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,

v.

Petitioner,

COUNTY OF WESTCHESTER,

Respondent.

____________________________________

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Second Circuit

____________________________________

BRIEF OF KENTUCKY, ALABAMA,

ARKANSAS, IDAHO, IOWA, MISSISSIPPI,

MISSOURI, MONTANA, NEBRASKA,

SOUTH CAROLINA, TENNESSEE, TEXAS,

UTAH, AND WEST VIRGINIA

AS AMICI CURIAE

SUPPORTING PETITIONER

____________________________________

DANIEL CAMERON

Attorney General of

Kentucky

MATTHEW F. KUHN

Solicitor General

Counsel of Record

Office of the Kentucky

Attorney General

700 Capital Avenue

Suite 118

Frankfort, KY 40601

(502) 696-5300

Matt.Kuhn@ky.gov

DANIEL J. GRABOWSKI

JENNA M. LORENCE

Assistant Solicitors

General

i

TABLE OF CONTENTS

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

INTERESTS OF AMICI CURIAE .............................. 1

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

ARGUMENT ................................................................ 4

I. Hill is an aberration and should be overruled ...... 4

II. Continued reliance on Hill curtails free-speech

rights....................................................................... 7

III.The government can narrowly tailor laws to

protect both speech and safety without Hill ....... 14

CONCLUSION .......................................................... 18

ii

TABLE OF AUTHORITIES

Cases

Agostini v. Felton,

521 U.S. 203 (1997) ........................................ 2, 8, 14

Bruni v. City of Pittsburgh,

141 S. Ct. 578 (2021) .............................................. 14

City of Austin v. Reagan Nat’l Advert. of Austin, LLC,

142 S. Ct. 1464 (2022) ................................ 4, 5, 7, 13

City of Mesquite v. Aladdin’s Castle, Inc.,

455 U.S. 283 (1982) ................................................ 15

Coal. For Life St. Louis v. City of Carbondale,

2023 WL 4681685 (S.D. Ill. July 6, 2023).............. 11

Dobbs v. Jackson Women’s Health Org.,

142 S. Ct. 2228 (2022) ................................ 1, 6, 7, 13

FCC v. League of Women Voters of Cal.,

468 U.S. 364 (1984) .................................................. 6

Hill v. Colorado,

530 U.S. 703 (2000) ...................................... 1–14, 17

McCullen v. Coakley,

573 U.S. 464 (2014) .................... 2, 4, 6–9, 12–15, 17

Price v. City of Chicago,

915 F.3d 1107 (7th Cir. 2019) ............................ 7, 12

Reed v. Town of Gilbert,

576 U.S. 155 (2015) .............................. 2, 4–7, 12, 13

Riley v. Nat’l Fed’n of the Blind of N.C., Inc.,

487 U.S. 781 (1988) ............................................ 6, 10

iii

Roman Cath. Diocese of Brooklyn v. Cuomo,

141 S. Ct. 63 (2020) ................................................ 10

Sisters for Life, Inc. v. Louisville-Jefferson Cnty.

