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Third Circuit Reverses Dismissal of First Amendment Challenge to Buffer Zone Ordinance

Earlier this month, in Bruni v. Pittsburgh, the Third Circuit overturned a decision upholding a Pittsburgh ordinance that created “buffer zones” around certain medical clinics in the city. The Court ruled that the case could go forward on First Amendment grounds.

In 2005, Pittsburgh enacted an ordinance (the Ordinance) that, among other things, established fifteen-foot “buffer zones,” around which there could be no picketing or demonstrating. These “buffer zones” were to be located around clinics that provided abortion-related services. The Ordinance was challenged in federal court shortly after its passage, but was upheld, with some minor alterations, by the District Court for the Western District of Pennsylvania.

The Plaintiffs regularly engaged in prayer, leafleting, sidewalk counseling, and pro-life advocacy around a Pittsburgh Planned Parenthood location. The city interpreted the Ordinance to ban sidewalk counseling as a form of demonstration. The city therefore did not allow Plaintiffs to communicate their pro-life message inside the “buffer zone” surrounding the Planned Parenthood location.

Plaintiffs challenged the altered version of the Ordinance in federal court under the First and Fourteenth Amendments, alleging violations of free speech, free press, and due process. The Plaintiffs especially relied upon the Supreme Court’s 2014 decision in McCullen v. Coakley, which struck down a Massachusetts “buffer zone” law as unconstitutional. Relying on McCullen, the Plaintiffs moved for a preliminary injunction to halt enforcement of the Ordinance. The city responded by filing a motion to dismiss the case. The District Court denied Plaintiff’s motion, and granted the city’s motion to dismiss. The Plaintiffs appealed to the Third Circuit.

On appeal, the Court found that the District Court was incorrect to dismiss Plaintiffs’ First Amendment free speech claims. In its analysis, the Third Circuit first assumed, without deciding, that the Ordinance was content-neutral. This meant that the Ordinance would be subject to the government-friendly intermediate scrutiny. Under intermediate scrutiny, a law must be narrowly tailed to serve a significant government interest.

When determining whether the Ordinance satisfied intermediate scrutiny, the Third Circuit applied McCullen’s reasoning. As in McCullen, the Court recognized the Plaintiffs’

need to engage in “personal, caring, consensual conversations” rather than “chanting slogans and displaying signs” as a form of protest against abortion. It was thus insufficient that the counselors could be seen and heard at a distance by the women in the buffer zone, because “[i]f all that the women can see and hear are vociferous opponents of abortion, then the buffer zones have effectively stifled petitioners’ message.”

In other words, the Court reasoned that it was not simply the Plaintiffs’ message, but their methodology that was important to their communication. The Court thus found that the Ordinance placed a significant burden on Plaintiffs’ speech.

When analyzing the government interest in the Ordinance, the Court found that while the city’s interest was significant, the city had not shown that alternate, less restrictive measures would have failed to achieve the same interest. The Court stated that the city must in some meaningful way, “demonstrate that alternative measures that burden substantially less speech would fail to achieve the government’s interests.” Since the city had not done this, the Court reversed the dismissal of the case, and remanded it to the District Court for further consideration of the First Amendment claims. You can read the opinion here.

The attorneys at Dalton & Tomich, PLC assist clients in fighting against unconstitutional ordinances around the country. We particularly focus on ordinances that violate the First Amendment. If you feel you are subject to an ordinance that violates your rights, or those of your organization, please feel free to contact us. We would be happy to speak with you.


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