case 18-2454, document 260, 06/17/2019, 2588552, page1 of ...€¦ · counsel for other...

18-2454(L) 18-2623, 18-2627, 18-2630 (XAP)

United States Court of Appeals for the Second Circuit

PEOPLE OF THE STATE OF NEW YORK, By Letitia James,

Attorney General of the State of New York, Plaintiff-Appellant–Cross-Appellee,

v. KENNETH GRIEPP, RONALD GEORGE, PATRICIA MUSCO, RANDALL DOE,

OSAYINWENSE OKUONGHAE, ANNE KAMINSKY, BRIAN GEORGE, SHARON DOE, DEBORAH M. RYAN, ANGELA BRAXTON, JASMINE LALANDE, PRISCA JOSEPH, SCOTT

FITCHETT, JR. Defendants-Appellees–Cross-Appellants,

On Appeal from the United States District Court for the Eastern District of New

York

CROSS-APPEAL REPLY BRIEF FOR ALL DEFENDANTS-APPELLEES–CROSS-APPELLANTS

MARTIN A. CANNON Admitted pro hac vice Thomas More Society 20374 Magnolia Rd. Crescent, IA 51526 (712)545-9433

STEPHEN M. CRAMPTON Crampton Legal Services, PLLC PO Box 4506 Tupelo, MS 38803 (662)255-943

ADAM S. HOCHSCHILD Hochschild Law Firm, LLC PO Box 401 Plainfield, VT 05667 (314)503-0326

Counsel for the Griepp Defendants-Appellees–Cross-Appellants

counsel for other Defendants-Appellees–Cross-Appellants listed on signature page Dated: June 17, 2019

Case 18-2454, Document 260, 06/17/2019, 2588552, Page1 of 29

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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .............................................................................. ii I. INTRODUCTION .......................................................................................... 1 II. ARGUMENT .................................................................................................. 4

A. There is insufficient evidence that Brian George committed an “obstruction” violation (Cross-Appeal Point I). ....................................... 4

B. The AG lacks standing to enforce the City Act (Cross-Appeal Point II). ........................................................................... 9

C. FACE and the related State and City Act provisions are facially unconstitutional (Cross-Appeal Point III). .............................................14

III. CONCLUSION ...........................................................................................21


ii

TABLE OF AUTHORITIES

Cases

Bery v. City of New York, 97 F.3d 689 (2d Cir. 1996) ..................................................................................... 9 Bridgestone/Firestone, Inc. v. Pension Benefit Guar. Corp., 892 F.2d 105 (D.C. Cir. 1989) ..............................................................................14 Bruni v. City of Pittsburgh, 824 F.3d 353 (3d Cir. 2016) .................................................................................20 Bruni v. City of Pittsburgh, 283 F. Supp.3d 357 (W.D. Pa. 2017) ....................................................................19 Cahaly v. LaRosa, 796 F.3d 399 (4th Cir. 2015) ......................................................................... 15, 20 Connecticut v. Physicians Health Servs. of Conn., Inc., 287 F.3d 110 (2d Cir. 2002) .......................................................................... 10, 14 Ernst Haas Studio, Inc. v. Palm Press, Inc., 164 F.3d 110 (2d Cir. 1999) ................................................................................... 3 Evergreen Ass’n, Inc. v. City of New York, 801 F. Supp. 2d 197 (S.D.N.Y. 2011) ..................................................................15 Free Speech Coalition, Inc. v. Attorney General, 825 F.3d 149 (3d Cir. 2016) .................................................................................15 Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982) ............................................................................................... 7 Hoffman v. Hunt, 923 F. Supp. 791 (W.D.N.C. 1996) ......................................................................17 Hoffman v. Hunt, 126 F.3d 575 (4th Cir 1997) .................................................................................17


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In re Santa Claus Prods., Inc., 81 B.R. 234 (S.D.N.Y. 1987) ...............................................................................12 Jaen v. Sessions, 899 F.3d 182 (2d Cir. 2018) .................................................................................10 March v. Mills, 867 F.3d 46 (1st Cir. 2017) ...................................................................................18 McCullen v. Coakley, 573 U.S. 464 (2014) ................................................................................. 1, 2, 6, 19 NAACP v. Button, 371 U.S. 415 (1963) ................................................................................................ 7 Norton v. City of Springfield, 806 F.3d 411 (7th Cir. 2015) ............................................................................ 15, 21 People v. Gilmour, 98 N.Y.2d 126 (2002) ...........................................................................................11 Price v. City of Chicago, No. 17-2196, 2019 WL 580263 (7th Cir. Feb. 13, 2019) .....................................15 Reed v. Town of Gilbert, Ariz., 135 S. Ct. 2218 (2015) .................................................................................. passim Simons v. United States, 452 F.2d 1110 (2d Cir. 1971) ...............................................................................11 Tenafly Eruv Ass’n v. Borough of Tenafly, 309 F.3d 144 (3rd Cir. 2002) .................................................................................. 9 United States v. Dillard, 795 F.3d 1191 (10th Cir. 2015) ............................................................................16


