Petition for Writ of Certiorari — Nikki Bruni, et al., Petitioners v. City of Pittsburgh, Pennsylvania, et al.

Supreme Court briefMar 26, 2020

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NO. __________

IN THE

Supreme Court of the United States

NIKKI BRUNI; JULIE COSENTINO; CYNTHIA RINALDI;

KATHLEEN LASLOW; and PATRICK MALLEY,

Petitioners,

CITY OF PITTSBURGH; PITTSBURGH CITY COUNCIL;

MAYOR OF PITTSBURGH,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Third Circuit

PETITION FOR A WRIT OF CERTIORARI

KEVIN H. THERIOT

ELISSA M. GRAVES

ALLIANCE DEFENDING

FREEDOM

15100 N. 90th Street

Scottsdale, AZ 85260

(480) 444-0020

KRISTEN K. WAGGONER

JOHN J. BURSCH

Counsel of Record

DAVID A. CORTMAN

RORY T. GRAY

ALLIANCE DEFENDING

FREEDOM

440 First Street NW

Suite 600

LAWRENCE G. PALADIN

PALADIN LAW OFFICES, PC Washington, DC 20001

(616) 450-4235

15 Duff Road, Suite 6C

Pittsburgh, PA 15235

jbursch@ADFlegal.org

(412) 244-0826

Counsel for Petitioners

QUESTIONS PRESENTED

Petitioners are sidewalk counselors who engage in

quiet, one-on-one conversations with women visiting

an abortion clinic in Pittsburgh, Pennsylvania. A

painted semi-circle extends 15 feet from the clinic’s

door. Under the City’s buffer-zone law, the counselors

may not speak—or even pray—in this zone because

the City views Petitioners’ message of hope, personal

concern, and assistance as advocacy or demonstration. Yet the City allows others to speak face-to-face

in the zone for nearly any other reason.

Because the buffer zone burdens and disfavors the

counselors’ speech, they sued. Confronting the City’s

unmistakably invalid ordinance, the Third Circuit

unilaterally construed the law to prohibit prayer or

generic advocacy but to allow counseling. This

exacerbated a 7-3 circuit split over whether federal

courts have authority to limit state laws to avoid

constitutional flaws. It then held the rewritten law—

which Pittsburgh neither wanted nor requested—

content neutral; rejected McCullen’s narrow-tailoring

standard, in conflict with three circuits; and held the

burden on speech insignificant or de minimis. After

litigating five years, the result is an advisory opinion

that neither binds state courts nor prohibits City

officials from prosecuting Petitioners in the future,

even for counseling. The questions presented are:

1. Whether federal courts have authority to save

a state or local law from unconstitutionality by

positing a limiting construction that has no state-law

basis and contradicts governing authorities’ understanding of their own law.

2. Whether Pittsburgh’s buffer-zone ordinance

violates the Free Speech Clause.

PARTIES TO THE PROCEEDING

Petitioners are Nikki Bruni, Julie Cosentino,

Cynthia Rinaldi, Kathleen Laslow, and Patrick

Malley, individuals and citizens of Pennsylvania.

Respondents are the City of Pittsburgh, the

Pittsburgh City Council, and the Mayor of Pittsburgh,

local government entities and officials.

LIST OF ALL PROCEEDINGS

U.S. Court of Appeals for the Third Circuit, No. 181084, Bruni v. City of Pittsburgh, judgment entered

October 18, 2019.

U.S. Court of Appeals for the Third Circuit, No. 151755, Bruni v. City of Pittsburgh, judgment entered

June 1, 2016.

U.S. District Court for the Western District of

Pennsylvania, No. 2:14-cv-1197-CB, Bruni v. City of

Pittsburgh, final judgment entered November 16,

2017.

U.S. District Court for the Western District of

Pennsylvania, No. 2:14-cv-1197-CB, final judgment

entered March 6, 2015.

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED ....................................... i

PARTIES TO THE PROCEEDING ........................... ii

LIST OF ALL PROCEEDINGS ................................. ii

TABLE OF AUTHORITIES ..................................... vi

DECISIONS BELOW................................................. 1

STATEMENT OF JURISDICTION .......................... 2

PERTINENT CONSTITUTIONAL AND

STATUTORY PROVISIONS ................................ 2

INTRODUCTION ...................................................... 3

STATEMENT OF THE CASE ................................... 4

A. The sidewalk counselors’ ministry and

participation in 40 Days for Life ..................... 4

B. Pittsburgh’s ordinance .................................... 5

C. The buffer zone’s impact on Petitioners’

speech ............................................................... 8

D. Lower-court proceedings ............................... 10

REASONS FOR GRANTING THE WRIT............... 14

I. The Third Circuit’s effort to save a ban on prolife speech via a limiting construction conflicts

with this Court’s precedent and that of most

courts of appeals. ................................................ 15

A. States are independent sovereigns with

full power to make and construe their own

laws without federal intrusion...................... 15

B. Contrary to the Third Circuit’s ruling,

federal courts have no independent

authority to narrow state laws. .................... 17

C. The Third Circuit’s ruling exacerbated a 7to-3 circuit conflict that shows the

federalism issue is entrenched and

recurring and needs prompt resolution. ....... 22

II. The Third Circuit’s ruling that the ordinance

is content neutral and narrowly tailored

conflicts with this Court’s precedent and other

circuits’ reading of McCullen. ............................. 24

A. This Court’s precedent establishes that

Pittsburgh’s ordinance is content- and

viewpoint-based, not content neutral. .......... 25

B. To hold the ordinance narrowly tailored,

the Third Circuit shifted the burden of

proof to the sidewalk counselors, distorting

McCullen and creating a conflict with three

other circuits. ................................................. 28

III.This Court’s precedent establishes that

Pittsburgh’s ordinance is overbroad and

constitutionally invalid. ...................................... 31

IV.This case is an ideal vehicle to resolve

conflicts on questions of vital importance that

impact free speech nationwide. .......................... 33

CONCLUSION ......................................................... 35

APPENDIX TABLE OF CONTENTS

United States Court of Appeals

for the Third Circuit,

Opinion in 18-1084

Issued October 18, 2019 ........................................... 1a

United States District Court

for the Western District of Pennsylvania,

Memorandum and Order

Re: Motion for Summary Judgment

Issued November 16, 2017 ..................................... 42a

United States Court of Appeals

for the Third Circuit,

Opinion in 15-1755

Issued June 1, 2016................................................ 74a

United States District Court

for the Western District of Pennsylvania,

Memorandum and Order

Re: Preliminary Injunction and Dismissal

Issued March 6, 2015 ........................................... 141a

United States Court of Appeals

for the Third Circuit,

Order Denying Petition for Rehearing En Banc

Issued November 27, 2019 ................................... 189a

U.S. Constitutional Provisions ............................ 191a

Pittsburgh Code of Ordinances,

Chapter 623 .......................................................... 192a

United States District Court

for the Western District of Pennsylvania,

Order Granting Permanent Injunction in

Brown v. City of Pittsburgh

Issued December 17, 2009 ................................... 196a

TABLE OF AUTHORITIES

Cases

Arizona v. United States,

567 U.S. 387 (2012) .............................................. 15

Arizonans for Official English v. Arizona,

520 U.S. 43 (1997) ................................................ 19

Bates v. State Bar of Arizona,

433 U.S. 350 (1977) .............................................. 32

Beckerman v. City of Tupelo,

664 F.2d 502 (5th Cir. 1981) ................................ 23

Board of Airport Commissioners of City of Los

Angeles v. Jews for Jesus, Inc.,

482 U.S. 569 (1987) ........................................ 31, 32

Board of Education of Rogers v. McCluskey,

458 U.S. 966 (1982) .............................................. 19

Bond v. United States,

564 U.S. 211 (2011) .............................................. 15

Boos v. Barry,

485 U.S. 312 (1988) .............................................. 22

Broadrick v. Oklahoma,

413 U.S. 601 (1973) ........................................ 16, 18

Brown v. City of Pittsburgh,

586 F.3d 263 (3d Cir. 2009) ................................... 7

Bush v. Gore,

531 U.S. 98 (2000) ................................................ 16

vii

City of Houston v. Hill,

482 U.S. 451 (1987) .................................. 21, 22, 24

City of Lakewood v. Plain Dealer Publishing Co.,

486 U.S. 750 (1988) ........................................ 20, 22

Cutting v. City of Portland,

802 F.3d 79 (1st Cir. 2015) .................................. 22

Danforth v. Minnesota,

552 U.S. 264 (2008) .............................................. 16

Dimmitt v. City of Clearwater,

985 F.2d 1565 (11th Cir. 1993) ............................ 23

Erznoznik v. City of Jacksonville,

422 U.S. 205 (1975) ........................................ 21, 27

Eubanks v. Wilkinson,

937 F.2d 1118 (6th Cir. 1991) .............................. 23

Fair Assessment in Real Estate Association, Inc. v.

McNary,

454 U.S. 100 (1981) .............................................. 17

Forsyth County v. Nationalist Movement,

505 U.S. 123 (1992) .............................................. 18

Freedman v. Maryland,

380 U.S. 51 (1965) ................................................ 20

Frisby v. Schultz,

487 U.S. 474 (1988) .............................................. 18

Gooding v. Wilson,

405 U.S. 518 (1972) .............................................. 19

viii

Grayned v. City of Rockford,

408 U.S. 104 (1972) ........................................ 19, 21

Hill v. City of Houston,

789 F.2d 1103 (5th Cir. 1986) .............................. 24

Hill v. Colorado,

530 U.S. 703 (2000) .................................3, 7, 27, 33

Hoy v. Angelone,

720 A.2d 745 (Pa. 1998) ....................................... 20

Hoye v. City of Oakland,

653 F.3d 835 (9th Cir. 2011) ................................ 22

Hynes v. Mayor & Council of Borough of Oradell,

425 U.S. 610 (1976) .............................................. 20

Iancu v. Brunetti,

139 S. Ct. 2294 (2019) .......................................... 27

Kucharek v. Hanaway,

902 F.2d 513 (7th Cir. 1990) .......................... 23, 24

Law Students Civil Rights Research Council, Inc.

v. Wadmond,

401 U.S. 154 (1971) .............................................. 18

Lorillard Tobacco Co. v. Reilly,

533 U.S. 525 (2001) .............................................. 29

McCullen v. Coakley,

573 U.S. 464 (2014) ....................................... passim

Metromedia, Inc. v. City of San Diego,

453 U.S. 490 (1981) .............................................. 17

Moore v. Sims,

442 U.S. 415 (1979) ........................................ 19, 20

Mullaney v. Wilbur,

421 U.S. 684 (1975) .............................................. 16

Murphy v. National Collegiate Athletic

Association,

138 S. Ct. 1461 (2018) .......................................... 16

New York v. Ferber,

458 U.S. 747 (1982) .............................................. 17

Printz v. United States,

521 U.S. 898 (1997) ........................................ 15, 16

Railroad Commission of Texas v. Pullman Co.,

312 U.S. 496 (1941) .................................. 16, 18, 21

Reed v. Town of Gilbert,

135 S. Ct. 2218 (2015) .............................. 10, 25, 26

Reynolds v. Middleton,

779 F.3d 222 (4th Cir. 2015) ................................ 30

Rideout v. Gardner,

838 F.3d 65 (1st Cir. 2016) .................................. 30

Rizzo v. Goode,

423 U.S. 362 (1976) .............................................. 16

Rosenberger v. Rector & Visitors of University of

Virginia,

515 U.S. 819 (1995) .............................................. 26

Ruhrgas AG v. Marathon Oil Co.,

526 U.S. 574 (1999) ........................................ 15, 16

Secretary of State of Maryland v. Joseph H.

Munson Co., Inc.,

467 U.S. 947 (1984) ........................................ 31, 32

Shuttlesworth v. City of Birmingham,

394 U.S. 147 (1969) .............................................. 21

Smith v. Goguen,

415 U.S. 566 (1974) .............................................. 20

Steffel v. Thompson,

415 U.S. 452 (1974) ........................................ 16, 22

Terminiello v. City of Chicago,

337 U.S. 1 (1949) .................................................. 18

Trainor v. Hernandez,

431 U.S. 434 (1977) ........................................ 15, 16

United Food & Commercial Workers International

Union v. IBP, Inc.,

857 F.2d 422 (8th Cir. 1988) ................................ 23

United States v. 12,200-Foot Reels of Super 8mm.

Film,

413 U.S. 123 (1973) .............................................. 19

United States v. Ackell,

907 F.3d 67 (1st Cir. 2018) .................................. 29

United States v. Stevens,

559 U.S. 460 (2010) ........................................ 31, 33

United States v. Thirty-Seven (37) Photographs,

402 U.S. 363 (1971) .............................................. 17

Verlo v. Martinez,

820 F.3d 1113 (10th Cir. 2016) ............................ 30

Virginia Society for Human Life, Inc. v. Caldwell,

152 F.3d 268 (4th Cir. 1998) .......................... 23, 24

Virginia v. American Booksellers Association, Inc.,

484 U.S. 383 (1988) .............................................. 21

Ward v. Rock Against Racism,

491 U.S. 781 (1989) .............................................. 21

Wood v. Strickland,

420 U.S. 308 (1975) .............................................. 19

Z.J. Gifts D-4, LLC v. City of Littleton,

311 F.3d 1220 (10th Cir. 2002)............................ 23

Statutes

28 U.S.C. 1254 ............................................................ 2

28 U.S.C. 1291 ............................................................ 2

28 U.S.C. 1331 ............................................................ 2

Pittsburgh Municipal Code 623.01–623.07 ............... 5

DECISIONS BELOW

The district court’s decision denying the sidewalk

counselors’ motion for preliminary injunction and

granting in part and denying in part the City’s motion

to dismiss is reported at 91 F. Supp. 3d 658 (W.D. Pa.