Metro Gov’t, 2022 WL 586785 (W.D. Ky. Feb. 25,

2022) ............................................................... 8, 9, 10

Sisters for Life, Inc. v. Louisville-Jefferson County,

56 F.4th 400 (6th Cir. 2022)....... 2, 3, 8, 9, 10, 15, 16

Snyder v. Phelps,

562 U.S. 443 (2011) .................................................. 6

Turco v. City of Englewood,

621 F. Supp. 3d 537 (D.N.J. 2022) ......................... 13

Turco v. City of Englewood,

935 F.3d 155 (3d Cir. 2019).............................. 12, 13

Vitagliano v. County of Westchester,

71 F.4th 130 (2d Cir. 2023) ...................................... 8

Ward v. Rock Against Racism,

491 U.S. 781 (1989) .................................................. 5

Constitution, Statutes, and Ordinances

U.S. Const. amend. I ......................... 1–4, 6, 10–14, 17

18 U.S.C. § 248(a)(1) .................................................. 15

Chicago, Ill. Code § 8-4-010(j)(1) ............................... 12

Ill. Code § 14-4-2(H) .................................................. 11

Ky. Rev. Stat. §§ 508.010–.040.................................. 17

Ky. Rev. Stat. § 508.070 ............................................ 17

Ky. Rev. Stat. § 508.075 ............................................ 17

iv

Louisville-Jefferson Ord. Code § 132.09(B)(1).......... 15

Md. Code Ann., Crim. Law § 10-204(c) ..................... 16

Mass. Gen. Laws Ann. ch. 266, § 120E ..................... 16

Mont. Code. Ann. § 45-8-110 ..................................... 11

N.C. Gen. Stat. § 14-277.4(a) .................................... 16

N.C. Gen. Stat. § 14-277.4(b) .................................... 16

Nev. Rev. Stat. § 449.531 .......................................... 16

W. Va. Code § 78-235(c) ............................................. 11

Wash. Rev. Code § 9A.50.020 .................................... 17

Other Authorities

Board of Legislators County of Westchester

Committee on Legislation and Health, Report

(July 7, 2023),

https://perma.cc/S5SP-BSSB ........................... 14, 15

Board of Legislators, Meeting Minutes, Published

Draft (Aug. 7, 2023),

https://perma.cc/A2QA-XJRY................................ 14

Shauna Johnson, Charleston council considers

language regarding access to health care

facilities, MetroNews (May 29, 2019),

https://perma.cc/YY7T-226B .................................. 12

MetroNews Staff, Charleston Council committee

passes ordinance on facilities access, MetroNews

(May 29, 2019),

https://perma.cc/Q5GR-7BT7 ........................... 11, 12

1

INTERESTS OF AMICI CURIAE 1

The amici States have an overwhelming interest in

protecting their citizens’ free-speech rights. But

around abortion facilities, many bubble- or buffer-zone

laws infringe on those rights at the moment they are

needed most. The zones prohibit discussions on a hotly

contested moral and political issue at the last place the

speech could have an effect: before a mother makes a

life-altering decision for herself and her child.

Ordinarily, the government could only justify such

a content-based restriction after satisfying strict scrutiny. But Hill v. Colorado, 530 U.S. 703 (2000), “distorted” this First Amendment doctrine, Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2276 (2022).

Under Hill, the government needs to satisfy only a watered-down version of intermediate scrutiny to silence

its citizens. Hill’s holding is irreconcilable with this

Court’s other free-speech cases. That is hardly up for

debate. The only question here is whether the Court

should grant review to say so. It should. The States

file this amicus brief to urge the Court to grant certiorari and overturn Hill.

SUMMARY OF THE ARGUMENT

Outside abortion facilities around the country,

sidewalk counselors like Debra Vitagliano offer

women a compassionate listening ear. The counselors

tell women about pregnancy and parenting resources.

And counselors assure women that they are not alone.

But some jurisdictions ban this counseling near these

1 Amici have notified counsel for all parties of their intent to file

this brief. Sup. Ct. R. 37.2.

2

facilities. In other words, they prohibit speech based

on its content.

In any other context, such content-based restrictions must run the gauntlet of strict scrutiny. But

in 2000, this Court gave the government pretty close

to a free pass outside abortion facilities. In Hill, a content-based restriction became a content-neutral one.

See 530 U.S. at 725. And rather than make the government then justify its restrictions under typical intermediate scrutiny, the Court recast narrow tailoring

to mean something different at abortion facilities: a

prophylactic, bright-line rule is good enough. These

rules are at odds with the First Amendment’s guarantee of free expression.

Though Hill is an outlier in this Court’s case law,

it continues to distort the First Amendment. To be

sure, the Court cabined Hill in McCullen v. Coakley,

573 U.S. 464 (2014). And the Court cast doubt on Hill

in later cases like Reed v. Town of Gilbert, 576 U.S.

155 (2015). But the Court has yet to overrule Hill. So

it remains binding on lower courts. See Agostini v. Felton, 521 U.S. 203, 237 (1997). And that means that if

a law looks enough like the one in Hill, then a lower

court has no choice but to uphold it. This is true even

though it robs Americans of their First Amendment

rights—just what happened to the sidewalk counselor

here. Plus, even when the law differs from that in Hill,

some lower courts are still led astray.

