9653
For Amici Curiae Abortion Care Network, American College
of Obstetricians and Gynecologists, American Medical
Women’s Association, American Nurses Association, Center
for Reproductive Rights, Medical Students for Choice,
National Abortion Federation, National Family Planning and
Reproductive Health Association, and Physicians for Repro-
ductive Choice and Health: Janet Crepps & Jennifer
Mondino, Center for Reproductive Rights, New York. New
York.
For Amici Curiae Planned Parenthood Affiliates of Califor-
nia, The California Medical Association, Alameda-Contra
Costa Medical Association, Planned Parenthood Golden
Gate, Planned Parenthood Los Angeles, Planned Parenthood
Mar Monte, Planned Parenthood/Orange and San Bernar-
dino Counties, Planned Parenthood of Santa Barbara, Ven-
tura, & San Luis Obispo Counties, and Planned Parenthood:
Shasta-Diablo: Beth H. Parker & Rachel L. Chanin, Arnold
& Porter L.L.P., San Francisco, California.
OPINION
BERZON, Circuit Judge:
Throughout our nation’s history, Americans have counted
on the First Amendment to protect their right to ask their fel-
low citizens to change their mind. Abolitionists, suffragists,
socialists, pacifists, union members, war protestors, religious
believers, civil rights campaigners, anti-tax activists, and
countless others have appealed to the principle, enshrined
within the First Amendment, that in a democracy such as
ours, public debate must be robust and free and that, for it to
be so, the Constitution’s protection of the freedom of speech
must extend to the sidewalk encounter of the proselytizer and
his prospective convert. These instances of public persuasion
constitute the lifeblood of a self-governing people’s liberty,
9654 HOYE v. CITY OF OAKLAND
and so even when the beliefs propagated seem to some the
“rankest error” that “naturally would offend” any listener, our
founding charter deems such encounters “in the long view,
essential to enlightened opinion and right conduct on the part
of the citizens of a democracy.” Cantwell v. Connecticut, 310
U.S. 296, 309-310 (1940). This case calls on us to apply that
principle.
****
Walter Hoye, a minister, is a so-called “sidewalk counsel-
or.” He regularly stands outside a reproductive health clinic
in the City of Oakland, seeking to engage women in what he
calls a “friendly conversation” to dissuade them from having
an abortion.
Concerned about disruptive anti-abortion protests outside
clinics, the Oakland City Council enacted a so-called bubble
ordinance (the “Ordinance”), its name derived from the 100-
foot metaphorical “bubble” the Ordinance creates around the
entrances to reproductive health clinics. Within such zones,
the Ordinance makes it an offense knowingly and willfully to
approach within eight feet of an individual seeking entry to
the clinic if one’s purpose in approaching that person is to
engage in conversation, protest, counseling, or various other
forms of speech. The Ordinance is largely modeled after the
Colorado statute held constitutional in Hill v. Colorado, 530
U.S. 703 (2000).1
Hoye was convicted of two separate violations of the Ordi-
nance. (His convictions were reversed on procedural grounds
during the pendency of this appeal.) He now challenges the
Ordinance in this § 1983 action, contending that the Ordi-
nance infringes upon the freedom of speech guaranteed by the
First Amendment to the United States Constitution. Hoye also
Both the Ordinance and the Colorado statute are reproduced in an
appendix to this opinion.
HOYE v. CITY OF OAKLAND 9655
argues that the Ordinance violates the federal constitution’s
Due Process Clause, as well as the state and federal guaran-
tees of equal protection of the laws. A theme central to his
challenges is his contention that Oakland does not enforce the
Ordinance evenhandedly, as it has a policy of not enforcing
the Ordinance against volunteers who engage in pro-abortion
speech outside reproductive health clinics. The District Court
granted Oakland’s motion for summary judgment on all of
Hoye’s claims, and Hoye appealed. We now affirm in part,
reverse in part, and remand for the determination of appropri-
ate relief.
I.
A.
Several reproductive healthcare clinics are located within
the City of Oakland (the “City”). For decades, anti-abortion
activists have gathered outside them, trying to dissuade
patients from seeking abortions and employees from perform-
ing them. Their insistent importuning has caused patients and
employees to feel harassed, even intimidated. Also, in the
past, protestors have blocked entrances to clinics, forcing
patients and staff to climb through windows and fire escapes.
Protestors have also sometimes mobbed patients’ vehicles as
they pull up to the clinic, preventing patients from stepping
out.
Since approximately early 2006, Walter Hoye has stood
outside the Family Planning Specialists clinic in Oakland,
seeking to discourage women entering the clinic from having
an abortion. Hoye’s stated goal is “to have a personal, one-on-
one conversation with each woman concerning her individual
situation and what is causing her to consider abortion.” He
also often holds a sign proclaiming, “Jesus loves you and your
baby. Let us help.” He says that he has “never called a woman
9656 HOYE v. CITY OF OAKLAND
a baby killer or murderer or told her she would rot in hell, or
expressed any judgment like that.”2
Hoye reports that “[f]or most of the time I have been going,
there has been only two or three other pro-life people there.”
He also states that he has never seen a “pro-life counselor
block patients from getting to the [c]linic”; instead, he says,
“We consciously try to space ourselves out on the sidewalk
. . . [and] make sure there is room to pass.” Video recordings
of Hoye’s activities, although incomplete, corroborate Hoye’s
account of his sidewalk counseling.
For a number of years, “escorts” have helped patients
approaching reproductive health clinics to navigate their way
into the building when anti-abortion protestors are present.
Hoye calls the escorts “pro-abortion activists.” Barbara Hoke,
an escort, provides a slightly different account: According to
her, escorts are volunteers who, although not “legally affiliat-
ed” with the clinics, wait outside them, often wearing bright
orange vests bearing the name of the clinic in front of which
they are volunteering. “The escort’s job,” in Hoke’s words,
“is to create a clear pathway to the clinic so that patients seek-
ing to enter the clinic may do so without being intimidated,
harassed, or feeling physically threatened.”
Hoye charges that “[t]hese activist escorts tell women not
to listen to [him], that he is only there to harass [them], that
[they] will only be safe with the escorts, and [that they
should] not . . . take his literature or information because it is
inaccurate.” Hoye also says that escorts, “with their bodies,
form barriers” to prevent him from approaching patients,
make noise (such as “lalalala”) to drown out Hoye, and have
“assign[ed] some of their number to stand in front of [Hoye]
with blank pieces of cardboard, thus blocking women from
seeing [Hoye’s] sign.” The City, by and large, does not con-
2
There is no indication in the record to the contrary, nor any suggestion
that Hoye has engaged in any physical obstruction or violence.
HOYE v. CITY OF OAKLAND 9657
test Hoye’s account of the escorts’ activities. Also, at Hoye’s
criminal trial, Hoke to a degree confirmed that account, testi-
fying that she thought it important for escorts “to block a mes-
sage that is inappropriate, that is meant to harm, is meant to
intimidate, and meant to prevent a woman from just the quiet
privacy of a moment in her life that is no one else’s business.”3
On December 18, 2007, the Oakland City Council passed
Ordinance No. 12849. Hoye filed the complaint in this case
the next day, asking for a temporary restraining order. At a
telephonic hearing on the request for a TRO, the District
Court expressed reservations about the Ordinance’s constitu-
tionality and strongly suggested that the City amend it. The
City, acquiescing, adopted an amended ordinance, Ordinance
No. 12860, on February 5, 2008.
Section 3(b) of the Ordinance, as amended, makes it unlaw-
ful, within 100 feet of the entrance of a “reproductive health
care facility,” to
willfully and knowingly approach within eight (8)
feet of any person seeking to enter such a facility, or
any occupied motor vehicle seeking entry, without
the consent of such person or vehicle occupant, for
the purpose of counseling, harassing, or interfering
with such person or vehicle occupant.
The Ordinance then goes on to define the three activities it
regulates—“counseling,” “harassing,” and “interfering”—
quite broadly.
3
The District Court ruled that Barbara Hoke’s testimony in Hoye’s
criminal trial “is hearsay and does not meet the requirements of the former
testimony exception in Fed. R. Civ. P. 804(b)(1).” But the City did not
object to the evidence. “Defects in evidence submitted in opposition to a
motion for summary judgment are waived absent a motion to strike or
other objection.” FDIC v. New Hampshire Ins. Co., 953 F.2d 478, 485-86
(9th Cir. 1991) (quotation omitted).
9658 HOYE v. CITY OF OAKLAND
We dwell on the definition of “counseling,” as it is instruc-
tive for two reasons. First, the Ordinance defines “counseling”
relatively expansively: “Counseling” means “engaging in con-
versation with, displaying signs to, and/or distributing litera-
ture.” Ord. § 2(e). So, under the Ordinance, within 100 feet of
a clinic, a speaker wishing to engage in conversation with,
display signs to, or distribute literature to a person entering
the clinic must first obtain that person’s consent before
approaching within eight feet of that person.
Second, the definition of “counseling” was one of the sec-
tions of the Ordinance amended at the suggestion of the Dis-
trict Court. Originally, the Ordinance had defined
“counseling” so as to restrict only “engaging in conversation
. . . displaying signs . . . and/or distributing literature . . . in
an effort to harass, intimidate, or persuade the individual not
to access such reproductive health services.” (Emphasis
added). Thus, this provision, as originally enacted, was
explicitly one-sided: A speaker who attempted to persuade a
woman entering a reproductive health clinic to access repro-
ductive health services was not “engaging in conversation”
within the meaning of the Ordinance. Section (3)(b), the Ordi-
nance’s operative provision, reiterated the Ordinance’s one-
sided prohibition. It made it a misdemeanor to approach per-
sons without consent for the purpose of counseling, harassing
or interfering with them “in connection with seeking repro-
ductive health services, or for the purpose of interfering with
that person’s or vehicle occupant’s obtaining or providing
reproductive health services.” Ord. § 3(b) (emphasis added).
