Amicus Curiae Brief — Veronica Price, et al., Petitioners v. City of Chicago, Illinois, et al.

NO. 18-1516

IN THE

Supreme Court of the United States

VERONICA PRICE, et al.,

Petitioners,

v.

CITY OF CHICAGO, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Seventh

Circuit

BRIEF OF AMICUS CURIAE ALLIANCE

DEFENDING FREEDOM

IN SUPPORT OF PETITIONERS

CHRISTOPHER P.

SCHANDEVEL

ALLIANCE DEFENDING

FREEDOM

20116 Ashbrook Place

Suite 250

Ashburn, VA 20147

(571) 707-4655

JOHN J. BURSCH

Counsel of Record

ALLIANCE DEFENDING

FREEDOM

440 First Street NW

Suite 600

Washington, DC 20001

(616) 450-4235

jbursch@ADFlegal.org

Counsel for Amicus Curiae

i

QUESTION PRESENTED

Whether this Court should reconsider its decision

in Hill v. Colorado, 530 U.S. 703 (2000), because that

decision conflicts directly with Reed v. Town of

Gilbert, 135 S. Ct. 2218 (2015), and McCullen v.

Coakley, 573 U.S. 464 (2014).

ii

TABLE OF CONTENTS

QUESTION PRESENTED ......................................... i

TABLE OF AUTHORITIES ..................................... iii

INTEREST OF AMICUS CURIAE ........................... 1

SUMMARY OF THE ARGUMENT ........................... 2

ARGUMENT .............................................................. 3

I. Hill drastically expanded the scope of the

captive-audience doctrine. .................................... 3

II. Lower courts have followed Hill’s lead,

shielding listeners from unwelcome speech

even in public places. ............................................ 5

III.This Court’s attempts to limit Hill without

explicitly overruling it have not worked. ........... 14

CONCLUSION ......................................................... 17

iii

TABLE OF AUTHORITIES

Cases

Berger v. City of Seattle,

512 F.3d 582 (9th Cir. 2008) ........................... 7, 8

Berger v. City of Seattle,

569 F.3d 1029 (9th Cir. 2009) ............................. 8

Berger v. City of Seattle,

No. C03-3238JLR, 2005 WL 8161729

(W.D. Wash. Apr. 22, 2005) ..............................6-7

Brown v. City of Pittsburg,

No. 06-393, 2010 WL 2207935

(W.D. Pa. 2010) .................................................. 10

Brown v. City of Pittsburgh,

586 F.3d 263 (3d Cir. 2009) ........................... 9, 10

Bruni v. City of Pittsburgh,

283 F. Supp. 3d 357 (W.D. Pa. 2017) ................ 10

Central Park Sightseeing LLC v. New Yorkers

for Clean, Livable & Safe Streets, Inc.,

157 A.D.3d 28 (N.Y. App. Div. 2017) .. 5, 6, 14, 15

Cohen v. California,

403 U.S. 15 (1971) ............................................... 2

Eberhart v. United States,

546 U.S. 12 (2005) ............................................. 16

Erznoznik v. City of Jacksonville,

422 U.S. 205 (1975) ............................................. 2

Hill v. Colorado,

530 U.S. 703 (2000) ................................... passim

iv

Madison Vigil for Life, Inc. v. City of Madison,

1 F. Supp. 3d 892 (W.D. Wis. 2014) ............ 10, 11

Masterpiece Cakeshop, Ltd. v. Colorado Civil

Rights Commission, 138 S. Ct. 1719 (2018) ....... 1

McCullen v. Coakley,

573 U.S. 464 (2014) ........................ i, 1, 14, 15, 16

McGuire v. Reilly,

260 F.3d 36 (1st Cir. 2001) .................................. 9

National Institute of Family & Life Advocates

v. Becerra, 138 S. Ct. 2361 (2018) ....................... 1

Olmstead v. United States,

277 U.S. 438 (1928) ............................................. 3

Phelps-Roper v. City of Manchester,

697 F.3d 678 (8th Cir. 2012) ............ 12, 13, 15-16

Phelps-Roper v. Koster,

713 F.3d 942 (8th Cir. 2013) ....................... 13, 16

Phelps-Roper v. Ricketts,

867 F.3d 883 (8th Cir. 2017) ....................... 13, 16

Phelps-Roper v. Strickland,

539 F.3d 356 (6th Cir. 2008) ....................... 11, 12

Price v. City of Chicago,

