Abortion

Heckler's Veto: $1.5 Million Nuisance Verdict Against Abortion Clinic, Chiefly Based on Actions of Protesters and Arsonists

The same logic could apply when churches, synagogues, mosques, bookstores, gun stores, fur stores, and similar places are targeted by their enemies. We've filed an amicus brief before the Georgia Court of Appeals, in support of getting the verdict reversed.

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The case in McBrayer v. Governors Ridge Property Owners Ass'n, Inc., and our friend-of-the-court brief supporting reversing the judgment was filed by our invaluable pro bono local counsel Darren Summerville (many thanks to him!), on behalf of amici

  • Profs. Thomas C. Arthur (Emory), Michael J. Broyde (Emory), Nicholas Johnson (Fordham), Thomas E. Kadri (Georgia), Hillel Y. Levin (Georgia), Dean Lyrissa Lidsky (Missouri), Clare Norins (Georgia), David F. Partlett (Emory), Jonathan Peters (Georgia), Michael Perry (Emory), Glenn Harlan Reynolds (Tennessee), Ani B. Satz (Emory), Julie Seaman (Emory), Eric Segall (Georgia State), Fred O. Smith (Emory), Alexander Volokh (Emory), Camilla E. Watson (Georgia), Sonja R. West (Georgia), Barbara Woodhouse (Emory), and me (UCLA), plus
  • the Firearms Policy Coalition and
  • the Georgia First Amendment Foundation.

A nice mix, if I do say so myself, especially given the argument we are making; thanks to all of them for joining, to UCLA law student Madison Way for her help with the brief, and, as always, to Scott & Cyan Banister, whose support makes our UCLA Amicus Brief Clinic possible.

First, from the Marietta Daily Journal (Ross Williams), describing the basis for the $1.5 million verdict:

Alpha OB/GYN … for years the target of sign-waving protesters, and was even the victim of arson in 2012. It closed in 2015, according to court records.

In 2013, the Governor's Ridge Property Owners' Association filed suit against the clinic and owner Dr. Daniel McBrayer, arguing the clinic was a nuisance and violated the association's covenants.

In court filings, the office park association's attorneys said the clinic "brought unwanted attention to the other owners, greatly embarrassing and distressing them, the protests of anti-abortion picketers, who, among other things displayed large placards of terminated fetuses."

[There had also been an arson attack on the clinic, and t]he attorneys also said their clients feared for their safety if another arson or other attack were to be carried out. Another clinic McBrayer worked at in Sandy Springs was bombed in 1997 by Olympic bomber Eric Robert Rudolph….

There were some allegations of misconduct by clinic patients and the people accompanying them (e.g., that some of them "loitered, littered, urinated and defecated in the common areas"), but the bulk of the arguments focused on the harms caused by the protesters and by the potential arsonists or bombers.

You can see the party briefs here, here, and here; Here is the Summary of the Argument from our amicus brief (we focus on the nuisance claim rather than on the violation of the covenants, because the covenants claim is based on the nuisance claim, and the parties likewise focused on the nuisance issue):

Under the lower court's reasoning, many controversial businesses and organizations—churches, synagogues, mosques, bookstores, gun stores, political party offices, and more—may face economic ruin and be forced to shut down because they are targeted by protesters or criminals (or are even just morally disapproved of by their neighbors, despite being completely legal). Opponents could picket or attack those entities until neighbors file a nuisance lawsuit, forcing the opponents' targets to either pay massive damages or to abate the nuisance by closing up shop, which is the opponents' goal.

This sort of heckler's veto is inconsistent with Georgia law, which generally does not hold businesses liable for behavior of third parties that it cannot control, and which generally requires a showing that a nuisance was proximately caused by defendants rather than by the supervening acts of third parties. Indeed, the lower court's decision creates incentives for people to commit crimes; and it undermines the legal and constitutional rights of law-abiding businesses and their clients. The decision should be reversed.

And here's the Argument:

[I.] Dr. McBrayer should not be held liable for harms caused by his political enemies

[A.] Allowing liability against McBrayer would justify liability against a wide range of legal, constitutionally protected businesses

Many religious, political, social, and commercial organizations and people are targeted by opponents for repeated protests, and some are targeted for violence. These include:

  • Synagogues, g., Gerber v. Herskovitz, No. 19-13726, 2020 WL 4816145 (E.D. Mich. Aug. 19, 2020)(weekly picketing, for over 15 years), appealed, No. 20-01870 (filed Sept. 9, 2020); Campbell Robertson, Christopher Mele & Sabrina Tavernise, 11 Killed in Synagogue Massacre; Suspect Charged With 29 Counts, N.Y. Times, Oct. 27, 2018 (mass shooting).
  • Mosques, g., Tom Dart, Protesters Decry Islam Outside Phoenix Mosque, Guardian (UK), Oct. 10, 2015("gathering of more than 120 demonstrators on either side of the issue, many carrying weapons"); Transcript, CNN, Anderson Cooper, 360 Degrees, Aug. 11, 2010 (five different protests outside mosques) (available on LEXIS); United States v. Hari, No. 18-cr-150-1 (DWF/HB), 2019 WL 7838275 (D. Minn. Oct. 21, 2019) (bombing).
  • Churches, g., Survivors Network of Those Abused by Priests, Inc. v. Joyce, 779 F.3d 785, 787 (8th Cir. 2015)("regular[]" picketing outside Catholic church); St. John's Church in the Wilderness v. Scott, 296 P.3d 273, 275 (Colo. Ct. App. 2012) (picketing outside Episcopal church); Federal Sentencing for St. Landry Parish Church Arsonist Continued to Monday, KATC-3 (ABC), Oct. 30, 2020 (arson of historically black church); Church Arson Act, 18 U.S.C. § 247(a)(2) (federal statute enacted precisely because of a spate of arson of churches).
  • Gun stores, g., Marwa Eltagouri, Riverdale Gun Shop to Be Target of Protest, Chi. Trib., Sept. 6, 2014(picketing organized by the Brady Center, a prominent pro-gun-control organization); Animal Rights Activists, Hunters Face Off in Hyannis, Boston Globe, Feb. 11, 2018 ("Hunters and gun rights activists traded jeers with animal rights advocates picketing outside a gun shop on Barnstable Road on Saturday to voice opposition to what the store is calling its 'first annual Coyote Contest.'").

