Lead Opinion
OPINION OF THE COURT
This case puts at issue again an ordinance of the City of Pittsburgh that prohibits certain speech within fifteen feet of health care facilities. Plaintiffs Nikki Bru-ni, Julie Cosentino, Cynthia Rinaldi, Kathleen Laslow, and Patrick Malley engage in what they call “sidewalk counseling” on the public sidewalk outside of a Pittsburgh Planned Parenthood facility in an effort, through close conversation, to persuade women to forego abortion services. The Plaintiffs filed suit in the United States District Court for the Western District of Pennsylvania, claiming that the Pittsburgh ordinance limiting their ability to approach people near the Planned Parenthood entrance violates their First and Fourteenth Amendments rights. We previously upheld the City’s so-called “buffer zone” ordinance against the same kind of challenge in Brown v. City of Pittsburgh,
1. Background
A. The Ordinance
On December 13, 2005, Pittsburgh’s City Council adopted Ordinance No. 49, which added Chapter 623 to the Pittsburgh Code of Ordinances. That Chapter, titled “Public Safety at Health Care Facilities,” went into effect later in the month.
The part of the Ordinance that is now in dispute is § 623.04, which establishes a “Fifteen-Foot Buffer Zone.” It states that:
[n]o person or persons shall knowingly congregate, patrol, picket or demonstrate in a zone extending fifteen (15) feet from any entrance to the hospital and or health care facility. This section shall not apply to police and public safety officers, fire and rescue personnel, or other emergency workers in the course of their official business, or to authorized security personnel employees or agents of the hospital, medical office or clinic engaged in assisting patients and other persons to enter or exit the hospital, medical office, or clinic.
Pittsburgh Pa., Code § 623.04. Although the term “health care facility” is not defined in the Chapter, a “[m]edieal office/clinic” is defined as “an establishment providing therapeutic, preventative, corrective, healing and health-building treatment services on an out-patient basis by physicians, dentists and other practitioners.” Id. § 623.02.
In adopting the buffer zone Ordinance, the City Council also ratified a-preamble, titled “Intent of Council,” that described the goals the City sought to accomplish:
The City Council recognizes that access to Health Care Facilities for the purpose of obtaining medical counseling and treatment is important for residents and visitors to the City. The exercise of a person’s right to protest or counselagainst certain medical procedures is a First Amendment activity that must be balanced against another person’s right to obtain medical counseling and treatment in an unobstructed manner; and The City of Pittsburgh Bureau of Police has been consistently called upon in at least two (2) locations within the City to mediate the disputes between those seeking medical counseling and treatment and those who would counsel against their actions so as to (i) avoid violent confrontations which would lead to criminal charges and (ii) enforce existing City Ordinances which regulate use of public sidewalks and other conduct;
Such services require a dedicated and indefinite appropriation of policing services, which is being provided to the neglect of the law enforcement needs of the Zones in which these facilities exist. The City seeks a more efficient and wider deployment of its services which will help also reduce the risk of violence and provide unobstructed access to health care facilities by setting clear guidelines for activity in the immediate vicinity of the entrances to health care facilities;
The Council finds that the limited buffer and bubble zones outside of health care facilities established by this chapter will ensure that patients have unimpeded access to medical services while ensuring that the First Amendment rights of demonstrators to communicate their message to their intended audience is not impaired.
Id. § 628.01. Violations of the Ordinance are met with graduated penalties, ranging from a $50 fine for a first offense to a thirty-day maximum (and three-day minimum) jail sentence for a fourth violation within five years. Id. § 623.05. As originally passed, the Ordinance also included an eight-foot “floating bubble zone,” which established a 100-foot area around clinics in which people could not be approached without their consent within eight feet “for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education or counseling.” Id. § 623.08.
The Ordinance was challenged in court shortly after its passage. In Brown v. City of Pittsburgh, we held that, although the fifteen-foot fixed buffer zone and the eight-foot floating bubble zone were each on their own constitutionally permissible, the combination of the two imposed a facially-unconstitutional burden on, free speech.
B. Application of the Ordinance
Although the Ordinance applies, on its face, at all hospitals and health care facilities in Pittsburgh, the City has demarcated only two actual buffer zones, both outside the entrances of facilities that provide abortion services. The allegations in the Complaint relate primarily to the Plaintiffs’ experiences at one of those two locations — the Planned Parenthood facility located at 933 Liberty Avenue. At the front
According to their Complaint, the Plaintiffs “regularly engage in peaceful prayer, leafleting, sidewalk counseling, pro-life advocacy, and other peaceful expressive activities” outside of that Planned Parenthood location. (App. at 51a.) In their sidewalk counseling, they “seek to have quiet conversations and offer assistance and information to abortion-minded women by providing them pamphlets describing local pregnancy resources, praying, and ... peacefully expressing] this message of caring support to those entering and exiting the clinic.” (App. at 58a.) The City reads the Ordinance to prohibit sidewalk counseling as a form of “demonstrating” and has enforced the ban against those who, like the Plaintiffs, would engage in counseling within the buffer zone. The prohibition “make[s] it more difficult [for the] Plaintiffs to engage in sidewalk counseling, prayer, advocacy, and other expressive activities.” (App. at 60a.) Because close, personal interaction is “essential to [the Plaintiffs’] message,” as they wish to be viewed as counselors, “rather than to merely express [their] opposition to abortion or to be seen as protesting” (App. at 60a-61a), the Ordinance frustrates effective communication of their message. The prohibition also interferes with the Plaintiffs’ activities because they “are often unable to distinguish patients from passer[s]by at the. distance that the zones require [the] Plaintiffs to remain.” (App. at 61a.)
C. Procedural History
Less than two years ago, the Supreme Court decided McCullen v. Coakley, — U.S. -,
The District Court held a hearing on the motion for a preliminary injunction, at which the Court heard testimony from Plaintiff Bruni and Ms. Kimberlee Evert, the CEO and President of Planned Parent
The District Court granted the City’s motion to dismiss the Plaintiffs’ facial challenges to the Ordinance under the First Amendment and the Due Process Clause of the Fourteenth Amendment.
