FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WALTER B. HOYE, II, 

No. 09-16753 Plaintiff-Appellant,

D.C. No.

v.  3:07-cv-06411-CRB

CITY OF OAKLAND,

OPINION Defendant-Appellee. 

Appeal from the United States District Court

for the Northern District of California

Charles R. Breyer, District Judge, Presiding

Argued and Submitted

October 8, 2010—San Francisco, California

Filed July 28, 2011

Before: Stephen Reinhardt and Marsha S. Berzon,

Circuit Judges, and Louis H. Pollak, Senior District Judge.*

Opinion by Judge Berzon

*The Honorable Louis H. Pollak, Senior District Judge for the U.S. District Court for Eastern Pennsylvania, Philadelphia, sitting by designation.

9649
COUNSEL

For Plaintiff-Appellant Walter B. Hoye, II: Michael Millen,

Law Offices of Michael Millen, Los Gatos, California; Catherine B. Short (argued), Life Legal Defense Foundation, Ojai,

California.

For Defendant-Appellee City of Oakland: Angela L. Padilla,

Sarah C. Marriott, Benjamin C. Geiger, and Katherine C.

Lubin, Greg J. Richardson (argued), Orrick, Herrington &

Sutcliff LLP, San Francisco, California; John Russo and Vicki

Laden, Oakland City Attorney’s Office, Oakland, California.

For Amicus Curiae American Center for Law and Justice: Jay

Alan Sekulow, Stuart J. Roth, Walter M. Weber, American

Center for Law and Justice, Washington, D.C.

For Amici Curiae California Women’s Law Center, The California Black Women’s Health Project, The Connecticut

Women’s Education and Legal Fund, The Feminist Majority

Foundation, Equal Rights Advocates, Legal Momentum,

Legal Voice, The California National Organization For

Women, Physicians for Social Responsibility-Los Angeles,

The Southwest Women’s Law Center, the Women’s Law Project, and The Women’s Law Center of Maryland: J. Cacilia

Kim and Vicky L. Barker, California Women’s Law Center,

Los Angeles, California; Alexandra A. Bodnar, Casey J. T.

McCoy, Squire, Sanders & Dempsey L.L.P., Los Angeles,

California.

9652 HOYE v. CITY OF OAKLAND
For Amici Curiae Abortion Care Network, American College

of Obstetricians and Gynecologists, American Medical

Women’s Association, American Nurses Association, Center

for Reproductive Rights, Medical Students for Choice,

National Abortion Federation, National Family Planning and

Reproductive Health Association, and Physicians for Reproductive Choice and Health: Janet Crepps & Jennifer

Mondino, Center for Reproductive Rights, New York. New

York.

For Amici Curiae Planned Parenthood Affiliates of California, The California Medical Association, Alameda-Contra

Costa Medical Association, Planned Parenthood Golden

Gate, Planned Parenthood Los Angeles, Planned Parenthood

Mar Monte, Planned Parenthood/Orange and San Bernardino Counties, Planned Parenthood of Santa Barbara, Ventura, & San Luis Obispo Counties, and Planned Parenthood:

Shasta-Diablo: Beth H. Parker & Rachel L. Chanin, Arnold

& Porter L.L.P., San Francisco, California.

OPINION

BERZON, Circuit Judge: 

Throughout our nation’s history, Americans have counted

on the First Amendment to protect their right to ask their fellow citizens to change their mind. Abolitionists, suffragists,

socialists, pacifists, union members, war protestors, religious

believers, civil rights campaigners, anti-tax activists, and

countless others have appealed to the principle, enshrined

within the First Amendment, that in a democracy such as

ours, public debate must be robust and free and that, for it to

be so, the Constitution’s protection of the freedom of speech

must extend to the sidewalk encounter of the proselytizer and

his prospective convert. These instances of public persuasion

constitute the lifeblood of a self-governing people’s liberty,

HOYE v. CITY OF OAKLAND 9653
and so even when the beliefs propagated seem to some the

“rankest error” that “naturally would offend” any listener, our

founding charter deems such encounters “in the long view,

essential to enlightened opinion and right conduct on the part

of the citizens of a democracy.” Cantwell v. Connecticut, 310

U.S. 296, 309-310 (1940). This case calls on us to apply that

principle.

****

Walter Hoye, a minister, is a so-called “sidewalk counselor.” He regularly stands outside a reproductive health clinic

in the City of Oakland, seeking to engage women in what he

calls a “friendly conversation” to dissuade them from having

an abortion. 

Concerned about disruptive anti-abortion protests outside

clinics, the Oakland City Council enacted a so-called bubble

ordinance (the “Ordinance”), its name derived from the 100-

foot metaphorical “bubble” the Ordinance creates around the

entrances to reproductive health clinics. Within such zones,

the Ordinance makes it an offense knowingly and willfully to

approach within eight feet of an individual seeking entry to

the clinic if one’s purpose in approaching that person is to

engage in conversation, protest, counseling, or various other

forms of speech. The Ordinance is largely modeled after the

Colorado statute held constitutional in Hill v. Colorado, 530

U.S. 703 (2000).1

Hoye was convicted of two separate violations of the Ordinance. (His convictions were reversed on procedural grounds

during the pendency of this appeal.) He now challenges the

Ordinance in this § 1983 action, contending that the Ordinance infringes upon the freedom of speech guaranteed by the

First Amendment to the United States Constitution. Hoye also

Both the Ordinance and the Colorado statute are reproduced in an

appendix to this opinion. 

9654 HOYE v. CITY OF OAKLAND
argues that the Ordinance violates the federal constitution’s

Due Process Clause, as well as the state and federal guarantees of equal protection of the laws. A theme central to his

challenges is his contention that Oakland does not enforce the

Ordinance evenhandedly, as it has a policy of not enforcing

the Ordinance against volunteers who engage in pro-abortion

speech outside reproductive health clinics. The District Court

granted Oakland’s motion for summary judgment on all of

Hoye’s claims, and Hoye appealed. We now affirm in part,

reverse in part, and remand for the determination of appropriate relief.

I.

A.

Several reproductive healthcare clinics are located within

the City of Oakland (the “City”). For decades, anti-abortion

activists have gathered outside them, trying to dissuade

patients from seeking abortions and employees from performing them. Their insistent importuning has caused patients and

employees to feel harassed, even intimidated. Also, in the

past, protestors have blocked entrances to clinics, forcing

patients and staff to climb through windows and fire escapes.

Protestors have also sometimes mobbed patients’ vehicles as

they pull up to the clinic, preventing patients from stepping

out. 

Since approximately early 2006, Walter Hoye has stood

outside the Family Planning Specialists clinic in Oakland,

seeking to discourage women entering the clinic from having

an abortion. Hoye’s stated goal is “to have a personal, one-onone conversation with each woman concerning her individual

situation and what is causing her to consider abortion.” He

also often holds a sign proclaiming, “Jesus loves you and your

baby. Let us help.” He says that he has “never called a woman

HOYE v. CITY OF OAKLAND 9655
a baby killer or murderer or told her she would rot in hell, or

expressed any judgment like that.”

2

Hoye reports that “[f]or most of the time I have been going,

there has been only two or three other pro-life people there.”

He also states that he has never seen a “pro-life counselor

block patients from getting to the [c]linic”; instead, he says,

“We consciously try to space ourselves out on the sidewalk

. . . [and] make sure there is room to pass.” Video recordings

of Hoye’s activities, although incomplete, corroborate Hoye’s

account of his sidewalk counseling. 

For a number of years, “escorts” have helped patients

approaching reproductive health clinics to navigate their way

into the building when anti-abortion protestors are present.

Hoye calls the escorts “pro-abortion activists.” Barbara Hoke,

an escort, provides a slightly different account: According to

her, escorts are volunteers who, although not “legally affiliated” with the clinics, wait outside them, often wearing bright

orange vests bearing the name of the clinic in front of which

they are volunteering. “The escort’s job,” in Hoke’s words,

“is to create a clear pathway to the clinic so that patients seeking to enter the clinic may do so without being intimidated,

harassed, or feeling physically threatened.” 

Hoye charges that “[t]hese activist escorts tell women not

to listen to [him], that he is only there to harass [them], that

[they] will only be safe with the escorts, and [that they

should] not . . . take his literature or information because it is

inaccurate.” Hoye also says that escorts, “with their bodies,

form barriers” to prevent him from approaching patients,

make noise (such as “lalalala”) to drown out Hoye, and have

“assign[ed] some of their number to stand in front of [Hoye]

with blank pieces of cardboard, thus blocking women from

seeing [Hoye’s] sign.” The City, by and large, does not con2There is no indication in the record to the contrary, nor any suggestion

that Hoye has engaged in any physical obstruction or violence. 

9656 HOYE v. CITY OF OAKLAND
test Hoye’s account of the escorts’ activities. Also, at Hoye’s

criminal trial, Hoke to a degree confirmed that account, testifying that she thought it important for escorts “to block a message that is inappropriate, that is meant to harm, is meant to

intimidate, and meant to prevent a woman from just the quiet

privacy of a moment in her life that is no one else’s business.”

3

On December 18, 2007, the Oakland City Council passed

Ordinance No. 12849. Hoye filed the complaint in this case

the next day, asking for a temporary restraining order. At a

telephonic hearing on the request for a TRO, the District

Court expressed reservations about the Ordinance’s constitutionality and strongly suggested that the City amend it. The

City, acquiescing, adopted an amended ordinance, Ordinance

No. 12860, on February 5, 2008. 

Section 3(b) of the Ordinance, as amended, makes it unlawful, within 100 feet of the entrance of a “reproductive health

care facility,” to 

willfully and knowingly approach within eight (8)

feet of any person seeking to enter such a facility, or

any occupied motor vehicle seeking entry, without

the consent of such person or vehicle occupant, for

the purpose of counseling, harassing, or interfering

with such person or vehicle occupant. 

The Ordinance then goes on to define the three activities it

regulates—“counseling,” “harassing,” and “interfering”—

quite broadly. 

