Amicus Curiae Brief — Debra A. Vitagliano, Petitioner v. County of Westchester, New York

NO. 23-74

IN THE

Supreme Court of the United States

DEBRA A. VITAGLIANO,

Petitioner,

v.

COUNTY OF WESTCHESTER, NEW YORK,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Second Circuit

BRIEF OF AMICUS CURIAE ALLIANCE

DEFENDING FREEDOM

IN SUPPORT OF PETITIONER

JOHN J. BURSCH

Counsel of Record

ALLIANCE DEFENDING FREEDOM

440 First Street NW

Suite 600

Washington, DC 20001

(616) 450-4235

jbursch@ADFlegal.org

Counsel for Amicus Curiae

i

QUESTION PRESENTED

Whether this Court should reconsider its decision

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

decision conflicts directly with Reed v. Town of

Gilbert, 576 U.S. 155 (2015), and McCullen v. Coakley,

573 U.S. 464 (2014).

ii

TABLE OF CONTENTS

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

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

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

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

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

I. Hill drastically expanded the scope of the

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

II. Lower courts have followed Hill’s lead,

shielding listeners from unwelcome speech

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

III.This Court’s attempts to limit Hill without

explicitly overruling it have not worked. ........... 13

CONCLUSION ......................................................... 16

iii

TABLE OF AUTHORITIES

Cases

303 Creative LLC v. Elenis,

143 S. Ct. 2298 (2023).......................................... 1

Americans for Prosperity Foundation v. Bonta,

141 S. Ct. 2373 (2021).......................................... 1

Berger v. City of Seattle,

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

Berger v. City of Seattle,

569 F.3d 1029 (9th Cir. 2009) ......................... 7–8

Berger v. City of Seattle,

No. C03-3238JLR, 2005 WL 8161729

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

Brown v. City of Pittsburg,

No. 06-393, 2010 WL 2207935 (W.D. Pa.

2010) ..................................................................... 9

Brown v. City of Pittsburgh,

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

Bruni v. City of Pittsburgh,

283 F. Supp. 3d 357 (W.D. Pa. 2017) .................. 9

Bruni v. City of Pittsburgh,

941 F.3d 73 (3d Cir. 2019) ................................... 9

Central Park Sightseeing LLC v. New Yorkers for

Clean, Livable & Safe Streets, Inc.,

157 A.D.3d 28 (N.Y. App. Div. 2017) .. 5–6, 13–14

iv

Cohen v. California,

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

Dobbs v. Jackson Women’s Health Organization,

142 S. Ct. 2228 (2022)........................................ 16

Erznoznik v. City of Jacksonville,

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

Global Impact Ministries, Inc. v. City of

Greensboro,

2022 WL 801714 (M.D.N.C. Mar. 16, 2022) ..... 17

Hill v. Colorado,

530 U.S. 703 (2000)........................... i, 1–6, 10–13

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

1 F. Supp. 3d 892 (W.D. Wis. 2014) .............. 9–10

Masterpiece Cakeshop, Ltd. v. Colorado Civil

Rights Commission,

138 S. Ct. 1719 (2018).......................................... 1

McCullen v. Coakley,

573 U.S. 464 (2014)......................... i, 1, 10, 13–14

McGuire v. Reilly,

260 F.3d 36 (1st Cir. 2001) .................................. 8

National Institute of Family & Life Advocates v.