The Plaintiffs then filed this timely appeal. They seek review only of the dismissal of their First Amendment and Due Process claims against the City and not the denial of their preliminary injunction motion.
II. Discussion
A. Standard of Review
“[0]ur standard of review of a district court’s dismissal under Federal Rule of Civil Procedure 12(b)(6) is plenary.” Taliaferro v. Darby Twp. Zoning Bd.,
In considering a motion to dismiss, the district court is also bound not to “go beyond the facts alleged in the Complaint and the documents on which the claims made therein [are] based.” In re Burlington Coat Factory Sec. Litig.,
The District Court here based its decision to dismiss not only upon the allegations in the Complaint but also, it appears, upon testimony given at the hearing and the supplemental declarations filed by Harris, Evert, Laslow, and Bowman. Indeed, in dismissing the Plaintiffs’ facial challenges to the Ordinance, the Court seems to have based its decision entirely on its analysis of the merits of the preliminary injunction motion.
Thus before reaching the merits, we face a difficulty. “We have previously stated that the label a district court places on its disposition is not binding on an appellate court.” Rose v. Bartle,
B. Merits Analysis
On appeal, the Plaintiffs’ mount facial challenges to the Ordinance under both the Free Speech and Free Press Clauses of the First Amendment as proscribing protected speech, and under the Due Process Clause of the Fourteenth Amendment due to the Ordinance’s allegedly vesting “unbridled discretion” in City officials. (Opening Br. at 16.) A facial challenge “seeks to vindicate not only [a plaintiffs] own rights, but those of others who may also be adversely impacted by the statute in question.” CMR D.N. Corp. v. City of Phila.,
In evaluating a facial challenge we must look beyond the application of an ordinance in the specific case before us. To ultimately succeed on the merits, a plaintiff theoretically has “to establish that no set of circumstances exists under which [the ordinance] would be valid, or that the [ordinance] lacks any plainly legitimate sweep.” United States v. Stevens,
Despite those pronouncements, the Supreme Court has also recognized
1. Free Speech Claim
That framework typically begins with an assessment of whether the challenged law restricts speech based upon its content. “[A]s a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Ashcroft v. American Civil Liberties Union,
a. Assuming Content Neutrality
The Plaintiffs contend that the Ordinance constitutes a content-based restriction on speech and is thus subject to strict scrutiny. Although we held in Brown that Pittsburgh’s buffer-zone Ordinance was content-neutral, see Brown,
Although the Plaintiffs make a compelling argument that Reed has altered the applicable analysis of content neutrality, we need not consider the impact of Reed because the Complaint presents a viable free speech challenge to the buffer-zone Ordinance under the lower standard of scrutiny to which a content-neutral restriction on speech is subject. We can assume the Ordinance is content-neutral, even though the City contends we may not do so — which is ironic since the City is the party benefitting from the assumption. The City relies on McCullen, pointing out that the Supreme Court, in striking down the Massachusetts buffer zone law, addressed content-neutrality to determine the applicable level of scrutiny.
Here, by contrast, the conclusion that the Ordinance is a content-based restriction on speech would require us to overrule our holding in Brown that the Ordinance imposes only a content-neutral ban. We need not take that step, though, as we would reverse the dismissal of the Plaintiffs’ free speech claim even under the
b. Brown and its Antecedents
To satisfy intermediate scrutiny, a content-neutral limitation on speech “must be ‘narrowly tailored to serve a significant governmental interest.’” McCullen,
In Madsen, the Court noted that the thirty-six foot buffer zone at issue in that case was created by way of injunctive relief only after a first injunction (which enjoined the specified protesters from blocking or interfering with public access to the clinic) proved insufficient to serve the government’s stated interests. Madsen,
Similarly, in Schenck, the Court upheld the fixed buffer zone because “the record show[ed] that protesters purposefully or effectively blocked or hindered people from entering and exiting the clinic doorways, from driving up to and away from clinic entrances, and from driving in and out of clinic parking lots.”
In the third buffer zone case, Hill v. Colorado, the Supreme Court held, in spite of its earlier ruling in Schenck, that an eight-foot floating bubble zone satisfied intermediate scrutiny’s narrow tailoring requirement.
Although we previously concluded in Brown that the City’s Ordinance was sufficiently narrowly tailored, we did so out of deference to the Supreme Court’s holdings in Madsen and Schenck. See Brown,
c. McCullen’s Clarification of the Law
In McCullen, the Supreme Court struck down the Massachusetts law’s thirty-five foot buffer zone as insufficiently narrowly tailored under intermediate scrutiny. It concluded that the zone “burden[s] substantially more speech than necessary to achieve the Commonwealth’s asserted interests.” McCullen,
The limitation on their speech also occurred, as it does here, in the quintessential public forum of public streets and sidewalks, areas that occupy “a special position in terms of First Amendment protection .... ” Id. at 2529 (internal quotation marks omitted). The restriction thus struck at the heart of speech protected by the First Amendment. See id. at 2536 (“[W]hile the First Amendment does not guarantee a speaker the right to any particular form of expression, some forms— such as normal conversation and leaflet-
Balanced against that significant burden on speech was the means chosen to effectuate the government’s purpose. McCullen emphasized the unusual nature of such buffer zone laws — at the time McCullen was decided, only six (including Pittsburgh’s) existed across the entire United States, id. at 2537 n. 6 — which “raise[d] concern that the Commonwealth ha[d] too readily forgone options that could serve its interests just as well....” Id. at 2537. In the Supreme Court’s view, Massachusetts had a number of less speech-restrictive alternatives available to address its goals: it could utilize “existing local ordinances” banning obstruction of public ways, id. at 2538; “generic criminal statutes forbidding assault, breach of the peace, trespass, vandalism, and the like,” id.; and “targeted injunctions” like those in Madsen and Schenck, id. The Court also emphasized that the congestion problem the Commonwealth cited arose mainly at one Boston clinic, which did not justify “creating 35-foot buffer zones at every clinic across the Commonwealth.” Id. at 2539.