915 F.3d 1107 (7th Cir. 2019) ........................... 16

Reed v. Town of Gilbert,

135 S. Ct. 2218 (2015) ...................................... i, 1

Snyder v. Phelps,

562 U.S. 443 (2011) ..................................... 11, 15

Constitutional Provisions

U.S. Const. amend. I .................................................. 2

v

Other Authorities

L. Tribe, American Constitutional Law § 12–

19 (2d ed. 1988).................................................... 4

Press Release, Alliance Defending Freedom,

City of Madison officially rescinds

censorship zones (Aug. 7, 2014),

http://www.adfmedia.org/News/PRDetail/8

906 ...................................................................... 15

1

INTEREST OF AMICUS CURIAE 1

Alliance Defending Freedom is a non-profit, public

interest legal organization that provides strategic

planning, training, funding, and litigation services to

protect our First Amendment freedoms—including

free speech. Since 1994, Alliance Defending Freedom

has played a role, either directly or indirectly, in

many cases before this Court, including Masterpiece

Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 138

S. Ct. 1719 (2018) (representing Christian cake artist

Jack Phillips), Nat’l Inst. of Family & Life Advocates

v. Becerra, 138 S. Ct. 2361 (2018) (representing prolife pregnancy centers), Reed v. Town of Gilbert, 135

S. Ct. 2218 (2015) (representing church and its pastor,

Clyde Reed), McCullen v. Coakley, 573 U.S. 464

(2014) (representing pro-life sidewalk counselor

Eleanor McCullen), and hundreds more cases in lower

courts.

Alliance Defending Freedom submits this brief to

highlight the damage that Hill v. Colorado, 530 U.S.

703 (2000), has done to free speech rights in the years

since the Court decided it.

1 Amicus states that no counsel for a party authored this brief in

whole or in part, and no person other than the amicus and its

counsel made any monetary contribution intended to fund the

preparation or submission of this brief. All counsel were timely

notified of this filing as required by Supreme Court Rule 37.2,

and counsel for all parties consented to the filing of this brief.

2

SUMMARY OF THE ARGUMENT

In all but the most “narrow circumstances,” the

“Constitution does not permit government to decide

which types of otherwise protected speech are

sufficiently offensive to require protection for the

unwilling listener or viewer.” Erznoznik v. City of

Jacksonville, 422 U.S. 205, 210 (1975). Such narrow

circumstances include situations where “government

may properly act . . . to prohibit intrusion into the

privacy of the home of unwelcome views and ideas

which cannot be totally banned from the public

dialogue.” Cohen v. California, 403 U.S. 15, 21 (1971)

(emphasis added).

Hill did not implicate privacy in the home. It

involved Colorado’s alleged interest in “protect[ing]

listeners from unwanted communication,” even on

public sidewalks. 530 U.S. at 715–16. Unsurprisingly,

lower courts have since used Hill to uphold statesanctioned limits on speech in many traditional

public fora. Unless and until the Court overrules Hill,

“the First Amendment is a dead letter” in these

jurisdictions. Id. at 748–49 (Scalia, J., dissenting).

Hill remains “an unprecedented departure from

this Court’s teachings respecting unpopular speech in

public fora.” 530 U.S. at 772 (Kennedy, J., dissenting).

And the Court’s more recent attempts to correct

course have not worked. This Court should grant the

petition, vacate the decision of the court of appeals,

and decisively reaffirm that government “shall make

no law . . . abridging the freedom of speech,” even

speech that the intended audience may not wish to

hear. U.S. CONST. amend. I.

3

ARGUMENT

I.

Hill drastically expanded the scope of the

captive-audience doctrine.

