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The Forerunner

Tosh 2.0: Retaking Winter Park’s “No-Free-Speech” Buffer Zone

A pro-life Awareness Campaign at Planned Parenthood CEO Jenna Tosh’s neighborhood – Click to enlarge.

Who: Central Florida Pro-life Evangelists
What: Pro-life Awareness Campaign
Where: Aloma Avenue, Winter Park, Florida
When: Saturday, April 13th, 2013, 9:30 am to 12 pm

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WINTER PARK, Florida (www.forerunner.com) — Florida pro-life evangelists are going back to the Aloma Avenue neighborhood in Winter Park for the first time since the City Commission voted to enforce an ordinance restricting residential picketing.

Its 4-1 passage was driven by a narrative spun by the CEO of Planned Parenthood, Jenna Tosh. She tearfully explained at the emergency hearing on August 28, 2012 how she felt “threatened and ambushed” on the day of a pro-life Awareness Campaign in her neighborhood a few days earlier.

A short time after the August pro-life campaign, Planned Parenthood of Greater Orlando CEO Jenna Tosh approached a fellow church member, Winter Park Commissioner Sarah Sprinkel, who moved quickly to request city action — an ordinance designed to restrict protests in city neighborhoods.

David Slaughter, a law instructor from UCF, who spoke at the Winter park ordinance hearing thought the ordinance was constitutional although he failed to see that the language could be subject to a broader interpretation.

I am strongly in favor. What the protesters are doing is not free speech. Marching through a neighborhood helps convey a message. Staying in front of one person’s residence is harassment.

Ironically, Slaughter said the same thing as several critics of the ordinance. There are already laws in place that govern harassment. However, this is not what occurs at central Florida pro-life Awareness Campaigns. Rather these are peaceful picketers targeting entire neighborhoods, not just one single residence. This complies with a landmark Supreme Court decision, Frisby v. Schultz, which sets the constitutional parameters for residential pickets.

A lawsuit, Bell v. Winter Park, challenging the “no-free-speech buffer zone” ordinance was filed in October by plaintiff’s attorney Rick Nelson. The lawsuit was dismissed on March 7, 2013, but some confusion reigns. It has been falsely reported by local media outlets that the ordinance bans residential picketing.

What does the ordinance say?

According to Nelson, Winter Park City Attorney Larry Brown and U.S. District Judge Roy Dalton the dismissal order states that his ordinance, far from banning all “residential picketing,” narrowly defines “picketing” to a buffer zone 50-feet from the property line of a single family residence.

“Picket”; “Picketing”; and “Protest”. The terms “picket”, “picketing” and “protest” shall all mean, for purposes of this Section, any assembly of one or more persons in which such person or persons, through conduct, speech or any other fonn of expression, criticize, protest or complain about any matter in which a particular person, group of persons or type of persons is specifically targeted for protest, complaint or criticism, and where such assembly stands, loiters, congregates or mills before or about a single-family residence, [emphasis added] where a person who regularly resides therein is, or is perceived to be, a target, focus, subject or intended recipient of the protest, complaint or criticism.

The city attorney explained that if a residence is targeted, then picketers cannot “camp out” or “loiter” within 50 feet. However, they may “march,” “proselytize” and “distribute literature.” The federal judge agreed:

They may camp out and form a picket line fifty-one feet away from the targeted residence, or down the street. They may parade through the neighborhood and past the targeted residence inside the fifty-foot buffer zone, so long as they do not loiter. The Frisby Court had to construe that ordinance to apply only to targeted picketing, but this ordinance explicitly does so….

Broadly interpreted, the ordinance would apply to all residential picketing. This is how many media outlets, including the Orlando Sentinel, spun the story. This was also the concern of the lawsuit, Bell v. Winter Park, which was necessary to challenge the ordinance. But now both the judge and the city attorney have documented that the ordinance does not say what many people think it says.

This Court finds that the [Winter Park] ordinance is narrowly tailored because it is directed only at targeted protesting focused on a specific residence; the ordinance is not overly broad for the same reason—it is directed to the very particular harm caused by protesting within fifty feet of a private residence and forcing a message onto a captive, unwilling listener.”

Aloma Avenue Awareness Campaign – Click to enlarge. According to the judge’s dismissal order, the blue pro-lifers “may camp out and form a picket line fifty-one feet away from the targeted residence, or down the street.” The red pro-lifers may “may parade through the neighborhood and past the targeted residence inside the fifty-foot buffer zone, so long as they do not loiter.”

Several media outlets including the Orlando Sentinel ran articles reporting that the ordinance applied broadly stating that it in effect banned all residential picketing in the city of Winter Park.