Becerra,

138 S. Ct. 2361 (2018).......................................... 1

Olmstead v. United States,

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

v

Phelps-Roper v. City of Manchester,

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

Phelps-Roper v. Koster,

713 F.3d 942 (8th Cir. 2013) ....................... 12, 15

Phelps-Roper v. Ricketts,

867 F.3d 883 (8th Cir. 2017) ....................... 13, 15

Phelps-Roper v. Strickland,

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

Price v. City of Chicago,

915 F.3d 1107 (7th Cir. 2019) ........................... 10

Reed v. Town of Gilbert,

576 U.S. 155 (2015)..................................... i, 1, 10

Right to Life of Central California v. Bonta,

562 F. Supp. 3d 947 (E.D. Cal. 2021) .......... 18–19

Snyder v. Phelps,

562 U.S. 443 (2011)...................................... 11, 14

Uzuegbunam v. Preczewski,

141 S. Ct. 792 (2021)............................................ 1

Vitagliano v. County of Westchester,

71 F.4th 130 (2d Cir. 2023) ............................... 15

Constitutional Provisions

U.S. CONST. amend. I ................................................. 2

vi

Other Authorities

Emma Camp, In Britain, You Can Be Arrested for

Silently Praying Outside an Abortion Clinic,

Reason (Feb. 10, 2023)................................. 17–18

Joe Bukuras, Acquitted pro-life activist Mark

Houck reveals details of ‘reckless’ FBI raid;

will press charges, Catholic News Agency

(Feb. 1, 2023)...................................................... 18

Jonathan Turley, ‘Your speech is violence’: the

left’s new mantra to justify campus violence,

The Hill (June 3, 2023) ...................................... 19

Josh Gerstein & Alexander Ward, Supreme Court

has voted to overturn abortion rights, draft

opinion shows, Politico (May 2, 2022) ............... 16

L. Tribe, American Constitutional Law § 12–19

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

Press Release, Alliance Defending Freedom, City of

Madison officially rescinds censorship zones

(Aug. 7, 2014) ..................................................... 14

Religious Freedom Institute, Religious Pro-Life

Americans Under Attack: A Threat Assessment

of Post-Dobbs America 7 (Sept. 2022) ............... 16

Wikipedia, Jane’s Revenge (last visited Aug. 18,

2023) ................................................................... 16

1

INTEREST OF AMICUS CURIAE 1

Alliance Defending Freedom is the world’s largest

legal organization committed to protecting religious

freedom, free speech, marriage and family, parental

rights, and the sanctity of life. Since 1994, Alliance

Defending Freedom has played a role, either directly

or indirectly, in many cases before this Court

protecting the right to free speech, including 303

Creative LLC v. Elenis, 143 S. Ct. 2298 (2023),

Americans for Prosperity Foundation v. Bonta, 141 S.

Ct. 2373 (2021), Uzuegbunam v. Preczewski, 141 S.

Ct. 792 (2021), Masterpiece Cakeshop, Ltd. v.

Colorado Civil Rights Commission, 138 S. Ct. 1719

(2018), National Institute of Family & Life Advocates

v. Becerra, 138 S. Ct. 2361 (2018), Reed v. Town of

Gilbert, 576 U.S. 155 (2015), and McCullen v. Coakley,

573 U.S. 464 (2014), and hundreds more cases in

lower courts.

Alliance Defending Freedom submits this brief to

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

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

since the Court decided it, and to urge this Court to

grant the petition and overrule Hill.

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

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

counsel made any monetary contribution intended to fund the

preparation or submission of this brief. All counsel were timely

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

2

SUMMARY OF THE ARGUMENT

In all but the most “narrow circumstances,” the

“Constitution does not permit government to decide

which types of otherwise protected speech are sufficiently offensive to require protection for the unwilling

listener or viewer.” Erznoznik v. City of Jacksonville,

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

include situations where “government may properly

act . . . to prohibit intrusion into the privacy of the

home of unwelcome views and ideas which cannot be

totally banned from the public dialogue.” Cohen v.

California, 403 U.S. 15, 21 (1971).

Hill did not implicate privacy in the home. It

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

listeners from unwanted communication”—even on

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

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

public fora. Unless and until the Court overrules Hill,

“the First Amendment is a dead letter” in these

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

Hill remains “an unprecedented departure from

this Court’s teachings respecting unpopular speech in

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

And the Court’s more recent attempts to correct

course have not worked. This Court should grant the

petition, vacate the decision of the court of appeals,

and decisively reaffirm that government “shall make

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

speech that the intended audience may not wish to

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

3

ARGUMENT

I.

