NIKKI BRUNI; JULIE COSENTINO; CYNTHIA RINALDI; KATHLEEN LASLOW; PATRICK MALLEY, Appellants v. CITY OF PITTSBURGH; PITTSBURGH CITY COUNCIL; MAYOR PITTSBURGH
No. 18-1084
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
October 18, 2019
PRECEDENTIAL. Argued: February 6, 2019. Before: HARDIMAN, KRAUSE, and GREENBERG, Circuit Judges.
Kenneth J. Connelly
Elissa M. Graves
Kevin H. Theriot [ARGUED]
Kristen K. Waggoner
David A. Cortman
Alliance Defending Freedom
15100 North 90th Street
Scottsdale, AZ 85260
Lawrence G. Paladin, Jr.
Suite 6C
15 Duff Road
Pittsburgh, PA 15235
Counsel for Plaintiff-Appellants Nikki Bruni, Julie Cosentino, Cynthia Rinaldi, Kathleen Laslow, and Patrick Malley
Julie E. Koren
Matthew S. McHale* [ARGUED]
Yvonne S. Hilton
City of Pittsburgh
Department of Law
414 Grant Street
313 City County Building
Pittsburgh, PA 15219
* Matthew S. McHale withdrew as counsel on July 3, 2019, prior to the issuance of this opinion.
Counsel for Defendant-Appellees City of Pittsburgh, Pittsburgh City Council, Mayor Pittsburgh
William A. Bonner, I
12 Veterans Square
P.O. Box 259
Media, PA 19063
Counsel for Amicus Curiae Life Legal Defense Foundation
Jamie Cohn
Stephen M. Juris
Janice Mac Avoy
Fried Frank Harris Shriver & Jacobson
One New York Plaza
New York, NY 10004
Susan J. Frietsche
Women‘s Law Project
Western Pennsylvania Office
428 Forbes Avenue
Suite 1710
Pittsburgh, PA 15219
Counsel for Amici Curiae Women Law Project, National Abortion Federation
Stephen M. Crampton
P.O. Box 4506
Tupelo, MS 38803
Counsel for Amici Curiae Pro Life Action League, Sidewalk Advocates for Life
Steven W. Fitschen
The National Legal Foundation
524 Chesapeake
Chesapeake, VA 23322
Counsel for Amici Curiae Pacific Justice Institute, Concerned Women for America, National Legal Foundation
Matthew D. Staver
Horatio G Mihet
Roger K. Gannam
Liberty Counsel
P.O. Box 540774
Orlando, FL 32854
Counsel for Amici Curiae Colleen Reilly and Becky Biter
Erek L. Barron
Whiteford Taylor & Preston
111 Rockville Pike
Suite 800
Rockville, MD 20850
Counsel for Amicus Curiae International Municipal Lawyers
KRAUSE, Circuit Judge.
This case requires us to determine the constitutionality of a Pittsburgh ordinance that creates a fifteen-foot “buffer zone” outside the entrance of any hospital or healthcare facility.
I. Background
A. Factual Background1
1. History of the Ordinance
In the mid- and late 1990s, Planned Parenthood was the site of numerous clashes between opponents and advocates of abortion rights as well as individuals seeking the facility‘s services.2 In addition to seeing “hundreds” of people at the facility on a Saturday—“pro and anti“—the clinic was plagued by bomb threats, vandalism, and blockades of its entrance. JA 322a. To address these incidents, the Bureau of Police deployed an overtime detail of “up to ten officers and a sergeant” to maintain order and security, often using crowd-control barriers to separate demonstrators from each other and from patients trying to enter the clinic. JA 1024a.
In 2002, Planned Parenthood moved to its current location at 933 Liberty Avenue. Although the incidents lessened in severity, contemporaneous police logs and testimony from Sergeant William Hohos indicate that “the pushing,” “the shoving,” and “the blocking of the doors” continued, and the overtime detail, reduced in size, continued to provide a police presence. JA 323a, JA 834a, JA 837a. After Pittsburgh was declared a financially distressed municipality in late 2003, however, fiscal constraints and the need for redeployment of limited police resources required the detail to be discontinued, and police were called to address the continuing incidents at the site on an as-needed basis. In the wake of the detail‘s discontinuation, the clinic reported an “obvious escalation in the efforts of the protestors,” JA 357a, including an increase in “aggressive pushing, shoving and . . . harassing behavior that included shoving literature into people‘s pockets, hitting them with signs and blocking their entrance into the building,” JA 352a.
In November 2005, the City Council held hearings on proposed legislation that eventually resulted in the Ordinance. Among those who testified were sidewalk counselors, clinic escorts, patients, and other concerned members of the community. Several witnesses insisted the Ordinance was unnecessary either because they had never observed violent incidents or were unaware of “significant violence” outside the clinic. JA 348a. But other witnesses
President and CEO of Planned Parenthood of Western Pennsylvania said, “there ha[d] been an increase in unlawful behavior that . . . put[] . . . patients, their families, pedestrians and protestors at risk.” JA 352a.
