From Detroit to Times Square, politicians seek to censor the wrong speech in the wrong place

First Amendment rights do not apply in Detroit if the speaker comes within several feet of an abortion clinic or a person headed toward one, under a criminal ordinance.

Those rights also would not apply near some of the most famous landmarks in New York City due to proximity to abortion clinics and houses of worship, an amped-up New York version of the polarizing federal Freedom of Access to Clinic Entrances Act, under sweeping criminal legislation championed by Gov. Kathy Hochul and fellow Democratic lawmakers.

So-called sidewalk counselors are challenging the Motor City's 2024 ordinance in a federal court that answers to an appellate jurisdiction known for its strong First Amendment precedents, while a civil liberties group is agitating against Empire State legislation it describes as flatly prohibited by a 2014 Supreme Court precedent against abortion clinic "buffer zones."

The McCullen precedent against Massachusetts has not been used by the justices, yet, to vacate the high court's 2000 "zombie precedent" Hill, which upheld Colorado's buffer zone as a constitutionally permissible time, place and manner restriction and has been widely invoked by lower courts to uphold similar buffer zones.

The 11th U.S. Circuit Court of Appeals went in the opposite direction last year, citing McCullen to block Clearwater, Fla.'s buffer zone, prompting the Gulf Coast city to permanently suspend its law this month.

The public interest law firm behind the Clearwater challenge and an earlier successful Minneapolis challenge, the Thomas More Society, is also representing Sidewalk Advocates for Life, which says its work has prompted more than 25,000 women to choose "life-affirming alternatives," and its "certified" advocate Kevin Hammer against Detroit.

"The government cannot wall off the public square so that women never hear they have alternatives to abortion," Vice President Peter Breen said.

Retired attorney Hammer's only crime is offering "real support" to women heading into Scotsdale Women’s Center, Breen said, yet the abortion clinic has "repeatedly called police to the scene," with five cars showing up on one call.

If enacted, the New York legislation would make the state comparable to the U.K., where silent prayer near abortion clinics has gotten March for Life U.K. Director Isabel Vaughan-Spruce repeatedly investigated by police even after a court exoneration and a police settlement. 

She pleaded not guilty in January to the latest charges, arguing a local buffer zone law does not prohibit "mere presence," and faces trial this fall. The BBC recently featured Vaughan-Spruce in a profile of young U.K. pro-life activists taking inspiration from American counterparts including the late Charlie Kirk.

The Foundation for Individual Rights and Expression, already feuding with "memelord" Hochul over her self-exempting crackdown on AI-generated political speech, portrayed the New York legislation as uniquely sweeping at least in this legislative season.

"None of the other state bills I've come across this year that propose restrictions on protests or interference with houses of worship are anywhere near as broad as these, perhaps because the Supreme Court has already struck down more limited buffer zones around abortion clinics," Carolyn Iodice, the group's legislative and policy director, told Just the News.

FIRE staff walked around New York City documenting areas they say would be off-limits for protest regardless of viewpoint: Times Square, Broadway, Washington Square Park in the center of New York University, Wall Street and Zucotti Park of #OccupyWallStreet fame.

Iodice said it's "frankly pretty shocking to look at the actual effect of the bills."

Detroit city lawyer allegedly misled council on SCOTUS precedent

The sidewalk counselors' suit says the Detroit City Council imposed the buffer zone, which explicitly prohibits "protest, education or counseling," despite the fact that the 3rd Circuit struck down Pittsburgh's buffer with the same dimensions 15 years earlier, calling its overlapping no-go zones "unprecedented among regulatory schemes upheld by courts." 

Both impose a 15-foot buffer from every clinic entrance and an eight-foot "floating bubble" around every patient and companion within a 100-foot radius of an entrance.

While the ordinance is facially applicable to all "health care facilities," Bridge Detroit reported sponsoring Councilmember Gabriela Santiago-Romero and supporters said it was needed to protect abortion clinics from religious people coming from out of state. (One former sidewalk counselor who testified said she's a Detroit resident.)

