Bruni v. City of Pittsburgh
Bruni v. City of Pittsburgh
Opinion of the Court
I. MEMORANDUM
Pending before the Court are Plaintiffs' Motion for Summary Judgment (Doc. 68) and Defendants' Motion for Summary Judgment (Doc. 69). Upon full consideration of the evidence presented, Plaintiffs' Motion for Summary Judgment will be denied, and Defendants' Motion for Summary Judgment will be granted.
A. Factual Background
1. The Ordinance
In December 2005, the Pittsburgh City Council adopted Ordinance No. 49, Bill No. 2005-1944, supplementing the Pittsburgh Code of Ordinances, Title 6: Conduct, Article I: Regulated Rights and Actions, by adding Chapter 623, entitled "Public Safety at Health Care Facilities." Pittsburgh Code of Ordinances § 623.01 et seq. , (the "Ordinance"). Plaintiffs' Concise Statement of Material Facts (Doc. 74) ¶ 1; Defendants' Response to Plaintiffs' Concise Statement of Material Facts (Doc. 82) ¶ 1. The Ordinance became effective on December 30, 2005. Doc. 74 ¶ 1; Doc. 82 ¶ 1.
*360In relevant part, the challenged Ordinance provides as follows:
§ 623.04 FIFTEEN-FOOT BUFFER ZONE
No person or persons shall knowingly congregate, patrol, picket, or demonstrate in a zone extending 15 feet from any entrance to the hospital and or health care facility. This section shall not apply to police and public safety officers, fire and rescue personnel, or other emergency workers in the course of their official business, or to authorized security personnel employees or agents of the hospital, medical office or clinic engaged in assisting patients and other persons to enter or exit the hospital, medical office, or clinic.
Doc. 74 ¶¶ 2, 140; Doc. 82 ¶¶ 2, 140. The Ordinance exempts "authorized security personnel employees or agents of the hospital, medical office or clinic engaged in assisting patients and other persons to enter or exit the hospital, medical office, or clinic" from the entirety of Section 623.04. Doc. 74 ¶ 141; Doc. 82 ¶ 141.
In adopting the Ordinance, the City Council also ratified a preamble, titled "Intent of Council," that described the goals the City sought to accomplish as follows:
The City Council recognizes that access to Health Care Facilities for the purpose of obtaining medical counseling and treatment is important for residents and visitors to the City. The exercise of a person's right to protest or counsel against certain medical procedures is a First Amendment activity that must be balanced against another person's right to obtain medical counseling and treatment in an unobstructed manner; and The City of Pittsburgh Bureau of Police has been consistently called upon in at least two locations within the City to mediate the disputes between those seeking medical counseling and treatment and those who would counsel against their actions so as to (i) avoid violent confrontations which would lead to criminal charges and (ii) enforce existing City Ordinances which regulate use of public sidewalks and other conduct; Such services require a dedicated and indefinite appropriation of policing services, which is being provided to the neglect of the law enforcement needs of the Zones in which these facilities exist. The City seeks a more efficient and wider deployment of its services which will help also reduce the risk of violence and provide unobstructed access to health care facilities by setting clear guidelines for activity in the immediate vicinity of the entrances to health care facilities; The Council finds that the limited buffer and bubble zones outside health care facilities established by this chapter will ensure that patients have unimpeded access to medical services while ensuring that the First Amendment rights of demonstrators to communicate their message to their intended audience is not impaired.
Doc. 74 ¶ 7; Doc. 82 ¶ 7.
A permanent injunction altered the Ordinance in 2009, requiring, inter alia , that the City clearly demarcate any buffer zone prior to its enforcement. Order Granting Permanent Injunction (the "Injunction"), Civil Action No. 06-393, Doc. 85, ¶ 1 (W.D. Pa. Dec. 17, 2009). Presently, two "buffer zones" are delineated and enforced in the City of Pittsburgh, both of which are located outside of reproductive health care facilities where abortions are performed. Doc. 74 ¶ 149; Doc. 82 ¶ 149. One of the two buffer zones is indicated by a bright, yellow semi-circle painted around the entrance of 933 Liberty Avenue, the downtown Planned Parenthood clinic ("933 Liberty" or "downtown Planned Parenthood"). Doc. 74 ¶¶ 111, 122; Doc. 82 ¶¶ 111, 122. The inside of the yellow arc measures 15 feet in radius from the center of the closed *361front doors of the Planned Parenthood facility. Doc. 74 ¶ 123; Doc. 82 ¶ 123.