The Court further rejected the Commonwealth’s contention that it “ha[d] tried other approaches, but they do not work.” Id. Although the Commonwealth claimed it had revised the statute because an earlier, less restrictive, version was too difficult to enforce, the Court noted that Massachusetts could not document a single prosecution brought under its previous statutes “within at least the last 17 years” and “the last injunctions ... date[d] to the 1990s.” Id. The Commonwealth had thus not met its narrow-tailoring burden because it “ha[d] not shown that it seriously undertook to address the problem with less intrusive tools readily available to it. Nor ha[d] it shown that it considered different' methods that other jurisdictions have found effective.” Id. In fight of the “vital First Amendment interests at stake, it [was] not enough for Massachusetts simply to say that other approaches have not worked.” Id. at 2540. It had to either back up that assertion with evidence of past efforts, and the failures of those efforts, to remedy the problems that existed outside of the Commonwealth’s abortion clinics, or otherwise demonstrate its serious consideration of, and reasonable decision to fore-go, alternative measures that would burden substantially less speech. The Court recognized that a buffer zone would likely make the Commonwealth’s job easier, but “the prime objective of the First Amendment is not efficiency.” Id. “To meet the requirement of narrow tailoring, the government must demonstrate that alternative measures that burden substantially less speech would fail to achieve the government’s interests, not simply that the chosen route is easier.” Id. In the absence of that kind of fact-specific showing, the Supreme Court struck down the buffer zone law as insufficiently narrowly tailored under intermediate scrutiny.
d. Application of Intermediate Scrutiny to Pittsburgh’s Ordinance
As to the government interests at stake in a case like this, all four of the Supreme Court’s buffer zone precedents — Madsen, Schenck, Hill, and McCullen — accepted that the laws at issue furthered significant government interests. Schenck identified those interests as: “protecting a woman’s freedom to seek pregnancy-related services, ensuring public safety and order, promoting the free flow of traffic on streets and sidewalks, protecting property rights, and protecting the medical privacy
Nevertheless, the Ordinance must still be narrowly tailored to serve those interests. The District Court, applying intermediate scrutiny (without the benefit of Reed), essentially concluded that its analysis was controlled by our narrow-tailoring holding in Brown. The Court reasoned that McCullen had not “explicitly overrule[d] Hill or articulate[d] a deviation from the standard outlined in that case.” (App. at 26a.) In the absence of a clear break from precedent, the District Court concluded that it was bound by our prior analysis. In the District Court’s view, McCullen also did not represent a binding application of the intermediate scrutiny standard because that case involved a thirty-five foot buffer zone and thus imposed a greater “degree of burden” on speech than the fifteen-foot zone in Pittsburgh. (App. at 31a.)
Of course, in a mathematical sense the degree of infringement on the Plaintiffs’ speech here is less than that imposed on the petitioners in McCullen, fifteen feet being less than thirty-five. But more than math is involved, and, even at fifteen feet, Pittsburgh’s buffer zone raises serious questions under the First Amendment. None of the four prior cases assessing buffer zones turned solely on the size of the zones. What matters is the burden on speech that such zones impose, of which size is one but only one feature. Indeed, smaller buffer zones are not always better: McCullen struck down a thirty-five foot zone even though Madsen had previously upheld a slightly larger zone. McCullen never referenced the size of the approved zone in Madsen or that the Massachusetts zones were actually smaller. Those cases turned on their distinct factual records, not a simple difference in real estate. McCul-len emphasized the “serious burdens” that the law imposed on speech by “comprom-is[ing] petitioners’ ability to initiate the close, personal conversations that they view as essential to ‘sidewalk counseling.’ ”
According to those allegations, Pittsburgh’s buffer zone Ordinance “prohibits Plaintiffs and others from effectively reaching their intended audience.” (App. at 56a.) The Complaint further alleges that “[t]he zones created by the Ordinance make it more difficult [for the] Plaintiffs to engage in sidewalk counseling, prayer, advocacy, and other expressive activities,” (App. at 60a), and that the Ordinance “will cause conversations between the Plaintiffs and those entering or exiting the facilities to be far less frequent and far less successful.” (App. at 60a.) Taking those allegations as true, the burden on the Plaintiffs’ speech is akin to that imposed upon the petitioners in McCullen, and nothing in the Complaint suggests otherwise.
Because of the significant burden on speech that the Ordinance allegedly imposes, the City has the same obligation to use less restrictive alternatives to its buffer zone as the Commonwealth of Massachusetts had with respect to the buffer zone at issue in McCullen. As stated, that obligation requires that the government “demonstrate that alternative measures that burden substantially less speech would fail to achieve the government’s interests.” McCullen,
By that statement, we do not suggest that the City must demonstrate that it has used the least-restrictive alternative, nor do we propose that the City demonstrate it has tried or considered every less burdensome alternative to its Ordinance. See Ward,
Of course, the City had no opportunity to properly produce such evidence at the motion-to-dismiss stage. Instead, we must accept as true at this stage of the case the Complaint’s allegation that “no specific instances of obstructive conduct outside of hospitals or health care facilities in the City of Pittsburgh ... provide support for the law ....” (App. at 56a.)
McCullen required the sovereign to justify its regulation of political speech by describing the efforts it had made to address the government interests at stake by substantially less-restrictive methods or by showing that it seriously considered and reasonably rejected “different methods that other jurisdictions have found effective.”
The City contends, consistent with the District Court’s opinion, that McCullen did not alter the narrow-tailoring analysis to the degree necessary to change the conclusion we reached in Brown. But McCullen employs a level of rigor that Brown did not approach. In fact, Brown engaged in no narrow-tailoring analysis of its own. It instead incorporated the analyses of Mad-sen and Schenck by reference and concluded that Pittsburgh’s buffer zone was “a fortiori constitutionally valid” in light of those past cases. Brown,
McCullen made this evident when it struck down a smaller buffer zone than that which was upheld in Madsen. Aso, both Madsen and Schenck involved plaintiff-specific injunctions, which is one of the less-restrictive alternatives identified by McCullen that a sovereign should utilize before turning to “broad, prophylactic measures” like generally-applicable buffer zones that “unnecessarily sweep[ ] in innocent individuals and their speech.” McCullen,
McCullen represents an important clarification of the rigorous and fact-intensive nature of intermediate scrutiny’s narrow-tailoring analysis, and the decision is sufficient to call into question our conclusion in
2. Free Press Claim
The Plaintiffs also raise a claim under the Freedom of the Press Clause of the First Amendment, because “the Ordinance prohibits them from leafleting on public sidewalks.” (Opening Br. at 37.) The District Court did not directly address that aspect of the Plaintiffs’ First Amendment claim, instead dismissing the facial challenge in its entirety. On appeal, the City argues that the free press claim “properly fell along with the rest - of the First Amendment claim under the district court’s analysis.” (Appellee’s Br. at 42 n.4.)