2015) and reprinted at App.141a–188a.

The Third Circuit’s ruling affirming in part and

vacating in part is reported at 824 F.3d 353 (3d Cir.

2016) and reprinted at App.74a–140a.

The district court’s decision denying the sidewalk

counselors’ motion for summary judgment and

granting the City’s motion for summary judgment is

reported at 283 F. Supp. 3d 357 (W.D. Pa. 2017) and

reprinted at App.42a–73a.

The Third Circuit’s ruling affirming the grant of

summary judgment in the City’s favor is reported at

941 F.3d 73 (3d Cir. 2019) and reprinted at App.1a–

41a.

STATEMENT OF JURISDICTION

On October 18, 2019, the Third Circuit issued its

opinion affirming the district court’s grant of

summary judgment in the City’s favor, and on

November 27, 2019, the Third Circuit denied

rehearing en banc. Lower courts had jurisdiction

under 28 U.S.C. 1331 and 28 U.S.C. 1291. On January

27, 2020, Justice Alito extended the time to file a

petition for a writ of certiorari to March 26, 2020. This

Court has jurisdiction under 28 U.S.C. 1254(1).

PERTINENT CONSTITUTIONAL AND

STATUTORY PROVISIONS

Pertinent constitutional and statutory provisions

appear at App.191a–195a.

INTRODUCTION

Ever since Pittsburgh enacted a 2005 buffer-zone

ordinance to punish pro-life sidewalk counselors and

supporters, federal courts have bent over backwards

to save it, culminating in the Third Circuit disclaiming the ordinance’s undisputed meaning. Because the

ordinance did not withstand First Amendment scrutiny, the court “fixed” it by imposing a narrowing construction with no state-law basis that the City never

advocated nor accepted. The court then jettisoned the

narrow-tailoring requirement that McCullen v. Coakley, 573 U.S. 464 (2014), requires because even the

rewritten ordinance did not satisfy it.

The Third Circuit did all this—exacerbating one

circuit conflict and creating a new one—to save a

buffer-zone law that is unabashedly content- and

viewpoint-based and far from narrowly tailored. The

decision continued a tradition associated with Hill v.

Colorado, 530 U.S. 703 (2000), of excusing burdens on

pro-life speech. Unless this Court intervenes, lower

courts will continue applying different rules to pro-life

sidewalk counselors and advocates.

The same constitutional principles that govern

elsewhere apply here. To begin, federal courts cannot

rewrite state laws. Under “our federalism,” the Third

Circuit had to accept Pittsburgh’s interpretation of an

ordinance the City wrote and administers. The Third

Circuit’s narrowing construction is ineffective

because city officials and state courts are not bound

by it, and they can still hold sidewalk counselors

criminally liable in spite of it. A non-binding, advisory

opinion is no basis for rejecting the sidewalk

counselors’ free-speech challenge.

What’s more, Pittsburgh’s ordinance targets

expression and is not calculated to deal with an actual

problem. It is a prophylactic and overbroad restriction

on protected speech in traditional public fora that,

“time out of mind, have been used for purposes of

assembly, communicating thoughts between citizens,

and discussing public questions.” McCullen, 573 U.S.

at 476 (cleaned up). The ordinance violates the Free

Speech Clause.

That the City’s law primarily impacts pro-life

expression is no reason to ignore these realities; it is

a reason to address them. And unless this Court

intervenes, lower courts will continue to sweep

blatant First Amendment violations under the rug.

This Court’s review is urgently needed to clarify that

buffer and bubble zones are not exempt from

federalism and free-speech principles.

STATEMENT OF THE CASE

A. The sidewalk counselors’ ministry and

participation in 40 Days for Life

Petitioners Nikki Bruni, Julie Cosentino, Cynthia

Rinaldi, Kathleen Laslow, and Patrick Malley are

sidewalk counselors who hold the sincere religious

belief that abortion takes the life of a child. They put

that conviction into practice outside a Planned

Parenthood clinic located at 933 Liberty Avenue in

Pittsburgh, Pennsylvania. The sidewalk counselors

are not protestors; they offer women entering and

leaving the clinic information about abortion alternatives, post-abortion resources, prayer, and personal

support. Their message is one of “kindness, love, hope,

gentleness, and help.” Joint Appendix, Bruni v. City

of Pittsburgh (3d Cir. Apr. 13, 2018) (“JA”) at 574a.

The sidewalk counselors assist women in two

primary ways. First, they have quiet conversations

with and offer help and information to abortionminded women. They provide receptive women with

pamphlets about local pregnancy-center resources,

pray with women, and peacefully express a message

of caring support. And they take interested women to

Catholic Charities to connect them with adoption

assistance, financial resources, food, education, and

daycare. Second, certain counselors take part in 40

Days for Life, a twice-annual vigil where participants

pray outside abortion clinics and sometimes hold

signs or wear shirts supporting life.

All of Petitioners’ activities are peaceful and

respectful. Their message may only be expressed

through close, caring, and personal conversations or

prayer vigils—not protests. They have never done

anything unlawful, nor have they been accused of

obstruction or harassment. They engage in lawful

speech on public ways and sidewalks where it matters

most—the place and time abortions are performed.

B. Pittsburgh’s ordinance

The City enacted a buffer-zone ordinance in 2005,

years after it ended permanent police details outside

abortion clinics. Pittsburgh, Pa., Municipal Code

623.01–623.07; App.6a–7a, 192a–95a. It did so

despite no record of arrests or prosecutions, App.32a–

33a, 48a, and, on average, less than four police visits

per month to Planned Parenthood, App.8a, 48a. City

Council hearing testimony chiefly cited a need for

police to mediate occasional disputes between pro-life

speakers and clinic visitors or abortion escorts, plus

unproven claims that pro-life speakers had impeded

access to the clinic entrance. App.8a, 48a.

Pittsburgh’s laws already barred obstructing

traffic, passageways, and entrances. App.48a. Even

though the record showed no arrests, targeted injunctions, or other enforcement of existing laws, a City

Police Department commander testified that a buffer

zone would make it easier to deter pro-life speakers

from obstructing patients trying to reach the clinic’s

door. App.8a, 48a–49a. The City Council passed the

ordinance and the Mayor signed it into law with the

“intent” to (1) avoid “disputes between those seeking

[abortions] and those who would counsel against their

actions,” (2) secure “unimpeded access to [abortion]

services,” and (3) promote “a more efficient . . . deployment of [police] services.” App.44a. But as the City

Council’s chair and sponsor of the ordinance

explained at the official hearing, the real goal was

“protecting the listen[er] from unwanted communication.” JA402a.

As written, the ordinance restricts speech in two

ways. First, it prohibits knowingly approaching within an 8-foot bubble zone of another person—without

consent—for purposes of leafletting, displaying a

sign, or engaging in oral protest, education, or

counseling within a radius of 100 feet from any

entrance to a hospital, medical office, or clinic.

App.194a. Second, the ordinance forbids knowingly

congregating, patrolling, picketing, or demonstrating

within a 15-foot buffer zone extending from any

entrance to a hospital or health care facility.

App.194a. The ordinance exempts public responders

and authorized personnel. App.194a. And it penalizes

violators with costly fines and even imprisonment.

App.194a–95a.

Because the ordinance bars lawful speech on

public ways and sidewalks, an earlier First Amendment challenge followed. The Third Circuit ruled in

2009 that Pittsburgh’s combination of a bubble zone

and buffer zone was insufficiently tailored and

facially invalid under the First Amendment. Brown v.

City of Pittsburgh, 586 F.3d 263, 283 (3d Cir. 2009).

On the record presented, the court ruled that “either

zone individually is [facially] lawful.” Id. at 288. The

court based that decision largely on Hill v. Colorado,

530 U.S. 703 (2000). Brown, 586 F.3d at 270–77.

Because “the decision of which zone to employ belongs

. . . to the City,” id. at 288, the Third Circuit told the

City to “inform the District Court of its preference,

and the court should enjoin enforcement of the other

zone.” Id. at 288–89.

After inviting the City’s views, the Brown district

court issued a final order (1) enjoining enforcement of

the bubble zone; (2) ordering the City to construe and

enforce the ordinance so that no one (including

Planned Parenthood’s employees and volunteers) may

picket or demonstrate via “any action, activity or

signage” in the buffer zone; and (3) requiring the City

to clearly mark the boundaries of any buffer zone it

establishes under the ordinance. App.196a–97a.

In response, the City marked buffer zones outside

only two health facilities in all metropolitan Pittsburgh. Coincidentally, they were the City’s two

abortion clinics. App.72a, 81a, 142a, 165a–66a.

Elsewhere, the City chooses not to implement the

ordinance’s speech restrictions. App.72a–73a.

C. The buffer zone’s impact on Petitioners’

speech

A yellow semi-circle marks the buffer zone

Pittsburgh established outside the Planned Parenthood on Liberty Avenue, extending onto the public

sidewalk and street. The City intends and understands its ordinance to forbid leafletting and sidewalk

counseling inside the yellow line. App.5a, 19a & n.12,

46a, 82a. It views these activities as demonstrating,

and possibly congregating, patrolling, and picketing

as well. App.11a, 26a n.18. For over a decade,

Pittsburgh has barred pro-life sidewalk counselors

from speaking within a 36-foot-long section of public

sidewalk and street (at its widest point) outside an

abortion clinic—the location where counselors’

expression matters most. App.142a–43a.

The City always intended to enforce the ordinance

against the counselors, and they avoided the buffer

zone for fear of fines and imprisonment. App.19a n.12,

146a. But Pittsburgh allows others to speak freely in

the zone because the City does not view their

expression as “advocacy or demonstration.” Br. for

Appellees 37, No. 18-1084 (3d Cir. June 13, 2018)

(“Appellees Br.”). For instance, “talking about the

weather,” JA334a, or sports, JA692a–93a, in the zone

is allowed. So too is any form of “purely social or

random conversations,” whatever that means.

App.45a. In fact, sidewalk counseling is apparently

the only type of one-on-one conversation the City

bans. App.20a. Planned Parenthood escorts can enter

the zone, surround women, talk over the counselors,

and deflect women from conversing or accepting

literature. JA59a–60a, 195a.

This disadvantages the counselors’ speech. While

others may speak to women about mundane issues

until they walk through the clinic’s door—even to

speak over the counselors—the counselors must

abruptly stop speaking about faith, nonprofit

services, and life and death. Such disparate treatment

deems the sidewalk counselors—and their message—

illegitimate and untrustworthy. And it compresses

the very short time counselors have to identify women

approaching the clinic and engage in compassionate,

personal conversations with them.

The buffer zone also undercuts the counselors’

ability to leaflet. Once a woman enters the zone, the

counselor must stop short. JA108a; Appellees Br. 22.

It also makes quiet, one-one-one conversations difficult. Trying to speak 15-plus feet away, street noise

would force counselors to raise their voice. JA114a–

15a, 135a–36a. But using a loud voice is contrary to

the sidewalk counselors’ compassionate message and

one-on-one ministry. JA574a.

Though sidewalk counselors may walk through

the buffer zone to reach women, counselors may not

speak or hold literature until they are back outside

the yellow line. JA575a–76a, 587a, 596–97a. Initiating conversations before women enter the zone is hard

at best. And if a woman is dropped off by car at the

facility’s front or uses the crosswalk, she is instantly

in the buffer zone. JA588a, 597a.

In short, the buffer zone makes the counselors’

conversations and leafletting less frequent and effective. JA574a, 579a, 586a, 591a, 596a. Sometimes a

woman stops in the zone and stretches out her hand

to receive literature. Yet the City bans counselors

from reaching out to meet her at that critical moment.

JA108a; Appellees Br. 22. Some unborn children are

saved even with the ordinance in place; there would

likely be far more without it. JA576a.

D. Lower-court proceedings

The sidewalk counselors filed suit in 2014 in the

U.S. District Court for the Western District of

Pennsylvania, alleging that Pittsburgh’s buffer zone

violated their free speech rights. They requested a

declaratory judgment holding the ordinance unconstitutional facially and as applied, plus an injunction

barring the City from applying its speech ban to them

or similarly situated persons. But the district court

denied the counselors’ injunctive request and granted

the City’s motion to dismiss in part. App.141a. It

declared the ordinance facially content neutral,

distinguished this Court’s ruling in McCullen v.

Coakley, 573 U.S. 464 (2014), held that Pittsburgh’s

ordinance is narrowly tailored, and dismissed the

counselors’ overbreadth claim. App.152a–78a.

On appeal, the Third Circuit did not decide

whether McCullen and Reed v. Town of Gilbert, 135

S. Ct. 2218 (2015), altered its previous contentneutrality analysis in Brown. App.92a–93a. Instead,

it assumed that the ordinance was facially content

neutral because the sidewalk counselors still

“present[ed] a viable free speech challenge.” App.93a.

“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.” App.103a.

The court reversed and remanded for Pittsburgh

“to show either that substantially less-restrictive

alternatives were tried and failed, or that the

alternatives were closely examined and ruled out for

good reason.” App.104a. And on remand, the district

court again granted summary judgment to the City.

App.42a. First, it distinguished Reed and deemed the

City’s ordinance content neutral under Hill. App.58a–

62a. Second, the court distinguished McCullen,

holding that Pittsburgh’s buffer zone imposed “only a

minimal burden” on the sidewalk counselors’ speech.

App.64a. “Accordingly, the City has no obligation to

demonstrate that it tried—or considered and

rejected—any [substantially less-restrictive] alternatives.” App.69a. But even if McCullen’s narrowtailoring requirement applied, the court believed that

Pittsburgh “implicitly rejected” two alternatives:

(1) stationing police at Planned Parenthood and

(2) anti-obstruction laws. App.70a. Third, the district

court held that, as limited by Brown (i.e., allowing

enforcement of the buffer but not the bubble zone), the

ordinance was not overbroad. App.71a–72a.

