Hoye, II v. City Of Oakland, No. 09-16753 (9th Cir. 2011)
Annotate this CaseThis case stemmed from a so-called bubble ordinance enacted by the Oakland City Council, which made it an offense to knowingly and willfully approach within eight feet of an individual seeking entry to a reproductive health clinic if one's purpose in approaching that person was to engage in conversation, protest, counseling, or various other forms of speech. Plaintiff, a minister who regularly stood outside clinics seeking to engage women in what he called a "friendly conversation" to dissuade them from having an abortion, was convicted on two separate violations of the ordinance and subsequently challenged the ordinance in a 42 U.S.C. 1983 action, contending that the ordinance infringed upon the freedom of speech and violated the federal constitution's Due Process Clause, as well as state and federal guarantees of equal protection of the laws. The court held that the ordinance was facially constitutional. The court also held that Oakland's enforcement policy was a constitutionally invalid, content-based regulation of speech and remanded to the district court in order for that court to craft a remedy that ensured that Oakland would adopt and henceforth apply a policy that enforced the ordinance as written, in an evenhanded, constitutional manner. The court further held that the success of plaintiff's challenge to whether Oakland could apply the ordinance to situations in which doing so would prevent plaintiff from communicating his message depended on Oakland's future enforcement policy and the particular circumstances in which that policy could be applied. Therefore, the court did not reach that challenge but also did not preclude plaintiff from bringing such a challenge in the future. Accordingly, the court affirmed in part and reversed in part, remanding with instructions to grant plaintiff's motion for summary judgment in part and to grant him relief consistent with the opinion.
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