Amicus Curiae Brief — Nikki Bruni, et al., Petitioners v. City of Pittsburgh, Pennsylvania, et al.

No. 19-1184

In The

Supreme Court of the United States

NIKKI BRUNI, ET AL.,

Petitioners,

v.

CITY OF PITTSBURGH, PENNSYLVANIA, ET AL.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF OF AMICI CURIAE UNITED STATES

SENATORS AND REPRESENTATIVES

SUPPORTING PETITIONERS

THOMAS R. MCCARTHY

Counsel of Record

TIFFANY H. BATES

ANTONIN SCALIA LAW SCHOOL

SUPREME COURT CLINIC

CONSOVOY MCCARTHY PLLC

1600 Wilson Boulevard

Suite 700

Arlington, VA 22209

(703) 243-9423

tom@consovoymccarthy.com

April 29, 2020

Counsel for Amici Curiae

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES....................................... ii

STATEMENT OF INTEREST ................................... 1

INTRODUCTION AND SUMMARY OF

ARGUMENT .............................................................. 2

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

I. The Third Circuit’s decision contravenes

this Court’s governing precedent and

conflicts with decisions of several other

circuits. ............................................................. 3

A. The Third Circuit distorted McCullen

v. Coakley’s narrow-tailoring test .............. 4

B. The Third Circuit’s application of

McCullen conflicts with the approach

of several other circuits .............................. 7

C. Although the ordinance easily fails

under McCullen’s test for contentneutral laws, the law is content based

and strict scrutiny should apply .............. 10

II. The Court should grant the petition to

ensure that individuals can fully

exercise their First Amendment rights ........ 12

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

APPENDIX – List of Amici Curiae .................... App. 1

ii

TABLE OF AUTHORITIES

Cases

American Legion Post 7 v. City of Durham,

239 F.3d 601 (4th Cir. 2001)....................................8

Bates v. State Bar of Ariz.,

433 U.S. 350 (1977).......................................... 14, 15

Bd. of Airport Comm’rs of City of Los Angeles

v. Jews for Jesus, Inc., 482 U.S. 569 (1987) .......... 16

Brandenburg v. Ohio,

395 U.S. 444 (1969)................................................ 13

Brockett v. Spokane Arcades, Inc.,

472 U.S. 491 (1985)................................................ 14

Cutting v. City of Portland,

802 F.3d 79 (1st Cir. 2015) .................................. 7, 8

Erznoznik v. Jacksonville,

422 U.S. 205 (1975)................................................ 14

FCC v. League of Women Voters of Cal.,

468 U.S. 364 (1984)................................................ 13

FCC v. Pacifica Found.,

438 U.S. 726 (1978)................................................ 14

Forsyth Cty., Ga. v. Nationalist Movement,

505 U.S. 123 (1992)................................................ 13

Hill v. Colorado,

530 U.S. 703 (2000)................................................ 11

Iancu v. Brunetti,

139 S. Ct. 2294 (2019)............................................ 12

Janus v. Am. Fed’n of State, Cty., & Mun.