The City’s contention is correct in the abstract. Had the District Court properly dismissed the Plaintiffs’ free speech claim, it would also have been proper to dismiss their free press claim, because the Plaintiffs’ free press claim is, in this context, properly considered a subset of their broader free speech claim, given that the Freedom of the Press Clause and the Free Speech Clause both protect leafleting from government interference. See Lovell v. City of Griffin, Ga.,
But as the claims could properly fall together, the converse is also true here: resuscitation of the broader free speech claim requires us to vacate the dismissal of the free press claim. In light of the burden the Ordinance places on speech, the City’s inability to show at the motion to dismiss stage that substantially less burdensome alternatives would fail to achieve its interests dooms its broad prohibition on all of the Plaintiffs’ expressive activities, including the prohibition on leafleting.
3. Overbreadth Claim
The Plaintiffs next contend that the Ordinance violates the First Amendment by imposing an unconstitutionally overbroad restriction on speech “because it authorizes the creation of zones at non-abortion locations where the City does not even claim there has been a justification for banning speech.” (Opening Br. at 38.) The City responds — just as the District Court did in dismissing this claim — that their argument is “foreclosed by this Court’s decision in Brown.” (Answering Br. at 42.) In Brown, we rejected the plaintiffs facial overbreadth challenge because such a claim was undercut by Hill.
Like the statute at issue in Hill, a buffer zone under the Ordinance can be established at any “hospital, medical office or clinic.... ” (App. at 150a.) But the Plaintiffs’ Complaint alleges that the Ordinance “is only enforced outside of health care facilities which provide abortions” (App. at 56a); the entirety of the discussion of the Ordinance’s enforcement in- the Complaint relates to a single Planned Parenthood location.
The McCullen Court did address the breadth of the Massachusetts buffer zone statute, but it did so only in the context of its free speech analysis and discussion of the disconnect between the government interests at stake and the means through which it sought to vindicate those interests. McCullen,
We think it unwise for us to assess the proper scope of the City’s Ordinance without there first being a resolution of the merits of the Plaintiffs’ free speech claim. It is true that the breadth of the challenged law plays a role in the narrow-tailoring analysis of the Plaintiffs’ free speech claim. See Brown,
4. Due Process Claim
Finally, the Plaintiffs maintain that the Ordinance violates the Due Process Clause of the Fourteenth Amendment because it “vests unbridled discretion in the City to create buffer zones outside of any hospital or health care facility in the City of Pittsburgh.” (Opening Br. at 42.) The District Court dismissed that claim because the substance of the claim is “more appropriately characterized as violations under the First Amendment.” (App. at 39a.)
The District Court properly pointed out that all of the precedents cited by the Plaintiffs involved First Amendment claims. “Where a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of
III. Conclusion
For the foregoing reasons, we will vacate the District Court’s dismissal of the Plaintiffs’ First Amendment claims and affirm the dismissal of their Due Process claim. Again, nothing in this opinion should be construed as a conclusion about the ultimate merits of the claims or defenses advanced by the parties. There are not enough facts in the record for us to make any such comment, even were we so inclined. That is the problem. We reverse so that the Plaintiffs’ claims may be aired and assessed by the standard that McCullen now requires.
Notes
. As more fully noted herein, see infra 359 n.5, some of the Plaintiffs’ claims were permitted to stand but the Plaintiffs have since voluntarily dismissed them.
. Because the District Court dismissed the Plaintiffs’ Complaint in response to the City’s motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), in setting out the factual background here, we accept as true all facts alleged in the Complaint and draw all reasonable inferences in favor of the Plaintiffs. Phillips v. Cty. of Allegheny,
. The order also required the City to provide training to the Pittsburgh City Police concerning proper enforcement of the Ordinance and to mark clearly the boundaries of any fixed buffer zone.
. In their Complaint, the Plaintiffs also describe specific episodes that have occurred outside of the Liberty Avenue Planned Parenthood, episodes in which their counseling was interrupted. For example, Plaintiff Cosentino stated that on one occasion a clinic escort "yelled loudly” at her while she was speaking with a young woman outside of the buffer zone, and multiple clinic employees then “surrounded the young woman” and led her into the clinic. (App. at 58a-59a.) On another occasion, Plaintiff Rinaldi stated that a security guard stifled her speech outside of the buffer zone while she was discussing adoption options with a young woman.
. The Plaintiffs’ Complaint also included as-applied challenges, an Equal Protection claim, and a selective enforcement claim against the Mayor of Pittsburgh, all of which the District Court did not dismiss. After the District Court’s ruling, the Plaintiffs moved to voluntarily dismiss those remaining claims, which are, consequently, not before us on appeal.
. "A clinic escort is a volunteer who is trained to walk alongside patients and their companions who want to be accompanied as they approach or leave a health care facility.” (App. at 152a.)
. The Court also dismissed all claims against the City Council, which the Plaintiffs do not challenge in this appeal.
. The District Court had subject matter jurisdiction under 28 U.S.C. § 1331; we exercise jurisdiction pursuant to 28 U.S.C. § 1291.
.Although notice need not be express, we have recommended that district courts provide express notice because it "is easy to give and removes ambiguities.” In re Rockefeller Ctr. Props., Inc. Sec. Litig.,
. Specifically, the District Court engaged in a careful analysis of the merits of the Plaintiffs' preliminary injunction motion, and then incorporated that analysis into a relatively brief discussion of the motion to dismiss by saying only, “See analysis supra." (App. at 35a.)