The City Council also heard from Commander Donaldson of the Pittsburgh Police Department. He reported that police had been summoned to Planned Parenthood twenty-two times in the past six months alone to “mediate confrontations” and respond to incidents ranging from signs “obstructing the front of the building” to protestors “follow[ing] . . . people to the doorway.” JA 404a. They had not made any arrests, however. According to Commander Donaldson, the City had on its books “laws . . . that would address obstructing traffic or passageways or . . . the [clinic‘s] doorway,” but those laws would not address the precise problem that was occurring, namely attempts to block people from entering the facility before they reached its front door.3 JA 398a.
The debate on the Ordinance was extensive. Many witnesses, both for and against the legislation, expounded on the competing interests at stake and expressed a desire to protect both free speech and access to healthcare, including abortions.
2. The Ordinance
Shortly after these hearings, the City Council adopted the Ordinance, and the mayor signed it into law. See Bruni v. City of Pittsburgh (Bruni I), 824 F.3d 353, 357 (3d Cir. 2016). Codified as Chapter 623 of the Pittsburgh Code of Ordinances, the Ordinance states, in relevant part:
No person or persons shall knowingly congregate, patrol, picket or demonstrate in a zone extending 15 feet from any entrance to the hospital and or health care facility. This section shall not apply to police and public safety officers . . . 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.4
“provid[ing] unobstructed access to health care facilities” and “medical services,” “avoid[ing] violent confrontations,” “provid[ing] a more efficient and wider deployment” of City services, and “ensuring that the First Amendment rights of demonstrators to communicate their message . . . [are] not impaired.”
3. Application of the Ordinance and Plaintiffs’ Activities
Today, the City has demarcated buffer zones at two locations, both of which provide reproductive health services including abortions. Bruni I, 824 F.3d at 358. Plaintiffs Nikki Bruni, Cynthia Rinaldi, Kathleen Laslow, Julie Cosentino, and Patrick Malley engage in the bulk of their anti-abortion activities outside the buffer zone at Planned Parenthood. See id. at 359. In contrast to the conduct that gave rise to the Ordinance, Plaintiffs do not physically block patients’ ingress or egress or engage in violent tactics. Instead, they engage in what they call “sidewalk counseling,” meaning “calm” and “quiet conversations” in which they “offer assistance and information to” women they believe are considering having an abortion “by providing them pamphlets describing local pregnancy resources, praying, and . . . peacefully express[ing] [a] message of caring support.”6 JA 59a; see Appellants’ Br. 9. That message, Plaintiffs explain, “can only be communicated through close, caring, and personal
conversations, and cannot be conveyed through protests.” JA 62a. Nonetheless, the City takes the position that Plaintiffs’ sidewalk counseling falls within the prohibition on “demonstrating“—if not “congregating,” “patrolling,” and “picketing” too, see JA 334a–37a—so while they can engage in sidewalk counseling outside the zone, they cannot once within its bounds. See Bruni I, 824 F.3d at 359.
Plaintiffs describe various ways that the buffer zone has hindered their ability to effectively communicate their message. The street noise makes it difficult for people to hear them, forcing them to raise their voices in a way inconsistent with sidewalk counseling. And at the distance at which they are forced to stand, they are unable to differentiate between passersby and individuals who intend to enter the facility, causing them to miss opportunities
In addition to “sidewalk counseling,” Plaintiff Nikki Bruni is the local leader of a group participating in the “Forty Days for Life” movement, a global anti-abortion campaign.7 Twice a year, campaign participants, including Plaintiffs, pray outside of abortion clinics from 7 AM to 7 PM continuously for forty days. They do so in shifts, and many participants wear
or carry signs. As the leader of the group, Bruni organizes local churches to ensure people are always outside of the clinic so “there‘s always groups on the sidewalk present during the 40 Days all day every day.” JA 141a. Although the exact number of participants is disputed, the record reflects a daily presence of somewhere between ten and forty people.
B. Procedural Background
About five years after we upheld the buffer-zone component of the Ordinance in Brown as a content-neutral time, place, and manner regulation, the Supreme Court decided McCullen v. Coakley, 573 U.S. 464, 493–97 (2014). The Court struck down as insufficiently narrowly tailored a Massachusetts law that created a thirty-five-foot buffer zone in front of health facilities where abortions were performed. Id. at 493–97. The Court found the law “extreme,” id. at 497, and “truly exceptional,” id. at 490: although congestion occurred at one clinic in one city once a week, the law applied statewide to all reproductive health facilities and, with few exceptions, prohibited any person from even “standing” in the zone, id. at 480, 493. To justify this “significant . . . burden” on speech, id. at 489, the Court held, the government must “show[] that it seriously undertook to address the problem with less intrusive tools readily available to it,” such as arrests, prosecutions, or targeted injunctions, or “that it considered different methods that other jurisdictions . . . found effective,” id. at 494.
In light of McCullen, Plaintiffs filed a complaint, challenging the Ordinance, pursuant to
Plaintiffs’ First Amendment claims, and Plaintiffs appealed.8 Id. at 360.