  • Bookstores, g., United States v. Bagaric, 706 F.2d 42, 66 (2d Cir. 1983)(bombing of a pro-Yugoslav book­store, allegedly by a Croatian nationalist), abrogated by Nat'l Org. for Women, Inc. v. Scheidler, 510 U.S. 249 (1994); "Drag Queen Story Hour" Raises Concerns in New Port Richey—For Supporters and Protestors Alike, Tampa Bay Times, Aug. 26, 2019 (protests outside bookstore); Jaclyn Reiss, A Drag Queen Story Hour is Coming to Fall River's Library — And Now a Group is Planning to Protest It, Boston Globe, May 30, 2019 (several protests nationwide, including at a Maine bookstore); Why People Flinch When White Nationalists Stage a Protest at a Bookstore, Peoria Journal Star, May 1, 2019; Spain: 7 Suspected Jihadists Jailed, Some Discussed Targeting Jewish Bookstore in Barcelona, AP, Apr. 10, 2015;  Jason Boog, Conservative Activists Threaten To Burn Berkeley Bookstore, Publishers Weekly, Mar. 8, 2018 (threats against pro-Communist bookstore); Petra Mayer, 'American Dirt' Publisher Cancels Author Tour After Threats, NPR, Jan. 29, 2020 ("Flatiron Books, publisher of the controversial new novel American Dirt, has cancelled the remainder of author Jeanine Cummins' book tour after what it called 'specific threats to booksellers and the author.'").
  • Political organizations and political leaders' homes, g., People Rally Outside Governor's Mansion over Reopening of Some Businesses, WSB-TV, Apr. 24, 2020; Black Live[s] Matter Demonstrators Hold Overnight Rally in Front of Georgia Governor's Mansion, Fox 5 Atlanta, June 19, 2020; Avery Anapol, NRA Lobbyist Says His Home Has Been Vandalized Twice, The Hill, Apr. 21, 2018; Patricio G. Balona, Republican Party Headquarters in Volusia County Vandalized by Gunfire, Jacksonville.com, Oct. 29, 2018; Greene County Democratic Party Headquarters Shot at Overnight, WDTN-TV, June 1, 2020.
  • Fur stores and stores that sell down jackets, g., David Syrek, In Graphic Mag Mile Protest, PETA Calls out Canada Goose for Using Down and Fur to Make Its Pricey Parkas, Chi. Trib., Oct. 2, 2020; Laura Zuckerman, Animal Group Claims It Set Fire to Idaho Fur Store, Reuters, Sept. 26, 2011.
  • Food stores that sell certain kinds of meat products, g., Michelle Krezter, PETA Protests at Whole Foods: Reduce Suffering; Don't Just Lie About It, People for the Ethical Treatment of Animals, Sept. 24, 2015(protests outside a market based on allegations that one of the market's pork suppliers mistreated its pigs); Alexandra Deabler, Protesters Call for Restaurant to Remove Foie Gras from Menu: 'It's Not Food, It's Violence', Fox News, July 24, 2018 (protests outside of a restaurant that sold foie gras); A.L.F. Takes Credit For Fire at Utah Foie Gras Restaurant, Animal Liberation Front Online, July 7, 2010.
  • Businesses whose employees are the targets of violent stalkers or jealous exes, or perhaps even the targets themselves, g., Rojas v. Diaz, No. B144346, 2002 WL 1292996, *2-*3 (Cal. Ct. App. June 12, 2002)(rejecting negligence claim brought by family of gardener who was shot when an abusive husband came to a house where his wife was temporarily staying); Apolinar v. Thompson, 844 S.W.2d 262, 263–64 (Tex. App. 1992) (allowing failure-to-warn claim brought by housesitter who was shot by someone who had earlier threatened the homeowner); Faulkner v. Lopez, No. HHBCV01511200, 2006 WL 2949070, at *4–*5 (Conn. Super. Ct. Sept. 29, 2006) (rejecting failure-to-warn claim brought by visitors who were shot by her abusive ex-boyfriend); Nicole Santa Cruz, Mass Slaying's Effect on Seal Beach to Figure in Death Penalty Bid, L.A. Times, May 3, 2012 (describing Seal Beach nail salon mass shooting, in which murderer was ex-husband of one employee, had a long criminal history, and had threatened to shoot his wife in one earlier incident).
  • Government agencies, which are generally liable for nuisance when their actions cause damages to neighboring property, City of Thomasville v. Shank, 263 Ga. 624, 624 (1993), and which have been targeted by protesters—and occasionally vandals or even arsonists—in cases too numerous to mention.