Hill drastically expanded the scope of the

captive-audience doctrine.

Hill framed the issue before the Court as

requiring it to find “an acceptable balance between

the constitutionally protected rights of law-abiding

speakers and the interests of unwilling listeners.” 530

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

argued that a statute regulating “speech-related

conduct within 100 feet of the entrance to any health

care facility” had chilled their efforts to counsel

women considering abortion. Id. at 707–09. On the

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

powers to protect the health and safety of their

citizens,” including the more specific power to “protect

listeners from unwanted communication.” Id. at 715–

716 (cleaned up). Such protection, the Court believed,

would allow states to preserve the “unwilling

listener’s . . . broader ‘right to be let alone.’” Id. at

716–17 (quoting Olmstead v. United States, 277 U.S.

438, 478 (1928) (Brandeis, J., dissenting)).

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

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

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

Court refused to cabin the State’s interest in protecting “unwilling listeners” to such settings. Id. at 718.

Instead, the Court held that the State can protect

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

“confrontational settings,” even in “‘quintessential’

public forums for free speech” like “public sidewalks,

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

that expansive state interest, the Court had no

trouble upholding a law that “empower[ed] private

4

citizens entering a health care facility with the ability

to prevent a speaker, who is within eight feet and

advancing, from communicating a message they do

not wish to hear.” Id. at 734.

Justice Scalia dissented: “[I]f protecting people

from unwelcome communications (the governmental

interest the Court posits) is a compelling state

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

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

Court had “upheld limitations on a speaker’s exercise

of his right to speak on the public streets when that

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

752. And the Court had also “recognized the interests

of unwilling listeners” in “public conveyances” like

city buses, where “the degree of captivity makes it

impractical for the unwilling viewer or auditor to

avoid exposure.” Id. at 753 n.3 (cleaned up).

But the Court had “never made the absurd

suggestion that a pedestrian is a ‘captive’ of the

speaker who seeks to address him on the public

sidewalks, where he may simply walk quickly by.”

Ibid. “‘Outside the home, the burden is generally on

the observer or listener to avert his eyes or plug his

ears against the … ‘offensive’ intrusions which

increasingly attend urban life.’” Id. at 752–53

(emphasis added) (quoting L. Tribe, American

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

expanding the scope of the captive-audience doctrine,

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

of the home.” Id. at 753.

5

Justice Kennedy wrote separately to highlight the

“glaring departure from precedent” in the Court’s

holding that “citizens have a right to avoid unpopular

speech in a public forum.” 530 U.S. at 771 (Kennedy,

J., dissenting) (emphasis added). None of the cases

the Court cited had “establishe[d] a right to be free

from unwelcome expression aired by a fellow citizen

in a traditional public forum.” Ibid. “Instead, the

Court [had] admonished that citizens usually bear the

burden of disregarding unwelcome messages.” Id. at

772. Hill represented “an unprecedented departure

from this Court’s teachings respecting unpopular

speech in public fora.” Ibid.

II.

Lower courts have followed Hill’s lead,

shielding listeners from unwelcome speech

even in public places.

1. After Hill equated public sidewalks with the

home, lower courts ran with the captive-audience

doctrine, extending it to a forum as quintessentially

public as Central Park. For example, in Central Park

Sightseeing LLC v. New Yorkers for Clean, Livable &

Safe Streets, Inc., animal rights protesters appealed

an injunction to one of New York’s intermediate

appellate courts in a case involving a dispute between

the protesters and a horse-drawn carriage ride

operator. 157 A.D.3d 28, 30 (N.Y. App. Div. 2017).