3The District Court ruled that Barbara Hoke’s testimony in Hoye’s

criminal trial “is hearsay and does not meet the requirements of the former

testimony exception in Fed. R. Civ. P. 804(b)(1).” But the City did not

object to the evidence. “Defects in evidence submitted in opposition to a

motion for summary judgment are waived absent a motion to strike or

other objection.” FDIC v. New Hampshire Ins. Co., 953 F.2d 478, 485-86

(9th Cir. 1991) (quotation omitted). 

HOYE v. CITY OF OAKLAND 9657
We dwell on the definition of “counseling,” as it is instructive for two reasons. First, the Ordinance defines “counseling”

relatively expansively: “Counseling” means “engaging in conversation with, displaying signs to, and/or distributing literature.” Ord. § 2(e). So, under the Ordinance, within 100 feet of

a clinic, a speaker wishing to engage in conversation with,

display signs to, or distribute literature to a person entering

the clinic must first obtain that person’s consent before

approaching within eight feet of that person. 

Second, the definition of “counseling” was one of the sections of the Ordinance amended at the suggestion of the District Court. Originally, the Ordinance had defined

“counseling” so as to restrict only “engaging in conversation

. . . displaying signs . . . and/or distributing literature . . . in

an effort to harass, intimidate, or persuade the individual not

to access such reproductive health services.” (Emphasis

added). Thus, this provision, as originally enacted, was

explicitly one-sided: A speaker who attempted to persuade a

woman entering a reproductive health clinic to access reproductive health services was not “engaging in conversation”

within the meaning of the Ordinance. Section (3)(b), the Ordinance’s operative provision, reiterated the Ordinance’s onesided prohibition. It made it a misdemeanor to approach persons without consent for the purpose of counseling, harassing

or interfering with them “in connection with seeking reproductive health services, or for the purpose of interfering with

that person’s or vehicle occupant’s obtaining or providing

reproductive health services.” Ord. § 3(b) (emphasis added).

At District Judge Breyer’s suggestion, the City amended the

Ordinance to strike all of the language italicized above. As a

result, the Ordinance on its face no longer distinguishes in the

key operative provisions between pro-abortion and antiabortion advocacy. 

On May 13, 2008, the Oakland Police Department arrested

Hoye and cited him for violating the Ordinance. An Alameda

County jury convicted him, in January, 2009, of two counts

9658 HOYE v. CITY OF OAKLAND
(for separate incidents) of “harassment of persons seeking

health care” in violation of § 3(b) of the Ordinance. Hoye

appealed his convictions to the Appellate Division of the

same court, which reversed the convictions on two grounds,

neither pertinent here. See People v. Hoye, 115 Cal. Rptr. 3d

876, (Cal. App. Super. Ct. 2010). Shortly after the parties

argued this case before us, the district attorney dismissed the

prosecution against Hoye. 

In the meantime, in this federal action, the parties filed

cross-motions for summary judgment. On August 4, 2009, the

District Court granted the City’s motion in full. 

B.

Oakland’s ordinance is not the only legislative attempt to

facilitate access to reproductive healthcare facilities by imposing special restrictions on speech and conduct in the space

immediately outside clinic entrances. See Freedom of Access

to Clinic Entrances Act, 18 U.S.C. § 248; California Freedom

of Access to Clinic and Church Entrances Act, Cal. Penal

Code §§ 423 et seq.; Cal. Penal Code § 602.11. Nor is this

case the first to raise difficult questions concerning the

accommodation of women’s right to an abortion with antiabortion activists’ right to free speech. In the last two decades,

the Supreme Court has three times addressed the First

Amendment rights of anti-abortion protestors outside reproductive healthcare facilities. See Madsen v. Women’s Health

Ctr., Inc., 512 U.S. 753 (1994); Schenck v. Pro-Choice Network of Western New York, 519 U.S. 357 (1997); Hill v. Colorado, 530 U.S. 703 (2000).4

4Since Hill, at least two circuits have decided cases involving so-called

bubble ordinances and their application to circumstances involving sidewalk counselors and escorts. See McGuire v. Reilly (McGuire I), 260 F.3d

36 (1st Cir. 2001) (reversing a grant of a preliminary injunction against a

statute’s enforcement); McGuire v. Reilly (McGuire II), 386 F.3d 45 (1st

Cir. 2004) (affirming the district court’s decision to uphold the statute on

the merits); Brown v. City of Pittsburgh, 586 F.3d 263 (3d Cir. 2009)

(upholding parts of an ordinance similar to Oakland’s, but striking down

other parts); see also McCullen v. Coakley, 571 F.3d 167 (1st Cir. 2009)

(upholding amended Massachusetts statute in face of a facial challenge).

HOYE v. CITY OF OAKLAND 9659
In Hill, the third case in this trilogy, the Supreme Court

upheld, in the face of a First Amendment challenge, a Colorado statute markedly similar to the Ordinance. See Colo.

Rev. Stat § 18-9-122. The statute, like the Ordinance, created

a buffer zone of 100 feet outside healthcare facilities. Within

that zone, the statute prohibited knowingly approaching

within eight feet of another person, without that person’s consent, for the purpose of “passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or

counseling” that person. Id. 

Because the Ordinance is modeled on the Colorado statute

upheld in Hill, that opinion controls much of our analysis in

this case and leads us to the conclusion that the Ordinance is

a facially valid restriction on the time, place, and manner of

speech. But Hill did not concern in any way the activities of

escorts—that is, individuals engaged in counteracting the

effect of anti-abortion protestors’ speech by facilitating potential patients’ access to clinics. Accordingly, there was no contention in Hill that Colorado enforced its statute only against

anti-abortion speakers. In contrast, Oakland appears to have

read into its Ordinance an exception for speech that facilitates

access to reproductive health services and so has enforced the

Ordinance against anti-abortion speakers but not pro-abortion

speakers. We conclude that, in doing so, Oakland unconstitutionally suppresses speech based on the content of its message. 

Further, because Hill did not concern activities similar to

those of the escorts in this case, the Supreme Court did not

consider whether it would be constitutional to apply an ordinance like Oakland’s to speakers whose attempts to convey

their message are systematically countered by those opposed

to that message. In this opinion, we take up that question

briefly and, guided by the principle that government must

consider the actual conditions speakers encounter when it

restricts their speech, explain that it may be unconstitutional

to apply the Ordinance to speakers if, under the circumstances

9660 HOYE v. CITY OF OAKLAND
surrounding a particular reproductive health clinic at a particular time, the application of the Ordinance would effectively

foreclose speakers’ ability to communicate their message. But

because we would be required to speculate as to prospective

facts, we leave the determination as to whether the Ordinance’s application to Hoye actually has that effect for

another day and a developed record. 

For these reasons, we affirm the District Court’s holding

that the Ordinance is facially valid, but reverse the remainder

of its ruling and remand with instructions to devise appropriate relief.

II.

Before turning to the validity of Oakland’s bubble ordinance, we must address an antecedent question, namely,

whether we should decide this case at all in light of the “national policy forbidding federal courts to stay or enjoin pending state court proceedings except under special

circumstances.” Younger v. Harris, 401 U.S. 37, 41 (1971);

see Columbia Basin Apartment Ass’n v. City of Pasco, 268

F.3d 791, 799-800 (9th Cir. 2001). “The Younger doctrine . . .

counsels federal-court abstention when there is a pending

state proceeding.” Moore v. Sims, 442 U.S. 415, 423 (1979).

State criminal proceedings against Hoye were commenced—

and completed—during the pendency of this federal action.5

But the circumstances in which federal courts should decline

to exercise their jurisdiction “are carefully defined and remain

the exception, not the rule.” Gilbertson v. Albright, 381 F.3d

965, 969 n.2 (9th Cir. 2004) (en banc) (quotation omitted).

We conclude that this case does not fit into the “carefully

defined” Younger exception to mandatory federal jurisdiction.

5Neither party has raised the Younger doctrine, but it “may be raised sua

sponte at any time in the appellate process.” Columbia Basin, 268 F.3d at

799. That the state court proceedings have now ended is not alone a sufficient reason that Younger does not apply. See Beltran v. California, 871

F.2d 777, 782 (9th Cir. 1988). 

HOYE v. CITY OF OAKLAND 9661
Hoye filed this federal case in December, 2007, well before

the district attorney filed a criminal complaint in state court

on June 6, 2008. Cf. Agriesti v. MGM Grand Hotels, Inc. 53

F.3d 1000, 1001 (9th Cir. 1995) (holding that when a citation

had issued but no charging document had been filed with state

court, “there [were] no ongoing state judicial proceedings” for

purposes of Younger abstention). Still, “where state criminal

proceedings are begun against the federal plaintiffs after the

federal complaint is filed but before any proceedings of substance on the merits have taken place in the federal court, the

principles of Younger v. Harris . . . apply in full force.” Hicks

v. Miranda, 422 U.S. 332, 350 (1975). The commencement of

state proceedings only ceases to require federal abstention

after the federal court proceedings have moved beyond an

“embryonic stage.” Doran v. Salem Inn, Inc., 422 U.S. 922,

929 (1975). 

Here, the federal proceedings had begun nearly six months

before the commencement of criminal proceedings in state

court. By that time, the District Court had denied Hoye’s

motion for a temporary restraining order, it had held four status conferences and hearings in this case, and the City Council had amended the Ordinance in response to the District

Court’s expression of its deep reservations about the Ordinance’s constitutionality. Thus, by the time state proceedings

began, the federal proceedings had been long pending, and the

District Court’s intervention in the case had resulted in a significant change in the relative positions of the parties. We

therefore conclude that the federal proceedings had progressed beyond an embryonic stage, so that “considerations of

economy, equity, and federalism counsel against Younger

abstention.” Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229, 238

(1984); see id. (concluding that “a federal court action in

which a preliminary injunction is granted has proceeded well

beyond the ‘embryonic stage’ ”); Adultworld Bookstore v.

