23-30 Vitagliano v. County of Westchester

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term 2022

(Argued: May 9, 2023 Decided: June 21, 2023)

No. 23-30

––––––––––––––––––––––––––––––––––––

DEBRA A. VITAGLIANO,

Plaintiff-Appellant,

-v.-

COUNTY OF WESTCHESTER,

Defendant-Appellee. *

––––––––––––––––––––––––––––––––––––

Before: LIVINGSTON, Chief Judge, REENA RAGGI, and SUSAN L. CARNEY, Circuit Judges.

Plaintiff-Appellant Debra Vitagliano, an aspiring sidewalk counselor, brought a First Amendment challenge to Westchester County’s recently enacted “bubble zone” law, which makes it illegal to approach within eight feet of another person for the purpose of engaging in “oral protest, education, or counseling” when inside a one-hundred-foot radius of a reproductive health care facility. The

The Clerk of Court is respectfully directed to amend the official caption to *

conform to the above.

1 district court dismissed the complaint, holding that Vitagliano lacks standing to mount a pre-enforcement challenge to the bubble zone law, and that, in any event, the Supreme Court’s decision in Hill v. Colorado,

(2000), forecloses her First Amendment claim. We conclude that Vitagliano has standing to seek pre- enforcement relief because she has pleaded sufficient facts to support a credible threat that Westchester County will enforce the bubble zone law if she pursues her stated intention to engage in sidewalk counseling. We nevertheless affirm the judgment of dismissal because the district court correctly recognized that Hill dictates the conclusion that Westchester County’s bubble zone law withstands First Amendment scrutiny. Accordingly, the judgment of the district court is VACATED IN PART and AFFIRMED IN PART.

FOR PLAINTIFF-APPELLANT: JOSEPH C. DAVIS (Mark L. Rienzi, Daniel L. Chen, Daniel M. Vitagliano, on the brief), The Becket Fund for Religious Liberty, Washington, DC.

(Edward M. Wenger, Caleb B. Acker, Andrew B. Pardue, Holtzman Vogel Baran Torchinsky & Josefiak PLLC, Washington, DC, for Eleanor McCullen, as amicus curiae)

FOR DEFENDANT-APPELLEE: JOHN M. NONNA, Westchester County Attorney (Justin R. Adin, Deputy County Attorney, Shawna C. MacLeod, Senior Assistant County Attorney, on the brief), Westchester County Attorney’s Office, White Plains, NY.

(Stephanie Schuster, Emily Booth, Tanya Tiwari, Caiti Zeytoonian, Bichnga T. Do, Morgan, Lewis & Bockius LLP, Washington, DC, Boston, MA, and Los Angeles, CA, for Westchester Coalition for Legal Abortion – Choice Matters, Inc., Hope’s Door, Westchester Women’s Agenda, and

2 Planned Parenthood Hudson Peconic, Inc., as amici curiae)

PER CURIAM:

Plaintiff-Appellant Debra Vitagliano (“Vitagliano”) is an aspiring pro-life

sidewalk counselor who wishes to approach women entering abortion clinics and

engage them in peaceful conversation about abortion alternatives. Vitagliano

sued Westchester County (the “County”), pursuant to

, asserting

a First Amendment challenge to its recently enacted “bubble zone” law, which

makes it illegal to approach within eight feet of another person for the purpose of

engaging in “oral protest, education, or counseling” when inside a one-hundred-

foot radius of a reproductive health care facility. Vitagliano contends that the

County’s bubble zone law is a content-based restriction on speech that cannot

survive strict or intermediate scrutiny.

Vitagliano appeals from a judgment dismissing her claim. The district

court (Halpern, J.) determined sua sponte that she lacks standing to assert a pre-

enforcement challenge to the County’s bubble zone law and that, in any event, the

Supreme Court’s decision in Hill v. Colorado,

(2000), which upheld a

materially identical bubble zone law in Colorado, forecloses Vitagliano’s First

Amendment claim. We disagree in part. The district court’s standing analysis

3 failed to credit Vitagliano’s well-pleaded allegations detailing the efforts she

undertook to become a sidewalk counselor and her plans to engage in such

counseling. Because Vitagliano has alleged facts that demonstrate a credible

threat of prosecution under the County’s bubble zone law if she pursues her plans

to counsel on the sidewalk, she has articulated an injury in fact that is sufficiently

concrete and imminent to confer Article III standing. Accordingly, we vacate the

district court’s ruling insofar as it dismissed Vitagliano’s suit for lack of standing.

