CASE NO. 18-1084 UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT NIKKI BRUNI, et. al., Plaintiffs/Appellants, v. CITY OF PITTSBURGH, et.al. Defendants/Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

THE HONORABLE CATHY BISSOON, DISTRICT JUDGE CIVIL CASE NO. 2:14-CV-1197

BRIEF OF AMICI CURIAE COLLEEN REILLY and BECKY BITER IN SUPPORT OF PLAINTIFFS-APPELLANTS, SEEKING REVERSAL

Mathew D. Staver (Lead Counsel) Horatio G. Mihet Roger K. Gannam LIBERTY COUNSEL PO Box 540774 Orlando, FL 32854 (407) 875-1776 Email court@lc.org

Mary E. McAlister LIBERTY COUNSEL P.O. Box 11108 Lynchburg, VA 24506 Tel. (434) 592-7000 Email court@lc.org Attorney for Amici

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DISCLOSURE STATEMENT

Pursuant to 3d Cir. R. 26.1.1, the undersigned hereby states that Amici are

individual persons and, accordingly, there are no affiliate corporations or

subsidiaries that have issued shares or debt securities to the public, and there is no

publicly held company that owns any part of the Amici.

/s/ Mary E. McAlister Mary E. McAlister

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TABLE OF CONTENTS

DISCLOSURE STATEMENT ............................................................................. i

TABLE OF CITATIONS ................................................................................... iii

INTEREST OF AMICI ........................................................................................1

STATEMENT IN COMPLIANCE WITH RULE 29(c)(5) ................................2

SUMMARY OF ARGUMENT ............................................................................2

ARGUMENT ........................................................................................................3

I. The District Court’s Disregard Of Reed To Find That The Ordinance Is A Valid Content Neutral Speech Regulation Impermissibly Continues And Expands the Super Protected Status Of Abortion Rights At The Expense of Fundamental Free Speech Rights. .............................................................................. 3

II. The District Court’s Decision That The City Need Not Try Less Restrictive Alternatives Impermissibly Employs The Abortion Ad Hoc Nullification Machine To Curtail Fundamental Free Speech Rights.......................................................................................10

III. The District Court’s Imposition Of Novel and Higher Burdens Of Proof On Pro-Life Sidewalk Counselors Impermissibly Sacrifices Fundamental Free Speech Rights. .....................................18

A. McCullen Did Not Establish A New Burden Of Proof For Plaintiffs In Constitutional Challenges to Buffer Zones. ..............20

B. The District Court’s Burden of Proof Would Eliminate Facial Challenges To Unconstitutional Speech Restrictions. ........22

CONCLUSION ................................................................................................... 25

CERTIFICATION OF BAR MEMBERSHIP .................................................. 27

CERTIFICATE OF WORD COUNT COMPLIANCE .................................... 27

CERTIFICATE OF SERVICE AND VIRUS CHECK .................................... 28

CERTIFICATE OF IDENTICAL COMPLIANCE ......................................... 28

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TABLE OF CITATIONS

CASES

Arizona Free Enter. Club's Freedom Club PAC v. Bennett, 564 U.S. 721 (2011) ..........................................................................................17

Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221(1987) ...........................................................................................15

Beal v. Doe, 432 U.S. 438 (1977) ........................................................................................... 6

Broadrick v. Oklahoma, 413 U.S. 601 (1973) ..........................................................................................24

Bruni v. City of Pittsburgh, 283 F.Supp.3d 357 (WD Pa. 2017) ................................................. 2,3, 10, 20, 23

Bruni v. City of Pittsburgh, 824 F.3d 353 (3d Cir. 2016) ..............................................................................11

Carey v. Brown, 447 U.S. 455 (1980) .................................................................................... 15, 16

Carey v. Population Services International, 431 U.S. 678 (1977) ........................................................................................... 6

Edwards v. South Carolina, 372 U.S. 229 (1953) .................................................................................... 14, 15

Eisenstadt v. Baird, 405 U.S. 438 (1972) ........................................................................................... 7

Forsyth Cty., Ga. v. Nationalist Movement, 505 U.S. 123 (1992) ..........................................................................................15

Griswold v. Connecticut, 381 U.S. 479 (1965) ..........................................................................................17

Harris v. McRae, 448 U.S. 297 (1980) ........................................................................................... 6

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Hill v. Colorado, 530 U.S. 703 (2000) ............................................................................ 5, 8, 19, 25