. It is not enough that the Plaintiffs had an opportunity to submit evidence in connection with the preliminary injunction motion. Even if the parties understood that the City’s motion to dismiss was being converted to a motion for summary judgment, the standards governing a motion for a preliminary injunction and a motion for summary judgment are entirely different, and it cannot be assumed that a response to one was meant as a response to the other. As the Plaintiffs point out, evidence was offered only to support their request for a preliminary injunction, and should not have been treated as their entire defense to an improperly-converted summary judgment motion "without giving [Plaintiffs] an opportunity to show ... that the City's evidence fails” to withstand proper scrutiny. (Reply Br. at 22.) With no reflection of notice or an agreement to treat the record developed for the preliminary injunction as being a full record for summary judgment, conversion of the motion was not justified. Moreover, the "undeveloped factual record” (App. at 22a) that the District Court determined was insufficient to support a preliminary injunction was no better developed for purposes of summary judgment.
Even had the District Court restricted its review to the pleadings, it erred by directly equating the standard for evaluating a preliminary injunction with the standard applicable to a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). On a motion for a preliminary injunction, a plaintiff bears the burden to show, among other things, “that he is likely to succeed on the merits....” Ferring Pharms., Inc. v. Watson Pharms., Inc.,
. The amicus brief submitted by Planned Parenthood of Western Pennsylvania and Pittsburgh Pro-Choice Escorts also includes a considerable amount of evidence that purports to be testimony taken by the Pittsburgh City Council during the original 2005 hearing on whether to adopt the Ordinance. The testimony may be significant, as it speaks to the alleged need for the buffer zones and the alternatives employed by the City prior to its enactment. But we cannot consider it in our review, as the testimony would, again, effectively convert the motion to dismiss into one for summary judgment. Moreover, it does not appear to have been before the District Court and is not part of the record in this case.
. To clarify the point, the Supreme Court contrasted an earlier case, McCutcheon v. FEC, - U.S. -,
. Although we do not address the issue, should it arise and need to be addressed on remand, the District Court will need to examine Reed and its effect on the content-neutrality analysis to decide whether that case compels a break from Brown’s holding that the Ordinance is a content-neutral restriction on speech.
. We agree with the observation of our concurring colleague that the degree of burden on speech here is less than that in McCullen, because the zones in Massachusetts were larger, applied state-wide, and limited any entry into the prohibited areas. But the protracted discussion undertaken by the concurrence in an effort to contrast McCullen with this case is unnecessary, since the differences do not change the applicable analysis under intermediate scrutiny. As far as we can tell, the concurrence does not contend that those differ-enees somehow save the Ordinance at issue here from intermediate scrutiny or subject it to a lesser level of review. In fact, our colleague says that he "cannot conclude, on the basis of the allegations in the Complaint, that the Pittsburgh buffer zones operate so differently from the Massachusetts zones that Plaintiffs cannot advance past the pleading stage.” (Concurrence at 386.) Because we agree with that statement, we see little point in contrasting the two laws in lengthy dicta. Any law that imposes a similar burden as that in McCullen — foreclosing speech about an im
. The concurrence offers some suppositions about the possible ways the Ordinance might affect people, like Plaintiffs, engaging in sidewalk counseling. For example, it notes that counselors will likely be able to distinguish patients from passersby because “[a] patient heading toward a clinic will almost certainly have manifested her intention to enter the clinic by the time she is 15 , feet from its entrance” (Concurrence at 384), even though the photograph of the Planned Parenthood buffer zone provided by the City shows that it extends to the edge of the sidewalk and into the street, which would seemingly make it quite difficult for counselors to make any distinction between patients walking into the clinic and pedestrians walking by it. Despite the guesswork, the concurrence concludes by emphasizing that, “it is not the Court’s role on a 12(b)(6) motion to supplant the well-pleaded allegations with its own speculation, or to question the Plaintiffs' characterization of their experiences.” (Concurrence at 385.) That last observation is certainly correct, which is why we have opted not to speculate or question the allegations of the Complaint.
. The concurrence repeatedly tries to downplay the significance of McCullen — variously referring to the opinion as "incremental,” "modest,” and "unexceptional” (Concurrence at 377) — and devotes much of its energy to narrowing that case only to its facts. It does so, presumably, in service of a desire to avoid the import of the Supreme Court's decision. Consider our colleague’s reading of McCullen'. "[ujnlike the majority, I do not believe that McCullen announces a general rule requiring the government to affirmatively prove that less-restrictive measures would fail to achieve its interests.” (Concurrence at 376.) Then try to reconcile that with the actual language of McCullen'. "To meet the requirement of narrow tailoring, the government must demonstrate that alternative measures that burden substantially less speech would fail to achieve the government’s interests, not simply that the chosen route is easier.”
Nevertheless, he asserts that our analysis "is contrary to McCullen and distorts First Amendment doctrine.” (Concurrence at 378.) Far from it. We are doing nothing more than applying McCullen according to its terms. In the unanimous language of the Supreme Court, "it is not enough for [the government] simply to say that other approaches have not worked.” Id. Again, the burden is on the government to actually demonstrate that alternative measures would fail to meet the government's legitimate ends. We are simply holding the City to that standard, as was done in McCullen.
The concurrence claims that we have neglected to answer "the central constitutional question: assuming that the proposed alternatives would burden less speech than a 15-foot buffer zone, would they burden substantially less speech?” (Concurrence at 381.) But McCullen answered that question for us; it just did not provide the answer our concurring colleague might prefer. In that opinion, the Supreme Court laid out some of the less-burdensome alternatives to a buffer zone law. Because the burden on Plaintiffs' speech here is akin to that present in McCullen, the City similarly “has available to it a variety of approaches that appear capable of serving its interests, without excluding individuals from areas historically open for speech and debate.”