We vacated the District Court‘s dismissal. Id. at 357, 373–74. Taking as true the complaint‘s allegations that the Ordinance had been enforced against Plaintiffs and had significantly hindered their speech, id. at 369, we concluded that the Ordinance “impose[d] a similar burden as that in McCullen,” id. at 368 n.15, so that the City had the same obligation as in McCullen to
Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015), the Supreme Court‘s most recent pronouncement on the dividing line between content-neutral and content-based restrictions. Bruni I, 824 F.3d at 365 n.14.
On remand, the District Court accepted the City‘s contention that the Ordinance covered Plaintiffs’ sidewalk counseling as a form of demonstrating and held that the Ordinance was content neutral, even under Reed. Bruni v. City of Pittsburgh, 283 F. Supp. 3d 357, 361, 367–68 (W.D. Pa. 2017). It also distinguished the Ordinance from the statute in McCullen as creating a smaller buffer zone and allowing Plaintiffs to reach their audience through sidewalk counseling despite the buffer zone and therefore concluded that the Ordinance imposed “only a minimal burden on Plaintiffs’ speech.” Id. at 369–71. Accordingly, it held that the City “ha[d] no obligation to demonstrate that it tried—or considered and rejected“—the alternatives identified in McCullen, such as arrests or targeted injunctions, and even if the City did have such an obligation, it had been satisfied. Id. at 371–72. The Court therefore granted the City‘s motion for summary judgment. Id. at 373. This appeal followed.
II. Jurisdiction and Standard of Review
The District Court had jurisdiction under
entitled to judgment as a matter of law.”
III. Discussion
On appeal, Plaintiffs argue that the Ordinance violates the Free Speech and Free Press Clauses9 of the First Amendment for three reasons: first, the Ordinance is content based and therefore subject to strict scrutiny; second, even if it is content neutral, the Ordinance is not narrowly tailored and thus does not survive intermediate scrutiny; and third, the Ordinance is
A. General Framework
Plaintiffs allege that the Ordinance is unconstitutional on its face. See Bruni I, 824 F.3d at 362. A facial challenge “seeks to vindicate not only [a plaintiff‘s] own rights,” as in an as-applied challenge, but also “those of others who may . . . be adversely impacted by the statute in question.” Id. (quoting CMR D.N. Corp. v. City of Philadelphia, 703 F.3d 612, 623 (3d Cir. 2013)). Although facial challenges in the First Amendment context are more forgiving than those in other contexts, see United States v. Salerno, 481 U.S. 739, 745 (1987), “all agree that a facial challenge [under the First Amendment] must fail where the statute has a plainly legitimate sweep,” Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 (2008) (citation omitted).
As we explained in Bruni I, however, “the distinction between facial and as-applied challenges is not so well defined that it has some automatic effect or that it must always control the disposition in every case involving a constitutional challenge.” 824 F.3d at 363 (quoting Citizens United v. FEC, 558 U.S. 310, 331 (2010)). Courts therefore look to “[t]he relevant constitutional test” to resolve the inquiry, id. (citation omitted), bearing in mind that a party seeking to invalidate a law in its entirety bears a heavy burden, see Wash. State Grange, 552 U.S. at 450–51; Brown, 586 F.3d at 269.
Here, the relevant test is that governing free speech claims. The government‘s ability to restrict speech in a traditional public forum, such as a sidewalk, is “very limited.” McCullen, 573 U.S. at 477 (citation omitted). That is because traditional public fora “are areas that have historically been open to the public for speech activities.” Id. at 476. In such
fora, the government may not restrict speech based on its “communicative content,” Bruni I, 824 F.3d at 364 (quoting Reed, 135 S. Ct. at 2226)—that is, the government “has no power to restrict expression because of its message, its ideas, its subject matter, or its content,” id. at 363 (quoting Ashcroft v. ACLU, 535 U.S. 564, 573 (2002)).
By contrast, the government has greater leeway to regulate “features of speech unrelated to its content.” McCullen, 573 U.S. at 477. Thus, “[e]ven in a public forum the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.” Id. (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)).
The level of scrutiny a court applies to a restriction on speech depends on whether it is content based or content neutral. If the restriction is content based, it is subject to strict scrutiny and is therefore “presumptively unconstitutional and may be justified only if the government proves that [it is] narrowly tailored to serve compelling state interests.” Reed, 135 S. Ct. at 2226; see McCullen, 573 U.S. at 478. If a restriction is content neutral, “we apply intermediate scrutiny and ask whether it is ’
(1994)). The threshold question, therefore, is whether the restriction here is content based or content neutral.10
B. Content Neutrality
Plaintiffs contend that the Ordinance is content based and thus subject to strict scrutiny because it regulates speech “based on subject matter, function, or purpose,” rendering it content based under Reed.11 Appellants’ Br. 34. For the reasons that follow, we disagree.
In Reed, the Supreme Court considered the constitutionality of an ordinance that regulated the manner of display of outdoor signs depending on their subject matter. 134 S. Ct. at 2224–25. For example, the ordinance allowed “Political Signs” to be bigger in size and remain posted longer than those it defined as “Temporary Directional Signs.” Id. at 2224–25, 2227. The Court held that the regulation was content based because the restrictions applied differently “depend[ing] entirely on the communicative content of the sign[s].” Id. at 2227. As relevant here, the Court noted that whereas “[s]ome facial distinctions . . . are obvious,” such as “defining regulated speech by particular subject matter,” others are more “subtle,” such as “defining regulated speech by its function or purpose.” Id.
