On Appeal from the United States District Court for the Western District of Pennsylvania D.C. Civil Action No. 06-cv-0393 (Honorable Nora B. Fischer).
The opinion of the court was delivered by: Scirica, Chief Judge.
Before: SCIRICA, Chief Judge, AMBRO and SMITH, Circuit Judges.
This case requires us to delineate, in a quite literal sense, the boundaries of the First Amendment's protection of speech. In response to concerns about aggressive protests and confrontations at health care facilities providing abortions, the City of Pittsburgh enacted Ordinance No. 49 in December 2005. Pittsburgh, Pa., Code tit. 6, §§ 623.01--623.07. The Ordinance established two different kinds of zones around hospitals, medical offices, and clinics. Within the "buffer zone," which extends "fifteen feet (15') from any entrance to the hospital and or [sic] health care facility," "[n]o person or persons shall knowingly congregate, patrol, picket or demonstrate." § 623.04.
The "bubble zone" encompasses "the public way or sidewalk area within a radius of one hundred feet (100') from any entrance door to a hospital and/or medical office/clinic." § 623.03. Within this one-hundred-foot zone, "[n]o person shall knowingly approach another person within eight feet (8') of such person, unless such other person consents, for the purpose of passing a leaftlet or handbill to, displaying a sign to, or engaging in oral protest, education or counseling with such other person." Id.
Plaintiff Mary Kathryn Brown brought suit against the City*fn1 under 42 U.S.C. § 1983, contending the Ordinance violated the United States and Pennsylvania constitutions, as well as a Pennsylvania statute. She also moved for a preliminary injunction preventing the City from enforcing the Ordinance against her. The District Court denied the motion, finding the Ordinance facially valid and that Brown had failed to show that the City had applied-or would apply-it in an unlawful manner. Relying on its reasoning in the opinion denying the preliminary injunction, the District Court also dismissed several counts of Brown's Complaint. Brown appeals from both orders. We will reverse in part, vacate in part, dismiss in part, and remand for further proceedings consistent with this opinion.
As the Ordinance itself attests, the Pittsburgh City Council sought to balance two important competing interests, "ensur[ing] 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." Pittsburgh, Pa., Code tit. 6, § 623.01. Noting that, before the Ordinance, the Pittsburgh Police had "consistently" been required "to mediate the disputes between those seeking medical counseling and treatment and those who would counsel against their actions," the Council intended the Ordinance to establish "clear guidelines for activity in the immediate vicinity of the entrances to Health Care Facilities," in order to allow "a more efficient and wider deployment" of policing services and to "help also reduce the risk of violence and provide unobstructed access to Health Care Facilities." Id. During hearings on the proposed Ordinance, the Council heard public comments complaining of physical violence and verbal harassment at medical facilities providing abortions and claiming the Ordinance was needed to prevent future harm.*fn2
Brown is a registered nurse who works in Pittsburgh, Pennsylvania. For more than fifteen years, she has spent countless hours engaged in "sidewalk counseling"*fn3 and leafletting outside three medical services facilities covered by the Ordinance, attempting to dissuade women from undergoing abortions, warning them of the procedure's ostensible dangers, and encouraging them to consider alternatives. Brown testified that she believes a conversational, sympathetic approach is the most effective, so in delivering her message, she refrains from yelling or using amplification devices. Before the Ordinance's enactment, Brown had stood alongside the facilities' entrances, or walked alongside women approaching the facilities, while attempting to distribute leaflets and engage in conversation.
Since the Ordinance took effect, Brown claims she has been effectively prevented from communicating her message. The buffer zone prevents her from distributing leaflets next to the facilities' entrances, or from engaging in any advocacy within fifteen feet of those entrances. She claims that because of the bubble zone, she must either yell at people from a distance of eight feet-often while walking backward or being forced off the sidewalk into the street-or stand still and speak to them in the one or two seconds it takes them to walk by.*fn4 According to Brown, women have not taken a single leaflet from her since the bubble zone foreclosed her ability to approach or walk alongside them.