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United States v. Frias, 521 F.3d 229 (2d Cir. 2008) .................................................................................21 United States v. Martinez, 862 F.3d 223 (2d Cir. 2017) ................................................................................... 3 United States v. Weslin, 156 F.3d 292 (2d Cir. 1998) ......................................................................... passim United States v. Williams, 553 U.S. 285 (2008) ................................................................................................ 7 Univ. of Texas v. Camenisch, 451 U.S. 390 (1981) ................................................................................................ 4

Laws

Federal

18 U.S.C. § 248 ....................................................................................................4, 19

State

NY Penal Law § 240.70 ............................................................................................. 4

City

NYC Admin Code, § 8-804 .............................................................................. 10, 13

NYC Admin. Code § 8-801 ....................................................................................... 4

NYC Admin. Code § 8-805 .............................................................................. 10, 13

NYC Admin. Code § 8-807 .............................................................................. 11, 12

NYC Admin. Code 10-1004 (2018) ........................................................................13

NYC Admin. Code 10-1005 (2018) ........................................................................13

NYC Admin. Code 10-1007 (2018) ........................................................................12


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Rules and Other

Fed. R. App. P. 28.1(c)(4) …………………………………………………….….. 3

Senate Committee Report, S.Rep. No. 103-117, 103rd Cong. (1993)……………17


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I. INTRODUCTION

Contrary to the then-AG’s proclamation announcing the filing of this

lawsuit, Defendants do have the right to express their “point of view.”

Defendants peacefully advocate on public sidewalks, attempting to persuade

women approaching an abortion facility to consider abortion alternatives.

(JA1695-1700, 1735.) This activity is protected under the First Amendment.

McCullen v. Coakley, 573 U.S. 464, 476-77 (2014). Yet, in the name of stopping

“conduct” (AG’s Response/Reply at 52-59), the AG targets Defendants’ protected

speech. As then-AG Eric Schneiderman stated at a press conference on the day

this suit was filed, he did not believe this is “a nation where you can choose your

point of view” and believed that pro-life “protestors run their mouth” with

“unlawful, unAmerican rhetoric.” (Ex. A to Braxton’s Reply in support of Motion

to Dismiss, E.D.N.Y. ECF 73-1 at 3.) At the same press conference, then-City

Advocate and current AG Letitia James likewise stated that pro-life advocates such

as Defendants are “quote-unquote protestors” engaging in “offensive and illegal

behavior.” Id. at 4.1

In her Response/Reply, the AG conspicuously makes no mention of this

press conference and ignores the statements she and her predecessor made there. 1 Exhibit A to Braxton’s Reply in support of Motion to Dismiss, E.D.N.Y. ECF 73-1, is a transcript of this press conference. A video of the press conference is at Exhibit SF90. The statements quoted above are in that video at 5:18 – 5:20; 6:20 – 6:37; 13:03 – 13:16; and 14:40 – 14:52.


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At that press conference, she and Schneiderman exposed the impropriety of this

action in targeting people who were peacefully exercising their First Amendment

rights to offer alternatives to abortion.

Defendants did nothing wrong. They simply approached, walked with, and

talked with patients or their companions in a sincere effort to share vital

information with women despite the aggressive efforts of “escorts” bent on

blocking Defendants’ path and silencing their speech.2 This is not “unlawful” or

“un-American” behavior. It is in fact quintessential American behavior

exemplifying the freedoms our Founders fought to protect by enshrining it in the

First Amendment. While it may be “offensive” to some to hear Defendants’

message, the First Amendment protects it. McCullen, 573 U.S. at 476-77. The

district court correctly denied the AG’s motion for preliminary injunction. The

only true impropriety in this case is the AG’s targeting of Defendants because of

their speech, not Defendants’ efforts to share their message of hope to women in

need.

2 Defendants sometimes approached, walked with, and/or talked with patients or their companions. (See, generally, SPA18-53.) At other times they preached, displayed signs, and offered leaflets to passersby. This is all protected activity under the First Amendment. The AG offered no credible evidence establishing any violations of the law. The videos most vividly demonstrate the lack of violations, as determined by the district court, which closely reviewed and assessed them. (SPA10-11 et seq.) The AG’s four video screenshots (AG’s Response/Reply at 13-15) show no violations and are in any event taken out of context. (See Exs. 7, 31, 41, 55.)


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This Court should affirm the district court’s denial of the AG’s motion for

preliminary injunction (the AG’s Points on Appeal). At the same time, the Court

should reverse the district court’s erroneous legal findings and conclusions

(Defendants’ Points on Cross-Appeal). Defendants’ cross-appeal points are

alternative bases for affirming the district court’s denial of the AG’s motion. This

Court has jurisdiction to both affirm the district court’s correct denial of the motion

for preliminary injunction and to reverse the district court’s erroneous findings and

conclusions. See Defendants’ Response in Opposition to Motion to Dismiss Cross-

Appeals (ECF 130); Griepp Defendants’ Opening Brief at 3.

