In Wilmington, Delaware, on the opening day of 40 Days for Life on  September 24, pro-life vigil keepers prayed, sang and played musical instruments as they had for several years. This time, however, bylaw officers appeared saying they needed a permit to be on city property and police warned that they could not play music at all.

But local leader Julie Easter responded that the group has been doing the vigil for several years, with music, and never been challenged. A policeman responded that there is a new bylaw, while the bylaw officer promised a ticket was in the mail.

But Easter called for help from the Thomas More Society who quickly got Wilmington to comply with the First Amendment of the U.S. Constitution.

The Chicago-based pro-bono legal firm sent Wilmington a “demand letter” requiring that the recipient promise to cease a specified activity or face legal action.

Soon, Wilmington admitted that the vigil could go ahead without a permit and without further interference. Just keep the noise down please.

This isn’t the first time city officials have tried to block the 40 Days for Life vigils, said Thomas More special counsel Jocelyn Floyd.

Pro-life advocates participate in 40 Days prayer vigils twice a year in more than 200 cities and towns in the U.S., Canada and elsewhere, so, inevitably, complaints are made and public officials respond by threatening volunteers with fines or criminal charges.

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But these mostly evaporate when there is push back, says Floyd. “We deal with these all the time but for a city or town, it is a rare instance to have people demonstrating on the sidewalks.”

The First Amendment prohibits the passage of any laws “abridging” the practice of religion, freedom of expression, speech or assembly.

“Pro-lifers should not be forced to apply for a permit or otherwise fear being threatened simply for carrying out their First Amendment rights on public property,” said Floyd. She told LifeSiteNews this is the fourth or fifth such case she’s worked on for 40 Days this year in different parts of the U.S. They follow a pattern: the abortion clinic complains that demonstrators are trespassing and “screaming” at their customers. The police or bylaw officers come and threaten 40 Days volunteers.

“They are not very well-trained in property law and they take the abortion clinic operators at their word,” said Floyd.

While there can be restrictions on political actions on public property, they must be narrow and their purpose must be to enable the public to use the property for its intended use, not to prevent free speech or expression. “The fact it offends people cannot be the reason,” said Floyd.

A city may, therefore, require a permit for a parade that will take over a whole street and it may arrest a crowd of demonstrators who occupy a post office, but must leave alone a man who enters the post office wearing an obscene sign protesting a federal policy. It cannot deny a parade permit to an organization because it doesn’t support it. And if demonstrators leave enough room for pedestrians to get by them on the sidewalk, no bylaw or police officer can touch them.

Usually ignorance is the cause of threats, and the demand letter pointing out the meaning of the First Amendment suffices to change the municipality’s behavior, said Floyd.

“But occasionally officials make it clear they don’t like what we are doing,” she added.

Pro-life activists in St. Louis, Missouri were ticketed when they set a mobile ultrasound unit across from an abortion clinic. One volunteer who brought a folding chair was cited for “littering with household goods”—an ordinance aimed at people who dump their garbage on the sidewalk instead of taking it to the dump.

Another, carrying a sign saying, “Free Ultrasound,” was ticketed for false advertising, on the grounds that service was not being offered on the ground precisely beneath his feet. Incredibly, a sympathetic lower court judge convicted the pro-lifer; however, the appeal judge quickly reversed those decisions.

The point, as Thomas More Society President Thomas Brejcha told Wilmington in the demand letter, is that in America “it is a cornerstone of our national identity, as embodied in our First Amendment…that we cherish a profound commitment to the principle that debate on public issues—especially those as contentious as the issue of abortion, be robust, uninhibited and wide-open.”

As well, Brejcha noted, research had uncovered no new bylaws in Wilmington banning music nor prohibiting expression of “core political speech.” As for blocking the sidewalk, which is covered by bylaws, he enclosed pictures showing the vigil keepers taking care to leave space for pedestrians.

Canadian 40 Days for Life volunteers face similar challenges: in the spring vigil in View Royal,  British Columbia, senior bureaucrats threatened volunteers with arrest by police for standing inside the so-called “bubble zone” placed by provincial law around all abortionists’ offices. But the civic officials had not read the law. The RCMP had read it, knew the volunteers were outside the zone, and never responded.

Wilmington’s 40 Days’  effort to maintain its presence outside the abortion clinic has not been in vain. Easter said that two women on their way into the clinic for abortions have changed their mind in the first few weeks of the vigil. One has promised to return with her baby to the next vigil in the spring.


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