Back on appeal, the Third Circuit recognized

Pittsburgh’s “position that . . . sidewalk counseling

falls within the prohibition on ‘demonstrating’” within

the buffer zone. App.11a. This was “highly

problematic” 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.” App.19a–20a. But

rather than strike down the ordinance, the Third

Circuit evaded the First Amendment violation by

ignoring the City’s reading of its own law and

unilaterally rewriting it instead. App.19a–26a.

Citing constitutional avoidance, the Third Circuit

believed it could facially uphold the ordinance by

applying “a narrowing construction.” App.20a, 22a,

25a. The City did not ask for that; it fully defended its

law banning sidewalk counseling in the zone, the ordinance’s clear purpose. App.23a–24a & nn.15–16. But

referencing dictionary definitions, the court declared

that sidewalk counseling is not congregating, patrolling, picketing, or demonstrating—no matter how

Pittsburgh interprets its own law. App.22a–24a.

The Third Circuit thus rejected Pittsburgh’s

understanding of an ordinance the City drafted and

had sole authority to enforce, substituting its own

“reinterpretation.” App.21a n.14 (cleaned up). Reviewing its own rewrite, the court held the ordinance

facially content neutral. App.25a–26a. A pure ban on

congregating, patrolling, picketing, or demonstrating

regulated “the manner in which expressive activity

occurs, not its content.” App.25a. So the court applied

intermediate scrutiny and “easily conclude[d]” that

its amended ordinance met that standard. App.26a.

When it came to narrow tailoring, the Third

Circuit faulted the sidewalk counselors for not

anticipating that the court would rewrite the law. In

the court’s words, the counselors failed to “distinguish

between the [o]rdinance as read to include sidewalk

counseling [by Pittsburgh] and the [o]rdinance as

read to exclude it [by the court].” App.28a. The Third

Circuit did not view its revision as placing “a significant burden on speech,” App.5a, 29a; instead, the

burden was “de minimis,” App.92a. On that basis, the

court distinguished McCullen and held that the City

had no burden to prove that it tried or considered less

speech-burdening alternatives. App.32a–33a.

Even though the court acknowledged Pittsburgh

failed to prove that it “tried or seriously considered

arrests, prosecutions, or targeted injunctions” before

resorting to a speech ban, such proof was unnecessary. App.32a. The court’s redraft was itself “narrowly

tailored to serve a significant governmental interest.”

App.33a (cleaned up). The Third Circuit also rejected

the counselors’ overbreadth claim, deferring (based on

Hill) to the city council’s judgment. App.33a–35a.

The result was affirmance of the summaryjudgment grant. App.35a. This left the sidewalk

counselors with no order enjoining Pittsburgh’s

expansive view of the ordinance—just the Third

Circuit’s unenforceable view of how the law should be

read. The advisory opinion does not bind state courts,

and it does not prohibit the City from prosecuting

Petitioners in the future.

Judge Hardiman concurred, explaining that “Reed

weakened precedents cited in the Court’s content

neutrality analysis,” App.36a, especially Hill,

App.37a–39a. He viewed the panel’s decision as

“constrain[ing] the City’s enforcement discretion” and

ensuring the law was construed in an “evenhanded”

way. App.40a.

REASONS FOR GRANTING THE WRIT

Casting federalism aside, the Third Circuit joined

the First and Ninth Circuits in holding that federal

courts may unilaterally declare what a state or local

law means to save it from unconstitutionality. But as

this Court and the Fourth, Fifth, Sixth, Seventh,

Eighth, Tenth, and Eleventh Circuits have held,

federal courts lack authority to limit state and local

laws. Because the Third Circuit’s construction is

advisory and nonbinding, it does not justify rejecting

the sidewalk counselors’ free-speech challenge.

Pittsburgh’s buffer-zone ordinance is decidedly

content- and viewpoint-based. The law’s definition of

demonstration or advocacy turns on speech’s content,

the law’s predictable and intended operation is

shielding women from pro-life messages, and in realworld effect the ordinance squelches speech on one

topic—abortion. The law deserves and utterly fails

strict scrutiny.

The ordinance also fails McCullen’s intermediatescrutiny test. Because the City failed to enforce its

existing laws or consider any less-speech-restrictive

alternatives, it is not narrowly tailored. So the Third

Circuit cast McCullen’s rule aside based on the novel

and unjustifiable reason that the ordinance’s impact

on sidewalk counselors’ speech is de minimis, in

conflict with rulings by the First, Fourth, and Tenth

Circuits. Moreover, Pittsburgh’s ordinance is hopelessly overbroad because it bans all public displays of

opinion on all subjects on public sidewalks in front of

abortion clinics, regardless of whether this speech

interferes with clinic access or safety, occurs when the

clinic is open or closed, or involves law-abiders or lawbreakers. Certiorari is warranted.

I. The Third Circuit’s effort to save a ban on

pro-life speech via a limiting construction

conflicts with this Court’s precedent and

that of most courts of appeals.

The Third Circuit’s rewriting of the City’s

ordinance flies in the face of “Our Federalism.”

Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 587

(1999) (cleaned up). Federal courts have no authority

to limit state or local laws to save them. The court of

appeals’ attempt to do so here conflicts with this

Court’s precedent and exacerbates a lopsided circuit

split between the First, Third, and Ninth Circuits on

one hand, and the Fourth, Fifth, Sixth, Seventh,

Eighth, Tenth, and Eleventh Circuits on the other.

A. States are independent sovereigns with

full power to make and construe their

own laws without federal intrusion.

The national government and States are both

sovereign. Trainor v. Hernandez, 431 U.S. 434, 441

(1977). This federalism is a central feature of the

Constitution’s design. Arizona v. United States, 567

U.S. 387, 398 (2012). It entrenches separate spheres

of authority that the national and state governments

are mutually “bound to respect.” Ibid. One of

federalism’s main roles is safeguarding “the integrity,

dignity, and residual sovereignty of the States.” Bond

v. United States, 564 U.S. 211, 221 (2011). The States

are fully functional political entities. Ibid.; Printz v.

United States, 521 U.S. 898, 919 (1997). And structural limits in the Constitution ensure that each state is

“‘controlled by itself,’” Id. at 922 (quoting Federalist

No. 51, at 323), and “independent and autonomous

within [its] proper sphere,” id. at 928.

Unrestricted authority to make their own laws is

one of the States’ sovereign powers. Danforth v.

Minnesota, 552 U.S. 264, 280 (2008). No federalgovernment branch may force a state to pass, alter, or

rescind a law. Steffel v. Thompson, 415 U.S. 452, 469–

70 (1974). The Constitution does not allow federal

officials to “commandeer[] the state legislative process,” Murphy v. Nat’l Collegiate Athletic Ass’n, 138 S.

Ct. 1461, 1479 (2018), or that of a state’s “political

subdivisions,” Printz, 521 U.S. at 935. Such interference offends the “independence of state governments.” Trainor, 431 U.S. at 441 (cleaned up).

Federalism thus plays a key role “in governing the

relationship between federal courts and state”

officials. Rizzo v. Goode, 423 U.S. 362, 380 (1976).

State courts are the “ultimate expositors of state law,”

and federal courts are generally bound by their

constructions, Mullaney v. Wilbur, 421 U.S. 684, 691

(1975), because “the decisions of state courts are

definitive pronouncements of the will of the States as

sovereigns,” Bush v. Gore, 531 U.S. 98, 112 (2000)

(Rehnquist, C.J., concurring). In contrast, federal

courts’ reading of state laws are “obviously not

binding on state authorities.” Broadrick v. Oklahoma,

413 U.S. 601, 617 n.16 (1973).

When construing state or local laws, federal courts

must proceed with humility and caution because their

readings “set no precedent.” Ruhrgas AG, 526 U.S. at

586. Their orders provide only “a forecast rather than

a determination” of what state law is, a “tentative

answer” that “may be displaced tomorrow” by state

courts—or local officials—absent a binding federal

court order that prohibits a broader interpretation of

the law. Railroad Comm’n of Tex. v. Pullman Co., 312

U.S. 496, 499, 500 (1941).

But the Third Circuit cast federalism aside and

rewrote Pittsburgh’s ordinance in a way that had no

basis in state law and directly contradicted the City’s

construction and the law’s purpose. The Third

Circuit’s “reinterpretation” of the ordinance, App.21a

n.14 (cleaned up), upended the “delicate balance” the

Constitution requires, Fair Assessment in Real Estate

Ass’n, Inc. v. McNary, 454 U.S. 100, 108 (1981).

Equally troubling, the Third Circuit took this drastic

step to avoid a proper constitutional challenge, cf.

New York v. Ferber, 458 U.S. 747, 767 (1982), giving

the sidewalk counselors nothing but an advisory

ruling against them stating how state officials could

(but need not) limit the buffer zone’s reach.

B. Contrary to the Third Circuit’s ruling,

federal courts have no independent

authority to narrow state laws.

When analyzing free-speech claims, this Court

views federal and state laws differently. Metromedia,

Inc. v. City of San Diego, 453 U.S. 490, 521 n.26 (1981)

(plurality opinion). In a proper case, the Court will

consider whether to impose a narrowing construction

to save federal laws from unconstitutionality. United

States v. Thirty-Seven (37) Photographs, 402 U.S. 363,

369 (1971). But federal courts lack the “jurisdiction

authoritatively to construe state legislation.” Ibid.

The Third Circuit erased this distinction. It

rejected the counselors’ challenge by rewriting the

City’s ordinance with no basis in state law. App.19a–

26a. That may advance the Third Circuit’s goal of

seeing the counselors “win by losing.” Oral Argument

at 23:02–04, Bruni v. City of Pittsburgh (3rd Cir. Feb.

7, 2019), https://bit.ly/2WkdH1M. But it runs headlong into this Court’s precedent in at least four ways.

First, in assessing a free-speech challenge, this

Court accepts authoritative state officials’ construction of state law. Broadrick, 413 U.S. at 617. This is

true regardless of whether the reading comes from a

(1) state court, Terminiello v. City of Chicago, 337

U.S. 1, 5 (1949); (2) state agency or official, Broadrick,

413 U.S. at 617–18; Law Students Civil Rights

Research Council, Inc. v. Wadmond, 401 U.S. 154, 165

(1971); or (3) local government body or representative, Forsyth Cty. v. Nationalist Movement, 505 U.S.

123, 131 & n.9 (1992); Frisby v. Schultz, 487 U.S. 474,

483 (1988). To do otherwise allows the federal

government to ignore state officials’ view of state law,

emasculating “the rightful independence of . . . state

governments.” Pullman, 312 U.S. at 501 (cleaned up).

Here, the Third Circuit admitted that Pittsburgh

interpreted its ordinance to ban pro-life sidewalk

counseling. App.5a, 19a & n.12, 23a–24a & nn.15–16.

(After all, that’s the very reason the City enacted the

law.) But the court refused to accept that reading even

though the City drafted the ordinance and is

“entrusted with its administration.” Wadmond, 401

U.S. at 165. Instead, the Third Circuit decided how

best to “properly interpret[ ]” the City’s own law,

App.26a, based on its own reading, App.22a–26a.

Federalism forbids this. This Court defers to state

authorities’ construction of state law even if another

reading seems more textually valid. Forsyth, 505 U.S.

at 131 n.9 (what matters is not the text but how it has

been “understood . . . by the county”); Wadmond, 401

U.S. at 162 (deferring to state authorities “entrusted

with the definitive interpretation of the language of

the Rule”). Because the City’s “interpretation of its

[ordinance] controls,” the Third Circuit “erred in

replacing [the City’s] construction . . . with [its] own

notions.” Bd. of Educ. of Rogers v. McCluskey, 458

U.S. 966, 971 (1982) (per curiam). Federal courts

cannot “supplant the interpretation of [a local law

given by officials] who adopted it and are entrusted

with its enforcement.” Wood v. Strickland, 420 U.S.

308, 325 (1975).

Second, this Court has long held that it lacks

authority to unilaterally narrow state laws because

state courts and officials “are the principal expositors

of state law.” Moore v. Sims, 442 U.S. 415, 429 (1979).

While state courts may impose limiting constructions

to keep state laws within constitutional bounds,

Arizonans for Official English v. Arizona, 520 U.S. 43,

78 (1997), “it is not within [federal courts’] power to

construe and narrow” a local law without reference to

state-law authority. Grayned v. City of Rockford, 408

U.S. 104, 110 (1972); accord Gooding v. Wilson, 405

U.S. 518, 520 (1972). This Court generally “leave[s] to

state courts the construction of state [and local]

legislation.” United States v. 12,200-Foot Reels of

Super 8mm. Film, 413 U.S. 123, 130 n.7 (1973).

The Third Circuit assumed it had freewheeling

power to narrow Pittsburgh’s ordinance. App.20a–

26a. Without relying on a single state authority, it

held the City’s ordinance does not apply to “the

sidewalk counseling in which Plaintiffs engage.”

App.20a. This was plain error worthy of summary

reversal because, as this Court has repeatedly

recognized, federal courts “lack jurisdiction authoritatively to construe state legislation.” Gooding, 405

U.S. at 520; cf. Bd. of Educ. of Rogers, 458 U.S. at 971

(summarily reversing a court of appeals’ replacing of

local officials’ reading of their own law with its own).

In many free-speech cases, a narrowing construction of state law might solve a constitutional problem.

Moore, 442 U.S. at 429–30. But the Third Circuit

lacked “power to remedy the defects” of a local law.

Hynes v. Mayor & Council of Borough of Oradell, 425

U.S. 610, 622 (1976); accord Smith v. Goguen, 415

U.S. 566, 575 (1974) (federal courts “are without

authority to cure” the lack “of a narrowing state court

interpretation”). Whether or how to draft a constitutional ordinance is for state officials alone to decide.

