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

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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 AMICUS CURIAE CENTER

FOR CONSTITUTIONAL JURISPRUDENCE

IN SUPPORT OF PETITIONERS

JOHN C. EASTMAN

ANTHONY T. CASO

Counsel of Record

Claremont Institute’s Center for

Constitutional Jurisprudence

c/o Dale E. Fowler School of Law

Chapman University

One University Drive

Orange, CA 92866

(877) 855-3330

caso@chapman.edu

Counsel for Amicus Curiae

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TABLE OF CONTENTS

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

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

SUMMARY OF ARGUMENT .....................................1

REASONS FOR GRANTING THE WRIT ..................2

I. The Court Should Grant Review to Protect

the Vertical Separation of Powers between

State and Federal Governments. ..................... 2

II. This Court Should Grant Review to

Overrule Hill v. Colorado. ................................ 5

CONCLUSION ............................................................9

ii

TABLE OF AUTHORITIES

Cases

Alabama State Fed’n of Labor v. McAdory,

325 U.S. 450 (1945).............................................. 4, 5

Albertson v. Millard,

345 U.S. 242 (1953)..................................................4

Arizona v. United States,

567 U.S. 387 (2012)..................................................1

Baggett v. Bullitt,

377 U.S. 360 (1964)..................................................4

Blatchford v. Native Village of Noatak,

501 U.S. 775 (1991)..................................................4

Bond v. United States,

564 U.S. 211 (2011).............................................. 1, 3

Bond v. United States,

572 U.S. 844 (2014).............................................. 1, 3

Boos v. Berry,

485 U.S. 312 (1988)..................................................7

Chevron USA, Inc. v. Natural Resources Defense

Council, Inc.,

467 U.S. 837 (1984)..................................................1

Cornelius v. NAACP Legal Defense and Education

Fund, Inc.,

473 U.S. 788 (1985)..................................................7

Erie R.R. Co. v. Tompkins,

304 U.S. 64 (1938)....................................................4

Erznoznik v. City of Jacksonville,

422 U.S. 205 (1975).................................................4

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Frisby v. Schultz,

487 U.S. 474 (1984)..................................................7

Grayned v. City of Rockford,

408 U.S. 104 (1972)..................................................7

Hague v. CIO,

307 U.S. 496 (1939)..................................................6

Harrison v. Nat’l Ass’n for the Advancement of

Colored People,

360 U.S. 167 (1959)..................................................3

Helen Mining Co. v. Elliott,

859 F.3d 226, 238 (3rd Cir. 2017) .............................1

Hill v. Colorado,

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

International Society for Krishna Consciousness, Inc.

v. Lee,

505 U.S. 672 (1992)..................................................7

Leffingwell v. Warren,

67 U.S. 599 (1862)....................................................5

Lovell v. City of Griffin,

303 U.S. 444 (1938)..................................................6

M’Culloch v. Maryland,

17 U.S. (4 Wheat.) 316 (1819) ............................. 2, 3

McCullen v. Coakley,

573 U.S. 464 (2014)..................................................8

NIFLA v. Becerra,

138 S.Ct. 2361 (2018)...............................................8

Perry Educ. Ass’n v. Perry Local Educators’ Ass’n,

460 U.S. 37 (1983)....................................................7

Reed v. Town of Gilbert,

135 S.Ct. 2218 (2015)...............................................8

iv

Schneider v. State of New Jersey,

308 U.S. 147 (1939)..................................................6

Snyder v. Phelps,

131 S.Ct. 1207 (2011)...............................................8

Spector Motor Serv. v. McLaughlin,

323 U.S. 101 (1944)..................................................4

Stenberg v. Carhart,

530 U.S. 914 (2000)..................................................4

Supervisors v. United States,

85 U.S. 71 (1873)......................................................5

United States v. Grace,

461 U.S. 171 (1983)..................................................7

Constitution

U.S. Const. Amend. X..................................................3

U.S. Const. Art. I, Sec. 1 .............................................3

U.S. Const. Art. I, Sec. 8 .............................................3

Other Authorities

Federalist No. 39 (Madison)........................................2

Federalist No. 45 (Madison)........................................2

Statutes

Sup. Ct. Rule 37.6........................................................1

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INTEREST OF AMICUS CURIAE1

The Center for Constitutional Jurisprudence is the

public interest law arm of the Claremont Institute,

whose stated mission is to restore the principles of the

American founding to their rightful and preeminent

authority in our national life, including the doctrine of

Separation of Powers, both vertical and horizontal.