At District Judge Breyer’s suggestion, the City amended the
Ordinance to strike all of the language italicized above. As a
result, the Ordinance on its face no longer distinguishes in the
key operative provisions between pro-abortion and anti-
abortion advocacy.
On May 13, 2008, the Oakland Police Department arrested
Hoye and cited him for violating the Ordinance. An Alameda
County jury convicted him, in January, 2009, of two counts
HOYE v. CITY OF OAKLAND 9659
(for separate incidents) of “harassment of persons seeking
health care” in violation of § 3(b) of the Ordinance. Hoye
appealed his convictions to the Appellate Division of the
same court, which reversed the convictions on two grounds,
neither pertinent here. See People v. Hoye, 115 Cal. Rptr. 3d
876, (Cal. App. Super. Ct. 2010). Shortly after the parties
argued this case before us, the district attorney dismissed the
prosecution against Hoye.
In the meantime, in this federal action, the parties filed
cross-motions for summary judgment. On August 4, 2009, the
District Court granted the City’s motion in full.
B.
Oakland’s ordinance is not the only legislative attempt to
facilitate access to reproductive healthcare facilities by impos-
ing special restrictions on speech and conduct in the space
immediately outside clinic entrances. See Freedom of Access
to Clinic Entrances Act, 18 U.S.C. § 248; California Freedom
of Access to Clinic and Church Entrances Act, Cal. Penal
Code §§ 423 et seq.; Cal. Penal Code § 602.11. Nor is this
case the first to raise difficult questions concerning the
accommodation of women’s right to an abortion with anti-
abortion activists’ right to free speech. In the last two decades,
the Supreme Court has three times addressed the First
Amendment rights of anti-abortion protestors outside repro-
ductive healthcare facilities. See Madsen v. Women’s Health
Ctr., Inc., 512 U.S. 753 (1994); Schenck v. Pro-Choice Net-
work of Western New York, 519 U.S. 357 (1997); Hill v. Colo-
rado, 530 U.S. 703 (2000).4
4
Since Hill, at least two circuits have decided cases involving so-called
bubble ordinances and their application to circumstances involving side-
walk counselors and escorts. See McGuire v. Reilly (McGuire I), 260 F.3d
36 (1st Cir. 2001) (reversing a grant of a preliminary injunction against a
statute’s enforcement); McGuire v. Reilly (McGuire II), 386 F.3d 45 (1st
Cir. 2004) (affirming the district court’s decision to uphold the statute on
the merits); Brown v. City of Pittsburgh, 586 F.3d 263 (3d Cir. 2009)
(upholding parts of an ordinance similar to Oakland’s, but striking down
other parts); see also McCullen v. Coakley, 571 F.3d 167 (1st Cir. 2009)
(upholding amended Massachusetts statute in face of a facial challenge).
9660 HOYE v. CITY OF OAKLAND
In Hill, the third case in this trilogy, the Supreme Court
upheld, in the face of a First Amendment challenge, a Colo-
rado statute markedly similar to the Ordinance. See Colo.
Rev. Stat § 18-9-122. The statute, like the Ordinance, created
a buffer zone of 100 feet outside healthcare facilities. Within
that zone, the statute prohibited knowingly approaching
within eight feet of another person, without that person’s con-
sent, for the purpose of “passing a leaflet or handbill to, dis-
playing a sign to, or engaging in oral protest, education, or
counseling” that person. Id.
Because the Ordinance is modeled on the Colorado statute
upheld in Hill, that opinion controls much of our analysis in
this case and leads us to the conclusion that the Ordinance is
a facially valid restriction on the time, place, and manner of
speech. But Hill did not concern in any way the activities of
escorts—that is, individuals engaged in counteracting the
effect of anti-abortion protestors’ speech by facilitating poten-
tial patients’ access to clinics. Accordingly, there was no con-
tention in Hill that Colorado enforced its statute only against
anti-abortion speakers. In contrast, Oakland appears to have
read into its Ordinance an exception for speech that facilitates
access to reproductive health services and so has enforced the
Ordinance against anti-abortion speakers but not pro-abortion
speakers. We conclude that, in doing so, Oakland unconstitu-
tionally suppresses speech based on the content of its mes-
sage.
Further, because Hill did not concern activities similar to
those of the escorts in this case, the Supreme Court did not
consider whether it would be constitutional to apply an ordi-
nance like Oakland’s to speakers whose attempts to convey
their message are systematically countered by those opposed
to that message. In this opinion, we take up that question
briefly and, guided by the principle that government must
consider the actual conditions speakers encounter when it
restricts their speech, explain that it may be unconstitutional
to apply the Ordinance to speakers if, under the circumstances
HOYE v. CITY OF OAKLAND 9661
surrounding a particular reproductive health clinic at a partic-
ular time, the application of the Ordinance would effectively
foreclose speakers’ ability to communicate their message. But
because we would be required to speculate as to prospective
facts, we leave the determination as to whether the Ordi-
nance’s application to Hoye actually has that effect for
another day and a developed record.
For these reasons, we affirm the District Court’s holding
that the Ordinance is facially valid, but reverse the remainder
of its ruling and remand with instructions to devise appropri-
ate relief.
II.
Before turning to the validity of Oakland’s bubble ordi-
nance, we must address an antecedent question, namely,
whether we should decide this case at all in light of the “na-
tional policy forbidding federal courts to stay or enjoin pend-
ing state court proceedings except under special
circumstances.” Younger v. Harris, 401 U.S. 37, 41 (1971);
see Columbia Basin Apartment Ass’n v. City of Pasco, 268
F.3d 791, 799-800 (9th Cir. 2001). “The Younger doctrine . . .
counsels federal-court abstention when there is a pending
state proceeding.” Moore v. Sims, 442 U.S. 415, 423 (1979).
State criminal proceedings against Hoye were commenced—
and completed—during the pendency of this federal action.5
But the circumstances in which federal courts should decline
to exercise their jurisdiction “are carefully defined and remain
the exception, not the rule.” Gilbertson v. Albright, 381 F.3d
965, 969 n.2 (9th Cir. 2004) (en banc) (quotation omitted).
We conclude that this case does not fit into the “carefully
defined” Younger exception to mandatory federal jurisdiction.
5
Neither party has raised the Younger doctrine, but it “may be raised sua
sponte at any time in the appellate process.” Columbia Basin, 268 F.3d at
799. That the state court proceedings have now ended is not alone a suffi-
cient reason that Younger does not apply. See Beltran v. California, 871
F.2d 777, 782 (9th Cir. 1988).
9662 HOYE v. CITY OF OAKLAND
Hoye filed this federal case in December, 2007, well before
the district attorney filed a criminal complaint in state court
on June 6, 2008. Cf. Agriesti v. MGM Grand Hotels, Inc. 53
F.3d 1000, 1001 (9th Cir. 1995) (holding that when a citation
had issued but no charging document had been filed with state
court, “there [were] no ongoing state judicial proceedings” for
purposes of Younger abstention). Still, “where state criminal
proceedings are begun against the federal plaintiffs after the
federal complaint is filed but before any proceedings of sub-
stance on the merits have taken place in the federal court, the
principles of Younger v. Harris . . . apply in full force.” Hicks
v. Miranda, 422 U.S. 332, 350 (1975). The commencement of
state proceedings only ceases to require federal abstention
after the federal court proceedings have moved beyond an
“embryonic stage.” Doran v. Salem Inn, Inc., 422 U.S. 922,
929 (1975).
Here, the federal proceedings had begun nearly six months
before the commencement of criminal proceedings in state
court. By that time, the District Court had denied Hoye’s
motion for a temporary restraining order, it had held four sta-
tus conferences and hearings in this case, and the City Coun-
cil had amended the Ordinance in response to the District
Court’s expression of its deep reservations about the Ordi-
nance’s constitutionality. Thus, by the time state proceedings
began, the federal proceedings had been long pending, and the
District Court’s intervention in the case had resulted in a sig-
nificant change in the relative positions of the parties. We
therefore conclude that the federal proceedings had prog-
ressed beyond an embryonic stage, so that “considerations of
economy, equity, and federalism counsel against Younger
abstention.” Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229, 238
(1984); see id. (concluding that “a federal court action in
which a preliminary injunction is granted has proceeded well
beyond the ‘embryonic stage’ ”); Adultworld Bookstore v.
City of Fresno, 758 F.2d 1348, 1350-51 (9th Cir. 1985) (hold-
ing that Younger abstention was not required when state crim-
inal proceedings began after the district court had conducted
HOYE v. CITY OF OAKLAND 9663
an “extended evidentiary hearing on the question of a prelimi-
nary injunction” but had not issued the injunction).
We therefore turn to consideration of the challenge to Oak-
land’s “bubble ordinance.”
III.
[1] In Hill, the Supreme Court held that Colo. Rev. Stat
§ 18-9-122(3) was facially constitutional under the time,
place, and manner analysis set forth in Ward v. Rock Against
Racism, 491 U.S. 781 (1989), and Clark v. Cmty. for Creative
Non-Violence, 468 U.S. 288 (1984). Hill, 530 U.S. at 719-
730. In those two cases, the Supreme Court explained that
government may impose restrictions on speech in a public
forum so long as the restrictions “[(1)] are justified without
reference to the content of the regulated speech, [(2)] . . . are
narrowly tailored to serve a significant governmental interest,
and [(3)] . . . leave open ample alternative channels for com-
munication of the information.” Ward, 491 U.S. at 791 (quot-
ing Clark, 468 U.S. at 293).
The relevant portions of the Ordinance largely replicate the
Colorado statute the Supreme Court considered in Hill, so our
analysis of the Ordinance’s facial constitutionality is mostly
controlled by that case.6 But the Ordinance does depart from
the Colorado statute in some details. We discuss the two most
important such departures but conclude that they are not of
decisive significance to the Ordinance’s facial constitutional-
ity.
6
Hill’s reasoning, if not always its result, has been criticized by scholars
of various stripes. See Colloquium, Professor Michael W. McConnell’s
Response, 28 Pepp. L. Rev. 747 (2001) (quoting criticisms of Hill by
Profs. Michael McConnell, Laurence H. Tribe, Erwin Chemerinsky, and
Akhil Amar).