This Reply addresses Defendants’ cross-appeal points only.3 As discussed

below, there is insufficient evidence to establish that Brian George committed a

violation; the AG lacks standing to enforce the City Act; and the federal Freedom

3 The AG in her Response and Reply Brief (“Response/Reply”) and the NYCLU in its amicus brief make many meritless arguments, some relating to the AG’s Points on Appeal and some relating to Defendants’ Cross-Appeal Points, but in accordance with Fed. R. App. P. 28.1(c)(4) Defendants address only the latter here. The Court should disregard any and all new AG-appeal arguments raised by either the AG or the NYCLU in these briefs that the AG did not raise in her opening brief, including but not limited to arguments based on new characterizations of certain videos (AG’s Response/Reply at 11-15) and a new characterization of the elements of a “follow and harass” violation (id. at 22). See United States v. Martinez, 862 F.3d 223, 234 (2d Cir. 2017) (“[N]ew arguments may not be made in a reply brief”) (quoting Ernst Haas Studio, Inc. v. Palm Press, Inc., 164 F.3d 110, 112 (2d Cir. 1999)).


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of Access to Clinic Entrances Act (FACE) and the related State Act and City Act4

are facially unconstitutional.

II. ARGUMENT

A. There is insufficient evidence that Brian George committed an “obstruction” violation (Cross-Appeal Point I).

As a threshold matter, contrary to merely finding a “likelihood of success”

or “sufficiently serious questions” on this claim, the district court improperly

couched its findings against Brian George in terms of a final determination on the

merits, stating that “B. George violated FACE, NYSCAA, and NYCCAA . . . .”

(SPA90.) This was error: “the findings of fact and conclusions of law made by a

court granting a preliminary injunction are not binding at trial on the merits,”

Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981) (citations omitted). Given

the preliminary nature of the proceedings (SPA4), the district court’s entreaties to

finish the hearing sooner rather than later (JA84-5, 109), and the future trial,

Defendants did not have the opportunity or need to offer a full and complete

evidentiary rebuttal to the AG’s claims. If findings made by a court granting a

preliminary injunction are not binding, then a fortiori findings made denying a

preliminary injunction are not binding as against Defendants.5

4 18 U.S.C. § 248; NY Penal Law § 240.70; NYC Admin. Code § 8-801 et seq. 5 All findings against the AG, however, could and should be deemed final because the AG effectively presented her entire case against Defendants, as the AG had been actively seeking to gather evidence against Defendants since at least June


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In addition, there is insufficient evidence that Brian George obstructed

anyone. This issue is subject to independent, de novo review. The AG does not

dispute this.6

The district court stated that the AG’s allegation that Brian George

physically obstructed patient access was supported by Patricia Musco’s testimony

“and B. George’s supplemental declaration in which he admits it.” (SPA43.)

Brian George admitted no such thing. In fact, Brian George declared that on a few

occasions he “walked towards the clinic entrance with the clinic escorts and patient

while positioned in front of them, trying to engage with the patient over my

shoulder.” (JA2187.) While Musco testified that “Brian does the slow walk in

front of the clients so Sharon and he can talk to them,” she clarified that Brian

George’s “legs are very long, he’s not taking baby steps,” and that he was walking

at a “decent stride” so “slow walking” could be the same speed as others around

him. (JA1859-60.) Furthermore, Ms. Musco was emphatic that he was “not

blocking, just walking.” (Id.) In addition, it is undisputed that Brian George

ceased this behavior before the lawsuit was filed after Pastor Griepp counseled him

not to do it. (E.g., JA2187.)

2016, and the district court gave the AG every opportunity to present it (see SPA10-18). 6 By contrast, all of the AG’s Points on Appeal are subject to review standards that are extremely deferential to the district court’s ruling. See Griepp Defendants’ Opening Brief at 16-21.


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The AG mistakenly claims the district court applied a “narrow” view of

obstruction. (AG’s Response/Reply at 18.) To the contrary, the district court

applied an overbroad, vague, and subjective view as against Brian George. As

witness Ronald George testified regarding Brian George: “We talk about slow,

that is – I would say it is very subjective. The speed would be a normal speed

walking down a sidewalk.” (JA1931.) Is it obstructive “slow walking,” one

wonders, for someone to walk at a speed of four miles per hour? Three? Two?

See McCullen, 573 U.S. at 500 (Scalia, J., concurring in the judgment) (“Is it

harassment, one wonders, for Eleanor McCullen to ask a woman, quietly and

politely, two times, whether she will take literature or whether she has any

questions? Three times? Four times? It seems to me far from certain that First

Amendment rights can be imperiled by threatening jail time (only at ‘reproductive

health care facilit[ies],’ of course) for so vague an offense as ‘follow[ing] and

harass[ing].’”). Besides, the AG offered no evidence, and the district court made

no findings, that Brian George walked at any specific speed—only that he

supposedly “walked slowly.” (See SPA43, 90.)