Hill framed the issue before the Court as requiring

it to find “an acceptable balance between the

constitutionally protected rights of law-abiding

speakers and the interests of unwilling listeners.” 530

U.S. at 714. On one side, pro-life sidewalk counselors

argued that a statute regulating “speech-related

conduct within 100 feet of the entrance to any health

care facility” had chilled their efforts to counsel

women considering abortion. Id. at 707, 708–09. On

the other, the Court placed the State’s broad “police

powers to protect the health and safety of their

citizens,” including the more specific power to “protect

listeners from unwanted communication.” Id. at 715,

716 (internal quotation marks omitted). Such

protection, the Court believed, would allow states to

preserve the “unwilling listener’s . . . broader ‘right to

be let alone.’” Id. at 716–17 (quoting Olmstead v.

United States, 277 U.S. 438, 478 (1928) (Brandeis, J.,

dissenting)).

Those “privacy interest[s],” the Court conceded,

have “special force in the privacy of the home” and its

“immediate surroundings.” 530 U.S. at 717. But the

Court refused to cabin the State’s interest in

protecting “unwilling listeners” to such settings. Ibid.

Instead, the Court held that the State can protect

a listener’s “right to avoid unwelcome speech” in

“confrontational settings,” even in “‘quintessential’

public forums for free speech” like “public sidewalks,

4

streets, and ways.” 530 U.S. at 715, 717. Armed with

that expansive state interest, the Court had no

trouble upholding a law that “empower[ed] private

citizens entering a health care facility with the ability

to prevent a speaker, who is within eight feet and

advancing, from communicating a message they do

not wish to hear.” Id. at 734.

Justice Scalia dissented: “[I]f protecting people

from unwelcome communications (the governmental

interest the Court posits) is a compelling state

interest, the First Amendment is a dead letter.” Id. at

748–49 (Scalia, J., dissenting). He was right. This

Court had “upheld limitations on a speaker’s exercise

of his right to speak on the public streets when that

speech intrudes into the privacy of the home.” Id. at

752 (Scalia, J., dissenting). And the Court had also

“recognized the interests of unwilling listeners” in

“public conveyances” like city buses, where “the

degree of captivity makes it impractical for the

unwilling viewer or auditor to avoid exposure.” Id. at

753 n.3 (Scalia, J., dissenting) (internal quotation

marks omitted).

But the Court had “never made the absurd

suggestion that a pedestrian is a ‘captive’ of the

speaker who seeks to address him on the public

sidewalks, where he may simply walk quickly by.”

Ibid. (Scalia, J., dissenting). “‘Outside the home, the

burden is generally on the observer or listener to

avert his eyes or plug his ears against the . . .

‘offensive’ intrusions which increasingly attend urban

life.’” Id. at 752–53 (Scalia, J., dissenting) (emphasis

added) (quoting L. Tribe, American Constitutional

Law § 12–19, p. 948 (2d ed. 1988)). By expanding the

5

scope of the captive-audience doctrine, the Court had

“elevate[d] the abortion clinic to the status of the

home.” Id. at 753 (Scalia, J., dissenting).

Expressing equal displeasure, Justice Kennedy

wrote separately to highlight the “glaring departure

from precedent” in the Court’s holding that “citizens

have a right to avoid unpopular speech in a public

forum.” 530 U.S. at 771 (Kennedy, J., dissenting)

(emphasis added). None of the cases the Court cited

had “establishe[d] a right to be free from unwelcome

expression aired by a fellow citizen in a traditional

public forum.” Ibid. (Kennedy, J., dissenting).

“Instead, the Court [had] admonished that citizens

usually bear the burden of disregarding unwelcome

messages.” Id. at 772 (Kennedy, J., dissenting). By

deviating from that principle, Hill represented “an

unprecedented departure from this Court’s teachings

respecting unpopular speech in public fora.” Ibid.

(Kennedy, J., dissenting).

II.

Lower courts have followed Hill’s lead,

shielding listeners from unwelcome speech

even in public places.

1. After Hill equated public sidewalks with the

home, lower courts ran with the captive-audience

doctrine, extending it to a forum as quintessentially

public as Central Park. In Central Park Sightseeing

LLC v. New Yorkers for Clean, Livable & Safe Streets,

Inc., animal rights protesters appealed an injunction

to one of New York’s intermediate appellate courts in

a case involving a dispute between the protesters and

a horse-drawn carriage ride operator. 157 A.D.3d 28,

30 (N.Y. App. Div. 2017).