Kreimer v. Bureau of Police for Town of Morristown, 958 F.2d 1242 (3d Cir. 1992) ............................................................................17

Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753 (1994) ........................................................................................... 8

Maher v. Roe, 432 U.S. 464 (1977) ........................................................................................... 6

Martin v. City of Struthers, 319 U.S. 141 (1943) ................................................................................ 2, 13, 22

McCullen v. Coakley, 134 S. Ct. 2518 (2014).................................................................. 8, 10, 11, 18-20

McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995) ........................................................................................ 3, 8

Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue, 460 U.S. 575 (1983) ..........................................................................................15

New York Times v. Sullivan, 376 U.S. 254 (1964) ..........................................................................................12

Planned Parenthood of SE. Pennsylvania v. Casey, 505 U.S. 833 (1992) ...................................................................................... 6, 12

Pleasant Grove City v. Summum, 555 U.S. 460 (2009) ........................................................................................... 9

Prince v. Massachusetts, 321 U.S. 158 (1944) ........................................................................................... 7

Reed v. Town of Gilbert, 135 S.Ct. 2218 (2015)......................................................................................... 2

Riley v. National Federation of Blind of N. C., Inc., 487 U.S. 781 (1988) .............................................................................. 11, 16, 17

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Roe v. Wade, 410 U.S. 113 (1973) ........................................................................................... 5

Rowan v. United States Post Office Dept., 397 U.S. 728 (1970) ..........................................................................................19

Schneider v. State of New Jersey, Town of Irvington, 308 U.S. 147 (1939) ........................................................................ 14, 16, 21, 22

Stromberg v. California, 283 U.S. 359 (1931) ..........................................................................................16

Terminiello v. City of Chicago, 337 U.S. 1 (1949). ......................................................................................... 5, 12

Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986) ................................................................................ 3, 5, 6, 9

United States v. Associated Press, 52 F.Supp. 362 (S.D.N.Y. 1943) ........................................................................13

United States v. Grace, 461 U.S. 171 (1983) ........................................................................................... 9

Vill. of Schaumburg v. Citizens for a Better Env’t, 444 U.S. 620 (1980) .............................................................................. 14, 16, 22

Virginia v. Am. Booksellers Ass’n, Inc., 484 U.S. 383 (1988) ..........................................................................................23

Ward v. Rock Against Racism, 491 U.S. 781(1989) ...........................................................................................21

OTHER AUTHORITIES

James Bopp Jr., Richard E. Coleson, The Right to Abortion: Anomalous, Absolute, and Ripe for Reversal, 3 BYU J. PUB. L. 181 (1989) ........................... 4

RULES

11th Cir. R. 32-4 ...................................................................................................27

Fed. R. App. P. 32 .................................................................................................27

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INTEREST OF AMICI

Amici, Colleen Reilly and Becky Biter, are pro-life sidewalk counselors in

Harrisburg, Pennsylvania, and Plaintiffs in Reilly, et. al., v. City of Harrisburg, et.

al., United States District Court for the Middle District of Pennsylvania Case No.

1:16-cv-00510-SHR. That case was previously before this Court on an appeal of

the denial of Amici’s motion for preliminary injunction, Case No. 16-3722, and,

following a reversal and remand by this Court, the case is now pending before the

district court for further proceedings. Amici are challenging an anti-speech buffer

zone ordinance enacted by the City of Harrisburg that is very similar to (albeit

broader than) the ordinance under consideration in this case. Because both

ordinances seriously infringe upon cherished First Amendment rights, Amici desire

that this Court have sufficient information to analyze the nature, scope and

consequences of the city’s action.

Amici have a unique perspective about the ramifications of anti-free speech

buffer zones erected in Pittsburgh and Harrisburg, and believe that the information

they provide is critically important to this Court’s analysis. Therefore, Amici

respectfully submit this Brief in support of Plaintiffs and Appellants.

Plaintiffs and Defendants have consented to Amici’s request to file this

amicus brief.

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STATEMENT IN COMPLIANCE WITH RULE 29(c)(5)

No party’s counsel authored this brief in whole or in part; no party or party’s

counsel contributed money that was intended to fund preparing or submitting this

brief; and no person other than amici curiae or their counsel contributed money

that was intended to fund preparing or submitting this brief.

SUMMARY OF ARGUMENT

When is speaking and leafletting, the quintessential activity protected by the

First Amendment, conducted in the quintessential public forum of a public

sidewalk not entitled to the most robust First Amendment protection available?