Some of this behavior by the targets' adversaries may be constitutionally protected. (Of course, nothing in this brief condemns peaceful, lawful protesting.) Some of it may be criminal. But in any event, under the plaintiffs' theory all these organizations could be driven out of business (and some individuals could lose their homes) because of massive damages awards—or even just the threat of such awards. And this would happen because of what their opponents do, not because of what the organizations do, what their clients do, or any annoyance the activity would itself cause in the absence of protests.

And of course behavior that gets rewarded gets repeated. If anti-abortion arsonists learn that their actions (and threats of future actions) can lead to massive monetary liability being imposed on family planning clinics, the result will be more such attacks. And the attacks will not be limited to such clinics: Extremists in other political movements will also likely learn that lesson, and engage in such attacks against a wide range of places of worship, locales that host political activity, and other controversial institutions and businesses.

The law should not allow this heckler's veto. Driving such entities out of operation, or perhaps banishing them to faraway places that are much harder for their patrons to access, violates their constitutional rights and the rights of their patrons. And even for constitutionally unprotected businesses—such as fur stores and restaurants—imposing such liability would violate their basic rights to operate freely, without being shut down by their vocal (or even criminal) opponents.

Even if a city can ban, say, fur stores, or zone them into certain areas, that should be done through peaceful political means, not by giving the stores' enemies an effective veto if they are willing to act aggressively and even criminally. Yet affirming the decision below would place all these businesses and organizations at the mercy of their adversaries.

[B.] Courts have recognized that businesses need not bow to the demands of criminals; likewise, a business's refusing to give in to threats and violent attacks does not make it a nuisance

Perhaps because of the examples given in the previous section, no court has to our knowledge allowed liability like that imposed by the court below. But courts have considered a similar question when it comes to businesses being sued in negligence (rather than in nuisance) for refusing to comply with criminal demands—and they have rejected such lawsuits.

This principle is best laid out in Kentucky Fried Chicken, Inc. v. Superior Court, which held that a store cannot be held liable for a robber's injuring a customer when the store's employee refused to accede to the robber's demands. 927 P.2d 1260, 1262 (Cal. 1997). Imposing such liability, the court held, would be against public policy. Id. at 1270: "[V]ictims have no legal duty to comply with the robber's demands"—because if such a duty was imposed, robbers could "become aware of and be encouraged by the existence of such a duty." Id. There is no legal obligation to submit to illegal and menacing behavior, whether robbery, arson, or otherwise.

Other courts have similarly held that requiring businesses to go along with criminals' demands would wrongfully "furnish[] a criminal with an additional coercive advantage," Adkins v. Ashland Supermarkets, Inc., 569 S.W.2d 698, 700 (Ky. App. 1978), and "put yet another weapon at the disposal of the criminal." Bennett v. Estate of Baker, 557 P.2d 195, 198 (Ariz. App. 1976); see also Bence v. Crawford Sav. & Loan Ass'n, 400 N.E.2d 39, 41 (Ill. App. 1980)(likewise rejecting a duty to comply with criminal demands); Helms v. Church's Fried Chicken, 344 S.E.2d 349, 350-51 (N.C. App. 1986) (same); Schubowsky v. Hearn Food Store, Inc., 247 So. 2d 484, 484 (Fla. Dist. Ct. App. 1971) (same); Yingst v. Pratt, 220 N.E.2d 276, 279 (Ind. App. 1966) (same).

Just as the law should not "put yet another weapon at the disposal of the criminal" by holding a business liable in negligence for refusing the demands of criminals, it should also not hold a business liable in nuisance for refusing the unlawful demands of arsonists and bombers. And even nonviolent protesters should not be empowered to turn their demands into legal commands, which is what plaintiffs' theory would require.

[C.] Courts have rejected a "heckler's veto" that would shut down unpopular but constitutionally protected activities

Indeed, the plaintiffs' theory resembles the "heckler's veto" that courts have rejected in First Amendment cases. When a speaker's views risk so angering audiences that they may react violently, the government has sometimes stepped in to stop the speaker, rather than to stop or punish the violent hecklers. Courts have held that such government action violates the First Amendment.

"[A] permit for a parade or other assembly having political overtones cannot be denied because the applicant's audience will riot. To allow denial on such a ground would be to authorize a 'heckler's veto.'" Church of American Knights of Ku Klux Klan v. Gary, 334 F.3d 676, 680-81 (7th Cir. 2003). "When a peaceful speaker, whose message is constitutionally protected, is confronted by a hostile crowd, the state may not silence the speaker as an expedient alternative to containing or snuffing out the lawless behavior of the rioting individuals." Bible Believers v. Wayne County, 805 F.3d 228, 252 (6th Cir. 2015) (en banc). And this is just one facet of a broader principle, recognized in Equal Protection Clause cases as well as First Amendment cases, that "constitutional rights may not be denied simply because of hostility to their assertion or exercise." Watson v. City of Memphis, 373 U.S. 526, 535 (1963); Palmore v. Sidoti, 466 U.S. 429, 434 (1984); Langford v. City of Texarkana, 478 F.2d 262, 268 (8th Cir. 1973). "[T]he possibility of disorder by others cannot justify exclusion of persons from a place if they otherwise have a constitutional right (founded upon the Equal Protection Clause) to be present." Wright v. Georgia, 373 U.S. 284, 293 (1963).

The same principle applies here, especially since the abortion clinics may be the only places where women who choose to have abortions can exercise their constitutional rights. Just as "the state may not silence [a] speaker" because of fears about the action of "a hostile crowd," so a state may not impose ruinous damages on a constitutionally protected enterprise because of fears about the actions of hostile protesters (including "lawless behavior").