6

Citing Hill, the appellate court upheld a modified

version of the injunction—preventing the protesters

from, among other things, “knowingly approaching

within nine feet of another person in the

loading/unloading zone, without that person’s

consent, for the purpose of handing a leaflet or bill or

displaying a sign or engaging in oral protest or

education of such other person.” Id. at 34.

The court upheld the injunction even while

recognizing that “[p]ublic sidewalks, streets, and

ways are the ‘quintessential’ public fora for free

speech, and leafletting, signs, and displays are timehonored methods of communication enjoying First

Amendment protection.” Ibid. (citing Hill, 530 U.S. at

715). On what basis? Hill: “Nonetheless, the Supreme

Court has consistently recognized ‘the interests of

unwilling listeners in situations where the degree of

captivity makes it impractical for the unwilling

viewer or auditor to avoid exposure.’” Ibid. (quoting

Hill, 530 U.S. at 718). According to the court, the

modified injunction struck “the appropriate balance

between the First Amendment rights of the protestors

and the rights of customers and other pedestrians to

avoid unwelcome approaches” and “unwanted

intrusions,” id. at 30, 34, even in Central Park.

Moving from the East Coast to the West, in Berger

v. City of Seattle, a street performer sued the City of

Seattle, challenging city rules prohibiting certain

types of speech activities on an “84-acre parcel of

land” called “Seattle Center,” which is “home to

museums, theaters, sports arenas, and other

entertainment and cultural destinations, including

the Space Needle.” No. C03-3238JLR, 2005 WL

7

8161729, at *1 (W.D. Wash. Apr. 22, 2005). One such

rule disallowed all “speech activities” within 30 feet of

any “captive audience,” and was designed to address

“visitors’ complaints about unwanted harangues and

solicitations while waiting in line for Seattle Center

events.” Id. at *3–4.2

The district court held that the rule violated the

First Amendment, but not for the obvious reason that

its purpose was to limit speech in a traditional public

forum merely because the intended audience did not

wish to hear it. Id. at *6. Instead, the court declined

to reach that issue and merely held that because the

rule contained exceptions, it was “not narrowly

tailored to advance [the City’s] interest in protecting

captive audiences.” Ibid.

A panel for the Ninth Circuit Court of Appeals,

while not specifically citing Hill, relied on this Court’s

captive-audience case law to support its conclusion

that Seattle Center’s “authorities had the right to

protect captive audiences seeking to enjoy” the

Center’s “public entertainment, relaxation, and

edification.” Berger v. City of Seattle, 512 F.3d 582,

605 (9th Cir. 2008). The panel took great comfort in

knowing that the rule did “not silence a message in

the Seattle Center, but only prevent[ed] it from being

expressed in locations where it would pose a serious

2 “Speech activities” included “political speech and commercial

speech” but not “activity conducted by City employees or licensed

concessionaires,” while a “captive audience” included “any

person or group waiting in line to attend a Seattle Center event

or purchase tickets, goods, or services; attending a Seattle

Center event; or eating in a designated location.” Id. at *6.

8

threat to order and to the convenience and peace of

patrons.” Id. at 605–06 (emphasis added).

The en banc Ninth Circuit reversed, singling out

the captive-audience rule as the “most troublesome of

the challenged regulations.” Berger v. City of Seattle,

569 F.3d 1029, 1053 (9th Cir. 2009) (en banc).

According to the majority, this Court’s captiveaudience case law “fully supports” the “conclusion

that public park-goers, in general, are not a

protectable captive audience for constitutional

purposes.” Id. at 1054.

The majority got it right, but three judges

dissented, calling the rule a “reasonable method of

achieving the City’s legitimate interest in the safety

and convenience of Seattle Center patrons.” Id. at

1081 (Gould, J., dissenting). Stating the point more

bluntly, the dissent insisted that the City had a

“significant governmental interest in ensuring that

these patrons [had] an enjoyable experience, so that

Seattle Center and the City as a whole [could]

continue to be a desirable and commercially profitable

destination.” Id. at 1080–81 (Gould, J., dissenting).