Bridge Detroit said the Scotsdale clinic gave the council a "thick red binder tracking abusive protesters," and supporters testified of encounters with protesters who scream and harass, but the suit says the legislative record shows no evidence the city used existing laws to protect clinics before "outlawing an entire category of expressive activity."

Detroit City Attorney Adam Saxby didn't suggest "less restrictive alternatives" and falsely told the council the ordinance was "identical" to that upheld in the zombie-precedent Hill, which was actually a "standalone bubble zone," the suit says.

The city was in fact considering "a combined buffer-plus-bubble scheme" like Pittsburgh's invalidated statute, which Saxby didn't mention. He also left out the McCullen precedent that tacitly negated Hill or 2015's Reed, which says "a law that defines regulated speech by its function or purpose" is "presumptively unconstitutional," the suit says.

Individual plaintiff Hammer, a Michigan resident, "does not follow, chase, block, or yell at anyone" but simply holds a two-by-four-foot sign offering "Free Ultrasounds and Pregnancy Tests," and he has "never been cited, formally warned, or arrested" in six months of sidewalk counseling, the suit also says.

The clinic seemed to be tracking Hammer's visits and proactively warning patients to avoid him, as in his first month of September "nearly every woman who entered" looked at him and "many approached voluntarily" but started to avoid him after that, according to the suit. 

When he showed up on a Tuesday rather than his usual Friday, "nearly every woman stopped and engaged."

On the same day in October, the clinic called the police twice on Hammer, the suit says. The first time, officers from a lone patrol car told a clinic employee Hammer was following the law. But "five patrol cars arrived with supervisory officers" later in the day to confirm Hammer knew the law's particulars, again telling the clinic employee Hammer was compliant.

Detroit's Law Department didn't answer a request to respond to the suit, particularly Saxby's allegedly false and misleading claims about the proposal's content relative to other buffer zones and case law.

Demonstrations that 'alarm and annoy' prohibited

New York state Sen. Sam Sutton's SB 8599 and state Rep. Micah Lasher's AB 9335 –  filed in response to an anti-Israel protest outside a synagogue – prohibit demonstrations of two or more people at "thousands of locations across" the state, often close together or overlapping, regardless of hours, content, true threats or even relevance, FIRE said in a lengthy analysis. 

They create "a series of First Amendment dead zones in which police can throw protesters in jail merely for shouting a slogan, holding a sign, or marching down the street," ensnaring LGBTQ and "No Kings" marches, rallies by unionized nurses and protests outside Hochul's Manhattan office as well as "monthly pro-life processions" from a church to an abortion clinic.

Hochul's proposal in her fiscal 2027 budget is slightly different by clearly covering religious schools but not buildings that don't look like religious sites or non-structural "spaces," and by criminalizing demonstrations intended to "alarm and annoy" anyone entering a building that includes an abortion clinic, not just the clinic.

It carries the same penalties, up to 364 days' imprisonment for the first offense, a class A misdemeanor, and up to four years for the second and subsequent offenses, a class E felony. Both have the same buffer zone, 25 feet "from the streets and sidewalks touching the covered site," comparable to Massachusetts' invalidated 35-foot buffer from an entrance.

"In many places, that will put [demonstrators] so far away from the people they’re trying to reach that they’ll be unable to get their message across to them," FIRE said. "That alone could prove fatal in court."

The "alarm or annoy" standard is so vague it "could arguably apply to any protest whose aim is to get a message to the people at the protest location," FIRE said. "The point of protesting someone’s actions is not to comfort or console them."

The anti-Israel protest that sparked the lawmakers' bills was met by "pro-Israel counterprotestors," meaning that if the legislation had been law, police would have to decide "which protesters might intend to 'alarm and annoy' people entering the synagogue," an unconstitutional content-based regulation, FIRE said.