Citing Hill, the court upheld a modified injunction—preventing the protesters from, among other

things, “knowingly approaching within nine feet of

another person in the loading/unloading zone, without that person’s consent, for the purpose of handing

a leaflet or bill or displaying a sign or engaging in oral

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

6

The court upheld the injunction despite recognizing that “[p]ublic sidewalks, streets, and ways are

the ‘quintessential’ public fora for free speech, and

leafletting, signs, and displays are time-honored

methods of communication enjoying First Amendment protection.” Ibid. (citing Hill, 530 U.S. at 715).

How? Hill: “[T]he Supreme Court has consistently

recognized ‘the interests of unwilling listeners in

situations where the degree of captivity makes it

impractical for the unwilling viewer or auditor to

avoid exposure.’” Ibid. (quoting Hill, 530 U.S. at 718).

For the court, the injunction struck “the appropriate

balance between the First Amendment rights of the

protestors and the rights of customers and other

pedestrians to avoid unwelcome approaches” and

“unwanted intrusions,” id. at 30, 34, in Central Park.

Moving to the West Coast, in Berger v. City of

Seattle, a street performer sued Seattle, challenging

rules prohibiting certain types of speech activities on

an “84-acre parcel of land” “home to museums,

theaters, sports arenas, and other entertainment and

cultural destinations, including the Space Needle.”

No. C03-3238JLR, 2005 WL 8161729, at *1 (W.D.

Wash. Apr. 22, 2005). One rule disallowed all “speech

activities” within 30 feet of any “captive audience,” to

address “visitors’ complaints about unwanted

harangues and solicitations.” Id. at *3–4. 2

2 “Speech activities” included “political speech and commercial

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

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

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

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

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

7

The district court held that the rule violated the

First Amendment, but not for the obvious reason that

its purpose was to limit speech in a traditional public

forum merely because the intended audience did not

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

to reach that issue and held that because the rule

contained exceptions, it was “not narrowly tailored to

advance [the City’s] interest in protecting captive

audiences.” Ibid.

The Ninth Circuit, while not specifically citing

Hill, relied on this Court’s captive-audience case law

to support its conclusion that City “authorities had

the right to protect captive audiences seeking to

enjoy” the area’s “public entertainment, relaxation,

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

582, 605 (9th Cir. 2008). The panel took great comfort

in knowing that the rule did “not silence a message in

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

expressed in locations where it would pose a serious

threat to order and to the convenience and peace of

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

The en banc Ninth Circuit reversed, singling out

the captive-audience rule as the “most troublesome of

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

569 F.3d 1029, 1053 (9th Cir. 2009) (en banc). According to the majority, this Court’s captive-audience case

law “fully supports” the “conclusion that public parkgoers, in general, are not a protectable captive

audience for constitutional purposes.” Id. at 1054.

Incredibly, three judges dissented, calling the rule a

“reasonable method of achieving the City’s legitimate

interest in the safety and convenience of” visitors. Id.

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

bluntly, the dissent insisted that the City had a

8

“significant governmental interest in ensuring that

these patrons [had] an enjoyable experience, so that

Seattle Center and the City as a whole [could]

continue to be a desirable and commercially profitable

destination.” Id. at 1080–81.

Under this broad reasoning, Seattle could

respond to a march for life by banning all speech

activities in the City’s commercial district.

Montgomery, Alabama, could respond to a pro-choice

rally by doing the same. When the government can

implement speech bans in public places to ensure that

citizens have “an enjoyable experience,” the First

Amendment has ceased to protect anything. Yet Hill

justifies that outcome.

2. Peaceful pro-life sidewalk counselors have not

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

the First Circuit held that Hill controlled its

consideration of a Massachusetts statute creating a

“floating six-foot buffer zone around pedestrians and

motor vehicles as they approach[ed] reproductive

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

2001). Pro-life sidewalk counselors brought a First

Amendment challenge, and the district court granted

a preliminary injunction. Id. at 41–42.