[II.] Georgia law does not authorize nuisance liability based on the conduct of a property owner's enemies

Georgia law recognizes that property owners are only liable for behavior and events within their control: "Ownership of land by the tortfeasor is not an element, but control is; the essential element of nuisance is control over the cause of the harm." Fielder v. Rice Constr. Co., 239 Ga. App. 362, 366 (1999). Small business owners do not have practical control over potential arsonists who would attack their businesses; control of such serious crime is a matter for law enforcement. And property owners do not have legal power to control protesters who protest outside their property.

Thus, in Fielder this Court held that the Health Department could be liable for a nuisance caused by a septic system on the defendant's former property. Id. Though the department did not own the septic system, it "had control over whether or not the lot was approved for septic tank use and had such control that it could have required significant improvements" that would have avoided the problems. Id. When problems with the septic system did arise, the Health Department also "had the power to compel [the defendant] to abate the nuisance but allowed the nuisance to continue." Id. But McBrayer did not invite the protestors to the clinic, and he had no power to compel them to abate their disturbing or even violent conduct.

Moreover, "the cause of the harm" here includes a requirement of proximate cause, which is itself "an essential element in a nuisance claim." George v. Hercules Real Estate Servs., Inc., 339 Ga. App. 843, 848 (2016). "'A party is not guilty of an actionable nuisance unless the injurious consequences complained of are the natural and proximate results of his own acts or failure of duty. If such consequences were caused by the acts of others, so operating as to produce the injury, he would not be liable.'" Citizens & Southern Trust Co. v. Phillips Petroleum Co., Inc. 192 Ga. App. 499, 500 (1989) (citation omitted).

Yet "defendants' lawful commercial activity, having been followed by harm to person and property caused directly and principally by the criminal activity of intervening third parties, may not be considered a proximate cause of such harm." City of Chicago v. Beretta U.S.A. Corp., 821 N.E.2d 1099, 1136 (Ill. 2004) (internal quotation marks omitted) (rejecting nuisance claim against gun manufacturer based on misuse of guns by downstream buyers); People ex rel. Spitzer v. Sturm, Ruger & Co., Inc., 309 A.D.2d 91, 102 (N.Y. App. Div. 2003) (same). Just as a gun manufacturer is not liable for misconduct (even foreseeable misconduct) by downstream gun users, so an abortion or family planning clinic cannot be liable for misconduct by entirely unrelated parties who want to shut it down.

The only thing McBrayer could have done about the protesters (and about the potential criminal attackers) is close his business. But Georgia law does not view businesses as obligated to surrender to their enemies' demands—nor should it.

Property owners may of course be required to manage their property consistently with state health and safety regulations. See, e.g., City of Atlanta v. Murphy, 194 Ga. App. 652, 652 (1990) (holding defendant may be liable for nuisance in part because it left open garbage uncovered overnight). They may of course be required to operate their business in a manner consistent with industry best practices. See, e.g., Roberts v. Rich, 200 Ga. 497, 497 (1946) (holding defendant may be liable for "operat[ing]" its grocery warehouse "in such a manner as to cause a nuisance," for instance if food is allowed to rot or attract vermin); cf. Strong v. Winn-Dixie Stores, Inc., 125 S.E.2d 628, 632-34 (S.C. 1962) (citing Roberts and concluding that a grocery store may not be enjoined based on the possibility that it "will bring into the neighborhood . . . unsanitary conditions," because those conditions "can be remedied" when they arise, for instance by complying with "ordinances dealing with such matters").

They may of course be required to stop emitting noxious odors that spread onto neighbors' property. See Poultryland, Inc. v. Anderson, 299 Ga. 549, 558 (1946). But no case holds that businesses must simply close because their political opponents will annoy or even threaten the controversial businesses' neighbors.

More broadly, businesses necessarily have much less control over people—especially people who are not the business's invitees—than over pests attracted by, for instance, rotting food on the business's property. Animals may be trapped and exterminated, and their presence may be prevented by proper sanitary practices. Not so, of course, for people, especially ones who have a First Amendment right to protest in the public space beyond McBrayer's property. See McCullen v. Coakley, 573 U.S. 464 (2014).

Of course, there are authorities whose job it is to control crime, and to keep protests from unduly interfering with businesses: they are local governments and, in particular, police departments. Indeed, even where a defendant negligently creates an unsafe condition—something McBrayer did not do in this case—the law does not hold the defendant responsible for failure to repair the condition, when that is more safely done by law enforcement. "[I]t would be poor public policy to recognize a duty on the part of a motorist who creates an obstruction on a roadway to take further action with respect to the obstruction after public authorities have removed it to their satisfaction and declared the roadway safe for vehicular travel." Kimminau v. City of Hastings, 864 N.W.2d 399, 412 (Neb. 2015). It is similarly unsafe to require ordinary business owners to itself thwart potential criminal attacks and control large groups of vocal protestors.

Property owners may have some control over their invitees, though practically there is only so much they can do when the clients are off the property. But even if McBrayer could be held liable in some measure because of his invitees' alleged urination or defecation off his property, that could not justify a $1.5 million award; and whether such liability should be imposed would in any event have to be decided by a jury instructed to focus only on misbehavior by McBrayer's invitees, and not on the actions of McBrayer's enemies.

III. A business does not become a nuisance simply because some people oppose it on moral grounds

The Plaintiffs complain that "the activities of Appellants in the clinic"—which is to say, performing abortions—"were discomforting, annoying and offensive to many in the Park." Appellee Br. 5; see also id. at 21 (quoting testimony about the "discomfort of what is a sensitive subject," which "kind of rattled people"); id. (discussing "the emotional impact . . . of the clinic"); id. at 23 ("the claims of Appellees" rest on, among other things, "discomfort," "offense," and "embarrassment").

