Opinion
Rehearing Denied March 3, 1993.
Review Granted May 13, 1993.
Previously published at 12 Cal.App.4th 1817, 18 Cal.App.4th 359, 23 Cal.App.4th 532
John R. Streett, Novato, for defendants and appellants.
Maria P. Rivera, Geoffrey L. Robinson, Grant Guerra, McCutchen, Doyle, Brown & Enersen, Walnut Creek, for plaintiff and respondent.
WHITE, Presiding Justice.
This is an appeal from a final judgment granting a permanent injunction against anti-abortion protesters. The protesters have targeted the staff and clientele of a Planned Parenthood clinic in Vallejo. The evidence established that appellants Christine Williams and members of Citizens for Life have entered private property at the Vallejo clinic to confront and intimidate women seeking abortion services and have also obstructed the entrances to the clinic. In order to protect Planned Parenthood's patients and staff, the trial court imposed place and manner restrictions on appellants' ongoing protest. Appellants have appealed from the judgment imposing the permanent injunction. We affirm in part and reverse in part.
FACTS
Planned Parenthood operates a family planning clinic in Vallejo. The clinic is in a single-story office building which it shares with another tenant, a tax service. There is a parking lot on one side and to the rear of the building; this lot is for the exclusive use of the clinic and tax service. There is a narrow public sidewalk in front of the building which is intersected by two driveway entrances which lead to the building parking lot. The main door to the clinic is toward the rear of the office building, well off the street and public sidewalk.
In March of 1990 appellants and other demonstrators began gathering at the clinic, primarily on Thursdays when abortions were performed. There were often six or more demonstrators and they often brought children. The demonstrators protested by picketing directly in front of the office building on the public sidewalk. Some picketers walked very slowly across the driveway entrance to the clinic parking lot, thus delaying or preventing cars from entering.
As part of their tactics to prevent abortions, the protesters also stationed two "counselors" near the entrance to the clinic building. These "counselors" would approach the clinic's patients as they entered and would offer them anti-abortion literature and plastic fetuses. At times, the "counselors" would tell the patients that they were killing a baby, and admonish them that the Bible condemns abortion. The "counselors" often stood directly in front of the doorway to the clinic, making it difficult to enter or exit. In order to protect their patients from the "counselors," the clinic was forced to employ volunteers to escort the patients from the parking lot to the clinic entrance.
In addition to pressuring the clinic's patients, the protesters also targeted the staff. On at least one occasion, the protesters called a clinic nurse a "murderess" and exhorted her not to "kill" babies. Finally, the protesters photographed the clinic patients and staff and recorded the license numbers of their cars.
Based on this evidence, the trial court granted a permanent injunction against appellants, Appellants have appealed from this judgment.
In stating the facts in this case, we have relied on the record pertinent to the permanent and preliminary injunctions since it appears the trial court based its final decision on the entire record before it. Appellants would have us restrict our review of the record to the hearing on the permanent injunction only, and to ignore the record of the preliminary injunction. We decline to do so. First, it appears that the court at least implicitly took judicial notice of its own records (including those pertinent to the preliminary injunction) in rendering the permanent injunction. (Evid.Code, § 452, subd. (d).) Second, appellants have not requested that all of the proceedings below be transcribed and included in the record on appeal. Significantly, the record does not contain transcripts of the closing arguments or of a motion made by defendant at the end of trial. Consequently, on this record, appellants have not carried their burden to affirmatively show error by proving that the trial court did not rely on the record of the preliminary hearing in rendering its final decision. (9 Witkin, Cal.Procedure (3d ed. 1985) Appeal, § 268, pp. 276-277.)
DISCUSSION
Appellants challenge the injunction to the extent it: (1) excludes them from the clinic parking lot; (2) excludes them from the public sidewalk directly in front of the clinic; and (3) restricts the content of their speech by preventing them from using certain specified language in front of children while at the protest site. We consider each contention separately.