9664 HOYE v. CITY OF OAKLAND
A.
The first significant difference between the Ordinance and
the Colorado statute is that the Ordinance creates a buffer
zone only outside of “reproductive health care facilit[ies],”
Ord. § 3(b), although the Colorado statute created a buffer
zone outside of all health care facilities, including hospitals.
Colo. Rev. Stat § 18-9-122(3). In fact, the Ordinance does not
apply to hospitals that provide reproductive health services or
to reproductive health facilities operated or owned by hospitals.7
The Ordinance’s preamble suggests that the reasons hospitals,
and clinics owned or operated by hospitals, are excluded are
that “offices and facilities that have patient stays of shorter
duration may be more vulnerable . . . on account of the layout
and design of their facilities and parking areas as well as their
staff deployment” and that “the facilities with the fewest
resources for providing adequate security . . . are those not
affiliated with hospitals.”
Hoye contends that the narrower range of the Ordinance
shows that it, unlike the statute in Hill, is not content-neutral.
But we fail to see how, under Hill, the Ordinance’s applica-
tion to a narrower class of healthcare facilities could make it
content-discriminatory. It is true that the Ordinance is more
closely targeted to the kinds of facilities where anti-abortion
activists are likely to gather. But Hill rejected as “flawed” the
“theory that a statute restricting speech becomes unconstitu-
tionally content-based because of its application to the spe-
cific locations where that discourse occurs.” Id. at 724
(quotation omitted). Instead, the Supreme Court explained
that the Colorado statute was content-neutral because it “was
not adopted because of disagreement with the message” of the
7
The Ordinance defines “a reproductive health facility” as “any facility
that provides reproductive health services [defined elsewhere to include
counseling and informational services] that is not licensed as a hospital,
and is not owned, and/or operated by a licensed hospital.” Ord. § 2(b)
(emphasis added).
HOYE v. CITY OF OAKLAND 9665
speech it regulates, id. at 719 (quotation omitted), and because
“the statutory language makes no reference to the content of
the [regulated] speech.” Id.; see id. at 725 (explaining that the
statute is content-neutral because it “is not limited to those
who oppose abortion” and “it applies to all . . . demonstrators
whether or not the demonstration concerns abortion”); Ward,
491 U.S. at 791 (“A regulation that serves purposes unrelated
to the content of expression is deemed neutral, even if it has
an incidental effect on some speakers or messages but not
others.” (emphasis added)); Menotti v. City of Seattle, 409
F.3d 1113, 1129 (9th Cir. 2005) (“That Order No. 3 predomi-
nantly affected protestors with anti-WTO views did not render
it content based.”).8
For similar reasons, we cannot find a defect of constitu-
tional proportions in the fact that the Ordinance regulates
approaching a narrower class of individuals than the Colorado
statute. The Colorado statute imposed restrictions on
approaching anyone within the buffer zone, see Colo. Rev.
Stat. § 18-9-122(3) (“No person shall knowingly approach
another person . . . .” ), while the Ordinance only regulates
knowingly approaching individuals “seeking to enter” the
reproductive healthcare facility. Ord. § 3(b). The only reason
that this departure from the Colorado statute might be relevant
is that it might exacerbate the already disproportionate effect
the Colorado statute may well have had on anti-abortion mes-
sages as compared to pro-abortion messages, or to messages
on subjects having nothing to do with abortion. But, again,
Hill instructs that, in regulating speech immediately outside
reproductive health facilities, disproportionate effect is not of
8
We need not—and do not—interpret these statements to mean that a
disproportionate effect on one message never matters in determining
whether a facially neutral regulation is content-based. It may be that in
some circumstances a facially neutral regulation of speech will so dispro-
portionately affect one message as to require a court carefully to consider
the statute’s terms to be sure that they do not incorporate a subtle content-
based standard.
9666 HOYE v. CITY OF OAKLAND
decisive significance to the content-neutrality inquiry. 530
U.S. at 724-25.
[2] In sum, given Hill, neither the fact that the Ordinance
applies only to speech outside reproductive health care facili-
ties, not hospitals generally, nor the fact that it protects only
those “seeking to enter” the facilities renders it content-based.9
Instead, we look to whether the Ordinance’s substantive terms
are content-based, and to whether the statute was enacted “be-
cause of disagreement with the message” of the speech it reg-
ulates, Hill, 530 U.S. at 719 (quotation omitted), to determine
whether it is content-neutral.
B.
Hoye does not contend that the statute was enacted because
of substantive disagreement with the message of the speech it
regulates, nor does the record contain any evidence that it
was. We must therefore examine whether the Ordinance’s
substantive terms make facial distinctions between categories
of speech based on content.
[3] We begin again with a comparison with Hill, to see
whether there are any differences that would render the Ordi-
nance, but not the Colorado statute, content-based. The Ordi-
nance does regulate slightly different categories of speech
than the Colorado statute in Hill. The Colorado statute
restricted approaching another person “for the purpose of
passing a leaflet or handbill to, displaying a sign to, or engag-
ing in oral protest, education, or counseling with” that person.
Colo. Rev. Stat. § 18-9-122(3). The Ordinance restricts
approaching others “for the purpose of counseling, harassing,
9
That the Ordinance’s restriction on speech is limited to fewer locations
than the Colorado statute does not make it more vulnerable to constitu-
tional challenge at the narrow-tailoring or ample alternative channels
stages of the time, place, and, manner inquiry. If anything, the opposite
would appear to be true, as more locations remain available to the speaker.
HOYE v. CITY OF OAKLAND 9667
or interfering with” them, § Ord. 3(b), and then defines
“counseling,” “harassing,” and “interfering” so as to incorpo-
rate the same expressive activities restricted by the Colorado
statute. See Ord. §§ 2(c), (d) & (e). But the Ordinance then
describes in a new way the regulated category of speech: The
Ordinance’s definition of “counseling” includes “engaging in
conversation,” Ord. § 2(e), a category of speech not expressly
restricted by the Colorado statute. Hoye makes no argument
that this additional language in the Ordinance marks a deci-
sive difference from the Colorado statute for purposes of the
time, place, and manner inquiry. We do not see how it could.
[4] For one thing, the Colorado statute explicitly restricted
“counseling” and “education,” which are largely co-extensive
with “engaging in conversation,” especially in the circum-
stances to which the Ordinance applies. More importantly,
Hill instructed that, when analyzing the face of a statute to
determine its content-neutrality, the relevant question is
whether the statute draws distinctions among subjects of dis-
cussion, not among means or types of communication. 530
U.S. at 723. Oakland’s addition of an express restriction on
“engaging in conversation” in no way changes the fact that it,
like the Colorado statute, “applies equally to used car sales-
men, animal rights activists, fundraisers, environmentalists
and missionaries.” Id. Hill therefore requires that we deem the
addition of the “engaging in conversation” language immate-
rial to the Ordinance’s facial content-neutrality.
The “engaging in conversation” language also does not
meaningfully affect the narrow-tailoring and ample alternative
channels of communication tests as those tests were applied
by Hill. Hill concluded that the Colorado statute passed both
these inquiries insofar as the spoken word is concerned
because courts “must accord a measure of deference to the
judgment of the . . . [l]egislature” as to whether “the 8-foot
interval is the best possible accommodation of the competing
interests at stake,” id. at 727, and because the statute might
“assist[ ] speakers’ efforts to communicate their messages
9668 HOYE v. CITY OF OAKLAND
[by] encourag[ing] the most aggressive and vociferous prote-
stors to moderate their confrontational and harassing conduct,
and thereby make it easier for thoughtful and law-abiding
sidewalk counselors . . . to make themselves heard.” Id. That
analysis remains unaltered by Oakland’s addition of the
phrase “engaging in conversation” to the Ordinance.
C.
Aside from pointing to differences between the text of the
Colorado statute and that of the Ordinance, Hoye makes two
additional attempts to explain why Hill is not fatal to his
facial challenge to the Ordinance. Neither is persuasive.
Hoye’s first such argument is more an attempt to reargue
Hill than to distinguish it. He contends that the Ordinance is
not content-neutral because it distinguishes between demon-
strators’ speech and “panhandling, solicitation and vending.”
None of the latter types of speech is expressly restricted by
the Ordinance, even though they are expressive activities that
raise similar concerns about “nuisance, the persistent impor-
tuning, the following, the dogging, and the implied threat of
physical touching” as demonstrators’ speech. Id. at 724.
The obvious flaw in this argument is that the Colorado stat-
ute upheld in Hill did not in terms prohibit panhandling, solic-
itation, or vending either. The Supreme Court nonetheless
held that the Colorado statute “does not distinguish among
speech instances that are similarly likely to raise the legiti-
mate concerns to which it responds.” Id. Hoye suggests, in
effect, that Hill made a conditioned finding of content-
neutrality (i.e., the statute was content-neutral as between
“protest, education and counseling” and “casual conversa-
tion,” see id. at 721-22), but possibly not as between protest
and panhandling. Nothing in Hill suggests such a limited
holding.
Hoye’s second argument approaches one that we ultimately
find persuasive as an aspect of the selective enforcement con-
HOYE v. CITY OF OAKLAND 9669
sidered later, but it is not properly part of a facial challenge.
As Hoye points out, in Forsyth County v. Nationalist Move-
ment, the Supreme Court stated that “[i]n evaluating respon-
dent’s facial challenge, we must consider the county’s
authoritative constructions of the ordinance, including its own
implementation and interpretation of it.” 505 U.S. 123, 131
(1992). Hoye argues that this principle requires us to consider
Oakland’s enforcement practices in addressing his facial chal-
lenge. We disagree.
The Supreme Court followed its statement in Forsyth with
three citations. All three are to portions of cases in which the
Supreme Court used the past practice of a statute’s implemen-
tation to narrow the statute to save it in the face of a vague-
ness challenge. See Ward, 491 U.S. at 795-796; City of
Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 770 n.11
(1988); Gooding v. Wilson, 405 U.S. 518, 524-28 (1972).