But that a "business itself is offensive to others . . . or that persons of fastidious taste would prefer its removal" does not make it a nuisance. Wilson v. Evans Hotel Co., 188 Ga. 498, 501 (1939) (quoting Holman v. Athens Empire Laundry Co., 149 Ga. 345 (1919)). The right to abortion is indeed controversial, and many people find abortion to be offensive and morally repugnant. Still, it remains a constitutionally protected right, and people who help women exercise that right cannot be driven out of their place of business simply because of neighbors' disapproval. And even if abortion were not a constitutionally protected right, it is currently legal for abortion clinics to operate; people who harass and intimidate legal businesses should not be able to enlist the court system to effectively shut down those businesses.

Nor can abortion clinics in office parks be deemed nuisances by analogy to the mortuary nuisance cases. The mortuaries were located "in a section essentially and distinctively devoted to residential purposes," which caused "inevitable injury to the health and happiness of [the] residents." McGowan v. May, 186 Ga. 79, 79 (1938); Harris v. Sutton, 168 Ga. 565, 565 (1929); Morrison v. Slappey, 153 Ga. 724, 724 (1922).

The most recent decision, McGowan, mentioned "residential" and "residents" five times in the span of the one-paragraph opinion. Harrislikewise noted that the case involved a residential area; so did Morrison, though there the court stressed that it was not deciding whether "the operation of an undertaking establishment in a residential section is a nuisance per se." See also Benton v. Pittard, 197 Ga. 843, 845-46 (1944) (enjoining operation of medical clinic in residential area, and repeatedly stressing that the case involved "a distinctly residential section"). McBrayer's office is in an office park zoned for medical clinics, in which there is already a dental practice. V6-43-44, V10-222, -237.

And health care offices being allowed in the office park makes clear that any hostility to McBrayer's clinic stems precisely from the clinic being engaged in the constitutionally protected activity of performing abortions. But, as noted above, "constitutional rights may not be denied simply because of hostility to their assertion or exercise." Watson, 373 U.S. at 535.

McBrayer's business is lawful and appropriate for its location. It emits no noxious gases or loud noises; rather, it is controversial because it helps people exercise a controversial constitutional right. People who conduct such enterprises should not be driven out of business by public hostility.

Conclusion

Upholding the lower court's decision would set a precedent that endangers all sorts of controversial businesses and organizations, including constitutionally protected entities such as churches, synagogues, mosques, bookstores, gun stores, political organizations, and more. It would also encourage the enemies of such entities to protest more aggressively, and even to threaten or commit vandalism or arson. After all, such opponents might well reason, McBrayer's abortion clinic was driven out by such tactics—perhaps they can do the same to the businesses or institutions that they hate, by creating such a nuisance that neighbors will sue.

Upholding the lower court's decision would also be inconsistent with Georgia nuisance law, because it would impose liability on a party who lacked control over the alleged nuisance (except in the legally irrelevant sense that we can control our enemies by giving in to their demands). This court should reject the "heckler's veto" of McBrayer's constitutionally protected business, and reverse the decision below….

NEXT: Statistics, and How the World Works

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  1. Reasonable ruling, people shouldn’t be able to sue you for protestors actions. Though I’m curious why the other stores didn’t tell the owner of the block to either kick the clinic or they’d find somewhere else to set up shop. The location can’t be terribly profitable with its current occupant.

    1. The clinic isn’t a tenant; it’s the owner of its building, and can’t just be evicted at the owners’ association’s whim. The covenants do bar businesses from operating nuisances, but that requires a finding of nuisance (which is what we’re challenging here).

      1. I’m surprised a “medical facility” is a permitted use in an area zoned “general business” but Georgia may be more reasonable on zoning.

        1. MRIs, physical therapists and general practitioners are all considered “general businesses” in every jurisdiction that I’m aware of. What jurisdiction are you in that has a separate zoning category for “medical facilities”?

          1. I will also admit to a polite curiosity as to what planet Dr. Ed believes he’s living on.

          2. Amherst, Massachusetts…

    2. This isn’t a ruling, it’s a third party brief in support of the appellant.

  2. That judgement reminds me about about how if the Chinese government decides to execute you, they will send a bill for the bullet to the executed person’s family.

    1. Or, in the wake of Kristallnacht (1938), fining Germany’s Jewish community 1 billion Reichsmarks ($400 million at the time, about $7 billion today) for being the cause of it:
      https://en.wikipedia.org/wiki/Judenverm%C3%B6gensabgabe

  3. Eugene,
    Interesting issue. I’m inclined to agree with you on the common-law tort issue of nuisance. Said action is constrained in light of the first amendment. However, your brief doesn’t address the contractual obligation not to maintain a nuisance on the property under the declaration of covenants. I think the covenant’s definition of a nuisance is not constrained by the First Amendment.

    Also, your highlighting is on the appellee’s brief. It does not appear to have any notes though.

    1. Whoops, sorry about the highlighting, and thanks for pointing it out — I just fixed it.

      As to the contractual matter, we don’t focus on it because the parties have basically treated it as tracking the legal definition of nuisance — if we’re right that this doesn’t count as a nuisance (because Georgia law would recognize these sorts of heckler’s veto concerns in limiting its definition of nuisance), then neither would it violate the covenants.