Under this broad reasoning, Seattle could respond

to a march for life by banning all speech activities in

the City’s commercial district. Montgomery,

Alabama, could respond to a pro-choice rally by doing

the same. When the government can implement

speech bans in public places to ensure that citizens

have “an enjoyable experience,” the First Amendment

has ceased to protect anything. Yet Hill justifies that

outcome.

9

2. Peaceful pro-life sidewalk counselors have not

fared any better in Hill’s wake. In McGuire v. Reilly,

the First Circuit held that Hill controlled its

consideration of a Massachusetts statute creating a

“floating six-foot buffer zone around pedestrians and

motor vehicles as they approach[ed] reproductive

health care facilities.” 260 F.3d 36, 38–39 (1st Cir.

2001). Pro-life sidewalk counselors brought a First

Amendment challenge, and the district court granted

a preliminary injunction. Id. at 41–42.

The First Circuit reversed. Id. at 42. Rejecting the

district court’s conclusion that exemptions for clinic

workers made the statute content-based, the court

reasoned that the legislature rationally could have

believed clinic employees were less likely to direct

“unwanted speech toward captive listeners—a datum

that the Hill Court recognized as justifying the

statute there.” Id. at 44–46.

Similarly, in Brown v. City of Pittsburgh, the Third

Circuit held that a “bubble zone” ordinance

challenged by a pro-life sidewalk counselor was

constitutional on its face because, like the statute

upheld in Hill, the ordinance “impair[ed] primarily

the effort to communicate with unwilling listeners.”3

586 F.3d 263, 272 (3d Cir. 2009). “As the bubble zone

created by the Ordinance at issue here [was] a

virtually verbatim copy of the Hill statute,” the court

found “this portion of the Ordinance, taken alone, to

3 Amicus represented the sidewalk counselor in this case.

10

be facially valid under the First Amendment’s Free

Speech Clause.” Id. at 273.4

And in Madison Vigil for Life, Inc. v. City of

Madison, the District Court for the Western District

of Wisconsin denied a motion for a temporary

restraining order filed by various pro-life groups and

individuals seeking protection from a city ordinance

similar to the Colorado statute upheld in Hill.5 1 F.

Supp. 3d 892, 894, 900 (W.D. Wis. 2014). In so

holding, the court discarded one of the few limits on

the unwelcome-speech doctrine that Hill articulated.

In addition to privacy in the home, the Hill opinion

emphasized a government interest to protect citizens

from unwelcome speech “in confrontational settings.”

530 U.S. at 717 (internal citations omitted) (emphasis

added). In Madison Vigil, the City failed to proffer any

evidence of confrontational demonstrations at any of

the protected abortion clinics. 1 F. Supp. 3d at 896.

Undeterred, the district court rationalized that it was

not “clear the City need[ed] to do so to prevail, since

the Supreme Court in Hill [did] not appear to rely

heavily on [such] confrontations.” Ibid.

4 The court ultimately “vacate[d] the denial of the preliminary

injunction with respect to Brown’s claim that the Ordinance

[was] unconstitutional as applied to specific clinic sites.” Id. at

297 (emphasis added). As the petitioners note in their petition,

Pet. at 31, the district court permanently enjoined the bubble

zone on remand, Brown v. City of Pittsburg, No. 06-393, 2010 WL

2207935, at *2 (W.D. Pa. 2010). And amicus remains involved in

litigation over the buffer zone. See Bruni v. City of Pittsburgh,

283 F. Supp. 3d 357 (W.D. Pa. 2017), appeal pending.

5 Amicus represented the plaintiffs in this case.

11

There had “undoubtedly been demonstrations,

confrontational or otherwise, outside of various health

care facilities across the country.” Ibid. (emphasis

added). So, the absence of “confrontational

demonstrations in the record,” the district court

continued, did not “lessen the legitimacy” of the City’s

desire to protect the “‘unwilling listener’s interest in

avoiding unwanted communication.’” Ibid. (quoting

Hill, 530 U.S. at 716). In so holding, the court rejected

even this modest attempt to limit the captiveaudience doctrine’s scope. Such reasoning opens the

door to any government regulation designed to protect

citizens from unwelcome speech, which is nothing less

than the power to shut down all speech whatsoever.