In the context of First Amendment expressive activity, such vagueness and

lack of specificity is fatal. See, e.g., NAACP v. Button, 371 U.S. 415, 438 (1963)

(“Broad prophylactic rules in the area of free expression are suspect. Precision of

regulation must be the touchstone in an area so closely touching our most precious


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freedoms.” (internal citations omitted)); see also Hoffman Estates v. Flipside,

Hoffman Estates, Inc., 455 U.S. 489, 499 (1982) (where the law “interferes with

the right of free speech or of association, a more stringent vagueness test should

apply”); United States v. Williams, 553 U.S. 285, 304 (2008) (standard is void for

vagueness if it “fails to provide a person of ordinary intelligence fair notice of what

is prohibited, or is so standardless that it authorizes or encourages seriously

discriminatory enforcement.”).

Moreover, this unorthodox approach was only undertaken as a last resort due

to the aggressive and obstructive behavior of the escorts, who constantly sought to

block Defendants and their efforts to share their message. The evidence of this

pattern of behavior is substantial. See, e.g., SPA25 (district court finding in

context of allegations against Ronald George that “the escorts were not ‘trying to

walk toward an arriving patient’ at all,” but instead “were only trying to step in

front of R. George’s sign to block it from sight”) (citing Exs. 31, K-14, and escort

Pearl Brady’s testimony at JA447); Ex. K-14 (described by district court, at

SPA25, as “showing Brady standing in front of a non-party protestor’s sign, the

protestor repeatedly moving his sign to make it visible, and Brady repeatedly

following the protestor to step back in front of his sign”); SPA37 (district court

describing video Ex. 462 as showing “a sidewalk crowded with at least six

protestors and eight escorts, four to five of whom surround the patient at the


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beginning of the video and block Richards from accessing her”) (emphasis added);

JA2845-46 (on a winter day, when Brian George allegedly walked slowly, snow

narrowed the path to the entrance, and “escorts formed a green human shield”

around the abortion facility); JA626-27, 645, 932, 1571, 1573, 1610, 1625, 1636

(escorts Pearl Brady, Mary Lou Greenberg, and Theresa White admitting that

escorts regularly use their bodies, both individually and collectively shoulder-to-

shoulder, and sometimes wield umbrellas, as a “shield” to block pro-life advocates

from reaching patients).

Escort leader Theresa White testified that the escorts would surround the

patients, raising their outstretched arms to form a protective circle around them in

order to prevent Defendants from reaching them. (JA1627.) In addition, Ms.

White admitted that the escorts sometimes formed a “green barricade” between the

patients and Defendants, whereby they stand shoulder to shoulder in tight

formation in a long line in order to force Defendants to have to walk all the way

around their barricade to reach the patients, who by that time would in all

likelihood already have disappeared into the clinic anyway. (JA1629.) Thus,

Brian George’s actions in trying to walk in front of the patients was only done in

response to these incessant efforts by the escorts to obstruct Defendants—actions

which would be criminal had Defendants tried them—and prohibit them from

speaking with the patients.


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Under the “fresh examination of crucial facts” required here, where First

Amendment rights are at stake, Bery v. City of New York, 97 F.3d 689, 693 (2d Cir.

1996), this Court should reverse. See also Tenafly Eruv Ass’n v. Borough of

Tenafly, 309 F.3d 144, 156 (3rd Cir. 2002) (where district court denies relief to

party seeking to vindicate First Amendment rights, Circuit Court has a

“constitutional duty to conduct an independent examination of the record as a

whole” (internal quotation marks omitted)). The district court mistakenly leapt to

the conclusion that Brian George actually impeded others, and that he did so with

an ill intent. (SPA90.)

Accordingly, the finding that Brian George violated FACE, the New York

State Access Act, and the New York City Access Act should be reversed.

B. The AG lacks standing to enforce the City Act (Cross-Appeal Point II).

The City Act grants standing7 to certain persons only and does not grant

standing to the AG. Specifically, the City Act grants standing only to certain

patients, owners, and operators of abortion facilities: “any person whose ability to

access a reproductive health care has been interfered with, and any owner or

operator of a reproductive health care facility or owner of a building in which such

a facility is located.” City Act, § 8-804. The City Act also grants standing to the

7 Whether characterized as “standing” or “right of action” (see AG’s Response/Reply at 34 n.12), the AG doesn’t have it.


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City to seek an injunction. City Act, § 8-805. The AG does not and cannot

contend that she is a patient, owner, or operator of an abortion facility or is the

City. AG’s Response/Reply at 30-38. The City Council carefully drafted these

provisions. See, e.g., City’s Memorandum of Law as amicus in opposition to

Motions to Dismiss (E.D.N.Y. ECF 127-2, 9-11, 14-15, 18-23 (City describing a

careful and deliberate drafting process); City’s Supplemental Memorandum

(E.D.N.Y. ECF 171, 2-5) (same). The AG therefore lacks standing. See also Jaen

v. Sessions, 899 F.3d 182, 189 (2d Cir. 2018) (“Where Congress includes particular

language in one section of a statute but omits it in another section of the same Act,

it is generally presumed that Congress acts intentionally and purposely in the

disparate inclusion or exclusion.”).