. Despite our repeated recognition of the broad principle of deference to legislative judgments and our explicit assurance that legislatures need not meticulously vet every less burdensome alternative, the concurrence nonetheless persists in suggesting that we are somehow saying the opposite, "eliminat[ing] much of the discretion” given to lawmakers
The concurrence similarly claims that we are conducting an unprecedented “show us your work” review of the underlying legislative record, "something no court has ever required.” (Concurrence at 379.) Although we (yet again) acknowledge the need for deference, heightened scrutiny must mean something. It is impossible to read McCullen any other way. That case dug into the record, discussed the substantially less burdensome alternatives available, and assessed the Commonwealth's failure to use those alternatives to address its significant interests. And that was not a novel approach. Past intermediate scrutiny cases engage in similar review of the legislative record. See Turner Broad. Sys., Inc. v. FCC,
. One might argue that the qualifying phrase "provide support for the law” makes that allegation primarily a legal rather than a factual contention. See Fowler,
. Although this is not such a case, there may be cases in which it is clear — before any evidence is produced regarding the government’s history of attempting and considering alternatives — that the chosen regulation is reasonably narrowly tailored under intermediate scrutiny. For example, were one to challenge the hypothetical de minimis sound amplification law posited by the concurrence, that regulation would likely be viewed as narrowly tailored, even at the pleading stage. With such a slight burden on speech, any challengers would struggle to show that "alternative measures [would] burden substantially less speech.” McCullen,
We also note that our emphasis on the need for the development of a factual record arises not only from the general principle that a court should have a sufficient basis to support its legal conclusions but more particularly from the Supreme Court’s instruction in McCullen on the importance of a factual record in considering the constitutionality of such buffer zone laws.
. In this way, we entirely agree with the concurrence's observation that McCullen requires that courts may no longer hold "that a speech regulation is constitutional if it is facially similar to a restriction upheld in a prior Supreme Court case.” (Concurrence at 377.)
. In granting the parties’ motion to voluntarily dismiss with prejudice the as-applied challenges, the District Court's order noted: "The parties specify that dismissal is with prejudice to these two existing matters, but the prejudice does not prevent assertion of such claims against future applications of the ordinance by the City.” (District Court Docket, Doc. 31.)
. Although the Plaintiffs also raised a procedural due process claim, which the District Court dismissed, they have made no argument before us concerning that claim. Accordingly, any argument supporting the procedural due process claim is waived. See United States v. Pelullo,
Concurrence Opinion
concurring in the judgment.
I agree with the majority that the allegations in the Complaint, taken as true, establish that Pittsburgh’s Ordinance restricting certain speech within 15 feet of designated health care facilities violates the intermediate-scrutiny standard for time, place, and manner regulations. I disagree, however, with the majority’s reasoning in support of that result. In particular, I disagree with its conclusion that the Supreme Court’s decision in McCullen v. Coakley
I.
My disagreement with the majority stems entirely from our differing interpre
McCullen is, first and foremost, a straightforward application of the Ward narrow-tailoring standard for time, place, and manner regulations. Such regulations “must not ‘burden substantially more speech than is necessary to further the government’s legitimate interests.’ ”
McCullen was a case of extreme imbalance — so much so that the Supreme Court unanimously agreed that the challenged statute failed narrow tailoring. The Massachusetts law at issue imposed remarkably onerous burdens on speakers, prohibiting all speech by all non-exempt persons in a 35-foot section of the public way at all abortion clinics in the entire state of Massachusetts.
The Massachusetts law also departed significantly from the regulations upheld in the Supreme Court’s prior abortion-protest cases. Unlike the injunctions in Madsen v. Women’s Health Center, Inc.
McCullen, fairly read, represents an incremental advance in narrow-tailoring doctrine. As the majority implicitly recognizes, McCullen did not alter the substantive standard for time, place, and manner restrictions. What it did, rather, is direct courts toward a more nuanced mode of narrow-tailoring analysis. It is no longer enough to say, as we did in Brown v. City of Pittsburgh,
These are modest, commonsense propositions. Notably, not a single Supreme Court justice considered McCullen’s narrow-tailoring analysis worthy of dissent or separate comment — a remarkable consensus in a case pitting abortion-access interests against the right to free speech. That unanimity is not surprising in light of the extreme facts presented and the straightforward doctrinal analysis required. McCullen, when read against its precedents, is best understood as a boundary-setting exercise — a corrective but ultimately unexceptional exposition of narrow-tailoring doctrine. >
II.
The majority reads McCullen differently. McCullen, it says, announces a new rule: henceforth, the government must justify any law that places a “significant” burden on speech “by describing the efforts it ha[s] made to address the government interests at stake by substantially less-restrictive methods or by showing that it seriously considered and reasonably rejected ‘different methods that other jurisdictions have found effective.’ ”
I believe that the majority’s new “proof of prior efforts” rule is contrary to McCul-len and distorts First Amendment doctrine. It is, of course, indisputably true that under McCullen, the government cannot take “the extreme step of closing a substantial portion of a traditional public forum to all speakers” without “seriously addressing the problem through alternatives that leave the forum open for its time-honored purposes.”
Contrary to the majority’s reading, McCullen’s invocation of less-restrictive alternatives did not break new ground in First Amendment doctrine. The burden is always on the government to prove that a time, place, or manner restriction does not “burden substantially more speech than is necessary to further' the government’s legitimate interests.”
The majority opinion grafts an additional requirement onto the “substantially more speech than necessary” test: a municipality must now also prove that, before adopting a regulation that “significantly” burdens speech, it either attempted or “seriously considered” and “reasonably rejected” less-intrusive alternatives. This rule improperly elevates one element of the narrow-tailoring inquiry — the availability of less-burdensome alternatives — into a standalone rule of constitutionality. And it does so by converting our inquiry from an after-the-fact assessment of the burdens and benefits of a regulation (what McCul-len actually requires) into a review of the sufficiency of the underlying legislative record (something no court has ever required). I see no reason why we should begin conducting judicial audits of the legislative rulemaking process.
By extending judicial scrutiny to the legislative process itself, the majority’s new tailoring standard improperly eliminates much of the discretion that Ward and McCullen confer on municipal deci-sionmakers.
Today’s opinion also introduces a fundamental inconsistency into our narrow-tai
This case illustrates my concern. The majority holds that the plaintiffs have successfully pleaded a constitutional violation because (1) the City has available to it less-restrictive alternatives such as “anti-obstruction ordinances, criminal enforcement, and targeted injunctions,” and (2) the City has failed to try such measures or to justify its decision not to adopt them.