A. Exclusion From the Clinic Parking Lot
1) Standing
The permanent injunction states that "[a]ll picketing, demonstrating or counseling at the PLANNED PARENTHOOD building shall only take place along the public sidewalk across the street from the PLANNED PARENTHOOD building." (Italics added.) This means, of course, that the demonstrators and counselors are enjoined from entering the clinic parking lot and from stationing themselves in front of the clinic entrance.
Appellants contend this place restriction is invalid because the clinic did not show it had a possessory interest in the parking lot adjoining the office building. Consequently, according to appellants, the clinic had no "standing" to exclude the protesters from the parking lot. We disagree.
The trial court found that "[t]he parking lot immediately adjacent to and surrounding [Planned Parenthood's] premises provides parking for its physicians, staff and clients." A declaration introduced at the hearing on the preliminary injunction states that the parking lot "is solely for the use of customers and clients of the tax service and Planned Parenthood." (Emphasis supplied.) No contrary evidence was introduced at trial. In our view, this was sufficient to establish the clinic's "possessory interest" in the parking lot, and the court properly concluded that the clinic had standing to enjoin interference with that right.
More important, this court has recently recognized that an operator of a family planning clinic has "interests other than mere ownership" which support a permanent injunction against anti-abortion activities in the clinic's parking lot. Those rights include " 'freedom from disruption of normal business operations and freedom from interference with customer convenience. [Citation.]' " (Allred v. Shawley (1991) 232 Cal.App.3d 1489, 1502, 284 Cal.Rptr. 140.) These interests furnish an independent basis for standing to bring suit, regardless of the clinic's right to exclusive possession of the parking lot. (See also Right to Life Advo. v. Aaron Women's Cl. In short, it is ludicrous to assume that a family planning clinic has no "standing" to enjoin activities which are aimed at disrupting and impeding its lawful business. The clinic's "standing" does not turn on whether it has a sufficient possessory interest in the parking lot, but on whether it has shown the activities in the parking lot have disrupted its normal business operations and have interfered with customer convenience. On this record, there is no question the clinic has met this burden.
2) Public Forum
Appellants next contend that excluding them from the parking lot violates Article 1, section 2 of the California Constitution because the parking lot is a public forum. We disagree.
Appellants do not contend that the restriction violates the First Amendment to the United States Constitution, which the United States Supreme Court has construed more narrowly in this context. (Planned Parenthood v. Wilson (1991) 234 Cal.App.3d 1662, 1668, 1669, fn. 5, 286 Cal.Rptr. 427.)
Appellant's rely on a line of cases culminating in Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899, 153 Cal.Rptr. 854, 592 P.2d 341. They cite these cases for the proposition that under the California Constitution the clinic parking lot is a public forum from which the protesters may not be excluded. Robins does not control this case. In Robins our Supreme Court held that Article 1, section 2 of the California Constitution protects the exercise of nondisruptive free speech and petition rights in a large private shopping mall. The Robins court recognized that central business districts have yielded many of their historic functions to the suburban shopping mall, and that such malls are, in essence, public forums. (Robins, supra, at pp. 907, 910, fn. 5, 153 Cal.Rptr. 854, 592 P.2d 341.) The Robins court emphasized that the size of the shopping mall is an important factor. (Id., at pp. 902, 910-911, 153 Cal.Rptr. 854, 592 P.2d 341.) The court cautioned that " '[i]t bears repeated emphasis that we do not have under consideration the property or privacy rights of an individual homeowner or the proprietor of a modest retail establishment.' " (Id., at p. 910, 153 Cal.Rptr. 854, 592 P.2d 341.)
Far more relevant to the present case than Robins are recent opinions which specifically uphold the exclusion of anti-abortion protesters from clinic parking lots. In Planned Parenthood v. Wilson, supra, 234 Cal.App.3d 1662, 286 Cal.Rptr. 427, the Fourth District upheld an injunction preventing anti-abortion protesters from entering a clinic parking lot to conduct anti-abortion activities. (Id., at pp. 1666, 1674, 286 Cal.Rptr. 427.) The Wilson court distinguished Robins on the ground that the retail establishment under consideration there--a three-story medical center housing six tenants--was not similar to the quasi-public forum created by a large suburban shopping center, but was more akin to the "modest retail establishment[s]" specifically excluded from the Robins rule. (Planned Parenthood v. Wilson, supra, at pp. 1671-1672, 286 Cal.Rptr. 427.)