According to the district court, when that leafletting and speaking on a public

sidewalk involves telling women that there are alternatives to abortion for an

unplanned pregnancy. In that case, the court essentially says, the pre-eminent right

of freedom of speech must yield to the even more pre-eminent right of abortion.

That is the motivation behind the district court’s conclusion that even though

Reed v. Town of Gilbert, 135 S.Ct. 2218, 2231 (2015) requires finding that

Pittsburgh’s ordinance is content-based and subject to strict scrutiny, it is, in fact

content neutral and need only satisfy intermediate scrutiny. Bruni v. City of

Pittsburgh, 283 F.Supp.3d 357, 368 (WD Pa. 2017) (“Bruni 2017”). Similarly,

even though the Supreme Court has long established that cities must do more than

allege expediency and convenience to satisfy narrow tailoring, Martin v. City of

Struthers, 319 U.S. 141, 146-47 (1943), the district court here found no need for

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evidence that alternatives had been tried and failed before restricting Plaintiffs’

pro-life speech. Bruni 2017, 283 F.Supp. 3d at 372. Finally, despite the absence of

authority requiring those whose First Amendment rights have been violated to

provide verifiable proof of diminished contacts, the district court concluded that

such proof must be established before an anti-speech buffer zone can be found to

impermissibly restrict pro-life speech. Bruni 2017, 283 F. Supp. 3d at 371.

The district court rejected Supreme Court precedent establishing that

“handing out leaflets in the advocacy of a politically controversial viewpoint ... is

the essence of First Amendment expression….[n]o form of speech is entitled to

greater constitutional protection,” McIntyre v. Ohio Elections Comm’n, 514 U.S.

334, 347 (1995), in order to protect what has become an even greater right, i.e., the

right to abortion without restriction. Plaintiffs’ First Amendment rights are the

latest victims of what has been dubbed the “ad hoc nullification” machine of

abortion, Thornburgh v. American College of Obstetricians and Gynecologists,

476 U.S. 747, 814 (1986) (O’Connor, J. dissenting). This Court should intervene to

restore the preeminence of First Amendment freedoms.

ARGUMENT

I. The District Court’s Disregard Of Reed To Find That The Ordinance Is A Valid Content Neutral Speech Regulation Impermissibly Continues And Expands the Super Protected Status Of Abortion Rights At The Expense of Fundamental Free Speech Rights.

The district court’s determination that Pittsburgh’s buffer zone ordinance is

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a valid content-neutral speech restriction despite the Supreme Court’s unequivocal

opinion in Reed is another manifestation of a trend that began only shortly after

Roe was decided, resulting in what legal scholars have called the “super protected”

status of abortion.1

[T]he justifiable limitations on first, fourth, and fifth amendment privacy rights are numerous and significant. The limitations allowed on the abortion right are few and insignificant. The absolute right to be secure in one's person and possessions may be abridged by getting a warrant. It may even be abridged without a warrant in certain circumstances. Nevertheless, if the state has “probable cause” to believe that it could protect both potential life and maternal health by requiring two physicians to be present at post-viability abortions, it might be prohibited from doing so. This, and the striking down of most of the abortion regulations, seems inconsistent with the permissible limits on other rights as noted above.2

By disregarding Reed to find that the city’s ordinance is content-neutral and

subject only to intermediate scrutiny, the district court is implicitly saying that the

right of leafletting on public sidewalks, declared to be at the zenith of protection

under the First Amendment, must yield when it affects the right to obtain an

abortion without restriction. In effect, the district court is elevating above the

fundamental right of free speech a purported right of pregnant women to approach

abortion clinics unencumbered by information about alternatives to abortion. The

court is continuing and expanding the assault upon Plaintiffs’, Amici’s and other

1 James Bopp Jr., Richard E. Coleson, The Right to Abortion: Anomalous, Absolute, and Ripe for Reversal, 3 BYU J. PUB. L. 181 (1989). 2 Id. at 230.

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pro-life advocates’ individual rights “to persuade women contemplating abortion

that what they are doing is wrong.” Hill v. Colorado, 530 U.S. 703, 742 (2000)

(Scalia J., dissenting). That assault has been ongoing since shortly after Roe v.

Wade, 410 U.S. 113, 155 (1973):

Can it possibly be that the Court is saying that the Constitution forbids the communication of such critical information to a woman? We have apparently already passed the point at which abortion is available merely on demand. If the statute at issue here is to be invalidated, the “demand” will not even have to be the result of an informed choice.

Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S.