Hoye points to no instance in which a court has used evidence
of a statute’s implementation to make it more facially vulner-
able. Cf. McGuire II, 386 F.3d at 58 (“Logically, there is no
way (save perhaps when overbreadth is an issue) that an
authority’s non-binding and non-authoritative interpretation
of a facially valid statute can make it more facially constitu-
tionally vulnerable than it would be otherwise.”).10 Thus,
although it is true that where “a well-understood and uni-
formly applied practice has developed that has virtually the
force of a judicial construction,” City of Lakewood, 486 U.S.
at 770 n.11, courts may consider that executive practice for
10
It is conceivable that an enforcement policy, even an unwritten one,
could be inseparable from the statute or ordinance, so that the constitution-
ality of the statute or ordinance may depend on the constitutionality of the
unwritten policy. See, e.g., Virginia v. Hicks, 539 U.S. 113, 121 (2003)
(considering the constitutionality of a written policy and an unwritten
exception together because the Virginia Supreme Court had decided the
two were not severable). Whether state laws are severable is, of course, a
matter of state law. See id. We have no reason to think that California
courts would find Oakland’s unwritten implementation policy inseparable
from the Ordinance as written.
9670 HOYE v. CITY OF OAKLAND
purposes of a facial challenge, they may do so only to save
a statute, not to condemn an otherwise valid one for being
content-based.
Illustrative of this distinction is Santa Monica Food Not
Bombs v. Santa Monica, 450 F.3d 1022 (9th Cir. 2006). In
that case, we considered a written implementation instruction
as an authoritative interpretation of a city ordinance, id. at
1035, and determined that the instruction provided an “ade-
quate limiting construction” on certain provisions of the ordi-
nance. Id. at 1042. At the same time, we concluded that the
instruction “fatally undermine[d]” a different provision of the
ordinance, but specifically held that the ordinance “as imple-
mented by the Instruction . . . cannot be enforced,” while not-
ing that the ordinance itself “passes constitutional muster,”
and so could be enforced if implemented in a different man-
ner. Id. at 1043.
This practice—relying on enforcement policies to save a
statute from a facial challenge but not to invalidate a statute
that is valid as written but not as enforced—is consistent with
“the well-established principle that statutes will be interpreted
to avoid constitutional difficulties.” Frisby v. Schultz, 487
U.S. 474, 483 (1988). Moreover, it would make little sense to
invalidate a statute that is constitutional as written when only
its implementation is defective. Doing so would only require
legislative bodies to undertake the pointless exercise of re-
enacting laws that were perfectly valid as enacted on the first
go around.
Hoye’s evidence of Oakland’s implementation of the Ordi-
nance therefore cannot alter our conclusion that the Ordinance
withstands Hoye’s facial challenge. Nonetheless, Hoye’s
appeal to the City’s enforcement practices is otherwise rele-
vant. We understand Hoye to argue that the City enforces the
Ordinance in a content-discriminatory manner, or—much the
same point—that the rule that the City actually enforces, dis-
tinct from the Ordinance, is content discriminatory and
HOYE v. CITY OF OAKLAND 9671
unconstitutional. It is to these essentially similar possibilities
that we now turn.11
IV.
We agree with Hoye that there are grave constitutional
problems with the manner in which the City has understood
and enforced its Ordinance. In considering the City’s enforce-
ment and application of the Ordinance, we follow an analysis
that is precise and technical, perhaps regrettably so. But
11
Hoye’s allegations of vagueness need not detain us. Hoye contends
that the Ordinance’s use of the terms “approach” and “consent” are imper-
missibly vague. But the Ordinance uses these terms in precisely the same
manner as the Colorado statute. See Hill, 530 U.S. at 732-33. The Ordi-
nance cannot therefore be vague in these respects for the same reasons that
Hill held the Colorado statute not to be vague. See id.To distinguish Hill, Hoye argues that the Ordinance only makes it
unlawful to “willfully and knowingly approach within eight (8) feet of any
person seeking to enter” a reproductive healthcare facility, Ord. § 3(b), not
to approach a person exiting a healthcare facility. Hoye appears to be
right: while the statute elsewhere refers to individuals exiting clinics, see
Ord. §§ 2(d), (e) & (f), it does not in fact make it an offense to approach
a person exiting the clinic. This omission is likely the result of a failure
of legislative draftsmanship. But that the City thinks the Ordinance, as
currently written, covers individuals leaving the clinics does not render the
statute vague; the text is perfectly clear. An individual prosecuted by the
City for counseling someone exiting the clinic would have a good defense,
but that defense would lie in the Ordinance’s text, not in the vagueness
doctrine.
Hoye also observes that the statute restricts approaching “any occupied
motor vehicle seeking entry” to a reproductive healthcare facility; he won-
ders “how long is [a vehicle] considered to be ‘seeking entry’ versus being
simply parked at the curb?” Despite Hoye’s protests to the contrary, this
quibble amounts to pettifoggery. The only plausible reading of the Ordi-
nance is that a vehicle is seeking entry so long as one of its occupants is
seeking entry to the clinic. Unoccupied parked cars do not count. The
Ordinance provides any person “of ordinary intelligence a reasonable
opportunity to understand what conduct i[s] prohibited.” Hill, 530 U.S. at
732; see id. at 733 (dismissing plaintiffs’ vagueness challenge as involving
no more than “hypertechnical theories as to what the statute covers”).
9672 HOYE v. CITY OF OAKLAND
beneath the doctrinal intricacies lie two simple principles: that
government may not favor speakers on one side of a public
debate, and that government must not substantially foreclose,
as a practical matter, speakers’ ability to communicate their
message.
A.
Hoye’s challenge to Oakland’s enforcement of the Ordi-
nance relies primarily on three pieces of evidence concerning
the City’s enforcement policy: an Oakland Police Department
training video, a Police Department training bulletin, and the
deposition of an Oakland Police Department captain pursuant
to Fed. R. Civ. P. 30(b)(6). The Oakland Police Department
training materials outline the Ordinance in vague terms that
do not deviate in any substantial way from the Ordinance
itself, which we have held is facially constitutional. Captain
Toribio’s deposition, quoted at length below, is more trou-
bling as it suggests a firm policy of enforcing the Ordinance
essentially as it was written before being amended—that is, as
applying only to efforts to persuade women approaching
reproductive health clinics not to receive abortions or other
reproductive health services, and not to communications seek-
ing to encourage entry into the clinic for the purpose of under-
going treatment. That account is fully corroborated by—and
we find dispositive—Oakland’s admissions throughout this
litigation that it understands and enforces the Ordinance in a
content-discriminatory manner.
In response to Hoye’s notice of deposition pursuant to Fed.
R. Civ. P. 30(b)(6), Oakland produced Police Department
Captain Toribio as the person most knowledgeable of Oak-
land’s “policies, procedure, and interpretations relating to
enforcement” of the Ordinance. Captain Toribio testified that
“the City’s enforcement policy is not to enforce the Bubble
Ordinance against escorts acting as escorts.” By this, Toribio
apparently meant that the City does not enforce the Ordinance
in such a manner as to require escorts to receive consent
HOYE v. CITY OF OAKLAND 9673
before approaching patients to engage in speech with them.
Toribio’s further testimony confirms this interpretation:
Q. Now, if [an] officer . . . informs you that [an]
escort had approached a woman within eight feet,
without her consent, and said “Don’t listen to the
demonstrators,” would that be considered to be a
violation of the ordinance or not?
THE WITNESS: Our policy is clear in what it says.
A comment like that is not harassment or intimi-
dating. It is language used to help facilitate their
entrance into the facility or maybe even their exit.
Q. If an escort were to say, “Don’t take those leaflets
they’re going to try to hand to you,” would that be
considered a violation?
THE WITNESS: No.
Q. If an escort were to say “Those leaflets have inac-
curate information in them, ” would that be consid-
ered a violation?”
A. No.
Q. If an escort were to say, “It’s your right to have
an abortion,” would that be considered a violation?
A. Our policy is clear. That would not be a violation
of the policy.
Q. And, again, I’m sorry. I may have taken a short-
cut here in each one of these hypotheticals.
I’m meaning an escort approaches within eight
feet of a patient seeking to enter the facility without
the patient’s consent. And, again, that does not
change your answer, that these escorts saying these
9674 HOYE v. CITY OF OAKLAND
things is not a violation of the ordinance?
A. Correct.12
At oral argument, the City confirmed that it would not
enforce the Ordinance against an escort who approached a
patient, without consent, and said, “May I help you into the
clinic?” but that it would enforce it against a sidewalk coun-
selor who said, “May I talk to you about alternatives to the
clinic?” The City explained its position as being that speech
that “facilitates access” to the clinic does not trigger the Ordi-
nance’s consent requirement, while speech that does not facil-
itate access does trigger it.13
12
The District Court ruled that many of the above questions were prop-
erly objected to as calling for speculation, and that Toribio’s answers did
not establish “that escorts make such statements, or that police turn a blind
eye to them.” But Toribio’s answers were not speculative; instead, they
simply stated, with some certainty, what the City’s enforcement policy is.
Moreover, all of the questions were asked in an attempt to ascertain the
City’s enforcement policy. In a sense, questions about a general policy are,
by their very nature, always hypothetical: a policy provides what officers
should do under certain hypothetical circumstances. We would be setting
an impossibly high bar for plaintiffs if we were to require them to estab-
lish a municipality’s policy and then to exclude as inadmissible a responsi-
ble police official’s testimony as to what the municipality’s policy is.
13
At times, the City has seemingly formulated its position as being that
speech that is incidental to facilitating access is not covered by the Ordi-
nance. In distinguishing between incidental and purposive speech, we take
Oakland to be arguing that there is a basis in the Ordinance to distinguish
between escorts’ speech and Hoye’s speech because the Ordinance only
restricts approaching “for the purpose” of engaging in various forms of
communicative activity. The contention is that escorts acting as escorts do
not approach patients for the purpose of engaging in the relevant forms of
communicative activity; they approach for the purpose of guiding women
into the clinic.