We nevertheless affirm the judgment on the merits because the district court

correctly concluded that Hill is dispositive of Vitagliano’s First Amendment claim.

BACKGROUND

I. Factual Background

A. Westchester County’s Bubble Zone Law

On June 27, 2022, Westchester County enacted the Reproductive Health

Care Facilities Access Act (the “Act”). Westchester Cnty., N.Y., Charter &

Admin. Code ch. 425 (2023). The Act’s stated purpose is to “prohibit interference

with accessing reproductive health care facilities and obtaining reproductive

health care services[.]”

§ 425.11. The Act contains nine separate prohibitions

4 on conduct and speech outside of “reproductive health care facilit[ies].” Id.

§ 425.31(a)–(i). 1

The focal point of this appeal is § 425.31(i), the provision of the Act that

creates the so-called bubble zone. This section provides that it shall be unlawful

to:

Knowingly approach another person within eight (8) feet of such person, unless such other person consents, for the purpose of passing any material, item, or object to, displaying a sign to, or engaging in oral protest, education, or counseling with such other person in the public way within a radius of one hundred (100) feet from any door to a reproductive health care facility.

Id. § 425.31(i). 2

1 The Act defines a “[r]eproductive health care facility” as “any building, structure, or place, or any portion thereof, at which licensed, certified, or otherwise legally authorized persons provide reproductive health care services.” Westchester Cnty., N.Y., Charter & Admin. Code § 425.21(k). “Reproductive health care services” is, in turn, defined as “medical, surgical, counseling, or referral services relating to the human reproductive system, including services relating to pregnancy or the termination of a pregnancy.” Id. § 425.21(l). 2 The Act defines “[a]pproach” as “to move nearer in distance to someone.” Westchester Cnty., N.Y., Charter & Admin. Code § 425.21(a). It also specifies that “‘[e]ight (8) feet’ shall be measured from the part of a person’s body that is nearest to the closest part of another person’s body, where the term ‘body’ includes any natural or artificial extension of a person, including, but not limited to, an outstretched arm or hand- held sign.” Id. § 425.21(b).

5 Although not challenged in the instant appeal, the Act also makes it illegal

to: (1) “[k]nowingly physically obstruct or block another person” from entering or

exiting a reproductive health care facility; (2) “[s]trike, shove, restrain, grab, kick,

or otherwise subject to unwanted physical contact or injury” anyone seeking to

legally enter or exit a reproductive health care facility; (3) “[k]nowingly follow and

harass another person” within 25 feet of a reproductive health care facility or its

parking lot; (4) “[k]nowingly engage in a course of conduct or repeatedly commit

acts when such behavior places another person in reasonable fear of physical

harm” within 25 feet of a reproductive health care facility or its parking lot; (5)

“knowingly injure, intimidate, or interfere with” another by force, threat of force,

or physical blocking “to discourage such other person” from “obtaining or

providing” reproductive health care services; (6) “knowingly injure, intimidate, or

interfere with” another by force, threat of force, or physical blocking “because such

person was or is obtaining or providing” reproductive health care services; (7)

“[p]hysically damage a reproductive health care facility so as to interfere with its

operation”; and (8) “[k]nowingly interfere with the operation of a reproductive

health care facility[.]” Id. § 425.31(a)–(h).

6 Violations of the Act are misdemeanors, with a first conviction punishable

by up to $1,000 in fines and six months’ imprisonment. Id. § 425.41(a).