Employees, Council 31, 138 S. Ct. 2448

(2018).................................................................. 3, 13

iii

Lewis v. City of New Orleans,

415 U.S. 130 (1974)................................................ 16

Matal v. Tam,

137 S. Ct. 1744 (2017)............................................ 13

McCullen v. Coakley,

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

NAACP v. Button,

371 U.S. 415 (1963)................................................ 15

Nat’l Socialist Party v. Skokie,

432 U.S. 43 (1977).................................................. 13

Reed v. Town of Gilbert,

135 S. Ct. 2218 (2015)...................................... 10, 12

Reynolds v. Middleton,

779 F.3d 222 (4th Cir. 2015)................................ 8, 9

Rideout v. Gardner,

838 F.3d 65 (1st Cir. 2016) ......................................7

Rosenberger v. Rector & Visitors of Univ. of

Va., 515 U.S. 819 (1995) ........................................ 10

Snyder v. Phelps,

562 U.S. 443 (2011)................................................ 13

Street v. New York,

394 U.S. 576 (1969)................................................14

Terminiello v. Chicago,

337 U.S. 1 (1949).................................................... 14

Texas v. Johnson,

491 U.S. 397 (1989)................................................14

United States v. Grace,

461 U.S. 171 (1983).............................................. 3, 4

iv

United States v. Playboy Entm’t Grp., Inc.,

529 U.S. 803 (2000)................................................ 11

United States v. Williams,

553 U.S. 285 (2008)................................................ 15

Verlo v. Martinez,

820 F.3d 1113 (10th Cir. 2016)................................9

Virginia v. Black,

538 U.S. 343 (2003)................................................13

Virginia v. Hicks,

539 U.S. 113 (2003)................................................ 15

Other Authorities

Elise Lavallee, Hundreds Rally in Pittsburgh

in Support of Impeaching President Trump,

City Paper (Dec. 17, 2019), bit.ly/2wBCsvH .........15

Pittsburgh Holds Protest to Condemn Trump

Administration’s Policies in Iran and Iraq,

CBS Pittsburgh (Jan. 4, 2020),

cbsloc.al/3a3jzj6 ............................................... 15, 16

1

STATEMENT OF INTEREST 1

Amici curiae are members of the U.S. Senate

and House of Representatives (listed in the Appendix)

who are committed to protecting the free-speech

rights guaranteed by the First Amendment. Free

speech is critical to our democracy. It creates an open

“marketplace of ideas” in which individuals can freely

and respectfully debate the political, economic, and

social issues of the day. It furthers the search for truth

by allowing all ideas to compete free of government

censorship or compulsion.

Amici believe that the court below disregarded

these longstanding principles. Amici therefore urge

this Court to grant the petition and reverse the

decision below.

1 Pursuant to this Court’s Rule 37.6, counsel for amici

curiae certifies that this brief was not authored in whole or in

part by counsel for any party and that no person or entity other

than amici curiae or their counsel have made a monetary

contribution to the preparation or submission of this brief.

Counsel of record for all parties received timely notice of the

intent of amici curiae to file this brief. The parties have

consented to the filing of this brief.

2

INTRODUCTION AND

SUMMARY OF ARGUMENT

This case involves yet another “abortion-speech

edition of the First Amendment”—one that “giv[es]

abortion-rights advocates a pass when it comes to

suppressing the free-speech rights of their opponents.”

McCullen v. Coakley, 573 U.S. 464, 497 (2014) (Scalia,

J., concurring in the judgment). The City of Pittsburgh

enacted an ordinance that is content-based,

viewpoint-based, and aimed at restricting discussion

of abortion. Yet the Third Circuit allowed that

ordinance to stand despite its serious imposition on

Petitioners’ speech.

In doing so, the court distorted McCullen v.

Coakley’s narrow-tailoring test by imposing a novel

burden on Petitioners: The court required Petitioners

to show—as a threshold matter—that the

government’s imposition on their speech was a

“significant” burden as opposed to a “de minimis” one.

Pet. App. 29a. But McCullen established no such

requirement. And neither do three other circuits that

have applied McCullen.

After throwing that hurdle in front of

Petitioners, the lower court concluded that Petitioners

failed to clear it and, on that basis, eased the burden

on the City to prove that its suppression of speech

comports with the First Amendment. Specifically, the

court imposed a lesser form of scrutiny on the City

that fails to comport with the traditional strong

protection of First Amendment activity on public

sidewalks.

3

On top of that, Pittsburgh’s ordinance is a

textbook example of a content-based law that should

be subject to strict scrutiny. By design, it targets and

primarily impacts pro-life speech. Indeed, the

ordinance’s sponsor confessed that the ordinance

aimed to “protect[] the listen[er] from unwanted

communication.” Pet. 6. Unsurprisingly, that

“unwanted communication” concerns only one topic:

abortion. Moreover, the ordinance applies only to

Pittsburgh’s two abortion clinics.

