Public safety concerns obligated police to ask for restriction, chief says.
An attorney for Operation Save America filed an appeal last week of 9th District Judge Timothy Day's order prohibiting group members from assembling or displaying graphic photos May 21 on Town Square.
The group violated the restraining order, pastor Mark Holick said, but the appeal is necessary because group members think police violated the antiabortion activists' constitutional rights.
"We have to challenge the restraining order, which limited our First Amendment rights and was content specific," Holick said in a phone interview Tuesday. "And it was the Jackson police's reason for arresting us."
Holick, pastor of the Wichita, Kan.based Spirit One Christian Ministries, and activist Chet Gallagher were arrested May 21 and charged with misdemeanor violating a court order. They have appearances set for Thursday in 9th Circuit Court, but Holick said they are hoping to avoid court and to have their attorney file their pleas.
The appeal is the first step in a process, Holick said, though he wasn't sure what the next step might be.
If the Wyoming Supreme Court were to find Day's order violated group members' rights, their attorney might file a motion to dismiss the criminal charges, Holick said.
The order barred Operation Save America from "assembling on the Jackson Town Square without a permit or holding posters/signs or materials of any graphic nature (e.g., aborted fetus pictures) on the Town Square or within a two-block radius thereof."
When police served Holick and other group members with the order, an officer told them they couldn't talk about abortion or Dr. Brent Blue, the target of their recent anti-abortion protest, Holick said. Police also told group members they couldn't pass out fliers about abortion, he said.
Free speech vs. public safety "You can't silence somebody's speech just because you don't like what they're saying," Holick said.
Jackson Police Chief Todd Smith said Tuesday that requesting the order was within the legal realm of options available to law enforcement.
"I think law enforcement had the obligation to make the request if they felt there was a public safety concern," he said.
Smith declined to make additional comments because of pending litigation, he said.
In an affidavit supporting a request for the temporary retraining order, police Lt. Bob Gilliam said he feared allowing the group to display graphic photographs in front of children during the 44th annual Boy Scout Elk Antler Auction would incite violence against the group.
"Not only do I believe this will occur, but the situation presents a significant law enforcement challenge in policing the event and maintaining peace and public order," Gilliam's affidavit says.
Day noted in the order that "one incident of violence has already occurred."
Jackson resident Mike Randall was arrested May 20 on a misdemeanor reckless endangering charge alleging he clipped a protester's sign as the protester walked across West Broadway.
Randall pleaded not guilty, and his case is pending in 9th Circuit Court.
Limited protections The First Amendment provides only limited protections of free speech, Town Attorney Audrey Cohen-Davis said in a petition for the order.
The government may place "reasonable, content-neutral time, place and manner restrictions" on demonstrations in traditional public forums, according to case law. Any restriction of "expressive content" must serve a compelling interest and be narrowly drawn to achieve that end, court records say.
Day agreed with Cohen-Davis' argument: "The court finds that there is a compelling interest to protect the 200-plus children and Boy Scouts attending the ElkFest from being exposed to protesters holding and displaying large signs containing pictures of aborted fetuses.
"Further," Day ruled, "the court finds that the town's proposed restriction is narrowly tailored to protect and serve that compelling state interest in that it is restricting Operation Save America from its protest activities for a limited number of hours within a limited geographic area in the town of Jackson."
The "narrowly drawn" restrictions applied to a two-block area north of Pearl Avenue, west of Willow Street, south of Gill Avenue and east of Milward Street between 5 a.m. and 5 p.m. May 21.
The group would have been permitted to protest in other public places throughout town, court records say.
Day also found that state law allows cities and towns to regulate assemblies if they disturb or jeopardize the public health, safety, peace or morality in any public or private place.
The appeal isn't the first time Holick and Operation Save America have pressed their case in court.
In 2008, Holick sued Wichita and two of its police officers in the U.S. District Court of Kansas over his arrest in June 2007 outside a gay pride event.
In a consent order dismissing the case, Judge Thomas Marten said Holick was preparing to share his religious views on a public sidewalk outside an arena where the event was to take place. Within five minutes of arriving, police threatened Holick with arrest if he refused to leave and then arrested him, the order says.
The criminal charges filed against Holick in the case were dismissed, the order says.
The city paid Holick $11,700 for the unlawful arrest and $2,500 for his attorney's fees.
In the Kansas case, police did not have a restraining order prohibiting Holick from protesting or expressing his views in the area of the Gay Pride event.