Kentucky knows this all too well. In 2021, its largest city, Louisville, banned sidewalk counselors from

speaking in a buffer zone outside an abortion facility.

Sisters for Life, Inc. v. Louisville-Jefferson County, 56

3

F.4th 400, 402 (6th Cir. 2022). For over a year, the law

was in effect while the sidewalk counselors sought a

preliminary injunction, were denied that injunction

based on Hill, and then had to appeal to the Sixth Circuit. And that loss of their First Amendment rights

had an enormous effect on the sidewalk counselors’ efforts to persuade women not to undergo an abortion.

Although the Sixth Circuit ultimately allowed the

counselors to return to their ministry, Hill’s damage

during that span could not be undone. That loss of the

sidewalk counselors’ rights and their inability to reach

pregnant women seeking an abortion could not be corrected. And Kentucky’s experience is just one example. Other jurisdictions around the country continue

to adopt Hill-style restrictions, confident that Hill

gives them enough latitude to bar speech outside abortion facilities.

Hill is not necessary for the government to protect

the public outside abortion facilities. Physical harm,

property damage, trespassing, and threats of violence

are all appropriately criminalized under various federal, state, and local laws. Yet under Hill, the government can criminalize personal, compassionate offers of

care and support alongside these dangerous actions.

Of course, that nullifies the constitutional command

that the government should not burden substantially

more speech than necessary to achieve its ends.

There is no abortion exception to the First Amendment. Sidewalk counseling is not second-class speech,

and government restrictions on it must meet the same

standards as every other content-based restriction.

Hill was wrong from the moment it was decided. And

4

only this Court can fix it. The Court should grant certiorari to overturn Hill, requiring all content-based restrictions on speech to satisfy strict scrutiny.

ARGUMENT

I. Hill is an

overruled.

aberration

and

should

be

Sidewalks have always occupied “a ‘special position

in terms of First Amendment protection’ because of

their historic role as sites for discussion and debate.”

McCullen, 573 U.S. at 476 (citation omitted). The government must hold these spaces “in trust for the use

of the public” because they are “used for purposes of

assembly, communicating thoughts between citizens,

and discussing public questions.” Id. (citation omitted).

Sidewalks are especially important because they

are not an echo chamber for speech. “[T]hey remain

one of the few places where a speaker can be confident

that he is not simply preaching to the choir.” Id. On a

sidewalk, a citizen may “encounter[] speech he might

otherwise tune out”—a reflection of the First Amendment’s goal to “preserve an uninhibited marketplace

of ideas in which truth will ultimately prevail.” Id. (citation omitted). Excluding speech based on its content

flies in the face of this goal, particularly on public sidewalks. So if the government wants to exclude speech

based on its content, its restriction must survive strict

scrutiny. See City of Austin v. Reagan Nat’l Advert. of

Austin, LLC, 142 S. Ct. 1464, 1471 (2022).

It should not be difficult to discern whether a restriction on speech is content-based or not. See Reed,

5

576 U.S. at 163. The first step is asking whether the

law “‘on its face’ draws distinctions based on the message a speaker conveys,” either by defining speech by

subject matter or “by its function or purpose” serving

as a content proxy. Id. (citations omitted); City of Austin, 142 S. Ct. at 1474. And even if a restriction is facially content neutral, it may still require strict scrutiny if it “cannot be justified without reference to the

content of the regulated speech” or the government

adopted it “because of disagreement with the message

the speech conveys.” Reed, 576 U.S. at 164 (cleaned

up) (quoting Ward v. Rock Against Racism, 491 U.S.

781, 791 (1989)).

Hill applied this test exactly backwards. It failed

to start with the text of the Colorado law at issue,

which banned “oral protest, education, or counseling”

outside abortion facilities. 530 U.S. at 707. It instead

examined the government’s intent, asking “whether

the government has adopted a regulation of speech because of disagreement with the message it conveys.”