The City of Pittsburgh may not prohibit

sidewalk counselors from sharing their peaceful, prolife message simply because the City or the listeners

dislike that speech. “[P]revent[ing] individuals from

saying what they think on important matters[,] …

undermines” our democracy and the search for truth.

Janus v. Am. Fed’n of State, Cty., & Mun. Employees,

Council 31, 138 S. Ct. 2448, 2464 (2018). Allowing the

decision below to stand will flout that high purpose

and stifle the free speech rights of citizens across the

country who seek to spread their pro-life message.

ARGUMENT

I.

The

Third

Circuit’s

decision

contravenes this Court’s governing

precedent and conflicts with decisions

of several other circuits.

Public streets and sidewalks serve a “historic

role as sites for discussion and debate;” indeed, they

“occupy a ‘special position in terms of First

Amendment protection.’” McCullen, 573 U.S. at 476

(quoting United States v. Grace, 461 U.S. 171, 180

4

(1983)). Accordingly, a state’s ability to restrict speech

on public streets and sidewalks is “very limited.” Id.

at 477 (quotation omitted). When a person challenges

a law on First Amendment grounds, the government

bears the burden to show that law is narrowly

tailored. Here, the Third Circuit allowed Pittsburgh to

maintain an ordinance that imposes serious burdens

on Petitioners’ speech by applying intermediate

scrutiny. That decision plainly alters McCullen’s

narrow-tailoring test for content-neutral laws. And it

conflicts with decisions of three other circuits that

have applied McCullen. On top of that, the Third

Circuit should have applied strict scrutiny given that

the City of Pittsburgh’s ordinance is content based.

A. The

Third

McCullen v.

tailoring test.

Circuit

distorted

Coakley’s narrow-

This Court’s decision in McCullen provides the

framework for analyzing free speech challenges. If a

law is content neutral, it must survive intermediate

scrutiny. To do so, the government must show that the

law is “narrowly tailored to serve a significant

governmental interest.” Id. at 486 (quotation

omitted). But if a law is content based, it is subject to

strict scrutiny. To survive strict scrutiny, the

government must show that the law is the “least

restrictive means of achieving a compelling state

interest.” Id. at 478.

In McCullen, this Court held that a

Massachusetts statue restricting speech in sidewalk

zones outside abortion clinics was content neutral.

The statute nevertheless failed because it was not

5

narrowly tailored to advance the State’s purported

goals. See id. at 496-97. To be narrowly tailored, a law

“must not burden substantially more speech than is

necessary to further the government’s legitimate

interests.” Id. at 486 (quotation omitted). The Court

concluded that the statute was not narrowly tailored

because “the Commonwealth ha[d] available to it a

variety of approaches that appear capable of serving

its interests, without excluding individuals from areas

historically open for speech and debate.” Id. at 494.

This should have been an easy case under

McCullen. But rather than follow McCullen, the court

below sharply departed from it. The court distorted

McCullen’s narrow-tailoring test here by adding a

threshold requirement that the government’s

imposition on Petitioners’ speech be “significant” as

opposed to “de minimis.” Pet. App. 29a. The court

explained that “where the burden on speech is de

minimis, a regulation may ‘be viewed as narrowly

tailored.’’ Pet. App. 29a. That is not the law. It is

instead, as Petitioners aptly note, “a novel

precondition.” Pet. 28-29. By imposing this additional

precondition on Petitioners—one that has no basis in

McCullen—the court made their task as challengers

harder by imposing a lesser burden on the City to

prove that its speech-restricting ordinance comports

with the First Amendment. Specifically, Petitioners

purported failure to meet the court’s “significant”

harm precondition afforded the City a lesser form of

scrutiny that fails to comport with the traditional

strong protection of First Amendment activity on

public sidewalks.

6

In McCullen, the Court did not employ (or even

mention) a threshold level of interference with speech

required to warrant First Amendment protection.