      1. And I’m not sure I agree with that/Appellees should not be advancing that position in response to your amicus. GA 41-1-1 provides a very general definition of a nuisance. The definition in Section 9.09 of the covenants is much more detailed (albeit it is likely that some of that language is taken from case law interpreting nuisance).

        Here, the First Amendment argument is essentially invoking the doctrine that courts have a duty to construe statutes/common law in a manner which upholds the constitutionality of said statute/common law. In contrast, contracts are generally interpreted based on the intention of the parties hopefully as demonstrated by the plain text of the agreement. I think the different rules governing interpretation lead to different outcomes, especially to the extent that Georgia courts have not previously addressed the First Amendment limitations to the tort of nuisance.

        Regardless, very interesting. I feel bad for the doctor; covenants suck.

        1. Wouldn’t defining “nuisance” so broadly as to hold members of the contract as liable for criminal acts against themselves be void as contrary to public policy?

  4. What kind of degree does “Dr.” McBrayer hold?

    1. Well, he’d better have something other than an Ed.D, or a J.D. (or, say, a history Ph.D.).

    2. Since Dr. Daniel McBrayer appears to be identified as the owner of the abortion clinic being sued, I would presume he’s an MD.

      As I understand it, many states restrict ownership of law practices to licensed lawyers and ownership of medical clinics to licensed doctors.

      1. CVS isn’t owned by a MD and it has medical clinics in some of its stores.

        1. The “minute clinics” are separately run franchises sharing space with the CVS.

  5. Abortion is such an unique evil that any potential risk to other activities is worth it.

    1. No, most prolifers don’t believe that.

    2. I like to give people the benefit of the doubt, but this is an issue that gets me riled up.

      I’ve been a participant in exactly 3 pregnancies, all wanted, with my then-spouse. None before, and none since.

      Two of them worked, and we have great kids. I’ll be cooking them dinner soon.

      The first one, our incredibly joyous first attempt at parenthood, went off the rails when the ultrasound tech said “hm. I need to get a doctor in here.”

      Long and tragic story short: non-viable. And instead of carrying her to term, we elected to .. not do that. We moved on, conceived again, and life goes on.

      We planted a tree with her. It reminds me of her brief, joyous, but doomed existence every time I pass it. Tree is larger than it once was, I’m getting old.

      But using abortion as a political wedge? I’m ashamed to be the same species as you. STFD and STFU about abortion.

      1. So, a murderer — YOU STFU

        1. No need to be cruel. He is entitled to his pain.

          1. There is a difference between allowing a human being to die painlessly and mercifully and willfully killing him/her through violence.

            It makers of good dividing line of humanity and the lack thereof…

          2. Bob, I almost always disagree with you … but thanks.

        2. Yeah, so I still mourn that loss ~20 years later.

          That you think that painful loss is “murder!” is exactly the problem.

          1. That I lost a child to a miscarriage (and another to SIDS) has NOTHING to do with anything — victimhood is not an argument and gives the argument no greater cache.

            The willful taking of a human life without just cause is murder, period. Over 40 Million slaughtered already, I have had ENOUGH with the justifications. The slaveowner I am sure was justified in his own mind, even convinced of his altruism and charity.

            1. “The willful taking of a human life without just cause is murder, period.”

              Assuming you didn’t miss the ‘non viable’ part, we’re going to have to disagree here.

              Both my parents died at home, under hospice care. Neither cause of death said ‘morphine overdose’, but morphine depresses respiration, and when you give people with respiratory problems enough morphine they won’t suffer as they slowly suffocate, you are surely killing them. So you may think I’m a serial killer. But OTOH, I think not giving them enough morphine to keep them from suffering would have been a monstrous thing to do.

              You can try and distinguish a non-viable fetus from an adult by saying the adult gets to make a choice. And some do – my parent’s illnesses weren’t sudden, and so I was well aware of their wishes, but if their illness had been too sudden to discuss their wishes ahead of time, I would have made the same decisions. And fetuses and very young children can’t make their own decisions, so parents necessarily have to make those choices for them – whether that decision is to abort a non-viable fetus or to withdraw life support from a terminally ill infant.

              1. Withdrawing life support is NOT the same as performing an action that causes the deliberate death of a human being. It is left nature taking its course.

                Recognizing that people own their bodies (thus their lives) and accepting that if they choose to commit suicide they have that right is different that ME giving the fatal dose.

                In some instance there are NO actions that can save a life — but we must never think that we have the right to end a life not our own. We do not own out children.

                1. “Recognizing that people own their bodies (thus their lives) and accepting that if they choose to commit suicide they have that right is different that ME giving the fatal dose.”

                  Just to be clear: I wasn’t handing the bottle of morphine to my parents so they could take it themselves. It’s a liquid so the caregiver – me – can administer it under the tongue of an unconscious patient (in hospitals, they probably use an IV, but this was at home).

                  Let me paint you the picture: a parent that you love deeply is unconscious, but starting to writhe in discomfort as the previous dose wears off, because suffocating is very, very unpleasant. And so you use a swab to put more of the morphine under their tongue – not too much at one time, lest they gag – just enough to keep them sedated, until they eventually stop breathing. It takes several days of round the clock care. It’s one of the hardest things I have ever done, but it is a duty you owe to those you love. But I was absolutely the one who gave them the fatal dose.

                  This is not even unusual – it happens routinely. Thank God we no longer have to die in unspeakable agony.

                  1. Murder is murder — there is NO justification.

                    And slippery slopes are slippery — the real world has seen the reasons for legal suicide expanded, even to “loneliness” and depression. And consent? Yeah, as predicted we’re are near a time when people other than the person to die can give consent.