But Oakland’s reliance on the Ordinance’s “for the purpose of” lan-
guage must be evenhanded if it is to be persuasive (or, for that matter, con-
stitutional). If the escorts’ speech does not violate the Ordinance because
it is incidental to some non-communicative goal, then Hoye’s speech
could similarly be characterized as incidental to his goal of keeping
women from entering the clinic and aborting their fetuses. Yet the City
HOYE v. CITY OF OAKLAND 9675
On the face of the Ordinance, there is no distinction
between speech facilitating access and speech that inhibits
access. Of course, that distinction used to exist. The Ordi-
nance, as originally enacted, singled out speech made “in an
effort to harass, intimidate, or persuade the individual not to
access such reproductive health services,” Ord. § 2(f)
(emphasis added) and “for the purpose of interfering with [a]
person’s . . . obtaining or providing reproductive health ser-
vices.” Ord. § 3(b). After the hearing on the application for a
temporary restraining order, the City, at District Judge
Breyer’s suggestion, amended the Ordinance to remove the
quoted language from the Ordinance’s text. But, as Captain
Toribio’s deposition and the City’s representations at argu-
ment make clear, the City continues to enforce the Ordinance
as if the distinction remained. Embracing that distinction as
the fulcrum of an enforcement policy, even for a facially valid
enactment, is inconsistent with the First Amendment. We first
explain why that is so, and then we consider the practical
implications of the City’s decision to read an unconstitutional
distinction into a facially valid ordinance.
B.
The City’s policy of distinguishing between speech that
facilitates access to clinics and speech that discourages access
is not content-neutral. It is the epitome of a content-based
speech restriction. “A regulation is content-based if . . . the
regulation, by its very terms, singles out particular content for
differential treatment.” Berger v. City of Seattle, 569 F.3d
1029, 1051 (9th Cir. 2009) (en banc) (quotation omitted).
“[T]he fundamental principle behind content analysis is that
clearly does not understand the Ordinance to exempt Hoye’s speech. In
any case, even if the distinction between purposive and incidental speech
could coherently be made, we have said that privileging the latter over the
former “turns the First Amendment on its head.” Foti v. City of Menlo
Park, 146 F.3d 629, 639 (9th Cir. 1998).
9676 HOYE v. CITY OF OAKLAND
government may not grant the use of a forum to people whose
views it finds acceptable, but deny use to those wishing to
express less favored or more controversial views.” Menotti,
409 F.3d at 1128 (quotation omitted); see also Rosenberger
v. Rector & Visitors of the Univ. of Virginia, 515 U.S. 819,
829 (“Viewpoint discrimination is . . . an egregious form of
content discrimination”). In Hill, the Supreme Court reiterated
these principles, holding that Colo. Rev. Stat. § 18-9-122 was
content-neutral because it applies “to all protest, to all coun-
seling, and to all demonstrators whether or not the demonstra-
tion concerns abortion, and whether they oppose or support
the woman who has made an abortion decision.” 530 U.S. at
725 (quotation omitted) (emphasis added). “That is the level
of neutrality that the Constitution demands.” Id.[5] The City’s enforcement policy does not meet this level
of neutrality. To distinguish between speech facilitating
access and speech that discourages access is necessarily to
distinguish on the basis of substantive content. Asking a
woman “May I help you into the clinic?” facilitates access;
“May I talk to you about alternatives to abortion?” discour-
ages it. Telling a woman, “It’s your right to have an abor-
tion!” facilitates access; telling her, “If you have an abortion,
you will regret it!” discourages it. Here, the City has con-
ceded, both at oral argument and through Captain Toribio’s
deposition, that its policy is to permit speech on one side of
a controversial public debate, but not on the other. The City’s
implementation and enforcement of the Ordinance is therefore
indubitably content-based.
Possibly the City reads Hill as authorizing the government
to regulate speech so as to protect patients from any speech
that offends their dignity or privacy, even if the offense stems
not from the manner of speech but from the words that are
spoken. Protecting privacy and dignity will often require dis-
tinctions between content: “You’re a babykiller!” offends a
woman’s dignity and privacy; “It’s your right to have an abor-
tion!” often will not.
HOYE v. CITY OF OAKLAND 9677
In some cases, government regulation of speech with the
aim of protecting the dignity and privacy of individuals has
been permitted. See, e.g., Frisby, 487 U.S. at 484-87 (describ-
ing “the State’s interest in protecting the well-being, tranquil-
ity, and privacy of the home” and permitting the State to
“prohibit offensive speech [that is] intrusive” on that privacy
(quotation omitted)); cf. Berger, 569 F.3d at 1054 (observing
that the State may, in some cases, restrict speech to protect
“the psychological [and] physical well-being of the [hospital]
patient held ‘captive’ by medical circumstance”). But such
cases do not sanction content-based restrictions. They only
accept the dignity and privacy rationale as a sufficiently
strong governmental interest to justify a content-neutral time,
place, and manner restriction.
As the Supreme Court has recently explained, whether the
State may regulate speech because of its offensive nature
“turns largely on whether that speech is of public or private
concern.” Snyder v. Phelps, 131 S.Ct. 1207, 1215 (2011).14
Regulations of speech in public fora on matters of public con-
cern directed at others within the public forum must be
content-neutral or survive strict scrutiny. “It is firmly settled
that under our Constitution the public expression of ideas may
not be prohibited merely because the ideas are themselves
offensive to some of their hearers.” Street v. New York, 394
U.S. 576, 592 (1969) (emphasis added); see Schenck, 519
U.S. at 383 (explaining that “[a]s a general matter, we have
indicated that in public debate our own citizens must tolerate
14
For example, the First Amendment does not necessarily require a
showing of actual malice by all plaintiffs seeking to recover for the torts
of outrage or intentional infliction of emotional distress, but it does require
that showing of plaintiffs who are “public figures and public officials.”
Hustler Magazine v. Fallwell, 485 U.S. 46, 55 (1988). “Deciding whether
speech is of public or private concern requires [a court] to examine the
content, form, and context of that speech, as revealed by the whole
record.” Snyder, 131 S.Ct. at 1216 (quotation omitted). But there can be
no doubt that speech in a public forum on a controversial public matter
directed at others within the public forum is speech of public concern.
9678 HOYE v. CITY OF OAKLAND
insulting, and even outrageous, speech” (emphasis added)
(quotation omitted)); Boos v. Barry, 485 U.S. 312, 322 (1988)
(holding a regulation imposing a dignity standard on public
speech inconsistent with the First Amendment); Cantwell v.
Connecticut, 310 U.S. 296, 309 (1940) (protecting religious
and political speech on a sidewalk even though it “naturally
would offend . . . all . . . who respect the honestly held reli-
gious faith of their fellows”); see generally Robert C. Post,
The Constitutional Concept of Public Discourse: Outrageous
Opinion, Democratic Deliberation, and Hustler Magazine v.
Falwell, 103 Harv. L. Rev. 601 (1990) (arguing that First
Amendment doctrine prohibits the enforcement of rules
imposing norms of civility and dignity on public discourse).
If Hill had upheld the Colorado statute as permissible
because the sidewalk counselors’ speech directed at patients
seeking reproductive health services was not speech of public
concern or because those patients were not truly engaged in
public debate, an effort by the City to “facilitate access” by
regulating offensive speech might come closer to passing con-
stitutional muster. But while a few passages in Hill might sug-
gest otherwise, see 530 U.S. at 716 (noting that “[t]he
recognizable privacy interest in avoiding unwanted communi-
cation varies widely in different settings”), the Supreme Court
ultimately upheld the Colorado statute because it determined
the statute to be content-neutral, not because it held that the
State could legitimately protect listeners from speech that was
offensive only because of the words spoken. Nothing in Hill
undermines the bedrock principle that regulations of public
speech designed to protect listeners in public fora from sub-
stantively offensive speech are fundamentally incompatible
with content-neutrality. Oakland’s enforcement policy is
therefore a content-based regulation of speech.
[6] “Content-based regulations are presumptively invalid.”
R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992). A
content-based regulation of public speech is only permissible
if “it serves a compelling government interest in the least
HOYE v. CITY OF OAKLAND 9679
restrictive manner possible.” Berger, 569 F.3d at 1052. The
City has made no argument that its policy of enforcing the
Ordinance can survive such strict scrutiny. Indeed, no persua-
sive such argument can be made. While ensuring access to
women’s health care may well be a sufficiently compelling
state interest for purposes of strict scrutiny, the City’s
enforcement policy is not the least restrictive means of pursu-
ing that interest. “The existence of adequate content-neutral
alternatives . . . undercuts significantly any defense” of a
content-based regulation of speech. R.A.V., 505 U.S. at 395
(quotation omitted). Enforcing the Ordinance as written, that
is, as also applying to speech that encourages patients to enter
the clinic, is a content-neutral alternative that is less inimical
to the values at the heart of the First Amendment than the
City’s current policy of exempting such speech. The City has
not made any attempt to show that exempting speech facilitat-
ing access from the Ordinance’s strictures furthers the City’s
stated goal of providing access to reproductive health ser-
vices, let alone to the degree that would allow us to conclude
that the enforcement policy is the least restrictive means of
ensuring access to reproductive health services. We therefore
cannot conclude that the Ordinance, as understood and
enforced by the City, is one of those “rare . . . regulation[s]
restricting speech because of its content” that is nonetheless
permissible. United States v. Playboy Entm’t Grp., Inc., 529
U.S. 803, 818 (2000).
C.
The apparent divergence in our two conclusions—that Oak-
land’s bubble ordinance is facially constitutional but that the
City interprets and enforces the Ordinance in an impermiss-
ibly content-based manner—is not unprecedented. In Menotti,
for example, we concluded that Seattle’s Civil Emergency
Order No. 3 was a constitutional time-place-and-manner
restriction on its face, 409 F.3d at 1142, but remanded for a
trial on whether “it was the policy of the City to apply Order
No. 3 in a manner that excluded only anti-WTO protestors.”
