*1 right right bring Brownings’ § 51- to that action a substantive supra, retroactively Enger (c) operate Erwin, to bar. cannot 754-755; 1-1 supra, Hauser, at 249 Ga. 514-515. Brown atGa. injury, Brownings’ of the cause action accrued at time (c). years § Thus, 51-1-11 to the effective date of two before some (c) retroactively Brownings’ apply substantive to defeat the § 51-1-11 bring right would be unconstitutional. Accord- their cause action (c) may applied ingly, bar § 51-1-11 not be hold that we Brownings’ claim. question All Justices concur. answered.
Certified
Decided March Terry Bryant Dillard, Bower, Dillard, Bower, H. & A. Landers appellants. Jr., for appellee. Whelchel, Thomas
J. HIRSH v. CITY OF ATLANTA et al. S90A1387. S90A1494.WILLIAMS v. CITY OF ATLANTA. Justice. Benham, City having Atlanta, declared the actions of certain sought granted injunc- nuisance, and was to be a against Operation individuals, Rescue, and Jane several named any acting Doe, of the described as others concert with and John complained Contending in the of conduct. that as- named defendants pects of free violate their First Amendment speech, appellant appellant Hirsh, defendant, Williams, a named entry appeal Doe,” a “John from of certain who asserted he was portions injunction.1 following portions injunction: Appellants 13-paragraph take issue demonstrations, pickets protests person 50 feet of 3. No shall conduct or within any facility performed. property City line of within the of Atlanta at which abortions pass person seeking display sign first leaflet or to or 5. No handbill education, way person, in the or sidewalk oral with a second any property any facility feet from which abortions are area within radius of 50 line of at performed any parking in the Atlanta lot used or within a radius of 50 feet of patients, facilities, approach employees, practitioners medical of such shall invitees person, person gives than five feet such unless oral consent closer second such second Immediately request person, upon do shall fail so. such second no such first alternative, person, or, to discontinue withdraw to least five feet such second engaging passing displaying sign all protest, leaflet such efforts at such or handbill or such “stop,” counseling. limitation, imperative education or Without statements such hearing injunction, city presented At the evidence that appellant Hirsh and another named defendant informed the Atlanta July city police in 1988 of their intention to blockade different facil- ity providing city day abortions within the limits each of the Demo- police targeted cratic National Convention. Neither the nor facil- ity given prior was ever notice of the site or the time of the *2 — July September police defendants’ actions. From en- countered the defendants and their followers 22 times at five different primary operation locations. The defendants’ method of towas as- large group people designated early semble a aat in location the morning transport group facility hours and the massed to a certain city. Upon group within the destination, arrival at their the tres- passed private property ingress to blockade the means of to and egress ing targeted building locking sitting ly- from the arms and and Emergency entrances,
down. as well as entrances to the clinics trapping persons areas, and the blockaded, administrative were building denying physicians, within the as well as access to those protestors staff, and clients who wished to enter. The refused to leave agents property when ordered to do so authorized owner by police. private group property, and When denied access to the the public right-of-way. police blocked the When in barricades were place, protestors separating crawled under the barricades them from targeted facility. placed group arrest, the When under members accompany police voluntarily limp, thereby refused to and went forc- ing police carry drag police officers to or them to vehicles. Until the protestors by arresting targeted facility were officers, removed was, effect, in shut down. The executive director of health one center facility Operation target testified that her had been the Rescue ac- tivity during period July over 100 times the 20-month 1988 to hearing, the date of the March 1990. “withdraw,” off,” away,” alone,” “get “back me “leave shall be sufficient to constitute such
request. prohibition apply any moving This shall also whenever such second to such parking facilities, parking lots from such or to such facilities from such lots. prohibited by order, 7. demonstrating, picketing, protesting Unless otherwise this and permitted vicinity facility any performed shall be in the at which in the abortions are only participants per of Atlanta as follows: number of shall not exceed 20 abortion facil- ity; participants enough apart any per- shall remain far from each other and from other impede ingress son egress driveway so as not to parking block or or to lot such or by patients, friends, employees, practitioners, used their families and medical or invitees facilities, any provisions may said or sign to violate no of this order. Further that ingress impede egress facility driveway sign used to block or parking to such lot and passer-by shall induce a to honk or blow their horn. Operation officers, agents, representatives, That defendant Rescue and its working individual named defendants and those in concert with them are directed and any organization ordered to instruct all members working such them not and all those participate enjoined to of the activities in this order. facility, protes- targeted