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

district court’s conclusion that exemptions for clinic

workers made the statute content-based, the court

reasoned that the legislature rationally could have

believed clinic employees were less likely to direct

“unwanted speech toward captive listeners—a datum

that the Hill Court recognized as justifying the

statute there.” Id. at 44–46.

9

Similarly, in Brown v. City of Pittsburgh, the

Third Circuit held that a “bubble zone” ordinance

challenged by a pro-life sidewalk counselor was

constitutional on its face because, like the statute

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

the effort to communicate with unwilling listeners.” 3

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

created by the Ordinance at issue here [was] a

virtually verbatim copy of the Hill statute,” the court

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

be facially valid under the First Amendment’s Free

Speech Clause.” Id. at 273. 4

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

the District Court for the Western District of

Wisconsin denied a motion for a temporary

restraining order filed by various pro-life groups and

individuals seeking protection from a city ordinance

similar to the Colorado buffer-zone statute upheld in

Hill. 5 1 F. Supp. 3d 892, 894, 900 (W.D. Wis. 2014). In

so holding, the court discarded one of the few limits

on the unwelcome-speech doctrine that Hill articulated.

3 Amicus represented the sidewalk counselor in Brown.

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

injunction with respect to Brown’s claim that the Ordinance

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

297 (emphasis added). The district court permanently enjoined

the bubble zone on remand, Brown v. City of Pittsburg, No. 06393, 2010 WL 2207935, at *2 (W.D. Pa. 2010), but left the buffer

zone in place. Bruni v. City of Pittsburgh, 283 F. Supp. 3d 357

(W.D. Pa. 2017). The Third Circuit affirmed that decision. Bruni

v. City of Pittsburgh, 941 F.3d 73 (3d Cir. 2019).

5 Amicus represented the plaintiffs in this case.

10

In addition to privacy in the home, the Hill

opinion emphasized a government interest to protect

citizens from unwelcome speech “in confrontational

settings.” 530 U.S. at 717 (emphasis added). In

Madison Vigil, the City failed to proffer any evidence

of confrontational demonstrations at any of the

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

Undeterred, the district court rationalized that it was

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

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

heavily on [such] confrontations.” Ibid.

There had “undoubtedly been demonstrations,

confrontational or otherwise, outside of various health

care facilities across the country.” Ibid. (emphasis

added). So, the absence of “confrontational demonstrations in the record,” the district court continued,

did not “lessen the legitimacy” of the City’s desire to

protect the “‘unwilling listener’s interest in avoiding

unwanted communication.’” Ibid. (quoting Hill, 530

U.S. at 716). The court rejected even this modest

attempt to limit the captive-audience doctrine’s scope.

Such reasoning opens the door to any government

rule protecting citizens from unwelcome speech.

And in Price v. City of Chicago, the Seventh

Circuit upheld another speech-restricting buffer zone,

by applying Hill. 915 F.3d 1107, 1109 (7th Cir. 2019).

The court of appeals noted that “Hill is incompatible

with current First Amendment doctrine as explained

in Reed [v. Town of Gilbert, 576 U.S. 155 (2015),] and

McCullen [v. Coakley, 573 U.S. 464 (2014)].” Id. at

1117. Indeed, “it’s not too strong to say that what Hill

explicitly rejected is now prevailing law. Id. at 1118.

Still, “neither McCullen nor Reed overruled Hill, so it

remains binding on” the lower courts. Id. at 1109.

11

3. Most illuminating, lower courts have used Hill

to uphold the very kind of speech restrictions that this

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

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

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

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

pickets and protests conducted near our nation’s

military funerals. Although this Court in Snyder

declined to “expand the captive audience doctrine” to

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

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

reasoning to uphold laws intended to limit Westboro’s

ability to express its views in public.