The thrust of Plaintiffs’ argument is that the Ordinance is content based because the City interprets the word “demonstrating” to apply to sidewalk counseling but not to peaceful one-on-one communication about other subjects, like sports teams, and, as a result, law enforcement must examine the content of any speech to determine if it is prohibited. However, despite the assumptions of both parties,12 nothing in
the plain language ofNo doubt, if the Ordinance by its terms did prohibit one-on-one conversations about abortion but not about other subjects within the zone, it would be highly problematic, see Reed, 135 S. Ct. at 2230, particularly where, as here, the speech alleged to be prohibited occurs on a public sidewalk and constitutes one-on-one “normal conversation and leafletting,” McCullen, 573 U.S. at 488—“core political speech entitled to the maximum protection afforded by the First Amendment,” Bruni I, 824 F.3d at 357. But under the doctrine of constitutional avoidance, “[i]t has long been a tenet of First Amendment law that in determining a facial challenge to a statute, if it be ‘readily susceptible’ to a narrowing construction conversations” within the buffer zone, Appellants’ Br. 17, the record does not reflect any prosecution, arrest, or even citation. Instead, it reflects that, except for isolated instances in which police were called to Planned Parenthood but took no action, Plaintiffs avoided the buffer zone based on an assumption, shared by the City, about the scope of the Ordinance. The realistic threat of the City‘s enforcement is sufficient for purposes of Plaintiffs’ standing. See Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014). As we explain below, however, it does not preclude us under the doctrine of constitutional avoidance from adopting a narrowing construction of the Ordinance. that would make it constitutional, it will be upheld.”13 Virginia v. Am. Booksellers Ass‘n, Inc., 484 U.S. 383, 397 (1988); see also Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320, 328–29 (2006) (“Generally speaking, when confronting a constitutional flaw in a statute, we try to limit the solution to the problem.“).
Of course, we may not “rewrite a . . . law to conform it to constitutional requirements,” United States v. Stevens, 559 U.S. 460, 481 (2010) (citation omitted), but, as we have recognized on many occasions, “[i]n the absence of a limiting construction from a state authority, we must ‘presume any narrowing construction or practice to which the law is fairly susceptible.‘”14 Brown, 586 F.3d at 274 (quoting City of Lakewood v. Plain Dealer Publ‘g Co., 486 U.S. 750, 770 n.11 (1988)); see Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 215 n.10 (3d Cir. 2001) (explaining that where a state court has not authoritatively construed the terms of a stated policy, “we are . . . required to give it a reasonable narrowing construction if necessary to save it from unconstitutionality“); see also determination of whether to adopt a limiting construction. See Forsyth County v. Nationalist Movement, 505 U.S. 123, 131 (1992); see also Ward, 491 U.S. at 795–96. But the City‘s interpretation has not been adopted by any Pennsylvania court, and where no state court has weighed in and the Ordinance is readily susceptible to a “reinterpretation” consistent with the Ordinance‘s text, the City‘s position is not dispositive. Free Speech Coal., Inc. v. Attorney Gen. of the U.S., 677 F.3d 519, 539 (3d Cir. 2012); Saxe, 240 F.3d at 215–16, 215 n.10; see also U.S. Nat‘l Bank of Ore. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 447 (1993) (stating, outside of the constitutional avoidance context, that litigants cannot “extract the opinion of a court on hypothetical Acts of Congress or dubious constitutional principles” by agreeing on the proper construction of the law); Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 946 (9th Cir. 2011) (“[W]e are not required to ... adopt an interpretation precluded by the plain language of the ordinance.” (citation omitted)). While other Courts of Appeals take a contrary approach, see United Food & Commercial Workers Int‘l Union v. IBP, Inc., 857 F.2d 422, 431 (8th Cir. 1988); Hill v. City of Houston, 789 F.2d 1103, 1112 (5th Cir. 1986), our precedent is clear, see Free Speech Coal., Inc., 677 F.3d at 539; Brown, 586 F.3d at 274; Saxe, 240 F.3d at 215–16, 215 n.10.
Here, the Ordinance is readily susceptible to a narrowing construction. The text of the Ordinance says nothing about leafletting or peaceful one-on-one conversations, let alone on a particular topic or for a particular purpose. And, to put a fine point on it, the floating bubble zone, which was enjoined years ago, did prohibit “passing a leaflet,” “educating,” or “counseling.”
The Ordinance prohibits four—and only four—activities within the zone: “congregat[ing],” “patrol[ling],” “picket[ing],” and “demonstrat[ing].”
