Third Circuit rules that Pittsburgh’s abortion-clinic buffer zone doesn’t apply to “sidewalk counseling”

Bruni v. City of Pittsburgh—First Amendment—affirmance—Krause

After Pittsburgh’s Planned Parenthood clinic was targeted with bomb threats, vandalism, and blockades, the city council enacted an ordinance that created a fifteen-foot buffer zone outside any healthcare-facility entrance. The ordinance provided that no person could “congregate, patrol, picket or congregate” within a buffer zone. Pro-life activists who try to persuade women entering clinics not to obtain an abortion, known as sidewalk counselors, filed suit, alleging that the buffer-zone ordinance violated their free-speech rights. In a prior appeal, the Third Circuit in 2016 vacated dismissal of their suit. On remand, the district court granted summary judgment for the city.

Today, the Third Circuit affirmed on alternative grounds, holding that the ordinance is not a content-based limitation on speech because, applying a limiting construction, it does not apply to sidewalk counseling in the first place. Applying intermediate scrutiny to the plaintiffs’ facial challenge, the court “easily” concluded that the ordinance as thus construed passed.

Judge Hardiman concurred to argue that the city will not be able to enforce the ordinance against quiet conversations regardless of their content within the bounds of protected speech and that it will have to enforce the ordinance against the clinic’s own employees who congregate or pace to help clinic patients.

Joining Krause were Hardiman and Greenberg; Hardiman also concurred. Arguing counsel were Kevin Theriot of Alliance Defending Freedom for the plaintiffs and Matthew McHale (now an AUSA) for the city.