Similarly, in Allred v. Shawley, supra, 232 Cal.App.3d 1489, 284 Cal.Rptr. 140, the court upheld an injunction banning anti-abortion protesters from the parking lot of a clinic housed in a 14,000 square foot office building containing 10 tenants. (Id., at pp. 1494-1495, 1505, 284 Cal.Rptr. 140.) The court rejected the notion that the parking lot was a public forum, concluding that "the professional center had continually maintained the private character of its parking lot and had not invited the public generally to use the property." (Id., at p. 1502, 284 Cal.Rptr. 140, emphasis supplied.)
Here, the building under consideration is even smaller and more private than those considered in Wilson and Allred. The clinic contains only two tenants, and the parking lot is reserved for the exclusive use of B. Exclusion From The Public Sidewalk Directly in Front of The Clinic Building
Again, the permanent injunction states that "[a]ll picketing, demonstrating or counseling at the PLANNED PARENTHOOD building shall only take place along the public sidewalk across the street from the PLANNED PARENTHOOD building." (Italics added.) This means, of course, that the demonstrators may not gather or picket on the public sidewalk directly in front of the clinic building. Appellants contend that this place restriction is invalid. We uphold the restriction as necessary to protect a woman's right to procreative choice on the basis of our state constitutional right to privacy. (Cal. Const., art. I, § 1.)
Unlike the clinic's private parking lot, the sidewalk in front of the clinic is a public forum where speech is entitled to heightened protection. (Frisby v. Schultz (1988) 487 U.S. 474, 479-480, 108 S.Ct. 2495, 2499-2500, 101 L.Ed.2d 420.) "The 'public forum' doctrine holds that restrictions on speech should be subject to higher scrutiny when, all other things being equal, that speech occurs in areas playing a vital role in communication--such as in those places historically associated with first amendment activities, such as streets, sidewalks, and parks--especially because of how indispensable communication in these places is to people who lack access to more elaborate (and more costly) channels." (Tribe, American Constitutional Law (2d ed. 1988) § 12-24, p. 987, fns. omitted, emphasis supplied.)
"In places which by long tradition or by government fiat have been devoted to assembly and debate, the rights of the State to limit expressive activity are sharply circumscribed.... In these quintessential public forums, the government may not prohibit all communicative activity.... The State may[, however,] enforce regulations of the time, place, and manner of expression which are content neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication. [Citations.]" (Perry Ed. Assn. v. Perry Local Educators' Assn. (1983) 460 U.S. 37, 45, 103 S.Ct. 948, 954, 74 L.Ed.2d 794, emphasis supplied; quoted in Chico Feminist Women's Health Center v. Scully (1989) 208 Cal.App.3d 230, 244, 256 Cal.Rptr. 194.)
The restriction requiring appellants to stay on the opposite side of the street from the clinic is clearly content neutral. It does not refer to the specific viewpoints that the demonstrators press, nor to the issues raised at the demonstration. Instead, it focuses exclusively on the location and manner of expression. (Portland Fem. Women's H. Ctr. v. Advocates For Life (9th Cir.1988) 859 F.2d 681, 686.) The restriction thus passes this threshold test.
The clinic contends the restriction is also narrowly tailored to serve two significant government interests: (1) the state's interest in keeping public sidewalks and streets open and unimpeded; and (2) the interest in protecting a woman's constitutional right to privacy. We examine each contention separately.
We agree with the clinic that the place restriction is intended to (and does) serve the "significant government interest" of keeping the street and sidewalk free of obstacles which could block the free flow of vehicle and pedestrian traffic. (Cameron v. Johnson (1968) 390 U.S. 611, 612-613, fn. 1, 617, 88 S.Ct. 1335, 1336, fn. 1, 1338, 20 L.Ed.2d 182 [Statute prohibiting pickets from interfering with free use of streets or sidewalks is " 'a valid law dealing with conduct subject to regulation so as to vindicate important interests of society and ... the fact that free speech is intermingled with such conduct does not bring with it constitutional protection.' (Citation.)"]; Thompson v. Police Dept. of New York (Sup.1989) 145 Misc.2d 417, 546 N.Y.S.2d 945, 947; Bering v. Share (Wash.1986) 106 Wash.2d 212, 721 P.2d 918, 926.)