Upon at a of an automobile the arrival anyone making car, it difficult for exit the ve- tors surrounded patient Upon emerging swarmed, car, was became hicle. target protestors, photographed epithets, of verbal was crushing protestors go through crowd order to forced to was patient facility. occasion, a had to be lifted at least one On enter protestors gain bodily by police in order access to the over the protes- facility. director testified that the A clinic executive blockaded anxiety, gain patients those who did much activities caused tors’ emotionally distraught. visibly upset Patients’ and some access were impediments they pressure pulse rates were elevated blood entry, gain subjecting to addi- the women had had to overcome performed abortion, under local anesthe- risk tional health should patient Thus, sia, state. addi- while was such a shaken be done patient elapse down in order for a calm time had to tional permit begin. sufficiently However, care to the sounds of medical pro- waiting, counseling, in the clinic’s could be heard physicians recovery disrupting cedure, rooms, all as- staff impediment pects care-giving, of medical as well further *3 patient’s relaxed a state. city’s of the detention facilities testified that arrests director immediately preceding protests days the been made at the two
had hearing, bringing approximately to the total number such arrests city persons 1,320. had forced the to The sheer number arrested temporary jail create recreation. facilities and to cancel inmate visitation and many give refused to correct names
Because stay protes- during booking process, average length the of each days, city jail in to tor increased 5.21 with a cost to protestors. $272,076 to house the incarcerated city published under the introduced into evidence literature Operation people join urging in name of the ber 1989.There was evidence that an to come to Atlanta to Rescue protests July 1988, 1988, 1988, Decem- October December
Operation Rescue recorded tele- phone message encouraged picket targeted a callers attending physician prosecuting solicitor, and in- homes of an and a into formed them of at which be indoctrinated rallies would during protests methods to be used at the facilities. city empowered city
1. The to define a nui- Atlanta charter (b), provide p. 2188, 1973, § sance and its L. 1-102 abatement. Ga. (31). Appendix p. September City I, 2252, § 1988, In the Atlanta passed finding actions, resolution, Council that defendants’ designed curity, having public endangering to and had the se- effect of safety, City
health, citizens, consti- and welfare of its Attorney nuisance, in- tuted a seek authorized
25 junctive against relief the defendants.2 Appellants portions contend that the which (see
they upon singled supra) impermissibly infringe 1, have out footnote right speech.3 their First free Amendment Since historically “public streets and sidewalks have been considered fo- rums,” government’s ability permissibly expressive restrict very government may
conduct is able strictions “are limited: the enforce reason place, regulations long and manner as as the re narrowly
content-neutral,
tailored to serve
significant government
open ample
interest,
and leave
al
[Cits.] [United
ternative channels of communication.”
States
Grace,
171,
1702,
461 U. S.
177
SC
75 LE2d
a)
speech regulations
justi-
“Content neutral”
are those that “are
speech.”
regulated
fied without reference to the content of the
Vir-
ginia Pharmacy
Virginia
Bd.
Council,
Citizens Consumer
425
346) (1976).
U. S.
SC
LE2d
Inasmuch as the
injunction applies irrespective
subject
matter
communi-
single
particular
cated and does not
out a
content of
for better
(see id.),
or worse
treatment
it
content-neutral. See
N. Y.
also
State
Terry,
(2d
1989);
NOW v.
886 F2d
Cir.
Portland Feminist
(9th
Women’sHealth Ctr. v. Advocates
Life, 859 F2d
Cir.
1988).
b)
questioned
city government
signifi-
It cannot be
that the
has a
maintaining public safety by being
cant
interest
able to control
disperse
traffic on urban streets and
as
sidewalks well
able to
personnel
city
throughout
having
its law enforcement
instead of
assign large
potential targets
numbers of officersto surround
of significant
orderly
activities;
defendants’
interest
the continued
operation
pretrial
facility;
significant
of its
detention
interest
significant
services;
of citizens to obtain desired medical
and a
operation
lawful,
interest
the continued
licensed businesses and
*4
2 Seeking
injunction
enjoin
existing
public nuisance,
though
an
an
or threatened
even
punishable
laws,
the nuisance constitutes conduct
Evans
under the criminal
is authorized.
Corp.
Slaton,
(3)
712) (1971).
Theatre
26 court was authorized conclude the trial
medical facilities. sig- endangered pre-injunction all of those the defendants actions of governmental interests. nificant
c) requirement nar- that the restrictions be In to meet the order significant government rowly interests and leave tailored to serve the ample open communication, the alternative channels of ban Para- pickets, protests graph property demonstrations, within 50 feet the facility providing abortions must be read con- line of a permits Paragraph injunction, junction which certain with 7 of the vicinity protesting demonstrating, picketing, ity “in of” facil- and the performed protestors if the number is at which abortions are enough apart far from each other so limited to 20 and not remain impede entry driveway, to or to block or exit the its impediment. parking sign lot, is such an and no used effect prior by pro- Thus, viding the the restricts defendants’ behavior protestors overwhelming an number a “free zone” which impede provision harassing, intimi- the safe of medical care cannot dating, assaulting facility physicians, staff, and clients. See Port- supra Life, Health Ctr. v. Advocates land Feminist Women’s “ample Yet, channels communi- 686. cation” are at the same alternative open by vicinity permitting left 20 demonstrators “in the must, of,” i.e., within 50-foot area. The demonstrators portions injunction regulating course, abide noise other and behavior.