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

Sixth Circuit cited Hill to support the court’s holding

that the State’s “important interest in the protection

of funeral attendees” justified a “Funeral Protest

Provision” preventing Westboro from picketing and

protesting within 300 feet of a funeral or burial

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

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

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

the audience to unwanted communication was

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

avoid unwanted protests without sacrificing their

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

at 366. So, the Sixth Circuit affirmed the district

court’s decision rejecting Westboro’s First Amendment challenge. Id. at 373.

The Eighth Circuit Court of Appeals reached the

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

the court used Hill to overrule two of its earlier

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

12

protecting unwilling listeners to residential settings.”

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

reasoning [did] not withstand scrutiny, however,

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

an interest ‘in confrontational settings,’ and in certain

instances when the ‘offensive speech . . . is so

intrusive that the unwilling audience cannot avoid

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

citation omitted).

Noting that mourners must “be in a certain place

at a certain time to participate in a funeral or burial

and are therefore unable to avoid unwelcome speech

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

had “shown a significant government interest in

protecting the peace and privacy of funeral attendees

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

692, 693. Ultimately, the court reversed the district

court’s ruling that the challenged ordinance violated

the First Amendment. Id. at 695.

One year later, the Eighth Circuit applied that

decision in Phelps-Roper v. Koster, upholding a

Missouri statute making it unlawful “to engage in

picketing or other protest activities within three

hundred feet of or about any location at which a

funeral is held, within one hour prior to the

commencement of any funeral, and until one hour

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

947, 954 (8th Cir. 2013).

Four years later, the Eighth Circuit went even

further, this time upholding Nebraska’s buffer zone

prohibiting “picketing within 500 feet of a cemetery,

mortuary, or church from one hour prior through two

hours following the commencement of a funeral.”

13

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

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

testimony that mourners “felt victimized by

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

zone helps,” the court found a “significant government

interest” in ensuring “vulnerable friends and family

can mourn and honor their deceased loved one in a

respectful environment of peace and privacy free from

unwanted public exploitation.” Id. at 894.

III. This Court’s attempts to limit Hill without

explicitly overruling it have not worked.

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

after McCullen. In McCullen, this Court was clear

that the challenged statute “would not be content

neutral if it were concerned with undesirable effects

that arise from the direct impact of speech on its

audience or listeners’ reactions to speech.” 573 U.S. at

481 (cleaned up). On the contrary, the Court praised

public streets and sidewalks as “venues for the

exchange of ideas” given that, in these fora, “a listener

often encounters speech he might otherwise tune out.”

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

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

It is difficult to square McCullen with Central

Park’s assertion that this Court has “consistently

recognized ‘the interests of unwilling listeners in

situations where the degree of captivity makes it

impractical for the unwilling viewer or auditor to

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

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

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

Amendment rights of the protestors and the rights of

customers and other pedestrians to avoid unwelcome

14

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

If the buffer-zone statute in McCullen would have

been content-based if it were premised on an asserted

interest in protecting unwilling listeners “from the

direct impact of speech,” 573 U.S. at 481 (cleaned up),

surely the challenged injunction in Central Park was

also content-based.

But Central Park never cites McCullen, relying

instead on Hill and holding that the injunction was

content-neutral. 157 A.D.3d at 34. Central Park

proves that the damage done in Hill cannot easily be

undone until this Court takes the affirmative step to

overrule Hill. Explicitly. 6

The trio of post-Snyder Eighth Circuit cases

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

explicitly “decline[d] to expand the captive audience

doctrine to the circumstances presented” there. 562

U.S. at 460. The Court applied the doctrine “only

sparingly to protect unwilling listeners from protected speech.” Id. at 459. As examples, the Court cited

its decisions to uphold a statute “allowing a homeowner to restrict the delivery of offensive mail to his

home, and an ordinance prohibiting picketing ‘before

or about’ any individual’s residence.” Id. at 459–60

(internal citations omitted). Noticeably absent from

the Court’s discussion was any mention of Hill.

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

Madison Vigil. Press Release, Alliance Defending Freedom, City

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

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

But

that

resulted from a legislative change.

