It is now illegal in California to harass people on their way to a vaccination clinic, under a law signed by Governor Gavin Newsom on Friday.
However, amendment 1 experts continue to raise legal questions about the constitutionality of the law, including its definition of harassment.
The law, which comes into effect immediately, makes it an administrative offense to harass, intimidate, injure, or impede people on their way to a COVID-19 or other type of vaccine, which can result in a fine of up to US $ 1,000 – Dollars and / or up to six months will be punished in prison.
Although the measure, SB 742, has been changed to remove a sentence that has been declared unconstitutional by experts on freedom of expression, they claim that the new version is still in violation of the 1st Amendment.
“It picks up on far-reaching activities protected by Amendment 1 and defines them as harassing,” said David Snyder, executive director of the First Amendment Coalition, which advocates freedom of expression and government transparency. “Nothing at all has changed about this problem.”
But the law is more necessary than ever, said Catherine Flores Martin, executive director of the California Immunization Coalition, which promotes vaccines. Martin said she has been campaigning for pro-vaccine legislation for years and that the atmosphere around vaccinations, especially COVID-19 vaccines, has become threatening and toxic.
“Our biggest concern is when children are vaccinated,” she said. “Some of these people feel they have to protest, and that’s scary and extremely inappropriate.”
The bill was introduced by Senator Richard Pan, D-Sacramento, chairman of the Senate Health Committee, and was inspired to write the measure after protesters briefly closed a mass vaccination site at Dodger Stadium in January. Pan is a practicing pediatrician who is still administering vaccines and has been threatened, attacked, and named by name during protests.
Long before the COVID-19 pandemic, Pan was at the center of the California vaccination wars and was targeted by anti-vaccine groups for introducing laws that made it difficult for parents to opt out of routine vaccinations for their children, including a bill dating from the year 2015, which abolished exemptions for personal beliefs and approved another in 2019, which made it harder to get medical exemptions.
“While I may be threatened and persecuted by extremists as a civil servant at my work, at home and in my community, there is nothing in the constitution that says normal people and health workers should be exposed to the behavior,” Pan said in a written statement.
When the Harassment Act was tabled in February, it was criticized by amendment 1 scientists who said it violated Californians’ right to freedom of expression.
The original draft law restricts speech only “in connection with vaccination services”, which is problematic because it has singled out a certain topic.
According to Eugene Volokh, a 1st Amendment Professor at UCLA Law School, the government is allowed to restrict speech, but only if it is “content neutral” and applies equally to all protests, regardless of topic or message.
In order to make the bill content-neutral, the sentence that weed out vaccination services was removed in early September, according to an analysis by the state Senate.
At the same time, the legislature added wording to exclude “legitimate pickets due to a labor dispute”.
This “creates another unconstitutional form of content discrimination,” banned by the US Supreme Court, Volokh said
The court twice overturned laws restricting protests but excluding labor disputes. In 1972, it repealed a Chicago ordinance that banned strikes within 50 feet of a school, with the exception of strikes over labor disputes at those schools. In 1980 the court ruled an Illinois law unconstitutional for prohibiting home protests except in cases of labor disputes.
“I think that creates the specter that this law is promoting some kind of message,” said Snyder of the First Amendment Coalition. “The government cannot decide which protest message is allowed.”
Snyder said he was also concerned about the definition of harassment in the bill and the size of the “buffer zone” where protesters are not allowed to confront people who have been vaccinated.
The measure defines harassment as stepping on a patient who is up to 30 feet from an entrance to a vaccination site or waiting in their car for a vaccine to distribute a package insert, display a sign, protest, or get involved any educational or sidewalk advice.
Although Pan said the provision is modeled on buffer zones that protect patients entering abortion clinics, the 30-foot zone in his vaccination protest law goes further than what the US Supreme Court has allowed. In 2000, the Supreme Court upheld a Colorado law that created a 1.5-foot “bladder zone” around a person entering or leaving an abortion clinic, but in 2014 it repealed a Massachusetts law that allowed a 35-foot – “Buffer zone” created around clinics.
Because the 30-foot zone is so large, it’s even forbidden to speak to anyone or ask them what they know about vaccines, what is proprietary speech, Snyder said.
According to the language of the law, the 30-foot zone serves as a suitable distance to prevent the spread of the coronavirus and other diseases.
But that may not be sufficient justification to restrict freedom of expression, said Erwin Chemerinsky, dean of the University of California-Berkeley School of Law and an expert on the First Amendment.
And while he sympathizes with the idea of preventing people on the way to vaccination from being harassed, he said he is concerned about the constitutionality of the time off and the size of the buffer zone.
“I would expect it to be challenged if this is adopted,” said Chemerinsky.
For Crystal Strait, the CEO of ProtectUS, a public health advocacy group, the law strikes a balance between protecting freedom of expression and protecting the community from COVID-19. Pan is a volunteer leader of her organization and she has witnessed the kind of screaming and harassment he is trying to prevent.
“I saw people literally shouting lies about the vaccine and how these young people were going to die into a megaphone,” Strait said of a recent clinic that injected teenagers. “They are only there to spread misinformation.”
Joshua Coleman, co-founder of Group V, is for Vaccine, who argues that vaccines carry risks, and often protests with his megaphone at vaccine clinics in parks, including one Pan attended in July. He says he plans to sue if he or any of his members are arrested under the new law.
“This law violates our constitutional right to peacefully assemble,” said Coleman. “It just takes someone to actually enforce it.”
This story was produced by KHN (Kaiser Health News), a national newsroom and one of the three major operating programs of the KFF (Kaiser Family Foundation).