Witnesses described the sidewalk in front of the building as "small"; this description
The more difficult question, however, is whether the provision completely prohibiting the protesters from conducting any activities on the sidewalk in front of the clinic is "narrowly tailored" to serve that significant government interest. The most analogous authority on this point comes from the Supreme Court of Washington. In Bering v. Share, supra, 106 Wash.2d 212, 721 P.2d 918, the Washington Supreme Court considered the validity of an injunction which banished anti-abortion protesters to a site around the corner from the entrance to a medical clinic. (Id., 721 P.2d at pp. 921-923.) The court concluded that the place restriction was not narrowly tailored to serve the significant government interest in maintaining free ingress and egress to the medical clinic. The court noted that "[w]ith respect to the State's interest in maintaining ingress and egress, the injunction arguably could be narrowed without compromising that interest. The injunction could (1) limit the number of picketers, (2) require them to remain a certain distance from the walkway leading to the entrance, (3) require them to picket in single file, or (4) all of the above. By narrowing the injunction, the State could serve its significant interest in maintaining convenient access to medical care without unduly limiting the picketers' expressive activities." (Id., at p. 930.)
Although the Washington Supreme Court concluded that the restriction was not "narrowly tailored" to serve the government interest in maintaining free ingress and egress, that court nevertheless upheld the place restriction on the ground it was necessary to protect a woman's constitutional right to privacy. (Bering v. Share, supra, 721 P.2d at p. 930.) We discuss this point in greater detail, post.
Similarly, in the present case, it may be that the injunction could be narrowed without compromising the state's interest in maintaining the free flow of pedestrian and vehicle traffic. For example, the injunction could limit the number of picketers, limit the area of the sidewalk where the picketers could stand, and explicitly prohibit the picketers from blocking or delaying cars entering the clinic parking lot. These lesser measures might fully protect the state's interest in maintaining the free flow of traffic.
Nevertheless, the clinic contends the place restriction is "narrowly tailored" to serve another substantial government interest: namely, the state's interest in protecting a woman's constitutional right to privacy. The clinic again finds support for this argument in Bering v. Share, supra. As indicated, in that case the lower court restricted anti-abortion protesters to a public sidewalk around the corner from a medical clinic entrance. (721 P.2d at pp. 922-923.) After rejecting an argument that the restriction was narrowly tailored to serve the state's interest in maintaining easy access to the clinic (see discussion, ante, p. 545), the Washington Supreme Court held that the place restriction was narrowly tailored to further the state's interest in protecting a woman's constitutional right to privacy. The court reasoned: "An injunction which permitted any anti-abortion picketing on the [entrance] sidewalk would not adequately serve the State's compelling interest in protecting a woman's constitutional right of privacy from the coercive impact generated by the presence of the picketers in front of the Medical Building. In the absence of a place restriction, women visiting the clinic for abortion-related services would be forced to walk a gauntlet of placard-carrying anti-abortionists. Even The Bering court based its reasoning on the federal constitutional analysis in Roe v. Wade (1973) 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147. Under Roe and its progeny, the courts upheld limitations on a woman's right to an abortion only if the limitations survived "strict" constitutional scrutiny--"that is, only if the governmental entity imposing the restriction [could] demonstrate that the limitation is both necessary and narrowly tailored to serve a compelling governmental interest." (Planned Parenthood v. Casey (1992) 505 U.S. 833, ----, 112 S.Ct. 2791, 2817, 120 L.Ed.2d 674, 711 (plur. opn.) and p. ----, 112 S.Ct. at p. 2847, 120 L.Ed.2d at p. 749 (conc. and dis. opn. of Blackmun, J.).)