Subsequent convictions are punishable by up to $5,000 in fines and one year’s

imprisonment. Id. § 425.41(b). The Act also allows the County Attorney to

bring civil enforcement actions for injunctive relief. Id. § 425.61. It further

creates a private civil cause of action for treble damages and injunctive relief,

which can be brought by “any person whose ability to access the premises of a

reproductive health care facility has been interfered with,” or by any “owner,”

“operator,” “employee,” “volunteer,” and “invitee” of a reproductive health care

center. Id. § 425.51. And the Act provides for joint and several liability for

individuals who “acted in concert” to violate any of its prohibitions. Id. § 425.71.

B. Vitagliano and Her Pro-Life Activities 3

Vitagliano is a 64-year-old mother of three and a resident of Westchester

County. App’x 1, 4. She has worked as an occupational therapist for 42 years,

primarily assisting special needs children. Id. at 4–5. She is a devout, practicing

3 The facts concerning Vitagliano and her pro-life activities are taken from her complaint and are accepted as true for purposes of this appeal. See Yamashita v. Scholastic Inc.,

, 100 n.2 (2d Cir. 2019).

7 Catholic and, consistent with her faith, opposes abortion as contrary to her sense

of morality. Id. at 5.

Moved by her faith, in February 2021, Vitagliano began participating in a

peaceful prayer-vigil campaign at the Planned Parenthood facility in White Plains,

New York. Id. As part of the campaign, Vitagliano held signs with pro-life

messages and prayed on the sidewalk and public way outside the facility. Id. at

6. During her activities outside of Planned Parenthood, Vitagliano observed

others engage in sidewalk counseling by approaching women on their way into

the clinic, speaking with them, and distributing pamphlets and other materials.

Id. Vitagliano felt compelled to engage in sidewalk counseling, hoping to inform

women about abortion alternatives and advise them of available resources if they

decide to forego abortion procedures. Id.

Vitagliano “did not immediately engage in sidewalk counseling because she

felt she first needed proper training.” Id. In particular, she wanted to learn

effective techniques for approaching pregnant women, develop ideas for what to

say to them, and prepare herself for handling the different situations she may

confront. Id. Vitagliano thus enrolled in and completed two online classes (an

introductory course and an eight-week advanced course) on consulting pregnant

8 women considering abortion. Id. at 7. In spring 2022, Vitagliano obtained

pamphlets from local pro-life organizers, “which she planned to distribute while

engaging in future sidewalk counseling.” Id. Upon completing her training,

she volunteered as a “life consultant” at a local crisis pregnancy center, meeting

with women experiencing unplanned pregnancies and consulting with them

about their options. Id. Vitagliano began volunteering by shadowing other life

consultants and now volunteers in this capacity for two hours every week. Id.

“Now properly trained and with experience as a life consultant,” Vitagliano

avers that she “is prepared to engage in sidewalk counseling,” “would like to

counsel women on the public way as they approach the White Plains Planned

Parenthood,” and would do so “[b]ut for” the County law at issue in this litigation

Id. at 7, 15. If permitted, Vitagliano hopes to engage women entering the abortion

clinic to explore the details of their stories through active listening and asking

about their needs, feelings, and the reactions of their family members. Id. at 7–8.

She would initiate conversations by telling women something to the effect of

“[y]ou are not alone . . . [w]e can help you,” and would inform pregnant women

seeking abortions that there are people who will love and care for them and their

children. Id. at 8. Drawing on her experience as a mother and occupational

9 therapist, Vitagliano wants to share options besides abortion and encourage them

to carry their babies to term. Id. at 9. Before she could implement her training

and engage in sidewalk counseling, the County enacted the bubble zone law. Id.

II. Procedural History

In November 2022, Vitagliano filed suit against the County, asserting a First

Amendment claim under § 1983 characterizing the County’s bubble zone law as a

content-based restriction on speech that fails strict scrutiny. 4 Id. at 18–22. The

County filed a premotion letter concerning its anticipated motion to dismiss

Vitagliano’s claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Id. at 29–

31. The County argued in this letter that the Supreme Court’s decision in “Hill is

directly on point and binding here, and remains controlling precedent unless and

until the Supreme Court overturns it.” Id. at 30. In response, Vitagliano

acknowledged that Hill directly controls her claim and expressed her view that

“Hill was wrongly decided, is irreconcilable with intervening precedent, and

should be overruled by the Supreme Court.” Id. at 32. Because she could not

Vitagliano named Westchester County, County Executive George Latimer, and 4

County Attorney John M. Nonna as defendants in her complaint. App’x 3–4. After the parties stipulated that Latimer and Nonna would be “bound by and subject to any injunction or declaratory judgment [Vitagliano] obtains against the County in this action,” the parties agreed to drop Latimer and Nonna from the case. Id. at 24-28.