Id. at 719 (citation omitted). And rather than look to

“reference[s] to the content of the speech” for evidence

that a facially neutral statute was content-based,

Reed, 576 U.S. at 164 (citation omitted), Hill used the

government’s oblique references to “access” and “privacy” to cure any content-based concerns, 530 U.S. at

715–25. So Hill subjected Colorado’s facially contentbased restrictions on speech to a lower standard of review than any of the Court’s cases since.

But Hill’s errors did not stop there. It adopted a

watered-down version of intermediate scrutiny and

applied it to protect—for the first time—the “right to

6

be let alone” from “unwanted communication” on public sidewalks. Hill, 530 U.S. at 716–18 (citation omitted). This is the exact opposite of the “uninhibited

marketplace of ideas” the First Amendment guarantees. FCC v. League of Women Voters of Cal., 468 U.S.

364, 377 (1984) (citation omitted); see also Snyder v.

Phelps, 562 U.S. 443, 461 (2011) (protecting “even

hurtful speech on public issues to ensure that we do

not stifle public debate”).

Confusing matters further, Hill then determined

that the statute was narrowly tailored because its

“prophylactic approach” provided a “bright-line” rule

and offered “clear guidance.” 530 U.S. at 729. That’s

not how narrow tailoring works. The government cannot “attempt to suppress speech . . . for mere convenience.” McCullen, 573 U.S. at 486. This sacrifice of

“speech for efficiency” is “not permit[ted]” under the

First Amendment. Riley v. Nat’l Fed’n of the Blind of

N.C., Inc., 487 U.S. 781, 795 (1988). Yet it was in Hill.

Outside the abortion facility there, it was not only condoned but encouraged as “the best way” to limit

speech. Hill, 530 U.S. at 729.

Since Hill was decided, this Court has never again

relied on its analysis. The Court ignored it in McCullen while invalidating a law originally “modeled on”

the Hill statute. 573 U.S. at 470. In Reed, the Court

reversed courts that relied on Hill to “conclude[] that

[a speech restriction was] content neutral.” 576 U.S.

at 162–63. The Court has even pointed out Hill’s “distort[ion of] First Amendment doctrines.” Dobbs, 142 S.

Ct. at 2276. And it has explicitly disclaimed reaffirming Hill when determining whether another speech

7

classification was content neutral. See City of Austin,

142 S. Ct. at 1475.

Indeed, City of Austin cannot save Hill. There, the

Court held that a sign code that distinguished between

on- and off-premises signs was not content-based. Id.

at 1471. Even though the distinction required reading

the sign to know whether it was allowed, that did not

make it content-based. The distinction was “agnostic

as to content,” requiring “an examination of speech

only in service of drawing neutral, location-based

lines.” Id. In other words, the substance of the message was irrelevant. Id. at 1472.

The same is not true for the law in Hill. To be sure,

the Court there held the law was not content-based

even though it required hearing the oral communication to discern whether it was for the purpose of counseling or education. Hill, 530 U.S. at 716. But that is

not like the “neutral, location-based lines” in City of

Austin. 142 S. Ct. at 1471. Whether a sign is located

on or off premise is not about content. Whether a statement provides counseling or education is. Put differently, the law in Hill was anything but “agnostic as to

content.” Id. So after City of Austin, Hill remains an

aberration.

II. Continued reliance on Hill curtails freespeech rights.

There is no debate that “Hill’s content-neutrality

holding is hard to reconcile with both McCullen and

Reed.” Price v. City of Chicago, 915 F.3d 1107, 1109

(7th Cir. 2019); see also Dobbs, 142 S. Ct. at 2276 n.65.

But until this Court overrules Hill, lower courts have

8

no option but to follow its holding when it directly applies to a case. Ms. Vitagliano’s case shows as much.

See Vitagliano v. County of Westchester, 71 F.4th 130,

141 (2d Cir. 2023) (citing Agostini, 521 U.S. at 237).

