NIKKI BRUNI; JULIE COSENTINO; CYNTHIA RINALDI; KATHLEEN LASLOW; PATRICK MALLEY, Appellants
CITY OF PITTSBURGH; PITTSBURGH CITY COUNCIL; MAYOR PITTSBURGH
Argued: February 6, 2019
Appeal from the United States District Court for the Western
District of Pennsylvania (W.D. Pa. No. 2-14-cv-01197)
Honorable Cathy Bissoon, U.S. District Judge.
Kenneth J. Connelly Elissa M. Graves Kevin H. Theriot,
Kristen K. Waggoner David A. Cortman Alliance Defending
Freedom, Lawrence G. Paladin, Jr. Counsel for
Plaintiff-Appellants Nikki Bruni, Julie Cosentino, Cynthia
Rinaldi, Kathleen Laslow, and Patrick Malley
E. Koren Matthew S. McHale [*] Yvonne S. Hilton City of
Pittsburgh Department of Law Counsel for Defendant-Appellees
City of Pittsburgh, Pittsburgh City Council, Mayor Pittsburgh
William A. Bonner, Counsel for Amicus Curiae Life Legal
Cohn Stephen M. Juris Janice Mac Avoy Fried Frank Harris
Shriver & Jacobson, Susan J. Frietsche Women's Law
Project Western Pennsylvania Office Counsel for Amici Curiae
Women Law Project, National Abortion Federation
Stephen M. Crampton Counsel for Amici Curiae Pro Life Action
League, Sidewalk Advocates for Life
W. Fitschen The National Legal Foundation Counsel for Amici
Curiae Pacific Justice Institute, Concerned Women for
America, National Legal Foundation
Matthew D. Staver Horatio G Mihet Roger K. Gannam Liberty
Counsel Counsel for Amici Curiae Colleen Reilly and Becky
L. Barron Whiteford Taylor & Preston Counsel for Amicus
Curiae International Municipal Lawyers
Before: HARDIMAN, KRAUSE, and GREENBERG, Circuit Judges.
Krause, Circuit Judge.
case requires us to determine the constitutionality of a
Pittsburgh ordinance that creates a fifteen-foot "buffer
zone" outside the entrance of any hospital or healthcare
facility. Pittsburgh, Pa., Code § 623.04 (2005)
[hereinafter "the Ordinance" or "Pitts.
Code"]. In relevant part, the Ordinance states that
"[n]o person or persons shall knowingly congregate,
patrol, picket or demonstrate" in the prescribed zone.
Id. Outside of a Planned Parenthood in downtown
Pittsburgh, Plaintiffs engage in leafletting and
"peaceful . . . one-on-one conversations" conducted
"at a normal conversational level and distance"
intended to dissuade listeners from obtaining an abortion.
Appellants' Br. 9, 17-18. As the City has asserted that
the Ordinance applies to this speech, known as "sidewalk
counseling," Plaintiffs argue that the Ordinance is
facially unconstitutional under the First Amendment and the
District Court erred in granting summary judgment in the
City's favor. Because we conclude that the Ordinance does
not cover sidewalk counseling and thus does not impose a
significant burden on speech, we will affirm.
History of the Ordinance
mid- and late 1990s, Planned Parenthood was the site of
numerous clashes between opponents and advocates of abortion
rights as well as individuals seeking the facility's
services. In addition to seeing "hundreds"
of people at the facility on a Saturday-"pro and
anti"-the clinic was plagued by bomb threats, vandalism,
and blockades of its entrance. JA 322a. To address these
incidents, the Bureau of Police deployed an overtime detail
of "up to ten officers and a sergeant" to maintain
order and security, often using crowd-control barriers to
separate demonstrators from each other and from patients
trying to enter the clinic. JA 1024a.
2002, Planned Parenthood moved to its current location at 933
Liberty Avenue. Although the incidents lessened in severity,
contemporaneous police logs and testimony from Sergeant
William Hohos indicate that "the pushing,"
"the shoving," and "the blocking of the
doors" continued, and the overtime detail, reduced in
size, continued to provide a police presence. JA 323a, JA
834a, JA 837a. After Pittsburgh was declared a financially
distressed municipality in late 2003, however, fiscal
constraints and the need for redeployment of limited police
resources required the detail to be discontinued, and police
were called to address the continuing incidents at the site
on an as-needed basis. In the wake of the detail's
discontinuation, the clinic reported an "obvious
escalation in the efforts of the protestors," JA 357a,
including an increase in "aggressive pushing, shoving
and . . . harassing behavior that included shoving literature
into people's pockets, hitting them with signs and
blocking their entrance into the building," JA 352a.