According to the City, the Ordinance "applies to any type of protesting within the buffer zone." Doc. 74 ¶ 155; Doc. 82 ¶ 155. However, "purely social or random conversations (like going up to someone to ask directions or what time it is) are not intended to be covered by the Ordinance." Doc. 74 ¶ 156; Doc. 82 ¶ 156. When Plaintiffs filed this lawsuit, they believed that the Ordinance completely prohibited their passage through the buffer zone, even if they were not engaging in sidewalk advocacy during such passage. Defendants' Concise Statement of Material Facts (Doc. 71) ¶ 86; Plaintiffs' Response to Defendants' Concise Statement of Material Facts (Doc. 79) ¶ 86. However, since then, the City has explained to Plaintiffs that the buffer zone does not apply to "individuals who are simply walking through the 15 foot zone to get to from one location to another, provided that such passage does not obstruct access to the facility." Doc. 74 ¶ 87; Doc. 82 ¶ 87; Doc. 74 ¶ 154; Doc. 82 ¶ 154. For purposes of this lawsuit, there appears to be no dispute that "sidewalk counseling" within the 15 foot buffer zone is prohibited.
2. History of the Ordinance
Prior to moving to 933 Liberty Avenue, Planned Parenthood maintained its downtown location on Fifth Avenue. Doc. 74 ¶ 112; Doc. 82 ¶ 112. In the mid- and late-1990's, there were numerous incidents involving violence, disruption and obstruction of entrances at the Fifth Avenue location. Doc. 71 ¶ 1; Doc. 79 ¶ 1. As a result, in the mid-90's, Pittsburgh police deployed crowd-control barriers outside abortion clinics in order to maintain order and security, separating demonstrators from each other and from patients attempting to visit the clinic for health care. Doc. 71 ¶ 4; Doc. 79 ¶ 4. After Planned Parenthood moved to the 933 Liberty Avenue location in 2002, the incidents became less frequent and severe; however, there still were regular incidents involving "pushing," "shoving" and "verbal harassment" at the downtown Planned Parenthood. See Def. App., Ex. J, Hohos Dep. (Doc. 72-10) at 31:23-32:12 ("New location was, like I said, not as severe, but we still had our incidents. We still had the pushing and the shoving between the escorts and the pro-life folks and, you know, the blocking of the doors, that was still occurring when people would sit in front of doors. Not on a much regular basis as before, but that-that conduct still continued to a large-to a large degree. A lot of it was verbal. Depending on which side the argument you were on or the cause, a lot of it was verbal harassment between both parties, both sides."); id. at 42:2-5 (Sergeant William Hohos explaining that he has personally witnessed "pro-life individuals forcing literature into patients' pockets"); id. at 52:13-15 ("We were still very active between the years of 2002 to 2005. 'We' being the police."). To mitigate these incidents, the Bureau of Police employed an overtime detail of police officers stationed outside the downtown Planned Parenthood. Doc. 71 ¶ 6; Doc. 79 ¶ 6.
On December 29, 2003, the City of Pittsburgh was declared a financially distressed municipality by the Commonwealth of Pennsylvania's Department of Community and Economic Development. Doc. 71 ¶ 14; Doc. 79 ¶ 14. Following the determination of the City's distressed status, the Bureau of Police discontinued the overtime detail of police officers assigned to the downtown Planned Parenthood, although police would still respond to 911 or other specific calls for law enforcement. Doc. 71 ¶ 19; Doc. 79 ¶ 19. Thereafter, on November 29, 2005, the Ordinance was introduced before the City Council. Doc. 74 ¶ 126; Doc. 82 ¶ 126. A committee meeting was held on December 7, 2005, followed by hearing for public comment on December 13, 2005.