The Center has previously appeared before this Court

as amicus curiae in several cases addressing these issues, including Bond (2) v. United States, 572 U.S. 844

(2014), Arizona v. United States, 567 U.S. 387 (2012),

and Bond (1) v. United States, 564 U.S. 211 (2011).

SUMMARY OF ARGUMENT

The claim of power by the lower court here to impose a limiting construction on a municipal ordinance

is at best ironic. The Third Circuit Court of Appeals

has recognized that its authority to interpret federal

law is limited by the rule of deference announced in

Chevron USA, Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984). Helen Mining Co.

v. Elliott, 859 F.3d 226, 238 (3rd Cir. 2017). However,

that court claims authority to impose a limiting construction on a city ordinance – exceeding the constitutional authority of a federal court under our system of

dual sovereignty. Indeed, the court rejected the interpretation of the city that enacted the ordinance. Review should be granted in this case to preserve our

system of dual sovereignty from erosion.

1 All parties were notified of and have consented to the filing of

this brief. In accordance with Rule 37.6, counsel affirms that no

counsel for any party authored this brief in whole or in part and

that no person or entity other than amicus made a monetary contribution to fund the preparation and submission of this brief.

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The local ordinance at issue creates a “buffer zone”

in front of abortion clinics and it was intended to prohibit the petitioners from engaging in “sidewalk counseling.” The city’s arguments regarding the interpretation of the law reveal it to be content discriminatory.

Yet the city relies on this Court’s ruling in Hill v. Colorado, 530 U.S. 703 (2000), to uphold such content discrimination. The First Amendment was intended to

protect speech that challenged the listener – speech

intended to change the listener’s mind. The Pittsburgh ordinance and the law upheld in Hill are instead intended to ensure that those visiting an abortion clinic will not be approached by someone seeking

to engage in a calm and quiet conversation. The First

Amendment does not allow such a purpose and this

Court should grant review to overrule its prior decision in Hill.

REASONS FOR GRANTING THE WRIT

I.

The Court Should Grant Review to Protect

the Vertical Separation of Powers between

State and Federal Governments.

It remains one of the most fundamental tenets of

our constitutional system of government that the sovereign people delegated to the national government

only certain, enumerated powers, leaving the entire

residuum of power to be exercised by the state governments or by the people themselves. See, e.g., Federalist No. 39, at 256 (Madison); Federalist No. 45, at 29293 (Madison) (“The powers delegated by the proposed

Constitution to the federal government are few and

defined. Those which are to remain in the State governments are numerous and indefinite”); M’Culloch v.

Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819) (Marshall, C.J.) (“We admit, as all must admit, that the

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powers of the government are limited and that its limits are not to be transcended”).

This division of sovereign powers between the

two great levels of government was not simply a constitutional add-on, by way of the Tenth Amendment.

See U.S. Const. Amend. X (“The powers not delegated

to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”). Rather, it is inherent in

the doctrine of enumerated powers embodied in the

main body of the Constitution itself. See U.S. Const.

Art. I, Sec. 1 (“All legislative Powers herein granted

shall be vested in a Congress of the United States”

(emphasis added)); U.S. Const. Art. I, Sec. 8 (enumerating powers so granted); Bond (2) v. United States,

572 U.S. at 854; see also M’Culloch, 17 U.S. (4

Wheat.), at 405; United States v. Lopez, 514 U.S. 549,

552 (1995).

The constitutionally-mandated division of the

people’s sovereign powers between federal and state

governments was not designed to protect state governments as an end in itself, Rather it “was adopted by

the Framers to ensure protection of our fundamental

liberties.” Lopez, 514 U.S., at 552 (quoting Gregory v.

Ashcroft, 501 U.S. 452, 458 (1991)); Bond (1), 564 U.S.

at 221 (2011). see also United States v. Morrison, 529

U.S. 598, 616 n.7 (2000).

This vertical separation of power applies not only

to the President and Congress. It also limits the

power of the federal judiciary. See Harrison v. Nat’l

Ass’n for the Advancement of Colored People, 360 U.S.

167, 176 (1959). “[T]he States entered the federal system with their sovereignty intact; [and] the judicial

authority in Article III is limited by this sovereignty.”