3. Most illuminating, lower courts have used Hill

to uphold the very kind of speech restrictions that this

Court struck down in Snyder v. Phelps, 562 U.S. 443

(2011). Perhaps no form of “speech in public fora” has

been more unpopular, Hill, 530 U.S. at 772 (Kennedy,

J., dissenting), than the Westboro Baptist Church’s

pickets and protests conducted near our nation’s

military funerals. Although this Court in Snyder

declined to “expand the captive audience doctrine” to

protect mourners from Westboro’s speech, 562 U.S. at

460, lower courts have used Hill’s captive-audience

reasoning to uphold laws intended to limit Westboro’s

ability to express its views in public.

For example, in Phelps-Roper v. Strickland, the

Sixth Circuit cited Hill to support the court’s holding

that the State’s “important interest in the protection

of funeral attendees” justified a “Funeral Protest

Provision” preventing Westboro from picketing and

protesting within 300 feet of a funeral or burial

12

service for one hour before, during, and for one hour

after the event. 539 F.3d 356, 358, 366 (6th Cir. 2008).

“[T]he Hill Court found a significant interest because

the audience to unwanted communication was

captive.” Id. at 364. And “mourners cannot easily

avoid unwanted protests without sacrificing their

right to partake in the funeral or burial service.” Id.

at 366. So, the Sixth Circuit affirmed the district

court’s

decision

rejecting

Westboro’s

First

Amendment challenge. Id. at 373.

The Eighth Circuit Court of Appeals reached the

same conclusion in a trio of post-Snyder funeralprotest cases. In Phelps-Roper v. City of Manchester,

the court used Hill to overrule two of its earlier

decisions “limit[ing] the government’s interest in

protecting unwilling listeners to residential settings.”

697 F.3d 678, 692 (8th Cir. 2012) (en banc). “That

reasoning [did] not withstand scrutiny, however,

given” Hill’s holding that “government can show such

an interest ‘in confrontational settings,’ and in certain

instances when the ‘offensive speech . . . is so

intrusive that the unwilling audience cannot avoid

it.’” Ibid. (quoting Hill, 530 U.S. at 716, 717) (internal

citation omitted).

Noting that mourners must “be in a certain place

at a certain time to participate in a funeral or burial

and are therefore unable to avoid unwelcome speech

at that place and time,” the court held that the City

had “shown a significant government interest in

protecting the peace and privacy of funeral attendees

for a short time and in a limited space.” 697 F.3d at

692, 693. Ultimately, the court reversed the district

13

court’s ruling that the challenged ordinance violated

the First Amendment. Id. at 695.

One year later, the Eighth Circuit applied that

decision in Phelps-Roper v. Koster, upholding a

Missouri statute making it unlawful “to engage in

picketing or other protest activities within three

hundred feet of or about any location at which a

funeral is held, within one hour prior to the

commencement of any funeral, and until one hour

following the cessation of any funeral.” 713 F.3d 942,

947, 954 (8th Cir. 2013).

Four years later, the Eight Circuit went even

further, this time upholding Nebraska’s buffer zone

prohibiting “picketing within 500 feet of a cemetery,

mortuary, or church from one hour prior through two

hours following the commencement of a funeral.”

Phelps-Roper v. Ricketts, 867 F.3d 883, 888, 893–94

(8th Cir. 2017) (emphasis added). Highlighting expert

testimony that mourners “felt victimized by

[Westboro’s] pickets” and that “the 500-foot buffer

zone helps,” the court found a “significant government

interest” in ensuring “vulnerable friends and family

can mourn and honor their deceased loved one in a

respectful environment of peace and privacy free from

unwanted public exploitation.” Id. at 894.

14

III. This Court’s attempts to limit Hill without

explicitly overruling it have not worked.

Central Park was decided two-and-a-half years

after this Court’s decision in McCullen. In McCullen,

this Court was clear that the challenged statute

“would not be content neutral if it were concerned

with undesirable effects that arise from the direct

impact of speech on its audience or listeners’ reactions

to speech.” 573 U.S. at 481 (internal quotation marks

omitted). On the contrary, the Court praised public

streets and sidewalks as “venues for the exchange of

ideas” given that, in these fora, “a listener often

encounters speech he might otherwise tune out.” Id.

at 476. “[T]his aspect of traditional public fora,” the

Court continued, “is a virtue, not a vice.” Ibid.