747, 783-84 (1986) (Burger, C.J., dissenting) (emphasis added). Justice O’Connor

added that:

Today’s decision goes further, and makes it painfully clear that no legal rule or doctrine is safe from ad hoc nullification by this Court when an occasion for its application arises in a case involving state regulation of abortion.

Id. at 814 (O’Connor, J. dissenting). Including, as this case makes clear, the legal

doctrine that free speech on matters of public concern are accorded the highest

level of constitutional protection. Terminiello v. City of Chicago, 337 U.S. 1, 4

(1949).

The district court’s disregard for Reed and other free speech precedent in the

context of abortion also reflects a skewing of the right announced in Roe, from a

right to make an informed choice about an unplanned pregnancy (which is what

Plaintiffs and Amici foster), to a right to have an abortion unencumbered by other

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choices. As Justice White observed in Thornburgh, it defies logic that the

otherwise laudable policy of promoting informed consent regarding medical

procedures is suddenly unconstitutional when the subject is abortion. 476 U.S. at

799 (White, J. dissenting).

[F]or the ostensible objective of Roe v. Wade is not maximizing the number of abortions, but maximizing choice. Moreover, our decisions in Maher, Beal, and Harris v. McRae[3] all indicate that the State may encourage women to make their choice in favor of childbirth rather than abortion, and the provision of accurate information regarding abortion and its alternatives is a reasonable and fair means of achieving that objective.

Id. at 801-02 (emphasis added)

The Supreme Court has emphasized that the heart of the liberty interest

announced in Roe is supposed to be “independence in making certain kinds of

important decisions.” Planned Parenthood of SE. Pennsylvania v. Casey, 505 U.S.

833, 859 (1992).

While the outer limits of this aspect of [protected liberty] have not been marked by the Court, it is clear that among the decisions that an individual may make without unjustified government interference are personal decisions ‘relating to marriage, procreation, contraception, family relationships, and child rearing and education.’”

Id. (citing Carey v. Population Services International, 431 U.S. 678, 684–85 (1977)).

Our cases recognize “the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so

3 Harris v. McRae, 448 U.S. 297 (1980); Maher v. Roe, 432 U.S. 464 (1977); Beal v. Doe, 432 U.S. 438 (1977).

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fundamentally affecting a person as the decision whether to bear or beget a child.” Eisenstadt v. Baird, supra, 405 U.S. [438], at 453, 92 S.Ct., at 1038 [(1972)]. Our precedents “have respected the private realm of family life which the state cannot enter.” Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944). These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.

Id. at 851. “It was this dimension of personal liberty that Roe sought to protect,

and its holding invoked the reasoning and the tradition of the precedents we have

discussed, granting protection to substantive liberties of the person.” Id. at 852.

In other words, it is the decision-making processes related to pregnancy,

family relationships and contraception, not decisions in favor of abortion, that are

to be protected against governmental interference according to Roe. It is that

process that Plaintiffs, Amici and other sidewalk counselors are participating in by

seeking to provide pregnant women with information on alternatives to abortion

before they make a decision. Thus, Plaintiffs and Amici are furthering the concept

of “choice” purportedly so critical to the rights announced in Roe by presenting

pregnant women with choices other than abortion. “Part of the constitutional

liberty to choose is the equal dignity to which each of us is entitled. A woman who

decides to terminate her pregnancy is entitled to the same respect as a woman who

decides to carry the fetus to term.” Id. at 920 (Stevens, J., concurring and

dissenting). That has not been the case, however, as this case and the Supreme

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Court’s post-Roe cases attest. Rather than according equal respect to the choice to

have an abortion and the choice to not have an abortion, courts have given far

greater deference to the choice to have an abortion, finding that virtually any effort

that might cause a woman to re-think her choice to abort her child must be

invalidated, or in this case, restricted to the point of being ineffective.