Connecticut v. Physicians Health Servs. of Conn., Inc., 287 F.3d 110 (2d

Cir. 2002) is on point. As this Court held, “Because states are not mentioned in

[ERISA] § 1132(a)(3), Congress—which carefully drafted [the] provisions of §

1132—did not intend for them to have the ability to bring suit pursuant to §

1132(a)(3).” Id. at 121 (internal quotation marks omitted). Likewise here, because

neither the state nor the AG is mentioned in § 8-804 or 8-805, the City Council—

which carefully drafted the provisions of the City Act—did not intend for them to

have the ability to bring suit pursuant to § 8-804 or 8-805. Contrary to the AG’s

assertion (AG’s Response/Reply at 36 n.13), the City Act does not contain a


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“broad enforcement provision,” in that Sections 8-804 and 8-805 “carefully limit[]

the parties who may seek relief.” Physicians Health Servs., 287 F.3d at 121.

Nor does Section 8-807 (“Construction”) change the result (see AG’s

Response/Reply at 36). That Section provides that the City Act does not “limit”

rights and does not “prohibit” First Amendment protections under other laws.

Section 8-807(a), (b), (c). This is not an affirmative grant of any right, rather it is a

statement that the grant of standing to certain persons does not limit rights that any

persons or entities “otherwise have” under other laws. See, e.g., Simons v. United

States, 452 F.2d 1110, 1116 (2d Cir. 1971) (the provision in Fed. R. Civ. Pro. 60

that “[t]his rule does not limit a court’s power to” vacate a judgment “is not an

affirmative grant of power by the Rule, but rather a statement that the Rule’s

specification of six grounds for relief by motion ‘does not limit’ whatever power

the court would otherwise have to entertain an independent action.” (emphasis

added)). The State Executive Law that the AG cites (AG’s Response/Reply at 36-

37) doesn’t help her cause either; that statute (§ 63) merely provides that the AG

has authority to prosecute on behalf of the state. It does not and cannot grant the

AG authority to enforce a city ordinance which itself granted the AG no such

authority. See People v. Gilmour, 98 N.Y.2d 126, 131-134 (2002) (interpreting

Exec. Law § 63; “the Attorney-General has no… general authority [to conduct

prosecutions] and is without any prosecutorial power except when specifically


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authorized by statute” (internal quotation marks omitted; emphasis in original)).

The AG attempts to conflate the applicable Chapter 8 and the new, amended,

inapplicable version, Chapter 10 (eff. Oct. 2018). AG’s Response/Reply at 36-38.

She acknowledges that the City Council amended Chapter 8 in 2018, creating a

new Chapter 10 provision effective October 2018. AG’s Opening Brief at 5 n.4.

This effective date was months after entry of the district court’s July 2018 Order.

With the 2018 amendments the City Council sought to “clarify and strengthen” the

existing law, including “clarifying” “enforcement authority.”8 The City thereby

implicitly acknowledged that “enforcement authority” was at best unclear under

Chapter 8. Cf. In re Santa Claus Prods., Inc., 81 B.R. 234, 236 (S.D.N.Y. 1987)

(“The Advisory Committee’s use of the word ‘clarifies’ suggests that the previous

Committee Note’s statement… was in error.”). The 2018 amendments, for

example, now purport to clarify that the City Act does not limit the authority of

“New York state” itself to enforce rights that it otherwise has under other laws.9

City Act, 10-1007(c) (2018). Regardless of which version applies, the City Act by

8 See https://legistar.council.nyc.gov/LegislationDetail.aspx?ID=2524277&GUID =95BD1BC8-BC4F-4320-9130-E6705CE17161&Options=ID|Text|&Search=10-1001. 9 Under the applicable, pre-2018-amendment version, the section referred to the authority of “New York City, New York State”, which could reasonably be construed to mean New York City of New York State, as in the common form of the city-and-state address, “New York, New York.” City Act, 8-807(c). Either way, the City Act does not affirmatively grant the state standing.


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its terms does not affirmatively grant any right to the state; as discussed above, the

express grant of standing to patients, owners, and operators of abortion facilities

and to the City under 8-804 and 8-805 (or 10-1004 and 10-1005 (2018)) does not

limit rights that any persons or entities, such as the state, “otherwise have” under

laws other than 8-807 (or 10-1007 (2018)). Simons, 452 F.2d at 1116.

Moreover, the City Act specifically provides that the City may seek an

injunction—and makes no mention of the AG or the state having such right. City

Act, 8-805 (or 10-1005 (2018)). When the current AG was a City representative

she stated that “I should be given that right to step in their shoes…. This statute

does just that.” City’s Memorandum of Law as amicus in opposition to Motions to

Dismiss (E.D.N.Y. ECF 127-2, 9 n.8) (emphasis added). At that time, she did not,

nor did anyone else, assert or even suggest that the AG has such a right. (E.D.N.Y.

ECF 127-2.)