9680 HOYE v. CITY OF OAKLAND
Id. at 1148. Courts must be willing to entertain the possibility
that content-neutral enactments are enforced in a content-
discriminatory manner. If they were not, the First Amend-
ment’s guarantees would risk becoming an empty formality,
as government could enact regulations on speech written in a
content-neutral manner so as to withstand judicial scrutiny,
but then proceed to ignore the regulations’ content-neutral
terms by adopting a content-discriminatory enforcement pol-
icy.
While courts must undoubtedly make doctrinal space for
challenges to the content-discriminatory enforcement of
content-neutral rules, it is not clear into which precise cate-
gory of constitutional claims such challenges fit. See, e.g.,
Thomas v. Chicago Park Dist., 534 U.S. 316, 325 (2002)
(observing, without elaboration, that a pattern of denying
waivers to disfavored speakers under an otherwise valid stat-
ute “would of course be unconstitutional”). The First Circuit
has considered a challenge to a Massachusetts statute, similar
to the Ordinance in many respects, that regulated speech in
the space outside of clinics in which escorts and anti-abortion
protestors were present. See McGuire I, 260 F.3d 36 (1st Cir.
2001) (reversing grant of preliminary injunction); McGuire II,
386 F.3d 45 (1st Cir. 2004) (affirming denial of permanent
injunction). The McGuire cases upheld the Massachusetts
statute as facially valid, McGuire I, 260 F.3d at 43-50;
McGuire II, 386 F.3d at 56-69, and also rejected a challenge
to the Commonwealth’s enforcement of the statute, McGuire
II, 386 F.3d at 59-65, classifying the selective enforcement
challenge as an “as-applied” attack. Although we ultimately
depart from its reasoning in some respects, we find the First
Circuit’s discussion of that “as-applied” challenge instructive.
The First Circuit explained that, in its view, “there are dif-
ferent types of as-applied attacks.” McGuire II, 386 F.3d at
61; see also Brown, 586 F.3d at 289 (also considering “two
types of as-applied challenges” to a bubble ordinance). While
the “paradigmatic” type of as-applied challenge is one that
HOYE v. CITY OF OAKLAND 9681
“tests” a statute’s “constitutionality in one particular fact situ-
ation while refusing to adjudicate the constitutionality of the
law in other fact situations,” the First Circuit concluded that
the sidewalk counselors must be making an as-applied chal-
lenge “of a different sort.” McGuire II, 386 F.3d at 61. It
explained that this second kind of as-applied challenge “must
be based on the idea that the law itself is neutral and constitu-
tional in all fact situations, but that it has been enforced selec-
tively in a viewpoint discriminatory way.” Id. at 62. “Such a
challenge,” it explained, “is dependent on the factual evidence
provided as to how the statutory scheme has in fact operated
vis-à-vis the plaintiffs.” Id. The First Circuit then concluded
that “some showing of intent on the part of government offi-
cials probably is necessary to make out” the second kind of
as-applied First Amendment claim, id. at 63, before ultimately
determining that there was no such evidence in the record. Id.
at 65.
Our Circuit has taken a slightly different path. The First
Circuit’s “second” kind of as-applied challenge is essentially
a selective enforcement claim that adopts the framework of
Yick Wo v. Hopkins, 118 U.S. 356 (1886), but substitutes
“speech content” for one of the more familiar protected
classes, such as “race” or “national origin.” We have made
clear that such a claim is available, but have usually not cate-
gorized it as an “as-applied” First Amendment challenge.
Instead, we have generally classified such challenges as selec-
tive enforcement equal protection claims. See Foti, 146 F.3d
at 635 (distinguishing between a selective enforcement claim
and an as-applied challenge and noting that the latter “does
not implicate the enforcement of the law against third par-
ties”; also observing that “[i]nadequate evidence of . . .
alleged discriminatory enforcement of the ordinance does not
defeat [an] as-applied challenge”); Vlasak v. Superior Court
ex rel. County of Los Angeles, 329 F.3d 683, 690 (9th Cir.
2003) (explaining that the petitioner’s “as-applied challenge
appears to conflate her argument that the ordinance is uncon-
stitutional as specifically applied to her and her claim of
9682 HOYE v. CITY OF OAKLAND
selective prosecution”); Rosenbaum v. City and Cnty. of San
Francisco, 484 F.3d 1142, 1152-57 (9th Cir. 2007) (consider-
ing a viewpoint discrimination claim as a selective enforce-
ment claim under the Equal Protection Clause); but cf.
Menotti, 409 F.3d at 1146-47 (referring to a selective enforce-
ment challenge as an “as-applied” challenge).
Any difference between these two approaches is, at least in
this case, semantic rather than substantive. Under both the
First Circuit’s “as-applied” approach and our standard “selec-
tive enforcement” approach, a plaintiff must show that a
municipality’s content-discriminatory enforcement of an ordi-
nance is the result of an intentional policy or practice. See
McGuire II, 386 F.3d at 63-64; Brown, 586 F.3d at 292;
Rosenbaum, 484 F.3d at 1155; Menotti, 409 F.3d at 1147.
Because both the First Circuit’s “as-applied” approach and
our Circuit’s selective-enforcement approach require that
some official policy have caused the content-discriminatory
enforcement, both approaches converge with a third analytical
framework: namely, a facial challenge to the city’s enforce-
ment policy (as distinct from a facial challenge to the legisla-
tive enactment as written). Under both the First Circuit
approach and the selective enforcement approach, plaintiffs
are generally required to show the existence of an unconstitu-
tional policy by extrapolating from a series of enforcement
actions. They must argue, in effect, that these actions demon-
strate that the municipality is enforcing against them a rule
that is distinct from the constitutionally valid enactment. In
other words, they “attack[ ] [an] unwritten policy as mani-
fested in the [municipality’s] application of its written [ordi-
nance].” Tipton v. Univ. of Hawaii, 15 F.3d 922, 927 (9th Cir.
1994). Logically speaking, “[s]uch an attack bears much in
common with a facial challenge on written policy.” Id. The
primary—indeed, perhaps only—difference is an evidentiary
one. Plaintiffs have no difficulty establishing what a policy is
when the policy is written. An unwritten policy, by contrast,
is usually harder to establish. Often, the only way to establish
HOYE v. CITY OF OAKLAND 9683
whether such a policy exists is to extrapolate from enforce-
ment data, in many cases a formidable task.
But that is not so in this case. Here, unlike in McGuire II
or any of the other cited authorities, the plaintiffs do not need
to extrapolate from concrete enforcement actions to determine
whether the government has a policy of enforcing the neutral
written rule in a content-discriminatory manner. Instead, the
City’s own pronouncements definitively articulate a content-
discriminatory enforcement policy. As a result, the three ana-
lytical approaches—the First Circuit’s “second kind” of as-
applied challenge, our Circuit’s “selective enforcement” chal-
lenge, and a facial attack on an unwritten rule—converge in
all respects. Oakland has acknowledged having a policy of
enforcing the Ordinance based on the content of speech. That
policy is unconstitutional, no matter the analytical approach
taken.15
D.
[7] Although the circumstances of this case do not require
us to choose the applicable doctrinal category, they do present
a remedial puzzle. Oakland insists that it has no enforcement
policy distinct from the Ordinance. Although we have no rea-
son to doubt that Oakland’s content-based interpretation of
the Ordinance is made in good-faith, we reject that interpreta-
tion as a plausible reading of the Ordinance; indeed, if we did
not, we would have to declare the Ordinance facially invalid
under Hill.16 In our view, Oakland is instead enforcing a dif-
15
As noted, Hoye has advanced state and federal equal protection chal-
lenges to the Ordinance and its enforcement, in addition to his First
Amendment claims.
16
The meaning of the Ordinance is ultimately a state-law question so it
would be “our duty, of course, to accept [an authoritative] state judicial
construction of the ordinance.” Shuttlesworth v. City of Birmingham, 382
U.S. 87, 91 (1965). There is no pertinent such construction, however. And
we very much doubt that the California courts would interpret the Ordi-
nance as containing an exception for speech that “facilitates access” to the
clinic, as no such exception is apparent in the Ordinance’s text, and the
addition of one would, far from preserving the Ordinance’s constitutional-
ity, foreclose it.
9684 HOYE v. CITY OF OAKLAND
ferent, unwritten, rule—one with an unmistakable resem-
blance to the old version of the Ordinance, the one that
restricted engaging in conversation “in an effort to harass,
intimidate, or persuade that individual not to access . . . repro-
ductive health services.” Because that rule—i.e., the Ordi-
nance as erroneously understood by Oakland—is
impermissibly content-discriminatory, we must craft a remedy
designed to foreclose its continued enforcement, while pre-
serving the facially valid Ordinance.
It would seem anomalous for a court to enjoin the enforce-
ment of a facially constitutional Ordinance. On the other
hand, it would be meaningless to enjoin Oakland’s erroneous
interpretation of the Ordinance: Oakland has insisted that
there is no distinction between the actual Ordinance and what
it enforces. In other words, there is no question that, under
Hill, the City can restrict the speech of anti-abortion prote-
stors like Hoye, but it is only constitutional for it to restrict
anti-abortion protestors’ speech under a rule that also restricts
pro-abortion speech. The Ordinance, as written, is such a
valid rule; the Ordinance as interpreted and enforced by Oak-
land is not. The question is how to ensure that the rule
enforced by Oakland is a content-neutral one, i.e. the rule that
we believe the Ordinance actually pronounces, and not a
content-discriminatory rule, i.e., the rule that Oakland errone-
ously enforces.
