941 F.3d 73
3rd Cir.2019Background
- Repeated clashes, obstruction, and violent incidents outside Planned Parenthood in Pittsburgh prompted City Council to adopt a 15-foot fixed buffer zone around health-facility entrances forbidding “congregat[ing], patrol[ing], picket[ing] or demonstrat[ing].”
- An earlier floating 8-foot "bubble" zone that barred approaching persons for leaflets/counseling was enjoined; the City retained only the fixed 15-foot buffer.
- Plaintiffs are anti‑abortion "sidewalk counselors" who conduct calm, one‑on‑one conversations and leafletting and allege the City interprets the Ordinance to prohibit their in‑zone speech. They challenged the Ordinance under the First Amendment.
- On remand from Bruni I (824 F.3d 353), the district court construed the Ordinance to cover sidewalk counseling, found it content neutral, and granted summary judgment to the City. Plaintiffs appealed.
- The Third Circuit construed the Ordinance narrowly, held it does not prohibit peaceful one‑on‑one conversation or leafletting, found the restriction content neutral, and concluded the 15‑foot buffer is narrowly tailored and not overbroad; it affirmed summary judgment for the City.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Ordinance is content‑based (strict scrutiny) or content‑neutral (intermediate scrutiny) | Bruni: Ordinance is content‑based because enforcement requires examining speech function/purpose; Reed controls. | City: Text regulates manner (congregating/picketing/etc.), not content; enforcement focuses on conduct. | Court: Narrowly construes Ordinance so it does not cover calm one‑on‑one conversation; as so read it is content‑neutral and subject to intermediate scrutiny. |
| Whether the Ordinance, as written, prohibits plaintiffs’ sidewalk counseling | Bruni: City interprets “demonstrating” to include sidewalk counseling. | City: Ordinance targets visible collective protestive conduct, not private conversations. | Court: Plain meaning of the four prohibitions does not encompass quiet one‑on‑one conversations or leafletting; doctrine of constitutional avoidance supports narrowing construction. |
| If content‑neutral, whether the 15‑ft buffer is narrowly tailored given McCullen (must consider less‑restrictive alternatives) | Bruni: Under Bruni I and McCullen the City had to show it tried/considered substantially less‑restrictive alternatives; City failed to do so. | City: Buffer is small and targeted; prior measures (police detail, incident response) were tried/insufficient; a significant burden on speech is not shown. | Court: Because the Ordinance (as construed) does not burden one‑on‑one counseling, the speech burden is not significant; the 15‑ft buffer is narrowly tailored to the City’s significant interests and passes intermediate scrutiny. |
| Overbreadth: Does authorization to create buffers at any health facility produce substantial unconstitutional applications? | Bruni: Ordinance authorizes zones citywide, potentially chilling protected speech. | City: Broad application is evidence against discriminatory motive; City has only demarcated two historically problematic sites. | Court: Overbreadth claim fails. Given the narrowing construction and real‑world application, plaintiffs did not show substantial unconstitutional applications. |
Key Cases Cited
- McCullen v. Coakley, 573 U.S. 464 (2014) (struck down 35‑ft buffer; government must show less‑restrictive alternatives were tried or seriously considered)
- Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) (laws that distinguish regulated speech by subject, function, or purpose are content‑based)
- Madsen v. Women's Health Ctr., 512 U.S. 753 (1994) (upheld injunction limiting congregating/picketing near clinic as content‑neutral time, place, manner restriction)
- Schenck v. Pro‑Choice Network of W. N.Y., 519 U.S. 357 (1997) (upheld limited buffer restricting certain demonstrations near clinic)
- Hill v. Colorado, 530 U.S. 703 (2000) (upheld floating approach restriction; discussed content‑neutrality in clinic context)
- Bruni v. City of Pittsburgh (Bruni I), 824 F.3d 353 (3d Cir. 2016) (vacated dismissal; remanded for factfinding on burden and Ordinance scope)
- Brown v. City of Pittsburgh, 586 F.3d 263 (3d Cir. 2009) (upheld buffer+bubble originally; bubble later enjoined)
- Turco v. City of Englewood, 935 F.3d 155 (3d Cir. 2019) (discussed narrow tailoring and deference to legislative judgments in buffer‑zone context)