Recently, in Planned Parenthood v. Casey, supra, a plurality of the United States Supreme Court abandoned the strict scrutiny test in the abortion context. (--- U.S. ----, 112 S.Ct. 2791, 120 L.Ed.2d 674.) In Casey, Justices O'Connor, Kennedy and Souter held that a regulation touching on abortion is valid unless it imposes an "undue burden" on a woman's ability to choose to have an abortion. (Id., at pp. ---- - ----, 112 S.Ct. at pp. 2818-2821, 120 L.Ed.2d at pp. 712-715.) The plurality explained that a regulation imposes an undue burden "if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability." (Id., at p. ----, 112 S.Ct. at 2821, 120 L.Ed.2d at p. 715.)
The Washington Supreme Court clearly relied on the Roe strict scrutiny standard in upholding the place restriction in Bering v. Share. The court stated that "for the purpose of defining a State's interest in a reasonable place restriction, this court recognizes the constitutional protection afforded the right to an abortion." (721 P.2d at p. 928, fn. 3, emphasis supplied.) At the time Bering v. Share was decided, the constitution shielded the right to abortion from any regulation which was not "both necessary and narrowly tailored to serve a compelling governmental interest." (Planned Parenthood v. Casey, supra, 505 U.S. at p. ----, 112 S.Ct. at p. 2847, 120 L.Ed.2d at p. 749 (conc. and dis. opn. of Blackmun, J.), p. ----, 112 S.Ct. at p. 2817, 120 L.Ed.2d at p. 711 (plur. opn.).) As interpreted by Planned Parenthood v. Casey, however, the federal Constitution now prohibits only those regulations which impose an "undue burden" on the right to choose an abortion. Obviously, the "undue burden" standard permits more regulation than does the "strict scrutiny" standard.
Turning to the case at bench, we believe the correct inquiry under the federal Constitution is whether allowing some form of protest on the sidewalk directly in front of the clinic would necessarily impose an "undue burden" on the patient's right to choose an abortion. It is questionable whether the blanket injunction banning the protesters to the opposite side of the street could survive under this standard. However, we need not address this issue because our state Supreme Court has interpreted our state Constitution to require broader protection of a woman's right to choose an abortion than is afforded under the federal Constitution.
We agree with the Washington Supreme Court that, even though appellants are not state actors, we must look to "the constitutional protection afforded the right to an abortion" to determine whether a place restriction is valid. (Bering v. Share, supra, 721 P.2d at pp. 927-928, fn. 3.) That is, the "significant government interest" proffered to support a place restriction must be defined by the constitutional right the court seeks to protect. (Perry Ed. Assn. v. Perry Local Educators' Assn., supra, 460 U.S. at p. 45, 103 S.Ct. at p. 954.)
In Committee to Defend Reproduction Rights v. Myers (1981) 29 Cal.3d 252, 172 Cal.Rptr. 866, 625 P.2d 779 (hereafter Myers ), our Supreme Court concluded that the explicit right to privacy found in the In conclusion, under California law, the "compelling interest test" still applies even after Casey. Since the constitutional underpinning of Bering is still in place in California--and because we find that case persuasive--we choose to follow it.
Finally, the injunction also leaves open ample alternative means of communication. Even though the protesters are restricted to the opposite side of the street, they are still clearly visible to those entering or leaving the clinic. Thus, the protesters can communicate their message through placards or signs.
Because the restriction meets the three part test set out in Perry Ed. Assn. v. Perry Local Educators' Assn., supra, 460 U.S. at p. 45, 103 S.Ct. at p. 954, we uphold the portion of the injunction restricting the protesters to the opposite side of the street.
C. Content Restriction
Finally, appellants contend paragraph 4 of the injunction is invalid because it impermissibly restricts the content of their speech. We agree.