Freedman v. Maryland, 380 U.S. 51, 60 (1965). The

Third Circuit could not remedy Pittsburgh’s freespeech violation by inventing “nonbinding limits” on

the buffer zone that have no state-law basis and

which the City never proposed or accepted. City of

Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750,

770 (1988).

The Third Circuit’s resuscitation is also worthless.

Absent an injunction or other binding federal-court

order, neither the City nor state courts are bound by

the Third Circuit’s rewriting. E.g., Hoy v. Angelone,

720 A.2d 745, 750 (Pa. 1998) (the Supreme Court of

Pennsylvania will consider federal interpretation of

unsettled state law but “it is axiomatic that these

decisions are not binding and that [it] is the final

arbiter of state law”). Because the Third Circuit’s

interpretation is unenforceable and “may be

discredited [by state officials] at any time,” the court

rendered five years of litigation meaningless based on

an “advisory” opinion. Moore, 442 U.S. at 428; accord

Hynes, 425 U.S. at 622 n.6 (rejecting even limits a city

official suggested that did “not purport to be binding

on the enforcement authorities”).

Third, when a state law’s meaning is disputed and

a narrowing construction might solve a free-speech

problem, this Court does one of three things: (1) forecasts whether the state’s highest court would impose

a narrowing construction, Grayned, 408 U.S. at 110–

12; (2) certifies state-law questions to a state’s highest

court, Virginia v. Am. Booksellers Ass’n, Inc., 484 U.S.

383, 395–96 (1988); or (3) abstains, Pullman, 312 U.S.

at 499. None of these pathways is available here

because the ordinance’s scope is not disputed. In this

Court’s words, Pittsburgh defended “the ordinance in

its broadest terms,” Erznoznik v. City of Jacksonville,

422 U.S. 205, 217 (1975), and proclaimed that “under

no circumstances” could sidewalk counselors engage

in pro-life speech in the buffer zone, Shuttlesworth v.

City of Birmingham, 394 U.S. 147, 158 (1969).

Yet the Third Circuit refused to accept the

ordinance’s undisputed meaning because that meant

the law was unconstitutional. App.20a. That

approach is backwards. This Court will not even “ask

a state court if it would care in effect to rewrite a

statute.” City of Houston v. Hill, 482 U.S. 451, 471

(1987) (emphasis added). But the Third Circuit

purported to redraft the ordinance itself. If federal

courts could do that, they would have no reason to

forecast, certify, or abstain, as this Court has

consistently done.

Fourth, this Court considers only narrowing

constructions that state officials have “suggested.”

Erznoznik, 422 U.S. at 216 n.15. “[A] federal court

must consider any limiting construction that a state

court or enforcement agency has proffered,” Ward v.

Rock Against Racism, 491 U.S. 781, 795–96 (1989)

(cleaned up), at least insofar as state officials’

“proposed constructions are []sufficient” to alter the

constitutional analysis, City of Houston, 482 U.S. at

469. Then a federal court will accept a state-initiated

narrowing construction that is “reasonable and

readily apparent,” Boos v. Barry, 485 U.S. 312, 330

(1988); in other words, the state or local law must be

“fairly susceptible” to the proffered limitation, City of

Lakewood, 486 U.S. at 770 n.11.

Yet the Third Circuit created its own narrowing

construction. The City did not ask for or want a

limited buffer-zone law. But the Third Circuit

purported to impose uninvited limits to sidestep clear

First Amendment problems. The court lacked power

to rewrite the City’s law to make “an unconstitutional

[ordinance] disappear.” Steffel, 415 U.S. at 469.

C. The Third Circuit’s ruling exacerbated a

7-to-3 circuit conflict that shows the

federalism issue is entrenched and recurring and needs prompt resolution.

The Third Circuit admitted that rewriting the

ordinance exacerbated a circuit split. App.21a n.14.

While recognizing that “other Courts of Appeals take

a contrary approach,” the Third Circuit believed its

own precedent “clear.” App.21a–22a n.14. That

precedent aligns with the First and Ninth Circuits,

which also hold that federal courts can preempt local

officials and declare independently what an ordinance

means to save it from invalidity. Cutting v. City of

Portland, 802 F.3d 79, 84–85 & n.8 (1st Cir. 2015)

(“set[ting] to one side” a city’s understanding of its

own law if the city’s reading would “make [the] law

more vulnerable to constitutional challenge”); Hoye v.

City of Oakland, 653 F.3d 835, 848 (9th Cir. 2011)

(honoring a city’s reading of its own ordinance only to

“save” it from First Amendment challenge, “not to

condemn” it).

On the opposite side are the Fourth, Fifth, Sixth,

Seventh, Eighth, Tenth, and Eleventh Circuits, which

do not use their own interpretations but instead rely

exclusively on state authorities to say what state law

means, even if state construction renders a law

unconstitutional. Va. Soc’y for Human Life, Inc. v.

Caldwell, 152 F.3d 268, 270 (4th Cir. 1998) (rejecting

a federal narrowing construction that would not

“prevent the state from prosecuting” the plaintiff

because federal narrowing constructions are “not

binding upon state courts”); Beckerman v. City of

Tupelo, 664 F.2d 502, 509 (5th Cir. 1981) (refusing to

“sit as a ‘super’ state legislature” and “impose [its]

own narrowing construction onto [an] ordinance” that

was not “offered by the Tupelo city council or the

Mississippi courts”); Eubanks v. Wilkinson, 937 F.2d

1118, 1127–28 (6th Cir. 1991) (refusing to “draft a

new limiting condition, thus reframing the [state]

statute”); Kucharek v. Hanaway, 902 F.2d 513, 517

(7th Cir. 1990) (federal narrowing constructions

cannot prevent “the state [from] prosecut[ing] people

for violating the statute as broadly construed”);

United Food & Commercial Workers Int’l Union v.

IBP, Inc., 857 F.2d 422, 431 (8th Cir. 1988) (federal

courts “may not impose their own narrowing

construction” on state law) (cleaned up); Z.J. Gifts D4, LLC v. City of Littleton, 311 F.3d 1220, 1233–34

(10th Cir. 2002) (“Federal courts lack jurisdiction

authoritatively to construe state legislation.”)

(cleaned up); Dimmitt v. City of Clearwater, 985 F.2d

1565, 1572 (11th Cir. 1993) (refusing to “interfere[]

with the state legislative process” by rewriting a state

statute “in the guise” of a narrowing construction).

In other words, seven circuits agree that “[t]he

principles of federalism forbid a federal appellate

court to arrogate the power to rewrite a municipal

ordinance,” Hill v. City of Houston, 789 F.2d 1103,

1112 (5th Cir. 1986), affirmed by City of Houston v.

Hill, 482 U.S. 451 (1987), and that nonbinding federal

narrowing constructions are incapable of protecting

First Amendment rights against state-law enforcement, Va. Soc’y for Human Life, 152 F.3d at 270;

Kucharek, 902 F.2d at 517.

The only reason the sidewalk counselors lost their

challenge is because they were unfortunate enough to

reside in the Third Circuit, one of three circuits that

erroneously applies its own version of “constitutional

avoidance” to uphold invalid state laws. It cannot be

that fundamental rights turn on such geographic bad

luck. Only this Court may resolve the entrenched

circuit conflict, ensure that federalism is respected,

and stop lower courts from offering plaintiffs empty

words and no real protection.

II. The Third Circuit’s ruling that the

ordinance is content neutral and narrowly

tailored

conflicts

with

this

Court’s

precedent and other circuits’ reading of

McCullen.

To save Pittsburgh’s anti-speech ordinance, the

Third Circuit not only had to rewrite it, the court also

had to reject McCullen’s narrow-tailoring standard

and adopt instead a new, intermediate-scrutiny test

that conflicts with three circuits and aligns with none.

This split also warrants review.

A. This Court’s precedent establishes that

Pittsburgh’s ordinance is content- and

viewpoint-based, not content neutral.

Under the First and Fourteenth Amendments,

states cannot restrict expression based on message,

ideas, subject matter, or content. Reed, 135 S. Ct. at

2226. Laws that apply “to particular speech because

of the topic discussed or the idea or message

expressed” are content based, id. at 2227,

presumptively unconstitutional, and must withstand

strict scrutiny to survive, id. at 2226. Only an

exceptional law that is “narrowly tailored to serve

compelling state interests” hits that high mark. Ibid.

Pittsburgh’s buffer-zone ordinance is blatantly

content- and viewpoint-based. The City allows others

to speak at the same time (whenever), in the same

place (the buffer zone), and in the same manner

(quietly face-to-face) as the sidewalk counselors wish

to express themselves. Only one difference exists: the

topic of the sidewalk counselors’ speech. The City

allows peaceful one-on-one conversations in the zone

about the weather, directions, sports, or any

discussion it deems—in its discretion—purely social

or random. JA334, 692a–93a; App45a. But Pittsburgh

bans peaceful one-on-one conversations in the zone it

views as “advocacy or demonstration,” Appellees Br.

37, including speech about whether an unborn baby is

alive or a human being, id. at 11, 13, 18–19.

What one says, not how one says it, determines

whether Pittsburgh labels speech “demonstrating” or

not. The City cannot rely on the visible manifestations

conventionally associated with demonstrations or

picketing to render the ordinance content neutral:

sidewalk counseling involves no outward protest or

display of opinion, yet the City bans it anyway. No

further evidence is needed that Pittsburgh’s buffer

zone prohibits speech “based on the message” the

sidewalk counselors convey. Reed, 135 S. Ct. at 2227.

It makes no difference that (at least on its face) the

ordinance bars all face-to-face conversations about

abortion in the buffer zone. The “exclusion of several

views on [the same subject] is just as offensive to the

First Amendment as exclusion of only one. . . . The

[notion] that debate is not skewed so long as multiple

voices are silenced is simply wrong; the debate is

skewed in multiple ways.” Rosenberger v. Rector &

Visitors of Univ. of Va., 515 U.S. 819, 831–32 (1995).

Disfavoring “[i]deological messages,” as Pittsburgh’s ordinance does, is “a paradigmatic example of

content-based discrimination.” Reed, 135 S. Ct. at

2230. The law requires city officials to examine

identical, face-to-face conversations and judge which

contain advocacy. That “obvious content-based

inquiry does not evade strict scrutiny review simply

because” a buffer zone is involved. Id. at 2231. Rather,

the City’s prophylactic ban on advocacy on public

ways and sidewalks makes its content-based discrimination worse. McCullen, 573 U.S. at 492–93.

On top of that, the ordinance’s intended operation shows the law is content- and viewpoint-based.

Pittsburgh enacted it to “provide unobstructed access”

to abortion clinics, App.192a, even though its laws

already barred obstructing traffic, passageways, and

entrances. The ordinance’s only added value is

suppressing ideological messages that may dissuade

women from clinics’ doors. In fact, the City Council’s

hearing provided no grounds for an advocacy ban

other than the deterrent effect of pro-life speech. The

City Council Chair who sponsored the ordinance

bragged it was to prevent “verbal assault.” JA402a.

But protecting women from pro-life messages is

not content neutral. “[D]isfavoring ideas that offend

discriminates based on viewpoint, in violation of the

First Amendment.” Iancu v. Brunetti, 139 S. Ct. 2294,

2301 (2019) (cleaned up). To the extent this rule is

inconsistent with Hill, 530 U.S. at 716–18, Hill

should be distinguished, narrowed, or overruled,

McCullen, 573 U.S. at 477. Prohibiting speech based

on the offense or discomfort of hearers is content

based, id. at 481; Erznoznik, 422 U.S. at 209–12, and

it is the City Council’s express purpose here, JA402a.

How the City fleshed out the ordinance also shows

it is content based. Pittsburgh’s painted buffer zones

are on public sidewalks and streets located only in

front of the City’s two abortion clinics. App.72a, 81a,

142a, 165a–66a. Pittsburgh’s ordinance has no

speech-suppressing impact anywhere else. In its real

operation and effect, the City’s buffer-zone law

targets speech on one subject: abortion. Veiled

content-based restrictions on speech such as this are

just as unlawful as their more blatant counterparts.

Hill, 530 U.S. at 767 (Kennedy, J., dissenting).

Because Pittsburgh’s buffer-zone ordinance is

content- and viewpoint-based, whether one examines

its conditions, purpose, or real-world effect, the Third

Circuit erred in refusing to apply strict scrutiny, as

this Court’s precedents demand. The City never made

a serious effort to meet that standard because it

cannot; as explained below, the ordinance fails even

intermediate-scrutiny review.

B. To hold the ordinance narrowly tailored,

the Third Circuit shifted the burden of

proof to the sidewalk counselors, distorting McCullen and creating a conflict with

three other circuits.

Concerned by lower courts “downplay[ing]” the

“serious burdens” that buffer zones “impose” on

protected speech, McCullen explained why that

burden is, in fact, “especially significant.” 573 U.S. at

487–89. But the rule McCullen applied is the usual

intermediate-scrutiny standard for content-neutral

time, place, or manner restrictions: they “must be

narrowly tailored to serve a significant governmental

interest.” Id. at 486 (cleaned up).

Where McCullen broke new ground is clarifying

what it means to be narrowly tailored and not “burden

substantially more speech than is necessary to

further the government’s legitimate interests.” Ibid.

(cleaned up). To meet that benchmark, Pittsburgh

must show it did not “too readily forego[] options that

could serve its interests just as well, without substantially burdening the kind of speech in which petitioners wish to engage.” Id. at 490. The narrow-tailoring

comparison McCullen requires is thus between the

burden the City’s buffer zone imposes on the sidewalk

counselors’ speech, and the burden on their speech

imposed by “less intrusive means of addressing” the

same concerns. Id. at 492.