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Blatchford v. Native Village of Noatak, 501 U.S. 775,

779 (1991). This Court in Erie R.R. Co. v. Tompkins,

304 U.S. 64, 78-79 (1938) noted:

[T]he Constitution of the United States, . . .

recognizes and preserves the autonomy and

independence of the States—independence

in their legislative and independence in their

judicial departments. Supervision over either the legislative or the judicial action of

the States is in no case permissible except as

to matters by the Constitution specifically

authorized or delegated to the United States.

Any interference with either, except as thus

permitted, is an invasion of the authority of

the State and, to that extent, a denial of its

independence.

Thus, this Court has held that interpretation of

state or local law is the exclusive province of the state

courts. Alabama State Fed’n of Labor v. McAdory, 325

U.S. 450, 470-71 (1945) (“the state alone can make” an

authoritative construction of a state statute); see Albertson v. Millard, 345 U.S. 242, 244 (1953); Spector

Motor Serv. v. McLaughlin, 323 U.S. 101, 105 (1944).

Only the state courts have the power to impose a limiting construction of a local law to avoid a constitutional question. See Erznoznik v. City of Jacksonville,

422 U.S. 205, 217 n.15 (1975); cf. Stenberg v. Carhart,

530 U.S. 914, 945 (2000) (reference to state court for

construction of a local law is only appropriate where

the statute is fairly subject to a limiting interpretation

that will avoid the constitutional question); Baggett v.

Bullitt, 377 U.S. 360, 378 n.11 (1964).

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The court below failed to heed these principles.

While it disclaimed any intent to “rewrite” the ordinance at issue, it did impose a “limiting” construction

on that ordinance in an attempt to avoid the constitutional question. Indeed, the court ruled that the ordinance did not mean what the city argued that the ordinance meant and that the ordinance did not reach

the conduct that the city intended to prohibit when it

enacted the ordinance.

A federal court cannot avoid a constitutional

question by imposing its own limiting interpretation

on a local law. The state courts are not bound by the

federal judiciary’s interpretation of local law. Alabama State Fed’n of Labor, 450 U.S. at 471; see Leffingwell v. Warren, 67 U.S. 599, 603 (1862); Supervisors v. United States, 85 U.S. 71, 81-82 (1873). Any

such ruling is nothing more than an advisory opinion,

providing the petitioners with no effective relief, since

the state courts are free to ignore the limiting interpretation imposed by the federal court. This Court

should grant review to enforce these rules of vertical

separation of powers that are meant to protect the dignity and sovereignty of states in our federalist system

of government.

II.

This Court Should Grant Review to Overrule Hill v. Colorado.

This Court’s decision in Hill v. Colorado invited

Pittsburgh and other state and local entities to enact

laws similar to the one under review in this case. In

Hill, this Court ruled that a law prohibiting approaching a person near an abortion clinic “‘for the purpose

of ... engaging in oral protest, education, or counseling’” was a content neutral regulation. Hill, 530 U.S.

at 720-21. The Court stated that the Colorado law did

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not prohibit a “particular viewpoint.” Id. at 723. But

the Court ignored the clear intent of the law to prohibit anti-abortion messages – an intent made clear

by the use of language like “education” and “counseling” that plainly aimed at one, and only one, point of

view. Indeed, later in the opinion the Court explicitly

recognized that the State had targeted particular

messages. The Court noted the State’s concession

that the law was designed to ensure that women entering an abortion clinic would be free from “unwanted encounters” with people opposed to abortion.

Id. at 729.

Hill stands as an outlier on the issue of speech in

a traditional public forum. As noted below, this Court

has consistently held that public sidewalks are open

to speech activities that do not obstruct traffic. Further, this Court has consistently rejected attempts to

ban speech in “special areas” of an otherwise open

public sidewalk. In light of Hill’s inconsistency with

these cases and its inconsistency with the purpose of

the free speech guaranty, this Court should overrule

Hill.

Prior to Hill, this Court had long recognized that

the public sidewalks were held open for speech activity subject only to regulation to ensure that traffic was

not impeded. Schneider v. State of New Jersey, 308

U.S. 147, 160 (1939). Prior to Schneider, the Court

ruled that cities could not require a permit to distribute literature on the city streets. Lovell v. City of Griffin, 303 U.S. 444, 451-52 (1938). These rulings were

joined by the decision in Hague v. CIO, 307 U.S. 496

(1939), where a fractured Court held that the Free

Speech guaranty protected speech activities in public

parks and city streets. In his lead plurality opinion

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Justice Roberts noted: “Wherever the title of streets

and parks may rest, they have immemorially been

held in trust for the use of the public and, time out of

mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing

public questions.” Id. at 515 (opinion of Roberts, J.).