This has dire consequences. It allows the government to cut off speech on a hotly contested moral and

political issue. And it does so at the very last moment

when that speech could be effective—outside an abortion facility where a pregnant woman makes a life-altering decision for both herself and her child. Even if

a court ultimately determines that a particular restriction is unconstitutional, Hill opens the door to

speech rights being restricted for months or years

while waiting on that resolution.

This very thing happened in Kentucky. In 2021,

Louisville adopted an ordinance prohibiting anyone

from entering a 10-foot “buffer zone” on the public way

or sidewalk in front of “healthcare facilit[ies].” Sisters

for Life, 56 F.4th at 402. Like Ms. Vitagliano, the

plaintiffs in Sisters for Life are sidewalk counselors

seeking to have “quiet, compassionate, non-threatening one-on-one conversations” to explain to women

that there “‘are lifesaving alternatives’ to abortion.”

Id. They had no intention of blocking access or harming anyone. But when the sidewalk counselors challenged this restriction, the district court denied a preliminary injunction based on Hill. Sisters for Life, Inc.

v. Louisville-Jefferson Cnty. Metro Gov’t, 2022 WL

586785, at *6–9, *14 (W.D. Ky. Feb. 25, 2022).

The district court interpreted McCullen’s off-hand

citation to Hill in its fact section as a “signal[] to this

Court that [the McCullen Court] was aware of Hill,

9

was citing it with approval, and made a conscientious

decision not to overturn it.” Id. at *6. Because Hill upheld “an eight foot ‘separation’” between speakers and

listeners, it apparently followed that Louisville’s tenfoot zone was permissible. Id. at *9. But the district

court never engaged with why the Court upheld that

eight-foot zone. Hill did so because it recognized the

government’s interest in protecting “unwilling listeners.” 530 U.S. at 714. Yet McCullen rightly made it

clear that interest is not sufficient to broadly proscribe

speech. 2 See 573 U.S. at 481.

Nearly two years after the Louisville ordinance

was enacted, the Sixth Circuit finally ordered the district court to enter a preliminary injunction. It did not

resolve whether the restriction was content based “because the ordinance fail[ed] narrow tailoring anyway.”

Sisters for Life, 56 F.4th at 404. The ordinance was

overbroad because it “burden[ed] substantially more

speech than is necessary.” Id. at 405 (quoting McCullen, 573 U.S. at 486). Further, the government “had

not shown that it ‘seriously undertook to address’ its

concerns ‘with less intrusive tools.’” Id. (quoting

McCullen, 573 U.S. at 494). The unchallenged sections

of the ordinance—barring anyone from “obstructing or

hindering or impeding access to a clinic”—sufficed to

meet the government’s goals of “protect[ing] access”

2 Even worse, Louisville did not “enforce the ordinance against

escorts of women into the Clinic,” even though those escorts allegedly told “patients that the pro-life protestors are liars and

that patients should not talk or listen to them.” Sisters for Life,

56 F.4th at 404 (cleaned up). The Sixth Circuit suggested that the

district court consider this disturbing issue on remand. Id.

10

and “ensur[ing] order” around its clinics. Id. (cleaned

up).

Despite the Sixth Circuit ultimately protecting

sidewalk counselors’ First Amendment rights, incalculable damage had been done. For one, the Kentucky

sidewalk counselors could not speak in the way they

thought most effective on this key matter of public concern for over a year. They were robbed of their First

Amendment rights. See Riley, 487 U.S. at 790–91

(“The First Amendment mandates that [courts] presume that speakers, not the government, know best

both what they want to say and how to say it.”). And

they cannot get that loss back. See Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 67 (2020) (per

curiam) (“The loss of First Amendment freedoms, for

even minimal periods of time, unquestionably constitutes irreparable injury.” (citation omitted)).

The Kentucky counselors’ ability to minister successfully to women dropped significantly. For example, one group of counselors had previously helped

changed the minds of 3 to 6 women per month who

were dropped off in front of the facility for an abortion.

Minter Dep. at 54–55; Sisters for Life, No. 3:21-cv-367RGJ, 2022 WL 586785. But while the buffer zone was

enforced, that number dropped to zero. Id. at 55.