*362Doc. 74 ¶¶ 126-128; Doc. 82 ¶¶ 126-128; Doc. 71 ¶ 23; Doc. 79 ¶ 23. At those proceedings, dozens of witnesses offered statements to the City Council, including President and CEO of Planned Parenthood of Western Pennsylvania, Kimberly Evert. Doc. 71 ¶ 24; Doc. 79 ¶ 24. Ms. Evert testified that, in January 2005, the City's budget problems "resulted in the elimination of the police assignment" to the downtown Planned Parenthood. Doc. 72-3, Exhibit C, at p. 8. Ms. Evert testified that "without [police] supervision there has been an increase in unlawful behavior that is putting ... patients, their families, pedestrians and even protestors at risk." Id. As evidence, Ms. Evert stated that, in 2004, patients made 16 complaints about protestors, whereas from February 2005 to November 2005, "there were 13 cases of aggressive pushing, shoving and hitting, and 30 complaints of harassing behavior that included shoving literature into people's pockets, hitting them with signs and blocking their entrance into the building." Id.
Commander Donaldson of the Pittsburgh Police Department also addressed the City Council on December 7, 2005. Doc. 74 ¶ 133; Doc. 82 ¶ 133. Commander Donaldson stated that, while the City did not arrest any protestors outside 933 Liberty Avenue within the six months prior to the committee meeting, police had been summoned to that location 22 times in that 6-month period. Doc. 74 ¶ 135; Doc. 82 ¶ 135; Doc. 72-3, Exhibit C, at pp. 52-54. Commander Donaldson explained that "[t]ypically, [the police] are called to mediate confrontations between the people going into the clinic and the protestors or the escorts ... and other times it was the doorway was obstructed or they followed the people to the doorway or ... the signs are obstructing the front of the building ..." Doc. 72-3, Exhibit C, at p. 60. In response to questioning by a Council member, Commander Donaldson acknowledged that, prior to the enactment of the Ordinance, the City already had laws on the books that it could rely upon to arrest and prosecute individuals obstructing traffic, passageways, and doorways. Doc. 74 ¶ 134; Doc. 82 ¶ 134. Commander Donaldson explained, however, that those laws were not as effective as a buffer zone in deterring those who attempted to "block" patients from entering the downtown Planned Parenthood by obstructing their passage before they reached the front door of the building. Doc. 72-3, Exhibit C, at p. 54 ("What I am saying is there are laws currently on the book that would address obstructing traffic or passageways or highway. A number of times what the complaints are at the 933 Liberty Avenue is that they are obstructing the access to the clinic itself. Now there are currently laws for obstructing the doorway, but what this would do is it would set a 15-foot parameter [sic]. So it would be clearly defined. It wouldn't be in front of the obstructing the door per say [sic], but you couldn't be within 15 feet of it. I think it would be along the same lines of either obstructing someone's driveway or blocking someone's driveway. They are two clearly different points. One it makes it difficult to get into your driveway. The other one it makes it impossible to get into your driveway.").
Following these hearings, the City Council passed the Ordinance and the Mayor signed it into law. Doc. 71 ¶ 26; Doc. 79 ¶ 26.
3. Plaintiffs' "Sidewalk Counseling"
Plaintiffs regularly engage in anti-abortion activities outside the buffer zone at the downtown Planned Parenthood. Doc. 71 ¶ 44; Doc. 79 ¶ 44. Their advocacy takes the form of "sidewalk counseling," through which they "seek to have quiet conversations and offer assistance and information about options available ... other than abortion to people who are about to enter *363or who exit the facility." Doc. 71 ¶ 46; Doc. 79 ¶ 46. Plaintiff Nikki Bruni is the local head of a group participating in the "Forty Days for Life" movement, a global anti-abortion campaign whose self-described mission is "to bring together the body of Christ in a spirit of unity during a focused 40[-]day campaign of prayer, fasting, and peaceful activism, with the purpose of repentance, to seek God's favor to turn hearts and minds from a culture of death to a culture of life, thus bringing an end to abortion." Doc. 71 ¶ 45; Doc. 79 ¶ 45. Ms. Bruni began sidewalk counseling in early 2010. Doc. 74 ¶ 25; Doc. 82 ¶ 25. Plaintiff Julie Cosentino began sidewalk counseling outside the downtown Planned Parenthood in July 2014, generally going to the clinic on Saturdays. Doc. 71 ¶ 49; Doc. 79 ¶ 49. Plaintiff Cynthia Rinaldi began sidewalk counseling outside the downtown Planned Parenthood approximately 5 to 6 years ago. Doc. 74 ¶ 56; Doc. 82 ¶ 56. Plaintiff Kathleen Laslow began sidewalk counseling outside the downtown Planned Parenthood approximately three years ago. Doc. 74 ¶ 73; Doc. 82 ¶ 73. Patrick Malley began sidewalk counseling in 2010 or 2011, and typically goes to the downtown Planned Parenthood facility on Tuesdays and Fridays. Doc. 74 ¶¶ 91, 93; Doc. 82 ¶¶ 91, 93. None of the Plaintiffs in this case has experience or knowledge about conditions outside the downtown Planned Parenthood before the passage of the Ordinance in 2005 or the modified Ordinance in 2009. Doc. 71 ¶ 11; Doc. 79 ¶ 11.
