Last week, a federal district court granted summary judgment to the City of Pittsburgh, Pennsylvania in a long-running dispute over a buffer zone law applicable to protest activities outside of reproductive health facilities such as Planned Parenthood. The court held that the city’s 15-foot buffer zone law was content neutral and narrowly tailored to a substantial governmental interest, and thus valid under the First Amendment.
Pittsburgh enacted its buffer zone law in 2005. The initial buffer zone law initially imposed a 15-foot buffer zone around the entrance to a hospital or health care facility in which no person was permitted to congregate, patrol, picket, or demonstrate. The buffer zone excepted public safety officers, emergency workers, employees or agents of the facility, and patients. The law also imposed an eight-foot “personal” buffer zone around individuals. In the eight-foot buffer zone, no person could approach an individual to provide a leaflet or to protest, where the individual was within 100 feet of a hospital or health care facility entrance. The eight-foot personal buffer zone was struck down in the case of Brown v. City of Pittsburgh in 2009. The 15-foot buffer zone remained in effect, but was challenged again in 2014 following the Supreme Court’s decision in McCullen v. Coakley, in which the Court struck down a Massachusetts law imposing a 35-foot buffer zone around health care clinics. The plaintiffs in the case are religiously-motivated protesters who engage in protest activities around a Planned Parenthood facility in Pittsburgh. In 2016, as we reported, the Third Circuit reversed the district court’s dismissal of the case.
On cross-motions for summary judgment, the court first found that the buffer zone law was content neutral. In so doing, the court relied on Hill v. Colorado, in which the U.S. Supreme Court determined that a similar buffer zone law was not content based by virtue of the fact that it prohibited picketing and other protest activity, but not other speech in the buffer zone. Here, the court determined that the law’s prohibition on “congregating, patrolling, picketing, and demonstrating” was similarly content neutral. Then, applying intermediate scrutiny, the court determined that the Pittsburgh buffer zone was narrowly tailored to a substantial governmental interest, satisfying the intermediate scrutiny test for content neutral speech regulations. The court arrived at that conclusion because the Pittsburgh buffer zone was substantially smaller than the 35-foot buffer zone that was struck down by the Supreme Court in McCullen v. Coakley, and because there was undisputed evidence in the case that showed that the plaintiffs were not deprived of the ability to engage in sidewalk counseling immediately outside of the buffer zone.
The court also determined that the city met its burden to consider less restrictive alternatives to the buffer zone. Evidence submitted in the case showed that the city had unsuccessfully attempted to use its police force to patrol hospital and health care entrances, and that reliance on the city’s prohibition on sidewalk obstruction was insufficient to address the significant protest activities occurring near health care facilities.
This case is one of the few post-McCullen decisions to uphold a buffer zone law in the face of a First Amendment challenge. The limited nature of the restriction, i.e. 15 feet versus 35 feet or more, was a significant factor in the court’s decision, as was the substantial evidence indicating that the law was a minimal restriction on the plaintiffs’ exercise of their free speech rights. It remains to be seen whether other cases will come out similarly, or whether the Third Circuit will affirm the decision.