To the extent the majority reads McCul-len as adopting a special rule for buffer zones, that distinction does not appear on the face of the McCullen opinion or follow naturally from the Supreme Court’s reasoning. As the majority recognizes elsewhere, what McCullen actually demands is a nuanced tailoring analysis that accounts for context and practical consequences— not a rigid new tier of scrutiny for statutes that create physical zones of exclusion. After all, every time the government builds a fountain in a public park or installs a planter on the sidewalk, it is technically “carving out” a piece of the public forum and preventing its use as a site for expression. We may safely assume that the Supreme Court did not intend such projects to be unconstitutional unless a city can prove that smaller fountains and planters cannot meet the city’s beautification
In short, nothing in McCullen 'or its antecedents requires courts to strike down a time, place, and manner restriction whenever the government cannot prove that it tried or seriously considered less intrusive measures. Narrow tailoring permits a fit between the legislature’s goal and method “that is not necessarily perfect, but reasonable; that represents not necessarily the single best disposition but one whose scope is in proportion to the interest served.”
III.
Plaintiffs’ invocation of less-intrusive alternatives therefore does not resolve this case. We still must ask: under the fact-specific tailoring analysis required by McCullen, does the Pittsburgh Ordinance burden substantially more speech than is necessary to further the City’s legitimate interests in protecting women’s access to pregnancy-related services, ensuring public safety, and promoting the free flow of traffic? The majority says “yes,” in part because it views the burdens imposed by the Ordinance as functionally indistinguishable from the burdens imposed by the Massachusetts law in McCullen. I am less certain. While I ultimately agree that the Plaintiffs have adequately pleaded a First Amendment violation, there are numerous distinctions between the buffer zones in McCullen and the buffer zones in this case. These distinctions demonstrate why this case cannot be decided simply by citing the prospect of less-burdensome alternatives.
Size of the Zones. The most obvious difference between the Pittsburgh buffer zones and the McCullen buffer zones is their size. The radius of the Pittsburgh buffer is less than half the radius of the Massachusetts buffer, and creates a zone whose total area is less than one-fifth the area of the Massachusetts zone. (Put differently, the Massachusetts zone was 2.3 times longer, and its total area was 5.4 times larger.) The Pittsburgh Ordinance therefore carves out a substantially smaller piece of the public forum.
The first point to bear in mind is that the buffer zone perimeter is not an impermeable barrier that prevents the transmission of Plaintiffs’ message to individuals within the zone. Plaintiffs can speak to women who are inside the zone or hand leaflets to them if they are within arm’s reach. Plaintiffs can begin a conversation with a woman outside the zone and continue it as the woman enters the zone, or can initiate a conversation with a woman while she is in the zone and continue it as she exits.
The second, closely related point is that, because the zone is situated around a point of ingress and egress, potential listeners will be moving through the zone rather than standing in a fixed location beyond earshot. And the 15-foot buffer does not require Plaintiffs to remain 15 feet away from patients — -just 15 feet away from the clinic doors. Practically speaking, then, a woman entering the clinic will at first be quite close to the speaker and then only gradually move 15 feet away, while a woman exiting the clinic will begin 15 feet away but then move into close proximity.
Therefore, a buffer zone around clinic entrances does not really exclude speech throughout a physical zone, but rather creates a temporal window' during which listeners are unable or less likely to receive the speaker’s message. The length of that window defines the actual speech burden imposed by the buffer regulation. Here, the window seems short. With respect to oral communication, the Supreme Court in Hill concluded that a rule prohibiting speakers from entering within eight feet of a listener still “allows the speaker to communicate at a normal conversational distance.”
It also seems like a much lesser burden than the one imposed by the Massachusetts buffer zone, which created a 27-foot “no-speech” zone in which women presumably could not be reached. And while it may be debatable whether Plaintiffs would truly be unable to communicate with a woman in the inner seven-foot zone around Pittsburgh clinics, it is much more likely that they would have been completely unable to communicate with a woman who was well within the 27-foot zone in McCul-len. By the same token, if women traversing the Pittsburgh buffer zone largely remain within earshot of Plaintiffs’ message, that would also alleviate the concern raised in McCullen that “[i]f all that the women can see and hear are vociferous opponents of abortion, then the buffer zones have effectively stifled [sidewalk counselors’] message.”
Plaintiffs, following the Supreme Court’s lead in McCullen, also allege that the Ordinance makes it more difficult for them to distinguish patients from passersby and initiate conversations before they enter the buffer zone. I have not found support for the implicit premise that
The Ordinance does, however, place a greater burden on leafleting. Unlike the statute in Hill, the Ordinance does not allow speakers to stand within the zone and hand out literature to passing women, but rather forces them to do so from outside the zone. But as we noted in Brown, “[although the buffer zone, standing alone, would require leafletters to remain beyond arm’s reach of a medical facilities’ entrances, they would still be able to approach individuals outside of the 15-foot radius in order to distribute their literature.”
Scope of Prohibited Activity. The Massachusetts law made it unlawful for anyone to “knowingly enter or remain” within a buffer zone. The Pittsburgh Ordinance makes it unlawful to “knowingly congregate, patrol, picket or demonstrate” within a buffer zone. There are at least two consequential distinctions between these prohibitions.
First, as the McCullen Court disapprovingly observed, the Massachusetts law prohibited all speech of any kind within the zone, from political advocacy all the way down to cell phone conversations or casual discussions about the weather. The Pittsburgh Ordinance, by contrast, restricts only certain kinds of protest speech— “picketing” and “demonstrating.”
Second, the Ordinance, unlike the Massachusetts law, permits protesters and counselors to move through the buffer zone. This understanding has been confirmed by the City in a limiting interpretation.
Statutory Reach. A key failing of the Massachusetts law was its overbreadth: while the record showed that congestion was only a problem at one Boston clinic on Saturday mornings, the law created permanent buffer zones at every single clinic throughout the state. “For a problem shown to arise only once a week in one city at one clinic, creating 35-foot buffer zones at every clinic across the Commonwealth is' hardly a narrowly tailored solution.”
Accordingly, there are strong practical and doctrinal reasons to conclude that the City’s buffer zones are qualitatively different from — and burden significantly less speech than — the Massachusetts buffer zones in McCullen. There is correspondingly less reason to conclude that the mere possibility of less-intrusive alternatives requires a finding that the Ordinance burdens substantially more speech than necessary.