While McCullen thus requires “the government

[i.e., the City to] demonstrate that alternative

measures that burden substantially less speech

would fail to achieve the government’s interests,” id.

at 495 (emphasis added), the Third Circuit switched

the burden of proof by inventing a novel precondition:

the sidewalk counselors must first prove that the

ordinance imposed a “significant,” App.5a, 29a, 32a,

as opposed to “de minimis,” App.29a, burden on their

speech.

This burden-shifting rule finds no basis in

McCullen, which does not distinguish between socalled “de minimis” and “significant” burdens on

speech. And rightly so, for this Court recognizes “no

de minimis exception for a speech restriction that

lacks sufficient tailoring.” Lorillard Tobacco Co. v.

Reilly, 533 U.S. 525, 567 (2001).

The Third Circuit held that Pittsburgh’s noadvocacy zone imposed a trivial burden on sidewalk

counselors’ speech. App.32a–33a. But McCullen held

that any fixed buffer zone around abortion clinics

(1) compromises sidewalk counselors’ ability to

initiate face-to-face conversations, (2) brands them as

untrustworthy or suspicious, (3) compels them to stop

speaking or raise their voices and betray their

compassionate message, and (4) makes leafletting

more difficult. 573 U.S. at 487–90. Each one of these

speech burdens is significant; together, the squelching of pro-life counselors’ speech is severe.

No other circuit reads McCullen this way. To the

contrary, the First, Fourth, and Tenth Circuits all

hold that once a plaintiff shows that a time, place, or

manner restriction impacts protected speech

(especially in a public forum), the state must prove

that less-restrictive measures would fail to achieve its

interests. They employ no burden shifting or

significant-burden-on-speech analysis. United States

v. Ackell, 907 F.3d 67, 77 (1st Cir. 2018) (“First

Amendment scrutiny” applies under McCullen once a

“law restricts access to traditional public fora”)

(cleaned up); Rideout v. Gardner, 838 F.3d 65, 74 (1st

Cir. 2016) (applying McCullen’s narrow-tailoring

analysis to “ballot selfies” that burdened political

speech outside of a traditional public forum without

analyzing the speech-burden’s significance); Reynolds

v. Middleton, 779 F.3d 222, 226, 231–32 (4th Cir.

2015) (if “speech [is] restricted,” under McCullen the

government must “prove that it actually tried other

methods to address the problem”); Verlo v. Martinez,

820 F.3d 1113, 1135–37 (10th Cir. 2016) (McCullen’s

narrow-tailoring analysis applies to speech restrictions meant to protect access and safety in “public

fora,” including the plaza outside a state courthouse).

If the sidewalk counselors here were litigating

under the law of the First, Fourth, or Tenth Circuits,

the outcome would be exactly the opposite. The Third

Circuit admitted that Pittsburgh failed to “tr[y] or

seriously consider[ ] arrests, prosecutions, or targeted

injunctions” under existing laws, App.32a—all

significantly less restrictive means of serving the

City’s ends that have the benefit of targeting wrongdoers specifically, rather than speakers generally. In

fact, the record shows no arrests or prosecutions

under existing laws at all. App.32a–33a, 48a. And if

added protections were needed, McCullen describes

numerous options that would suppress much less

speech than Pittsburgh’s buffer zone. 573 U.S. at 491–

93. Because the City’s ordinance is not narrowly

tailored under McCullen, it fails even intermediate

scrutiny. 573 U.S. at 490–92.

Such divergence in outcome by circuit cannot

stand. This Court’s review is essential to restoring

McCullen’s legal framework and bringing the Third

Circuit into line with other courts of appeals.

III.This Court’s precedent establishes that

Pittsburgh’s ordinance is overbroad and

constitutionally invalid.

Pittsburgh’s ordinance violates the First Amendment for the added reason that “a substantial number

of its applications are unconstitutional, judged in

relation to the [law’s] plainly legitimate sweep.”

United States v. Stevens, 559 U.S. 460, 473 (2010)

(cleaned up). The City’s ability to restrict speech on

public sidewalks and streets is extremely limited.

McCullen, 573 U.S. at 477. Yet Pittsburgh

prophylactically bans “passing out literature or . . .

[any form of] advocacy,” Appellees Br. 22, including

displaying signs, id. at 44–45, on traditional public

fora outside abortion clinics. And the City does this

whether protected expression (1) interferes with

access or safety, (2) occurs while the clinic is open or

closed, or (3) involves proven law-abiders or lawbreakers. In other words, the ordinance punishes prolife and other speech without regard to whether doing

so advances any City interests at all.

Fundamentally, the ordinance is based on the

“mistaken premise” that all speakers outside abortion

clinics pose serious dangers to access and safety. Sec’y

of State of Md. v. Joseph H. Munson Co., Inc., 467 U.S.

947, 966 (1984). But the majority of sidewalk counselors, 40-Days-for-Life participants, and others who

speak outside abortion clinics engage only in peaceful

expression in public places. Prohibiting an entire

“universe of expressive activity,” like advocacy or

demonstration, Bd. of Airport Comm’rs of City of L.A.

v. Jews for Jesus, Inc., 482 U.S. 569, 574 (1987), on

public sidewalks is simply “too imprecise,” Joseph H.

Munson Co., 467 U.S. at 968. Pittsburgh’s law

forecloses swathes of lawful protests or other displays

of opinion on countless subjects. Any harm caused by

individually prosecuting the (hypothetical) rare block

or outburst is greatly outweighed by the ordinance’s

(real-world) serial muting of protected speech. Bates

v. State Bar of Ariz., 433 U.S. 350, 380 (1977).

The overbreadth of Pittsburgh’s law is even more

apparent when considering the “constitutional difficulty” of policing the “murky” line between advocacy

and non-advocacy speech. Jews for Jesus, 482 U.S. at

576. One person’s activism is another person’s

mundane remark, and as explained at length above,

the City bars only face-to-face conversations that

involve the expression of pro-life views. Giving police

such “virtually unrestrained power to arrest and

charge persons with a violation of the [ordinance] is

unconstitutional because the opportunity for abuse

. . . is self-evident.” Ibid. (cleaned up). Because the

law “in all its applications falls short of constitutional

demands,” it is overbroad and invalid. Joseph H.

Munson Co., 467 U.S. at 965 n.13.

Nor would the Third Circuit’s proposed narrowing

of the ordinance change this result. Even if the City

allowed sidewalk counseling and literature distribution in the zone, it would still ban all conventional

forms of advocacy—including praying, holding signs,

sporting buttons, or wearing symbolic clothing. Cf.

Jews for Jesus, 482 U.S. at 575. None of these speech

activities inherently harms abortion clinic safety and

access. If Pittsburgh is concerned with obstruction or

battery, it has ample means of deterring those illegal

activities without targeting speech. “A painted line on

the sidewalk [may be] easy to enforce, but the prime

objective of the First Amendment is not efficiency.”

McCullen, 573 U.S. at 495. To the extent Hill

indicated a buffer zone might somehow “assist”

speakers in communicating their message, 530 U.S.

at 727, it should be distinguished, narrowed, or

overruled, id. at 791 (Kennedy, J., dissenting).

Relying on Hill, the Third Circuit deferred to the

City’s determination of what restriction on speech is

overbroad and rejected the sidewalk counselors’

overbreadth claim. App.35a (citing a Third Circuit

decision that quotes Hill, 530 U.S. at 727, for the

proposition that courts must defer to a city council’s

judgment in the overbreadth context). “But the First

Amendment protects against the [g]overnment; it

does not leave us at the mercy of noblesse oblige.”

Stevens, 559 U.S. at 480. Impartial courts must decide

whether a law is “substantially overbroad, and

therefore invalid.” Id. at 482. They cannot allow the

States to construe the Free Speech Clause for them.

IV.This case is an ideal vehicle to resolve

conflicts on questions of vital importance

that impact free speech nationwide.

This case is an ideal vehicle to address the

questions presented for four reasons. First, the circuit

conflict on the federalism issue is entrenched.

Because the Court has not addressed this issue in

quite some time, a minority of courts of appeals have

veered off course. Only this Court can restore respect

for state sovereignty and ensure that all federal

courts defer to states’ and cities’ authoritative

construction of their own laws.

Second, McCullen corrected lower courts’ misconception that buffer zones impose no meaningful

burdens on protected speech. But the Third Circuit

construed McCullen’s narrow-tailoring rule out of

existence and created a conflict with three other

courts of appeals in the process. Unless this Court

steps in, McCullen’s rule will be a nullity.

Third, under the correct legal standard, this case’s

outcome is not close. The Third Circuit acknowledged

that Pittsburgh’s reading of its law was content-based

and not narrowly tailored under McCullen. App.18a–

20a; Oral Argument at 27:50–58, Bruni v. City of

Pittsburgh (3rd Cir. Feb. 7, 2019), https://bit.ly/

2WkdH1M (noting the “record here [is] full of contentbased interpretations” of the ordinance). That is why

it had to change not only what the ordinance forbids

but also the intermediate-scrutiny standard so that

the City could prevail. App.19a–33a.

Fourth, Pittsburgh’s buffer-zone law is an overbroad, prophylactic, and gratuitous ban on protected

speech in a traditional public forum that obstructs

sidewalk counselors’ ministry to women. This Court

should so hold and end lower courts’ attempts to save

the City’s unconstitutional law, thwarting sidewalk

counselors’ First Amendment claims. Given the law’s

obvious invalidity, Petitioners are entitled to a

meaningful ruling that will actually protect their

speech and expression.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

KEVIN H. THERIOT

ELISSA M. GRAVES

ALLIANCE DEFENDING

FREEDOM

15100 N. 90th Street

Scottsdale, AZ 85260

(480) 444-0020

LAWRENCE G. PALADIN

PALADIN LAW OFFICES, PC

15 Duff Road, Suite 6C

Pittsburgh, PA 15235

(412) 244-0826

MARCH 2020

KRISTEN K. WAGGONER

JOHN J. BURSCH

Counsel of Record

DAVID A. CORTMAN

RORY T. GRAY

ALLIANCE DEFENDING

FREEDOM

440 First Street NW

Suite 600

Washington, DC 20001

(616) 450-4235

jbursch@ADFlegal.org

APPENDIX

APPENDIX TABLE OF CONTENTS

United States Court of Appeals

for the Third Circuit,

Opinion in 18-1084

Issued October 18, 2019 ........................................... 1a

United States District Court

for the Western District of Pennsylvania,

Memorandum and Order

Re: Motion for Summary Judgment

Issued November 16, 2017 ..................................... 42a

United States Court of Appeals

for the Third Circuit,

Opinion in 15-1755

Issued June 1, 2016................................................ 74a

United States District Court

for the Western District of Pennsylvania,

Memorandum and Order

Re: Preliminary Injunction and Dismissal

Issued March 6, 2015 ........................................... 141a

United States Court of Appeals

for the Third Circuit,

Order Denying Petition for Rehearing En Banc

Issued November 27, 2019 ................................... 189a

U.S. Constitutional Provisions ............................ 191a

Pittsburgh Code of Ordinances,

Chapter 623 .......................................................... 192a

United States District Court

for the Western District of Pennsylvania,

Order Granting Permanent Injunction in

Brown v. City of Pittsburgh

Issued December 17, 2009 ................................... 196a

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 18-1084

NIKKI BRUNI; JULIE COSENTINO:

CYNTHIA RINALDI: KATHLEEN LASLOW:

PATRICK MALLEY,

Appellants

CITY OF PITTSBURGH; PITTSBURGH CITY

COUNCIL; MAYOR PITTSBURGH

On appeal from the United States District Court for

the Western District of Pennsylvania

(W.D. Pa. No. 2-14-cv-01197)

Honorable Cathy Bissoon, U.S. District Judge

Argued: February 6, 2019

Before: HARDIMAN, KRAUSE, and GREENBERG,

Circuit Judges

(Opinion Filed: October 18, 2019)

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

Counsel for Defendant-Appellees City of

Pittsburgh, Pittsburgh City Council, Mayor

Pittsburgh

William A. Bonner, I

12 Veterans Square

P.O. Box 259

* Matthew S. McHale withdrew as counsel on July 3, 2019,

prior to the issuance of this opinion.

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

Municipal Lawyers

Curiae

International

_______________

OPINION OF THE COURT

_______________

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.

Pittsburgh, Pa., Code § 623.04 (2005) [hereinafter

“the Ordinance” or “Pitts. Code”]. In relevant part, the

Ordinance states that “[n]o person or persons shall

knowingly congregate, patrol, picket or demonstrate”

in the prescribed zone. Id. Outside of a Planned

Parenthood in downtown Pittsburgh, Plaintiffs

engage in leafletting and “peaceful . . . one-on-one

conversations” conducted “at a normal conversational

level and distance” intended to dissuade listeners

from obtaining an abortion. Appellants’ Br. 9, 17–18.

As the City has asserted that the Ordinance applies

to this speech, known as “sidewalk counseling,”

Plaintiffs argue that the Ordinance is facially

unconstitutional under the First Amendment and the

District Court erred in granting summary judgment

in the City’s favor. Because we conclude that the

Ordinance does not cover sidewalk counseling and

thus does not impose a significant burden on speech,

we will affirm.

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

The background summarized here is drawn from the

record and our prior opinion in this case, Bruni v. City of

Pittsburgh (Bruni I), 824 F.3d 353, 357–59 (3d Cir. 2016).

Because we are reviewing a district court’s grant of summary

judgment, we consider the facts in the light most favorable to the

non-movants and draw all reasonable inferences in their favor.

See Hugh v. Butler Cty. Family YMCA, 418 F.3d 265, 266–67 (3d

Cir. 2005).

The same was true of Allegheny Reproductive Health

Center, another clinic that provides abortions, which, in addition

to seeing hundreds of protestors, was fire bombed, intentionally

flooded, and had its windows shot out.