City of Fresno, 758 F.2d 1348, 1350-51 (9th Cir. 1985) (holding that Younger abstention was not required when state criminal proceedings began after the district court had conducted

9662 HOYE v. CITY OF OAKLAND
an “extended evidentiary hearing on the question of a preliminary injunction” but had not issued the injunction). 

We therefore turn to consideration of the challenge to Oakland’s “bubble ordinance.”

III.

[1] In Hill, the Supreme Court held that Colo. Rev. Stat

§ 18-9-122(3) was facially constitutional under the time,

place, and manner analysis set forth in Ward v. Rock Against

Racism, 491 U.S. 781 (1989), and Clark v. Cmty. for Creative

Non-Violence, 468 U.S. 288 (1984). Hill, 530 U.S. at 719-

730. In those two cases, the Supreme Court explained that

government may impose restrictions on speech in a public

forum so long as the restrictions “[(1)] are justified without

reference to the content of the regulated speech, [(2)] . . . are

narrowly tailored to serve a significant governmental interest,

and [(3)] . . . leave open ample alternative channels for communication of the information.” Ward, 491 U.S. at 791 (quoting Clark, 468 U.S. at 293). 

The relevant portions of the Ordinance largely replicate the

Colorado statute the Supreme Court considered in Hill, so our

analysis of the Ordinance’s facial constitutionality is mostly

controlled by that case.6 But the Ordinance does depart from

the Colorado statute in some details. We discuss the two most

important such departures but conclude that they are not of

decisive significance to the Ordinance’s facial constitutionality.

6Hill’s reasoning, if not always its result, has been criticized by scholars

of various stripes. See Colloquium, Professor Michael W. McConnell’s

Response, 28 Pepp. L. Rev. 747 (2001) (quoting criticisms of Hill by

Profs. Michael McConnell, Laurence H. Tribe, Erwin Chemerinsky, and

Akhil Amar). 

HOYE v. CITY OF OAKLAND 9663
A.

The first significant difference between the Ordinance and

the Colorado statute is that the Ordinance creates a buffer

zone only outside of “reproductive health care facilit[ies],”

Ord. § 3(b), although the Colorado statute created a buffer

zone outside of all health care facilities, including hospitals.

Colo. Rev. Stat § 18-9-122(3). In fact, the Ordinance does not

apply to hospitals that provide reproductive health services or

to reproductive health facilities operated or owned by hospitals.7

The Ordinance’s preamble suggests that the reasons hospitals,

and clinics owned or operated by hospitals, are excluded are

that “offices and facilities that have patient stays of shorter

duration may be more vulnerable . . . on account of the layout

and design of their facilities and parking areas as well as their

staff deployment” and that “the facilities with the fewest

resources for providing adequate security . . . are those not

affiliated with hospitals.” 

Hoye contends that the narrower range of the Ordinance

shows that it, unlike the statute in Hill, is not content-neutral.

But we fail to see how, under Hill, the Ordinance’s application to a narrower class of healthcare facilities could make it

content-discriminatory. It is true that the Ordinance is more

closely targeted to the kinds of facilities where anti-abortion

activists are likely to gather. But Hill rejected as “flawed” the

“theory that a statute restricting speech becomes unconstitutionally content-based because of its application to the specific locations where that discourse occurs.” Id. at 724

(quotation omitted). Instead, the Supreme Court explained

that the Colorado statute was content-neutral because it “was

not adopted because of disagreement with the message” of the

7The Ordinance defines “a reproductive health facility” as “any facility

that provides reproductive health services [defined elsewhere to include

counseling and informational services] that is not licensed as a hospital,

and is not owned, and/or operated by a licensed hospital.” Ord. § 2(b)

(emphasis added). 

9664 HOYE v. CITY OF OAKLAND
speech it regulates, id. at 719 (quotation omitted), and because

“the statutory language makes no reference to the content of

the [regulated] speech.” Id.; see id. at 725 (explaining that the

statute is content-neutral because it “is not limited to those

who oppose abortion” and “it applies to all . . . demonstrators

whether or not the demonstration concerns abortion”); Ward,

491 U.S. at 791 (“A regulation that serves purposes unrelated

to the content of expression is deemed neutral, even if it has

an incidental effect on some speakers or messages but not

others.” (emphasis added)); Menotti v. City of Seattle, 409

F.3d 1113, 1129 (9th Cir. 2005) (“That Order No. 3 predominantly affected protestors with anti-WTO views did not render

it content based.”).8

For similar reasons, we cannot find a defect of constitutional proportions in the fact that the Ordinance regulates

approaching a narrower class of individuals than the Colorado

statute. The Colorado statute imposed restrictions on

approaching anyone within the buffer zone, see Colo. Rev.

Stat. § 18-9-122(3) (“No person shall knowingly approach

another person . . . .” ), while the Ordinance only regulates

knowingly approaching individuals “seeking to enter” the

reproductive healthcare facility. Ord. § 3(b). The only reason

that this departure from the Colorado statute might be relevant

is that it might exacerbate the already disproportionate effect

the Colorado statute may well have had on anti-abortion messages as compared to pro-abortion messages, or to messages

on subjects having nothing to do with abortion. But, again,

Hill instructs that, in regulating speech immediately outside

reproductive health facilities, disproportionate effect is not of

8We need not—and do not—interpret these statements to mean that a

disproportionate effect on one message never matters in determining

whether a facially neutral regulation is content-based. It may be that in

some circumstances a facially neutral regulation of speech will so disproportionately affect one message as to require a court carefully to consider

the statute’s terms to be sure that they do not incorporate a subtle contentbased standard. 

HOYE v. CITY OF OAKLAND 9665
decisive significance to the content-neutrality inquiry. 530

U.S. at 724-25. 

[2] In sum, given Hill, neither the fact that the Ordinance

applies only to speech outside reproductive health care facilities, not hospitals generally, nor the fact that it protects only

those “seeking to enter” the facilities renders it content-based.9

Instead, we look to whether the Ordinance’s substantive terms

are content-based, and to whether the statute was enacted “because of disagreement with the message” of the speech it regulates, Hill, 530 U.S. at 719 (quotation omitted), to determine

whether it is content-neutral.

B.

Hoye does not contend that the statute was enacted because

of substantive disagreement with the message of the speech it

regulates, nor does the record contain any evidence that it

was. We must therefore examine whether the Ordinance’s

substantive terms make facial distinctions between categories

of speech based on content. 

[3] We begin again with a comparison with Hill, to see

whether there are any differences that would render the Ordinance, but not the Colorado statute, content-based. The Ordinance does regulate slightly different categories of speech

than the Colorado statute in Hill. The Colorado statute

restricted approaching another person “for the purpose of

passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling with” that person.

Colo. Rev. Stat. § 18-9-122(3). The Ordinance restricts

approaching others “for the purpose of counseling, harassing,

9That the Ordinance’s restriction on speech is limited to fewer locations

than the Colorado statute does not make it more vulnerable to constitutional challenge at the narrow-tailoring or ample alternative channels

stages of the time, place, and, manner inquiry. If anything, the opposite

would appear to be true, as more locations remain available to the speaker.

9666 HOYE v. CITY OF OAKLAND
or interfering with” them, § Ord. 3(b), and then defines

“counseling,” “harassing,” and “interfering” so as to incorporate the same expressive activities restricted by the Colorado

statute. See Ord. §§ 2(c), (d) & (e). But the Ordinance then

describes in a new way the regulated category of speech: The

Ordinance’s definition of “counseling” includes “engaging in

conversation,” Ord. § 2(e), a category of speech not expressly

restricted by the Colorado statute. Hoye makes no argument

that this additional language in the Ordinance marks a decisive difference from the Colorado statute for purposes of the

time, place, and manner inquiry. We do not see how it could.

[4] For one thing, the Colorado statute explicitly restricted

“counseling” and “education,” which are largely co-extensive

with “engaging in conversation,” especially in the circumstances to which the Ordinance applies. More importantly,

Hill instructed that, when analyzing the face of a statute to

determine its content-neutrality, the relevant question is

whether the statute draws distinctions among subjects of discussion, not among means or types of communication. 530

U.S. at 723. Oakland’s addition of an express restriction on

“engaging in conversation” in no way changes the fact that it,

like the Colorado statute, “applies equally to used car salesmen, animal rights activists, fundraisers, environmentalists

and missionaries.” Id. Hill therefore requires that we deem the

addition of the “engaging in conversation” language immaterial to the Ordinance’s facial content-neutrality. 

The “engaging in conversation” language also does not

meaningfully affect the narrow-tailoring and ample alternative

channels of communication tests as those tests were applied

by Hill. Hill concluded that the Colorado statute passed both

these inquiries insofar as the spoken word is concerned

because courts “must accord a measure of deference to the

judgment of the . . . [l]egislature” as to whether “the 8-foot

interval is the best possible accommodation of the competing

interests at stake,” id. at 727, and because the statute might

“assist[ ] speakers’ efforts to communicate their messages

HOYE v. CITY OF OAKLAND 9667
[by] encourag[ing] the most aggressive and vociferous protestors to moderate their confrontational and harassing conduct,

and thereby make it easier for thoughtful and law-abiding

sidewalk counselors . . . to make themselves heard.” Id. That

analysis remains unaltered by Oakland’s addition of the

phrase “engaging in conversation” to the Ordinance.

C.

Aside from pointing to differences between the text of the

Colorado statute and that of the Ordinance, Hoye makes two

additional attempts to explain why Hill is not fatal to his

facial challenge to the Ordinance. Neither is persuasive. 

Hoye’s first such argument is more an attempt to reargue

Hill than to distinguish it. He contends that the Ordinance is

not content-neutral because it distinguishes between demonstrators’ speech and “panhandling, solicitation and vending.”

None of the latter types of speech is expressly restricted by

the Ordinance, even though they are expressive activities that

raise similar concerns about “nuisance, the persistent importuning, the following, the dogging, and the implied threat of

physical touching” as demonstrators’ speech. Id. at 724. 