Abortions are performed at the downtown Planned Parenthood on Tuesdays, Fridays and Saturdays. Doc. 71 ¶ 52; Doc. 79 ¶ 52. On those days, between two to four individuals engage in some form of sidewalk counseling or demonstrating outside of the buffer zone. Doc. 71 ¶¶ 54-55; Doc. 79 ¶¶ 54-55. During Forty Days for Life and other nationally organized clinic protest campaigns, this number may increase to as many as 35 to 40. Doc. 71 ¶ 56; Doc. 79 ¶ 56. Plaintiffs admit that, outside the 15-foot buffer zone, Plaintiffs and their allies are free to walk anywhere on the sidewalk and engage in advocacy, attempting to speak to people who are going to the clinic. Doc. 71 ¶ 68; Doc. 79 ¶ 68. The Ordinance also does not prohibit a willing listener from: (1) slowing down or stopping while approaching the buffer zone in order to listen or talk to Plaintiffs, Doc. 71 ¶ 69; Doc. 79 ¶ 69; (2) exiting the zone in order to listen or talk to Plaintiffs, Doc. 71 ¶ 70; Doc. 79 ¶ 70; or (3) standing inside the buffer zone and having a conversation with Plaintiffs standing a few inches or feet away, outside the zone, Doc. 71 ¶ 71; Doc. 79 ¶ 71. Plaintiffs also admit that the Ordinance does not prohibit them from: (1) attempting to engage a person leaving the clinic in a discussion, as that person walks down the sidewalk, Doc. 71 ¶ 72; Doc. 79 ¶ 72; (2) beginning a conversation with a person and continuing that conversation outside the buffer zone for as long as they want, Doc. 71 ¶ 73; Doc. 79 ¶ 73; or (3) walking with a willing listener to a calmer or quieter location, anywhere outside the buffer zone, to talk further. Doc. 71 ¶ 74; Doc. 79 ¶ 74.
Several of the Plaintiffs testified or declared that they have had trouble communicating with people outside the downtown Planned Parenthood because of street or traffic noise. Doc. 71 ¶¶ 89, 90; Doc. 79 ¶¶ 89, 90. Plaintiff Cosentino testified, however, she has never had trouble communicating with or trying to get a message to people because of street noise or traffic noise. Doc. 71 ¶ 90; Doc. 79 ¶ 90. Plaintiffs also cite no specific instances where someone has told any of Plaintiffs that they were unable to hear Plaintiffs' message because of traffic noise or the distance due to the buffer zone. Doc. 71 ¶ 91; Doc. 79 ¶ 91. Furthermore, at the preliminary injunction hearing in December 2014, Plaintiff Bruni admitted she had no evidence that the buffer zone impeded her from *364talking with willing listeners. Doc. 71 ¶ 58; Doc. 79 ¶ 58 (citing Hr'g Tr. 32 ("THE COURT: ... What evidence do you have that people who desire to engage in close conversation with you are not doing so because of the buffer zone? THE WITNESS: I don't have any.")). Plaintiff Bruni also testified that, between 2009 and the date the Complaint was filed, she has been able to communicate her message to the intended recipients "occasionally." Doc. 71 ¶ 59; Doc. 79 ¶ 59. She testified that, rarely, women inside the buffer zone will come out of the zone to have a conversation with her. Doc. 71 ¶ 60; Doc. 79 ¶ 60. She admits that sometimes women going to the clinic refuse to talk to her, no matter what her distance from them. Doc. 71 ¶ 61; Doc. 79 ¶ 61.
