A Ninth Circuit panel on Thursday pushed back hard on San Diego's rules limiting speech and protest activity near abortion clinics, schools and places of worship, questioning whether the city's noise and harassment provisions are too vague for people to know what crosses the line. The appeal comes from Roger Lopez, a sidewalk counselor who says the city's 2024 ordinance unconstitutionally restricts his ability to approach people outside a downtown Planned Parenthood clinic to offer anti-abortion counseling and literature.
Lopez is asking a three-judge panel to revive his lawsuit after a federal judge dismissed it and denied his request for a preliminary injunction in March 2025, according to Courthouse News Service. He claims San Diego violated his First and Fourteenth Amendment rights by enacting the ordinance, which he argues is unconstitutionally vague and overbroad and discriminates against anti-abortion protesters. Lopez has also claimed the city passed the law in retaliation for the Supreme Court's 2022 Dobbs decision overturning Roe v. Wade.
What the Ordinance Actually Restricts
San Diego enacted the ordinance, formally Ordinance No. O-21822, on June 11, 2024, updating a 1997 law to create 100-foot buffer zones around the entrances and exits of health care facilities, schools and places of worship, according to court records obtained via CourtListener. Within that 100-foot zone, the law bars approaching within eight feet of someone entering or exiting a covered building to harass or intimidate them, or to hand out leaflets or engage in oral protest, education or counseling without their consent. The ordinance also includes a noise restriction. Signs can still be displayed from more than eight feet away without violating the rule.
Lopez sued the city on September 5, 2024. San Diego moved to dismiss the suit that same month, arguing its ordinance was modeled on a Colorado law the Supreme Court upheld in Hill v. Colorado, which in 2000 permitted a similar eight-foot floating buffer around people within 100 feet of health care facilities. A U.S. district judge agreed, relying on Hill to dismiss Lopez's lawsuit and deny his injunction request as moot in March 2025.
Attorneys Spar Over Hypotheticals
Michael McHale, an attorney with the Thomas More Society representing Lopez, told the panel that Hill never addressed bans on vaguely defined harassment or noise, and argued the ordinance unnecessarily criminalizes peaceful pro-life sidewalk counseling. He offered the panel a string of hypotheticals, suggesting that simply approaching someone with a pamphlet could count as harassment under the law, and that playing offensive or sexually explicit music while driving past a protected area could also violate it.
Senior Circuit Judge Richard Paez asked whether Hill v. Colorado effectively resolved the case on its own. Circuit Judge Gabriel Sanchez pushed on the harassment definition, noting it requires conduct knowingly and willfully directed at a specific person entering or exiting a protected facility that would seriously alarm or aggravate, cause substantial distress, or intimidate, terrorize, threaten or torment a reasonable person — examples in the ordinance include following someone who has said no, unwanted touching and threatening gestures. Sanchez also told the city's attorney that the ordinance's distinction between regulating sound and regulating content was not apparent from its text.
City Defends Its Noise and Harassment Rules
Matthew Zollman, a San Diego deputy city attorney, disputed McHale's reading of the harassment provision, telling the panel the message itself does not constitute harassment under the law. He argued the noise restriction primarily targets protest volume that could interfere with people's ability to access a facility, and that the ordinance regulates sound rather than content — read in context, he said, it is tailored to ensure safe access to facilities and protect their operations.
Circuit Judge John Owens asked Zollman directly whether humming the Darth Vader theme song as someone entered or left a facility would run afoul of the law; Zollman said it would not. He also told the panel Lopez has never been cited under the ordinance and can continue his sidewalk counseling. Despite that assurance, the Ninth Circuit panel expressed skepticism about the city's noise restrictions and questioned whether the speech restrictions overall are unconstitutionally vague, according to the Courthouse News report. In its written defense of the law, San Diego has separately argued, per Bloomberg Law, that the ordinance is not unconstitutionally vague or overbroad and is grounded in objective criteria, saying the city has clear authority to regulate its core target of obstruction, intimidation and disruptive noise.
How This Fits Into Buffer-Zone Case Law
The legal fight traces back to a split in Supreme Court precedent on buffer zones outside health facilities. In 2000's Hill v. Colorado, the justices upheld, by a six-to-three vote, a Colorado law generally barring people from approaching within eight feet of another person within 100 feet of an abortion facility, according to SCOTUSblog. Fourteen years later, in McCullen v. Coakley, the court struck down a Massachusetts law establishing a fixed 35-foot buffer zone around abortion clinics, with the majority treating that law as content- and viewpoint-neutral and applying a less exacting standard than strict scrutiny. The key distinction, SCOTUSblog notes, is that Hill involved a floating eight-foot buffer around individuals, while McCullen involved a fixed 35-foot zone around the clinic itself — a line San Diego's ordinance, with its eight-foot approach rule inside a 100-foot zone, is now being tested against. Lopez is not the only litigant pressing the issue; other conservative demonstrators have also challenged San Diego's ordinance, according to Courthouse News.
