Freedom of Speech, Religion Clash

Freedom of speech, religion clash in Lincoln

By ALAN PETERSON
Attorney
Cline Williams Wright Johnson and
Oldfather, Lincoln

A Lincoln church’s premises, the Lincoln City Council hearing room and a federal courtroom were the sites of a heated and barely nonviolent collision of constitutional rights during 1998. The venue of this firefight has now moved to the courts — first to the United States Court of Appeals and, conceivably, later to the nation’s highest court.

But the embers smolder still back at Westminster Presbyterian Church’s grounds and in the City Hall.

We have yet to discover any accommodation that can resolve the clashing rights of individuals to express their hatred of abortion on one side and of individuals to worship in peace with their families at the religious place of their choice on the other side. Must one group’s rights be trumped out of existence by the other’s?

I have been involved as attorney for the Westminster congregation in the drafting and passing of an ordinance that attempts to address the problem. However, because the City of Lincoln, defendant in the federal litigation over the ordinance, is separately represented by another Lincoln firm and by volunteer pro bono counsel from Washington, D.C., it is possible for me ethically to comment as an observer about the status of the case and some of its far-reaching implications.

What follows is an attempt to summarize the combatants and the combat.

The first and fundamental question has always been whether the powerful constitutional and human right of free expression is so absolute as to eclipse two other treasured human rights: the fundamental safety of children from harm by assaultive communications and the inherent, pre-constitutional — as well as constitutional — right freely to choose and exercise religious beliefs. Secondly, if an accommodation of all those rights is possible, how can it be accomplished?

Lincoln doctor Winston Crabb has, for many years, performed abortion services as part of his practice and has been the principal Lincoln target of abortion opponents of every stripe. He serves as an elder at Westminster Presbyterian Church, South Street and Sheridan Boulevard.

The most aggressive anti-abortion adversary to object to Dr. Crabb’s controversial but legal practice is Rescue the Heartland. This Omaha-based organization may or may not be affiliated with national “Operation Rescue” groups. Its self-styled, Bible-quoting leader, Larry Donlan, expresses great admiration for Operation Rescue and, presumably, some of its extreme tactics.

Donlan’s organization has chosen to pursue Dr. Crabb at his home, his office and at his church. Approximately every other Sunday, and on other occasions, pickets surround the entrances to the church with huge photographs showing severed fetal heads or other dismembered, blood-covered body parts.

The signs have been thrust in the faces of children as young as infants when those children arrive in cars, walk to the church or are carried in parents’ arms to services, Sunday school classes and the like.

Some of these incidents have included shouts to the children to the effect that murderers await them inside the church, that they would look like the photographed fetuses if Dr. Crabb had doctored their mothers and similar pleasantries. Children have been literally terrified. They have screamed, cried and become deeply disturbed by the picketers. Donlan’s side denies the incidents were this bad but also claims disturbance is a legitimate price for freedom of speech.

The picketing has been going on for close to two years now. Some families have left the church rather than subject their children to the situation.

The congregation has asked the Lincoln Police and city attorney for help so that members may attend church in peace with their families. The Lincoln City Attorney gave an opinion in 1997 that the city could do nothing legally. The Lincoln Police, when they showed up at the church, said they saw no specific targeting of little children. (Of course, such targeting naturally diminishes when police are present.)

After more than a year of frustration and faced with a shrinking membership and substantial emotional injury to a number of the children — some of whom have obtained professional counseling — the congregation sought help from the Lincoln City Council and city attorney to draft a more specific ordinance regarding picketing at religious premises. When the city attorney would not work on the ordinance, I offered to try to help. I am not affiliated with the church except through friends, but I have a deep belief in every person’s right to worship in peace at the church of his or her choice.

With considerable courage, four members of the City Council ultimately supported an ordinance, despite promises of veto from the mayor, now Governor-elect, Mike Johanns, and despite continued advice from the city attorney that he would neither approve nor support the ordinance.

The ordinance as finally drafted and passed requires picketers at religious premises to simply move across the street or stay 50 feet away from the property from a half-hour before to a half-hour after religious services or events.

The intent language tries to make it clear that the ordinance seeks only an accommodation, not a ban on free speech, and that it leaves open plenty of alternative means and space for all the rights involved. Some of the language is as follows:

“The city finds that the practice of picketing in such a time, place and manner as to disrupt religious activities or to hinder reasonable access to them by families with young children disturbs the peace essential to individuals who wish to participate in such activities and also interferes with the free use and safety of the public sidewalks and streets providing access to religious premises.