That is unsurprising given the vital importance of free

speech. To the contrary, McCullen instructs that the

government bears the burden to show that it has not

unduly interfered with speech, whether or not it

considers that interference to be “de minimis.” The

government must show a lack of other feasible

alternatives to achieve its purpose. McCullen, 573

U.S. at 495. That showing imposes a higher burden

than “simply to say that other approaches have not

worked.” Id. at 496. Indeed, the government must

“demonstrate that alternative measures that burden

substantially less speech would fail to achieve the

government’s interests.” Id. at 495.

That demonstration is especially important

with regards to traditional public fora like public

sidewalks. Because “while the First Amendment does

not guarantee a speaker the right to any particular

form of expression, some forms—such as normal

conversation and leafletting on a public sidewalk—

have historically been more closely associated with

the transmission of ideas than others.” Id. at 488.

Indeed, that is why public sidewalks “occupy a special

position in terms of First Amendment protection.” Id.

at 476 (quotation omitted). Yet the Third Circuit

disregarded that “special position.” Here, like in

McCullen, the ordinance “compromise[d] petitioners’

ability to initiate the close, personal conversations

that they view as essential to ‘sidewalk counseling.’”

Id. at 487. That in itself “impose[s] serious burdens on

petitioners’ speech.” Id. In keeping sidewalk

7

counselors from speaking in specific zones, the

ordinance challenges their ability to share their

messages. See id.

B. The Third Circuit’s application of

McCullen

conflicts

with

the

approach of several other circuits.

The Third Circuit’s approach in this case

conflicts with the First, Fourth, and Tenth Circuits’

approaches. Each of those courts have applied

McCullen where challengers have shown some burden

on their speech. But none have required challengers

to show a significant burden. Indeed, each of those

courts have applied the narrow-tailoring inquiry

without discussing a requisite burden level.

For example, in Cutting v. City of Portland, 802

F.3d 79 (1st Cir. 2015), the First Circuit held that

Portland’s

“sweeping”

ordinance

prohibiting

“lingering” in the city’s medium strips was not

narrowly tailored. Id. at 92-93. In doing so, the First

Circuit drew a distinction between content-based and

content-neutral restrictions and between public and

private fora—and rightly so—but not between

“significant” and “de minimis” impositions on speech.

See id. at 83-86. 2 The court explained that “a contentneutral restriction on speech in a traditional public

forum is facially unconstitutional if it does not survive

the narrow-tailoring inquiry, even though that

ordinance might seem to have a number of legitimate

2 See also Rideout v. Gardner, 838 F.3d 65, 71-72 (1st Cir.

2016) (applying McCullen’s narrow-tailoring analysis to “ballot

selfies” but discussing no threshold requirement).

8

applications.” Id. at 86. The First Circuit recognized

that the goal of the ordinance at issue—to prevent

people from being in the median for public safety

reasons—was “a perfectly understandable desire.” Id.

at 92. But it nonetheless held that the regulation

failed the narrow-tailoring analysis because the city

did not “show that it seriously undertook to address

the problem with less intrusive tools readily available

to it.” Id. (quoting McCullen, 573 U.S. at 494) (cleaned

up). The court explained that the regulation

“‘sacrificed speech for efficiency,’ and, in doing so,

failed to observe the ‘close fit between ends and

means’ that narrow tailoring demands.’” Id. (quoting

McCullen, 573 U.S. at 486) (cleaned up). But it did not

require the burden on speech to reach any particular

threshold to qualify for First Amendment protection.

Similarly, in Reynolds v. Middleton, 779 F.3d

222 (4th Cir. 2015), the Fourth Circuit applied

McCullen after the plaintiff made an initial showing

that there was a burden placed on his speech. Id. at

226. The court did not consider the degree of the

burden in question, only that it existed. See id. In fact,

the

court

recognized

that

the

“threshold

determination triggering application of First

Amendment scrutiny is whether [the] challenged

regulation burdens speech”—not whether the

challenged regulation significantly burdens speech.

Id. (quoting American Legion Post 7 v. City of

Durham, 239 F.3d 601, 606 (4th Cir. 2001) (emphasis

added)). Once a challenger shows some burden on his

speech, “the burden then falls on the government to

prove the constitutionality of the speech restriction.”