Brown has never been arrested for violating the Ordinance. On two occasions police officers warned her to abide by its terms. The details of the first encounter are disputed by the parties, but Brown claims the police officer manifested an intent to enforce the Ordinance selectively, applying its restrictions to her anti-abortion expression but not her anti- pornography advocacy. Brown cannot identify the officer involved in the second incident but asserts he enforced the Ordinance against her while ignoring a clinic worker who had allegedly engaged in prohibited conduct. Brown also recounts other incidents in which clinic escorts, who assist women entering the facilities, have allegedly violated the Ordinance by engaging in forbidden activities within the fifteen-foot buffer zone and approaching well within eight feet of Brown in the bubble zone, without obtaining her consent, to denounce her pro-life message. Brown asserts that in none of these cases did the police enforce the Ordinance against the escorts.
In her Complaint, Brown claims the Ordinance violates rights guaranteed her by the U.S. and Pennsylvania Constitutions-specifically, the right to free speech and freedom of the press (pertinent to the distribution of pamphlets), U.S. Const. amend. I; Pa. Const. art. I, § 7, the right to due process, U.S. Const. amend. XIV; Pa. Const. art. I, § 26, the right to equal protection, U.S. Const. amend. XIV; Pa. Const. art. I, § 26, and the right to religious freedom, U.S. Const. amend. I; Pa. Const. art. I, § 3-as well as by Pennsylvania's Religious Freedom Protection Act, 71 Pa. Stat. Ann. §§ 2401--2407. Although the Complaint attacks the Ordinance facially and as applied, Brown's preliminary injunction motion was grounded only on the as-applied challenge. Nevertheless, in the course of denying her motion, the District Court ruled the Ordinance facially valid. At oral argument on appeal, Brown's counsel explained that because both parties had had an opportunity to brief the facial challenge fully on appeal, Brown was content for us to decide that issue.*fn5
We generally review a district court's denial of a preliminary injunction for abuse of discretion but review the underlying factual findings for clear error and examine legal conclusions de novo.*fn6 McNeil Nutritionals, LLC v. Heartland Sweeteners, LLC, 511 F.3d 350, 357 (3d Cir. 2007). Where, as here, "First Amendment rights are at issue," we have modified that standard. Child Evangelism Fellowship of N.J. v. Stafford Twp. Sch. Dist., 386 F.3d 514, 524 (3d Cir. 2004). "Although we normally will not disturb the factual findings supporting the disposition of a preliminary injunction motion in the absence of clear error, we have a constitutional duty to conduct an independent examination of the record as a whole when a case presents a First Amendment claim." Id.
We first consider Brown's facial challenge.
As a general matter this court "will not invalidate a statute on its face simply because it may be applied unconstitutionally, but only if it cannot be applied consistently with the Constitution." . . . Thus, plaintiff['s] facial challenge will succeed only if [the statute in question] "is unconstitutional in every conceivable application, or . . . it seeks to prohibit such a broad range of protected conduct that it is constitutionally 'overbroad.'"
Hohe v. Casey, 956 F.2d 399, 404 (3d Cir. 1992) (quoting Robinson v. New Jersey, 806 F.2d 442, 446 (3d Cir. 1986); Members of the City Council v. Taxpayers for Vincent, 466 U.S. 789, 796 (1984)); accord McGuire v. Reilly (McGuire I), 260 F.3d 36, 47 (1st Cir. 2001). This standard is consistent with the Supreme Court's declaration in United States v. Salerno that a successful facial challenge requires the challenger to "establish that no set of circumstances exists under which the Act would be valid." 481 U.S. 739, 745 (1987). More recently, the Court has suggested that the bar may be slightly lower. Wash. State Grange v. Wash. State Republican Party, 128 S.Ct. 1184, 1190 (2008). Nonetheless, even under the Washington State Grange formulation, "a facial challenge must fail where the statute has a plainly legitimate sweep." Id. (internal quotation marks omitted); see McCullen v. Coakley, 571 F.3d 167, 174 (1st Cir. 2009) ("Howsoever worded, this standard imposes a very heavy burden on a party who mounts a facial challenge to a state statute.").