Indeed, while the City Act grants the City standing to seek an injunction, it

does not grant the City standing to seek damages or attorney’s fees. The AG here

seeks an injunction and damages and costs. JA71. The AG, who is not mentioned

in 8-804 or 8-805 (or § 10-1004 or 10-1005 (2018)), cannot seriously contend that

she implicitly has such greater rights than the City, which is mentioned by name in


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8-805 (or 10-1005 (2018)) and has the explicit right to seek an injunction only.10

The AG cannot contort the City Act to grant her standing.

Because the language of the City Act precludes standing, parens patriae

analysis is unnecessary. See Griepp Defendants’ Opening Brief at 54. Like the

statute at issue in Physicians Health Servs., the City Act “carefully limits the

parties who may seek relief” and the state is not included. Physicians Health

Servs., 287 F.3d at 121. The AG lacks standing to seek relief under the City Act.

C. FACE and the related State and City Act provisions are facially unconstitutional (Cross-Appeal Point III).

FACE and the related State Act and City Act11 provisions are facially

unconstitutional. With Reed v. Town of Gilbert, Ariz., 135 S. Ct. 2218 (2015), the

10 In the district court, the City as amicus asserted that the City Council intended to grant the AG standing (City’s Memorandum of Law as amicus in opposition to Motions to Dismiss (E.D.N.Y. ECF 127-2, 13-14 n.19)), but this is revisionist legislative history (id.), and as such it is notoriously unreliable. See, e.g., Bridgestone/Firestone, Inc. v. Pension Benefit Guar. Corp., 892 F.2d 105, 110 n.5 (D.C. Cir. 1989)(“[T]he pronouncements of a subsequent Congress, here 13 years after the passage of ERISA, are notoriously unreliable indicators of the intent of Congress at the time of passage, and we give very little weight to such revisionist legislative history.”). 11 The AG mistakenly claims that this Cross-Appeal Point applies only to FACE and not to the State or City Acts. The Point applies to all three laws. The district court, the AG, the Defendants, the City, the NYCLU, and the AG herself all acknowledge the argument is substantially the same for all three—and have consistently made their respective arguments as to all three. See, e.g., SPA63 n. 63; Griepp Defendants’ opening Brief at 4, 55, 61; City’s amicus Brief at 25; NYCLU’s amicus Brief at 3, 6, 7-8 n.4, 26; AG’s Response/Reply at 52 n.18. Further, the AG concedes that in several places in their opening Brief the Griepp


15

Supreme Court changed the analytical framework for First Amendment content-

neutrality. Despite the AG’s and the NYCLU’s12 attempts to minimize its

significance, multiple other Circuit courts have acknowledged that Reed effected a

“drastic change in First Amendment jurisprudence,” and have revisited their

respective standards for content-neutrality in light of it. Free Speech Coalition,

Inc. v. Attorney General, 825 F.3d 149, 160 n.7 (3d Cir. 2016) (revising the Third

Circuit’s standard for content neutrality in light of Reed); see also Cahaly v.

LaRosa, 796 F.3d 399, 405 (4th Cir. 2015) (noting that Reed “conflicts with, and

therefore abrogates, our previous descriptions of content neutrality”); Price v. City

of Chicago, No. 17-2196, 2019 WL 580263, *7-10 (7th Cir. Feb. 13, 2019)

(recognizing that Reed established a new analytical framework for determining

whether a law is content-based); Norton v. City of Springfield, 806 F.3d 411, 412

Defendants noted the three are to be considered together. AG’s Response/Reply at 52 n.18. 12 The NYCLU, an affiliate of the ACLU, suggests that it’s a neutral advocate, in that it has supported both abortion rights in some cases and First Amendment rights in others. ACLU’s brief at 1-2. But in cases involving the assertion of both types of rights, the NYCLU and ACLU’s concern for First Amendment rights seems to yield invariably to their concern for abortion rights. The NYCLU’s position here is a case in point. See also, e.g., Evergreen Ass’n, Inc. v. City of New York, 801 F. Supp. 2d 197, 206 n.6 (S.D.N.Y. 2011) (deciding whether government defendants can force pregnancy services centers to make certain disclosures about abortion; “Given the [NYCLU’s] usual concern for First Amendment rights, its amicus brief supporting Defendants’ expansive view of the commercial speech doctrine is puzzling”), aff’d in part, vacated in part, 740 F.3d 233 (2d Cir. 2014).


16

(7th Cir. 2015) (finding ordinance content-based, contrary to prior panel decision

decided before Reed: “Reed understands content discrimination differently.”).

Thus, the AG’s argument based on pre-Reed precedent is unavailing. See

AG’s Response/Reply at 55-57 (citing only cases that pre-date Reed). Whether

FACE is facially content-based under Reed is a question of first impression in the

Second Circuit. To Defendants’ knowledge, no federal court of appeal has yet

opined on it.13

According to the AG, the fact that FACE applies to all “reproductive health

services” and was once applied against someone who interfered with abortion

alternatives counseling means that it is content-neutral. See AG’s Response/Reply

at 55-57 (citing United States v. Weslin, 156 F.3d 292, 297 (2d Cir. 1998)). The

AG is mistaken. FACE bans expressive conduct discouraging a person from

obtaining reproductive health services while permitting expressive conduct

encouraging the same thing. It applies only against those whose motivation is to

deter or dissuade someone from “obtaining or providing reproductive health

services.” Thus, it does not apply against clinic escorts. So if a pro-life advocate

13 Approximately one month after Reed was handed down, a panel of the Tenth Circuit briefly considered (and rejected) an as-applied First Amendment challenge to FACE but did not consider whether it is facially content-neutral. See United States v. Dillard, 795 F.3d 1191, 1204 (10th Cir. 2015).


