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Media Alerts - Nikki Bruni v. City of Pittsburgh - Third Circuit
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June 6, 2016
  Nikki Bruni v. City of Pittsburgh - Third Circuit
Headline: District Court erred in dismissing pro-life sidewalk counselors' First Amendment challenge to Pittsburgh's 15-Foot buffer zone ordinance

Area of Law: First Amendment

Issue(s) Presented: Did the District Court err in dismissing plaintiffs' First Amendment facial challenge to the City of Pittsburgh buffer zone ordinance that prohibits protesting and demonstrating within 15 feet of health care facilities?

Brief Summary: Plaintiffs challenged an ordinance of the City of Pittsburgh that prohibits certain speech within 15 feet of health care facilities, particularly certain abortion clinics. The plaintiffs engage in "sidewalk counseling," a form of pro-life advocacy whereby the plaintiffs try, through close conversation, to persuade women to forgo abortion services. Plaintiffs claim the ordinance is facially unconstitutional under the Free Speech and Due Process Clauses, in that the "buffer zone" limits their ability to approach people near the clinics and that the City has unbridled discretion in establishing the buffer zones.

The Third Circuit vacated the dismissal of the free speech claims. Applying an intermediate scrutiny standard, the Third Circuit reasoned that the sidewalk counseling here is core political speech entitled to maximum protection. The City cannot burden it without first trying, or at least demonstrating that it has seriously considered, less restrictive measures. Thus, the Third Circuit reversed the District Court's dismissal so that the claims could be considered after appropriate development of a factual record. However, the Third Circuit affirmed the dismissal of the Due Process claim, noting that the First Amendment covers all of the plaintiffs' conventions.

Extended Summary: Plaintiffs, Nikki Bruni and several others, engage in "sidewalk counseling," a form of pro-life advocacy, outside of a Pittsburgh Planned Parenthood. Plaintiffs challenged a Pittsburgh ordinance that establishes a 15-foot buffer zone, which prohibits congregating, picketing, or demonstrating within 15 feet from any entrance to a hospital and/or health care facility. Although the ordinance applies to all hospital and health care facilities entrances, the City has only demarcated two actual zones, both around abortion clinics. Plaintiffs engage in their sidewalk counseling around one clinic in particular, which has a yellow marking of the 15-foot zone. The City interpreted the plaintiffs' form of expression as "demonstrating" and thus banned under the ordinance.

Plaintiffs claim that the zone is facially unconstitutional under the Free Speech Clause of the First Amendment, in that it makes it difficult for them to engage in their sidewalk counseling, which, unlike protesting, requires close, personal, interactions. They are unable to distinguish patients from passersby at the required 15-foot distance from the entrance. Plaintiffs also challenged the ordinance under the Due Process Clause of the Fourteenth Amendment due to the the ordinance's allegedly vesting unbridled discretion in City officials.

To analyze the free speech claim, the Court first considered whether the ordinance restricts speech based upon its content. If it does, the applicable standard is strict scrutiny - that is, the ordinance is presumptively unconstitutional and justified only if the government proves it is narrowly tailored to serve a compelling state interest. On the other hand, if the ordinance is content-neutral, it is evaluated with intermediate scrutiny - that is, whether the ordinance is narrowly tailored to serve a significant government interest.

Plaintiffs pointed to recent Supreme Court precedent holding that statutes regulate content by defining regulated speech by its function or purpose. Thus, by defining prohibited expression as that which involves "demonstrating" or "picketing," the Pittsburgh ordinance limits speech by its content and thus strict scrutiny should be applied. However, the Third Circuit held that the plaintiffs' complaint included a viable free speech challenge to the ordinance under the lower, intermediate scrutiny standard. Moreover, the Third Circuit had previously found a similar buffer zone ordinance to survive the heightened level of strict scrutiny and thus avoided overruling that precedent by evaluating the present ordinance under the lower standard instead.