15

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

City of Manchester, the Eighth Circuit distinguished

Snyder and applied Hill instead, recognizing a

“significant government interest” in protecting

mourners’ “privacy” and shielding them from “unwelcome speech.” 697 F.3d at 692–93. The court’s

subsequent decisions in Phelps-Roper v. Koster and

Phelps-Roper v. Ricketts followed suit. Koster, 713

F.3d at 951; Ricketts, 867 F.3d at 893–94.

Finally, the decision below demonstrates that—so

long as speech restrictions resemble the statute

upheld in Hill more than the statute struck down in

McCullen—lower courts will apply Hill despite its

overly expansive view of the captive-audience

doctrine and its substantial diminishment of First

Amendment freedoms. Westchester County passed a

law materially identical to the one upheld in Hill. The

Second Circuit did not even bother to examine the

ordinance through the lens of this Court’s modern

First Amendment jurisprudence. Instead, the court

dutifully affirmed the district court’s “judgment on

the merits [for the County] because the district court

correctly concluded that Hill is dispositive of

Vitagliano’s First Amendment claim.” Vitagliano v.

Cnty. of Westchester, 71 F.4th 130, 132 (2d Cir. 2023)

(per curiam). “Hill remains controlling precedent and

dictates that the County’s bubble zone withstands

First Amendment scrutiny.” Id. at 141. No further

analysis or thought required.

16

IV. Hostility toward the pro-life community

has exacerbated the need for an end to Hill.

Lack of tolerance and outright violence toward

the pro-life community—particularly religious prolife Americans—has accelerated in the wake of Dobbs

v. Jackson Women’s Health Organization, 142 S. Ct.

2228 (2022).

On May 2, 2022, Politico leaked a draft of this

Court’s Dobbs majority opinion. Josh Gerstein &

Alexander Ward, Supreme Court has voted to overturn

abortion rights, draft opinion shows, Politico (May 2,

2022), https://bit.ly/3OHS2tL. Over the ensuing

months, there were “39 known attacks on Catholic

sites—an average of one site attacked every three

days. The sites were predominantly churches, plus

three pregnancy resource centers, and four schools.”

Religious Freedom Institute, Religious Pro-Life

Americans Under Attack: A Threat Assessment of

Post-Dobbs

America

7

(Sept.

2022),

https://bit.ly/47OVbRo.

These were hardly isolated incidents. “Attacks on

crisis pregnancy centers and a Congressman’s office

have been made in” the name of Jane’s Revenge—a

radical pro-abortion group that Facebook has labeled

a “terrorist organization”—“in New York, North

Carolina, Washington, Wisconsin, Ohio, Maryland,

Pennsylvania, Minnesota, Michigan, Iowa, Florida,

the District of Columbia, Virginia, and potentially

Oregon.” Wikipedia, Jane’s Revenge (last visited Aug.

18, 2023), https://bit.ly/3OYaXln. Attack sites often

bear the group’s members’ signature slogan: “If

Abortions Aren’t Safe, Neither Are You.”

17

Predictably, this hostility has extended even to

pro-life citizens and organizations who have held

prayer vigils and other peaceful protests near

abortion clinics—both before and after Dobbs, both

here and abroad—often with absurd results.

For example, in spring 2020, in Greensboro,

North Carolina, police arrested pro-life members of

the Christian ministry “Love Life” for engaging in

peaceful prayer outside an abortion facility. The

citizens complied with the local county emergency

proclamation pertaining to the coronavirus. Yet the

city defended its actions because the Love Life

members traveled to the facility by car, not by foot,

and traveled there from outside the county—even

though neither prohibition appeared anywhere in the

emergency proclamation or local law. Incredibly, the

city claimed that the “state of emergency” gave

officials the authority to prohibit all First

Amendment activity. Global Impact Ministries, Inc. v.