“There is apparently no end to the distortion of our First Amendment law

that the Court is willing to endure in order to sustain this restriction upon the free

speech of abortion opponents.” Hill, 530 U.S. at 753 (Scalia J., dissenting). In fact,

“[t]here is an entirely separate, abridged edition of the First Amendment applicable

to speech against abortion.” McCullen v. Coakley, 134 S. Ct. 2518, 2541 (2014)

(Scalia, J., concurring) (citing Hill 530 U.S. 703; Madsen v. Women’s Health Ctr.,

Inc., 512 U.S. 753 (1994)). Part of that abridged edition is the concept that

pregnant women should be protected from hearing about alternatives to abortion

despite the fact that “[p]rotecting people from speech they do not want to hear is

not a function that the First Amendment allows the government to undertake in the

public streets and sidewalks.” Id. at 2545-46. Instead, “handing out leaflets in the

advocacy of a politically controversial viewpoint ... is the essence of First

Amendment expression” so that “[n]o form of speech is entitled to greater

constitutional protection.” McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 347

(1995). Public ways and sidewalks occupy a “special position in terms of First

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Amendment protection” because of their historic role as sites for discussion and

debate. United States v. Grace, 461 U.S. 171, 180 (1983). These places—which we

have labeled “traditional public fora”—“‘have immemorially been held in trust for

the use of the public and, time out of mind, have been used for purposes of

assembly, communicating thoughts between citizens, and discussing public

questions.’” Pleasant Grove City v. Summum, 555 U.S. 460, 469 (2009).

The fact that the subject matter being addressed on sidewalks outside of

Pittsburgh abortion clinics is alternatives to abortion does not change the nature of

the forum as one of the pre-eminent venues for free speech. In light of the stated

goal of Roe and its progeny of protecting “reproductive choice,” Plaintiffs’ and

Amici’s activities in providing information on choices other than abortion should

be encouraged, not restricted. That the City is restricting such speech and the

district court is condoning that restriction illustrates that the true motivation is not

protecting “reproductive choice,” but protecting a “right” to abortion on demand

without any opportunity for informed choice, as Chief Justice Burger warned.

Thornburgh, 476 U.S. at 783-84.

Plaintiffs’, Amici’s and pregnant women’s First Amendment rights are being

trampled by this purported right to unobstructed access to abortion. Free speech

rights, which predate Roe by almost two hundred years, cannot be sacrificed on the

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altar of abortion rights, but must be preserved. The district court’s decision should

be reversed.

II. The District Court’s Decision That The City Need Not Try Less Restrictive Alternatives Impermissibly Employs The Abortion Ad Hoc Nullification Machine To Curtail Fundamental Free Speech Rights.

The district court further demonstrated its commitment to elevating the

“right to abortion” above even the First Amendment when it excused the City from

the McCullen requirement to demonstrate that alternative measures which burden

substantially less speech would fail to achieve the government’s interests. Bruni

2017, 283 F.3d at 371. “[T]he City has no obligation to demonstrate that it tried—

or considered and rejected—any such alternatives.” Id. In other words, when the

subject matter relates to choosing alternatives to abortion, the City can infringe

Plaintiffs’ rights to disseminate and pregnant women’s rights to receive

information in a quintessential public forum, i.e., public sidewalks, based on

nothing more than an assertion that it is convenient and cost effective.

In McCullen, the Supreme Court made it clear that, even if a restriction is

content neutral, the First Amendment requires that it be narrowly tailored, not

merely be the most efficient means of dispensing with disfavored speakers or

viewpoints. 134 S.Ct. at 2534. “Where certain speech is associated with particular

problems, silencing the speech is sometimes the path of least resistance. But by

demanding a close fit between ends and means, the tailoring requirement prevents

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the government from too readily ‘sacrific[ing] speech for efficiency.’” Id. at 2534-

35 (citing Riley v. National Federation of Blind of N. C., Inc., 487 U.S. 781, 795

(1988)). In McCullen, the Commonwealth of Massachusetts attempted to justify its

restrictive anti-speech buffer zones by saying that they would make law

enforcement’s job easier.

Of course they would. But that is not enough to satisfy the First Amendment. To meet the requirement of narrow tailoring, the government must demonstrate that alternative measures that burden substantially less speech would fail to achieve the government’s interests, not simply that the chosen route is easier.

Id. at 2540. “Given the vital First Amendment interests at stake, it is not enough

for Massachusetts simply to say that other approaches have not worked.” Id. This

Court adopted that standard in its prior opinion reversing the dismissal of this case

when it said that the City “would have to show either that substantially less-

restrictive alternatives were tried and failed, or that the alternatives were closely

examined and ruled out for good reason.” Bruni v. City of Pittsburgh, 824 F.3d

353, 370 (3d Cir. 2016). In other words, narrow tailoring requires that the City

show that it seriously undertook to address the problem that purportedly prompted

consideration of the Ordinance with less intrusive readily available tools that other

jurisdictions have found effective. Id. at 370 n.17.