Appellants also make a substantial evidence argument which we may dismiss in a footnote. They contend that the following provisions of the injunction are not supported by substantial evidence: (1) The paragraphs prohibiting them from recording license numbers or photographing persons entering the clinic and (2) the paragraph prohibiting them from touching staff or patients or making noise that can be heard inside the building. Appellants' argument is based on the mistaken premise that the court could only consider the evidence introduced at the hearing on the permanent injunction. As we have already indicated, we may assume the court considered the entire record before it. (See ante, fn. 1.) Read in its entirety, the record supports the trial court's findings and orders. (See Chico Feminist Women's Health Center v. Scully, supra, 208 Cal.App.3d at pp. 237-238, 248, 250, 256 Cal.Rptr. 194 [upholding injunction prohibiting anti-abortion protesters from recording license numbers or photographing persons at the clinic]; Planned Parenthood v. Wilson, supra, 234 Cal.App.3d at pp. 1666, 1674, 286 Cal.Rptr. 427 [affirming preliminary injunction which enjoined protesters from "producing noise which substantially interferes with PLANNED PARENTHOOD's ability to provide safe and proper health care services"].)
The court found that the protesters "have called staff 'murderers' or asked them not to 'kill babies' in the presence of small children." Consequently, paragraph 4 of the permanent injunction enjoins appellants from making oral statements while at the picket site, in the presence of children under the age of 12, that refer to Planned Parenthood's "physicians, staff, or clients as 'murdering' or 'murderers,' 'killing' or 'killers;' or to children or babies being 'killed' or 'murdered' by anyone in the PLANNED PARENTHOOD building...."
The clinic's argument in support of this restriction is again based on the Washington Supreme Court's opinion in Bering v. Share. There, the lower court issued an Applying this test, the Bering court noted that the protesters had used the offending words in front of children who were accompanying patients of the clinic or had come to the medical building as patients themselves. Moreover, there was expert testimony that the use of these words had " 'inflicted trauma upon the children overhearing such references and ... by their very utterance ... harmed the doctor-patient relationship essential to the effective delivery of health care.' " ( Bering v. Share, supra, 721 P.2d at p. 933; see Id. at pp. 933-935.) Accordingly, the Washington Supreme Court concluded the state had a "compelling interest" in protecting children from the physical and psychological abuse inflicted by the picketers' speech. (Id., at p. 935; see FCC v. Pacifica Foundation (1978) 438 U.S. 726, 98 S.Ct. 3026, 57 L.Ed.2d 1073.) Again, it is important to emphasize that the "children" to which the court refers are the children who came to the medical building as patients themselves or accompanied adult patients to the clinic.
The medical building where the abortion clinic was located contained over two dozen offices which offered a wide range of services including pediatric, prenatal, and family oriented health care. (Bering v. Share, supra, 721 P.2d at p. 922.)
Although the Bering court does not explicitly state this limitation, read as a whole, the opinion clearly indicates that the court is only concerned about children who are coming to the clinic to receive services, not about the children of the protesters. (Bering v. Share, supra, 721 P.2d at pp. 934-935 ["parents of children visiting the Medical Building are entitled to explain the concept of abortion to their children personally"; "this state has an interest in preventing the 'abuse' suffered by young children hearing the proscribed words just before they visit their doctors"; "children visiting the Medical Building cannot tune into a different station or tune out completely"].)
Although the Bering court concluded the content restriction did serve a compelling governmental interest, it nevertheless found the restriction too broad because it imposed a blanket restriction on speech, whether or not children were present. Consequently, the court remanded the case to the trial court to narrow the content restriction so that it would apply only when children were present. (721 P.2d at pp. 935-936.)
We decline to follow Bering on this point. Putting aside the issue whether the content restriction is invalid as a "prior restraint," we conclude that on this record the clinic has not shown that the content restriction served a compelling governmental interest. The evidence introduced below shows that the protesters often brought their children to the clinic, and that the offending words were used in Moreover, unlike the medical building in Bering--which offered pediatric, prenatal, and family health care--the building in this case contained only one medical office: the Planned Parenthood Clinic, which respondents themselves describe as offering "a full range of reproductive health services for men and women...." Thus, it appears that the clinic did not offer medical services to children. Consequently, on this record, we are not faced with the situation in Bering where the offending words, " '... by their very utterance ... harmed the doctor-patient relationship essential to the effective delivery of health care [to children].' " (Bering v. Share, supra, 721 P.2d at p. 933.) In addition, unlike Bering, there was no expert testimony in this case which tended to show that the offending words "inflicted trauma" upon the children who heard them. (Id., at pp. 933, 935-936.)