City of Greensboro, 2022 WL 801714, at *1–2, 5

(M.D.N.C. Mar. 16, 2022); Am. Compl. ¶¶ 125, 127,

R. 39, Global Impact Ministries, Inc. v. City of

Greensboro, No. 1:20-cv-329 (Apr. 7, 2021).

In Birmingham, England, officials used a socalled “Anti-Social Behavior, Crime and Policing Act”

to arrest a woman who was silently praying outside of

an abortion clinic. Emma Camp, In Britain, You Can

Be Arrested for Silently Praying Outside an Abortion

Clinic, Reason (Feb. 10, 2023), https://bit.ly/45g75SD.

(A short time later, she was arrested a second time.)

This prompted a Catholic priest to stand nearby the

clinic with a sign that said, “Praying for Freedom of

Speech.” Although the sign said nothing about

abortion, police charged him under the law for “intim-

18

idating service users.” Ibid. And for good measure,

they filed “a second charge because his car, which was

parked within the enforcement zone, had a bumper

sticker reading ‘Unborn Lives Matter’ on it.” Ibid.

Perhaps most famously, pro-life sidewalk

counselor Mark Houck was federally indicted for two

violations of the Freedom of Access to Clinic Entrances (FACE) Act. The indictment alleged Houck twice

shoved an abortion-clinic escort; Houck explained

that he was trying to protect his 12-year-old son

whom the abortion-clinic escort was harassing.

Despite Houck’s attorneys telling authorities that he

would come in for questioning peacefully, Houck said

that he was forcefully arrested by more than 20

federal agents and Pennsylvania state troopers at

6:45 a.m. at his home, in front of his wife and seven

children. A federal jury eventually acquitted Houck of

all charges. Joe Bukuras, Acquitted pro-life activist

Mark Houck reveals details of ‘reckless’ FBI raid; will

press charges, Catholic News Agency (Feb. 1, 2023),

https://www.catholicnewsagency.com/news/253523/a

cquitted-pro-life-activist-mark-houck-reveals-detailsof-fbi-raid-will-press-charges.

Hill is even influencing lower courts in cases that

regulate pro-life speech conducted exclusively on prolife property. For example, in Right to Life of Central

California v. Bonta, 562 F. Supp. 3d 947 (E.D. Cal.

2021), a pro-life advocacy group was forced to file suit

to enjoin a 30-foot government speech zone outside

vaccine sites. The problem? The group couldn’t

engage in expressive activity in its own parking lot or

on the sidewalk in front if its own building because a

Planned Parenthood located next door offered

vaccines.

19

In defending the speech zone, the California

Attorney General relied heavily on Hill. And although

the district court ultimately ruled in favor of the prolife advocacy group, it reached that conclusion

primarily because the 30-foot buffer zone in

California’s law was much larger than the eight-foot

in Hill: 562 F. Supp. 3d at 963–64. Had the vaccine

speech zone been closer to eight feet, it appears the

court would have upheld it under Hill even though

such a law would have had an obviously impermissible effect on pro-life (and other) speech.

In sum, Hill sends the message to radical proabortionists that pro-life speech and silent prayer are

not worth protecting. And to a movement that often

equates speech with violence,7 that message sometimes translates to violent acts against pro-life organizations and their members. In a post-Dobbs world,

there is an urgent need for this Court to overrule Hill

and clarify that the First Amendment protects pro-life

speech—as well as those who speak it.

7 E.g., Jonathan Turley, ‘Your speech is violence’: the left’s new

mantra to justify campus violence, The Hill (June 3, 2023),

https://bit.ly/44qEOr8.

20

CONCLUSION

The petition for certiorari should be granted.

Respectfully submitted,

JOHN J. BURSCH

Counsel of Record

ALLIANCE DEFENDING FREEDOM

440 First Street NW

Suite 600

Washington, DC 20001

(616) 450-4235

jbursch@ADFlegal.org

AUGUST 2023