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 reported being

personally harassed and prevented from entering the

clinic, being yelled at through the glass doors of the

clinic, and seeing patients being surrounded on the

sidewalk. A Planned Parenthood counselor described

patients entering the clinic in a “psychological state

[of] situational crisis,” threatening their health. JA

355a. And “without [police] supervision,” the

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,

The City’s designated representative, who had been a

member of the overtime detail before it was disbanded, likewise

attested that the criminal laws were not adequate to deal with

protestors and demonstrators outside the clinic because the

obstructive conduct “[wasn’t] rising to those levels. It was all the

underlying stuff in between.” JA 1057a.

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

Pitts. Code § 623.04. The Council also ratified a

preamble that set forth the City’s goals in adopting

the Ordinance, including “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.” Id. § 623.01.

As originally passed, the Ordinance also included

an “[e]ight-foot personal bubble zone,” extending one

hundred feet around clinics, in which people could not

be approached without their consent “for the purpose

Although the Chapter does not define “health care

facility,” a “[m]edical [o]ffice/[c]linic” 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.” Pitts. Code §

623.02. Penalties for violating the Ordinance range 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.

10a

of passing a leaflet or handbill to, displaying a sign to,

or engaging in oral protest, education or counseling.”

Id. § 623.03. Following a facial challenge to the

Ordinance, we concluded that the Ordinance was

content neutral and each zone was constitutionally

permissible but the combination of the two zones was

not. See Brown v. City of Pittsburgh, 586 F.3d 263,

273, 276–81 (3d Cir. 2009). On remand, the City chose

to abandon the floating bubble zone and retain only

the fixed buffer zone that prohibited “congregat[ing],

patrol[ling], picket[ing] or demonstrat[ing].” Pitts.

Code § 623.04. That choice was effectuated by the

District Court, which permanently enjoined the

bubble zone and required the City to demarcate any

fixed buffer zone prior to enforcement.5

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

The injunction also required that the buffer zone be

construed to prohibit “any person” from “picket[ing] or demonstrat[ing]” within the zone, including those allowed to enter the

zone pursuant to their official duties. See Brown, 586 F.3d at

275.

11a

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

to engage with their desired audience through either

6 We will use the term “sidewalk counseling” in this opinion

with the meaning given to it by Plaintiffs. By contrast, the title

“sidewalk counselor” has sometimes been claimed by those who

engage in “‘in your face’ yelling . . . pushing, shoving, and

grabbing” consistent with aggressive demonstration. Schenck v.

Pro-Choice Network of W. N.Y., 519 U.S. 357, 363 (1997). As

Plaintiffs here have explained, however, such conduct does not

constitute sidewalk counseling as they use the term and is

“counter-productive to [their] message of kindness, love, hope,

gentleness, and help.” JA 574a.

12a

speech or leafleting.

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 antiabortion 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 contentneutral time, place, and manner regulation, the

Supreme Court decided McCullen v. Coakley, striking

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. 573 U.S. 464, 493–97

(2014). 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

7 The movement describes its mission as “to bring together

the body of Christ in a spirit of unity during a focused 40 day

campaign of prayer, fasting, and peaceful activism, with the

purpose of repentance, to seek God’s favor to turn hearts and

minds from a culture of death to a culture of life, thus bringing

an end to abortion.” Bruni v. City of Pittsburgh, 283 F. Supp. 3d

357, 363 (W.D. Pa. 2017).

13a

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 42 U.S.C. §

1983, under the First and Fourteenth Amendments.

Bruni I, 824 F.3d at 359. The District Court granted

the City’s motion to dismiss 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

8 Plaintiffs also filed a motion for a preliminary injunction

to prevent the City from enforcing the Ordinance against them,

which the District Court denied and Plaintiffs did not appeal.

Bruni I, 824 F.3d at 359–60. In addition to dismissing Plaintiffs’

First Amendment claims, the District Court granted the City’s

motion to dismiss Plaintiffs’ Fourteenth Amendment Due

Process Clause challenge, a decision we affirmed in Bruni I and

that therefore is not on appeal here. See id. at 360, 374–75.

Earlier in this litigation, Plaintiffs voluntarily dismissed their

as-applied challenges to the Ordinance, their claim under the

Equal Protection Clause, and their claim of selective

enforcement against the mayor. Id. at 359 n.5.

14a

as in McCullen to demonstrate “either that

substantially less-restrictive alternatives were tried

and failed, or that the alternatives were closely

examined and ruled out for good reason,” id. at 370.

We thus remanded for factfinding on these issues, as

well as a determination about “the proper scope of the

Ordinance.” Id. at 357, 374. Notwithstanding our

earlier holding as to content neutrality in Brown, 586

F.3d at 273, 275, 277, we also directed the District

Court to consider whether the Ordinance should still

be considered content neutral in light of 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.

15a

II. Jurisdiction and Standard of Review

The District Court had jurisdiction under 28

U.S.C. § 1331, and we have jurisdiction under 28

U.S.C. § 1291. We review a district court’s grant or

denial of summary judgment de novo, see EEOC v.

Allstate Ins. Co., 778 F.3d 444, 448 (3d Cir. 2015), and

may affirm on any basis supported by the record,

Gorum v. Sessoms, 561 F.3d 179, 184 (3d Cir. 2009).

Summary judgment is appropriate only where “there

is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). In the context of a First Amendment claim, we “examine independently the facts in

the record and ‘draw our own inferences’ from them.”

Tenafly Eruv Ass’n v. Borough of Tenafly, 309 F.3d

144, 157 (3d Cir. 2002) (quoting Christ’s Bride

Ministries, Inc. v. Se. Pa. Transp. Auth., 148 F.3d 242,

247 (3d Cir. 1998)). Like the District Court, however,

we review the facts in the light most favorable to the

nonmoving party. See Hugh, 418 F.3d at 267.

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

9 For the reasons articulated in Bruni I, we treat Plaintiffs’

free speech and free press claims together. See 824 F.3d at 373

(“Plaintiffs’ free press claim is . . . 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.”).

16a

Ordinance is overbroad. After providing an overview

of the general framework that guides our analysis, we

address each of these arguments.

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

17a

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 ‘narrowly tailored to

serve a significant governmental interest.’” Bruni I,

824 F.3d at 363–64 (quoting Madsen v. Women’s

18a

Health Ctr., Inc., 512 U.S. 753, 764 (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

10 Although the parties begin their briefing with an application of intermediate scrutiny, we follow the Supreme Court’s

lead in McCullen by addressing first whether the Ordinance is

content based because the answer to that question determines

the correct level of scrutiny to apply. See 573 U.S. at 478–79.

11 Plaintiffs make additional arguments in passing, but they

are not persuasive. First, Plaintiffs contend that the City’s purpose in adopting the Ordinance was to “target anti-abortion

content” because the City Council’s discussion about the

Ordinance “centered entirely on abortion and the speech outside

of abortion facilities in Pittsburgh.” Appellants’ Br. 40–41. But

the Supreme Court explicitly rejected this argument in

McCullen. See 573 U.S. at 481–82 (“States adopt laws to address

the problems that confront them. The First Amendment does not

require States to regulate for problems that do not exist.”

(quoting Burson v. Freeman, 504 U.S. 191, 207 (1992) (plurality

opinion))). Second, Plaintiffs argue that the Ordinance is content

based as applied because it is enforced only outside of

reproductive health facilities and therefore affects only abortionrelated speech. Plaintiffs did not make this argument at

summary judgment below, and it is therefore forfeited. See

Keenan v. City of Philadelphia, 983 F.2d 459, 471 (3d Cir. 1992).

In any event, “a facially neutral law does not become content

based simply because it may disproportionally affect speech on

certain topics.” McCullen, 573 U.S. at 480. Reed, decided one

year after McCullen, does not speak to these aspects of

McCullen’s analysis.

19a

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

12 Although Plaintiffs contend that the City “enforces” the

Ordinance “to suppress [their] leafletting and sidewalk

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.

20a

nothing in the plain language of the Ordinance

supports a construction that prohibits peaceful oneon-one conversations on any topic or conducted for

any purpose at a normal conversational volume or

distance. In short, the Ordinance as written does not

prohibit the sidewalk counseling in which Plaintiffs

seek to engage within the zone.

No 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 that

would make it constitutional, it will be upheld.”13

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.

13 As we said in Brown, “[t]his principle of interpretation is

consistent with Pennsylvania law.” 586 F.3d at 274 n.13 (citing

Commonwealth v. Monumental Props., Inc., 329 A.2d 812, 827

(Pa. 1974); and Dole v. City of Philadelphia, 11 A.2d 163, 168–69

(Pa. 1940)). And this is a particularly compelling case in which

to apply the doctrine given the constitutional concerns inherent

in restricting this kind of speech. As the Court explained in

McCullen, “‘one-on-one communication’ is ‘the most effective,

fundamental, and perhaps economical avenue of political

discourse.’” 573 U.S. at 488 (quoting Meyer v. Grant, 486 U.S.

21a

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

414, 424 (1988)). Indeed, “[l]eafletting and commenting on

matters of public concern are classic forms of speech that lie at

the heart of the First Amendment.” Id. at 489 (quoting Schenck,

519 U.S. at 377).

14 That is not to say that the City’s interpretation of the

Ordinance is irrelevant—it is a consideration in a court’s

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 v. State Coll. Area Sch. Dist., 240 F.3d 200,

215–16, 215 n.10 (3d Cir. 2001); 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

22a

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 Frisby v. Schultz, 487 U.S. 474,

483 (1988) (“To the extent they endorsed a broad

reading of the ordinance, the lower courts ran afoul of

the well-established principle that statutes will be

interpreted to avoid constitutional difficulties.”).

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.” Pitts. Code § 623.03. Those are not the

activities that remain prohibited in the zone, and

“when the legislature uses certain language in one

part of the statute and different language in another,

the court assumes different meanings were intended.”

Sosa v. Alvarez-Machain, 542 U.S. 692, 711 n.9 (2004)

(quoting 2A N. Singer, Statutes and Statutory

Construction § 46:06, at 194 (6th rev. ed. 2000)).

The Ordinance prohibits four—and only four—

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.

23a

activities within the zone: “congregat[ing],”

“patrol[ling],” “picket[ing],” and “demonstrat[ing].”

Pitts. Code § 623.04. And none of those terms, as

commonly understood, encompasses the sidewalk

counseling in which Plaintiffs engage.15

To “congregate” means “to collect into a group or

crowd.” Congregate, Merriam-Webster’s Collegiate

Dictionary 262 (11th ed. 2005) [hereinafter MerriamWebster’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 “picket” is

defined as “[a] person or group of persons present

15 In its briefing and at oral argument, the City justified its

interpretation by noting that in Schenck, the injunction at issue

referred to “sidewalk counseling” as a “form of demonstrating,”

and the Supreme Court did not reject that characterization. See

Appellees’ Br. 48 (citation omitted). But the Court made clear

that the term as used by some protestors in that case was

misleading given their aggressive actions, see Schenck, 519 U.S.

at 363, 381–82, and, as discussed, see supra note 6, such conduct

falls far outside Plaintiffs’ definition of sidewalk counseling.

24a

outside a building to protest”). And to “demonstrate”

is defined as “to make a demonstration,” which is

defined in turn as “an outward expression or display”

and “a public display of group feelings toward a

person or cause.” Demonstrate, Merriam-Webster’s

332; see also Demonstrate, American Heritage 484

(defining “demonstrate” as “[t]o participate in a public

display of opinion”).

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 oneon-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

Perhaps because of this disconnect between the

Ordinance’s text and the specific expressive activities to which

the parties have assumed the Ordinance applies, the City’s own

witness struggled during his deposition to explain which specific

prohibition was even applicable to Plaintiffs’ sidewalk counseling. For example, when asked “[w]hat part of the Ordinance”

would prohibit a sidewalk counselor from crossing into the buffer

zone while talking to a patient, the City’s designated witness

replied, “[c]all it congregating, patrolling, picketing, or

demonstrating, or any name you wish to give it.” JA 337a.

25a

Supreme Court precedent. No doubt due to the easily

identifiable nature and visibility of “congregat[ing],

patrol[ling], picket[ing] or demonstrat[ing],” Pitts.

Code § 623.04, the Court has repeatedly considered

regulation of those activities to be based on the

manner in which expressive activity occurs, not its

content, and held such regulation content neutral. See

Madsen, 512 U.S. at 759, 763–64 (addressing the

precise language at issue here, “congregating,

picketing, patrolling, [and] demonstrating,” and

concluding that the injunction prohibiting those

activities was content neutral); see also Snyder v.

Phelps, 562 U.S. 443, 456 (2011); Hill, 530 U.S. at 721;

Schenck, 519 U.S. at 383–85; United States v. Grace,

461 U.S. 171, 181–82 (1983).17 Nor does Reed alter

that conclusion. See Reed, 135 S. Ct. at 2228–29.

In short, the doctrine of constitutional avoidance

counsels that we impose a limiting construction

where, as here, a statute has not been construed by a

state court and is not only susceptible to a narrowing

construction but also demands that construction on

17 We have continued to rely on Hill since McCullen and

Reed were handed down, see, e.g., Turco v. City of Englewood,

935 F.3d 155, 165 (3d Cir. 2019) (declining to strike down eightfoot buffer zone as a matter of law because “such a conclusion

would be directly at odds with the Supreme Court’s decision in

Hill v. Colorado” (citation omitted)), as have some of our sister

circuits, e.g., March v. Mills, 867 F.3d 46, 64 (1st Cir. 2017); Act

Now to Stop War & End Racism Coal. & Muslim Am. Soc’y

Freedom Found., 846 F.3d 391, 403–04 (D.C. Cir. 2017). We note,

however, that other Courts of Appeals have observed that, even

if “neither McCullen nor Reed overruled Hill, so it remains

binding on us,” the content neutrality holding of Hill may be

“hard to reconcile with both McCullen and Reed,” Price v. City of

Chicago, 915 F.3d 1107, 1109 (7th Cir. 2019) (Sykes, J.), petition

for cert. filed, No. 18- 1516 (U.S. June 6, 2019).