November 2005, the City Council held hearings on proposed
legislation that eventually resulted in the Ordinance. Among
those who testified were sidewalk counselors, clinic escorts,
patients, and other concerned members of the community.
Several witnesses insisted the Ordinance was unnecessary
either because they had never observed violent incidents or
were unaware of "significant violence" outside the
clinic. JA 348a. But other witnesses reported being
personally harassed and prevented from entering the clinic,
being yelled at through the glass doors of the clinic, and
seeing patients being surrounded on the sidewalk. A Planned
Parenthood counselor described patients entering the clinic
in a "psychological state [of] situational crisis,"
threatening their health. JA 355a. And "without [police]
supervision," the President and CEO of Planned
Parenthood of Western Pennsylvania said, "there ha[d]
been an increase in unlawful behavior that . . . put . . .
patients, their families, pedestrians and . . . protestors at
risk." JA 352a.
City Council also heard from Commander Donaldson of the
Pittsburgh Police Department. He reported that police had
been summoned to Planned Parenthood twenty-two times in the
past six months alone to "mediate confrontations"
and respond to incidents ranging from signs "obstructing
the front of the building" to protestors
"follow[ing] . . . people to the doorway." JA 404a.
They had not made any arrests, however. According to
Commander Donaldson, the City had on its books "laws . .
. that would address obstructing traffic or passageways or .
. . the [clinic's] doorway," but those laws would
not address the precise problem that was occurring, namely
attempts to block people from entering the facility before
they reached its front door.JA 398a.
debate on the Ordinance was extensive. Many witnesses, both
for and against the legislation, expounded on the competing
interests at stake and expressed a desire to protect both
free speech and access to healthcare, including abortions.
after these hearings, the City Council adopted the Ordinance,
and the mayor signed it into law. See Bruni v. City of
Pittsburgh (Bruni I), 824 F.3d 353, 357 (3d
Cir. 2016). Codified as Chapter 623 of the Pittsburgh Code of
Ordinances, the Ordinance states, in relevant part:
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
. . . 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.
Code § 623.04. The Council also ratified a preamble that
set forth the City's goals in adopting the Ordinance,
including "provid[ing] unobstructed access to health
care facilities" and "medical services,"
"avoid[ing] violent confrontations,"
"provid[ing] a more efficient and wider deployment"
of City services, and "ensuring that the First Amendment
rights of demonstrators to communicate their message . . .
[are] not impaired." Id. § 623.01.
originally passed, the Ordinance also included an
"[e]ight-foot personal bubble zone," extending one
hundred feet around clinics, in which people could not be
approached without their consent "for the purpose of
passing a leaflet or handbill to, displaying a sign to, or
engaging in oral protest, education or counseling."
Id. § 623.03. Following a facial challenge to
the Ordinance, we concluded that the Ordinance was content
neutral and each zone was constitutionally permissible but
the combination of the two zones was not. See Brown v.
City of Pittsburgh, 586 F.3d 263, 273, 276-81 (3d Cir.
2009). On remand, the City chose to abandon the floating
bubble zone and retain only the fixed buffer zone that
prohibited "congregat[ing], patrol[ling], picket[ing] or
demonstrat[ing]." Pitts. Code § 623.04. That choice
was effectuated by the District Court, which permanently
enjoined the bubble zone and required the City to demarcate
any fixed buffer zone prior to enforcement.
Application of the Ordinance and Plaintiffs'
the City has demarcated buffer zones at two locations, both
of which provide reproductive health services including
abortions. Bruni I, 824 F.3d at 358. Plaintiffs
Nikki Bruni, Cynthia Rinaldi, Kathleen Laslow, Julie
Cosentino, and Patrick Malley engage in the bulk of their
anti-abortion activities outside the buffer zone at Planned
Parenthood. See id. at 359. In contrast to the
conduct that gave rise to the Ordinance, Plaintiffs do not
physically block patients' ingress or egress or engage in
violent tactics. Instead, they engage in what they call
"sidewalk counseling," meaning "calm" and
"quiet conversations" in which they "offer
assistance and information to" women they believe are
considering having an abortion "by providing them
pamphlets describing local pregnancy resources, praying, and
. . . peacefully express[ing] [a] message of caring
support." JA 59a; see Appellants' Br.
9. That message, Plaintiffs explain, "can only be
communicated through close, caring, and personal
conversations, and cannot be conveyed through protests."