Since approximately 2011, Plaintiff Bruni has been keeping a log of instances where people approaching the Planned Parenthood clinic have reportedly been persuaded not to have abortions. Doc. 71 ¶ 62; Doc. 79 ¶ 62. The log is titled "Log of Saved Babies from abortion at Planned Parenthood, 933 Liberty Avenue, Pittsburgh." Doc. 71 ¶ 62; Doc. 79 ¶ 62. This log records dozens of instances of sidewalk counselors not only communicating their message to others but reportedly persuading people to not have abortions. Doc. 71 ¶ 63; Doc. 79 ¶ 63. Plaintiff Bruni has also "taken a few women to the Crisis Pregnancy Center" after encountering them at the Planned Parenthood clinic. Doc. 71 ¶ 67; Doc. 79 ¶ 67. Likewise, Plaintiff Rinaldi has "often" accompanied women "to nearby Catholic Charities, in order to connect them to resources such as adoption assistance, monetary assistance, food, education, and day care." Doc. 71 ¶¶ 51, 65; Doc. 79 ¶¶ 51, 65; Doc. 74 ¶ 58; Doc. 82 ¶ 58.
B. Procedural History
By way of background and procedural history, at the time the Pittsburgh City Council enacted the Ordinance, it contained the following two provisions:
§ 623.03-EIGHT FOOT PERSONAL BUBBLE ZONE. No person shall knowingly approach another person within eight (8) feet of such person, unless such other person consents, for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education or counseling with such other person in the public way or sidewalk area within a radius of one hundred (100) feet from any entrance door to a hospital and/or medical office/clinic.
§ 623.04-FIFTEEN FOOT BUFFER ZONE. No person or persons shall knowingly congregate, patrol, picket or demonstrate in a zone extending fifteen (15) feet from any entrance to the hospital and or health care facility. This section shall not apply to police and public safety officers, fire and rescue personnel, or other emergency workers in the course of their official business, or to authorized security personnel employees or agents of the hospital, medical office or clinic engaged in assisting patients and other persons to enter or exit the hospital, medical office, or clinic.
Pittsburgh, Pa., Code tit. 6, §§ 623.03-04.
Shortly after taking effect, the Ordinance was challenged as, inter alia , facially invalid under the First Amendment. Brown v. City of Pittsburgh,
Post-remand, the district court ordered that the bubble zone provision at section 623.03 be "permanently enjoined in toto. " Injunction at ¶ 1. Section 623.04, creating the fixed buffer zone, remained, although the Injunction required that the buffer zone provision be construed to prohibit "all persons" from picketing and demonstrating within the boundaries of the buffer zone. Id. at ¶ 2; see Brown,
On June 26, 2014, the Supreme Court issued its decision in McCullen v. Coakley, striking down the amended Massachusetts Reproductive Health Care Facilities Act (the "MRHCA") as insufficiently narrowly tailored to achieve the Commonwealth's legitimate government interests. --- U.S. ----,
Plaintiffs appealed the Court's dismissal of their First Amendment and Due Process claims against the City to the Court of Appeals for the Third Circuit.
Following remand, the parties conducted discovery on the relevant issues, and, on June 30, 2017, filed the instant cross motions for summary judgment, which are now ripe for adjudication. (Docs. 68 & 69).
C. Analysis
1. First Amendment Free Speech and Free Press Claim
The Court will first consider Plaintiffs' facial challenges to the Ordinance under the Free Speech and Free Press Clauses of the First Amendment.
