Free Speech Defense Barred From Trials : Judge Denies Anti-Abortion Activists Constitutional Plea on Trespass Charges

Anti-abortion activists facing trespassing charges from protests at three San Diego-area clinics will not be allowed to use the constitutional guarantee of free speech as a defense, a judge ruled Wednesday.

San Diego Municipal Judge John M. Thompson’s order will affect 112 of the 134 activists charged with trespass at clinic protests April 8, April 29 and June 10, said James M. Bishop, head deputy city attorney.

The ruling marked the second time Thompson has denied the protesters use of a specific defense. On Aug. 4, he ruled that all of the activists facing misdemeanor charges would not able to put on a “necessity” defense, under which they would try to show that the protests were necessary to stop abortions.

In addition to trespassing, charges against the protesters include failure to disperse, resisting arrest and eight conspiracy charges, Bishop said. Some demonstrators face multiple charges.

There are no felony charges, Bishop said.

Thompson on Wednesday ordered that lawyers will not be allowed to question prospective jurors about their views on the First Amendment’s free speech guarantees and that the protesters cannot say they were at the clinics to exercise free speech.

Under the ruling, however, defense lawyers may still be able to claim at the end of the case, in their closing arguments to the jury, that the protesters were exercising free speech rights. It depends on how the judge hearing the case views the evidence, prosecutors said.

But prosecutors said they will be surprised if jurors in any of the series of cases--which begin next week--hear that argument.

“Our position is, no, this is not speech activity, this is conduct,” Bishop said. The law is “pretty clear,” he said, “that if your conduct is interfering with a business, physically interfering with a business, then it’s not going to be protected. And (the protesters) were shutting the clinics down, completely.”

Gregory Anthony, the lead defense attorney for the anti-abortion activists, did not return a phone call Wednesday to his Los Angeles office.

Thompson ordered Tuesday that the trial of the eight alleged conspirators go first, beginning next Wednesday. Trial of the others will follow consecutively, in groups of five, he said.