Id.

9

Finally, in Verlo v. Martinez, 820 F.3d 1113

(10th Cir. 2016), the Tenth Circuit outlined the steps

McCullen requires. Id. at 1135-37. First, the court

must analyze whether a statute or ordinance

“operate[s] to restrict speech.” Id. at 1136. Then, the

court must determine to whether the statute in

question was content neutral and, if so, whether that

statute was narrowly tailored to serve a significant

government interest. Id. The court required no

threshold determination that the impact on speech

was “significant” before traditional free-speech

analysis applies. See id. at 1137 (holding that

although there was a compelling state interest in

reducing speech in a plaza outside a state courthouse,

the statute was “not narrowly tailored, as even

content-neutral regulations in a public forum must

be”).

Consequently, had this case arisen in the First,

Fourth, or Tenth Circuit, Petitioner would have won.

Indeed, the Third Circuit acknowledged as much

when it explained that the ordinance could not satisfy

McCullen’s narrow-tailoring test. See Pet. App. 30.

This uneven application of precedent between circuits

warrants review by this Court.

10

C. Although the ordinance easily fails

under McCullen’s test for contentneutral laws, the law is content

based and strict scrutiny should

apply.

As explained above, even if treated as a

content-neutral law, Pittsburgh’s ordinance fails

intermediate

scrutiny.

Yet

the

ordinance

“discriminates against abortion-related speech

because it establishes buffer zones only at clinics that

perform abortions” and is therefore content based.

McCullen, 573 U.S. at 478. Accordingly, the ordinance

“must satisfy strict scrutiny.” Id.

“It is axiomatic that the government may not

regulate speech based on its substantive content or

the message it conveys.” Rosenberger v. Rector &

Visitors of Univ. of Va., 515 U.S. 819, 828 (1995). Yet

that is exactly what the City of Pittsburgh did here.

Pittsburgh’s ordinance is content-based, viewpointbased, and aimed at restricting discussion of abortion.

It restricts discussion of abortion by Petitioners and

others with a similar pro-life message. It is therefore

“presumptively unconstitutional.” Reed v. Town of

Gilbert, 135 S. Ct. 2218, 2226 (2015); id. at 2227

(“Government regulation of speech is content based if

a law applies to particular speech because of the topic

discussed or the idea or message expressed.”).

Though Pittsburgh purports to more broadly

ban “congregat[ing], patrol[ling], picket[ing], or

demonstrat[ing] in a zone extending 15 feet from any

entrance to the hospital and or health care facility,”

Pet. App. 9a, that is a “convenient yet obvious mask

11

for the legislature’s true purpose and for the

prohibition’s true effect,” Hill v. Colorado, 530 U.S.

703, 768 (2000) (Kennedy, J., dissenting). In reality,

the ordinance is confined to the painted buffer zones

located on public sidewalks and streets in front of the

City’s two abortion clinics. See Pet. 27.

That the City’s ordinance applies only to two

facilities in the whole of Pittsburgh is telling. If

“counseling on every subject within [the regulated]

zone present[s] a danger to the public, the statute

should apply to every building entrance in the [City].”

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

ordinance does not so apply. Instead, “[i]t applies only

to a special class of locations: entrances to [abortion

clinics].” Id. This Court need not “close [its] eyes to

reality” that “‘counseling’ outside the entrances to

[abortion clinics] concern[s] a narrow range of topics—

indeed, one topic in particular.” Id. By confining the

ordinance’s application to the City’s two abortion

clinics, it “has made a content-based determination”

and limited the substance of Petitioners’ message. Id.

Indeed, the City Council Chair admitted that the

ordinance’s real goal was to “protect[] the listen[er]

from unwanted communication” about abortion. Pet.

6. Accordingly, the City’s buffer-zone law is only

designed to curb a specific message regarding

abortion.