*367i. Whether the Ordinance is Content-Based or Content-Neutral
In Bruni, the Third Circuit instructed this Court on remand "to examine Reed and its effect on the content-neutrality analysis to decide whether that case compels a break from Brown 's holding that the Ordinance is a content-neutral restriction on speech." Bruni,
In Hill v. Colorado, the Supreme Court found that a statute which prohibits engaging in "oral protest, education, or counseling" with individuals attempting to enter a health care facility was content-neutral, despite not restricting casual speech such as saying "good morning" in the same area. Hill, 530 U.S. at 724,
Contrary to Plaintiffs' argument, Reed does not change this analysis. As an initial matter, Reed did not overturn its prior holdings in Hill, either expressly or implicitly, and thus Hill remains good law. Indeed, the Reed Court affirms Hill 's central holding that government can still enact reasonable content-neutral time, place and matter restrictions.
Furthermore, the Ordinance at issue here is entirely distinguishable from the one at issue in Reed, which explicitly distinguished signs based upon content.
The Reed Court explained:
The restrictions in the Sign Code that apply to any given sign thus depend entirely on the communicative content of the sign. If a sign informs its reader of the time and place a book club will discuss John Locke's Two Treatises of Government, that sign will be treated differently from a sign expressing the view that one should vote for one of Locke's followers in an upcoming election, and both signs will be treated differently from a sign expressing an ideological view rooted in Locke's theory of government. More to the point, the Church's signs inviting people to attend its worship services are treated differently from signs conveying other types of ideas.
Id . at 2227 .
The Supreme Court emphasized that the Sign Code's distinctions did not merely "hinge on 'whether and when an event is occurring,' " and did not just "permit citizens to post signs on any topic whatsoever within a set period leading up to an election."
For these reasons, this Court continues to hold, as the Court of Appeals did in Brown , that the Pittsburgh Ordinance is a content-neutral time, place or manner restriction upon speech.
ii. Application of Intermediate Scrutiny
Because the Ordinance is content-neutral, it is subject to intermediate scrutiny. As the McCullen Court explained:
[f]or a content-neutral time, place or manner regulation to be narrowly tailored, it must not 'burden substantially more speech than is necessary to further the government's legitimate interests.' Such a regulation, unlike a content-based restriction of speech, 'need not be the least restrictive or least intrusive means of' serving the government's interests. But the government still 'may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals.'
Plaintiffs do not dispute that the government's interests in enforcing the Ordinance are significant. See Bruni,
In Bruni, the Majority and Judge Fuentes, concurring, agreed that "that the degree of burden on speech [by Pittsburgh's buffer zone] is less than that in McCullen, because the zones in Massachusetts were larger, applied state-wide, and limited any entry into the prohibited areas." Bruni,
The Court first notes that the buffer zone in this case is considerably smaller that the buffer zone at issue in McCullen. Although the Bruni Court clarified that this difference in size is not dispositive, the Majority affirmed that size is "one feature" in determining "the burden on speech that such zones impose."
Furthermore, unlike in McCullen, there is undisputed evidence in this case that Plaintiffs are able to communicate their anti-abortion message using their preferred form of expression-i.e. , sidewalk counseling. The McCullen Court noted that, at certain locations, the MRHCA forced sidewalk counselors to cross the street from the abortion clinics where they sought to counsel-silencing their conversational speech and foreclosing their ability to place leaflets close to patients' hands.
Moreover, Plaintiffs' own records reflect not only that they are able to communicate with patients, but, in some instances, have accomplished their intended goal of persuading women not to have abortions. Doc. 71 ¶¶ 62-67; Doc. 79 ¶¶ 62-67. Plaintiffs *371speculate that they would be able to communicate with more women, and perhaps persuade more of them not to have abortions, if they could walk alongside patients all the way to and from the entrance of the clinic. But Plaintiffs offer no concrete evidence to support this claim. Unlike in McCullen, where the plaintiffs engaged in sidewalk counseling both before and after the MRHCA went into effect and stated that the number of people they reached sharply declined after the larger buffer zones were imposed, Plaintiffs admit that they did not engage in sidewalk counseling at the downtown Planned Parenthood before the Ordinance was passed and thus have no basis to compare the efficacy of their speech with and without a buffer zone. Doc. 71 ¶ 11; Doc. 79 ¶ 11. Plaintiffs further admit that they have no power or right to force unwilling listeners to engage in conversation with them. Thus, the fact that many people entering and exiting the clinic do not wish to speak to Plaintiffs or take literature from them is not evidence that the Ordinance substantially limits Plaintiffs' speech but rather, more likely, that these individuals simply do not wish to engage with Plaintiffs.
