A state court order that barred abortion protesters from appearing at Jackson’s town square last year violated the protesters’ constitutional rights, the Wyoming Supreme Court ruled Tuesday.
In a lengthy 3-2 decision, the state Supreme Court ruled the temporary restraining order issued by District Judge Timothy Day violated the First Amendment rights of protesters with the group Operation Save America.
Dozens of members of Operation Save America, based in Concord, N.C., descended on Jackson last May with graphic signs of aborted fetuses that they showed around town.
The group said it picked Jackson for its campaign in an effort to make Wyoming the first state in which no doctors would provide abortions. The group targeted a family practitioner whom it said was the only doctor in the state to offer abortions.
Wondering why they do not wish this honor bestowed upon their native state?
The restraining order that Jackson secured from Day last year barred the protesters from appearing within two blocks of the town square. The town’s lawyer told Day that city police feared violence if the protesters came together with about 200 Boy Scouts and their families who were gathering for Elkfest, an annual auction of elk antlers.
The protesters weren’t alerted beforehand that the town was seeking the court order.
“Assuming the town had established a compelling interest in the protection of its youth and in maintaining the peace, we would nonetheless find the temporary restraining order unconstitutional,” Justice Michael Golden wrote for the court majority. “The town has not met its burden of establishing that the temporary restraining order ban was necessary to serve the town’s interest and that less restrictive measures would not have been adequate.”
Chief Justice Marilyn S. Kite and Justice William U. Hill wrote a dissent saying they believed the case was moot and that the constitutionality question shouldn’t have reached the court.
“No evidence was presented in this case that Operation Save America will return to Jackson and attempt to assemble or display posters during another scheduled event such as the Boy Scouts expo and auction or, in the event it does, that the town will again file for a temporary restraining order without providing notice and an opportunity to be heard,” Kite and Hill stated.
Rusty Thomas of Waco, Texas, is assistant director of operations for Operation Save America. He said Tuesday his group intends to return to Jackson next month. “I just got the news, and just tears of rejoicing,” he said of the court ruling. “The timing is incredible.”
Thomas said the group believes the ruling “strikes a blow for liberty and puts our government, both the federal and state authorities, on notice that the First Amendment is alive and well in the United States of America.”
Flip Benham, director of Operation Save America in Concord, said Tuesday the group has applied to the town of Jackson for permits to hand out materials next month but hasn’t received them yet.
“What they’ve done is put us off. They’ve said they’re going through new criteria for permits,” Benham said. He said the group’s experience in Jackson was the first time it has ever been restrained “from presenting the gospel.”
Attempts to reach town officials were not immediately successful Tuesday.
Audrey Cohen-Davis, lawyer for the town, argued before the Wyoming Supreme Court in November that it was proper for the town to secure the restraining order.
“Parents taking their Boy Scouts to the Elkfest event did not expect to have a group subjecting their children to such material,” Cohen-Davis said in November.
Jack Edwards, a lawyer in Etna, represented Operation Save America.
“I think it’s important to realize that the First Amendment, and the cases from the U.S. Supreme Court that have interpreted that amendment, were not to protect speech that people welcome and that people enjoy, but the basis for that amendment is to protect speech that causes arguments and dissent in the public square,” Edwards said Tuesday.
The state supreme court ruling comes just days after the state of Wyoming reached a settlement with another anti-abortion group, WyWatch Family Action.
In the agreement approved last week by U.S. District Judge Nancy Freudenthal of Cheyenne, Wyoming admitted it violated WyWatch’s constitutional rights by removing anti-abortion placards from a tunnel leading to the state Capitol during last year’s legislative session.
The state agreed to pay WyWatch $1 in nominal damages and $30,000 in attorney fees. WyWatch was represented by the Alliance Defense Fund, a national advocacy group for social conservatives.
Freudenthal allowed the American Civil Liberties Union to enter the WyWatch case to argue on the group’s behalf that the state had violated the group’s constitutional rights. Linda Burt, director of the Wyoming ACLU, said Tuesday that the courts decided both cases correctly by protecting public speech.
“While we disagree with both of the organizations involved in these cases, we firmly respect their right to discuss these issues in the public square,” Burt said. “The remedy for speech that you disagree with is more speech, and more debate and more information, and disallowing this kind of speech that you disagree with does not support that.”