Thus, the Third Circuit evaluated the present buffer zone under intermediate scrutiny. The Court surveyed the Supreme Court cases ruling on similar buffer zone and "floating bubble zone" ordinances. A 36-foot buffer zone was upheld after it was amended from a prior rule that enjoined specific protesters from blocking or interfering with public access to the clinic proved insufficient to serve the government's stated interests. A general floating bubble zone was struck down because it would be difficult for protesters to know how to remain in compliance with the rule and thus created a substantial risk that much more speech will be burdened than the injunction by its terms prohibit. However, an eight-foot floating bubble zone was upheld as it satisfied intermediate scrutiny's narrow tailoring requirement. Such a distance still allowed speech at a "normal conversational distance."

However, in McCullen, the Supreme Court struck down a Massachusetts 35-foot buffer zone as insufficiently narrowly tailored under intermediate scrutiny. Similar to the current plaintiffs, the petitioners in McCullen engaged in "sidewalk counseling" requiring personal, caring conversations as opposed to chanting slogans and displaying signs as a form of protest. The Supreme Court reasoned that, even if the counselors could be seen from the buffer zone's distance, if all the women could hear are the "vociferous opponents" of abortions, then the zones effectively stifled the counselors' message. Moreover, the speech was occurring on public streets and sidewalks - a quintessential public forum.

The McCullen Court then balanced what it found to be a significant burden on speech with the means chosen to effectuate the government's purpose, i.e., the buffer zone. The Supreme Court pointed to less speech-restrictive alternatives, such as existing local ordinances banning obstruction of public ways. Also, the Commonwealth could not demonstrate that it had attempted or seriously considered alternative measures. Thus, the Supreme Court struck down the buffer zone.

Applied here, the Third Circuit noted that like McCullen and the other Supreme Court buffer zone cases, the City's interest in protecting women's freedom to seek pregnancy-related services and ensuring public safety are significant. Still, the ordinance must be narrowly tailored to that interest. Although the 15-foot zone is indeed less than the 35-foot one in McCullen, the Third Circuit noted that none of the Supreme Court cases turned solely on size of the zones. The size not being dispositive, the Court looked to the allegations of the Complaint broadly. They allege that the zones make it difficult for the plaintiffs to engage in sidewalk counseling, prayer, and other activities and that their conversations with women are thus less frequent and less successful. In this way, the burden on the plaintiffs' speech is akin to that imposed on the petitioners in McCullen.

Having established that the zone creates a significant burden on speech, the Third Circuit next held that there are a variety of alternate approaches the City could have employed to serve its interest. Moreover, the City did not demonstrate that it seriously undertook to address the problem with less intrusive tools available to it, nor did it show that it considered different methods.

Plaintiffs also maintained that the ordinance violated the due process clause because it gives the City unbridled discretion to create buffer zones. The Third Circuit held that the District Court properly dismissed this claim, because where a particular Amendment provides an explicit source of protection against a particular government behavior, that Amendment and not the generalized notion of "substantive due process" must be the guide for analyzing the claims. Here, the First Amendment was the more explicit source for the plaintiffs' claims against the buffer zones.

The full opinion can be found at

Panel: Fuentes, Jordan, and Vanaskie, Circuit Judges

Argument Date: November 6, 2015

Date of Issued Opinion: June 1, 2016

Docket Number: No. 15-1755

Decided: Vacated in part, affirmed in part

Case Alert Author: Elizabeth C. Dolce

Counsel: Matthew S. Bowman, David A. Cortman, Elissa M. Graves, and Lawrence G. Paladin, Jr., Counsel for Appellants; Michael E. Kennedy, Matthew S. McHale, and Lourdes Sanchez Ridge, Counsel for Appellees; Erek L. Barron, Counsel for Amicus Curiae.

Author of Opinion: Circuit Judge Jordan

Circuit: Third Circuit

Case Alert Circuit Supervisor: Prof. Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 06/06/2016 12:47 PM     3rd Circuit  

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