Portland protest buffer zone faces federal court challenge

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PORTLAND — A federal lawsuit filed by a Shapleigh couple challenging a protest buffer zone on Congress Street will be one of three lawsuits discussed by City Councilors on Monday, Feb. 24.

Daniel and Marguerite Fitzgerald, who describe themselves as evangelical Christians in court documents, have asked a federal judge to strike down the 39-foot buffer zone around the building housing Northern New England Planned Parenthood offices at 443 Congress St.

The Fitzgeralds, with their two minor children also named as plaintiffs, filed the suit Feb. 12. They said the buffer zone established by City Councilors on Nov. 18, 2013, violates the First and 14th Amendments to the U.S. Constitution, upholding free speech and equal protection under the law.

“The Ordinance prevents Plaintiffs and third parties from approaching, in an inoffensive way, persons within the Prohibited Zone for the purpose of offering information with a view to influencing actions that may have an imminent and irreversible consequence,” the couple said in court documents.

The suit names Mayor Michael Brennan and the entire City Council as defendants. In addition to seeking the repeal of the buffer zone, the Fitzgeralds are also asking the city to pay court and legal fees.

City Councilors next week will also discuss the Feb. 12 federal court decision striking down the city ban on loitering in median strips, and the lawsuit filed Feb. 12 in Superior Court seeking to overturn Planning Board approval of the Midtown development project. The discussions will occur in executive session.

The Fitzgeralds are represented by local attorney Stephen Whiting, and on a pro bono basis by Erin Mersino of the Ann Arbor, Mich.-based Thomas More Law Center.

According to its website, the center’s mission is to “restore and defend America’s Judeo-Christian heritage and moral values, and to preserve a strong national defense, and a free and sovereign United States of America.”

The Fitzgeralds argue the buffer zone, enacted by a 9-0 vote, violates their free speech rights because it prevents them from speaking directly to clinic patients. The couple has participated in demonstrations outside the clinic for about 16 months, and Dan Fitzgerald also testified against the ordinance the night it was passed.

“On many occasions, Clinic clients and/or their companions willingly receive such oral communications,” the Fitzgeralds said in the suit.

What the Fitzgeralds deem “inoffensive” is not seen that way by supporters of the buffer zone.

Planned Parenthood of Northern New England spokeswoman Nicole Clegg and grassroots organizer Eric Covey have said patients were harassed and intimidated by Pro-Life Mission protesters stationed just outside the clinic’s doors.

“No one should be forced to endure intimidation or harassment from strangers on the way to a doctor’s visit,” Clegg said in a news release last week.

Last May, Mike Fink, who owned Mike’s Restaurant at 437 Congress St., said the anti-abortion protests were forcing him out of business and making him open his pawn shop later in the day after protesters had dispersed.

“I still believe these anti-abortion protesters are obnoxious and wrong,” he said last spring.

By setting the 39-foot distance, the Fitzgeralds said the city has made it impossible to discern who is actually a clinic patient and to distribute literature promoting alternative choices to abortions.

The ordinance sets a buffer zone around all reproductive care facilities, but the one on Congress Street is the only one in the city performing abortions.

David Harry can be reached at 781-3661 ext. 110 or dharry@theforecaster.net. Follow him on Twitter: @DavidHarry8.

Portland City Hall reporter for The Forecaster. Baltimore native, lived in Maine since 1989. A journalist since 2005, covering much of Cumberland and York counties. I joined The Forecaster in 2012.