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Pro-Lifers Say Pittsburgh Law Stifles Free Speech

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• December 4, 2020 11:00 am

Pro-life activists say a Pittsburgh ordinance that forbids protesting outside abortion clinics suppresses their free speech rights, and they've asked the Supreme Court to take up their case.

The Pittsburgh law draws a 15-foot buffer zone around the entrance of medical facilities where protesting is forbidden. The Third U.S. Circuit Court of Appeals upheld the ordinance but dealt a partial victory to the pro-life activists by cautioning that the law cannot cover "peaceful one-on-one" conversations.

The case poses an early test for Justice Amy Coney Barrett and the newly reinforced conservative majority. The petition has lingered on the Court's docket without action since March, an unusually long interval and a likely sign of internal wrangling. The High Court has upheld buffer zone laws against First Amendment challenges since 2000. Though the justices backtracked somewhat in a 2014 decision, Justice Antonin Scalia accused the Court of "giving abortion-rights advocates a pass when it comes to suppressing the free-speech rights of their opponents."

The Third Circuit ruled that the ordinance "as written does not prohibit the sidewalk counseling in which plaintiffs seek to engage," since it only bans "congregating, patrolling, picketing, or demonstrating." Lawyers for the plaintiffs—sidewalk counselors who encourage patients to consider alternatives to abortion—say the Third Circuit's decision doesn't actually protect their rights.

"The Third Circuit's narrowing construction is ineffective because city officials and state courts are not bound by it, and they can still hold sidewalk counselors criminally liable in spite of it," lawyers for the Alliance Defending Freedom wrote in the plaintiffs' petition. "A non-binding, advisory opinion is no basis for rejecting the sidewalk counselors' free-speech challenge."

The plaintiffs say the law intentionally targets pro-life speakers. Though the ordinance technically protects any health care facility within the city, the only specifically demarcated buffer zones are outside Pittsburgh's two abortion clinics. And public officials were obviously thinking about abortion when the measure passed, the plaintiffs add, since one councilman said the city should protect women from "unwanted communication" and "verbal assault."

Content-based speech restrictions are almost never permitted under the First Amendment. Lawyers for the city, who deny the law targets pro-lifers, say the ordinance is a carefully crafted response to a history of conflict around Pittsburgh's abortion clinics.

Police sergeant William Hohos said in a deposition that a police detail was often on hand at a downtown Planned Parenthood to keep the peace between pro- and anti-abortion demonstrators. Before the ordinance passed, Hohos said rival protesters would shove and shout at one another, while pro-life activists would lie down in the street or chain themselves to the clinic door to impede access to the facility.

The Supreme Court cited such episodes when it upheld a clinic buffer zone statute in a 2000 case called Hill v. Colorado. A six-justice majority said Colorado's law fairly balanced First Amendment rights with the government's interest in safety and the right of patients "to be let alone."

Chief Justice John Roberts sought a middle way in a 2014 case, when he and four liberal justices struck down a Massachusetts buffer zone law because it swept up more speech than necessary to keep the peace. That meant a narrowly tailored ordinance could pass constitutional muster. Roberts also emphasized that prosecutors have many tools for policing clinic protesters, such as local laws that require the free flow of traffic on roads and driveways.

In a separate opinion, Scalia said state-drawn buffer zones are "unconstitutional root and branch," and he urged the Court to overturn Hill.

A coalition of pro-life groups, including the American Center for Law and Justice and the Life Legal Defense Foundation, filed legal briefs urging the justices to take up the Pittsburgh case and use it as an opportunity for revisiting Hill. The plaintiffs' petition does not directly ask the justices to take that step.

A coalition of congressional Republicans is likewise supporting the plaintiffs and urging the justices to hear their case. Top House Republicans including Minority Leader Kevin McCarthy (R., Calif.), Minority Whip Steve Scalise (R., La.), and Rep. Tom Emmer (R., Minn.) signed the briefs, as did Sen. Kelly Loeffler (R., Ga.), who faces a runoff election in January.

The justices could decide whether to hear the dispute by the end of the year. The case is No. 19-1184 Bruni v. City of Pittsburgh.