This post was authored by Otten Johnson summer law clerk Alex Gano.  Alex is a rising third-year law student at the University of Colorado Law School.

On June 1, a three-judge panel of the U.S. Court of Appeals for the Third Circuit vacated a lower federal court’s dismissal of a First Amendment challenge to a City of Pittsburgh ordinance that created a fifteen-foot “buffer zone” around entrances to abortion clinics. The lower court dismissed the challenge filed by five self-described “sidewalk counselors” based on a 2009 opinion by the Third Circuit that upheld the same ordinance. Writing for the Court, Judge Kent Jordan interpreted the Supreme Court’s decision in McCullen v. Coakley to compel a more vigorous “narrow-tailoring” analysis to burdens on speech. Judge Jordan’s opinion also implies that McCullen will have the effect of prolonging litigation over buffer zone ordinances, which have become a cutting edge of First Amendment jurisprudence in recent years.

Pittsburgh passed the Public Safety at Health Care Facilities Ordinance in 2005. The Ordinance prohibits congregating, patrolling, picketing, or demonstrating in a zone that extends fifteen feet from any entrance to a hospital or other health care facility. In the decade since the Ordinance passed, the City actively enforced only two buffer zones, both around entrances to abortion clinics. According to their complaint, the Plaintiffs engage in “peaceful prayer, leafleting, sidewalk counseling, pro-life advocacy, and other peaceful expressive activities” on public streets and sidewalks. They claimed that the Ordinance “frustrate[d] effective communication of their message.”

In its legal analysis, the Court began by assuming that the Ordinance is content-neutral. In doing so, the Court implied that if the Ordinance survived intermediate scrutiny, this assumption could be revisited because the law proscribed “demonstrating” and “picketing,” both of which suggest a limit on content. This caveat acknowledges the holding from Reed v. Town of Gilbert in which the U.S. Supreme Court defined content-based laws as “those that target speech based on its communicative content.”

At the heart of the Bruni opinion, the Court applied a narrow-tailoring analysis that it described as intermediate scrutiny, but which felt more like a probing strict scrutiny review. While the Court acknowledged that intermediate scrutiny “affords some deference to a municipality’s judgment,” it ultimately found that the City failed to produce sufficient evidence of less burdensome efforts to achieve its public health, safety, and welfare interests.

The opinion stressed that the size of a buffer zone is never dispositive. Rather, it emphasized that these buffer zone cases “turn[] on their distinct factual records, not a simple difference in real estate.” Pittsburgh’s factual record included a preamble to the Ordinance describing the burden abortion protestors placed on the City’s law enforcement. The Court was unimpressed. Quoting the Supreme Court’s holding in McCullen, the Third Circuit stated: “It is not enough for [Pittsburgh] simply to say that other approaches have not worked.” Instead, the Court wanted to see a “meaningful record” that demonstrated an effort by the City to implement “substantially less-restrictive alternatives” such as anti-obstruction ordinances, criminal enforcement, and targeted injunctions, or at the very least, that such alternatives were “closely examined and ruled out for good reason.”

There are a few important takeaways from Bruni, as follows:

• First, it seems apparent that future challenges to abortion clinic buffer zones will almost certainly survive a defendant’s motion to dismiss. Given the level of analytical rigor and fact-specific inquiry demanded by McCullen, “the city or state will rarely be able to satisfy narrow tailoring at the pleading stage.” Policy makers considering buffer zone ordinances should heed the Court’s warning and develop robust records that demonstrate their consideration of less-restrictive alternatives. For cities and states with buffer zone ordinances already in effect, Bruni may foreshadow protracted litigation in the months and years to come.
• Second, the Third Circuit’s analysis in Bruni offers a somewhat modified approach to analyzing speech restrictions (and one that was advocated for by Justice Kagan’s concurrence in the judgment in Reed), whereby the court assumes the law in question is content neutral, reviews the law to determine whether it meets the intermediate scrutiny standard, and then, if the law survives intermediate scrutiny, makes a determination as to whether the law is content based or content neutral.
• Third, the court’s application of McCullen to this case continues a trend we’ve observed in the last couple of years toward a more searching evidentiary inquiry as part of the narrow tailoring analysis. At least in some instances, it may no longer be sufficient for a government to defend a speech regulation simply by declaring a purpose and stating—without factual evidence and/or experience—that the regulation is narrowly tailored to that purpose.

Bruni v. City of Pittsburgh, No. 15-1755 (3d Cir. June 1, 2016).