The obvious flaw in this argument is that the Colorado statute upheld in Hill did not in terms prohibit panhandling, solicitation, or vending either. The Supreme Court nonetheless

held that the Colorado statute “does not distinguish among

speech instances that are similarly likely to raise the legitimate concerns to which it responds.” Id. Hoye suggests, in

effect, that Hill made a conditioned finding of contentneutrality (i.e., the statute was content-neutral as between

“protest, education and counseling” and “casual conversation,” see id. at 721-22), but possibly not as between protest

and panhandling. Nothing in Hill suggests such a limited

holding. 

Hoye’s second argument approaches one that we ultimately

find persuasive as an aspect of the selective enforcement con9668 HOYE v. CITY OF OAKLAND
sidered later, but it is not properly part of a facial challenge.

As Hoye points out, in Forsyth County v. Nationalist Movement, the Supreme Court stated that “[i]n evaluating respondent’s facial challenge, we must consider the county’s

authoritative constructions of the ordinance, including its own

implementation and interpretation of it.” 505 U.S. 123, 131

(1992). Hoye argues that this principle requires us to consider

Oakland’s enforcement practices in addressing his facial challenge. We disagree. 

The Supreme Court followed its statement in Forsyth with

three citations. All three are to portions of cases in which the

Supreme Court used the past practice of a statute’s implementation to narrow the statute to save it in the face of a vagueness challenge. See Ward, 491 U.S. at 795-796; City of

Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 770 n.11

(1988); Gooding v. Wilson, 405 U.S. 518, 524-28 (1972).

Hoye points to no instance in which a court has used evidence

of a statute’s implementation to make it more facially vulnerable. Cf. McGuire II, 386 F.3d at 58 (“Logically, there is no

way (save perhaps when overbreadth is an issue) that an

authority’s non-binding and non-authoritative interpretation

of a facially valid statute can make it more facially constitutionally vulnerable than it would be otherwise.”).10 Thus,

although it is true that where “a well-understood and uniformly applied practice has developed that has virtually the

force of a judicial construction,” City of Lakewood, 486 U.S.

at 770 n.11, courts may consider that executive practice for

10It is conceivable that an enforcement policy, even an unwritten one,

could be inseparable from the statute or ordinance, so that the constitutionality of the statute or ordinance may depend on the constitutionality of the

unwritten policy. See, e.g., Virginia v. Hicks, 539 U.S. 113, 121 (2003)

(considering the constitutionality of a written policy and an unwritten

exception together because the Virginia Supreme Court had decided the

two were not severable). Whether state laws are severable is, of course, a

matter of state law. See id. We have no reason to think that California

courts would find Oakland’s unwritten implementation policy inseparable

from the Ordinance as written. 

HOYE v. CITY OF OAKLAND 9669
purposes of a facial challenge, they may do so only to save

a statute, not to condemn an otherwise valid one for being

content-based. 

Illustrative of this distinction is Santa Monica Food Not

Bombs v. Santa Monica, 450 F.3d 1022 (9th Cir. 2006). In

that case, we considered a written implementation instruction

as an authoritative interpretation of a city ordinance, id. at

1035, and determined that the instruction provided an “adequate limiting construction” on certain provisions of the ordinance. Id. at 1042. At the same time, we concluded that the

instruction “fatally undermine[d]” a different provision of the

ordinance, but specifically held that the ordinance “as implemented by the Instruction . . . cannot be enforced,” while noting that the ordinance itself “passes constitutional muster,”

and so could be enforced if implemented in a different manner. Id. at 1043. 

This practice—relying on enforcement policies to save a

statute from a facial challenge but not to invalidate a statute

that is valid as written but not as enforced—is consistent with

“the well-established principle that statutes will be interpreted

to avoid constitutional difficulties.” Frisby v. Schultz, 487

U.S. 474, 483 (1988). Moreover, it would make little sense to

invalidate a statute that is constitutional as written when only

its implementation is defective. Doing so would only require

legislative bodies to undertake the pointless exercise of reenacting laws that were perfectly valid as enacted on the first

go around. 

Hoye’s evidence of Oakland’s implementation of the Ordinance therefore cannot alter our conclusion that the Ordinance

withstands Hoye’s facial challenge. Nonetheless, Hoye’s

appeal to the City’s enforcement practices is otherwise relevant. We understand Hoye to argue that the City enforces the

Ordinance in a content-discriminatory manner, or—much the

same point—that the rule that the City actually enforces, distinct from the Ordinance, is content discriminatory and

9670 HOYE v. CITY OF OAKLAND
unconstitutional. It is to these essentially similar possibilities

that we now turn.11

IV.

We agree with Hoye that there are grave constitutional

problems with the manner in which the City has understood

and enforced its Ordinance. In considering the City’s enforcement and application of the Ordinance, we follow an analysis

that is precise and technical, perhaps regrettably so. But

11Hoye’s allegations of vagueness need not detain us. Hoye contends

that the Ordinance’s use of the terms “approach” and “consent” are impermissibly vague. But the Ordinance uses these terms in precisely the same

manner as the Colorado statute. See Hill, 530 U.S. at 732-33. The Ordinance cannot therefore be vague in these respects for the same reasons that

Hill held the Colorado statute not to be vague. See id.

To distinguish Hill, Hoye argues that the Ordinance only makes it

unlawful to “willfully and knowingly approach within eight (8) feet of any

person seeking to enter” a reproductive healthcare facility, Ord. § 3(b), not

to approach a person exiting a healthcare facility. Hoye appears to be

right: while the statute elsewhere refers to individuals exiting clinics, see

Ord. §§ 2(d), (e) & (f), it does not in fact make it an offense to approach

a person exiting the clinic. This omission is likely the result of a failure

of legislative draftsmanship. But that the City thinks the Ordinance, as

currently written, covers individuals leaving the clinics does not render the

statute vague; the text is perfectly clear. An individual prosecuted by the

City for counseling someone exiting the clinic would have a good defense,

but that defense would lie in the Ordinance’s text, not in the vagueness

doctrine. 

Hoye also observes that the statute restricts approaching “any occupied

motor vehicle seeking entry” to a reproductive healthcare facility; he wonders “how long is [a vehicle] considered to be ‘seeking entry’ versus being

simply parked at the curb?” Despite Hoye’s protests to the contrary, this

quibble amounts to pettifoggery. The only plausible reading of the Ordinance is that a vehicle is seeking entry so long as one of its occupants is

seeking entry to the clinic. Unoccupied parked cars do not count. The

Ordinance provides any person “of ordinary intelligence a reasonable

opportunity to understand what conduct i[s] prohibited.” Hill, 530 U.S. at

732; see id. at 733 (dismissing plaintiffs’ vagueness challenge as involving

no more than “hypertechnical theories as to what the statute covers”). 

HOYE v. CITY OF OAKLAND 9671
beneath the doctrinal intricacies lie two simple principles: that

government may not favor speakers on one side of a public

debate, and that government must not substantially foreclose,

as a practical matter, speakers’ ability to communicate their

message.

A.

Hoye’s challenge to Oakland’s enforcement of the Ordinance relies primarily on three pieces of evidence concerning

the City’s enforcement policy: an Oakland Police Department

training video, a Police Department training bulletin, and the

deposition of an Oakland Police Department captain pursuant

to Fed. R. Civ. P. 30(b)(6). The Oakland Police Department

training materials outline the Ordinance in vague terms that

do not deviate in any substantial way from the Ordinance

itself, which we have held is facially constitutional. Captain

Toribio’s deposition, quoted at length below, is more troubling as it suggests a firm policy of enforcing the Ordinance

essentially as it was written before being amended—that is, as

applying only to efforts to persuade women approaching

reproductive health clinics not to receive abortions or other

reproductive health services, and not to communications seeking to encourage entry into the clinic for the purpose of undergoing treatment. That account is fully corroborated by—and

we find dispositive—Oakland’s admissions throughout this

litigation that it understands and enforces the Ordinance in a

content-discriminatory manner. 

In response to Hoye’s notice of deposition pursuant to Fed.

R. Civ. P. 30(b)(6), Oakland produced Police Department

Captain Toribio as the person most knowledgeable of Oakland’s “policies, procedure, and interpretations relating to

enforcement” of the Ordinance. Captain Toribio testified that

“the City’s enforcement policy is not to enforce the Bubble

Ordinance against escorts acting as escorts.” By this, Toribio

apparently meant that the City does not enforce the Ordinance

in such a manner as to require escorts to receive consent

9672 HOYE v. CITY OF OAKLAND
before approaching patients to engage in speech with them.

Toribio’s further testimony confirms this interpretation:

Q. Now, if [an] officer . . . informs you that [an]

escort had approached a woman within eight feet,

without her consent, and said “Don’t listen to the

demonstrators,” would that be considered to be a

violation of the ordinance or not? 

THE WITNESS: Our policy is clear in what it says.

A comment like that is not harassment or intimidating. It is language used to help facilitate their

entrance into the facility or maybe even their exit.

Q. If an escort were to say, “Don’t take those leaflets

they’re going to try to hand to you,” would that be

considered a violation?

THE WITNESS: No. 

Q. If an escort were to say “Those leaflets have inaccurate information in them, ” would that be considered a violation?”

A. No.

Q. If an escort were to say, “It’s your right to have

an abortion,” would that be considered a violation?

A. Our policy is clear. That would not be a violation

of the policy. 

Q. And, again, I’m sorry. I may have taken a shortcut here in each one of these hypotheticals. 

I’m meaning an escort approaches within eight

feet of a patient seeking to enter the facility without

the patient’s consent. And, again, that does not

change your answer, that these escorts saying these

HOYE v. CITY OF OAKLAND 9673
things is not a violation of the ordinance? 