10 obtain her desired relief in the district court, Vitagliano suggested that “[i]n the

interest of judicial economy, [the district court] may therefore wish to dispense

with formal briefing, treat [the County’s] pre-motion letter as the motion, and

dispose of it.” Id. at 35.

In January 2023, the district court granted the County’s motion to dismiss

without further briefing. See Vitagliano v. County of Westchester, No. 22 Civ. 9370

(PMH),

(S.D.N.Y. Jan. 3, 2023). The district court determined that

Vitagliano lacks Article III standing and, even if she has standing, Hill forecloses

her claims. On standing—which the parties did not discuss in their premotion

letters—the district court held that Vitagliano had not adequately alleged an injury

in fact stemming from the County’s bubble zone restriction because “she has never

engaged in sidewalk counseling” and “does not allege any concrete plans to do so

at any point in the future.”

. As the court construed the complaint,

Vitagliano “only alleged, in the most general fashion, that . . . her exercise of free

speech has been chilled by the enactment of the Buffer Zone Provision.”

(internal quotation marks omitted). The district court emphasized that

Vitagliano alleged that she “would need ‘proper training’ before she would even

consider sidewalk counseling.”

Vitagliano thus harbored only an abstract

11 and subjective fear about the bubble zone law, which, according to the district

court, is insufficient to confer Article III standing.

On the merits, the district court, applying Hill, concluded that the bubble

zone law withstands intermediate scrutiny.

at *3–4. Recognizing that the

County’s bubble zone law is materially identical to the Colorado law the Supreme

Court previously upheld in Hill, the district court determined that the County’s

law is content neutral because “[i]t applies to all ‘protest,’ to all ‘counseling,’ and

to all demonstrators whether or not the demonstration concerns abortion, and

whether they oppose or support the woman who has made an abortion decision.”

at *3 (quoting Hill,

). The district court further concluded that

the law “is clearly narrowly tailored to advance Westchester County’s significant

governmental interest in protecting individuals attempting to enter health care

facilities from ‘unwanted encounters, confrontations, and even assaults by

enacting an exceedingly modest restriction on the speakers’ ability to approach.’”

(quoting Hill,

).

DISCUSSION

Vitagliano concedes that the Supreme Court’s decision in Hill is binding

precedent, and that the district court correctly applied this precedent in dismissing

12 her claim. Vitagliano nevertheless pursues this appeal in the hope that the

Supreme Court will revisit and overrule Hill and hold that bubble zone restrictions

like the County’s violate the First Amendment. Vitagliano also asserts error as to

the district court’s standing ruling, contending that the district court premised its

reasoning on an erroneous reading of her complaint and a misapplication of

standing precedent. We review de novo both the district court’s dismissal of a

complaint for lack of standing and for failure to state a claim. See Allco Fin. Ltd.

v. Klee,

(2d Cir. 2015).

I. Standing

We begin with standing “because it is a ‘jurisdictional’ requirement and

‘must be assessed before reaching the merits.’” Calcano v. Swarovski N. Am. Ltd.,

(2d Cir. 2022) (quoting Byrd v. United States,

(2018)). “To establish Article III standing, a plaintiff must show (1) an ‘injury in

fact,’ (2) a sufficient ‘causal connection between the injury and the conduct

complained of,’ and (3) a ‘likelihood’ that the injury ‘will be redressed by a

favorable decision.’” Picard v. Magliano,

(2d Cir. 2022) (quoting

Susan B. Anthony List v. Driehaus,

, 157–58 (2014)). The district court

determined that Vitagliano had not suffered an injury in fact and thus failed on

13 the first standing requirement. This conclusion, however, minimizes the

concreteness of Vitagliano’s plans to engage in sidewalk counseling, fails to credit

her allegations concerning the efforts she took to learn how to become a sidewalk

counselor, and overlooks the details as to how and where she plans to engage in

such counseling. Under applicable precedent, Vitagliano has adequately alleged

that she suffered an injury in fact and, furthermore, that this alleged injury was

caused by the law at issue and is redressable by a ruling in her favor.