Restrictions because of the “impact that speech

has on its listeners ... is the essence of content-based

regulation.” United States v. Playboy Entm’t Grp.,

Inc., 529 U.S. 803, 811-12 (2000) (citation and

quotations omitted). In McCullen, this Court explicitly

acknowledged that laws “concerned with undesirable

12

effects that arise from ‘the direct impact of speech on

its audience’ or ‘[l]isteners’ reactions to speech’” are

not content neutral. McCullen, 573 U.S. at 481. It

clarified that if speech “outside [] abortion clinics

caused offense or made listeners uncomfortable, such

offense or discomfort would not give the [government]

a content-neutral justification to restrict the speech.”

Id. Yet preventing listeners from “unwanted

communication” is precisely what Pittsburgh enacted

the ordinance to do. Pet. 6.

Moreover, the City does not ban other kinds of

speech in the buffer zones that it considers nondemonstrating speech. See id. The City allows

peaceful one-on-one conversations in the buffer zone

about a variety of topics, such as the weather,

directions, and sports. Yet it prohibits peaceful oneon-one conversations about abortion. That is plainly

regulation of speech “based on the message a speaker

conveys.” Reed, 576 U.S. at 2227. Since the

Constitution abhors restrictions on speech because of

the message being conveyed or the way in which the

speaker chooses to convey that message, see Iancu v.

Brunetti, 139 S. Ct. 2294, 2302 (2019), the decision

below cannot stand.

II.

The Court should grant the petition to

ensure that individuals can fully

exercise their First Amendment rights.

The outcome of this case is important—to

Petitioners and to countless other sidewalk counselors

seeking to spread their pro-life message. “Whenever

the Federal Government or a State prevents

individuals from saying what they think on important

13

matters[,] … it undermines” our democracy and the

search for truth. Janus, 138 S. Ct. at 2464. This is

especially true on public streets and sidewalks where

a listener “encounters speech he might otherwise tune

out.” McCullen, 573 U.S. at 476. Indeed, that feature

is “a virtue, not a vice” because “the First

Amendment’s purpose [is] ‘to preserve an uninhibited

marketplace of ideas in which truth will ultimately

prevail.’” Id. (quoting FCC v. League of Women Voters

of Cal., 468 U.S. 364, 377 (1984)). Allowing the

decision below to stand will flout that high purpose

and stifle the free speech rights of citizens across the

country.

First, Pittsburgh’s ordinance targets and

primarily impacts pro-life speech. The City Council

Chair and sponsor of the ordinance admitted as much

when she confessed that the ordinance’s real goal was

to “protect[] the listen[er] from unwanted

communication.” Pet. 6. Unsurprisingly, that

“unwanted communication” concerns only one topic:

abortion. See discussion supra, at section I.C. That is

not a legitimate goal. The City cannot prohibit

sidewalk counselors from sharing a peaceful, pro-life

message simply because the City or the listeners

dislike the content of the speech. This Court has long

recognized that protecting disfavored speech or speech

that offends the listener is a “bedrock First

Amendment principle.” Matal v. Tam, 137 S. Ct. 1744,

1751 (2017). See also, e.g., Snyder v. Phelps, 562 U.S.

443 (2011); Virginia v. Black, 538 U.S. 343 (2003);

Forsyth Cty., Ga. v. Nationalist Movement, 505 U.S.

123 (1992); Nat’l Socialist Party v. Skokie, 432 U.S. 43

(1977); Brandenburg v. Ohio, 395 U.S. 444 (1969). “It

14

is firmly settled that under our Constitution the

public expression of ideas may not be prohibited

merely because the ideas are themselves offensive to

some of their hearers.” Street v. New York, 394 U.S.

576, 592 (1969).

“[T]he

Constitution

does

not

permit

government to decide which types of otherwise

protected speech are sufficiently offensive to require

protection for the unwilling listener or viewer.”

Erznoznik v. Jacksonville, 422 U.S. 205, 210 (1975).