[8] The District Court, with its greater familiarity with the
facts and parties, is better positioned than we to address this
remedial question. On remand, the District Court should enter
declaratory judgment in favor of Hoye, declaring that (1)
Oakland’s policy of exempting speech “facilitating access” to
clinics from the coverage of the Ordinance violates the First
Amendment and that (2) the Ordinance, as written, does not
exempt such speech and so is facially constitutional. If the
District Court concludes that declaratory relief alone will be
inadequate to change the City’s enforcement policy (and that
Hoye satisfies the standard criteria for injunctive relief), it
HOYE v. CITY OF OAKLAND 9685
should then consider enjoining the City from continuing to
enforce the Ordinance.17
V.
[9] We have discussed what McGuire II called a “second
kind” of as-applied challenge, addressing it as identical to a
facial challenge to the City’s enforcement policy. Hoye also
brings a paradigmatic as-applied challenge, arguing that it is
unconstitutional to apply the Ordinance to him because, given
all the circumstances, his ability to communicate is unduly
constricted. The First Circuit considered such a challenge but
rejected it. McGuire II, 386 F.3d at 61. Again, we find the
First Circuit’s discussion helpful, but conclude in the end that
we cannot resolve this challenge given our other holdings.
As a general matter, a facial challenge is a challenge to an
entire legislative enactment or provision. See Foti, 146 F.3d
at 635 (explaining that a statute is facially unconstitutional if
“it is unconstitutional in every conceivable application, or it
seeks to prohibit such a broad range of protected conduct that
it is unconstitutionally overbroad”) (internal quotation marks
omitted). If it does not charge statutory overbreadth, “a facial
challenge must fail where the statute has a plainly legitimate
sweep.” Wash. State Grange v. Wash. State Republican Party,
552 U.S. 442, 449 (2008) (quotation omitted). A paradigmatic
as-applied attack, by contrast, challenges only one of the rules
in a statute, a subset of the statute’s applications, or the appli-
cation of the statute to a specific factual circumstance, under
the assumption that a court can “separate valid from invalid
subrules or applications.” Richard H. Fallon, Jr., As-Applied
17
Of course, even if the District Court enjoins Oakland’s enforcement
of the Ordinance altogether, the City could later apply for the injunction
to be lifted or modified if it made a sufficient showing that it had adopted
and would apply an evenhanded enforcement policy. See Dombrowksi v.
Pfister, 380 U.S. 479, 492 (1965); Younger v. Harris, 401 U.S. 37, 50-51
(1971).
9686 HOYE v. CITY OF OAKLAND
and Facial Challenges and Third-Party Standing, 113 Harv.
L. Rev. 1321, 1334 (2000); see Legal Aid Serv. v. Legal Aid
of Oregon, 608 F.3d 1084, 1096 (9th Cir. 2010) (“Facial and
as-applied challenges differ in the extent to which the invalid-
ity of a statute need be demonstrated.” (quotation omitted)
(emphasis in original)). Because the difference between an as-
applied and a facial challenge lies only in whether all or only
some of the statute’s subrules (or fact-specific applications)
are being challenged, the substantive legal tests used in the
two challenges are “invariant.” Id. (quotation omitted).
Applying these principles, the First Circuit in McGuire II
first observed that the “plaintiffs d[id] not and cannot argue
that they are different types of actors, or that they are involved
in a different type of fact situation, from the ones on the basis
of which the law was already upheld facially.” McGuire II,
386 F.3d at 61. It reasoned then that the as-applied challenge
brought by sidewalk counselors necessarily failed, because
“the fact situation that [they] are involved in here is the core
fact situation intended to be covered by this buffer zone stat-
ute, and it is the same type of fact situation that was envi-
sioned by this court when the facial challenge was denied.”
Id. While we agree with the First Circuit’s analytical frame-
work, Hoye here argues that he is “involved in a different type
of fact situation[ ] from the one[ ] on the basis of which the
law was . . . upheld facially.” Id.Our facial analysis of the statute was controlled by Hill, a
case in which there was no suggestion that the anti-abortion
activists’ ability to communicate in accord with the chal-
lenged statute was being impeded by the efforts of opposing
speakers. In concluding that the Colorado statute, as a facial
matter, was narrowly tailored and left open ample alternative
channels of communication, the Supreme Court reasoned, for
example, that “[s]igns, pictures, and voice itself can cross an
8-foot gap with ease.” Hill, 530 U.S. at 729. That observation
led the Supreme Court to the conclusion that the Colorado
HOYE v. CITY OF OAKLAND 9687
statute would “not have any adverse impact on the readers’
ability to read signs displayed by demonstrators.” Id. at 726.
As noted at the outset, a valid time-place-and-manner regu-
lation must “leave open ample alternative channels for com-
munication.” Ward, 491 U.S. at 791 (quotation omitted).
“[A]n alternative is not ample if the speaker is not permitted
to reach the intended audience.” Berger, 569 F.3d at 1049(quotation omitted). In the factual circumstances assumed in
Hill and controlling our analysis as to the facial challenge, the
Ordinance does leave “ample alternative channels for commu-
nication.”
Hoye contends, however, that escorts regularly inhibit his
speech by covering up his sign and drowning out his spoken
words. The escorts have, of course, their own constitutionally
protected free-speech interests at stake, including one in
expressing their own firm conviction that the emotional well-
being of women requires insulating them from those seeking
to challenge, sometimes starkly and unpleasantly, their deci-
sion to consider an abortion procedure. Still, the escorts’ free-
speech interests do not diminish their on-the-ground impact
on Hoye’s prospects for communicating his message.
The First Circuit, and the District Court here, dismissed
concerns about the impact of escorts’ activities on antiabor-
tion protestors’ ability to communicate their messages on the
basis that the escorts’ interactions with sidewalk counselors
were mere “private jousting in the speech marketplace,”
McGuire II, 386 F.3d at 60, involving no state action. That
characterization is accurate to the degree the escorts are com-
municating opposing messages, as the First Amendment
offers no protection against countervailing speech. See Buck-
ley v. Valeo, 424 U.S. 1, 48-49 (1976).
As to the relevance of efforts by the escorts to prevent
Hoye’s message from being communicated, the factual predi-
cate of an as-applied challenge does not need to be created by
9688 HOYE v. CITY OF OAKLAND
the State. In Hill, for instance, the Supreme Court expressly
invited as-applied challenges where “[s]pecial problems arise
[because] clinics have particularly wide entrances or are situ-
ated within multipurpose office buildings.” 530 U.S. at 730.
The State does not design clinics with wide entrances or place
them in multipurpose office buildings; instead, the only rele-
vant state action would be the application of the statute to
such factual settings. Cf. Galvin v. Hay, 374 F.3d 739, 754-55
(9th Cir. 2004) (sustaining an as-applied challenge in light of
a “sight line partially obstructed by trees” relevant at the
narrow-tailoring stage).
So whether the Ordinance is unconstitutionally restricting
Hoye’s speech is ultimately a causation question based on the
particular facts: Does the Ordinance as applied to the actual
circumstances—including the attempts by others to stifle
Hoye’s speech, as opposed to simply countering it with
opposing messages—foreclose ample alternative channels of
communication? In other words, Hoye will bear the burden of
showing that it is the Ordinance’s requirement that he obtain
consent to approach, not the activities of escorts alone, that
deprives him of ample alternative means of communication.
[10] In the end, we cannot determine on the present record
whether Hoye can meet that burden. Any resolution of Hoye’s
paradigmatic as-applied challenge could only be relevant to
future applications of the Ordinance. We have previously
declined to entertain as-applied challenges that would require
us to speculate as to prospective facts. See, e.g., Hotel Emp.
& Rest. Emp. Int’l Union v. Nev. Gaming Comm’n, 984 F.2d
1507, 1517 (9th Cir. 1993); Polykoff v. Collins, 816 F.2d
1326, 1338 (9th Cir. 1987); cf. Wolfson v. Brammer, 616 F.3d
1045, 1060 (9th Cir. 2010) (explaining that ripeness doctrine
includes a “prudential component” that requires evaluation of
“the fitness of the issues for judicial decision”). We have
already held Oakland’s application of the Ordinance to Hoye,
under its current enforcement policy, unconstitutional because
tainted by the content-discriminatory policy. Even if the
HOYE v. CITY OF OAKLAND 9689
application of the Ordinance has in the past deprived Hoye of
ample channels of communication, that defect may be cured
if Oakland begins to enforce the Ordinance in an evenhanded
manner. Consequently, Hoye’s second kind of as-applied
challenge is dependent on fluid and future facts.
VI.
To recapitulate, we reach three separate conclusions.
First, the Ordinance is facially constitutional. That is to say,
we do not find any relevant differences between the Ordi-
nance’s purpose and text and those of the Colorado statute
that the Supreme Court held to be constitutional in Hill.
Second, as to Hoye’s challenge to the enforcement of the
Ordinance, we hold that Oakland’s enforcement policy is a
constitutionally invalid, content-based regulation of speech.
By adopting that policy, Oakland has taken sides in a public
debate in a manner that, as Hill itself explained, the Constitu-
tion does not permit. But because this problem is not a prob-
lem with the Ordinance itself, we remand this case to the
District Court to craft a remedy that ensures that Oakland will
adopt and henceforth apply a policy that enforces the Ordi-
nance as written, that is, in an evenhanded, constitutional
manner.
Third, as to Hoye’s challenge to whether Oakland may
apply the Ordinance to situations in which doing so would
prevent him from communicating his message, we conclude
that the success of the challenge depends on Oakland’s future
enforcement policy and the particular circumstances in which
that policy may be applied. We therefore do not reach that
challenge but also do not preclude Hoye from bringing such
a challenge in the future.
For the foregoing reasons, we AFFIRM in part and
REVERSE in part the ruling of the District Court. We
9690 HOYE v. CITY OF OAKLAND
REMAND the case to the District Court with instructions to
grant Hoye’s motion for summary judgment in part and to
grant him relief consistent with this opinion.