A. Correct.12

At oral argument, the City confirmed that it would not

enforce the Ordinance against an escort who approached a

patient, without consent, and said, “May I help you into the

clinic?” but that it would enforce it against a sidewalk counselor who said, “May I talk to you about alternatives to the

clinic?” The City explained its position as being that speech

that “facilitates access” to the clinic does not trigger the Ordinance’s consent requirement, while speech that does not facilitate access does trigger it.13

12The District Court ruled that many of the above questions were properly objected to as calling for speculation, and that Toribio’s answers did

not establish “that escorts make such statements, or that police turn a blind

eye to them.” But Toribio’s answers were not speculative; instead, they

simply stated, with some certainty, what the City’s enforcement policy is.

Moreover, all of the questions were asked in an attempt to ascertain the

City’s enforcement policy. In a sense, questions about a general policy are,

by their very nature, always hypothetical: a policy provides what officers

should do under certain hypothetical circumstances. We would be setting

an impossibly high bar for plaintiffs if we were to require them to establish a municipality’s policy and then to exclude as inadmissible a responsible police official’s testimony as to what the municipality’s policy is. 

13At times, the City has seemingly formulated its position as being that

speech that is incidental to facilitating access is not covered by the Ordinance. In distinguishing between incidental and purposive speech, we take

Oakland to be arguing that there is a basis in the Ordinance to distinguish

between escorts’ speech and Hoye’s speech because the Ordinance only

restricts approaching “for the purpose” of engaging in various forms of

communicative activity. The contention is that escorts acting as escorts do

not approach patients for the purpose of engaging in the relevant forms of

communicative activity; they approach for the purpose of guiding women

into the clinic. 

But Oakland’s reliance on the Ordinance’s “for the purpose of” language must be evenhanded if it is to be persuasive (or, for that matter, constitutional). If the escorts’ speech does not violate the Ordinance because

it is incidental to some non-communicative goal, then Hoye’s speech

could similarly be characterized as incidental to his goal of keeping

women from entering the clinic and aborting their fetuses. Yet the City

9674 HOYE v. CITY OF OAKLAND
On the face of the Ordinance, there is no distinction

between speech facilitating access and speech that inhibits

access. Of course, that distinction used to exist. The Ordinance, as originally enacted, singled out speech made “in an

effort to harass, intimidate, or persuade the individual not to

access such reproductive health services,” Ord. § 2(f)

(emphasis added) and “for the purpose of interfering with [a]

person’s . . . obtaining or providing reproductive health services.” Ord. § 3(b). After the hearing on the application for a

temporary restraining order, the City, at District Judge

Breyer’s suggestion, amended the Ordinance to remove the

quoted language from the Ordinance’s text. But, as Captain

Toribio’s deposition and the City’s representations at argument make clear, the City continues to enforce the Ordinance

as if the distinction remained. Embracing that distinction as

the fulcrum of an enforcement policy, even for a facially valid

enactment, is inconsistent with the First Amendment. We first

explain why that is so, and then we consider the practical

implications of the City’s decision to read an unconstitutional

distinction into a facially valid ordinance.

B.

The City’s policy of distinguishing between speech that

facilitates access to clinics and speech that discourages access

is not content-neutral. It is the epitome of a content-based

speech restriction. “A regulation is content-based if . . . the

regulation, by its very terms, singles out particular content for

differential treatment.” Berger v. City of Seattle, 569 F.3d

1029, 1051 (9th Cir. 2009) (en banc) (quotation omitted).

“[T]he fundamental principle behind content analysis is that

clearly does not understand the Ordinance to exempt Hoye’s speech. In

any case, even if the distinction between purposive and incidental speech

could coherently be made, we have said that privileging the latter over the

former “turns the First Amendment on its head.” Foti v. City of Menlo

Park, 146 F.3d 629, 639 (9th Cir. 1998). 

HOYE v. CITY OF OAKLAND 9675
government may not grant the use of a forum to people whose

views it finds acceptable, but deny use to those wishing to

express less favored or more controversial views.” Menotti,

409 F.3d at 1128 (quotation omitted); see also Rosenberger

v. Rector & Visitors of the Univ. of Virginia, 515 U.S. 819,

829 (“Viewpoint discrimination is . . . an egregious form of

content discrimination”). In Hill, the Supreme Court reiterated

these principles, holding that Colo. Rev. Stat. § 18-9-122 was

content-neutral because it applies “to all protest, to all counseling, and to all demonstrators whether or not the demonstration concerns abortion, and whether they oppose or support

the woman who has made an abortion decision.” 530 U.S. at

725 (quotation omitted) (emphasis added). “That is the level

of neutrality that the Constitution demands.” Id. 

[5] The City’s enforcement policy does not meet this level

of neutrality. To distinguish between speech facilitating

access and speech that discourages access is necessarily to

distinguish on the basis of substantive content. Asking a

woman “May I help you into the clinic?” facilitates access;

“May I talk to you about alternatives to abortion?” discourages it. Telling a woman, “It’s your right to have an abortion!” facilitates access; telling her, “If you have an abortion,

you will regret it!” discourages it. Here, the City has conceded, both at oral argument and through Captain Toribio’s

deposition, that its policy is to permit speech on one side of

a controversial public debate, but not on the other. The City’s

implementation and enforcement of the Ordinance is therefore

indubitably content-based. 

Possibly the City reads Hill as authorizing the government

to regulate speech so as to protect patients from any speech

that offends their dignity or privacy, even if the offense stems

not from the manner of speech but from the words that are

spoken. Protecting privacy and dignity will often require distinctions between content: “You’re a babykiller!” offends a

woman’s dignity and privacy; “It’s your right to have an abortion!” often will not. 

9676 HOYE v. CITY OF OAKLAND
In some cases, government regulation of speech with the

aim of protecting the dignity and privacy of individuals has

been permitted. See, e.g., Frisby, 487 U.S. at 484-87 (describing “the State’s interest in protecting the well-being, tranquility, and privacy of the home” and permitting the State to

“prohibit offensive speech [that is] intrusive” on that privacy

(quotation omitted)); cf. Berger, 569 F.3d at 1054 (observing

that the State may, in some cases, restrict speech to protect

“the psychological [and] physical well-being of the [hospital]

patient held ‘captive’ by medical circumstance”). But such

cases do not sanction content-based restrictions. They only

accept the dignity and privacy rationale as a sufficiently

strong governmental interest to justify a content-neutral time,

place, and manner restriction. 

As the Supreme Court has recently explained, whether the

State may regulate speech because of its offensive nature

“turns largely on whether that speech is of public or private

concern.” Snyder v. Phelps, 131 S.Ct. 1207, 1215 (2011).14

Regulations of speech in public fora on matters of public concern directed at others within the public forum must be

content-neutral or survive strict scrutiny. “It is firmly settled

that under our Constitution the public expression of ideas may

not be prohibited merely because the ideas are themselves

offensive to some of their hearers.” Street v. New York, 394

U.S. 576, 592 (1969) (emphasis added); see Schenck, 519

U.S. at 383 (explaining that “[a]s a general matter, we have

indicated that in public debate our own citizens must tolerate

14For example, the First Amendment does not necessarily require a

showing of actual malice by all plaintiffs seeking to recover for the torts

of outrage or intentional infliction of emotional distress, but it does require

that showing of plaintiffs who are “public figures and public officials.”

Hustler Magazine v. Fallwell, 485 U.S. 46, 55 (1988). “Deciding whether

speech is of public or private concern requires [a court] to examine the

content, form, and context of that speech, as revealed by the whole

record.” Snyder, 131 S.Ct. at 1216 (quotation omitted). But there can be

no doubt that speech in a public forum on a controversial public matter

directed at others within the public forum is speech of public concern. 

HOYE v. CITY OF OAKLAND 9677
insulting, and even outrageous, speech” (emphasis added)

(quotation omitted)); Boos v. Barry, 485 U.S. 312, 322 (1988)

(holding a regulation imposing a dignity standard on public

speech inconsistent with the First Amendment); Cantwell v.

Connecticut, 310 U.S. 296, 309 (1940) (protecting religious

and political speech on a sidewalk even though it “naturally

would offend . . . all . . . who respect the honestly held religious faith of their fellows”); see generally Robert C. Post,

The Constitutional Concept of Public Discourse: Outrageous

Opinion, Democratic Deliberation, and Hustler Magazine v.

Falwell, 103 Harv. L. Rev. 601 (1990) (arguing that First

Amendment doctrine prohibits the enforcement of rules

imposing norms of civility and dignity on public discourse).

If Hill had upheld the Colorado statute as permissible

because the sidewalk counselors’ speech directed at patients

seeking reproductive health services was not speech of public

concern or because those patients were not truly engaged in

public debate, an effort by the City to “facilitate access” by

regulating offensive speech might come closer to passing constitutional muster. But while a few passages in Hill might suggest otherwise, see 530 U.S. at 716 (noting that “[t]he

recognizable privacy interest in avoiding unwanted communication varies widely in different settings”), the Supreme Court

ultimately upheld the Colorado statute because it determined

the statute to be content-neutral, not because it held that the

State could legitimately protect listeners from speech that was

offensive only because of the words spoken. Nothing in Hill

undermines the bedrock principle that regulations of public

speech designed to protect listeners in public fora from substantively offensive speech are fundamentally incompatible

with content-neutrality. Oakland’s enforcement policy is

therefore a content-based regulation of speech. 

[6] “Content-based regulations are presumptively invalid.”

R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992). A

content-based regulation of public speech is only permissible

if “it serves a compelling government interest in the least

9678 HOYE v. CITY OF OAKLAND
restrictive manner possible.” Berger, 569 F.3d at 1052. The

City has made no argument that its policy of enforcing the

Ordinance can survive such strict scrutiny. Indeed, no persuasive such argument can be made. While ensuring access to

women’s health care may well be a sufficiently compelling

state interest for purposes of strict scrutiny, the City’s

enforcement policy is not the least restrictive means of pursuing that interest. “The existence of adequate content-neutral

alternatives . . . undercuts significantly any defense” of a

content-based regulation of speech. R.A.V., 505 U.S. at 395

(quotation omitted). Enforcing the Ordinance as written, that

is, as also applying to speech that encourages patients to enter

the clinic, is a content-neutral alternative that is less inimical

to the values at the heart of the First Amendment than the

City’s current policy of exempting such speech. The City has

not made any attempt to show that exempting speech facilitating access from the Ordinance’s strictures furthers the City’s

stated goal of providing access to reproductive health services, let alone to the degree that would allow us to conclude

that the enforcement policy is the least restrictive means of

ensuring access to reproductive health services. We therefore

cannot conclude that the Ordinance, as understood and

enforced by the City, is one of those “rare . . . regulation[s]

restricting speech because of its content” that is nonetheless

permissible. United States v. Playboy Entm’t Grp., Inc., 529

U.S. 803, 818 (2000).