Accordingly, Vitagliano has standing to bring this pre-enforcement challenge to

the County’s bubble zone law.

An injury sufficient to satisfy Article III must be “concrete and

particularized” and “actual or imminent, not ‘conjectural’ or ‘hypothetical.’”

Lujan v. Defenders of Wildlife,

(1992) (citations omitted). An

allegation of future injury may suffice if the threatened injury is “certainly

impending,” or there is a “‘substantial risk’ that the harm will occur.” Clapper v.

Amnesty Int’l USA,

, 414 n.5 (2013) (emphasis and internal

quotation marks omitted). “Pre-enforcement challenges to criminal statutes”—

such as the County’s bubble zone law—“are cognizable under Article III,” as it is

well established that a “plaintiff need not first expose [her]self to liability before

14 bringing suit to challenge . . . the constitutionality of a law threatened to be

enforced.” Picard,

(internal quotation marks and citations omitted).

Courts apply a three-prong test to assess the existence of a cognizable injury in fact

in the context of pre-enforcement challenges, which requires a plaintiff to

demonstrate: (1) “an intention to engage in a course of conduct arguably affected

with a constitutional interest”; (2) that the intended conduct is “proscribed by” the

challenged law; and (3) that “there exists a credible threat of prosecution

thereunder.” Susan B. Anthony List, 573 U.S. at 159 (internal quotation marks and

citation omitted). In other words, “a plaintiff has standing to make a

preenforcement challenge ‘when fear of criminal prosecution under an allegedly

unconstitutional statute is not imaginary or wholly speculative.’” Cayuga Nation

v. Tanner,

(2d Cir. 2016) (quoting Hedges v. Obama,

(2d Cir. 2013)). Vitagliano has satisfied all three elements to establish that she

has suffered an injury in fact related to the prospect of the County’s enforcement

of its bubble zone law.

First, Vitagliano’s desire to engage in sidewalk counseling involves a course

of conduct affected with a constitutional interest. Vitagliano alleges that she

wishes to “stand on the public way outside of a White Plains abortion clinic,

15 approach women entering the clinic, and initiate gentle, compassionate

conversations about the woman’s situation and resources available should she

decide to carry her child to term.” App’x 1–2. As part of her intended sidewalk

counseling, Vitagliano plans to distribute pamphlets containing information about

the services and resources available to women who have children. Id. at 7, 9.

These plans are clearly affected with a First Amendment interest. For one,

“traditional public fora,” such as the sidewalks and public ways where Vitagliano

wishes to engage in sidewalk counseling, “are areas that have historically been

open to the public for speech activities.” McCullen v. Coakley,

, 476

(2014). Furthermore, “[l]eafletting and commenting on matters of public concern

are classic forms of speech that lie at the heart of the First Amendment,” especially

in traditional public fora where speech “is at its most protected[.]” Schenck v. Pro-

Choice Network of W. N.Y.,

(1997); see also Hill,

(“[L]eafletting, sign displays, and oral communications are protected by the First

Amendment.”). Because Vitagliano’s intended activities involve peaceful

communication on an issue of public concern in a public area, she has satisfied the

first prong of the pre-enforcement injury-in-fact test.

16 The district court denied Vitagliano standing because she “only alleged, in

the most general fashion, that . . . her exercise of free speech has been chilled by

the enactment of the Buffer Zone Provision.” Vitagliano,

, at *3

(internal quotation marks omitted). The district court emphasized that

Vitagliano had “never engaged in sidewalk counseling,” did not “allege concrete

plans to do so at any point in the future,” and needed “‘proper training’ before she

would even consider sidewalk counseling.”