A federal judge today dismissed a suit against Winter Park alleging that the city’s restrictions on picketing in residential areas were unconstitutional. – Orlando Sentinel

In writing simply that the ban on residential picketing was upheld, readers might get the impression that pro-life Awareness Campaigns are permanently banned in residential neighborhoods in Winter Park. In fact, the Orlando Sentinel even quoted the Planned Parenthood officer stating she was pleased with Judge Dalton’s ruling.

The Sentinel earlier ran an editorial decrying the ordinance as a dangerous precedent threatening first amendment rights to free speech and assembly.

The Winter Park Observer stated that the ordinance is one “banning protests in neighborhoods forever.”

The Winter Park Voice, in an article supporting Jenna Tosh and the ordinance, states that it is “designed to restrict protests in city neighborhoods.”

So why the confusion? The ordinance itself says it bans residential picketing, but whether this is understood as meaning “all residential picketing” depends on whether this reading is narrow or broad. Some definitions are in order here.

Narrow: The ordinance as written applies only to single-family residences. Free speech is unlimited outside a 50-foot buffer zone surrounding a targeted residence. However, within the “no-free-speech” zone, citizens may still march, proselytize, preach, parade and distribute flyers as long as they do not stand in front of one residence, but move through the zone.

Broad: This was the interpretation of the Orlando Sentinel and other media that decried a “ban on the first amendment” and other alarming rhetoric. This was also the concern of a lawsuit by three pro-life evangelists, Bell v. Winter Park, who found it necessary to challenge the ordinance on its face in federal court.

In reality, as the video above shows, most of the 27 pro-lifers who held signs along Aloma Avenue on August 18th, 2012 stood outside a 50-foot area surrounding the Tosh residence. Under the definition of “picketing” in the ordinance, and according to the Judge Dalton’s ruling, “They may parade through the neighborhood and past the targeted residence inside the fifty-foot buffer zone, so long as they do not loiter.”

Does the ordinance apply to pro-life Awareness Campaigns in Winter Park?

Since the Awareness Campaign of August 2012 was peaceful and for the most part did not violate the terms the ordinance, one has to wonder why the ordinance was thought to be necessary in the first place.

A frequent comment heard by those Winter Park residents who supported the ordinance was that “We never needed such an ordinance until now.” But what actually is “needed” if the ordinance does not prohibit peaceful assembly? There are several possibilities.

1. The Winter Park City Commission actually believed the histrionics of a Planned Parenthood CEO – that protesters blocked the sidewalk so that she literally had to push her way through to her home – that she was ambushed, bullied and harassed. In fact, I had asked the City Commission if they had seen the video of the Awareness Campaign to determine for themselves if the tenor of the demonstrators was peaceful or harassing. Still the narrative of Jenna Tosh — that it was one of hate, harassment and intimidation — won at least a few of them over. Commissioner Steven Leary repeated the narrative of Planned Parenthood:

Some are questioning the applicability of this ordinance to the first amendment and I appreciate that. There are others who are trying to use the first amendment to shield hatred, harassment and intimidation and I think that is readily transparent.

He went on to say that every attorney he spoke with simply shrugged when he asked them if the ordinance had constitutional cover, but added:

So for those who threaten, sure, you can. And we’ll see…. Regardless of the profession of the targeted person, this most crude form of harassment doesn’t belong in our community.

2. The Winter Park City Commission was led to believe the ordinance says something it does not say. This is likely since the sole “nay” vote from Mayor Bradley came with the objection that the ordinance violates the First Amendment. He simply related his respect for the First Amendment:

I had the privilege in 1975 of visiting a relative in communist Czechoslovakia. It was a sobering experience. They were not safe in their homes. In fact, they could not own their own homes. One of the reasons they were not safe is that they couldn’t speak publicly or even in their own homes…. You can’t have great homes, you can’t have safety in your homes if there are not certain rights around them.

Likely, Bradley believed that the ordinance bans all residential picketing. In addition, Commissioner Tom McMacken, who voted for the ordinance, stated the following:

I have sworn to uphold the Constitution, but I’ve also looked everyone of my neighbors in the eyes and said, “I am going to do what is in the best interest of Winter Park.” And to be quite honest with that, if it was Constitutional or unconstitutional, I would still do it, because these are my neighbors and they deserve protection from any kind of intrusion in your home. So I am supporting this wholeheartedly.

Evidently, McMacken also believed that the ordinance bans residential picketing.

3. The Winter Park City Commission believed it needed such an ordinance to curb other demonstrations in the residential areas of Winter Park. This is unlikely since we heard over and over again the comment that “we haven’t needed such an ordinance in Winter park until now.” Several Winter park residents urged the City Commission to adopt the ordinance because they felt residents should not be subjected to protests in their neighborhoods, not understanding that it applies only to “targeted” picketing of a single residence, as upheld in Frisby. On the contrary, a 50-foot buffer zone actually creates more of a nuisance for next door neighbors whose homes are not being targeted due to the effect of displacing the picketers 50 feet to either side.