Paragraph spatially 5 of limited is area facility’s property within 50 feet of the of line and an area within 50 feet facility patterned parking patients. It lot used staff (§ 5-3-10), Boulder, after a Colorado ordinance and reinforces the 50- Paragraph creating “free foot zone” established while a restric- beyond facility’s parking if the 50-foot area lot is located be- yond the 50-foot “free zone.” the “free zone” the area Within surrounding parking lot, one on streets or sidewalks may display sign, leaflet, distribute a in oral edu- person cation, or another five feet of the with within person. second without the This affords consent of second patient, physician, employee ability clinic to exit a vehicle approach jostled, swarmed, the site of medical care without yelled range by protestors. and have the at from close While express message, zone” is five-foot “bubble permissible appropriate use in means for the trial court to (cid:127)balancing protestors’ expression patients’ freedom rights privacy. Note, of access to chosen “Too medical care and to Protesting Close for Comfort: Outside Medical Facilities.” Harvard L. Rev. 1856. injunctive paragraph appellants ex- The final take with which
27 ception requires the named defendants and the Jane and John Does Operation organization all to instruct members of the Rescue and all working engage participate with them those not to or of the enjoined Requiring appellants colleagues activities. to tell their enjoined forcing appel- not followers activities is not religious politi- consciences, beliefs, lants violate their or moral or philosophies requires Rather, cal and condone it abortion. them to colleagues make their and followers of time, aware the reasonable place, imposed upon and manner restrictions their First Amendment rights. persons It is also means which the court can ensure that “those participation
in active concert or with” the defendants re- injunction ceive of the notice so that will be bound it. OCGA (d). § 9-11-65 Appellants paragraphs injunc- contend that the noted Georgia guarantee speech4 tion violate the constitutional of free 5and legislative that act, issuance the trial court constituted a thereby violating separation powers doctrine found in the state constitution.6 guarantee speech
While the state constitutional of free is abso protects, protect speech, lute not ray it it as what does not all for it does protect liberty.” that which is “an abuse of that K. Gordon Mur Floyd, (1962). 207) Productions 217 Ga. 791 SE2d judicial legislative may infringe upon pro Furthermore, or action expression if tected important government govern interest;
“it furthers an if the suppression speech; ment interest is unrelated to the speech greater if the incidental restriction of is no than is [Harris essential to furtherance v. En interest.” Systems, tertainment 259 Ga. imposed by manner,
The restrictions relate to the place appellants’ rights. exercise of their First Amendment (no only signs inducing passing content-related restriction motor- zone”) permitted ists to honk their horns are within the 50-foot “free important government interest, furthers an loud noises or avoid injures, endangers safety disturbs, sound which the health and passed speech press. “No law shall curtail or the freedom of restrain Every person may write, speak, publish subjects responsi sentiments on but shall be all liberty.” Const., I, I, ble for the abuse of that 1983 Ga. Art. Sec. Par. V. legislative, judicial, powers separate “The dis executive shall forever remain tinct; person discharging and no the duties of one shall exercise the func- same time except provided.” I, II, Const., tions of either of the others as herein Art Par. 1983 Ga. Sec. III. complicate employee, physician
any patient, the medical so as to Georgia safeguard provided. of free constitutional service speech is restriction on since the incidental violated not important govern- greater to the furtherance than is essential interest. mental to a does not amount court’s issuance of The trial judicial legislative power usurpation a member *6 enjoin public nuisance, trial court was authorized branch. The constitutionally-pro- had herein involved nuisance and the power than did no more exercise its The trial court tected elements. to mold decree so exigencies § OCGA 23- meet the of the case. as to 4-31. system Liberty only in a of law which can be exercised
safeguards speech passes peaceful [0]ur . . constitutional command of free order. . assembly is and fundamental and encom-
and basic important protest, preserva- so social society. [Cox in a democratic of freedoms treasured Louisiana, SC 13 LE2d 379 U. S. supports The the defendants lanta. the trial court’s decision that the actions evidence safeguard of At- threatened the order permits appellants injunction by entered the trial court by speech protest, engaging lim- in social exercise of free place By only doing reasonable and manner restrictions. ited necessary preserve injunction safeguards so, also the order liberty, including appellants’ rights of free continued exercise assembly. injunction, therefore, hold, We since challenge urged subject herein, construed is not to the constitutional judg- by appellants, there is no basis for reversal of the trial court’s ment. Judgment except concur, Smith, J.,P. All the Justices affirmed. Fletcher, J., who dissent. dissenting. Justice, Fletcher, parties majority point out,