The last statement, however,

misconstrued the complaint, which explained that Vitagliano has now received

such training. App’x 7. Further, a plaintiff asserting a pre-enforcement

challenge need only allege “an intention to engage in a course of conduct,” which

does not necessarily require specification of the date and time she plans to do

something of constitutional significance. Picard,

(quoting Susan B.

Anthony List, 573 U.S. at 159). Vitagliano included in her complaint descriptions

of the origin of her desire to become a sidewalk counselor, the steps she took to

train and prepare to serve as a sidewalk counselor, the abortion clinic outside

which she intends to provide sidewalk counseling, and the approach she plans to

take when having sidewalk-counseling conversations. App’x 5–12.

17 This level of detail more than suffices to establish Vitagliano’s “earnest

desire to engage in sidewalk counseling” “but for” the enactment of the bubble

zone restriction. Id. at 15; see also, e.g., Silva v. Farrish,

, 87 (2d Cir. 2022)

(finding that a group of fishermen could bring a pre-enforcement challenge to state

fishing laws when they alleged the regulations “deterred and chilled” them from

fishing and that “they would fish if they did not fear prosecution”); Picard,

, 97–101 (finding standing for a pre-enforcement challenge to a criminal

statute restricting activity outside of courthouses for a plaintiff who alleged

“[a]bsent his fear” of prosecution “he would continue to promote jury nullification

outside New York courthouses”). That Vitagliano had not engaged in sidewalk

counseling prior to the Act’s passage does not require a different result. See Susan

B. Anthony List, 573 U.S. at 159 (requiring only an “intention to engage in a course

of conduct” (internal quotation marks omitted)); 303 Creative LLC v. Elenis,

, 1172 (10th Cir. 2021) (finding intent to engage in conduct where “[a]lthough

Appellants have not yet offered wedding website services,” they “provided clear

examples of the types of websites they intend to provide”), cert. granted on different

question,

(2022); Telescope Media Grp. v. Lucero,

(8th

18 Cir. 2019) (finding standing where plaintiff planned to “enter” business that would

be affected by challenged law).

Second, Vitagliano’s sidewalk counseling is squarely proscribed by the Act.

In evaluating this prong of the standing analysis, a plaintiff’s intended conduct

need only be “‘arguably proscribed’ by the challenged statute,” not necessarily “in

fact proscribed.” Picard,

(quoting Susan B. Anthony List, 573 U.S. at

162). Vitagliano’s allegations exceed the applicable standard. The challenged

provision of the Act makes it illegal within 100 feet of an abortion clinic to

“[k]nowingly approach another person within eight (8) feet,” absent that person’s

consent, “for the purpose of passing any material, item, or object to, displaying a

sign to, or engaging in oral protest, education, or counseling.” Westchester Cnty.,

N.Y., Charter & Admin. Code § 425.31(i). This is precisely what sidewalk

counseling entails and Vitagliano’s allegations make it clear that her desired

course of conduct is proscribed by the Act.

Third, and finally, Vitagliano has demonstrated that she faces a credible

threat of enforcement if she follows through with her intention to engage in

sidewalk counseling. The County contends that Vitagliano “has not identified a

credible threat of enforcement, outside of the general existence of the law,” and

19 argues that she must plead something more than an intention to engage in conduct

clearly proscribed by the Act. Appellee’s Br. 8; see also id. at 7–10. To be sure,

“[t]he identification of a credible threat sufficient to satisfy the imminence

requirement of injury in fact necessarily depends on the particular circumstances

at issue.” Knife Rights, Inc. v. Vance,

(2d Cir. 2015). But the

County’s argument ignores the well-established proposition that “[w]here a

statute specifically proscribes conduct, the law of standing does not place the

burden on the plaintiff to show an intent by the government to enforce the law

against it.” Tweed-New Haven Airport Auth. v. Tong,

(2d Cir. 2019)

(internal quotation marks and citation omitted). Rather, we “presume[ ] such

intent in the absence of a disavowal by the government or another reason to

conclude that no such intent existed.”