Of course, Louisville is not the only place where

these types of restrictions exist. In fact, they have proliferated around the country. Even when they are

challenged, courts uphold many of these buffer and

bubble zones based on Hill. So around the nation,

speech is suppressed in key 10-, 15-, and 100-foot

zones based on a case that is out of step with the First

11

Amendment. Many of these restrictions are modeled

nearly word-for-word after Hill. For example:

Montana: Montana law prohibits “approaching

within 8 feet of a person” to “protest, counsel, or educate about a health issue” if the person “does not consent” and “is within 36 feet of” a healthcare facility.

Mont. Code. Ann. § 45-8-110.

Carbondale, Illinois: In January 2023, an Illinois city passed a copycat of the law in Hill—banning

anyone from approaching another person “within

eight feet” to engage in “oral protest, education, or

counseling” within 100 feet of a healthcare facility.

Carbondale, Ill. Code § 14-4-2(H). In deciding a First

Amendment challenge to that law, the district court

noted that “the holding in Hill has eroded through the

years,” but it found that Hill precluded any challenge

to Carbondale’s law. Coal. For Life St. Louis v. City of

Carbondale, 2023 WL 4681685, at *1 (S.D. Ill. July 6,

2023) (granting defendant’s motion to dismiss), appeal

filed, No. 23-2367 (7th Cir. July 12, 2023).

Charleston, West Virginia: Like Colorado in

Hill, West Virginia’s capital city chose not to rely on

other laws that already prohibit violence or bar someone from entering an abortion facility. Instead, it

adopted an ordinance that prohibits “approach[ing]

another person within eight feet” without consent to

“engag[e] in oral protest, education, or counseling”

within “a radius of 100 feet from any entrance door to

a health care facility.” Charleston, W. Va. Code § 78235(c). But its only rationale was preventing protests

“from becoming violent.” MetroNews Staff, Charleston

12

Council committee passes ordinance on facilities access,

MetroNews

(May

29,

2019),

https://perma.cc/Q5GR-7BT7. And the City wasn’t

worried about a First Amendment challenge because,

in its view, “the ordinance was carefully written drawing from language that has previously been upheld in

courts.” Shauna Johnson, Charleston council considers language regarding access to health care facilities,

MetroNews (May 29, 2019), https://perma.cc/YY7T226B.

Chicago, Illinois: Chicago adopted an ordinance

“nearly identical” to the law in Hill, so the Seventh

Circuit panel—including then-Judge Barrett—upheld

it. Price, 915 F.3d at 1109. Despite the impossibility of

reconciling Hill with McCullen and Reed, the court’s

hands were tied. Because neither case had overruled

Hill, it “remain[ed] binding” and allowed the city to

ban sidewalk counseling. Id. So counselors in the

Windy City can no longer convey their message in “a

gentle and caring manner” while “maintain[ing] eye

contact and a normal tone of voice” and “protect[ing]

the privacy” of the women they approach. Id. at 1110.

Instead, the law bars them from “engaging in oral protest, education, or counseling” within eight feet of a

person near abortion facilities’ entrances. Chicago, Ill.

Code § 8-4-010(j)(1).

Englewood, New Jersey: A New Jersey city created an eight-foot buffer zone around healthcare facilities after a particular group of “militant activists and

aggressive protestors” prompted its adoption. Turco v.

City of Englewood, 935 F.3d 155, 158 (3d Cir. 2019).

But the law also silenced the plaintiff in the resulting

13

lawsuit, who everyone agreed “was not one of the hostile or aggressive anti-abortion protestors.” Id. at 160.

She would “calmly approach women entering the

clinic” and attempt “peaceful, nonconfrontational communication.” Id. She offered “rosaries and literature

about prenatal care” while reassuring women that “we

can help you” and “we are praying for you.” Id. After a

bench trial, the district court upheld the ordinance under Hill. Turco v. City of Englewood, 621 F. Supp. 3d

537, 548–52 (D.N.J. 2022), appeal filed, No. 22-2647

(3d Cir. Sept. 8, 2022).