The narrow tailoring requirement described by the McCullen Court and

adopted by this Court reflects the longstanding protection of diverse opinions in

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traditional public fora. “The vitality of civil and political institutions in our society

depends on free discussion.” Terminiello, 337 U.S. at 4. “The right to speak freely

and to promote diversity of ideas and programs is therefore one of the chief

distinctions that sets us apart from totalitarian regimes.” Id.

Accordingly, a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea.

Id. That is no less true for the decisions surrounding unplanned pregnancies, which

the Supreme Court has said are among the important decisions which are to be

made independently, without undue restriction from the government. Casey, 505

U.S. at 859. If the true purpose of Roe is to foster such independent choice, as

opposed to being coerced into an abortion, then speech restrictions such as the

City’s anti-speech buffer zone which remove that choice should be disfavored.

Citing Terminiello, the Supreme Court again emphasized the importance of

protecting unpopular viewpoints in New York Times v. Sullivan, 376 U.S. 254,

269–70 (1964). The Court reiterated the “profound national commitment to the

principle that debate on public issues should be uninhibited, robust, and wide-open,

and that it may well include vehement, caustic, and sometimes unpleasantly sharp

attacks on government and public officials.” Id.

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The First Amendment, said Judge Learned Hand, “presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection. To many this is, and always will be, folly; but we have staked upon it our all.”

Id. (citing United States v. Associated Press, 52 F.Supp. 362, 372 (S.D.N.Y.

1943)). Pregnant women, like other citizens, are entitled to hear that multitude of

opinions, including those from Plaintiffs and Amici, and should not be subjected to

the authoritative selection of the City’s anti-free speech buffer zone.

The type of one-on-one direct communication in which Plaintiffs and Amici

engage has been of particular concern to the Supreme Court, which has long

rejected attempts to stringently restrict or effectively prohibit such activity. Martin

v. City of Struthers, 319 U.S. 141, 146-47 (1943). This is true even when the

activity involves entering onto private property, which is less protected than are

public sidewalks and parks. Id.

Freedom to distribute information to every citizen wherever he desires to receive it is so clearly vital to the preservation of a free society that, putting aside reasonable police and health regulations of time and manner of distribution, it must be fully preserved. The dangers of distribution can so easily be controlled by traditional legal methods, leaving to each householder the full right to decide whether he will receive strangers as visitors, that stringent prohibition can serve no purpose but that forbidden by the Constitution, the naked restriction of the dissemination of ideas.

Id. Again, the Court emphasized that the government must use methods other than

restricting speech if there is evidence that an activity is creating disturbances that

are within the purview of the state to resolve, i.e., not merely inconveniences or

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disagreements with a point of view. See Edwards v. South Carolina, 372 U.S. 229,

237–38 (1953) (invalidating a criminal statute that permitted conviction for speech

that “stirred people to anger, invited public dispute, or brought about a condition of

unrest.”).

For example, a municipality should address concerns about littering by

citing those who throw papers on the streets, not by prohibiting leafletting.

Schneider v. State of New Jersey, Town of Irvington, 308 U.S. 147, 162 (1939).

[T]he purpose to keep the streets clean and of good appearance is insufficient to justify an ordinance which prohibits a person rightfully on a public street from handing literature to one willing to receive it. Any burden imposed upon the city authorities in cleaning and caring for the streets as an indirect consequence of such distribution results from the constitutional protection of the freedom of speech and press.

Id. Similarly, a village can prevent fraud or trespassing by door to door solicitors

by enacting laws that directly address those issues, but not by prohibiting

solicitation by those who use 25 percent or more of their funds for administration.

Vill. of Schaumburg v. Citizens for a Better Env’t, 444 U.S. 620, 636–39 (1980).

Frauds may be denounced as offenses and punished by law. Trespasses may similarly be forbidden. If it is said that these means are less efficient and convenient than . . . [deciding in advance] what information may be disseminated from house to house, and who may impart the information, the answer is that considerations of this sort do not empower a municipality to abridge freedom of speech and press.

Id. at 639. Likewise, issues such as raising revenue to cover increased police

enforcement or other issues related to a particular activity are insufficient to

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support restrictions on the dissemination of information pursuant to the First

Amendment, particularly when other alternatives are available that would not

restrict free speech. See Minneapolis Star & Tribune Co. v. Minnesota

Commissioner of Revenue, 460 U.S. 575, 586 (1983); Arkansas Writers' Project,

Inc. v. Ragland, 481 U.S. 221, 231–32 (1987); Forsyth Cty., Ga. v. Nationalist

Movement, 505 U.S. 123, 135–36 (1992). None of these cases offered any

exceptions (such as for speech about abortion alternatives) to the conclusion that

states and municipalities cannot abridge the freedom of speech for the sake of

convenience and efficiency.