JA 62a. Nonetheless, the City takes the position that
Plaintiffs' sidewalk counseling falls within the
prohibition on "demonstrating"-if not
"congregating," "patrolling," and
"picketing" too, see JA 334a-37a-so while
they can engage in sidewalk counseling outside the zone, they
cannot once within its bounds. See Bruni I, 824 F.3d
describe various ways that the buffer zone has hindered their
ability to effectively communicate their message. The street
noise makes it difficult for people to hear them, forcing
them to raise their voices in a way inconsistent with
sidewalk counseling. And at the distance at which they are
forced to stand, they are unable to differentiate between
passersby and individuals who intend to enter the facility,
causing them to miss opportunities to engage with their
desired audience through either speech or leafleting.
addition to "sidewalk counseling," Plaintiff Nikki
Bruni is the local leader of a group participating in the
"Forty Days for Life" movement, a global
anti-abortion campaign.Twice a year, campaign participants,
including Plaintiffs, pray outside of abortion clinics from 7
AM to 7 PM continuously for forty days. They do so in shifts,
and many participants wear or carry signs. As the leader of
the group, Bruni organizes local churches to ensure people
are always outside of the clinic so "there's always
groups on the sidewalk present during the 40 Days all day
every day." JA 141a. Although the exact number of
participants is disputed, the record reflects a daily
presence of somewhere between ten and forty people.
five years after we upheld the buffer-zone component of the
Ordinance in Brown as a content-neutral time, place,
and manner regulation, the Supreme Court decided McCullen
v. Coakley, striking down as insufficiently narrowly
tailored a Massachusetts law that created a thirty-five-foot
buffer zone in front of health facilities where abortions
were performed. 573 U.S. 464, 493-97 (2014). The Court found
the law "extreme," id. at 497, and
"truly exceptional," id. at 490: although
congestion occurred at one clinic in one city once a week,
the law applied statewide to all reproductive health
facilities and, with few exceptions, prohibited any person
from even "standing" in the zone, id. at
480, 493. To justify this "significant . . .
burden" on speech, id. at 489, the Court held,
the government must "show that it seriously undertook
to address the problem with less intrusive tools readily
available to it," such as arrests, prosecutions, or
targeted injunctions, or "that it considered different
methods that other jurisdictions . . . found effective,"
id. at 494.
light of McCullen, Plaintiffs filed a complaint,
challenging the Ordinance, pursuant to 42 U.S.C. § 1983,
under the First and Fourteenth Amendments. Bruni I,
824 F.3d at 359. The District Court granted the City's
motion to dismiss Plaintiffs' First Amendment claims, and
Plaintiffs appealed.Id. at 360.
vacated the District Court's dismissal. Id. at
357, 373-74. Taking as true the complaint's allegations
that the Ordinance had been enforced against Plaintiffs and
had significantly hindered their speech, id. at 369,
we concluded that the Ordinance "impose[d] a similar
burden as that in McCullen," id. at
368 n.15, so that the City had the same obligation as in
McCullen to demonstrate "either that
substantially less-restrictive alternatives were tried and
failed, or that the alternatives were closely examined and
ruled out for good reason," id. at 370. We thus
remanded for factfinding on these issues, as well as a
determination about "the proper scope of the
Ordinance." Id. at 357, 374. Notwithstanding
our earlier holding as to content neutrality in
Brown, 586 F.3d at 273, 275, 277, we also directed
the District Court to consider whether the Ordinance should
still be considered content neutral in light of Reed v.
Town of Gilbert, 135 S.Ct. 2218 (2015), the Supreme
Court's most recent pronouncement on the dividing line
between content-neutral and content-based restrictions.
Bruni I, 824 F.3d at 365 n.14.
remand, the District Court accepted the City's contention
that the Ordinance covered Plaintiffs' sidewalk
counseling as a form of demonstrating and held that the
Ordinance was content neutral, even under Reed.
Bruni v. City of Pittsburgh, 283 F.Supp.3d 357, 361,
367-68 (W.D. Pa. 2017). It also distinguished the Ordinance
from the statute in McCullen as creating a smaller
buffer zone and allowing Plaintiffs to reach their audience
through sidewalk counseling despite the buffer zone and
therefore concluded that the Ordinance imposed "only a
minimal burden on Plaintiffs' speech." Id.
at 369-71. Accordingly, it held that the City "ha[d] no
obligation to demonstrate that it tried-or considered and
rejected"-the alternatives identified in
McCullen, such as arrests or targeted injunctions,