To “congregate” means “to collect into a group or crowd.” Congregate, Merriam-Webster‘s Collegiate Dictionary 262 (11th ed. 2005) [hereinafter Merriam-Webster‘s]; see also Congregate, The American Heritage Dictionary of the English Language 388 (4th ed. 2006) [hereinafter American Heritage] (defining “congregate” as “bring or come together in a group, crowd, or assembly“). To “patrol” is “to carry out a patrol,” defined in turn as “the action of traversing a district or beat or of going the rounds along a chain of guards for observation or the maintenance of security,” Patrol, Merriam-Webster‘s 909, and “[t]he act of moving about an area especially by an authorized and trained person ... for purposes of observation, inspection, or security,” Patrol, American Heritage 1290. To “picket” is to “serve as a picket,” defined as “a person posted for a demonstration or protest.” Picket, Merriam-Webster‘s 937; see also Picket, American Heritage 1327 (defining “picket” as “to post as a picket” where
Plaintiffs’ sidewalk counseling does not meet any of these definitions. While the Supreme Court has noted that a grouping of three or more people may constitute “congregat[ing],” see Boos v. Barry, 485 U.S. 312, 316–17 (1988), approaching someone individually to engage in a one-on-one conversation no more constitutes “congregat[ing]” than walking alongside another person constitutes “patrol[ling].” And while signs and raised voices may constitute “picket[ing]” or “demonstrat[ing],” speaking to someone at a normal conversational volume and distance surely does not. Simply calling peaceful one-on-one conversations “demonstrating” or “picketing” does not make it so when the plain meaning of those terms does not encompass that speech.16
Moreover, the activities that the Ordinance does prohibit render it content neutral under binding Supreme Court precedent. No doubt due to the easily identifiable nature and visibility of “congregat[ing], patrol[ling], picket[ing] or demonstrat[ing],”
In short, the doctrine of constitutional avoidance counsels that we impose a limiting construction where, as here, a statute
C. Application of Intermediate Scrutiny
Because we conclude the Ordinance does not implicate Plaintiffs’ speech, we could end our analysis here if this were an as-applied challenge. But because Plaintiffs have brought a facial challenge, we briefly consider whether the Ordinance as applied to the remaining expressive activity of congregating, patrolling, picketing, or demonstrating within fifteen feet of the clinic entrance is “narrowly tailored to serve a significant governmental interest.”18 Id. at 477 (quoting Ward, 491 U.S. at 791). We easily conclude that it is.
As Plaintiffs acknowledge, the interests that the City seeks to protect—unimpeded access to pregnancy-related services, ensuring public safety, and eliminating “neglect” of law enforcement needs—are legitimate.19 Bruni I, 824 F.3d at 368 (quoting
To be narrowly tailored, a regulation must not “burden substantially more
In arguing that the restriction on speech here is not narrowly tailored, Plaintiffs do not distinguish between the Ordinance as read to include sidewalk counseling and the Ordinance as read to exclude it. Rather, quoting Bruni I, they contend we “already made clear that ‘the City has the same obligation to use less restrictive alternatives to its buffer zone as . . . Massachusetts had with respect to the buffer zone at issue in McCullen.‘” Appellants’ Br. 25 (quoting Bruni I, 824 F.3d at 369). So, say Plaintiffs, just as in McCullen, the City had to demonstrate on remand that “substantially less-restrictive alternatives,” including arrests, prosecutions, and injunctions, “were tried and failed, or. . . were closely examined and ruled out for good reason.” Bruni I, 824 F.3d at 370. Because the City here concededly failed to make a showing of that magnitude, Plaintiffs contend the Ordinance necessarily fails intermediate scrutiny.
Plaintiffs mistake the import of Bruni I in two respects. First, in reviewing the District Court‘s dismissal of Plaintiffs’ complaint, we did not conclusively determine that the City “ha[d] the same obligation to use less restrictive alternatives” as in McCullen. Bruni I, 824 F.3d at 369. As appropriate at the pleading stage, we “accept[ed] all [of Plaintiffs‘] factual allegations as true,” id. at 360 (citation omitted), and held that “[b]ecause of the significant burden on speech that the Ordinance allegedly imposes, the City ha[d] the same obligation to use,” id. at 369 (emphasis added), or show that it “seriously considered, substantially less restrictive alternatives,” id. at 357, as in McCullen. On that basis, we remanded for a determination of the proper scope of the Ordinance, the actual burden on Plaintiffs’ speech, and a means-ends analysis “by the standard that McCullen now requires.” Id. at 375.