Indeed, this Court has repeatedly recognized that free

speech “‘may indeed best serve its high purpose when

it induces a condition of unrest, creates dissatisfaction

with conditions as they are, or even stirs people to

anger.’” Texas v. Johnson, 491 U.S. 397, 408-09 (1989)

(quoting Terminiello v. Chicago, 337 U.S. 1, 4 (1949)

(cleaned up)). Although Petitioners seek only to

spread the message of “kindness, love, hope,

gentleness, and help,” Pet. 4, the City finds their

message offensive, see Pet. 6. Yet, this “is a reason for

according it constitutional protection.” FCC v. Pacifica

Found., 438 U.S. 726, 745 (1978).

Worse still, overbroad speech regulations like

the one here threaten not only Petitioners but all “who

desire to engage in legally protected expression but

who may refrain from doing so rather than risk

prosecution” or attempt to challenge the law

themselves. Brockett v. Spokane Arcades, Inc., 472

U.S. 491, 503 (1985). Indeed, “[t]he reason for the

special rule in First Amendment cases is apparent: An

overbroad statute might serve to chill protected

speech.” Bates v. State Bar of Ariz., 433 U.S. 350, 380

(1977). After all, “First Amendment interests are

15

fragile interests, and a person who contemplates

protected activity might be discouraged by the in

terrorem effect of the statute” or regulation. Id. (citing

NAACP v. Button, 371 U.S. 415, 433 (1963)).

This Court’s overbreadth “doctrine seeks to

strike a balance between competing social costs.”

United States v. Williams, 553 U.S. 285, 292 (2008)

(citing Virginia v. Hicks, 539 U.S. 113, 119-20 (2003)).

The social costs implicated here clearly weigh in

Petitioners’ favor. The City purports to prevent

harm—like “violent confrontations”—outside of

abortion clinics, but Petitioners “peacefully express[]

[their] message of caring support.” Pet. App. 9a; 143a.

In fact, no one has ever accused Petitioners of violence,

obstruction, or harassment. See Pet. 5. And most

“disputes” in front of the City’s abortion clinics are

verbal, not physical. See Pet. App. 46a-47a (noting

that incidents at the clinics were “not as severe,” “[n]ot

on a much regular basis,” and that “[a] lot of [the

incidents] w[ere] verbal.”). Thus, rather than

preventing violent incidents, the City’s ordinance

serves to deter Petitioners and any other individual

seeking to speak on public sidewalks in front of

abortion clinics from speaking.

Moreover, under the City’s own interpretation,

the ordinance puts anyone in Pittsburgh at the mercy

of the police to determine what speech violates the

law. See Pet. App. 45a. This includes individuals and

groups ranging from pro-life sidewalk counselors to

those protesting the president or the Iraq war. See,

e.g., Elise Lavallee, Hundreds Rally in Pittsburgh in

Support of Impeaching President Trump, City Paper

(Dec. 17, 2019), bit.ly/2wBCsvH; Pittsburgh Holds

16

Protest to Condemn Trump Administration’s Policies

in Iran and Iraq, CBS Pittsburgh (Jan. 4, 2020),

cbsloc.al/3a3jzj6. “‘[C]onfer[ing] on police a virtually

unrestrained power to arrest and charge persons with

a violation’ of the [ordinance] is unconstitutional

because ‘the opportunity for abuse … is self-evident.’”

Bd. of Airport Comm’rs of City of Los Angeles v. Jews

for Jesus, Inc., 482 U.S. 569, 576 (1987) (quoting Lewis

v. City of New Orleans, 415 U.S. 130, 135-36 (1974)

(Powell, J., concurring)). That opportunity for abuse is

especially pertinent given the “practice of giving

abortion-rights advocates a pass when it comes to

suppressing the free-speech rights of their opponents.”

McCullen, 573 U.S. at 497 (Scalia, J., concurring in

the judgment).

Unfortunately, the City does not treat

disfavored speech with the same reverence as this

Court. Allowing a city to silence Petitioners’ message

of “kindness, love, hope, gentleness, and help,” Pet. 4,

simply because it is pro-life or may be “unwanted

communication” runs afoul of the First Amendment.

The Court should grant the petition to fully protect

Petitioners and all those who want to share a similar

message.