In short, the undisputed evidence in this case demonstrates that the Ordinance places only a minimal burden on Plaintiffs' First Amendment free speech rights.
iii. The City's Consideration of Less Restrictive Alternatives
As discussed, the Court of Appeals in Bruni held that Plaintiffs had adequately alleged in their Complaint that the Ordinance posed a "significant burden on speech." Bruni,
*372However, even assuming, arguendo , that the City had such an obligation, the Court finds that it has met its burden. First, contrary to Plaintiffs' contention, the Court finds undisputed evidence in the record that the City enacted the Ordinance to address an "actual problem" in need of solving. Doc. 73 at 13 (citing United States v. Playboy Entm't Grp.,
Furthermore, the Court finds sufficient evidence that the City "seriously considered and reasonably rejected 'different methods that other jurisdictions have found effective.' " Bruni,
Plaintiffs argue that the City should have considered any number of other alternatives prior to adopting the Ordinance, including targeted injunctions and/or the enforcement of anti-harassment statutes. Doc. 73 at 14-18. However, the Bruni Court affirmed that the City need not demonstrate that "it has tried or considered every less burdensome alternative to its Ordinance." Bruni,
For the reasons discussed above, the Court finds that the Ordinance does not "burden substantially more speech than is necessary to further [the City's] legitimate interests." See McCullen,
2. Overbreadth Claim
Plaintiffs also argue that the Ordinance is facially overbroad "because it authorizes the creation of zones at non-abortion locations where the City does not even claim there has been a justification for banning speech." Doc. 73 at 23.
A statute is overbroad when "a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep." Bruni,
Following discovery, there remains no dispute as to the scope of the Ordinance as modified by this Court's permanent injunction. As the City argues, the Injunction requires a clear demarcation of any buffer zones, and the City has demarcated only two such buffer zones, both located at the entrances of reproductive healthcare facilities. Doc. 74 ¶ 149; Doc. 82 ¶ 149. Plaintiffs cite no evidence that the City has enforced or attempted to enforce the Ordinance at any other locations. Indeed, in their lawsuit, Plaintiffs focus almost exclusively on a single buffer zone located at the downtown Planned Parenthood. Thus, the Court finds no evidence that, as limited by the Injunction, the current Ordinance raises any overbreath issue, and will grant summary judgment to Defendants on this claim as well.
II. ORDER
For the reasons stated above, Defendants' Motion for Summary Judgment (Doc. 69) is GRANTED and Plaintiffs' Motion for Summary Judgment (Doc. 68) is DENIED. A judgment order pursuant to Federal Rule of Civil Procedure 58 will follow.
IT IS SO ORDERED.
Plaintiffs did not appeal the Court's denial of their preliminary injunction motion.
The Court applies the same analysis to Plaintiffs' challenges under the Free Speech and Free Press Clauses. As the Court of Appeals held in Bruni, "Plaintiffs' free press claim is, in this context, properly considered a subset of their broader free speech claim, given that the Freedom of the Press Clause and the Free Speech Clause both protect leafleting from government interference." Bruni,
Plaintiffs further contend that, when relegated to any distance away from the entrance to the downtown Planned Parenthood, it becomes more difficult for them to identity who is a patient and who is not. Doc. 74 at ¶ 161. However, as the Court previously found, this is not a burden on their right to free speech. If anything, Plaintiffs engage in more speech, not less, in an effort to disseminate their message to all potential patients. A right to engage in normal conversation and leaflet on a public sidewalk does not equate to a right to know if those with whom you communicate are, indeed, your target audience.
For instance, Plaintiff Bruni testified that, on some occasions, people inside the buffer zone who observe sidewalk counselors offering them literature reach out their hands to receive such literature, expecting the sidewalk counselors to come to them. Doc. 74 ¶ 167. Ms. Bruni speculates that, because the sidewalk counselors cannot enter the buffer zone, people inside the buffer zone could be less likely to take the sidewalk counselors' literature.
Reference
- Full Case Name
- Nikki BRUNI v. CITY OF PITTSBURGH
- Cited By
- 2 cases
- Status
- Published