17

steps in front of a clinic escort14 and thereby engages in “physical obstruction”

with the intent to “interfere with” the escort because she is assisting in providing

“reproductive health services,” the pro-life advocate violates FACE. But if a clinic

escort engages in the identical behavior by purposely stepping in front of a pro-life

counselor (see Section II.A above, listing examples of this conduct), she does not

violate FACE, because she is not acting with the requisite intent. In other words,

by design15 and effect FACE operates only against those on the pro-life side of the

issue. Under Reed this illogical distinction renders FACE an unconstitutional

content-based law (and viewpoint discriminatory as well). See Hoffman v. Hunt,

14 The Griepp Defendants do not concede that FACE protects clinic escorts, because they are not in fact obtaining or providing “reproductive health services,” but for purposes of this illustration they assume arguendo that it does. 15 Congress made no effort to hide this intent. The Senate Committee on Labor and Human Relations Report (S.Rep. No. 103-117, 103rd Cong. (1993)), is quite telling:

Thus, for example, if an environmental group blocked passage to a hospital where abortions happen to be performed, but did so as part of a demonstration over harmful emissions produced by the facility, the demonstrators would not violate this Act (though their conduct might violate some other law, such as a local trespass law). In that example, the demonstrators’ motive is related to the facility’s emissions policy and practices and not to its policy and practices on abortion-related services. The Committee has concluded that inclusion of the motive elements is important to ensure that the Act is precisely targeted at the conduct that, as the Committee's record demonstrates, requires new Federal legislation: deliberate efforts to interfere with the delivery of abortion-related services.

Id. (emphasis added).


18

923 F. Supp. 791, 820-823 (W.D.N.C. 1996), rev’d, 126 F.3d 575 (4th Cir. 1997)

(calling into question the content-neutrality of FACE and finding certain

provisions overbroad and vague). “Government regulation of speech is content

based if a law applies to particular speech because of the topic discussed or the

idea or message expressed.” Reed, 135 S.Ct. at 2227.

Because FACE isolates expressive activity on a certain “topic”—viz.,

“reproductive health”—it is content-based under Reed, even if its content-based

restriction can apply to individuals with more than one viewpoint on that topic.16

To be sure, in Weslin, this Court conceded that FACE carves out a particular

subject matter for prohibition: “Both by its language and its application, FACE

seeks to govern all people who obstruct the provision of reproductive health

services.” 156 F.3d at 296 (emphasis added). This statement is otherwise

demonstrably false, as shown by the hypothetical above as well as the Senate

Committee quote in the footnote.

In any event, the Weslin Court was unconcerned about FACE’s focus on

reproductive health services because it applied “regardless of whether the 16 Contrary to the NYCLU’s assertion (NYCLU’s Brief at 12), March v. Mills, 867 F.3d 46 (1st Cir. 2017) is inapposite. March did not involve FACE and instead involved a different kind of state law. March, 867 F.3d at 51. Specifically, it barred people—“after having been ordered by a law enforcement officer to cease”—from making “noise” of any kind that is so loud that it could jeopardize the health of people or interfere with the receipt of services “within” a private building. Id.


19

obstruction is or is not motivated by opposition to abortion,” id., and “regardless of

the issue that animates the demonstrators,” id. at 297. See also NYCLU’s Brief at

13. In other words, Weslin held, “‘pro-choice; protestors as well as ‘pro-life’

protestors come within the terms of the statute. It applies to those who would

interfere with the provision of counseling at a clinic in which patients are

encouraged not to have abortions.” Weslin, 156 F.3d at 297. Weslin also ignored

the intent element of the statute that allows inquiry into expression. Id. See also

NYCLU’s Brief at 15 (acknowledging that FACE’s “‘intent’ requirement might

allow for inquiry into expression”).

But Reed establishes a different analytical framework. While FACE may

apply regardless of whether the expression is motivated by opposition to abortion,

the statute is content-based because it targets expressive conduct17 related to a

limited issue: “reproductive health.” 18 U.S.C. § 248(a); Reed, 135 S.Ct. at

2227.18

17 That expressive conduct is implicated under FACE is beyond cavil: several of the AG’s claims against Defendants are premised upon the contention that Defendants obstructed patients with their signs. E.g., SPA25 (analyzing claim that Ronald George blocked patients with his sign). It cannot be overlooked that Reed addressed the regulation of signs too. Reed, 135 S.Ct. at 2224. 18 Because FACE explicitly targets expression on a certain topic, it is not similar to the buffer zones at issue in Bruni v. City of Pittsburgh, 283 F. Supp.3d 357, 367-68 (W.D. Pa. 2017), and McCullen, 134 S. Ct. 2518. The statute in McCullen banned entry into a geographic area around reproductive health care facilities irrespective of one’s purpose. McCullen, 134 S. Ct. at 2526. On its face, it did not target any