In fact, when a state attempted to carve out such qualifications, its efforts

were soundly rejected by the Court. Carey v. Brown, 447 U.S. 455 (1980). In

Carey, the Supreme Court dismissed Illinois’ argument that its picketing statute

was justified by the state’s interest in “providing special protection for labor

protests.” Id. at 466. Citing Edwards and the preeminence of public issue

picketing, the Court said:

The central difficulty with this argument is that it forthrightly presupposes that labor picketing is more deserving of First Amendment protection than are public protests over other issues, particularly the important economic, social, and political subjects about which these appellees wish to demonstrate. We reject that proposition. Public-issue picketing, “an exercise of . . . basic constitutional rights in their most pristine and classic form,” Edwards v. South Carolina, 372 U.S. 229, 235, 83 S.Ct. 680, 683, 9 L.Ed.2d 697 (1963), has always rested on the highest rung of the hierarchy of First Amendment values: “The maintenance of the opportunity for

16

free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system.” Stromberg v. California, 283 U.S. 359, 369, 51 S.Ct. 532, 536, 75 L.Ed. 1117 (1931).

Id. at 466-67 (emphasis added). Similarly here, the City is presupposing that

providing speech-free access to abortion clinics is more deserving of protection

than are Plaintiffs’ and pregnant women’s rights to discuss alternatives to abortion

while traversing a public sidewalk. As was true in Carey, the City’s attempt to

accord a special status to pro-abortion activity at the expense of fundamental rights

of free speech in a traditional public forum cannot stand.

As the Court has emphasized, “we do not suggest that States must sit idly by

and allow their citizens to be defrauded,” buried in litter or rendered bankrupt.

Riley v. Nat’l Fed’n of the Blind of N. Carolina, Inc., 487 U.S. 781, 795 (1988).

States have anti-fraud and anti-littering laws which law enforcement is ready and

able to enforce and have other constitutionally valid means of addressing purported

issues arising from free speech activities in traditional public fora. Id. If these are

not “the most efficient means of preventing fraud, we reaffirm simply and

emphatically that the First Amendment does not permit the State to sacrifice

speech for efficiency.” Id. (citing Schaumburg, 444 U.S. at 639; Schneider, 308

U.S. at 164). Citing Riley, the Supreme Court rejected Arizona’s argument that a

campaign matching system was justified because it was a more efficient use of

17

state resources. Arizona Free Enter. Club’s Freedom Club PAC v. Bennett, 564

U.S. 721, 747, (2011).

And the fact that the State’s matching mechanism may be more efficient than other alternatives—that it may help the State in “finding the sweet-spot” or “fine-tuning” its financing system to avoid a drain on public resources—is of no moment; “the First Amendment does not permit the State to sacrifice speech for efficiency.”

Id. (citing Riley, 487 U.S. at 795) (internal citation omitted). “In other words, the

State may not, consistently with the spirit of the First Amendment, contract the

spectrum of available knowledge.” Griswold v. Connecticut, 381 U.S. 479, 482–83

(1965); Kreimer v. Bureau of Police for Town of Morristown, 958 F.2d 1242, 1252

(3d Cir. 1992). That is precisely what the City is seeking and the district court is

condoning through the anti-speech buffer zones. By preventing Plaintiffs from

effectively presenting their message regarding alternatives to abortion, the City,

with the blessing of the district court, is trying to contract the spectrum of

knowledge available to pregnant women so that the right to abort their unborn

child predominates over their right to receive information regarding other

alternatives for their unplanned pregnancy. The First Amendment does not permit

such message manipulation.

Notably, in Griswold, Planned Parenthood, one of the intended beneficiaries

of the Ordinance here, successfully sued to prevent the restriction of their message

on birth control, arguing that the First Amendment did not permit restriction on

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activities including the distribution of information on a controversial topic. Now,

through lobbying of city officials, Planned Parenthood is advocating for just such a

restriction when the message might discourage women from seeking abortions.