The dissent in Bering concluded that the content restriction did constitute a prior restraint, and that the restraint could only be upheld if "the communication restrained is constitutionally unprotected speech such as obscenity, incitement to acts of violence, or speech that directly threatens military security." (Bering v. Share, supra, 721 P.2d at p. 942 (dis. opn. of Dore, J.).) We decline to enter the prior restraint thicket. Instead we first consider whether the speech itself is constitutionally protected, because " '[w]here the speech in question is in all events guaranteed by the First Amendment, attributing that guarantee to the circumstance of prior restraint is at best irrelevant and often misleading.' " (Tribe, American Constitutional Law (2d ed. 1988) § 12-34, p. 1041, quoting Jeffries, Rethinking Prior Restraint, (1982) 92 Yale L.J. 409, 437.)
Finally, one of the primary justifications cited by the Bering court to support its conclusion that protection of children is a "compelling governmental interest" cuts the other way in this case. The Bering court noted that " 'the parents' claim to authority ... to direct the rearing of their children is basic in the structure of our society....' " (Bering v. Share, supra, 721 P.2d at p. 934, quoting Ginsberg v. New York (1968) 390 U.S. 629, 639, 88 S.Ct. 1274, 1280, 20 L.Ed.2d 195.) Based on this principle, the Bering court concluded that "parents of children visiting the Medical Building are entitled to explain the concept of abortion to their children personally, and only when they believe the children are able to understand it." (Bering v. Share, supra, at p. 934.) Here, by contrast, the injunction prevents the protesters from expressing their own views to their own children (albeit in limited circumstances).
We are not concerned here with limitations on "indecent" or quasi-obscene speech. (Compare Ginsberg v. New York, supra, 390 U.S. at pp. 634, 636, 643, 88 S.Ct. at pp. 1277, 1278, 1282; FCC v. Pacifica Foundation, supra, 438 U.S. at pp. 741, 755, 98 S.Ct. at pp. 3036, 3043 (conc. opn. of Powell, J.), both of which the court relied on in Bering v. Share, supra.) Instead, we are confronted with an attempt to limit political speech in its most raw and powerful form. The Supreme Court has stated that "a content-based restriction on political speech in a public forum ... must be subjected to the most exacting scrutiny." (Boos v. Barry (1988) 485 U.S. 312, 321, 108 S.Ct. 1157, 1164, 99 L.Ed.2d 333, emphasis in original.) This is because the right to political expression lies at the "core" of the First Amendment. (Meyer v. Grant (1988) 486 U.S. 414, 420, 108 S.Ct. 1886, 1891, 100 L.Ed.2d 425; Buckley v. Valeo (1975) 424 U.S. 1, 44-46, 96 S.Ct. 612, 646-648, 46 L.Ed.2d 659.)
There is no question that the limitation here restricts "core political speech." (Meyer v. Grant, supra, 486 U.S. at p. 420, 108 S.Ct. at p. 1891.) Indeed, abortion may be the political issue of the last 20 years. Further, "[t]he words 'murder', 'kill', and their derivatives play an essential role in the debate concerning abortion. To those opposed to abortion, the logical conclusion of that moral position is that abortions result in babies being killed or murdered. If the court were to deprive picketers of the words which most clearly [and powerfully] embody the moral position of those picketers, it would eviscerate completely the debate concerning abortion. Just as abortion proponents must be able to articulate their belief that abortion is constitutionally justified as an aspect of a woman's right to procreative freedom, [citation], so must abortion opponents be permitted to articulate their belief that abortion should not be permitted because it involves the taking of human life." (Bering v. Share, supra, 721 P.2d at p. 943 (dis. opn. of Dore, J.).) D. Disposition
To summarize, we strike paragraph 4 of the permanent injunction as an unconstitutional restriction on the content of appellants' speech. In all other respects, the judgment is affirmed.
Respondents and appellants shall each bear their own costs on appeal.
MERRILL and WERDEGAR, JJ., concur.