SACRAMENTO, California – A proposal running through the California legislature that aims to prevent people from being harassed outside of vaccination sites is raising alarm among some First Amendment experts.
If it becomes law, SB 742 intimidating, threatening, harassing, or preventing people from receiving a covid-19 vaccine, or any other, on your way to a vaccination site would punish you with up to six months in jail and / or a maximum fine of $ 1,000.
The measure was introduced after protesters turn off briefly a mass vaccination clinic at Dodger Stadium in Los Angeles in January. Now that mass vaccination clinics have mostly been closed, lawmakers are concerned that vaccination sites with less security than Dodger Stadium, such as pharmacies and mobile clinics in parks or fast food parking lots – are vulnerable.
It’s a sign of how toxic the topic of vaccination has become in a state with a long history of intense and divisive vaccine wars.
State Senator Richard Pan (D-Sacramento), a pediatrician who administers vaccinations to his patients, wrote the bill. He has been the target of vaccine harassment since he wrote and defended laws that made it difficult for parents to refuse routine vaccines for their children by eliminating personal belief exemptions and tighten the rules around doctors.
Pan was also among the legislators threatened at a committee hearing earlier this year.
Last month, Pan volunteered at a vaccination clinic in a Sacramento park that he said was interrupted by anti-vaccine protesters with a megaphone that made it difficult for medical staff to converse with patients and answer their questions.
And while he said he can handle the threats, ordinary citizens “shouldn’t have to pull a glove to get vaccinated.” That includes walking through a group likely made up of unvaccinated protesters and possibly exposing oneself to COVID to protect yourself, he said.
Its measure prohibits obstructing, injuring, harassing, intimidating or interfering with people “in connection with any vaccination service.” The bill passed the state Senate with just four votes against and faces one more hurdle in committee before heading to the Assembly floor.
The bill defines harassment as getting within 30 feet of someone to hand them a brochure, display a sign, engage in any type of verbal protest such as singing or reciting, or doing any kind of education or counseling with that person.
Blocking someone or preventing them from getting vaccinated is an obvious problem, and it’s good that the proposal tries to stop that, he said. Glen smith, chief litigation officer for the First Amendment Coalition, a California-based nonprofit organization that promotes the First amendment, which guarantees rights such as freedom of expression and assembly. But he thinks the proposal goes too far with its definition of harassment.
“Say you can’t get within 30 feet of them just to hand them a pamphlet or ask them a question? That seems like an exaggeration to me, ”Smith said.
It’s worse than exaggerating, said Eugene Volokh, a professor of First Amendment law at UCLA School of Law.
“That law is clearly unconstitutional,” Volokh said.
You have two main concerns with the proposal:
First, although it relies on similar laws creating zones around abortion clinics to protect patients from harassment, this bill goes beyond what the courts have upheld in the past, he said. In 2000, the US Supreme Court. kept a Colorado law which created an 8-foot “bubble zone” around a person entering or leaving an abortion clinic, but in 2014 the tall felled cut a Massachusetts law that created a 35-foot “buffer zone” around clinics.
A 30-foot zone around a person receiving a vaccine is larger than the court would allow, Volokh believes.
His second concern is that the bill specifically prohibits someone from distributing brochures or talking to someone just about vaccines.
That violates the First Amendment, Volokh said, because it points to certain content. Someone could distribute an anti-war or fur pamphlet and not break the law, he said.
“I think it’s quite shocking that a state legislature is trying to enact this kind of fully protected speech restriction in this way,” Volokh said.
In fact, the anti-abortion groups that initially opposed the bill are now on board because it only focuses on the speech in relation to vaccines.
Elisabeth Beall, media coordinator for the League for the Right to Life, said an earlier version of the measure did not specify that the restrictions would apply only to speech on vaccination.
“This limits the bill’s negative impact on pro-life activities,” such as curbside anti-abortion counseling outside Planned Parenthood clinics, which provide abortions and vaccinations, Beall wrote in a statement.
Not all defenders of freedom of expression share Volokh’s interpretation of the bill. The American Civil Liberties Union said it has no problem with the text as it is written.
“It is not necessarily the case that the freedom to express our views is not restricted,” said Kevin Baker, director of government relations for ACLU California Action. “They can be balanced with important government goals,” such as allowing people to get vaccinated in peace.
Part of that goal is to stop misinformation about vaccines, which Pan says is the main reason people don’t get vaccines.
“Frankly, any progress we make in trying to vaccinate more people will be incremental due to misinformation,” Pan said. And when protesters turn up claiming they are there to educate patients, “they are talking about misinformation.”
Joshua Coleman, co-founder of the V is for Vaccine group, which advocates for informed consent before vaccinations and says vaccines carry risks, said he brought the megaphone to Pan’s clinic to “educate those who come to receive the vaccine. about important facts you deserve to know ”and object to Pan’s bill.
“The intention of attending Senator Pan’s vaccination clinic was to protest the censorship of important information and his egregious and erroneous attack on freedom of expression,” he said by email.
Pan said his bill was “carefully crafted” to stop “obstruction, harassment and intimidation” of people seeking vaccines, and he is confident that it is within the boundaries of the First Amendment.
“There is a precedent for saying that you can protest. This law does not say that you cannot protest. There are certain rules around the protest, “said Pan.” Especially when we are trying to deal with this pandemic, we must do what we can to make sure that people feel safe getting vaccinated. “
KHN (Kaiser Health News) is a national newsroom that produces in-depth journalism on health issues. Along with Policy Analysis and Polling, KHN is one of the top three operational programs in KFF (Kaiser Family Foundation). KFF is a nonprofit organization that provides health information to the nation.
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