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Court: Order stifled speech
Supreme Court strikes down ruling prohibiting Elkfest abortion protests in 3-2 vote.
By Emma Breysse, Jackson Hole, Wyo.
Date: April 11, 2012
A town-backed temporary restraining order prohibiting abortion protests during Elkfest last year violated a religious group’s First Amendment rights, the Wyoming Supreme Court ruled Tuesday.
The 3-2 decision reversed 9th District Judge Timothy Day’s May 2011 ruling granting the order, which Jackson town officials sought to keep Boy Scouts attending the annual antler auction from seeing graphic photos of aborted fetuses and to protect against violent reactions to the protests.
The ruling comes a month before the group plans to return to Jackson during Elkfest.
“The district court issued a [temporary restraining order] that, however well-intentioned, violated the strict protections of the First Amendment and the requirements of Rule 65 of the Wyoming Rules of Civil Procedure,” Justice Michael Golden wrote in the majority decision. “We therefore must reverse the decision issuing the [temporary restraining order].”
Texas-based anti-abortion group Operation Save America appealed the order last year after group members spent a week in Jackson protesting with large signs depicting aborted fetuses. The group intended to protest at the Boy Scout Antler Auction at Elkfest on Town Square, which town officials attempted to prevent with a temporary restraining order limiting protests to areas at least two blocks away from the Town Square.
The protests led to the arrest of a prominent Jackson figure who ran into a sign with his car, among the more visible examples of growing hostility between Operation Save America and counter-protestors from the area.
Operation Save America’s stated goal is to make Wyoming the first abortion-free state by targeting Dr. Brent Blue, who the group says is the state’s only abortion provider.
Concerns about potential breach of peace and harm to children swayed Day, who granted the order the evening before the auction.
Operation Save America members weren’t notified of the hearing and so were not able to speak on their own behalf.
Golden, along with Justices Barton Voight and James Burke, ruled that while the town’s concerns were “legitimate,” narrow and specific requirements must be met before an agency can take action to prevent speech, and town officials did not meet them.
“The town is obviously disappointed with the Wyoming Supreme Court’s ruling as a whole and believed it did the right thing under law, the circumstances and time frame involved in order to protect the children of the town of Jackson,” Town Attorney Audrey Cohen-Davis said in a statement issued Tuesday afternoon. “While the town is still digesting the opinion, the opinion is helpful as a matter of law and for future guidance and application.”
Cohen-Davis’ statement also pointed out that the ruling will help guide officials in the future.
Cohen-Davis represented the town of Jackson in the case. She argued before the Supreme Court that the case was moot because the restraining order expired long before Operation Save America filed suit.
Chief Justice Marilyn Kite, of Jackson, and Justice William Hill agreed with Cohen-Davis’ argument in a dissenting opinion released along with Golden’s ruling.
Pastor Mark Holick of Spirit One Ministries, who was arrested last year for allegedly violating the temporary restraining order, said the ruling was a “refreshing piece of good news.”
“We are grateful to the Lord and the Supreme Court for enforcing our First Amendment rights,” Holick said Tuesday.
The ruling doesn’t change plans for the upcoming protests in Jackson but, rather, provides “a little more breathing room” for Operation Save America’s plans, Holick said.
Justice Golden took issue with a few key portions of the process Jackson officials went through in seeking the order and the order itself, though he more than once expressed sympathy with the impetus for seeking it and denied Operation Save America’s request to have a district court rule on monetary damages.
Specifically, Golden wrote that the town and Day violated the First Amendment by trying to prevent unwanted speech, barring protestors from public areas that are traditional safe places to protest and basing their objections on what the protestors wanted to say.
“Any such restriction is presumptively invalid and faces the most demanding level of First Amendment scrutiny,” he wrote. “We find the town did not meet its burden under the First Amendment’s rigorous constitutional standards.”
Additionally, Golden’s opinion said the town didn’t provide enough evidence that the situation made a restraining order appropriate and didn’t provide adequate reasons to excuse town officials from trying to notify Operation Save America that it was seeking a restraining order.
Because of that, the District Court “abused its discretion” in granting the order without allowing the group a chance to be heard.
Town and law enforcement officials have yet to determine a strategy for managing potential public safety concerns arising from the group’s return to Jackson, Sgt. Cole Nethercott, of the Jackson Police Department, said last week. Those decisions will be made in the coming weeks, he said.
Operation Save America applied for a special event permit to protest on Town Square from May 16 through May 20, Town Clerk Olivia Goodale said. The antler auction is scheduled for May 19 on the square.
The Jackson Town Council is scheduled to vote on permits for both events April 16.