26a

its face. See Am. Booksellers, 484 U.S. at 397; Brown,

586 F.3d at 274; Saxe, 240 F.3d at 215 n.10. Because

the Ordinance, as properly interpreted, does not

extend to sidewalk counseling—or any other calm and

peaceful one-on-one conversations—there is no need

for law enforcement “to examine the content of the

message . . . to determine whether a violation has

occurred.” McCullen, 573 U.S. at 479 (citation

omitted). The Ordinance so read is thus content

neutral and subject to intermediate scrutiny.

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

18 To satisfy intermediate scrutiny, the government bears

the burden of demonstrating that a restriction on speech is

“narrowly tailored to serve a significant governmental interest”

and “leave[s] open ample alternative channels for communication of the information.” McCullen, 573 U.S. at 477 (quoting

Ward, 491 U.S. at 791). Plaintiffs do not dispute the “ample

alternatives” prong and, with its narrowing construction, “the

limited nature of the prohibition makes it virtually self-evident

that ample alternatives remain.” Frisby, 487 U.S. at 483. We

therefore focus our inquiry, as do the parties, on the issue of

narrow tailoring.

27a

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

Pitts. Code § 623.01); see McCullen, 573 U.S. at 487,

496–97 (describing these interests as “undeniably

significant” interests that are “clearly serve[d]” by

buffer zones); see also Turco v. City of Englewood, 935

F.3d 155, 166 (3d Cir. 2019) (recognizing the

government’s significant interest in “protecting the

health and safety of its citizens, which ‘may justify a

special focus on unimpeded access to health care

facilities and the avoidance of potential trauma to

patients associated with confrontational protests’”)

(citation omitted). Instead, Plaintiffs argue that the

Ordinance is not narrowly tailored to those interests.

To be narrowly tailored, a regulation must not

“burden substantially more speech than is necessary

to further the government’s legitimate interests.”

19 To the extent Plaintiffs argue that the City’s stated

interests were not substantiated on remand, the record—

including reports of violent incidents, obstruction of patients’

ingress and egress, and aggressive confrontations—establishes

otherwise. See supra Section I.A.1. Plaintiffs’ additional

argument that there has been no obstructive conduct preventing

access to the clinic’s entrance in recent years and, therefore, that

the Ordinance is no longer necessary is also belied by the record.

For starters, there is evidence in the record to the contrary. For

example, a clinic escort declared in 2014 that she was “aware of

incidents at [Planned Parenthood] in which escorts were pushed

by a protester and where protesters placed their hands on

patients and thrust their leaflets inside patients’ coat pockets or

handbags.” JA 709a–10a. More importantly, the fact that an

otherwise constitutional restriction on speech is successful in

serving the interests for which it was intended is hardly a reason

to strike it down.

28a

McCullen, 573 U.S. at 486 (quoting Ward, 491 U.S. at

799). At the same time, it “‘need not be the least

restrictive or least intrusive means of’ serving the

government’s interest,” id. (quoting Ward, 491 U.S. at

798), and we “afford[] some deference to a municipality’s judgment in adopting a content-neutral

restriction on speech,” Bruni I, 824 F.3d at 370.

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

29a

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. (alteration in original) (quoting

McCullen, 573 U.S. at 495). In short, while McCullen

and Bruni I made clear that a “rigorous and factintensive” 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

In Bruni I, we explained that when dealing with core

speech, such as sidewalk counseling, whether a restriction is less

burdensome in “degree”—meaning size in the context we used

it—is not necessarily dispositive of whether the burden on

speech is significant. 824 F.3d at 368. A court must also consider

30a

In this case, now that we have before us both a

developed record and a narrow construction of the

Ordinance, it is apparent that the burden it imposes

is different from McCullen both in scope and size and

is instead akin to that imposed by the thirty-six-foot

and fifteen-foot buffer zones that the Supreme Court

upheld in Madsen v. Women’s Health Center, Inc., 512

U.S. at 757, 776, and Schenck v. Pro-Choice Network

of Western New York, 519 U.S. at 364, 380,

respectively.

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

the burden as “a matter of . . . kind,” referring to the type of

speech a restriction prohibits. Id. Elsewhere in the opinion,

however, we also recognized that there may be cases where the

“degree” of burden is so minimal that it, alone, will determine

whether the burden on speech should be considered significant,

thus potentially negating any need for the government to show

that substantially less-restrictive alternatives were tried and

failed or seriously considered and reasonably rejected. See id. at

372 n.20 (quoting McCullen, 573 U.S. at 495). As “degree” could

refer to the size of the zone or significance of the burden,

depending on the context, and both subjects are mentioned in

today’s opinion, we will use the terms “scope” and “size,” rather

than “kind” and “degree,” for the sake of clarity.

31a

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

21 In McCullen, Massachusetts did not assert such economic

hardships. While the Court noted that “the prime objective of the

32a

incident-based responses by the police that proved

unsuccessful in preventing or deterring aggressive

incidents and congestion; and consideration of

criminal laws that the police were finding inadequate

to address the problem of protestors following

patients and obstructing their way to the clinic.

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 factfinding, a municipality can demonstrate that it

“attempted . . . [or] considered alternative means of

First Amendment is not efficiency,” McCullen, 573 U.S. at 495,

it did not have occasion to consider circumstances where “the

limitations of ‘manpower’ and the need to be able to deploy

officers in response to emergencies” made it “not feasible to

permanently provide a significantly increased police presence at

the clinic,” Turco, 935 F.3d at 167. As we recently recognized,

however, the facts “that the police department ha[s] finite

resources,” id. (citation omitted), and a city has “financial

restraints,” id. at 167–68, are relevant to the narrow tailoring

analysis.

33a

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

22 We recognize that the City may have a legitimate concern

about access to healthcare facilities if it transpires that multiple

one-on-one conversations impair access to the facilities, see

McCullen, 573 U.S. at 486–87, and that the City may then have

occasion to revisit the terms of the Ordinance having developed

a record that would satisfy McCullen and Bruni I, as well as the

content-neutrality requirement of Reed. See Turco, 935 F.3d at

162–63. That, however, is not the Ordinance before us today.

34a

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 wellfounded. 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

35a

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.

36a

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.

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, 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, 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

37a

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] contentbased 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,

38a

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., 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 Vt. Stat. Ann., tit. 18, § 4631(e)(4) (Supp.

2010)). “[E]ducation[ ]” and “marketing” are examples

of speech’s “function or purpose” under Reed. 135 S.

Ct. at 2227. They explain how or why a speaker

speaks, not what is said. Id.

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

39a

“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 contentbased.” 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

40a

(1988))), and Reed, 135 S. Ct. at 2227 (protecting

speech’s “function or purpose”).

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

posting of signs” is content neutral); McCullen, 573

U.S. at 491–92 (collecting laws that, by penalizing

conduct like obstruction or assault, may pass

intermediate scrutiny).

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

41a

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.

42a

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF

PENNSYLVANIA

NIKKI BRUNI, et al.,

Plaintiffs,

CITY OF PITTSBURGH, et al.,

Defendants.

)

Civil Action

No. 14-1197

Judge Cathy

Bissoon

MEMORANDUM AND ORDER

I. MEMORANDUM

Pending before the Court are Plaintiffs’ Motion

for Summary Judgment (Doc. 68) and Defendants’

Motion for Summary Judgment (Doc. 69). Upon full

consideration of the evidence presented, Plaintiffs’

Motion for Summary Judgment will be denied, and

Defendants’ Motion for Summary Judgment will be

granted.

A. Factual Background

1. The Ordinance

In December 2005, the Pittsburgh City Council

adopted Ordinance No. 49, Bill No. 2005-1944,

supplementing the Pittsburgh Code of Ordinances,

Title 6: Conduct, Article I: Regulated Rights and

Actions, by adding Chapter 623, entitled “Public

Safety at Health Care Facilities.” Pittsburgh Code of

Ordinances § 623.01 et seq., (the “Ordinance”).

Plaintiffs’ Concise Statement of Material Facts (Doc.

43a

74) ¶ 1; Defendants’ Response to Plaintiffs’ Concise

Statement of Material Facts (Doc. 82) ¶ 1. The

Ordinance became effective on December 30, 2005.

Doc. 74 ¶ 1; Doc. 82 ¶ 1.

In relevant part, the challenged Ordinance

provides as follows:

§ 623.04 FIFTEEN-FOOT BUFFER ZONE

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, 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.

Doc. 74 ¶¶ 2, 140; Doc. 82 ¶¶ 2, 140. The Ordinance

exempts “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” from the entirety

of Section 623.04. Doc. 74 ¶ 141; Doc. 82 ¶ 141.

In adopting the Ordinance, the City Council also

ratified a preamble, titled “Intent of Council,” that

described the goals the City sought to accomplish as

follows:

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

44a

City. The exercise of a person’s right to protest

or counsel against 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

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 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.

45a

Doc. 74 ¶ 7; Doc. 82 ¶ 7.

A permanent injunction altered the Ordinance in

2009, requiring, inter alia, that the City clearly

demarcate any buffer zone prior to its enforcement.

Order Granting Permanent Injunction (the

“Injunction”), Civil Action No. 06-393, Doc. 85, ¶ 1

(W.D. Pa. Dec. 17, 2009). Presently, two “buffer zones”

are delineated and enforced in the City of Pittsburgh,

both of which are located outside of reproductive

health care facilities where abortions are performed.

Doc. 74 ¶ 149; Doc. 82 ¶ 149. One of the two buffer

zones is indicated by a bright, yellow semi-circle

painted around the entrance of 933 Liberty Avenue,

the downtown Planned Parenthood clinic (“933

Liberty” or “downtown Planned Parenthood”). Doc. 74

¶¶ 111, 122; Doc. 82 ¶¶ 111, 122. The inside of the

yellow arc measures 15 feet in radius from the center

of the closed front doors of the Planned Parenthood

facility. Doc. 74 ¶ 123; Doc. 82 ¶ 123.

According to the City, the Ordinance “applies to

any type of protesting within the buffer zone.” Doc. 74

¶ 155; Doc. 82 ¶ 155. However, “purely social or

random conversations (like going up to someone to

ask directions or what time it is) are not intended to

be covered by the Ordinance.” Doc. 74 ¶ 156; Doc. 82

¶ 156. When Plaintiffs filed this lawsuit, they believed

that the Ordinance completely prohibited their

passage through the buffer zone, even if they were not

engaging in sidewalk advocacy during such passage.

Defendants’ Concise Statement of Material Facts

(Doc. 71) ¶ 86; Plaintiffs’ Response to Defendants’

Concise Statement of Material Facts (Doc. 79) ¶ 86.

However, since then, the City has explained to

Plaintiffs that the buffer zone does not apply to

“individuals who are simply walking through the 15

46a

foot zone to get to from one location to another,

provided that such passage does not obstruct access

to the facility.” Doc. 74 ¶ 87; Doc. 82 ¶ 87; Doc. 74 ¶

154; Doc. 82 ¶ 154. For purposes of this lawsuit, there

appears to be no dispute that “sidewalk counseling”

within the 15 foot buffer zone is prohibited.

2. History of the Ordinance

Prior to moving to 933 Liberty Avenue, Planned

Parenthood maintained its downtown location on

Fifth Avenue. Doc. 74 ¶ 112; Doc. 82 ¶ 112. In the midand late-1990’s, there were numerous incidents

involving violence, disruption and obstruction of

entrances at the Fifth Avenue location. Doc. 71 ¶ 1;

Doc. 79 ¶ 1. As a result, in the mid-90’s, Pittsburgh

police deployed crowd-control barriers outside

abortion clinics in order to maintain order and

security, separating demonstrators from each other

and from patients attempting to visit the clinic for

health care. Doc. 71 ¶ 4; Doc. 79 ¶ 4. After Planned

Parenthood moved to the 933 Liberty Avenue location

in 2002, the incidents became less frequent and

severe; however, there still were regular incidents

involving “pushing,” “shoving” and “verbal harassment” at the downtown Planned Parenthood. See Def.

App., Ex. J, Hohos Dep. (Doc. 72-10) at 31:23-32:12

(“New location was, like I said, not as severe, but we

still had our incidents. We still had the pushing and

the shoving between the escorts and the pro-life folks

and, you know, the blocking of the doors, that was still

occurring when people would sit in front of doors. Not

on a much regular basis as before, but that -- that

conduct still continued to a large -- to a large degree.

A lot of it was verbal. Depending on which side the

argument you were on or the cause, a lot of it was

verbal harassment between both parties, both

47a

sides.”); id. at 42:2-5 (Sergeant William Hohos

explaining that he has personally witnessed “pro-life

individuals forcing literature into patients’ pockets”);

id. at 52:13-15 (“We were still very active between the

years of 2002 to 2005. ‘We’ being the police.”). To

mitigate these incidents, the Bureau of Police

employed an overtime detail of police officers

stationed outside the downtown Planned Parenthood.

Doc. 71 ¶ 6; Doc. 79 ¶ 6.

On December 29, 2003, the City of Pittsburgh was

declared a financially distressed municipality by the

Commonwealth of Pennsylvania’s Department of

Community and Economic Development. Doc. 71 ¶ 14;

Doc. 79 ¶ 14. Following the determination of the City’s

distressed status, the Bureau of Police discontinued

the overtime detail of police officers assigned to the

downtown Planned Parenthood, although police

would still respond to 911 or other specific calls for

law enforcement. Doc. 71 ¶ 19; Doc. 79 ¶ 19.

Thereafter, on November 29, 2005, the Ordinance was

introduced before the City Council. Doc. 74 ¶ 126; Doc.