This case implicates fundamental First Amendment interests. "[T]he public sidewalks, streets, and ways affected" by the Ordinance "are 'quintessential' public forums for free speech." Hill v. Colorado, 530 U.S. 703, 715 (2000). The activities regulated by the Ordinance-"leafletting, sign displays, and oral communication"-are indisputably protected forms of expression, and "although there is debate about the magnitude of the statutory impediment to" Brown's "ability to communicate effectively with persons in the regulated zones, that ability, particularly the ability to distribute leaflets, is unquestionably lessened by this statute." Id. Nonetheless, "[i]t has been clear since [the Supreme] Court's earliest decisions concerning the freedom of speech that the state may sometimes curtail speech when necessary to advance a significant and legitimate state interest." Taxpayers for Vincent, 466 U.S. at 804; see McGuire I, 260 F.3d at 42 ("Notwithstanding its exalted position in the pantheon of fundamental freedoms, free speech always must be balanced against the state's responsibility to preserve and protect other important rights."). The Ordinance here advances a number of significant government interests, including "protecting a woman's freedom to seek lawful medical or counseling services in connection with her pregnancy" and "ensuring the public safety and order." Madsen v. Women's Health Ctr., Inc., 512 U.S. 753, 767--68 (1994); see Hill, 530 U.S. at 715 ("It is a traditional exercise of the States' police powers to protect the health and safety of their citizens. That interest may justify a special focus on unimpeded access to health care facilities and the avoidance of potential trauma to patients associated with confrontational protests." (internal quotation marks and citation omitted)).*fn7
Reconciling these competing values, even on the level of abstract principle, is no easy task. Having to operationalize First Amendment doctrine in terms of metes and bounds, as we are compelled to do here, only increases the difficulty. If a restrictive zone of some kind is constitutionally permissible, how large may that zone be, and what kind of restrictions may it impose? As we confront these perplexing issues, we are mindful that we do not write on a blank slate. Several Supreme Court decisions, which examined zones very similar to the ones at issue here, control our analysis to a great extent. Hill, 530 U.S. 703; Schenck v. Pro-Choice Network of W. N.Y., 519 U.S. 357 (1997); Madsen, 512 U.S. 753.
The One-Hundred-Foot Bubble Zone
As the District Court recognized, the bubble zone defined by the Ordinance is virtually identical to the one in the Colorado statute Hill found facially valid.*fn8 Brown v. City of Pittsburgh, 543 F. Supp. 2d 448, 471--72 (W.D. Pa. 2008) (juxtaposing relevant provisions). Compare Pittsburgh, Pa., Code tit. 6, § 623.03, with Colo. Rev. Stat. § 18-9-122(3).*fn9 At oral argument, Brown's counsel conceded that, under Hill, § 623.03's bubble zone, taken alone, is constitutional on its face. We agree that § 623.03's bubble zone is materially indistinguishable from the one upheld in Hill.
The petitioners in Hill put forward several different arguments contesting the statute's constitutionality, but the Supreme Court found none of them convincing. The Court rejected the contention that the bubble zone's restrictions are content-based, observing that "'[t]he principal inquiry in determining content neutrality . . . is whether the government has adopted a regulation of speech because of disagreement with the message it conveys.'" Hill, 530 U.S. at 719 (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)); see id. at 737 (Souter, J., concurring) ("[A] restriction is content based only if it is imposed because of the content of the speech, and not because of offensive behavior identified with its delivery." (internal citation omitted)). The Colorado statute in Hill evinces no such invidious intent because its goals of protecting access to medical facilities and providing clear guidelines to police are "unrelated to the content of the demonstrators' speech," its "restrictions apply equally to all demonstrators, regardless of viewpoint, and the statutory language makes no reference to the content of the speech." Id. at 719, 720 (majority opinion) (internal quotation marks omitted). Nor is the statute content-based because it restricts knowingly approaching another for purposes of "oral protest, education, or counseling," while imposing no limits on casual conversation-for example, saying "good morning." This distinction serves not to suppress certain disapproved ideas, which would be presumptively invalid, but instead to further legitimate, content-neutral goals:
[T]he statute's restriction seeks to protect those who enter a health care facility from the harassment, the nuisance, the persistent importuning, the following, the dogging, and the implied threat of physical touching that can accompany an unwelcome approach within eight feet of a patient by a person wishing to argue vociferously face-to-face and perhaps thrust an undesired handbill upon her. The statutory phrases, "oral protest, education, or counseling," distinguish speech activities likely to have those consequences from speech activities . . . that are most unlikely to have those consequences.
Id. at 724; see also McGuire I, 260 F.3d at 44 ("As long as a regulation serves a legitimate purpose unrelated to expressive content, it is deemed content-neutral even if it has an incidental effect on some speakers and not others."). In short, "[t]he purpose of the Colorado statute is not to protect a potential listener from hearing a particular message. It is to protect those who seek medical treatment from the potential physical and emotional harm suffered when an unwelcome individual delivers a message (whatever its content) by physically approaching an individual at close range, i.e., within eight feet." Hill, 530 U.S.at 718 n.25.