“Nothing in this ordinance is intended nor shall be construed to favor or disfavor any particular speech or idea, nor any particular religion or belief nor even religion in general. This ordinance is intended only to prohibit a certain specified form of disturbance of the peace which arises when one form of expressive conduct, focused picketing, tends to override another form of expressive conduct, namely free exercise of religion. …

“The mechanism of such injury to individual freedom of religion operates as follows: Infants and young children are emotionally vulnerable to focused picketing in close proximity to them … and many of these children tend to react with fear, unhappiness, anxiety and other emotional disturbance when such activity is imposed on them. ... The technique of using focused picketing to disturb the very young so their families will feel coercion either to comply with pickets’ wishes or forego their chosen religious activity entirely is a pernicious and contemptible form of harassment. …”

So, after many proposed drafts and hot debates, months of informal and formal hearings and intensive lobbying by both sides, the Lincoln City Council passed the ordinance on Sept. 14, 1998. Mayor Johanns vetoed it within a few days. But the Council, with another show of compassion and courage — including a remarkably eloquent change of vote by member Cindy Johnson — overrode the veto. The ordinance became effective on Sept. 21, 1998.

Within days, Donlan’s allies and their very capable Lincoln lawyers filed a federal lawsuit captioned Olmer v. City of Lincoln et al. After two hearings, United States District Court Judge Richard Kopf decided to enter a preliminary injunction against enforcement of the ordinance.

Judge Kopf found that, while the ordinance sought to cure a genuine, provable, significant and even compelling problem — namely the protection of young children from abusive picketing — nevertheless, he could not sustain the ordinance because it still was not sufficiently “narrowly tailored to serve the government interest that prompted the ordinance [and therefore is] in violation of the Free Speech Clause of the First Amendment.”

Little precedent exists in cases such as these. Judge Kopf found he could not, sitting only as a district judge, make the leap from similar “buffer zone” ordinances that protect residential privacy to allowing buffer zones for the protection of privacy at religious premises. He said if such an extension of buffer zone protections were to take place, it would have to be done by a higher court.

An important strategic decision had been made by the proponents of the ordinance and, therefore, by the City of Lincoln in passing the ordinance: The ordinance would limit the use of picketing signs no matter what their content rather than trying to specify that only those that actually terrify children by their explicit and gruesome nature would be restricted.

The reason for that decision was to avoid the claim of “pure censorship” to the effect that the government would be picking what subjects and what speech and what viewpoints were acceptable and which were not. Such “content-sensitive” ordinances, of course, are seldom sustained under First Amendment challenge. However, if the prohibition were “content-neutral,” the test or constitutionality under the First Amendment is not quite as strict. Some of Judge Kopf’s oral remarks at the hearing implied he might have preferred the first approach, despite the stricter test.

Nevertheless, the ordinance has been enjoined for now, subject to either a change of mind by the trial court or, at the next stage, a decision by the appellate court. Lincoln’s City Council has authorized an appeal, but it is likely that a year or more will go by before the U.S. Court of Appeals for the Eighth Circuit will rule.

In the meantime, the confrontational picketing goes on and on. Church members are organized and working on additional self-help remedies to try to preserve the integrity and freedom of their church and to protect families who wish to attend.

The issue certainly aroused the attention and passions of a variety of individuals and groups in Lincoln. The City Council members in general acted, I think, out of their best judgment, informed by conscience and compassion. It would appear they may also have decided that a substantial majority of the people in this city who cared at all wanted them to pass such an ordinance. In fact, there was some likelihood that if the Council had not passed the ordinance, a similar measure would have been passed by a citywide initiative at next spring’s election.

The legal and academic community has shown considerable interest in the issues, which really constitute a classic case of high human values and legal principles conflicting with each other. But this is not merely a matter of academic or hypothetical interest. This is not a drill for First Amendment freedoms of speech and religion or for the concept of a safe and orderly society where people are free to move about — with their children — to perform their everyday functions as well as their spiritual exercises.

Difficult issues concerning the Establishment Clause of the First Amendment are also afoot. People on both sides of the question came to the Council hearing and expressed strong, impassioned and persuasive advocacy for both of the two opposed positions. The Council members in the majority and minority showed notable courage in reaching their respective conclusions. At the very least, the attention they gave and the efforts they made showed that this city cares enough to try to find peaceful resolution to the most extraordinarily difficult conflicts in the community and to seek a lawful balance of freedoms for all its members.

The whole community has been sensitized to its genuine, treasured human rights. That much, at least, will not for a long time be forgotten, and that is good.

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Editor’s note: It was reported on Jan. 4, 1999, that Donlan’s group, Rescue the Heartland, will no longer picket at Westminster Presbyterian Church because the Women’s Medical Center of Nebraska in Omaha closed. Dr. Crabb no longer performs abortions in Omaha.The city of Lincoln intends to pursue its appeal, Peterson said.