C.

The apparent divergence in our two conclusions—that Oakland’s bubble ordinance is facially constitutional but that the

City interprets and enforces the Ordinance in an impermissibly content-based manner—is not unprecedented. In Menotti,

for example, we concluded that Seattle’s Civil Emergency

Order No. 3 was a constitutional time-place-and-manner

restriction on its face, 409 F.3d at 1142, but remanded for a

trial on whether “it was the policy of the City to apply Order

No. 3 in a manner that excluded only anti-WTO protestors.”

HOYE v. CITY OF OAKLAND 9679
Id. at 1148. Courts must be willing to entertain the possibility

that content-neutral enactments are enforced in a contentdiscriminatory manner. If they were not, the First Amendment’s guarantees would risk becoming an empty formality,

as government could enact regulations on speech written in a

content-neutral manner so as to withstand judicial scrutiny,

but then proceed to ignore the regulations’ content-neutral

terms by adopting a content-discriminatory enforcement policy. 

While courts must undoubtedly make doctrinal space for

challenges to the content-discriminatory enforcement of

content-neutral rules, it is not clear into which precise category of constitutional claims such challenges fit. See, e.g.,

Thomas v. Chicago Park Dist., 534 U.S. 316, 325 (2002)

(observing, without elaboration, that a pattern of denying

waivers to disfavored speakers under an otherwise valid statute “would of course be unconstitutional”). The First Circuit

has considered a challenge to a Massachusetts statute, similar

to the Ordinance in many respects, that regulated speech in

the space outside of clinics in which escorts and anti-abortion

protestors were present. See McGuire I, 260 F.3d 36 (1st Cir.

2001) (reversing grant of preliminary injunction); McGuire II,

386 F.3d 45 (1st Cir. 2004) (affirming denial of permanent

injunction). The McGuire cases upheld the Massachusetts

statute as facially valid, McGuire I, 260 F.3d at 43-50;

McGuire II, 386 F.3d at 56-69, and also rejected a challenge

to the Commonwealth’s enforcement of the statute, McGuire

II, 386 F.3d at 59-65, classifying the selective enforcement

challenge as an “as-applied” attack. Although we ultimately

depart from its reasoning in some respects, we find the First

Circuit’s discussion of that “as-applied” challenge instructive.

The First Circuit explained that, in its view, “there are different types of as-applied attacks.” McGuire II, 386 F.3d at

61; see also Brown, 586 F.3d at 289 (also considering “two

types of as-applied challenges” to a bubble ordinance). While

the “paradigmatic” type of as-applied challenge is one that

9680 HOYE v. CITY OF OAKLAND
“tests” a statute’s “constitutionality in one particular fact situation while refusing to adjudicate the constitutionality of the

law in other fact situations,” the First Circuit concluded that

the sidewalk counselors must be making an as-applied challenge “of a different sort.” McGuire II, 386 F.3d at 61. It

explained that this second kind of as-applied challenge “must

be based on the idea that the law itself is neutral and constitutional in all fact situations, but that it has been enforced selectively in a viewpoint discriminatory way.” Id. at 62. “Such a

challenge,” it explained, “is dependent on the factual evidence

provided as to how the statutory scheme has in fact operated

vis-à-vis the plaintiffs.” Id. The First Circuit then concluded

that “some showing of intent on the part of government officials probably is necessary to make out” the second kind of

as-applied First Amendment claim, id. at 63, before ultimately

determining that there was no such evidence in the record. Id.

at 65.

Our Circuit has taken a slightly different path. The First

Circuit’s “second” kind of as-applied challenge is essentially

a selective enforcement claim that adopts the framework of

Yick Wo v. Hopkins, 118 U.S. 356 (1886), but substitutes

“speech content” for one of the more familiar protected

classes, such as “race” or “national origin.” We have made

clear that such a claim is available, but have usually not categorized it as an “as-applied” First Amendment challenge.

Instead, we have generally classified such challenges as selective enforcement equal protection claims. See Foti, 146 F.3d

at 635 (distinguishing between a selective enforcement claim

and an as-applied challenge and noting that the latter “does

not implicate the enforcement of the law against third parties”; also observing that “[i]nadequate evidence of . . .

alleged discriminatory enforcement of the ordinance does not

defeat [an] as-applied challenge”); Vlasak v. Superior Court

ex rel. County of Los Angeles, 329 F.3d 683, 690 (9th Cir.

2003) (explaining that the petitioner’s “as-applied challenge

appears to conflate her argument that the ordinance is unconstitutional as specifically applied to her and her claim of

HOYE v. CITY OF OAKLAND 9681
selective prosecution”); Rosenbaum v. City and Cnty. of San

Francisco, 484 F.3d 1142, 1152-57 (9th Cir. 2007) (considering a viewpoint discrimination claim as a selective enforcement claim under the Equal Protection Clause); but cf.

Menotti, 409 F.3d at 1146-47 (referring to a selective enforcement challenge as an “as-applied” challenge). 

Any difference between these two approaches is, at least in

this case, semantic rather than substantive. Under both the

First Circuit’s “as-applied” approach and our standard “selective enforcement” approach, a plaintiff must show that a

municipality’s content-discriminatory enforcement of an ordinance is the result of an intentional policy or practice. See

McGuire II, 386 F.3d at 63-64; Brown, 586 F.3d at 292;

Rosenbaum, 484 F.3d at 1155; Menotti, 409 F.3d at 1147. 

Because both the First Circuit’s “as-applied” approach and

our Circuit’s selective-enforcement approach require that

some official policy have caused the content-discriminatory

enforcement, both approaches converge with a third analytical

framework: namely, a facial challenge to the city’s enforcement policy (as distinct from a facial challenge to the legislative enactment as written). Under both the First Circuit

approach and the selective enforcement approach, plaintiffs

are generally required to show the existence of an unconstitutional policy by extrapolating from a series of enforcement

actions. They must argue, in effect, that these actions demonstrate that the municipality is enforcing against them a rule

that is distinct from the constitutionally valid enactment. In

other words, they “attack[ ] [an] unwritten policy as manifested in the [municipality’s] application of its written [ordinance].” Tipton v. Univ. of Hawaii, 15 F.3d 922, 927 (9th Cir.

1994). Logically speaking, “[s]uch an attack bears much in

common with a facial challenge on written policy.” Id. The

primary—indeed, perhaps only—difference is an evidentiary

one. Plaintiffs have no difficulty establishing what a policy is

when the policy is written. An unwritten policy, by contrast,

is usually harder to establish. Often, the only way to establish

9682 HOYE v. CITY OF OAKLAND
whether such a policy exists is to extrapolate from enforcement data, in many cases a formidable task. 

But that is not so in this case. Here, unlike in McGuire II

or any of the other cited authorities, the plaintiffs do not need

to extrapolate from concrete enforcement actions to determine

whether the government has a policy of enforcing the neutral

written rule in a content-discriminatory manner. Instead, the

City’s own pronouncements definitively articulate a contentdiscriminatory enforcement policy. As a result, the three analytical approaches—the First Circuit’s “second kind” of asapplied challenge, our Circuit’s “selective enforcement” challenge, and a facial attack on an unwritten rule—converge in

all respects. Oakland has acknowledged having a policy of

enforcing the Ordinance based on the content of speech. That

policy is unconstitutional, no matter the analytical approach

taken.15

D.

[7] Although the circumstances of this case do not require

us to choose the applicable doctrinal category, they do present

a remedial puzzle. Oakland insists that it has no enforcement

policy distinct from the Ordinance. Although we have no reason to doubt that Oakland’s content-based interpretation of

the Ordinance is made in good-faith, we reject that interpretation as a plausible reading of the Ordinance; indeed, if we did

not, we would have to declare the Ordinance facially invalid

under Hill.

16 In our view, Oakland is instead enforcing a dif15As noted, Hoye has advanced state and federal equal protection challenges to the Ordinance and its enforcement, in addition to his First

Amendment claims. 

16The meaning of the Ordinance is ultimately a state-law question so it

would be “our duty, of course, to accept [an authoritative] state judicial

construction of the ordinance.” Shuttlesworth v. City of Birmingham, 382

U.S. 87, 91 (1965). There is no pertinent such construction, however. And

we very much doubt that the California courts would interpret the Ordinance as containing an exception for speech that “facilitates access” to the

clinic, as no such exception is apparent in the Ordinance’s text, and the

addition of one would, far from preserving the Ordinance’s constitutionality, foreclose it. 

HOYE v. CITY OF OAKLAND 9683
ferent, unwritten, rule—one with an unmistakable resemblance to the old version of the Ordinance, the one that

restricted engaging in conversation “in an effort to harass,

intimidate, or persuade that individual not to access . . . reproductive health services.” Because that rule—i.e., the Ordinance as erroneously understood by Oakland—is

impermissibly content-discriminatory, we must craft a remedy

designed to foreclose its continued enforcement, while preserving the facially valid Ordinance. 

It would seem anomalous for a court to enjoin the enforcement of a facially constitutional Ordinance. On the other

hand, it would be meaningless to enjoin Oakland’s erroneous

interpretation of the Ordinance: Oakland has insisted that

there is no distinction between the actual Ordinance and what

it enforces. In other words, there is no question that, under

Hill, the City can restrict the speech of anti-abortion protestors like Hoye, but it is only constitutional for it to restrict

anti-abortion protestors’ speech under a rule that also restricts

pro-abortion speech. The Ordinance, as written, is such a

valid rule; the Ordinance as interpreted and enforced by Oakland is not. The question is how to ensure that the rule

enforced by Oakland is a content-neutral one, i.e. the rule that

we believe the Ordinance actually pronounces, and not a

content-discriminatory rule, i.e., the rule that Oakland erroneously enforces.

