935 F.3d 155
3rd Cir.2019Background
- Englewood enacted an ordinance creating overlapping eight-foot buffer zones on sidewalks adjacent to entrances/exits/driveways of health-care and transitional facilities after recurring aggressive anti-abortion protests outside Metropolitan Medical Associates (MMA).
- Protest activity included loud, intimidating, harassing conduct by groups tied to Bread of Life and more extreme organizations; informal police “no-go” zones and increased patrols had limited, temporary effect.
- Plaintiff Jeryl Turco, a non-aggressive “sidewalk counselor,” sued under 42 U.S.C. § 1983 claiming the ordinance (facial and as-applied) violated her First Amendment rights (speech, assembly, association) by impairing one-on-one counseling and leaflet distribution.
- The District Court granted summary judgment for Turco, finding the ordinance overbroad and not narrowly tailored because the City allegedly failed to try or seriously consider less-restrictive alternatives (e.g., prosecutions, injunctions, sustained policing).
- The Third Circuit reversed and remanded, holding genuine disputes of material fact exist about (1) how substantially the eight-foot buffer actually burdened counselors’ speech and (2) whether the City meaningfully considered and tried less-restrictive alternatives before adopting the ordinance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the eight-foot buffer zone is narrowly tailored under intermediate scrutiny | Turco: the ordinance burdens one-on-one counseling and leafletting more than necessary and the City forewent less-restrictive options | Englewood: the eight-foot zone is content-neutral, serves significant interests (safety, access, order), and police/enforcement limits made alternatives ineffective | Remanded: genuine factual disputes preclude summary judgment for either side on narrow-tailoring; material facts must be resolved at trial |
| Whether the ordinance is overbroad on its face | Turco: ordinance sweeps broadly across health/transitional facilities and burdens more speech than necessary | Englewood: breadth shows lack of discriminatory motive; overbreadth not shown on the record | Reversed District Court’s overbreadth ruling; record inadequate to declare substantial overbreadth |
| Applicability of McCullen/Hill precedents | Turco: relied on McCullen to show similar buffer ruled invalid | Englewood: distinguishes McCullen (35 ft) and invokes Hill (8 ft upheld) to show the eight-foot zone can be permissible | Court: McCullen and Hill inform analysis; but facts differ enough that summary judgment is inappropriate; must resolve factual disputes |
| Whether City exhausted/seriously tried less-restrictive alternatives | Turco: City failed to prosecute or seek injunctions and thus neglected less-restrictive measures | Englewood: presented evidence of increased patrols, manpower limits, failed voluntary/off-duty coverage, and safety concerns deterring complaints | Remanded: factual disputes about the City’s efforts and efficacy of alternatives prevent summary judgment |
Key Cases Cited
- McCullen v. Coakley, 573 U.S. 464 (2014) (invalidated 35-foot buffer as not narrowly tailored because Commonwealth did not seriously pursue less-intrusive alternatives)
- Hill v. Colorado, 530 U.S. 703 (2000) (upheld an 8-foot restriction on approaching persons near health-care facilities as narrowly tailored to protect unwilling listeners)
- Bruni v. City of Pittsburgh, 824 F.3d 353 (3d Cir. 2016) (rigorous, fact-intensive narrow-tailoring analysis; remanded where factual development needed to assess burden and alternatives)
- Ward v. Rock Against Racism, 491 U.S. 781 (1989) (intermediate scrutiny for content-neutral time, place, manner restrictions requiring narrow tailoring)