It is difficult to square McCullen with Central

Park’s assertion that this Court has “consistently

recognized ‘the interests of unwilling listeners in

situations where the degree of captivity makes it

impractical for the unwilling viewer or auditor to

avoid exposure.’” 157 A.D.3d at 34 (quoting Hill, 530

U.S. at 718) (emphasis added). And the Central Park

court should not have tried to “balance . . . the First

Amendment rights of the protestors and the rights of

customers and other pedestrians to avoid unwelcome

approaches” and “unwanted intrusions.” Id. at 30, 34.

If the buffer-zone statute in McCullen would have

been content-based if it were premised on an asserted

interest in protecting unwilling listeners “from the

direct impact of speech,” 573 U.S. at 481, surely the

challenged injunction in Central Park was also

content-based.

15

But Central Park never cites McCullen, relying

instead on Hill and holding that the injunction was

content-neutral. 157 A.D.3d at 34. Regardless of the

court’s reason for ignoring McCullen, Central Park

proves that the damage done in Hill cannot easily be

undone until this Court takes the affirmative step to

overrule Hill explicitly.6

The trio of post-Snyder Eighth Circuit cases

proves the same point. Again, in Snyder, this Court

explicitly “decline[d] to expand the captive audience

doctrine to the circumstances presented” there. 562

U.S. at 460. The Court noted that it had applied the

doctrine “only sparingly to protect unwilling listeners

from protected speech.” Id. at 459. As examples, the

Court cited its decisions to uphold a statute “allowing

a homeowner to restrict the delivery of offensive mail

to his home, and an ordinance prohibiting picketing

‘before or about’ any individual’s residence.” Id. at

459–60 (internal citations omitted). Noticeably

absent from the Court’s discussion in Snyder was any

mention of Hill.

Yet, less than two years later in Phelps-Roper v.

City of Manchester, the Eight Circuit distinguished

Snyder and applied Hill, recognizing a “significant

government interest” in protecting mourners’

“privacy” and shielding them from “unwelcome

6 McCullen did at least provide relief for the pro-life plaintiffs in

Madison Vigil. Press Release, Alliance Defending Freedom, City

of Madison officially rescinds censorship zones (Aug. 7, 2014),

http://www.adfmedia.org/News/PRDetail/8906.

But

that

resulted from a legislative change, so it remains unclear whether

the district court would have felt compelled to change course.

16

speech.” 697 F.3d at 692–93. The court’s subsequent

decisions in Phelps-Roper v. Koster and Phelps-Roper

v. Ricketts merely followed suit. Koster, 713 F.3d at

951; Ricketts, 867 F.3d at 893–94.

Finally, the decision below demonstrates that—so

long as speech restrictions more closely resemble the

statute upheld in Hill than the statute struck down

in McCullen—lower courts will apply Hill despite its

overly expansive view of the captive-audience

doctrine and its substantial diminishment of First

Amendment freedoms. Price v. City of Chicago, 915

F.3d 1107, 1118 (7th Cir. 2019) (noting that the

“bubble-zone law upheld in Hill was aimed in

substantial part at guarding against the undesirable

effects of the regulated speech on listeners,” which

was “not a content-neutral justification” after

McCullen).

The Seventh Circuit “felt bound to apply” Hill, but

the court “facilitated [this Court’s] review” by “plainly

expressing its doubts.” Eberhart v. United States, 546

U.S. 12, 19–20 (2005). Presented with this

opportunity to undo the damage Hill has inflicted, the

Court should grant the petition and overrule Hill as

inconsistent with the First Amendment.

17

CONCLUSION

The petition for certiorari should be granted.

Respectfully submitted,

CHRISTOPHER P.

SCHANDEVEL

ALLIANCE DEFENDING

FREEDOM

20116 Ashbrook Place

Suite 250

Ashburn, VA 20147

(571) 707-4655

JULY 2019

JOHN J. BURSCH

Counsel of Record

ALLIANCE DEFENDING

FREEDOM

440 First Street NW

Suite 600

Washington, DC 20001

(616) 450-4235

jbursch@ADFlegal.org