HOYE v. CITY OF OAKLAND 9691
APPENDIX
mended Oakland City Council Ordinance No. 1286018
WHEREAS, safe and unimpeded access to reproductive
health care services is critically and uniquely important to the
public health, safety, and welfare so that persons desiring or
needing access to such services should not be intimidated,
hampered, impeded, harassed, or restrained from obtaining
those services; and
WHEREAS, persons attempting to access reproductive
health care facilities to obtain reproductive health care ser-
vices have been subject to harassing or intimidating activity
from extremely close proximity, tending to hamper or impede
their access to those facilities and services; and
WHEREAS such activity in close proximity subverts the
right to privacy of those reproductive health care services, a
right that is protected by the United States Constitution and
the Freedom of Access to Clinic Entrances Act, U.S.C.S. Sec-
tion 248, and is explicitly guaranteed in California’s Constitu-
tion, Article I, Section 1, including the right to seek and
obtain all health care services permitted under the laws of this
States; and
WHEREAS, such activity interferes with a person’s right to
seek reproductive health care services and counseling which
such persons are entitled to seek and obtain; and
WHEREAS, offices and facilities that have patient stays of
shorter duration may be more vulnerable to such subversion
of rights on account of the layout and design of their facilities
and parking areas as well as their staff deployment; and
18
Strikeout text shows amendments from originally enacted version.
9692 HOYE v. CITY OF OAKLAND
WHEREAS, the facilities with the fewest resources for pro-
viding adequate security and safety to individuals seeking
access to reproductive health services are those not affiliated
with hospitals; and
WHEREAS, the adverse physiological and emotional
effects created by such harassing or intimidating activities
may pose health risks, interfere with medical treatment, diag-
nosis or recovery, or cause persons to delay or forego medical
treatment; and
WHEREAS, this Ordinance does not preclude all protest-
ing, picketing, demonstrating, leafleting, or educational activi-
ties near a facility providing reproductive health care services,
and in particular, is not intended to preclude any lawful pick-
eting, leafleting, and/or free speech, but is a necessary
content-neutral time, place, and manner restriction intended to
reconcile and protect the rights of persons rendering or seek-
ing reproductive health care with the First Amendment rights
of demonstrators; and
WHEREAS, existing federal and state laws do not ade-
quately protect the rights of those seeking or providing health
care services, now, therefore
THE COUNCIL OF THE CITY OF OAKLAND DOES
ORDAIN AS FOLLOWS:
Chapter 8.50 is added to the Oakland Municipal Code to read
as follows:
Section 1. Title and purpose.
This chapter shall be known as the “access to reproductive
health care facilities ordinance.” The City Council finds that
every person in the City of Oakland has a basic and funda-
mental right to privacy protected by the United States Consti-
tution and explicitly guaranteed in California’s Constitution,
HOYE v. CITY OF OAKLAND 9693
Article 1, Section 1, including the right to seek and obtain all
health care services, permitted under the laws of this State.
Central to this right is the need to secure access to all repro-
ductive health care services. Access to these services is a mat-
ter of critical importance not only to the individual, but also
to the health and welfare of all residents of the City of Oak-
land and the region. Intentional efforts to harass an individual
or prevent that individual from exercising his or her right to
seek and obtain reproductive health care services are therefore
contrary to the interests of the people of Oakland.
This Ordinance is not intended to create any limited, desig-
nated, or general public fora. Rather it is intended to protect
those who seek access to constitutionally protected reproduc-
tive health services from conduct which violates their rights.
Section 2. Definitions.
a. “Reproductive health services” refers to all medical, sur-
gical, counseling, referral, and informational services related
to the human reproductive system, including services during
pregnancy or the termination of a pregnancy, whether such
services are provided in a clinic, physician’s office, or other
facility other than a licensed hospital, but not if provided at
a clinic or other facility owned and/or operated by a licensed
hospital.
b. “Reproductive health care facility” refers to a facility
licensed pursuant to Chapter 1 (commencing with Section
1200) of Division 2 of the Health and Safety code or any
other facility that primarily provides reproductive health ser-
vices that is not licensed as a hospital, and is not owned, and/
or operated by a licensed hospital.
c.“Primarily” means 51% of more of the services provided.
d. c. “Harassing” means the non-consensual and knowing
approach within eight feet of another person or occupied
9694 HOYE v. CITY OF OAKLAND
motor vehicle for the purpose of passing a leaflet or handbill,
to display a sign to, or engage in oral protest, education, or
counseling with such other person in a public way or on a
sidewalk area within one hundred (100) feet of the entrance
of a reproductive health care facility.
e. d.“Interfering” means to restrict a person’s freedom of
movement or access to or egress from a reproductive heath
care facility providing reproductive health services.
f. e. “Counseling” means engaging in conversation with, dis-
playing signs to, and/or distributing literature to individuals
seeking access to, passage from, or services within the repro-
ductive health care facility, in an effort to harass, intimidate,
or persuade that individual not to access such reproductive
health services.
g. f. “Eight feet” shall be measured from any extension of the
body of the individual seeking access to, passage from, or ser-
vices within the reproductive health care facility, and/or the
exterior of any occupied motor vehicle, to any extension of
the body of, or any sign or object held by another person.
h. g. “Providing reproductive health services” shall include
doctors, nurses, any employee of a reproductive health care
facility and volunteers who, with the consent of the reproduc-
tive health care facility, assist in conducting patients of such
facility safely into the facility.
Section 3. Prohibited harassment of individuals seeking
access to health care facilities.
a. It shall be unlawful to use force, threat of force, or physi-
cal obstruction to intentionally injure, harass, intimidate, or
interfere with or attempt to injure, harass, intimidate, or inter-
fere with any person because that person will be, is, or has
been, providing or obtaining reproductive health services.
HOYE v. CITY OF OAKLAND 9695
b. Within 100 feet of the entrance of a reproductive health
care facility, it shall be unlawful to willfully and knowingly
approach within eight feet of any person seeking to enter such
a facility, or any occupied motor vehicle seeking entry, with-
out the consent of such person or vehicle occupant, for the
purpose of counseling, harassing, or interfering with such per-
son or vehicle occupant in connection with seeking reproduc-
tive health services, or for the purpose of interfering with that
person’s or vehicle occupant’s obtaining or providing repro-
ductive health services.
c. Within 100 feet of the entrance of a reproductive health
care facility, it shall be unlawful to willfully and knowingly
approach within eight feet of any person seeking to enter such
a facility, or any occupied motor vehicle seeking entry, for the
purpose of injuring or intimidating such person or vehicle
occupant in connection with seeking reproductive health ser-
vices.
Section 4. Enforcement.
a. Any person who shall be convicted of a violation of sub-
section 3 above shall be deemed guilty of a misdemeanor and
shall be punishable by imprisonment in the County jail for not
more than one year, or by a fine not to exceed two thousand
dollars ($2,000), or by both such fine and imprisonment.
b. Civil Remedies
i. Any person providing, seeking to provide, or
seeking reproductive health services who is
aggrieved by conduct prohibited by this chapter may
commence a civil action in the Courts of the State of
California.
ii. In any action commenced under subparagraph a.
of this section, the court may award appropriate
relief, including temporary, preliminary, or perma-
9696 HOYE v. CITY OF OAKLAND
nent injunctive relief and compensatory and exem-
plary damages and reasonable fees for attorneys and
expert witnesses. With respect to damages, at any
time before final judgment, plaintiff may elect to
recover, in lieu of compensatory damages, an award
of statutory damages in the amount of $5,000.00 per
violation.
Section 5. Accomodation of Competing Rights.
In adopting this legislation, the Oakland City Council rec-
ognizes both the fundamental constitutional right to assemble
peacefully and to demonstrate on matters of public concern,
as well as the right to seek and obtain health care. This legis-
lation promotes the full exercise of these rights and strikes an
appropriate accommodation between them.
Nothing in this Ordinance shall be construed to prohibit
any expressive conduct (including peaceful picketing or other
peaceful demonstration) protected from legal prohibition by
the First Amendment to the United States Constitution, the
California Constitution or any federal or California statute.
Section 6. Severability.
If any part, provision, or clause of this Ordinance or the
application thereof to any person or circumstance is held to be
invalid by a court of competent jurisdiction, all other provi-
sions and clauses hereof, including the application of such
provisions and clauses to other persons or circumstances,
shall not be affected thereby and shall continue in full force
and effect. To this end, the provisions of this chapter are sev-
erable.
Colorado Revised Statutes § 18-9-22
(1) The general assembly recognizes that access to health care
facilities for the purpose of obtaining medical counseling and
HOYE v. CITY OF OAKLAND 9697
treatment is imperative for the citizens of this state; that the
exercise of a person’s right to protest or counsel against cer-
tain medical procedures must be balanced against another per-
son’s right to obtain medical counseling and treatment in an
unobstructed manner; and that preventing the willful obstruc-
tion of a person’s access to medical counseling and treatment
at a health care facility is a matter of statewide concern. The
general assembly therefore declares that it is appropriate to
enact legislation that prohibits a person from knowingly
obstructing another person’s entry to or exit from a health
care facility.
(2) A person commits a class 3 misdemeanor if such person
knowingly obstructs, detains, hinders, impedes, or blocks
another person’s entry to or exit from a health care facility.
(3) No person shall knowingly approach another person
within eight feet of such person, unless such other person con-
sents, for the purpose of passing a leaflet or handbill to, dis-
playing a sign to, or engaging in oral protest, education, or
counseling with such other person in the public way or side-
walk area within a radius of one hundred feet from any
entrance door to a health care facility. Any person who vio-
lates this subsection (3) commits a class 3 misdemeanor.
(4) For the purposes of this section, ‘health care facility’
means any entity that is licensed, certified, or otherwise
authorized or permitted by law to administer medical treat-
ment in this state.
(5) Nothing in this section shall be construed to prohibit a
statutory or home rule city or county or city and county from
adopting a law for the control of access to health care facili-
ties that is no less restrictive than the provisions of this sec-
tion.
(6) In addition to, and not in lieu of, the penalties set forth in
this section, a person who violates the provisions of this sec-
9698 HOYE v. CITY OF OAKLAND
tion shall be subject to civil liability, as provided in section
13-21-106.7, C.R.S.