                    I suggest the only “god” involved is our own selfishness and greed.

                    1. Excellent demonstration of the difference between an advocate and a crank.

                    2. Your crankiness has arrived, yes — you have been proven a racist and a sexist — baby-killing doesn’t seem a huge jump.

                    3. Murder is a legal term. And this is obviously not murder.

                      If you mean intentionally ending any type of life is always wrong, I’m quite sure you don’t believe that.

                      And I don’t know exactly what you mean about selfishness and greed being the only “god” involved. If you mean that literally, then that’s two more gods than should have any consideration when it comes to the law.

                      Might as well look to Loki and Thor to guide our legal principles.

                      If the only thing keeping you from committing immoral acts is fear of, or blind adherence to, the whims of some supernatural entity you believe in, then I don’t think you have an internal moral compass worthy of consideration in these matters.

                      And if the cruelty you display towards a man who shared with us one of the most painful experiences of his life is any indication of how you interpret the desires of your particular deity, then we should all take that into consideration when engaging with you about anything to do with morality.

                    4. You are your own god, your emotions, your desires, your feelings are what you obey, above all others.

                      Murder is murder and that is exactly what it is.

                      And emotions can be used to justify all sorts of evil, and have been used to justify everything from slavery to the holocaust.

                      The right to life is inalienable.

                    5. The right to all life is inalienable?

                      You probably don’t believe that.

                      And it’s easy enough to trot out things that we consider to be wrong. But you can just as easily list a bunch of laws that were once considered crimes against God or nature or whatever that we rightfully abandoned for their religiously based stomping on individual liberty.

                      Is every sperm sacred? They are alive.

                      Even in the world of people who are more or less on
                      your side on the abortion issue, you lose pretty much everyone when you call parents who ended an unviable pregnancy murderers.

                      When you get Bob from
                      Ohio thinking, “yeah, I’m pro life too, but that guy is a serious dick” it might be time to check your own moral principles.

                    6. The right to life is inalienable.

                      Not in America, it isn’t. Your “”right” to life can be violated by a jury of your peers in quite a few states. Your “right” to life can be legally violated if the policeman gets the wrong address on a 2 AM no-knock raid. It can be legally violated if the guy you argued with in the bar is “scared” so he goes back to his car and gets his gun and then goes to confront you. It can be legally violated if you don’t have the money to pay for your prescriptions. It can be legally violated if you’re homeless, it’s a freezing-to-death cold night, and the Salvation Army says it won’t take trannies.

                      “Right” to life in America can be legally violated in all sorts of ways, from the understandable to the unconsciousable. Many of them in ways where the perpetrator can get qualified immunity to boot.

          2. I am unaware of any religion that regulates abortion, my opposition is based upon science, not religion.

            A human life is a human life. It has been onIy a little over 100 years when we had to fight to establish the fact that enslaved Africans were indeed humans with rights and here we are again, the same arguments fail.

            The moment that you make an exception, the first human being that you claim the right to murder, is the moment the whole of humanity is in danger.

            NO!

            1. Are you asking about whether there are religions that permit abortion under certain circumstances? Yes. Judaism does exactly that- while there are a variety of Rabbinic opinions, nearly all of them treat a mother’s life vs child’s life situation as requiring an abortion (and the ones that don’t, if actually asked the question personally, will refer the person asking to another rabbi). Orthodox rulings vary, but there are a number that permit abortions not just for a life threatening situation but for things that could cause damage to the mother’s health, including mental health. A number of major rabbis of the 20th century also ruled that abortion was permissible in the case of babies who would be born with Tay-Sachs, and even moreso with unviable fetuses (genetic testing has nearly eliminated Tay-Sachs within the Jewish community, warning people if they and their partner could produce a baby with Tay-Sachs, in which case, if the couple wants to have kids, they do in vitro fertilization with pre-implantation genetic diagnosis).

              1. Cool information, informative … but irrelevant to my point.

                Many Christians ignored the death-penalty sin of the chattel-slavery prescribed in the Mosaic law and instead twisted and relied on misinterpretations to justify their practice of slavery.

                My opposition is based upon the science that proves undeniably that it is a separate human life, a person — unique. As for deformation, sadly instances will happen where the child will not be able to be brought to term. Killing the child is NOT the answer, any more than killing anyone else with a terminal illness/injury.

            2. 160 years — the Civil War started in 1860 — but _Dred Scott_ is why I am pro-life.

      2. Zarniwoop, I’m sorry for your loss. I’m also sorry you have to deal with people who think their dogma trumps your pain.

    3. Bob, there are people who feel the same way about religion. Fortunately neither you nor they are usually in a position to do anything about it.

      1. Nobody here has any influence on anything.

        I’m just hoping the abortionist loses.

        1. Of course you are, because whether you consider someone a bad person is more important than the First Amendment.

        2. Even though this precedent would equally affect a gun store being protested to the point of being a nuisance?

          Or what about a publication that was critical of Islam getting protested?

          You really think the principle should be sacrificed just to inflict punishment upon someone engaged in a legal activity?

          I think advocating the position that you do makes you somewhat unsympathetic, and if some lunatics protested your business and created a nuisance around it, some would argue that you would deserve to lose a similar case and suffer personal and financial hardship, as it would be poetic and karmically just… yet I would still root for you to win such a case.

          Just like I think an advocate of Sharia law should be protected by the first amendment, even if he’d be thrilled to crush that principle under his boot for speech he doesn’t like.