17

CONCLUSION

The Court should grant the petition for

certiorari and reverse the decision below.

Respectfully submitted,

THOMAS R. MCCARTHY

Counsel of Record

TIFFANY H. BATES

ANTONIN SCALIA LAW SCHOOL

SUPREME COURT CLINIC

CONSOVOY MCCARTHY PLLC

1600 Wilson Boulevard

Suite 700

Arlington, VA 22209

(703) 243-9423

tom@consovoymccarthy.com

April 29, 2020

Counsel for Amici Curiae

APPENDIX

i

APPENDIX

TABLE OF CONTENTS

List of Amici Curiae . . . . . . . . . . . . . . . . . . . . . . App. 1

App. 1

APPENDIX

U.S. Senate

Steve Daines (MT)

John Barrasso, M.D. (WY)

Cindy Hyde-Smith (MS)

John Boozman (AR)

James M. Inhofe (OK)

Mike Braun (IN)

James Lankford (OK)

Bill Cassidy, M.D. (LA)

Kelly Loeffler (GA)

Tom Cotton (AR)

Jerry Moran (KS)

Kevin Cramer (ND)

Pat Roberts (KS)

Michael B. Enzi (WY)

Rick Scott (FL)

Joni K. Ernst (IA)

Roger F. Wicker (MS)

U.S. House of Representatives

Mike Kelly (PA)

John Joyce, M.D. (PA)

Fred Keller (PA)

House Minority Leader

Kevin McCarthy (CA)

Scott Perry (PA)

House Minority Whip

Steve Scalise (LA)

Guy Reschenthaler (PA)

Ralph Abraham, M.D. (LA)

Glenn “GT” Thompson (PA)

Robert Aderholt (AL)

App. 2

Rick W. Allen (GA)

Bill Flores (TX)

Kelly Armstrong (ND)

Jeff Fortenberry (NE)

Jodey C. Arrington (TX)

Greg Gianforte (MT)

Brian Babin, D.D.S. (TX)

Louie Gohmert (TX)

Andy Barr (KY)

Lance Gooden (TX)

Andy Biggs (AZ)

Garret Graves (LA)

Dan Bishop (NC)

Mark E. Green (TN)

Rob Bishop (UT)

H. Morgan Griffith (VA)

Mike Bost (IL)

Glenn Grothman (WI)

Kevin Brady (TX)

Michael Guest (MS)

Ted Budd (NC)

Vicky Hartzler (MO)

Tim Burchett (TN)

Kevin Hern (OK)

Michael C. Burgess, M.D. (TX) Jody B. Hice (GA)

Steve Chabot (OH)

Dusty Johnson (SD)

Tom Cole (OK)

Mike Johnson (LA)

K. Michael Conaway (TX)

Jim Jordan (OH)

Dan Crenshaw (TX)

Steve King (IA)

Jeff Duncan (SC)

Darin LaHood (IL)

Neal Dunn, M.D. (FL)

Doug LaMalfa (CA)

Tom Emmer (MN)

Doug Lamborn (CO)

App. 3

Robert E. Latta (OH)

Adrian Smith (NE)

Debbie Lesko (AZ)

Christopher H. Smith (NJ)

Kenny Marchant (TX)

Jason Smith (MO)

Roger Marshall, M.D. (KS)

Ross Spano (FL)

Thomas Massie (KY)

Pete Stauber (MN)

Carol Miller (WV)

W. Gregory Steube (FL)

Alex X. Mooney (WV)

Jackie Walorski (IN)

Gregory F. Murphy, M.D. (NC) Michael Waltz (FL)

Ralph Norman (SC)

Randy K. Weber, Sr. (TX)

Pete Olson (TX)

Daniel Webster (FL)

Steven M. Palazzo (MS)

Brad Wenstrup, D.P.M. (OH)

Greg Pence (IN)

Bruce Westerman (AR)

Phil Roe, M.D. (TN)

Roger Williams (TX)

Austin Scott (GA)

Ron Wright (TX)

John Shimkus (IL)

Ted S. Yoho, D.V.M. (FL)