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NEWS JUNE 7, 2021 ■ 19
A split panel of the Manhattan-based
appeals court in March advanced a
broad reading of state and federal
statutes meant to shield patients from
unwanted contact when it overturned a
Brooklyn judge’s ruling and paved the
way for James to obtain an injunction
against some of the protesters.
In a 119-page majority decision,
Judge Rosemary S. Pooler rejected
the lower court’s reasoning that only
brief exposure to abrasive tactics, like
“slow-walking” in front of patients
and bothering them after they had
asked to be left alone, likely violated The U.S. Court of Appeals for the Second Circuit in the Southern
the Freedom of Access to Clinic En- District of New York. Photo: Ryland West/ALM
trances Act, as well as analogous laws at the city unconstitutional,” and that James was not autho-
and state level. rized to sue under New York City law.
“FACE is by its own terms broad,” Pooler, an ap- In a one-page order, the Second Circuit said that
pointee of former President Bill it had vacated the previous pan-
Clinton, wrote. “Writing in re- el opinion, leaving the district
strictions to narrow its reach, in court’s ruling for the protesters in
contravention of its text and pur- place. The judges did not explain
pose, would effectively eviscerate their reasoning for granting the
the statute.” The court’s move could petition.
She was joined in the majority jeopardize New York The order was filed May 28 and
opinion by fellow Clinton appoin- Attorney General Letitia posted to the Second Circuit’s
tee Judge Guido Calabresi of the James’ ongoing efforts to website Tuesday.
Second Circuit. sue the demonstrators in James’ office said that it had “no
The ruling had come over the federal court for allegedly comment at this time.”
dissent of Chief Judge Debra Ann harassing and intimidating Mat Staver, an attorney and
Livingston, an appointee of former patients. founder of Liberty Counsel, said he
President George W. Bush, who was “very pleased” to see the Sec-
invoked First Amendment pro- ond Circuit’s “extraordinary step”
tections in defending the district in vacating the panel decision.
court’s findings of no irreparable “The panel decision was clearly
harm. flawed,” he said.
“There is no justification in this record for the As of Tuesday evening, the Second Circuit had
treatment afforded the district court’s factual and le- not set a date for arguments or otherwise indicated
gal analysis, particularly at the expense of ‘the most how it would proceed.
fundamental of constitutional values’—’[t]he free- The case is captioned People of the State of New
dom to speak,’” Livingston said. York v. Greipp. ■
The protesters filed a petition for rehearing in
April. In the filing, attorneys from Liberty Counsel Tom McParland of New York Law Journal can be
and the Thomas More Law Center in Ann Arbor, contacted at [email protected]. Follow him on
Michigan, argued that the laws at issue were “facially Twitter @TMcParlandALM.
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