(internal quotation marks and citation

omitted). The credible-threat standard “sets a low threshold and is quite

forgiving to plaintiffs seeking such preenforcement review, as courts are generally

willing to presume that the government will enforce the law as long as the relevant

statute is recent and not moribund.” Cayuga Nation,

(internal

quotation marks and citation omitted).

20 The County enacted the bubble zone restrictions in June 2022, just months

before Vitagliano brought this action—hardly moribund—and Vitagliano’s

intended course of conduct falls squarely within the Act’s prohibitions.

Moreover, there is no indication that the County has disavowed enforcement of

the bubble zone restriction; to the contrary, when asked at oral argument, the

County declined to represent that county officials would not enforce the law.

With no reason to doubt that the County will enforce its recently enacted law

against those who violate its terms, we may presume that Vitagliano faces a

credible threat of enforcement if she pursues her intention to counsel on the

sidewalk.

The County relies on Adam v. Barr,

(2d. Cir. 2019), in which

we held that a pro se plaintiff lacked standing to sue federal officials to enjoin

potential enforcement of the Controlled Substances Act (“CSA”),

,

et seq., against him because he wished to possess and use marijuana

for religious purposes. But Adam, an unpublished summary order, is not

analogous to the instant case. Adam arose out of a suit against the federal

government, involving a supposed threat of prosecution under a decades-old law

with nationwide scope. We explained that the presumption that the government

21 will enforce its own laws “in and of itself, is not sufficient to confer standing, as

courts also consider the extent of that enforcement in determining whether a

credible threat of prosecution exists.” Adam, 792 F. App’x at 23. Despite the

CSA’s extensive enforcement history, the plaintiff was unable to marshal examples

of enforcement actions that involved the kind of personal religious use of

marijuana in which he planned to partake. Id. at 22–23. Because the plaintiff

had not “partizularize[d] the CSA’s enforcement in relation to” his conduct, he

was “simply . . . at risk just like any other person in the country who might violate

the CSA.” Id. at 23. We thus held that “the threat of enforcement against him

[was] insufficiently imminent to confer Article III standing.” Id. (citation

omitted).

The circumstances of Vitagliano’s case present an eminently more credible

threat of prosecution. Vitagliano seeks to enjoin a newly enacted law aimed

specifically at Westchester County reproductive health care facilities and designed

to curb the very conduct in which she intends to engage outside such facilities.

Far from the facts of Adam, Vitagliano’s allegations reveal her intent to engage in

conduct only recently criminalized and in the precise location that the new law

22 targets. We are convinced that the “particular circumstances at issue” here make

the threat of prosecution highly “credible.” Knife Rights,

.

The County additionally cites several cases in which a plaintiff faced either

previous enforcement actions or a stated threat of future prosecution under a

challenged law. See Appellee’s Br. 8. While evidence of such activity is, of

course, relevant to assessing the credibility of an enforcement threat, none of these

cases suggest that such evidence is necessary to make out an injury in fact. See,

e.g., Susan B. Anthony List, 573 U.S. at 164 (observing “that past enforcement

against the same conduct is good evidence that the threat of enforcement is not

chimerical” (emphasis added) (internal quotation marks and citations omitted)).

Weakening the County’s argument, we have explained that requiring an “overt

threat to enforce” a criminal prohibition “would run afoul of the Supreme Court’s

admonition not to put ‘the challenger to the choice between abandoning his rights

or risking prosecution.’” Tong,

(quoting MedImmune, Inc. v.

Genentech, Inc.,

(2007)). And we have previously found standing

where there was no “express threat of prosecution specifically directed at the

plaintiff.” Cayuga Nation,

n.9 (citing Knife Rights,

n.4, 386–87). Likewise, the Supreme Court and at least four other circuits have

23 sustained pre-enforcement standing without a past enforcement action or an overt

threat of prosecution directed at the plaintiff. 5

Vitagliano has thus adequately alleged an injury in fact for Article III

purposes. She additionally satisfies the causation and redressability

requirements, in that her injury is fairly traceable to the challenged bubble zone

law and can be redressed by her requested relief, i.e., a declaration that the bubble

zone law is unconstitutional and an injunction enjoining its enforcement. See

Lujan, 504 U.S. at 560–61. Therefore, Vitagliano has standing to bring this pre-

enforcement challenge to the County’s bubble zone law.