4. The ordinance is not intentionally “content neutral” as claimed and is aimed at pro-life speech. This is likely due to the oft-cited claim by residents that this was never “needed” until now. On the contrary, curbing pro-life Awareness Campaigns is the intended purpose of the ordinance. We also have to consider how unlikely it is that a common citizen will even be targeted by neighborhood pickets. Which people are targeted? Perhaps corrupt politicians and businessmen; mothers on trial for murder, such as Casey Anthony; and of course abortionists and Planned Parenthood CEOs.

5. The City of Winter Park caved to a single woman’s special interest group. This too is likely because both Jenna Tosh’s pastor, First Congregational Church of Winter Park’s Karen E. Barker-Duncan, and city commissioner Sarah Sprinkel, also a member of the First Congregational Church, spoke emotionally about the need to rally around Planned Parenthood of Greater Orlando’s chief executive. 

Rev. Karen Duncan was even invited to give an invocation (incantation?) the day that the first version of the “emergency ordinance” was voted on. In her “prayer,” she asked for the following:

God of the Ages … provide for safety for residents who are harassed and picketed in their homes trampling on their safety and peace as happened last week here in Winter Park.

6. The CEO of Planned Parenthood, though not able to circumvent the First Amendment, wanted to use the ordinance as a way of convincing the general public that peaceful picketers are bullies intent on threatening her family. When the lawsuit challenging the ordinance was dismissed, Jenna Tosh issued a statement, according to the Orlando Sentinel, she said she was pleased with Judge Dalton’s ruling and said, “No one should be subjected to ideological bullying in the privacy of their own home.”

Commissioner Carolyn Cooper said referring to a subsequent Awareness Campaign at Jenna Tosh’s church that occurred one day prior to the final vote on the ordinance.

I had the opportunity to witness the picket this weekend in a public place. I believe that everyone who participated or was involved in that knows that in Winter Park you are given the opportunity to picket in a public place very peacefully and that is what Winter Park is about. I do feel that we owe to our residents the tranquility of their homes and we owe to you the opportunity to state your opinions and picket in a public area and I think we are doing our best to do both of those things.

It should be noted that the picket that Commissioner Cooper saw at the First Congregationalist Church was led by the same people who were at Jenna Tosh’s home a few weeks earlier. As can be seen in the above video, the only differences were that the second picket had more preaching. There was also a guitarist accompanying. Instead of graphic images of aborted babies, the second picket had mainly posters with scripture verses that related to abortion.

Cooper says that she witnessed that it occurred “very peacefully,” while other Commissioners who did not see the first picket insisted on describing it as “heinous,” “dirty,” “harassing,” “threatening,” “hate” and so on. It’s also interesting that Cooper felt she had to mention peaceful demonstrators are welcome in Winter Park to do something that our founders thought was a right given by God to a free people. Our founders believed that governments were instituted to protect these rights – not to allow them.

Cooper said “very peacefully” with emphasis. That indicates she thinks the demonstrators were peaceful at the church picket she observed. More importantly, she repeated “public” twice indicating that she thinks the ordinance really does ban all residential picketing.

7. Still another possibility is that the city attorney may have thought he could confuse pro-lifers with a lot of words hoping their attention span was so short that they would be discouraged and go away.

The Winter Park ordinance was passed because Planned Parenthood’s CEO Jenna Tosh was able to manipulate the City Council through her relationship with Commissioner Sarah Sprinkel.

Many of the critics of the ordinance have pointed out that harassing behavior in front of someone’s home is already prohibited by state law and other ordinances. That’s essentially what Frisby did too — it made an allowance that a municipality could pass an ordinance limiting free speech. An ordinance that does what a set of existing laws already do in order to protect citizens from feeling threatened or harassed is certainly constitutional.

Despite all denials by the City Commission, if they were really honest, they would admit that the Winter Park ordinance was intended to curb pro-life speech. As it was repeated over and over in the hearings by Winter Park residents, “We haven’t needed such an ordinance until now.” In 2012, the pro-life street activists of central Florida were the only ones picketing in the neighborhoods of Winter Park. The ordinance would apply only to them.

It will likely never be applied to critical speech toward a person residing in a single-family home in a residential area. A lot depends on how the Winter Park City Commission and the city police understand what the ordinance does according to Judge Dalton’s dismissal order.

To be continued …

Note: The title of this piece is meant as parody only. Neither the article, the author nor Forerunner.com bears any relationship to the Comedy Central program of a similar name.

Your comments are welcome!

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