82 ¶ 126. A committee meeting was held on December

7, 2005, followed by hearing for public comment on

December 13, 2005. Doc. 74 ¶¶ 126-128; Doc. 82 ¶¶

126-128; Doc. 71 ¶ 23; Doc. 79 ¶ 23. At those

proceedings, dozens of witnesses offered statements

to the City Council, including President and CEO of

Planned Parenthood of Western Pennsylvania,

Kimberly Evert. Doc. 71 ¶ 24; Doc. 79 ¶ 24. Ms. Evert

testified that, in January 2005, the City’s budget

problems “resulted in the elimination of the police

assignment” to the downtown Planned Parenthood.

Doc. 72-3, Exhibit C, at p. 8. Ms. Evert testified that

“without [police] supervision there has been an

increase in unlawful behavior that is putting . . .

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patients, their families, pedestrians and even

protestors at risk.” Id. As evidence, Ms. Evert stated

that, in 2004, patients made 16 complaints about

protestors, whereas from February 2005 to November

2005, “there were 13 cases of aggressive pushing,

shoving and hitting, and 30 complaints of harassing

behavior that included shoving literature into

people’s pockets, hitting them with signs and blocking

their entrance into the building.” Id.

Commander Donaldson of the Pittsburgh Police

Department also addressed the City Council on

December 7, 2005. Doc. 74 ¶ 133; Doc. 82 ¶ 133.

Commander Donaldson stated that, while the City did

not arrest any protestors outside 933 Liberty Avenue

within the six months prior to the committee meeting,

police had been summoned to that location 22 times

in that 6-month period. Doc. 74 ¶ 135; Doc. 82 ¶ 135;

Doc. 72-3, Exhibit C, at pp. 52-54. Commander

Donaldson explained that “[t]ypically, [the police] are

called to mediate confrontations between the people

going into the clinic and the protestors or the escorts

. . . and other times it was the doorway was obstructed

or they followed the people to the doorway or . . . the

signs are obstructing the front of the building. . .” Doc.

72-3, Exhibit C, at p. 60. In response to questioning

by a Council member, Commander Donaldson

acknowledged that, prior to the enactment of the

Ordinance, the City already had laws on the books

that it could rely upon to arrest and prosecute

individuals obstructing traffic, passageways, and

doorways. Doc. 74 ¶ 134; Doc. 82 ¶ 134. Commander

Donaldson explained, however, that those laws were

not as effective as a buffer zone in deterring those who

attempted to “block” patients from entering the

downtown Planned Parenthood by obstructing their

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passage before they reached the front door of the

building. Doc. 72-3, Exhibit C, at p. 54 (“What I am

saying is there are laws currently on the book that

would address obstructing traffic or passageways or

highway. A number of times what the complaints are

at the 933 Liberty Avenue is that they are obstructing

the access to the clinic itself. Now there are currently

laws for obstructing the doorway, but what this would

do is it would set a 15-foot parameter [sic]. So it would

be clearly defined. It wouldn’t be in front of the

obstructing the door per say [sic], but you couldn’t be

within 15 feet of it. I think it would be along the same

lines of either obstructing someone’s driveway or

blocking someone’s driveway. They are two clearly

different points. One it makes it difficult to get into

your driveway. The other one it makes it impossible

to get into your driveway.”).

Following these hearings, the City Council passed

the Ordinance and the Mayor signed it into law. Doc.

71 ¶ 26; Doc. 79 ¶ 26.

3. Plaintiffs’ “Sidewalk Counseling”

Plaintiffs regularly engage in anti-abortion

activities outside the buffer zone at the downtown

Planned Parenthood. Doc. 71 ¶ 44; Doc. 79 ¶ 44. Their

advocacy takes the form of “sidewalk counseling,”

through which they “seek to have quiet conversations

and offer assistance and information about options

available . . . other than abortion to people who are

about to enter or who exit the facility.” Doc. 71 ¶ 46;

Doc. 79 ¶ 46. Plaintiff Nikki Bruni is the local head of

a group participating in the “Forty Days for Life”

movement, a global anti-abortion campaign whose

self-described mission is “to bring together the body of

Christ in a spirit of unity during a focused 40[-]day

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campaign of prayer, fasting, and peaceful activism,

with the purpose of repentance, to seek God’s favor to

turn hearts and minds from a culture of death to a

culture of life, thus bringing an end to abortion.” Doc.

71 ¶ 45; Doc. 79 ¶ 45. Ms. Bruni began sidewalk

counseling in early 2010. Doc. 74 ¶ 25; Doc. 82 ¶ 25.

Plaintiff Julie Cosentino began sidewalk counseling

outside the downtown Planned Parenthood in July

2014, generally going to the clinic on Saturdays. Doc.

71 ¶ 49; Doc. 79 ¶ 49. Plaintiff Cynthia Rinaldi began

sidewalk counseling outside the downtown Planned

Parenthood approximately 5 to 6 years ago. Doc. 74 ¶

56; Doc. 82 ¶ 56. Plaintiff Kathleen Laslow began

sidewalk counseling outside the downtown Planned

Parenthood approximately three years ago. Doc. 74 ¶

73; Doc. 82 ¶ 73. Patrick Malley began sidewalk

counseling in 2010 or 2011, and typically goes to the

downtown Planned Parenthood facility on Tuesdays

and Fridays. Doc. 74 ¶¶ 91, 93; Doc. 82 ¶¶ 91, 93.

None of the Plaintiffs in this case has experience or

knowledge about conditions outside the downtown

Planned Parenthood before the passage of the

Ordinance in 2005 or the modified Ordinance in 2009.

Doc. 71 ¶ 11; Doc. 79 ¶ 11.

Abortions are performed at the downtown

Planned Parenthood on Tuesdays, Fridays and

Saturdays. Doc. 71 ¶ 52; Doc. 79 ¶ 52. On those days,

between two to four individuals engage in some form

of sidewalk counseling or demonstrating outside of

the buffer zone. Doc. 71 ¶¶ 54-55; Doc. 79 ¶¶ 54-55.

During Forty Days for Life and other nationally

organized clinic protest campaigns, this number may

increase to as many as 35 to 40. Doc. 71 ¶ 56; Doc. 79

¶ 56. Plaintiffs admit that, outside the 15-foot buffer

zone, Plaintiffs and their allies are free to walk

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anywhere on the sidewalk and engage in advocacy,

attempting to speak to people who are going to the

clinic. Doc. 71 ¶ 68; Doc. 79 ¶ 68. The Ordinance also

does not prohibit a willing listener from: (1) slowing

down or stopping while approaching the buffer zone

in order to listen or talk to Plaintiffs, Doc. 71 ¶ 69;

Doc. 79 ¶ 69; (2) exiting the zone in order to listen or

talk to Plaintiffs, Doc. 71 ¶ 70; Doc. 79 ¶ 70; or

(3) standing inside the buffer zone and having a

conversation with Plaintiffs standing a few inches or

feet away, outside the zone, Doc. 71 ¶ 71; Doc. 79

¶ 71. Plaintiffs also admit that the Ordinance does not

prohibit them from: (1) attempting to engage a person

leaving the clinic in a discussion, as that person walks

down the sidewalk, Doc. 71 ¶ 72; Doc. 79 ¶ 72;

(2) beginning a conversation with a person and

continuing that conversation outside the buffer zone

for as long as they want, Doc. 71 ¶ 73; Doc. 79 ¶ 73; or

(3) walking with a willing listener to a calmer or

quieter location, anywhere outside the buffer zone, to

talk further. Doc. 71 ¶ 74; Doc. 79 ¶ 74.

Several of the Plaintiffs testified or declared that

they have had trouble communicating with people

outside the downtown Planned Parenthood because of

street or traffic noise. Doc. 71 ¶¶ 89, 90; Doc. 79

¶¶ 89, 90. Plaintiff Cosentino testified, however, she

has never had trouble communicating with or trying

to get a message to people because of street noise or

traffic noise. Doc. 71 ¶ 90; Doc. 79 ¶ 90. Plaintiffs also

cite no specific instances where someone has told any

of Plaintiffs that they were unable to hear Plaintiffs’

message because of traffic noise or the distance due to

the buffer zone. Doc. 71 ¶ 91; Doc. 79 ¶ 91.

Furthermore, at the preliminary injunction hearing

in December 2014, Plaintiff Bruni admitted she had

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no evidence that the buffer zone impeded her from

talking with willing listeners. Doc. 71 ¶ 58; Doc. 79

¶ 58 (citing Hr’g Tr. 32 (“THE COURT: . . . What

evidence do you have that people who desire to engage

in close conversation with you are not doing so

because of the buffer zone? THE WITNESS: I don’t

have any.”)). Plaintiff Bruni also testified that,

between 2009 and the date the Complaint was filed,

she has been able to communicate her message to the

intended recipients “occasionally.” Doc. 71 ¶ 59;

Doc. 79 ¶ 59. She testified that, rarely, women inside

the buffer zone will come out of the zone to have a

conversation with her. Doc. 71 ¶ 60; Doc. 79 ¶ 60. She

admits that sometimes women going to the clinic

refuse to talk to her, no matter what her distance from

them. Doc. 71 ¶ 61; Doc. 79 ¶ 61.

Since approximately 2011, Plaintiff Bruni has

been keeping a log of instances where people

approaching the Planned Parenthood clinic have

reportedly been persuaded not to have abortions. Doc.

71 ¶ 62; Doc. 79 ¶ 62. The log is titled “Log of Saved

Babies from abortion at Planned Parenthood, 933

Liberty Avenue, Pittsburgh.” Doc. 71 ¶ 62; Doc. 79

¶ 62. This log records dozens of instances of sidewalk

counselors not only communicating their message to

others but reportedly persuading people to not have

abortions. Doc. 71 ¶ 63; Doc. 79 ¶ 63. Plaintiff Bruni

has also “taken a few women to the Crisis Pregnancy

Center” after encountering them at the Planned

Parenthood clinic. Doc. 71 ¶ 67; Doc. 79 ¶ 67.

Likewise, Plaintiff Rinaldi has “often” accompanied

women “to nearby Catholic Charities, in order to

connect them to resources such as adoption

assistance, monetary assistance, food, education, and

day care.” Doc. 71 ¶¶ 51, 65; Doc. 79 ¶¶ 51, 65; Doc.

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74 ¶ 58; Doc. 82 ¶ 58.

B. Procedural History

By way of background and procedural history, at

the time the Pittsburgh City Council enacted the

Ordinance, it contained the following two provisions:

§ 623.03 – EIGHT FOOT PERSONAL

BUBBLE ZONE. No person shall knowingly

approach another person within eight (8) feet

of such person, unless such other person

consents, for the purpose of passing a leaflet

or handbill to, displaying a sign to, or

engaging in oral protest, education or

counseling with such other person in the

public way or sidewalk area within a radius of

one hundred (100) feet from any entrance door

to a hospital and/or medical office/clinic.

§ 623.04 – FIFTEEN FOOT BUFFER ZONE.

No 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 tit. 6, §§ 623.03-04.

Shortly after taking effect, the Ordinance was

challenged as, inter alia, facially invalid under the

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First Amendment. Brown v. City of Pittsburgh, 543 F.

Supp. 2d 448 (W.D. Pa. 2008) (Fischer, J.). The

district court denied the plaintiffs’ Motion for a

Preliminary Injunction and dismissed several counts

of the complaint. Id. The plaintiffs appealed, and the

Court of Appeals for the Third Circuit affirmed in

part, reversed in part and dismissed in part. Brown v.

City of Pittsburgh, 586 F.3d 263 (3d Cir. 2009). The

Court of Appeals held that the eight foot bubble zone

(the “bubble zone”) and the fifteen foot buffer zone

(the “buffer zone”) each individually passed

constitutional muster, but when considered in

combination, imposed a facially unconstitutional

burden on free speech. Id. The Court of Appeals

remanded the case back to district court for further

proceedings. Id.

Post-remand, the district court ordered that the

bubble zone provision at section 623.03 be

“permanently enjoined in toto.” Injunction at ¶ 1.

Section 623.04, creating the fixed buffer zone,

remained, although the Injunction required that the

buffer zone provision be construed to prohibit “all

persons” from picketing and demonstrating within

the boundaries of the buffer zone. Id. at ¶ 2; see

Brown, 586 F.3d at 275 (“We find § 623.04 amenable

to the content-neutral construction urged by the City,

that is, an interpretation prohibiting even the

exempted classes of persons from ‘picketing or

demonstrating’ within the buffer zone.”) (internal

alterations omitted). Accordingly, the exemption for

“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

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and other persons to enter or exit the hospital,

medical office, or clinic” does not permit those persons

to engage in “any action, activity or signage in the

form of picketing or demonstrating.” Injunction at ¶

2. The Injunction further requires that the City

provide Pittsburgh City Police with oral and written

training materials regarding enforcement of the

Ordinance. Id. at ¶ 3. Finally, as discussed, the

Injunction provides that the City must “clearly mark

the boundaries of any 15 foot buffer zone in front of

any hospital, medical office or clinic prior to the

enforcement of the Ordinance.” Id. at ¶ 5.

On June 26, 2014, the Supreme Court issued its

decision in McCullen v. Coakley, striking down the

amended Massachusetts Reproductive Health Care

Facilities Act (the “MRHCA”) as insufficiently

narrowly tailored to achieve the Commonwealth’s

legitimate government interests. 134 S.Ct. 2518

(2014). The MRHCA, as amended, “ma[de] it a crime

to knowingly stand on a ‘public way or sidewalk’

within 35 feet of an entrance or driveway to any

‘reproductive health care facility,’ defined as ‘a place,

other than within or upon the grounds of a hospital,

where abortions are offered or performed.” Id. at 2522.

On September 4, 2014, Plaintiffs filed a complaint

(the “Complaint”) lodging both facial and as applied

challenges to the Ordinance, in light of McCullen.

Compl. at ¶ 1 (Doc. 1). Plaintiffs also sought a

preliminary injunction to prevent the City from

enforcing the Ordinance a

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