II. Merits

We need not dwell on the merits of Vitagliano’s First Amendment challenge

to the County’s bubble zone law, as Vitagliano concedes (and we agree) that the

district court correctly applied Hill in dismissing her claim. At issue in Hill was

a 1993 Colorado statute that made it unlawful within 100 feet of any health care

See Virginia v. Am. Booksellers Ass’n, Inc.,

, 392–93 (1988) (permitting 5

a pre-enforcement challenge to a statute initiated before the statute became effective); Babbitt v. United Farm Workers Nat’l Union,

(1979) (finding pre- enforcement standing without a specific threat of prosecution and even though the criminal prohibition had “not yet been applied and may never be applied” to a particular course of conduct); see also Speech First, Inc. v. Fenves,

, 336–37 (5th Cir. 2020); Speech First, Inc. v. Schlissel,

(6th Cir. 2019); Majors v. Abell,

(7th Cir. 2003); Mangual v. Rotger-Sabat,

(1st Cir. 2003).

24 facility to “‘knowingly approach’ within eight feet of another person, without that

person’s consent, ‘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[.]’” Hill,

(quoting

(3) (1999)).

Although not identical in all respects, the County’s bubble zone law was modeled

after this Colorado law. 6 Similar to Vitagliano, the petitioners in Hill were

sidewalk counselors who alleged that Colorado’s bubble zone chilled the exercise

of their fundamental right to free speech.

at 708–09. Furthering the

similarities between the two cases, the Hill petitioners asserted that Colorado’s law

was a content-based restriction on speech that failed strict scrutiny.

.

The Supreme Court determined that Colorado’s bubble zone law was

content-neutral because it “simply establishes a minor place restriction on an

extremely broad category of communications with unwilling listeners.”

. “Instead of drawing distinctions based on the subject that the approaching

6 For instance, § 425.31(i) of the Act prohibits passing “any material” within the prescribed bubble zone, whereas Colorado’s law restricted the passing of “leaflet[s] or handbill[s].” Compare Westchester Cnty., N.Y., Charter & Admin. Code § 425.31(i), with

(3). Moreover, the County’s bubble zone restrictions operate only outside of facilities that offer reproductive health care services (including abortion facilities and anti-abortion pregnancy centers), whereas Colorado’s law applies outside of all facilities licensed to provide medical treatment. Compare Westchester Cnty., N.Y., Charter & Admin. Code § 425.21(k)–(l), with

(4).

25 speaker may wish to address”—a paradigmatic regulation targeting content—the

restriction “applies equally to used car salesmen, animal rights activists,

fundraisers, environmentalists, and missionaries,” permitting each to “attempt to

educate unwilling listeners on any subject,” so long as they did not approach

within eight feet without consent to do so.

Applying intermediate scrutiny,

the Court held that the Colorado law was a valid time, place, and manner

regulation that (1) was narrowly tailored to serve the important governmental

interests of safeguarding public health and safety and shielding captive listeners

from unwanted communication and (2) left open ample alternative channels for

communication.

at 714–18, 725–30.

Vitagliano argues in her briefing why she believes Hill was wrongly decided

and is irreconcilable with intervening Supreme Court precedent. These

arguments have no bearing on the disposition of the appeal now before us. The

Supreme Court has stated in clear terms that “[i]f a precedent of this Court has

direct application in a case, yet appears to rest on reasons rejected in some other

line of decisions, the Court of Appeals should follow the case [that] directly

controls, leaving to this Court the prerogative of overruling its own decisions.”

Agostini v. Felton,

(1997) (internal quotation marks and citation

26 omitted). Accordingly, Hill remains controlling precedent and dictates that the

County’s bubble zone withstands First Amendment scrutiny.

CONCLUSION

For the foregoing reasons, we VACATE the portion of the district court’s

judgment finding that Vitagliano lacked standing and AFFIRM the dismissal of

Vitagliano’s challenge to the County’s bubble zone law on the merits.

27