283 F. Supp. 3d 357
W.D. Pa.2017Background
- Pittsburgh enacted a 2005 ordinance creating a 15-foot fixed buffer zone outside health-care facility entrances banning congregating, patrolling, picketing, or demonstrating; exemptions were limited by a later injunction.
- A permanent injunction (Brown litigation) struck the 8-foot ‘‘bubble’’ zone and required clear demarcation of any 15-foot buffer zone; City marked two buffer zones at abortion-providing clinics including 933 Liberty Ave (Planned Parenthood).
- Plaintiffs are anti-abortion ‘‘sidewalk counselors’’ who challenge the buffer zone as a facial First Amendment restriction (filed after McCullen), claiming it prevents effective outreach to patients.
- The City argues the buffer zone is a content-neutral time, place, manner restriction narrowly tailored to public safety, access to healthcare, and efficient policing; enforcement is limited to marked zones and does not bar willing listeners from approaching counselors.
- On cross-motions for summary judgment, the court examined the developed record (including legislative history, police testimony, and Plaintiffs’ own logs) to determine whether the ordinance burdened substantially more speech than necessary.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the Ordinance content-based or content-neutral? | Ordinance targets specific communicative acts (picketing, counseling) and permits casual talk, so it is content-based. | Ordinance regulates conduct (location/behavior) equally regardless of viewpoint; enforcement can be made without examining content. | Content-neutral; intermediate scrutiny applies. |
| Does the buffer zone substantially burden speech (narrow tailoring under intermediate scrutiny)? | The 15-ft zone hampers one-on-one ‘‘sidewalk counseling’’ and reduces effectiveness compared to no zone (invoking McCullen). | The zone is much smaller than Massachusetts’ statute, leaves open ample alternatives (willing listeners may approach, counselors may step in), and record shows only minimal burden. | Ordinance imposes only a minimal burden; not substantially more speech than necessary. |
| Must the City demonstrate it tried less-restrictive alternatives (per McCullen)? | City must show it tried or considered less-restrictive measures and rejected them after close examination. | Given the minimal speech burden and record showing consideration of alternatives (police detail, existing obstruction laws), the City satisfied its obligations. | No obligation to show failed alternatives because burden is minimal; even if required, City reasonably considered/rejected alternatives. |
| Facial overbreadth: does the ordinance authorize zones at locations lacking justification? | Ordinance is overbroad because it could cover non-abortion sites without evidence of need. | Injunction narrows enforcement; only two marked buffer zones (both at reproductive-health clinics) exist and no evidence of enforcement elsewhere. | No overbreadth as enforced; summary judgment for defendants. |
Key Cases Cited
- McCullen v. Coakley, 134 S. Ct. 2518 (2014) (struck Massachusetts 35-foot buffer as not narrowly tailored; established test for substantial burden and alternatives analysis)
- Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) (content-based regulation analysis; strict scrutiny where law distinguishes based on message)
- Hill v. Colorado, 530 U.S. 703 (2000) (upheld a statute regulating approach for oral protest at clinic entrances as content-neutral time, place, manner restriction)
- Brown v. City of Pittsburgh, 586 F.3d 263 (3d Cir. 2009) (held Pittsburgh ordinance content-neutral but invalid in combination with bubble zone; remanded)
- Bruni v. City of Pittsburgh, 824 F.3d 353 (3d Cir. 2016) (vacated dismissal to permit development of record; instructed court to apply Reed and McCullen frameworks)
- Ward v. Rock Against Racism, 491 U.S. 781 (1989) (intermediate scrutiny for content-neutral time, place, manner restrictions)
- Schenck v. Pro-Choice Network, 519 U.S. 357 (1997) (upheld some buffer/bubble restrictions near clinics while applying tailoring/alternative analysis)