Bruni v. City of Pittsburgh
2016 U.S. App. LEXIS 10019
| 3rd Cir. | 2016Background
- Pittsburgh Ordinance §623.04 creates a 15-foot fixed buffer zone around health care facility entrances prohibiting "congregat[ing], patroll[ing], picket[ing] or demonstrat[ing]." Penal sanctions and a prior 8-foot floating "bubble" zone were modified by injunction after Brown v. City of Pittsburgh.
- Plaintiffs (anti‑abortion counselors) routinely engage in "sidewalk counseling" and leafleting outside a Planned Parenthood clinic; they allege the buffer prevents the close, personal conversations essential to their message and impedes identifying patients.
- District Court converted materials from a preliminary‑injunction hearing into its Rule 12(b)(6) dismissal of Plaintiffs’ facial First Amendment and Fourteenth Amendment claims without giving Plaintiffs notice or an opportunity to develop a summary‑judgment record.
- Plaintiffs rely on the Supreme Court’s decision in McCullen v. Coakley to argue that Pittsburgh’s buffer zone is not narrowly tailored because the City did not seriously consider or try substantially less speech‑restrictive alternatives (e.g., obstruction laws, targeted injunctions, harassment statutes).
- The Third Circuit panel vacated in part and affirmed in part: it reversed dismissal of the First Amendment (free speech/press and overbreadth) claims to allow factual development under McCullen’s fact‑intensive narrow‑tailoring analysis, but affirmed dismissal of the substantive due process claim as duplicative of First Amendment protections.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Ordinance is a content‑based restriction requiring strict scrutiny | Ordinance defines prohibited conduct by purpose ("demonstrating/picketing"), so Reed requires strict scrutiny | City and prior Third Circuit precedent (Brown) treat the law as content‑neutral; apply intermediate scrutiny | Court assumed content‑neutrality and applied intermediate scrutiny (did not resolve Reed issue at this stage) |
| Whether the 15‑ft fixed buffer is narrowly tailored under intermediate scrutiny (time/place/manner) | Bruni et al.: the zone substantially burdens close, personal counseling; City failed to try or seriously consider less‑restrictive alternatives as McCullen requires | City: Brown upholds the ordinance; McCullen concerned a larger (35‑ft) statewide zone, so it doesn’t compel reversal here | Reversed dismissal — Plaintiffs plausibly alleged a McCullen‑type burden and lack of consideration of less‑restrictive alternatives; factual record required before disposition |
| Whether leafleting/press clause claims survive (free press) | Leafleting is core First Amendment/included in Plaintiffs’ speech claim; buffer bans leafleting inside zone | City: free‑press claim rises or falls with free‑speech claim | Vacated dismissal of free‑press claim along with the broader First Amendment claims |
| Whether the Ordinance is unconstitutionally overbroad or vests unbridled discretion (Due Process) | Ordinance can be applied only outside abortion clinics in practice and authorizes zones at any health facility, raising overbreadth and discretion concerns | City: Brown forecloses overbreadth; due process claim is really a First Amendment problem | Overbreadth: dismissal vacated as premature without factual record; Due Process: dismissal affirmed (claims properly analyzed under First Amendment) |
Key Cases Cited
- Brown v. City of Pittsburgh, 586 F.3d 263 (3d Cir. 2009) (upheld Pittsburgh buffer zone pre‑McCullen but enjoined an overlapping floating bubble zone)
- McCullen v. Coakley, 134 S.Ct. 2518 (2014) (struck down 35‑ft fixed buffer for not demonstrating consideration of less burdensome alternatives; emphasized fact‑specific narrow‑tailoring)
- Madsen v. Women’s Health Ctr., 512 U.S. 753 (1994) (upheld injunctive 36‑ft buffer against specific protesters as narrowly tailored)
- Schenck v. Pro‑Choice Network, 519 U.S. 357 (1997) (upheld fixed 15‑ft buffer in injunction context; struck down floating bubble as overbroad)
- Hill v. Colorado, 530 U.S. 703 (2000) (upheld 8‑ft floating bubble statute; allowed normal conversational distance and leafleting)
- Reed v. Town of Gilbert, 135 S.Ct. 2218 (2015) (content‑based restrictions defined by subject/purpose require strict scrutiny)
- Ward v. Rock Against Racism, 491 U.S. 781 (1989) (intermediate scrutiny for content‑neutral time, place, manner restrictions: must be narrowly tailored to serve significant governmental interest)
- United States v. Stevens, 559 U.S. 460 (2010) (facial‑challenge standard: a statute may be invalidated if a substantial number of its applications are unconstitutional)