[8] The District Court, with its greater familiarity with the

facts and parties, is better positioned than we to address this

remedial question. On remand, the District Court should enter

declaratory judgment in favor of Hoye, declaring that (1)

Oakland’s policy of exempting speech “facilitating access” to

clinics from the coverage of the Ordinance violates the First

Amendment and that (2) the Ordinance, as written, does not

exempt such speech and so is facially constitutional. If the

District Court concludes that declaratory relief alone will be

inadequate to change the City’s enforcement policy (and that

Hoye satisfies the standard criteria for injunctive relief), it

9684 HOYE v. CITY OF OAKLAND
should then consider enjoining the City from continuing to

enforce the Ordinance.17

V.

[9] We have discussed what McGuire II called a “second

kind” of as-applied challenge, addressing it as identical to a

facial challenge to the City’s enforcement policy. Hoye also

brings a paradigmatic as-applied challenge, arguing that it is

unconstitutional to apply the Ordinance to him because, given

all the circumstances, his ability to communicate is unduly

constricted. The First Circuit considered such a challenge but

rejected it. McGuire II, 386 F.3d at 61. Again, we find the

First Circuit’s discussion helpful, but conclude in the end that

we cannot resolve this challenge given our other holdings. 

As a general matter, a facial challenge is a challenge to an

entire legislative enactment or provision. See Foti, 146 F.3d

at 635 (explaining that a statute is facially unconstitutional if

“it is unconstitutional in every conceivable application, or it

seeks to prohibit such a broad range of protected conduct that

it is unconstitutionally overbroad”) (internal quotation marks

omitted). If it does not charge statutory overbreadth, “a facial

challenge must fail where the statute has a plainly legitimate

sweep.” Wash. State Grange v. Wash. State Republican Party,

552 U.S. 442, 449 (2008) (quotation omitted). A paradigmatic

as-applied attack, by contrast, challenges only one of the rules

in a statute, a subset of the statute’s applications, or the application of the statute to a specific factual circumstance, under

the assumption that a court can “separate valid from invalid

subrules or applications.” Richard H. Fallon, Jr., As-Applied

17Of course, even if the District Court enjoins Oakland’s enforcement

of the Ordinance altogether, the City could later apply for the injunction

to be lifted or modified if it made a sufficient showing that it had adopted

and would apply an evenhanded enforcement policy. See Dombrowksi v.

Pfister, 380 U.S. 479, 492 (1965); Younger v. Harris, 401 U.S. 37, 50-51

(1971). 

HOYE v. CITY OF OAKLAND 9685
and Facial Challenges and Third-Party Standing, 113 Harv.

L. Rev. 1321, 1334 (2000); see Legal Aid Serv. v. Legal Aid

of Oregon, 608 F.3d 1084, 1096 (9th Cir. 2010) (“Facial and

as-applied challenges differ in the extent to which the invalidity of a statute need be demonstrated.” (quotation omitted)

(emphasis in original)). Because the difference between an asapplied and a facial challenge lies only in whether all or only

some of the statute’s subrules (or fact-specific applications)

are being challenged, the substantive legal tests used in the

two challenges are “invariant.” Id. (quotation omitted). 

Applying these principles, the First Circuit in McGuire II

first observed that the “plaintiffs d[id] not and cannot argue

that they are different types of actors, or that they are involved

in a different type of fact situation, from the ones on the basis

of which the law was already upheld facially.” McGuire II,

386 F.3d at 61. It reasoned then that the as-applied challenge

brought by sidewalk counselors necessarily failed, because

“the fact situation that [they] are involved in here is the core

fact situation intended to be covered by this buffer zone statute, and it is the same type of fact situation that was envisioned by this court when the facial challenge was denied.”

Id. While we agree with the First Circuit’s analytical framework, Hoye here argues that he is “involved in a different type

of fact situation[ ] from the one[ ] on the basis of which the

law was . . . upheld facially.” Id.

Our facial analysis of the statute was controlled by Hill, a

case in which there was no suggestion that the anti-abortion

activists’ ability to communicate in accord with the challenged statute was being impeded by the efforts of opposing

speakers. In concluding that the Colorado statute, as a facial

matter, was narrowly tailored and left open ample alternative

channels of communication, the Supreme Court reasoned, for

example, that “[s]igns, pictures, and voice itself can cross an

8-foot gap with ease.” Hill, 530 U.S. at 729. That observation

led the Supreme Court to the conclusion that the Colorado

9686 HOYE v. CITY OF OAKLAND
statute would “not have any adverse impact on the readers’

ability to read signs displayed by demonstrators.” Id. at 726.

As noted at the outset, a valid time-place-and-manner regulation must “leave open ample alternative channels for communication.” Ward, 491 U.S. at 791 (quotation omitted).

“[A]n alternative is not ample if the speaker is not permitted

to reach the intended audience.” Berger, 569 F.3d at 1049

(quotation omitted). In the factual circumstances assumed in

Hill and controlling our analysis as to the facial challenge, the

Ordinance does leave “ample alternative channels for communication.” 

Hoye contends, however, that escorts regularly inhibit his

speech by covering up his sign and drowning out his spoken

words. The escorts have, of course, their own constitutionally

protected free-speech interests at stake, including one in

expressing their own firm conviction that the emotional wellbeing of women requires insulating them from those seeking

to challenge, sometimes starkly and unpleasantly, their decision to consider an abortion procedure. Still, the escorts’ freespeech interests do not diminish their on-the-ground impact

on Hoye’s prospects for communicating his message. 

The First Circuit, and the District Court here, dismissed

concerns about the impact of escorts’ activities on antiabortion protestors’ ability to communicate their messages on the

basis that the escorts’ interactions with sidewalk counselors

were mere “private jousting in the speech marketplace,”

McGuire II, 386 F.3d at 60, involving no state action. That

characterization is accurate to the degree the escorts are communicating opposing messages, as the First Amendment

offers no protection against countervailing speech. See Buckley v. Valeo, 424 U.S. 1, 48-49 (1976). 

As to the relevance of efforts by the escorts to prevent

Hoye’s message from being communicated, the factual predicate of an as-applied challenge does not need to be created by

HOYE v. CITY OF OAKLAND 9687
the State. In Hill, for instance, the Supreme Court expressly

invited as-applied challenges where “[s]pecial problems arise

[because] clinics have particularly wide entrances or are situated within multipurpose office buildings.” 530 U.S. at 730.

The State does not design clinics with wide entrances or place

them in multipurpose office buildings; instead, the only relevant state action would be the application of the statute to

such factual settings. Cf. Galvin v. Hay, 374 F.3d 739, 754-55

(9th Cir. 2004) (sustaining an as-applied challenge in light of

a “sight line partially obstructed by trees” relevant at the

narrow-tailoring stage). 

So whether the Ordinance is unconstitutionally restricting

Hoye’s speech is ultimately a causation question based on the

particular facts: Does the Ordinance as applied to the actual

circumstances—including the attempts by others to stifle

Hoye’s speech, as opposed to simply countering it with

opposing messages—foreclose ample alternative channels of

communication? In other words, Hoye will bear the burden of

showing that it is the Ordinance’s requirement that he obtain

consent to approach, not the activities of escorts alone, that

deprives him of ample alternative means of communication.

[10] In the end, we cannot determine on the present record

whether Hoye can meet that burden. Any resolution of Hoye’s

paradigmatic as-applied challenge could only be relevant to

future applications of the Ordinance. We have previously

declined to entertain as-applied challenges that would require

us to speculate as to prospective facts. See, e.g., Hotel Emp.

& Rest. Emp. Int’l Union v. Nev. Gaming Comm’n, 984 F.2d

1507, 1517 (9th Cir. 1993); Polykoff v. Collins, 816 F.2d

1326, 1338 (9th Cir. 1987); cf. Wolfson v. Brammer, 616 F.3d

1045, 1060 (9th Cir. 2010) (explaining that ripeness doctrine

includes a “prudential component” that requires evaluation of

“the fitness of the issues for judicial decision”). We have

already held Oakland’s application of the Ordinance to Hoye,

under its current enforcement policy, unconstitutional because

tainted by the content-discriminatory policy. Even if the

9688 HOYE v. CITY OF OAKLAND
application of the Ordinance has in the past deprived Hoye of

ample channels of communication, that defect may be cured

if Oakland begins to enforce the Ordinance in an evenhanded

manner. Consequently, Hoye’s second kind of as-applied

challenge is dependent on fluid and future facts.

VI.

To recapitulate, we reach three separate conclusions. 

First, the Ordinance is facially constitutional. That is to say,

we do not find any relevant differences between the Ordinance’s purpose and text and those of the Colorado statute

that the Supreme Court held to be constitutional in Hill. 

Second, as to Hoye’s challenge to the enforcement of the

Ordinance, we hold that Oakland’s enforcement policy is a

constitutionally invalid, content-based regulation of speech.

By adopting that policy, Oakland has taken sides in a public

debate in a manner that, as Hill itself explained, the Constitution does not permit. But because this problem is not a problem with the Ordinance itself, we remand this case to the

District Court to craft a remedy that ensures that Oakland will

adopt and henceforth apply a policy that enforces the Ordinance as written, that is, in an evenhanded, constitutional

manner. 

Third, as to Hoye’s challenge to whether Oakland may

apply the Ordinance to situations in which doing so would

prevent him from communicating his message, we conclude

that the success of the challenge depends on Oakland’s future

enforcement policy and the particular circumstances in which

that policy may be applied. We therefore do not reach that

challenge but also do not preclude Hoye from bringing such

a challenge in the future. 