I agree with the majority, however, that it is not the Court’s role on a 12(b)(6) motion to supplant the well-pleaded allegations with its own speculation, or to question the Plaintiffs’ characterization of their experiences. The Ordinance may function in the ways I have described above; it may not. What Plaintiffs allege in the Complaint, however, is that the Ordinance “prohibits Plaintiffs and others from effectively reaching their intended audience”; that the Pittsburgh zones “make it more difficult [for the] Plaintiffs to engage in sidewalk counseling, prayer, advocacy, and other expressive activities”; and that the Ordinance “will cause conversations between the Plaintiffs and those entering or exiting the facilities to be far less frequent and far less successful.”
The Complaint also includes allegations suggesting that the Ordinance sweeps more broadly than necessary to meet the City’s interests. As in McCullen, the City’s use of a fixed buffer zone plausibly suggests that the City adopted the Ordinance because it would be easy to enforce, rather than because less intrusive measures could not serve its legitimate interests. Plaintiffs also claim that different laws targeted only at harassing or obstructive behavior, such as the ones discussed in McCullen, would burden less speech than the fixed buffer zones imposed by the Ordinance. And crucially, Plaintiffs allege that “no specific instances of obstructive conduct outside of hospitals or health care facilities in the City of Pittsburgh ... provide support for the law.”
McCullen instructs us to be sensitive to context and to the practical effects of the Ordinance on Plaintiffs’ particular messaging strategy. The allegations in the Complaint, taken as true, plausibly establish that the Ordinance burdens substantially more speech than is necessary to achieve the City’s legitimate interests. It is up to a factfinder to determine whether the Ordinance in fact burdens “substantially” more speech than necessary (or, conversely, whether alternative measures would burden “substantially” less speech while still meeting the City’s interests). I disagree with the majority’s conclusion that the availability of unexamined, less-restrictive alternatives is sufficient, standing alone, to establish a constitutional violation. But I cannot conclude, on the basis of the allegations in the Complaint, that the Pittsburgh buffer zones operate so differently from the Massachusetts zones that Plaintiffs cannot advance past the pleading stage.
Accordingly, I concur in the judgment denying the City’s motion to dismiss the free speech claim.
. — U.S. -,
. Id. at 2535 (internal quotation marks omitted).
. I agree with the majority's disposition of Plaintiffs' free press, overbreadth, and due process claims.
. McCullen,
. Id. at 2535 (quoting Ward,
. Watchtower Bible & Tract Soc. of N.Y., Inc. v. Village of Stratton,
. McCullen,
. Id. at 2541 (emphasis added).
. Id. at 2538.
. Id. at 2537-38 (emphasis added).
.
.
.
. McCullen,
. Id. at 2537-39.
. Id. at 2539.
.
. Maj. Op. 367, 371 (quoting McCullen,
An example may illustrate the distinction. Imagine that a beach town adopts a de min-imis time, place and manner restriction: no person may use an electronic sound-amplification device on the beach between the hours of 1:00 a.m. and 6:00 a.m. Under today’s decision, this law should be upheld simply because it hardly burdens any speech, and certainly does not burden more speech than necessary to achieve the government's interests. The town government need not prove either that it attempted or that it seriously considered and reasonably rejected less restrictive alternatives, such as a law saying no amplification devices between 2:00 a.m. and 5:00 a.m., or a law saying no amplification devices within 100 feet of a beachfront residence, or a law saying no amplifiers above 50 watts.
. Maj. Op. 369.
. Maj. Op. 370.
. Maj. Op. 357.
. Maj. Op. 372.
. McCullen,
. Ward,
. See 44 Liquormart v. Rhode Island,
.
. Note the fundamental oddity of today's rule, which essentially requires legislatures to "show us their work” and prove that they took certain considerations into account during the rulemaking process. We frequently assess speech statutes by asking what problem the statute was meant to solve and how well it does so in practice. And as the majority notes, we will sometimes review the legislative record when deference requires us to assess whether Congress acted reasonably, see Turner Broad. Sys. v. FCC,
The novelty of this type of constitutional review raises a variety of practical questions, none of which are answered in the majority opinion. For starters: How can a government ever determine, prior to legislating, which alternatives it must "seriously consider”? What constitutes a “reasoned” rejection? When a government legislates to ad
The majority leaves these questions to future courts. In light of the novelty of the required inquiry and the fact that most (if not all) municipal time, place, and manner restrictions are not supported by the type of factual record today's, decision requires, it is worth reemphasizing that the majority's rule only applies to laws that place significant burdens on speech. In the vast majority of cases, litigants and District Courts need not consult legislative history or grapple with the questions raised here.
. See also Hill,
. See Ward,
. Ward,
. McCullen,
. The inverse also holds true: if a law burdens substantially more speech than necessary to achieve the government's interests, it should be declared unconstitutional regardless of the government’s proffered justification.
. Maj. Op. 369-70.
. As explained in Section III, infra, the Pittsburgh buffer zone at issue here burdens far less speech than the Massachusetts zone in McCullen. Therefore, we cannot simply assume that the alternative measures discussed in the McCullen opinion would also burden substantially less speech than the Pittsburgh Ordinance.
. Bd. of Trs. of State Univ. of N.Y. v. Fox,
. McCullen,
. Cf. McCullen,
. Maj.Op. 368.
. Hill,
. McCullen,
. Brown,
. Id. at 278 (citing Hill,
. The majority is therefore incorrect to characterize the Ordinance as a “blanket prohibition on Plaintiffs' speech in a historically-public forum.” Maj. Op. 371.
.See Brown,
. City Br. 18.
. McCullen,
. App. 150a.
. App. 57a.
. App. 56a, 60a.
. App. 61a.
. The ability to leaflet was a key feature of the Colorado statute upheld in Hill and a crucial failing of the Massachusetts law struck down in McCullen. As Hill acknowledged and McCullen emphasized, "handing out leaflets in the advocacy of a politically controversial viewpoint is the essence of First Amendment expression; no form of speech is entitled to greater constitutional protection.” McCullen,
. App. 56a.