NY AG Faces Headwinds in Pro-life Free Speech Case

Feb 1, 2018

BROOKLYN, NY – In a hearing this week in a federal lawsuit filed by New York Attorney General Eric Schneiderman seeking to punish and silence pro-life and Christian speech on public sidewalks, U.S. District Judge Carol Bagley Amon told participants that leafletting is a “form of really protected speech” and that sidewalks are recognized as the “quintessential public forum.”  Attorney General Schneiderman filed the lawsuit in June 2017 with the intent to shut down pro-life and Christian speech on public sidewalks outside an abortion facility in Jamaica, New York.

Liberty Counsel represents one of the 14 defendants, Scott Fitchett, Jr., a pre-K teacher who has spent Saturdays peacefully sharing the gospel on public sidewalks wherever he goes, including outside the Choices Women’s Medical Center abortion facility. The Attorney General’s lawsuit against Fitchett is frivolous and has no basis in law or fact.

The judge’s questioning of Assistant Attorney General Sandra Pullman at the hearing in Schneiderman v. Griepp, focused on the Attorney General’s shifting definition of “harassment.” The State’s interpretation seemed to focus on the reaction of a listener to another’s speech, something that lined up with neither New York City’s harassment ordinance or the First Amendment. Pullman quoted the Webster’s definition of harassment as including speech that “annoys” someone, which is not constitutionally or logically actionable.

Judge Amon took issue with the State’s targeting of what Pullman labeled as “annoying behavior,” saying that was vague, and challenging the state with a series of hypotheticals. The judge asked, “If a person followed a patient down the sidewalk, politely repeating, ‘You should consider keeping your baby,’” Amon asked, “would that be harassment? What if the protester stayed three feet away from the patient? What if someone followed you down the street, repeatedly telling you they liked your haircut? Would that be harassment?”

Liberty Counsel’s Assistant Vice President of Legal Affairs Roger Gannam demonstrated to the court the absurdity of Pullman’s argument that the listener’s reaction dictates whether a person’s speech is illegal. “If harassment is established only by its effect on the listeners,” Gannam said, “you wouldn’t know you committed harassment until after the fact.”

Attorney General Schneiderman’s lawsuit is based on the federal Freedom of Access to Clinic Entrances Act (FACE) and similar New York laws. Enacted by Congress to prevent actual violence and physical obstruction of abortion facility entrances, Schneiderman is using FACE to shut down peaceful speech on a public sidewalk. In his press conference last year announcing the lawsuit, he said, “We are not a nation where you can choose your point of view,” and that pro-life Christians “run their mouths” with “unlawful, un-American rhetoric.” He called Christians’ efforts to counsel women considering abortion and to advocate for the rights of the unborn “horrifying” and “illegal.”

“It is inexcusable for the highest legal officer of the State of New York to declare war on free speech, and especially to openly target religious and pro-life viewpoints,” said Mat Staver, Founder and Chairman of Liberty Counsel. “It is shocking that the Attorney General would say publicly that ‘we are not a nation where you can choose your point of view.’ The essence of freedom is precisely that we can choose our point of view,” said Staver.

Liberty Counsel is an international nonprofit, litigation, education, and policy organization dedicated to advancing religious freedom, the sanctity of life, and the family since 1989, by providing pro bono assistance and representation on these and related topics.