Second, to the extent Plaintiffs’ argument is that McCullen imposes on a municipality “the same obligation” as on Massachusetts—even in the absence of a “significant burden on speech,” id. at 369—they are mistaken. As we recognized in Bruni I, where the burden on speech is de minimis, a regulation may “be viewed as narrowly tailored, even at the pleading stage,” id. at 372 n.20, and McCullen and Bruni I both observed that where there is only “a slight burden on speech, any challengers would struggle to show that ‘alternative measures [would] burden substantially less speech,‘” id. at 372 (alteration in original) (quoting McCullen, 573 U.S. at 495). In short, while McCullen and Bruni I made clear that a “rigorous and fact-intensive” inquiry will be required where a restriction imposes a significant burden on speech, Bruni I, 824 F.3d at 372, they also made clear (and logic dictates) that a less demanding inquiry is called for where the burden on speech is not significant—whether due to a restriction‘s scope, the size of the speech-free zone, or some combination of the two.20
As to scope, although the restrictions in those cases were more targeted in that they were created by way of injunction, not legislation, see Schenck, 519 U.S. at 361; Madsen, 512 U.S. at 757, the Ordinance is narrower in scope because it limits only congregating, patrolling, picketing, and demonstrating within a fifteen-foot buffer zone, and does not sweep in the “one-on-one communication,” including “normal conversation and leafletting,” that McCullen emphasized “have historically been more closely associated with the transmission of ideas,” 573 U.S. at 488. Thus, so long as she is not “congregating” with others in the buffer zone, an individual plaintiff is not barred by the Ordinance from engaging in sidewalk counseling inside its borders. Cf. Schenck, 519 U.S. at 367, 369–70, 383–84 (describing and upholding the district court‘s decision to allow only two sidewalk counselors inside the fifteen-foot buffer zone); Madsen, 512 U.S. at 759 (prohibiting not only “congregating, picketing, patrolling, [and] demonstrating” within the zone but also “entering“).
And as to size, the relatively small buffer zone imposed by the Ordinance, like those in Madsen and Schenck, does not prevent groups like Forty Days for Life from congregating within sight and earshot of the clinic. Nor does it prevent protestors, demonstrators, or picketers from being seen and heard, or any of these persons from speaking outside the zone with willing listeners who are entering or exiting. See Schenck, 519 U.S. at 384–85; Madsen, 512 U.S. at 770. And size, while not necessarily in and of itself dispositive, see Bruni I, 824 F.3d at 368, is still a “substantial distinction” that must factor into a court‘s analysis of the relative burden on speech, Turco, 935 F.3d at 163.
Also as in Madsen and Schenck, the record shows that the City resorted to a fixed buffer zone not in the first instance but after attempting or considering some less burdensome alternatives and concluding they were unsuccessful in meeting the legitimate interests at issue. See Schenck, 519 U.S. at 380–82; Madsen, 512 U.S. at 769–70. These included an overtime police detail in front of Planned Parenthood until the cost became prohibitive once the City was declared a financially distressed municipality;21 incident-based responses by the police
True, as Plaintiffs point out, this record does not reflect that the City tried or seriously considered arrests, prosecutions, or targeted injunctions, which Plaintiffs would have us treat as dispositive. But where the burden imposed by a restriction on speech is not significant, the government need demonstrate neither that “it has tried or considered every less burdensome alternative,” Bruni I, 824 F.3d at 370, nor that it tried or considered every less burdensome alternative discussed in McCullen. Instead, as we reiterated in Turco, this is an “intensely factual . . . inquiry,” 935 F.3d at 170, that must account for “the ‘broad principle of deference to legislative judgments’ and that a legislative body ‘need not meticulously vet every less burdensome alternative,‘” id. at 171 (quoting Bruni I, 824 F.3d at 370 n.18). And, as we recognized there in remanding for further fact-finding, a municipality can demonstrate that it “attempted ... [or] considered alternative means of bringing order to the sidewalk” even if it “ha[s] not ‘prosecute[d] any protestors for activities taking place on the sidewalk’ and ‘did not seek injunctive relief against individuals whose conduct was the impetus for the Ordinance.‘” Id. at 167 (second alteration in original) (quoting Turco v. City of Englewood, No. 2:15-cv-03008, 2017 WL 5479509, at *5 (D.N.J. Nov. 14, 2017)). The ultimate question remains whether a restriction on speech “burden[s] substantially more speech than is necessary to further the government‘s legitimate interests.” McCullen, 573 U.S. at 486 (emphasis added) (quoting Ward, 491 U.S. at 799).
Consistent with Madsen and Schenck, the Ordinance, as we have construed it, does not do so.22 The Ordinance therefore is “narrowly tailored to serve a significant governmental interest,” McCullen, 573 U.S. at 477 (quoting Ward, 491 U.S. at 791), and it satisfies intermediate scrutiny.
D. Overbreadth
Finally, Plaintiffs argue that the Ordinance is unconstitutionally overbroad because it authorizes the City to create buffer zones at any health facility in the City, regardless of whether the City has identified a problem at the location in the past. A law may be overbroad under the First Amendment where “a substantial number of its applications are unconstitutional, judged in relation to the [law‘s] plainly legitimate sweep.” Bruni I, 824 F.3d at 374 (quoting Stevens, 559 U.S. at 473). The overbreadth doctrine is “strong medicine,” Kreimer v. Bureau of Police, 958 F.2d 1242, 1265 (3d Cir. 1992) (citation omitted), should therefore be “used sparingly,” id., and will “not be[] invoked when a limiting construction has been or could be placed on the challenged” law, Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973).
Plaintiffs’ overbreadth challenge is not well-founded. As a general matter, “[t]he fact that the coverage of a statute is broader than the specific concern that led to its enactment is of no constitutional significance,” Hill, 530 U.S. at 730–31, and its applicability more generally is one of the reasons that we consider it to be a content-neutral restriction on speech, see id. at 731. For that reason, “[w]hen a buffer zone broadly applies to health care facilities” to include “buffer zones at non- abortion related locations,” we may then “conclude ‘the comprehensiveness of the statute is a virtue, not a vice, because it is evidence against there being a discriminatory governmental motive.‘” Turco, 935 F.3d at 171 (quoting Hill, 530 U.S. at 730–31).