          And I too commend you for being a better person than DWB. You obviously have a heart.

        3. It says everything anyone needs to know about you that you would apply the law based on whether you like the defendant or plaintiff more.

    4. I’ll take “comments sure to derail this post” for $400, Alex.

  6. “legal, constitutionally protected businesses”

    That’s the key point – is it actually legal and constitutionally protected?

    Don’t say that’s above your pay grade – law professors have had plenty of time to decide if the Supreme Court got it right about abortion.

    1. Well, I don’t think there’s any real question that it’s legal. Nor is there much of one that, as current Supreme Court doctrine stands, it’s constitutionally protected, and the Georgia Court of Appeals isn’t in a position to change that. It’s typical for litigants to frame their argument in terms of how current doctrine stands when they’re asking a court to decide a case a particular way.

      1. “It’s typical for litigants”

        Do “friends of the court” qualify as “litigants”? I actually don’t know.

        Anyway, nobody forced him to be an amicus.

    2. Under current rules, yes it is actually legal and constitutionally protected. There is no ambiguity on that point.

      Whether it should be legal or protected is an entirely separate question – one which is, however, completely irrelevant to the case above.

      1. “If you think that you can think about a thing inextricably attached to something else without thinking of the thing which it is attached to, then you have a legal mind.”

        -attributed to Thomas Reed Powell

  7. “When a speaker’s views risk so angering audiences that they may react violently, the government has sometimes stepped in to stop the speaker, rather than to stop or punish the violent hecklers”

    UMass Amherst routinely does this.

  8. It’s a cool argument. Screws the abortion clinic 2 ways. In effect, if not in so many words, EV throws the clinic to the protestor wolves. Later, he can come back and attack the clinic again, on behalf of the wolves’ 1A rights.

    That is how right-wing weaponized speech works. Given a situation of competing rights, disregard rights on one side, then maximally invoke the 1A on behalf of the other side. It’s a pattern we see again and again, almost always from right wingers.

    EV, defending that kind of conduct is not a wise tactic on behalf of protecting speech freedom. It will tend more than otherwise to bring speech freedom into disrepute.

    In this case, I suggest you would do better to argue—based on the reaction of the neighbors—that there is a nuisance, and the anti-abortion protestors are creating it. Among folks who don’t have strong views on abortion, or who are pro-choice, and who are not lawyers, (in short, a majority of Americans) that is how those facts will appear. I’m guessing that most folks probably think vociferous picketing of their medical procedures ought to be as far out of bounds as picketing their residences at night with bullhorns.

    1. ” I suggest you would do better to argue—based on the reaction of the neighbors—that there is a nuisance, and the anti-abortion protestors are creating it.”

      I’m just scratching my head trying to figure out how you think that is somehow different from what the Amicus brief says. Perhaps you could point out where the brief disagrees?

    2. Huh? His argument is that the clinic cannot be held responsible for the protestors.

      The argument that it’s the protesters who are the tortious nuisance which can be enjoined has been tried (successfully in Georgia I might add, Hirsh v. City of Atlanta, 401 SE 2d 530 (1991)) but such argument is probably dead on arrival under Hill v. Colorado and McCullen v. Coakley.

    3. “EV, defending that kind of conduct is not a wise tactic on behalf of protecting speech freedom.”

      ????
      The article written by EV is about an amicus brief, which EV signed on to, that is defending the abortion clinic.

      1. MS, really? You thought that was a defense of the abortion clinic? Where did you see EV’s argument that the protests could legally be shut down as a nuisance? That would have been a defense of the abortion clinic, but if it’s there I must have overlooked it.

        By the way, I thought it was a defense of the gun industry.

        1. “[I.] Dr. McBrayer should not be held liable for harms caused by his political enemies

          [A.] Allowing liability against McBrayer would justify liability against a wide range of legal, constitutionally protected businesses

          [B.] Courts have recognized that businesses need not bow to the demands of criminals; likewise, a business’s refusing to give in to threats and violent attacks does not make it a nuisance

          [C.] Courts have rejected a “heckler’s veto” that would shut down unpopular but constitutionally protected activities”

          Poor SL, the only person in the comments right now having trouble with thinking is you. EV is arguing in favor of the abortion clinic. You’re addled, knee-jerk, anti-EV schtick has apparently left you incapable of actually reading what was written.

          Obviously, the protests cannot be shut down just for being a nuisance (yeah, we know, you’re not a 1A fan). But, a business being protested should obviously not be punished for being protested.

          1. You’re/your, so hard. My kingdom for an edit button.

        2. Where did you see EV’s argument that the protests could legally be shut down as a nuisance?

          Why would you think that protests could be shut down as a nuisance? (Which also wasn’t an issue in the case, and so wouldn’t be relevant?) EV isn’t anti-speech like you, so why would he argue that?

          The protests are free speech and can continue. The clinic cannot be punished because of those protests. That’s the actual position that protects everyone’s rights.

        3. “By the way, I thought it was a defense of the gun industry.”

          There isn’t even a member of the gun industry that is a party to the case.

  9. The market solution is for the aggrieved businesses to collectively pool their resources and pay the clinic owner to relocate.
    Instead they used the strong arm of the government to take a thing of value from their neighbor, while gaining a thing of value for themselves.

    1. Gasman, advocating taking value from a neighbor to get value for yourself is very popular. It’s what people do when they yell, “NIMBY.” Lots of commenters on this blog love to yell, “NIMBY.”

      1. “Lots of commenters on this blog love to yell, “NIMBY.””

        They must all be politicians from San Francisco.

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