SB 192 and the ACLU

Senate Bill 192 has garnered attention on several fronts in recent days. Reporting about the bill, which would limit picketing in residential areas, has been comprehensive and fair, with the exception of any mention in the Sentinel of the purported impetus for this particular piece of legislation. That would be the recent practice of anti-abortion protesters in the Denver area of picketing the homes of construction executives who are building a new Planned Parenthood facility over there.

In scanning the ACLU of Colorado website, I was at a loss as to why there was no mention of a bill designed to place limits on Free Speech in this manner. I contacted their office in Denver on Tuesday and spoke with Communications Assistant Erik Maulbetsch. He directed me to the Legislative Update on the site. By checking the most recent listing of bills introduced, I found that the ACLU's position on SB 192 was "Active Monitor", in contrast to "Active Support" or "Active Oppose".

I inquired of Mr. Maulbetsch in an email I sent later the same day:

If the ACLU is in favor of or is neutral to the legislation, how does one so engaged in the protection of First Amendment rights justify such a position, when the legislation attacks those rights, and by doing so attacks the core mission of your organization?

I also cited the bipartisan opposition of all of Mesa County's legislators, and the Sentinel editorial which cited a recent event where lawful dissent could be suppressed under the provisions of the bill.

To the ACLU's credit, I received a reply later the same day from Executive Director Cathryn Hazouri:

Mr. Linko, thank you for contacting the ACLU on this important issue. As you know, the ACLU of Colorado has been a long time supporter of freedom of speech. We remained neutral on SB 192 because of a U.S. Supreme Court, Frizby, that placed restrictions on targeted residential picketing. In that case, the court prohibited picketers from standing in front of one residence for the purpose of picketing one or all persons inside.

The Court required the picketers to keep moving so as to protect the privacy of the residents.With that court ruling, the ACLU could hardly oppose the bill as introduced. We made it clear to the sponsor and committee members that the sign size limitation could be problematic. That analysis would be determined by other, more numerous, cases that would determine whether the signs are sufficient to convey the picketers' message to the target.

On the floor, Rep. Stephens amended the bill to include signs carried on a truck and used to supplement the message of the picketers. This may be unconstitutional since it could be interpreted as content discrimination. The legislature adopted the amendment but also added a severability clause that means that if any part of the legislation is found to be unconstitutional, those parts passing constitutional muster will remain in effect.

I hope this explains the ACLU's position and that you understand why we did not oppose the measure. Please note that we did not support it. If you have any other questions, please feel free to contact me.

Cathryn

So the meat of this legislation already has Supreme Court precedent behind it. In case you're interested, the case in question is Frisby v. Schultz, which involved anti-abortion picketing in a suburb of Milwaukee.

With that information in hand, I'm still at a loss as to why the local ACLU chapter, while not actively opposing the primary sections of the bill because of the aforementioned precedent (and understandably so), did not seek to better inform its' membership about this bill as to the potential threats to First Amendment protections that it still includes. I'm guessing that to gain that insight will require closer access to the political inner workings of our local ACLU.

Considering that this bill has bipartisan support and sponsorship as well, with some questionable rationale coming from the Democratic side, the Sentinel's editorial assertion still begs for a response:

If Senate Bill 192 had been in effect on April 11, when Vice President Dick Cheney visited Grand Junction, the local peace activists protesting Cheney’s visit in a residential neighborhood might very well have been violating the law."

As much as I'm sure that some of Colorado's Democratic legislative delegation wants to sock it to the pro-lifers whenever possible, they need to remain cognizant of the law of unintended consequences here. Luckily, we have a representative in Bernie Buescher who looks at these situations objectively. He should be able to cite this as one of many ways he competently represents his local constituency. Now, like Ralph D'Andrea is known to lament, if only I lived in his district. I'm only two blocks away.

As the ACLU apparently doesn't feel this one is worth potentially burning any valuable bridges over, it's apparently up to We the People to get the word out to our legislators and to Governor Ritter that SB 192 is a bad idea. I hope you'll be joining me in that effort.