2nd US jurist rules against anti-vaccine protest law

A U.S. magistrate judge in San Jose enjoined a California law barring people from approaching others who are trying to get a COVID-19 vaccine, concluding that the statute is not narrowly drafted.

The Thursday night decision is the second ruling by a federal jurist against the California statute, which legislators said was aimed at protesters interfering with people trying to get vaccinated.

U.S. Magistrate Judge Nathanael Cousins and U.S. District Judge Dale A. Drozd both concluded in rulings on temporary restraining orders that the California law is based on the content of a protester's speech.

The law was passed by a two-thirds vote of the Legislature following a January incident outside Dodger Stadium, where protesters temporarily shut down a COVID-19 vaccination site.

Drozd's October order was a partial temporary restraining order but Cousins enjoined the entire law last week, at least for the time being.

Both judges maintained the law prohibits some speech but not others and also chills the speech of anyone who wants to hand out leaflets or tell anyone of their opposition to the vaccines.

"What SB 742 prohibits is approaching within 30 feet with the purpose of doing those things within 100 feet of any vaccination site," U.S. Magistrate Judge Nathanael Cousins wrote. Aubin et al. v. Bonta, 21-CV-07938 (N.D. Cal., filed Oct. 10, 2021).

"It is not at all clear how a given law enforcement official is supposed to determine, possibly from a significant distance, whether someone is approaching with the lawful purposes of educating or leafleting, as opposed to the unlawful purpose of intimidating or interfering," he added.

The plaintiffs before Drozd are now seeking a preliminary injunction and a similar injunction will be sought before Cousins.

Los Gatos attorney Michael D. Millen, who represents three anti-abortion activists who say they are unable to demonstrate in front of abortion providers because they also are COVID-19 vaccination sites, praised the ruling.

"We're trying to help the Legislature," he said in a telephone interview Monday. "Don't pick favorite speakers."

He said the 30-foot rule is impractical, as it forces demonstrators to yell at people just to get their attention, often outside retail stores like pharmacies.

Deputy Attorney General Kristin A. Liska wrote in opposition to an anti-abortion group's summary judgment motion that the law was targeting a "narrow segment of expressive activity -- approaching unwilling patients to injure, intimidate, harass, obstruct or interfere with them."

"The Legislature was clear that it was trying to balance the free speech rights of protesters with the right of patients to obtain vaccines, particularly COVID-19 vaccines, free from obstruction," she added. Right to Life of Central California v. Bonta, 21-CV- 01512 (E.D. Cal., filed Oct. 13, 2021).

A third case is in federal court. Gupta et al. v. Bonta, 21-CV-08104 (N.D. Cal., filed Oct. 12, 2021).

A spokesperson for Bonta said Monday, "The Attorney General will continue to defend the law and work to ensure that any Californian who would like to be vaccinated is able to obtain their COVID-19 vaccine with-out intimidation."