As the and the below the conduct clearly illegal protected some of the was demonstrators not only pick- peaceful Amendment; First involved conduct of others eting, protected conduct which the First Amendment. ma- jority opinion justice system inadequacies details the of the criminal preventing illegal addressing unprotected conduct of some my legal opinion, entanglement illegal demonstrators.6 In sys- justice point 6 Atwhat do the courts decide that due to the criminal the failure of injunction conduct this case has resulted that is overbroad. attempted remedy The trial court has to fashion a civil which will criminal However, eliminate the conduct the demonstrators. in- junction peaceful traditionally non-consensual, also curtails activities protests, and, result, associated with as a runs afoul of the First peaceful picketing, leafletting, Amendment. The displaying restricts signs and verbal communication of beliefs to an area property facility. from the least 50 feet line abortion undisputed general proposition, “peaceful picket- that, It is and as a ing leafletting expressive involving ‘speech’ pro- activities tected Grace, the First Amendment.” United States v. 461 U. S. 736) (1983). agree SC 75 LE2d I cannot with the majority’s narrowly enough conclusion that the is tailored protect majority points First Amendment interests. The out that surrounding park-
[w]ithin the “free zone” and the area ing may lot, no one streets sidewalks dis- display sign, leaflet, tribute a oral ed- person ucation, or another within 5 feet per- of the second without the consent of second son.
Majority p. procedure agree majority pre- 26. I with the that this will swarming, jostling yelling by protestors. deny vent the fringes It will also protestors in to free in- that the virtually public. on all non-consensual contact with the portion injunction restricting
I would also note that the protestors away any property any to zones 50 feet from line of facility performed, any parking at which abortions are lots used patients, employees, practitioners medical and invitees of such facili- “regulation place narrowly ties, is not a of . . . . . . tailored to serve significant government Perry Perry v. interest.” Ed. Assn. Local Ed. (1983). 794) Many Assn., 460 U. S. SC 74 LE2d together streets rights-of-way with the sidewalks that abut them lie within public prop- that are 50 in feet or less width. With erty lying within a reasonable distance to the facili- of entrances permitted injunc- ties on which not are now does this deprive protestors peaceful of in forum which to exercise rights speech? overly their the free contained broad restrictions displacement have resulted to areas rights in which no effective exercise of their First Amendment can made. geographic are restrictions in this case demonstrators
tem, they permit infringement rights? will on First Amendment majority. In Portland greater the cases cited than far Inc., Life, Advocates 859 F2d Ctr. v. Health Women’s
Feminist for 1988), engaged (9th much of same the demonstrators Cir. 681 criminal narrowly present However, in a in this case. that is conduct “obstructing enjoined free and di- order, court the trial tailored any person” passage abortion and demon- into the rect rectangular distributing strating “in a zone that extends literature twelve and one-half feet door to the curb and front the'Center’s door to the the middle the Center’s of a line from either side on curb.” Terry, In Y. State NOW 886 F2d N. Id. at 684. (2nd 1989), only enjoined demonstrators from cer- the trial court Cir. “trespassing aspects on, and from block- sidewalk tain any facility obstructing ingress egress ing at which into or performed.” abortions injunction in the case before us is I would that the Because hold majority opinion. respectfully I overbroad, am author- I dissent to the joins Presiding Smith this dissent. state that Justice ized to March Decided
Jay appellants. Sekulow, Alan Jr., Johnson, Brooks, Harris, P. Joe M. Bruce
Marva Jones Begner, appel- Smith, Williams, L. I. Yolanda F. Michael Alan lees. BEST THE
S90A1498. STATE. Justice. Bell, Gary Best was convicted of the malice murder Thomas Anthony imprisonment. Moore, He was and was to life also sentenced aggravated of, for, Earl assault of Gra- convicted and sentenced possession possession felon; ham, Sr.; of a a firearm a convicted (the Moore); felony during murder firearm possession the commission of a (the felony aggra- during firearm of a the commission of *8 Graham).1 appeals, vated assault of Best we affirm. new trial. On trial verdict was Best. was certified 1990. On transcript On November September crimes occurred on December returned July on the clerk of February 7, 27, 1989, on 1990, November Best filed his Best moved for a new trial.' The court 1990. On June trial court. appeal 2, notice was 4, The record was filed On November 1988. Best was indicted on 26, 1990, submitted appeal, the trial court denied 16, decision without oral 1989, on in this August reporter trial Court April 8, 1990, court sentenced completed 5, motion August the record 1989. argument.