For the foregoing reasons, we AFFIRM in part and

REVERSE in part the ruling of the District Court. We

HOYE v. CITY OF OAKLAND 9689
REMAND the case to the District Court with instructions to

grant Hoye’s motion for summary judgment in part and to

grant him relief consistent with this opinion. 

9690 HOYE v. CITY OF OAKLAND
APPENDIX

mended Oakland City Council Ordinance No. 1286018

WHEREAS, safe and unimpeded access to reproductive

health care services is critically and uniquely important to the

public health, safety, and welfare so that persons desiring or

needing access to such services should not be intimidated,

hampered, impeded, harassed, or restrained from obtaining

those services; and

WHEREAS, persons attempting to access reproductive

health care facilities to obtain reproductive health care services have been subject to harassing or intimidating activity

from extremely close proximity, tending to hamper or impede

their access to those facilities and services; and

WHEREAS such activity in close proximity subverts the

right to privacy of those reproductive health care services, a

right that is protected by the United States Constitution and

the Freedom of Access to Clinic Entrances Act, U.S.C.S. Section 248, and is explicitly guaranteed in California’s Constitution, Article I, Section 1, including the right to seek and

obtain all health care services permitted under the laws of this

States; and

WHEREAS, such activity interferes with a person’s right to

seek reproductive health care services and counseling which

such persons are entitled to seek and obtain; and

WHEREAS, offices and facilities that have patient stays of

shorter duration may be more vulnerable to such subversion

of rights on account of the layout and design of their facilities

and parking areas as well as their staff deployment; and

18Strikeout text shows amendments from originally enacted version. 

HOYE v. CITY OF OAKLAND 9691
WHEREAS, the facilities with the fewest resources for providing adequate security and safety to individuals seeking

access to reproductive health services are those not affiliated

with hospitals; and

WHEREAS, the adverse physiological and emotional

effects created by such harassing or intimidating activities

may pose health risks, interfere with medical treatment, diagnosis or recovery, or cause persons to delay or forego medical

treatment; and

WHEREAS, this Ordinance does not preclude all protesting, picketing, demonstrating, leafleting, or educational activities near a facility providing reproductive health care services,

and in particular, is not intended to preclude any lawful picketing, leafleting, and/or free speech, but is a necessary

content-neutral time, place, and manner restriction intended to

reconcile and protect the rights of persons rendering or seeking reproductive health care with the First Amendment rights

of demonstrators; and

WHEREAS, existing federal and state laws do not adequately protect the rights of those seeking or providing health

care services, now, therefore

THE COUNCIL OF THE CITY OF OAKLAND DOES

ORDAIN AS FOLLOWS:

Chapter 8.50 is added to the Oakland Municipal Code to read

as follows:

Section 1. Title and purpose.

This chapter shall be known as the “access to reproductive

health care facilities ordinance.” The City Council finds that

every person in the City of Oakland has a basic and fundamental right to privacy protected by the United States Constitution and explicitly guaranteed in California’s Constitution,

9692 HOYE v. CITY OF OAKLAND
Article 1, Section 1, including the right to seek and obtain all

health care services, permitted under the laws of this State.

Central to this right is the need to secure access to all reproductive health care services. Access to these services is a matter of critical importance not only to the individual, but also

to the health and welfare of all residents of the City of Oakland and the region. Intentional efforts to harass an individual

or prevent that individual from exercising his or her right to

seek and obtain reproductive health care services are therefore

contrary to the interests of the people of Oakland.

This Ordinance is not intended to create any limited, designated, or general public fora. Rather it is intended to protect

those who seek access to constitutionally protected reproductive health services from conduct which violates their rights.

Section 2. Definitions. 

a. “Reproductive health services” refers to all medical, surgical, counseling, referral, and informational services related

to the human reproductive system, including services during

pregnancy or the termination of a pregnancy, whether such

services are provided in a clinic, physician’s office, or other

facility other than a licensed hospital, but not if provided at

a clinic or other facility owned and/or operated by a licensed

hospital. 

b. “Reproductive health care facility” refers to a facility

licensed pursuant to Chapter 1 (commencing with Section

1200) of Division 2 of the Health and Safety code or any

other facility that primarily provides reproductive health services that is not licensed as a hospital, and is not owned, and/

or operated by a licensed hospital.

c.“Primarily” means 51% of more of the services provided. 

d. c. “Harassing” means the non-consensual and knowing

approach within eight feet of another person or occupied

HOYE v. CITY OF OAKLAND 9693
motor vehicle for the purpose of passing a leaflet or handbill,

to display a sign to, or engage in oral protest, education, or

counseling with such other person in a public way or on a

sidewalk area within one hundred (100) feet of the entrance

of a reproductive health care facility.

e. d.“Interfering” means to restrict a person’s freedom of

movement or access to or egress from a reproductive heath

care facility providing reproductive health services.

f. e. “Counseling” means engaging in conversation with, displaying signs to, and/or distributing literature to individuals

seeking access to, passage from, or services within the reproductive health care facility, in an effort to harass, intimidate,

or persuade that individual not to access such reproductive

health services.

g. f. “Eight feet” shall be measured from any extension of the

body of the individual seeking access to, passage from, or services within the reproductive health care facility, and/or the

exterior of any occupied motor vehicle, to any extension of

the body of, or any sign or object held by another person. 

h. g. “Providing reproductive health services” shall include

doctors, nurses, any employee of a reproductive health care

facility and volunteers who, with the consent of the reproductive health care facility, assist in conducting patients of such

facility safely into the facility.

Section 3. Prohibited harassment of individuals seeking

access to health care facilities.

a. It shall be unlawful to use force, threat of force, or physical obstruction to intentionally injure, harass, intimidate, or

interfere with or attempt to injure, harass, intimidate, or interfere with any person because that person will be, is, or has

been, providing or obtaining reproductive health services. 

9694 HOYE v. CITY OF OAKLAND
b. Within 100 feet of the entrance of a reproductive health

care facility, it shall be unlawful to willfully and knowingly

approach within eight feet of any person seeking to enter such

a facility, or any occupied motor vehicle seeking entry, without the consent of such person or vehicle occupant, for the

purpose of counseling, harassing, or interfering with such person or vehicle occupant in connection with seeking reproductive health services, or for the purpose of interfering with that

person’s or vehicle occupant’s obtaining or providing reproductive health services.

c. Within 100 feet of the entrance of a reproductive health

care facility, it shall be unlawful to willfully and knowingly

approach within eight feet of any person seeking to enter such

a facility, or any occupied motor vehicle seeking entry, for the

purpose of injuring or intimidating such person or vehicle

occupant in connection with seeking reproductive health services.

Section 4. Enforcement. 

a. Any person who shall be convicted of a violation of subsection 3 above shall be deemed guilty of a misdemeanor and

shall be punishable by imprisonment in the County jail for not

more than one year, or by a fine not to exceed two thousand

dollars ($2,000), or by both such fine and imprisonment.

b. Civil Remedies

i. Any person providing, seeking to provide, or

seeking reproductive health services who is

aggrieved by conduct prohibited by this chapter may

commence a civil action in the Courts of the State of

California. 

ii. In any action commenced under subparagraph a.

of this section, the court may award appropriate

relief, including temporary, preliminary, or permaHOYE v. CITY OF OAKLAND 9695
nent injunctive relief and compensatory and exemplary damages and reasonable fees for attorneys and

expert witnesses. With respect to damages, at any

time before final judgment, plaintiff may elect to

recover, in lieu of compensatory damages, an award

of statutory damages in the amount of $5,000.00 per

violation.

Section 5. Accomodation of Competing Rights.

In adopting this legislation, the Oakland City Council recognizes both the fundamental constitutional right to assemble

peacefully and to demonstrate on matters of public concern,

as well as the right to seek and obtain health care. This legislation promotes the full exercise of these rights and strikes an

appropriate accommodation between them.

Nothing in this Ordinance shall be construed to prohibit

any expressive conduct (including peaceful picketing or other

peaceful demonstration) protected from legal prohibition by

the First Amendment to the United States Constitution, the

California Constitution or any federal or California statute.

Section 6. Severability.

If any part, provision, or clause of this Ordinance or the

application thereof to any person or circumstance is held to be

invalid by a court of competent jurisdiction, all other provisions and clauses hereof, including the application of such

provisions and clauses to other persons or circumstances,

shall not be affected thereby and shall continue in full force

and effect. To this end, the provisions of this chapter are severable. 

Colorado Revised Statutes § 18-9-22

(1) The general assembly recognizes that access to health care

facilities for the purpose of obtaining medical counseling and

9696 HOYE v. CITY OF OAKLAND
treatment is imperative for the citizens of this state; that the

exercise of a person’s right to protest or counsel against certain medical procedures must be balanced against another person’s right to obtain medical counseling and treatment in an

unobstructed manner; and that preventing the willful obstruction of a person’s access to medical counseling and treatment

at a health care facility is a matter of statewide concern. The

general assembly therefore declares that it is appropriate to

enact legislation that prohibits a person from knowingly

obstructing another person’s entry to or exit from a health

care facility.

(2) A person commits a class 3 misdemeanor if such person

knowingly obstructs, detains, hinders, impedes, or blocks

another person’s entry to or exit from a health care facility.

(3) No person shall knowingly approach another person

within eight feet of such person, unless such other person consents, for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or

counseling with such other person in the public way or sidewalk area within a radius of one hundred feet from any

entrance door to a health care facility. Any person who violates this subsection (3) commits a class 3 misdemeanor.

(4) For the purposes of this section, ‘health care facility’

means any entity that is licensed, certified, or otherwise

authorized or permitted by law to administer medical treatment in this state.

(5) Nothing in this section shall be construed to prohibit a

statutory or home rule city or county or city and county from

adopting a law for the control of access to health care facilities that is no less restrictive than the provisions of this section. 

(6) In addition to, and not in lieu of, the penalties set forth in

this section, a person who violates the provisions of this secHOYE v. CITY OF OAKLAND 9697
tion shall be subject to civil liability, as provided in section

13-21-106.7, C.R.S.

9698 HOYE v. CITY OF OAKLAND