This Court has repeatedly cited this observation of

Justice Roberts as a truism of American constitutional law. See, e.g., International Society for Krishna

Consciousness, Inc. v. Lee, 505 U.S. 672, 679 (1992);

Cornelius v. NAACP Legal Defense and Education

Fund, Inc., 473 U.S. 788, 802 (1985); Frisby v. Schultz,

487 U.S. 474, 481 (1984); United States v. Grace, 461

U.S. 171, 177 (1983); Perry Educ. Ass’n v. Perry Local

Educators’ Ass’n, 460 U.S. 37, 45 (1983).

Even when the sidewalk or street fronted a “sensitive area,” this Court has upheld speech activities on

the public areas traditionally open to speech. Thus,

while excessive noise in front of schools could be prohibited, peaceful picketing could not.

Compare

Grayned v. City of Rockford, 408 U.S. 104, 114 (1972)

with Mosley, 408 U.S. at 100. Similarly, a city might

prohibit picketing on the sidewalk in front of a single

house but, as a general matter, the sidewalks of even

residential neighborhoods are part of the traditional

public forum open to free speech activities. Frisby v.

Schultz, 487 U.S. at 482-84.

Sidewalks in front of foreign embassies are not off

limits to free speech activity. Boos v. Berry, 485 U.S.

312, 329 (1988). Even the sidewalk in front of this

Court is open to picketers and speakers. United

States v. Grace, 461 U.S. at 176-80. As this Court

noted in Grace, public sidewalks are part of the public

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forum and attempts to withdraw them from that forum are “presumptively impermissible.” Id. at 180.

Even the most sensitive areas do not qualify as

No Free Speech Zones. In Snyder v. Phelps, 131 S.Ct.

1207 (2011), this Court struck down a tort judgment

against Westboro Baptist Church for its display of

particularly offensive signs on a public street outside

of a funeral for a fallen soldier. Id. at 1217.

Hill simply does not fit in, neatly or otherwise,

with this Court’s prior decisions rejecting speech restrictions on public sidewalks. As Justice Scalia noted

in his dissenting opinion in Hill, the only possible way

to explain the decision is to say it is about abortion,

and the Court’s decisions on that sensitive subject

stand “in stark contradiction of the constitutional

principles [the Court applies] in other contexts.” Hill,

530 U.S. at 742 (Scalia, J. dissenting).

Nor does Hill fit in with recent developments in

this Court’s First Amendment jurisprudence. In Reed

v. Town of Gilbert, 135 S.Ct. 2218 (2015), this Court

noted “a separate and additional category of laws that,

though facially content neutral, will be considered

content-based regulations of speech: laws that cannot

be “justified without reference to the content of the

regulated speech.” Reed, 135 S.Ct. at 2227; see NIFLA

v. Becerra, 138 S.Ct. 2361, 2371 (2018). The Pittsburgh ordinance at issue in this case is just such a law

– it can only be justified by the speech it seeks to prohibit. Yet under Hill, such a law would be characterized as content neutral. Similarly, Hill’s approach to

narrow tailoring is inconsistent with this Court’s more

recent decision in McCullen v. Coakley, 573 U.S. 464

(2014). This Court noted that the ordinance at issue

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in that case swept far too broadly, especially considering that it prohibited speech in a traditional public forum. Id. at 476-77. That analysis is missing from the

decision in Hill.

There is no basis in the original understanding of

the free speech guaranty, however, for an “abortion”

exception, or indeed any similar subject matter exception. This Court should grant the petition and overrule Hill.

CONCLUSION

Federal courts have no role in pronouncing a limiting interpretation of a state law or municipal ordinance. The interpretation of state law is the domain

of state courts. This Court should grant review to protect the system of dual sovereignty enshrined in the

structure of the Constitution.

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The limiting construction was adopted to avoid ruling on Petitioners’ constitutional claims. The ordinance is a regulation of speech based on content. The

city’s attempt to justify this violation of speech rights

shows why the Court’s decision in Hill should be overruled.

April 2020

Respectfully submitted,

JOHN C. EASTMAN

ANTHONY T. CASO

Counsel of Record

The Claremont Institute’s Center for

Constitutional Jurisprudence

c/o Chapman University Fowler

School of Law

One University Drive

Orange, CA 92866

(877) 855-3330

caso@chapman.edu

Counsel for Amicus Curiae