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A picket or a festival? 

Operation Save America to continue suit against city

The anti-abortion group Operation Save America will move ahead in its lawsuit against the city of Charlotte, its leader says.

Last month, U.S. District Court Judge Robert J. Conrad Jr. denied the group's request for a preliminary injunction, writing in his decision that "[t]here is no evidence at this point of unconstitutional motive by Charlotte."

But Flip Benham, national director for the group known for its T-shirts that read, "Homosexuality is a Sin! Islam is a Lie! Abortion is Murder!" says the group will charge ahead. "Absolutely," he says.

Operation Save America filed suit in September against the city, alleging city officials, including permit officer Emily Westbrook and then-assistant city manager Keith Parker (now chief executive officer of CATS), violated the organization's First Amendment rights by denying OSA a festival permit in 2006.

OSA had sought a festival permit for a memorial event it holds every Jan. 22 -- the anniversary of Roe v. Wade -- in Independent Square, at the corner of Trade and Tryon streets. Pastors preach, people sing and women tell how they regret their abortions.

In 2003, Benham says, the group didn't have any problems with police enforcement. But since then, the group has been "harangued" and one person has been arrested for violating the city's noise ordinance.

That's why, he says, OSA wanted the festival permit: Festivals are exempted from the ordinance. But city officials said no. The event, they said, falls under the picketing ordinance, which doesn't require a permit. But it does require picketers to heed the noise ordinance.

Senior assistant city attorney Robert Hagemann says festivals are subject to higher scrutiny, while pickets require only that organizers notify Charlotte-Mecklenburg Police if they expect more than 50 people. "It's a lower level of regulation," Hagemann says. "That's why, in many ways, what led up to the lawsuit was pretty odd."

In 2004 the city changed its code dealing with pickets, public assemblies and parades.

Hagemann says city officials solicited feedback from several groups, including Operation Save America, the American Civil Liberties Union, and others when devising the ordinances. "We made a significant number of changes to address [their] points and concerns and came up with what I think is a really solid, constitutionally defensible ordinance," he says.

That, however, didn't include the noise ordinance.

Frederick Nelson, an Orlando, Fla., attorney representing OSA, contends the city has granted festival permits to other groups that are in fact demonstrations. "The case boils down to the fact that the city of Charlotte uses discretion to determine whether or not something is festival permit or not," Nelson says.

Such groups, according to documents OSA attorneys filed, including Animal Planet Expo, Bull Motocross, Evangelism Explosion, Speed Street and Pride Charlotte. The latter festival has been a regular target of OSA protests.

Nelson, whose organization, the American Liberties Institute, often represents religious groups in free speech cases, helped OSA sue the city of Concord in 2005 over its parade regulations after OSA representatives were cited for violating it. Concord settled that case.

The noise ordinance has been a particular point of contention for OSA. Deborah Walsh of Family Reproductive Health (a frequent target of OSA protests) has urged CMPD to enforce the noise ordinance more reliably outside her clinic. OSA, meanwhile, says the ordinance unnecessarily hampers their ability to convey their message.

Walsh, whose clinic offers abortions, birth control and other gynecological services, believes OSA's lawsuit is affecting how the Charlotte-Mecklenburg Police Department enforces law outside her clinic.

"I hear over and over again, when I ask CMPD to enforce the laws and ordinances, that they -- and I'm not sure who 'they' is -- are scared because Flip has filed the lawsuit against the city," she says.

Despite the suit, OSA went ahead with this year's memorial. Benham says about 150 people showed up and police didn't interfere, even though the group was using amplified sound. (An affidavit filed in court by the city indicates CMPD officers "observed the entire event and noted no one involved with the event was arrested or cited for any violation of law.")

"We would never have had that [peace] had we not filed the suit," Benham says. "The babies at least had a defense, and for that we're grateful."

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