Importantly, the district court explicitly “declined”

to “ignore Hill’s precedential status” even though

Dobbs used Hill as an example of a “distorted First

Amendment doctrine[].” Id. at 550 n.9 (citation omitted). And it found that City of Austin’s discussion of

Hill also was “not a sufficient basis for this Court to

ignore Hill’s precedential status.” Id. So while every

other restriction on speech must comply with Reed’s

test for content-based speech, abortion bubble and

buffer zones survive under lessened standards of constitutional scrutiny.

***

Until this Court overrules Hill, nothing prevents

even more jurisdictions from using their First Amendment hall pass to block speech outside abortion facilities. And lower courts must continue to answer the impossible question: how can Hill, McCullen, and Reed

coexist? They must continue to follow a demonstrably

wrong decision and allow governments to violate their

citizens’ free-speech rights. Hill’s analysis is unlike

any other First Amendment case since it was decided.

And only this Court can fix it.

14

Baked into the rule from Agostini—that lower

courts must follow a directly on-point case even when

later cases have questioned it—is that this Court will

ultimately consider whether to overrule the suspect

case. That means the Court should be willing to grant

review to consider whether to do just that. And it

should be willing here. This Court should “resolve the

glaring tension” in its precedents and set the rules of

free speech outside of abortion facilities in line with all

other First Amendment law. See Bruni v. City of Pittsburgh, 141 S. Ct. 578 (2021) (Mem.) (Thomas, J., statement respecting the denial of certiorari).

III. The government can narrowly tailor laws to

protect both speech and safety without Hill.

Hill’s narrow-tailoring analysis announced a preference for easily enforced “prophylactic” speech restrictions. 530 U.S. at 729. But McCullen rejected the

government’s argument that “fixed buffer zones would

make [its] job so much easier.” 573 U.S. at 495 (quotation marks omitted). While “[a] painted line on the

sidewalk is easy to enforce . . . the prime objective of

the First Amendment is not efficiency.” Id. So overruling Hill’s outdated reasoning would correct contradictory First-Amendment law while leaving ample alternative means for the government to keep the peace. 3

3 Indeed, the County of Westchester seems to admit as much. Af-

ter Ms. Vitagliano sought certiorari, it voted to repeal the challenged section of its buffer-zone law. Board of Legislators, Meeting Minutes, Published Draft at 21–22 (Aug. 7, 2023),

https://perma.cc/A2QA-XJRY. It did so because “the remainder of

[the ordinance],” which bans non-speech activities like obstruction, unwanted physical contact, and physical damage to a facility, “satisfactorily protects access.” Board of Legislators County

15

But if the government cannot restrict speech outside abortion facilities, must it then abandon its obligation to protect public safety there? Certainly not. To

begin with, Congress has enacted the Freedom of Access to Clinic Entrances Act. 18 U.S.C. § 248(a)(1).

This law imposes criminal penalties on whomever by

force, threat of force, or physical obstruction attempts

to or “intentionally injures, intimidates or interferes

with . . . any person because that person is . . . obtaining or providing reproductive health services.” Id. And

States can enact “legislation similar to the federal

[law],” as “[s]ome dozen other States have done.”

McCullen, 573 U.S. at 491. States can tailor these laws

to the particular concerns around their facilities.

Again, take Sisters for Life as one illustration of

how the government may protect public safety without

intruding on free-speech guarantees. No one challenged one section of Louisville’s ordinance. Sisters for

Life, 56 F.4th at 405. That section prohibited “obstruct[ing], detain[ing], hinder[ing], imped[ing], or

block[ing] another person’s entry to or exit from a

healthcare facility.” Louisville-Jefferson Ord. Code

§ 132.09(B)(1). This restriction was sufficient “to meet

the County’s access and order goals.” Sisters for Life,

of Westchester Committee on Legislation and Health, Report at

4 (July 7, 2023), https://perma.cc/S5SP-BSSB.

Westchester may claim that its actions moot this matter. The

States leave this issue to the parties to address but note that Ms.

Vitagliano seeks damages. Compl., Pet.66a. Further, a defendant’s “voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the

practice.” City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283,

289 (1982).