Nor is the Ordinance overbroad because it affords the City discretion to select particular health facilities at which it will demarcate a buffer zone. Since the demarcation requirement was put in place approximately ten years ago, the City has exercised that discretion as to only two facilities, both of which suffered from violence and obstruction in the past. Yet we may not, as Plaintiffs suggest, simply assume that “the statute‘s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.” Broadrick, 413 U.S. at 612. Instead, we revert again to the “principle... well-established in First Amendment jurisprudence“—“our duty to ‘accord a measure of deference to the judgment’ of [the] city council,” Turco, 935 F.3d at 171 (quoting Hill, 530 U.S. at 727), considering “[the] statute‘s application to real-world conduct, not fanciful hypotheticals,” id. at 172 (quoting Stevens, 559 U.S. at 485). Applying that principle here, we conclude the Ordinance is not substantially overbroad.
In sum, Plaintiffs have not carried their “burden of demonstrating, ‘from the text of [the law] and from actual fact,’ that substantial overbreadth exists.” Virginia v. Hicks, 539 U.S. 113, 122 (2003) (alteration in original) (citation omitted). We therefore affirm the District Court‘s grant of summary judgment to the City on this claim.
IV. Conclusion
For the foregoing reasons, we will affirm the District Court‘s order granting summary judgment.
Nikki Bruni et al. v. City of Pittsburgh et al. (Bruni II), No. 18-1084
HARDIMAN, Circuit Judge, concurring.
I join the Court‘s opinion because it rightly construes the Pittsburgh Ordinance to allow conversation on a public sidewalk. I write separately to highlight the impact of Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015). In my view, Reed weakened precedents cited in the Court‘s content neutrality analysis and will constrain Pittsburgh‘s enforcement of the Ordinance going forward.
I
It is true that the Supreme Court has held that restricting “congregating, picketing, patrolling, [and] demonstrating” around abortion clinics is facially content neutral. Madsen v. Women‘s Health Ctr., Inc., 512 U.S. 753, 753, 759, 757–65 (1994); see Op. 26–27. The Court has even extended this content neutrality to “wildly expansive definitions” of “demonstrate” and “picket.” Hill v. Colorado, 530 U.S. 703, 703, 744 (2000) (Scalia, J., dissenting); see id. at 721–22 (majority opinion) (“defining ‘demonstrate’ as ‘to make a public display of sentiment for or against a person or cause’ and ‘picket’ as an effort ‘to persuade or otherwise influence‘” (quoting Webster‘s Third New International Dictionary 600, 1710 (1993))); see also Schenck v. Pro-Choice Network of W. N.Y., 519 U.S. 357, 374 n.6, 381–82 (1997) (upholding injunction against “demonstrating,” even though it would target some “stationary, nonobstructive demonstrations“).
The continued vitality of this content neutrality analysis is questionable after Reed. Before Reed, the Court vacillated between two tests for content neutrality. See generally Genevieve Lakier, Reed v Town of Gilbert, Arizona, and the Rise of the Anticlassificatory First Amendment, 2016 Sup. Ct. Rev. 233; Elena Kagan, Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine, 63 U. Chi. L. Rev. 413 (1996). In cases like Hill, Schenck, and Madsen, the “government‘s purpose [w]as the threshold consideration.” Madsen, 512 U.S. at 763; see Hill, 530 U.S. at 719; Schenck, 519 U.S. at 371–74 & n.6 (relying solely on Madsen to hold injunction content neutral). But in other cases, the Court‘s first consideration was whether a law “draw[s] content-based distinctions on its face.” McCullen v. Coakley, 573 U.S. 464, 479 (2014). Any law that did so was necessarily content based, no matter the government‘s purpose. See, e.g., Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 116–17, 122 n.* (1991).
Reed adopted the latter test for content neutrality. It held that “[a] law that is content based on its face is subject to strict scrutiny regardless of the government‘s benign motive, content-neutral justification, or lack of ‘animus toward the ideas contained’ in the regulated speech.” 135 S. Ct. at 2228 (quoting Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 429 (1993)); see id. at 2237–39 (Kagan, J., concurring in the judgment). By doing so, Reed “overturn[ed] the standard that [the Court] had previously used to resolve a particular class of cases“—a class that includes cases like this one and Hill. Brian A. Garner et al., The Law of Judicial Precedent 31 (2016) (citing Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 66–67 (1996), and Planned Parenthood of Se. Pa. v. Casey, 947 F.2d 682, 691–93 (3d Cir. 1991), aff‘d in part, rev‘d in part, 505 U.S. 833 (1992)). In fact, Reed rebuked Hill several times: by noting that the errant Court of Appeals relied on it, 135 S. Ct. at 2226; and by favorably citing dissents in Hill authored by Justices Scalia and Kennedy, id. at 2229.