20

Reed also clarified that a facially content-based law “is subject to strict

scrutiny regardless of the government’s benign motive, content-neutral justification

or lack of ‘animus toward the ideas contained’ in the regulated speech.” Id. at

2228 (emphasis added). In other words, it does not matter—for the purpose of

determining whether a statute has to satisfy strict scrutiny—whether it has a benign

purpose other than the suppression of speech having certain content. See AG’s

Response/Reply at 54-55; NYCLU’s Brief at 15. FACE proscribes speech on a

certain topic: “reproductive health.” Therefore, under Reed—and contra Weslin—

FACE must satisfy strict scrutiny. See Griepp Defendants’ Opening Brief at 58-59

(demonstrating that FACE cannot satisfy strict scrutiny).

The AG mistakenly asserts that this Court must follow Weslin because it’s a

Second Circuit case and it addressed the facial constitutionality of FACE. AG’s

Response/Reply at 53-55. Rather, the Court must follow the law as it currently is

and must not follow Circuit Court holdings abrogated by the Supreme Court. See

Bruni v. City of Pittsburgh, 824 F.3d 353, 365 n.14 (3d Cir. 2016) (“should it arise

and need to be addressed on remand, the District Court will need to

examine Reed and its effect on the content-neutrality analysis to decide whether

type of expression, on the topic of reproductive health or otherwise. And while the ordinance at issue in Bruni did ban certain expressive conduct within the buffer zone, it did so without reference to the subject matter or purpose of the conduct. Bruni, 283 F. Supp.3d at 368.


https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=2025554470&pubNum=0000708&originatingDoc=I437da7e0289711e6a6699ce8baa114cf&refType=RP&originationContext=document&transitionType=DocumentItem&contextData=(sc.UserEnteredCitation)

21

that case compels a break from [the Third Circuit’s prior] holding”); Cahaly, 796

F.3d at 405 (Reed “conflicts with, and therefore abrogates, our previous

descriptions of content neutrality….” (citing Fourth Circuit cases abrogated));

Norton, 806 F.3d at 412 (granting rehearing and reversing Seventh Circuit panel’s

earlier determination in the same case in light of Reed); see also, e.g., United

States v. Frias, 521 F.3d 229, 231–32 & n.3 (2d Cir. 2008) (noting that “a series of

Supreme Court decisions ha[d] ‘called into question,’” and now required reversal,

of Second Circuit’s prior holdings).

With Reed, the Supreme Court abrogated any inconsistent “content

neutrality” analytical frameworks promulgated by any lower courts including the

Second Circuit. Weslin’s description of content neutrality is inconsistent with

Reed’s. Accordingly, the Court should not follow Weslin.

III. CONCLUSION

For the reasons set forth above and in the Defendants’ Opening Briefs, the

Court should affirm the district court’s denial of the AG’s motion for preliminary

injunction and reverse the court’s erroneous conclusions.


22

Dated: June 17, 2019

Respectfully submitted,

/s/ Martin A. Cannon Martin A. Cannon Admitted pro hac vice Thomas More Society 20374 Magnolia Rd Crescent, IA 51526 (712)545-9433 [email protected]

/s/ Stephen M. Crampton Stephen M. Crampton Crampton Legal Services, PLLC PO Box 4506 Tupelo, MS 38803 (662)255-9439 [email protected]

/s/ Adam S. Hochschild Adam S. Hochschild Hochschild Law Firm, LLC PO Box 401 Plainfield, VT 05667 (314)503-0326 [email protected]

Counsel for the Griepp Defendants-Appellees–Cross-Appellants (Kenneth Griepp, Ronald George, Patricia Musco, Ranville Thomas, Prisca Joseph, Osayinwense Okuonghae, Anne Kaminsky, Brian George, Sharon Richards, and Deborah Ryan)

/s/ Roger K. Gannam Horatio G. Mihet Roger K. Gannam Liberty Counsel P.O. Box 540774 Orlando, FL 32854-0774 (407)875-1776 [email protected] [email protected] Counsel for Defendant–Cross Appellant Scott Fitchett, Jr. /s/ Richard Thompson Richard Thompson Thomas More Law Center 24 Frank Lloyd Wright Dr. Suite J 3200 Ann Arbor, MI 48106 (734)827-2001 [email protected] Counsel for Defendants-Appellees–Cross-Appellants Angela Braxton and Jasmine LaLande


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CERTIFICATE OF COMPLIANCE

Pursuant to Federal Rule of Appellate Procedure 32 and Local Rule 28.1.1(c), Adam S. Hochschild hereby certifies that according to the word count of the word-processing system used to prepare this brief, the brief contains 5,402 words and complies with the typeface requirements and length limits of the applicable rules.

/s/ Adam S. Hochschild


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