16

56 F.4th at 405. Louisville is not the only place with

such a law. For example:

Maryland: “A person may not intentionally act,

alone or with others, to prevent another from entering

or exiting a medical facility by physically: (1) detaining the other; or (2) obstructing, impeding, or hindering the other’s passage.” Md. Code Ann., Crim. Law

§ 10-204(c).

Massachusetts: The Bay State imposes criminal

penalties if anyone “knowingly obstructs entry to or

departure from any medical facility” or “enters or remains in any medical facility so as to impede the provision of medical services, after notice to refrain from

such obstruction or interference.” Mass. Gen. Laws

Ann. ch. 266, § 120E.

Nevada: In Nevada, “a person shall not intentionally prevent another person from entering or exiting

the office of a physician, a health facility, . . . or a facility for the dependent by physically: (a) Detaining

the other person; or (b) Obstructing, impeding or hindering the other person’s movement.” Nev. Rev. Stat.

§ 449.531.

North Carolina: “No person shall obstruct or

block another person’s access to or egress from a

health care facility.” N.C. Gen. Stat. § 14-277.4(a). And

“[n]o person shall injure or threaten to injure a person

who is or has been: (1) Obtaining health care services;

(2) Lawfully aiding another to obtain health care services; or (3) Providing health care services.” Id. § 14277.4(b).

17

Washington: Washington law bars anyone from

“[p]hysically obstructing or impeding the free passage

of a person seeking to enter or depart from the

[healthcare] facility,” or “[m]aking noise that unreasonably disturbs the peace within the facility,” or

“[t]respassing on the facility,” or “[t]elephoning the facility repeatedly” or “[t]hreatening to inflict injury on

the owners, agents, patients, employees, or property of

the facility.” Wash. Rev. Code § 9A.50.020.

Of course, these are only examples of laws specific

to healthcare facilities. In addition, the government

may still enforce criminal laws prohibiting stalking,

harassment, threats, and violence. See, e.g., Ky. Rev.

Stat. §§ 508.010–.040 (prohibiting assault), § 508.075

(prohibiting terroristic threats), § 508.140 (prohibiting

stalking), § 525.070 (prohibiting harassment). Because “[o]bstruction of abortion clinics and harassment of patients . . . are anything but subtle,” police

are “perfectly capable of singling out lawbreakers.”

McCullen, 573 U.S. at 495–96. In short, States can

(and do) protect public safety without barring quiet,

compassionate conversations on a sensitive subject

while standing next to someone.

***

Without Hill, there would be no doubt that restrictions like the County of Westchester’s must survive strict scrutiny. But Hill has allowed the government to infringe on First Amendment rights for over

twenty years and counting. Speech about a contested

political issue belongs on public sidewalks, and this

Court should allow it to fully return there.

18

CONCLUSION

The Court should grant the petition for a writ of

certiorari.

Respectfully submitted,

DANIEL CAMERON

Attorney General of

Kentucky

MATTHEW F. KUHN

Solicitor General

Counsel of Record

Office of the Kentucky

Attorney General

700 Capital Avenue

Suite 118

Frankfort, KY 40601

(502) 696-5300

Matt.Kuhn@ky.gov

DANIEL J. GRABOWSKI

JENNA M. LORENCE

Assistant Solicitors

General

19

ADDITIONAL COUNSEL

STEVE MARSHALL

Attorney General of

Alabama

MICHAEL T. HILGERS

Attorney General of

Nebraska

TIM GRIFFIN

Attorney General of

Arkansas

ALAN WILSON

Attorney General of

South Carolina

RAúL R. LABRADOR

Attorney General of

Idaho

JONATHAN SKRMETTI

Attorney General and

Reporter of Tennessee

BRENNA BIRD

Attorney General of

Iowa

ANGELA COLMENERO

Provisional Attorney

General of Texas

LYNN FITCH

Attorney General of

Mississippi

SEAN D. REYES

Attorney General of

Utah

ANDREW BAILEY

Attorney General of

Missouri

PATRICK MORRISEY

Attorney General of

West Virginia

AUSTIN KNUDSEN

Attorney General of

Montana