Reed also seems to have expanded the types of laws that are facially content based. Facial distinctions, the Court explained, may not only be “obvious, defining regulated speech by particular subject matter.” Id. at 2227. They may also be “subtle, defining regulated speech by its function or purpose.” Id. Two cases discussed in Reed exemplify this subtle content discrimination.
The first, Sorrell v. IMS Health Inc., 564 U.S. 552 (2011), involved a law that restricted the sale, disclosure, and use of information about drug prescriptions. See 564 U.S. 552, 563–64 (2011); Reed, 135 S. Ct. at 2227. The Court held content based a provision that allowed the sale of that information for “educational communications,” but not for “marketing.” Sorrell, 564 U.S. at 564 (quoting
The second case that underscores the protection afforded to speech‘s function or purpose is NAACP v. Button, 371 U.S. 415 (1963). See Reed, 135 S. Ct. at 2229. In that case, Virginia “attempt[ed] to use a statute prohibiting ‘improper solicitation’ by attorneys to outlaw litigation-related speech of the National Association for the Advancement of Colored People.” Id. (quoting Button, 371 U.S. at 438). The Button Court rejected that attempt, holding that “advocacy” and “the opportunity to persuade to action” are First Amendment rights. 371 U.S. at 437–38 (quoting Thomas v. Collins, 323 U.S. 516, 537 (1945)). Describing the Virginia law over 50 years later, the Reed Court called it “facially content-based.” 135 S. Ct. at 2229.
So Reed demands that we construe the Ordinance narrowly. And it steers us away from precedents that focused on a law‘s purpose rather than its facial effect. For laws once held content neutral because of purpose may well be facially content based after Reed. Compare, e.g., Hill, 530 U.S. at 720–21 (holding content neutral a ban on “picketing,” “demonstrating,” “protest, education, or counseling” even though it may require the government “to review the content of the statements made“), with McCullen, 573 U.S. at 479 (“The [buffer zone law] would be content based if it required ‘enforcement authorities’ to ‘examine the content of the message that is conveyed . . . .‘” (quoting FCC v. League of Women Voters of Ca., 468 U.S. 364, 383 (1984))), and Reed, 135 S. Ct. at 2227–29 (highlighting facially content based laws that target solicitation and educational communications). Even some purposes previously held content neutral may now be content based. Compare, e.g., Hill, 530 U.S. at 716 (citing “[t]he unwilling listener‘s interest in avoiding unwanted communication“), and Turco v. City of Englewood, 935 F.3d 155, 162, 166–67 (3d Cir. 2019) (citing that interest to support narrow tailoring of concededly content neutral law), with McCullen, 573 U.S. at 481 (“To be clear, the Act would not be content neutral if it were concerned with undesirable effects that arise from ‘the direct impact of speech on its audience’ or ‘[l]isteners’ reactions to speech.‘” (quoting Boos v. Barry, 485 U.S. 312, 321 (1988))), and Reed, 135 S. Ct. at 2227 (protecting speech‘s “function or purpose“).
II
Today our Court does what Reed requires. We hold that “[b]ecause the Ordinance, as properly interpreted, does not extend to sidewalk counseling—or any other calm and peaceful one-on-one conversations,” the City cannot examine the content of a conversation to decide whether a violation has occurred. Op. 27–28. It will instead examine, for example, decibel level, the distance between persons, the number of persons, the flow of traffic, and other things usually unrelated to the content or intent of speech. See, e.g., Reed, 135 S. Ct. at 2228 (confirming that banning sound amplification is content neutral); id. at 2232 (stating that “entirely forbidding the
The Court‘s decision constrains the City‘s enforcement discretion. Pittsburgh cannot target quiet conversations even if they are not in a tone of “kindness, love, hope, gentleness, and help.” Op. 11 n.6 (quoting JA 574a); see, e.g., id. at 25–26. It must allow not only conversations that help and love, but also those that serve any other “function or purpose” within the bounds of protected speech. Reed, 135 S. Ct. at 2227; see, e.g., id. at 2228–29 (discussing Sorrell, 564 U.S. at 563–64 (“educati[ng]” and “marketing“), and Button, 371 U.S. at 438–40 (“solicit[ing],” “advoca[ting],” and “urg[ing]“)).
And the City‘s enforcement of the Ordinance must be evenhanded. Consider clinic employees and agents who, under the injunction issued in Brown v. City of Pittsburgh, can “congregate” or “patrol” when helping persons enter or exit a clinic. See 586 F.3d 263, 273–75 (3d Cir. 2009); Brown v. City of Pittsburgh, 2010 WL 2207935, at *2 n.2 (W.D. Pa. May 27, 2010); JA 1324a (permanent injunction order). Before today, the City‘s broad and amorphous interpretation of the Ordinance risked allowing those employees to engage in speech that others could not. That sort of disparate treatment would now be content or viewpoint based. See Reed, 135 S. Ct. at 2230 (citing Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819 (1995), and Citizens United v. FEC, 558 U.S. 310 (2010)). Our decision today clarifies that the words “congregate” and “patrol” address conduct—the assembly of people in one place or the action of pacing back and forth. See Op. 25. So interpreted, the Brown injunction‘s narrow exception does not discriminate between types of speech.
With these understandings, I join the Court‘s opinion.