The Hill Court also noted that the Colorado bubble zone is "not a regulation of speech" per se, but rather "a regulation of the places where some speech may occur." Id. at 719. That is, the bubble zone "does not entirely foreclose any means of communication." Id. at 726. It does not prohibit any message, whether expressed orally or by sign or leaflet, but simply imposes an eight-foot separation between the speaker and the audience (absent consent to approach closer). As such, the validity of the regulation is determined by reference to the Court's time, place, and manner doctrine. Under that doctrine, "a regulation of the time, place, or manner of protected speech" is constitutionally permissible if it is "narrowly tailored to serve the government's legitimate, content-neutral interests," Ward, 491 U.S. at 798, and "leave[s] open ample alternative channels for communication," id. at 791 (internal quotation marks omitted). When a time, place, and manner regulation takes the form of a generally applicable statute, it "may satisfy the tailoring requirement even though it is not the least restrictive or least intrusive means of serving the statutory goal." Hill, 530 U.S. at 726; see Madsen, 512 U.S. at 765 (contrasting this standard with the more stringent scrutiny applicable to a challenged injunction, which is valid only if it "burden[s] no more speech than necessary to serve a significant government interest").
Having concluded that the statute is content-neutral, the Court found that its restrictions on speech are sufficiently tailored to its legitimate objectives and leave open ample alternative avenues of communication. Hill, 530 U.S. at 726. The enforcement of an eight-foot barrier is a constitutionally tolerable burden on expression because "signs, pictures, and voice itself can cross an 8-foot gap with ease." Id. at 729. The Court acknowledged that "[t]he burden on the ability to distribute handbills is more serious because it seems possible that an 8-foot interval could hinder the ability of a leafletter to deliver handbills to some unwilling recipients." Id. at 727. But noting that the statute did not "prevent a leafletter from simply standing near the path of oncoming pedestrians and proffering his or her material, which the pedestrians can easily accept," the Court found the regulation did not impose an excessive restraint. Id. In support of this conclusion, the Court referred to its earlier decision in Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640 (1981), where it had upheld a regulation restricting the distribution of literature to fair booths. Heffron emphasized that thefair-booth restriction "primarily burdened the distributors' ability to communicate with unwilling readers" and afforded an adequate opportunity "to win the attention" of willing listeners. Hill, 530 U.S. at 728 (quoting Kovacs v. Cooper, 336 U.S. 77, 87 (1949)). The bubble zone established by the Colorado statute (and the Pittsburgh Ordinance) impairs primarily the effort to communicate with unwilling listeners, and by allowing leafletters significant mobility, it "interferes far less" with communication than the state-fair regulation upheld in Heffron. Id. at 730. In sum, in light of the state's "substantial and legitimate interest" in protecting those attempting to enter health care facilities, who "are often in particularly vulnerable physical and emotional conditions," the Court found the Colorado bubble zone to be "an exceedingly modest restriction on the speakers' ability to approach." Id. at 729.
The Court was unmoved by petitioners' argument that the state could achieve its objectives through less restrictive means. As noted above, a content-neutral time, place, and manner restriction embodied in a generally applicable regulation need not be "the least restrictive or least intrusive means of serving the statutory goal." Id. at 726. "[W]hether or not the 8-foot interval is the best possible accommodation of the competing interests at stake," the Court believed it was obliged to "accord a measure of deference to the judgment of the Colorado Legislature." Id. at 727. The Court rejected the view, advanced by Justice Kennedy in his dissent, id. at 777--78 (Kennedy, J., dissenting), that the state interests at stake could be adequately served-with less restriction of protected speech-by enforcing pre-existing prohibitions on battery and harassment. The Court recognized that the statute's "prophylactic approach" to "protect[ing] those who wish to enter health care facilities . . . will sometimes inhibit a demonstrator whose approach in fact would have proved harmless." Id. at 729 (majority opinion). But it found the bubble-zone approach to be "justified by the great difficulty of protecting, say, a pregnant woman from physical harassment with legal rules that focus exclusively on the individual impact of each instance of behavior, demanding in each case an accurate characterization (as harassing or not harassing) of each individual movement within the ...