The First Amendment is not a piece of clay to be molded to suit whoever is at the

potter’s wheel at a particular time, but as scholars and Supreme Court justices have

stated, that is precisely how it is treated when the purported constitutional right of

abortion is involved. If the First Amendment requires that Planned Parenthood be

permitted to speak and distribute materials about contraception on private property

(Griswold), it also requires that individuals such as Plaintiffs and Amici be

permitted to speak and distribute materials about alternatives to abortion. That is

even more true where, as here and in Harrisburg, individuals are exercising their

First Amendment rights in a quintessential public forum. This court should not

countenance the district court’s contrary conclusion grounded in the idea of an

exalted right to “abortion” which trumps even fundamental free speech rights.

III. The District Court’s Imposition Of Novel and Higher Burdens Of Proof On Pro-Life Sidewalk Counselors Impermissibly Sacrifices Fundamental Free Speech Rights.

The district court also elevated abortion rights above the First Amendment

when it used a statement in McCullen to foist upon Plaintiffs a wholly

manufactured burden of proof for quantifying the burden that the Ordinance poses

to Plaintiffs’ free speech activities. In addition to finding that the Ordinance is

19

subject to only intermediate scrutiny contrary to Reed, and that the City need not

show that it tried alternatives to restricting speech contrary to McCullen, the

district court found that the Ordinance did not substantially burden Plaintiffs’

speech because Plaintiffs did not provide evidence of the relative efficacy of their

speech activities pre- and post-Ordinance. That onerous burden of proof would

effectively foreclose facial, pre-enforcement challenges to speech restrictions in a

way that would render free speech rights mere platitudes.

In particular, the district court used the factual circumstances in McCullen to

create a rule that would deprive Plaintiffs and others of standing to challenge a

speech restriction unless they could provide records of the number of contacts they

made prior to the Ordinance versus they number they made after the Ordinance:

Unlike in McCullen, where the plaintiffs engaged in sidewalk counseling both before and after the MRHCA went into effect and stated that the number of people they reached sharply declined after the larger buffer zones were imposed, Plaintiffs admit that they did not engage in sidewalk counseling at the downtown Planned Parenthood before the Ordinance was passed and thus have no basis to compare the efficacy of their speech with and without a buffer zone. Plaintiffs further admit that they have no power or right to force unwilling listeners to engage in conversation with them. Thus, the fact that many people entering and exiting the clinic do not wish to speak to Plaintiffs or take literature from them is not evidence that the Ordinance substantially limits Plaintiffs’ speech but rather, more likely, that these individuals simply do not wish to engage with Plaintiffs. See Hill, 530 U.S. at 718, 120 S.Ct. 2480 (“[N]o one has a right to press even ‘good’ ideas on an unwilling recipient.”) (quoting Rowan v. United States Post Office Dept., 397 U.S. 728, 738, 90 S.Ct. 1484, 25 L.Ed.2d 736 (1970)).

20

Bruni 2017, 283 F.Supp.3d at 371. The district court disingenuously implies that

the factual circumstances in McCullen, which happened to include an opportunity

to compare free speech activity before and after the speech restriction, are

somehow prerequisites for determining whether a restriction places a substantial

burden on speech. Furthermore, the district court implies that McCullen placed

upon the speakers the burden of proving that their activities are substantially

burdened by the law instead of requiring that the state demonstrate that it has

enacted a narrowly tailored restriction that does not substantially burden free

speech. In each instance, the district court is twisting longstanding constitutional

principles in order to uphold the vaulted “right” of abortion even at the expense of

the First Amendment rights of the pregnant women that the right purports to serve.

A. McCullen Did Not Establish A New Burden Of Proof For Plaintiffs In Constitutional Challenges to Buffer Zones.

The McCullen Court did reference the variation in the number of contacts

between sidewalk counselors and pregnant women before and after the buffer zone

was enacted as an indication that free speech rights were burdened. McCullen, 134

S.Ct. at 2535. However, the Court did not state that the decrease in contacts was

something that counselors had to proffer in order to prove that their speech was

burdened. Id. Instead, the McCullen Court’s discussion of the differential contacts

pre- and post-buffer zone was part of its analysis of the state’s burden of proving

that the statute did not “burden substantially more speech than is necessary to

21

further the government’s legitimate interests.” Id. (citing Ward v. Rock Against

Racism, 491 U.S. 781, 799 (1989)). The Court was confirming that the government

“may not regulate expression in such a manner that a substantial portion of the

burden on speech does not serve to advance its goals.” Id. (citing Ward, 491 U.S.

at 799). It was in the context of analyzing whether Massachusetts had met its

burden of demonstrating that it was not burdening too much speech that the

McCullen Court noted that the statute had substantially burdened plaintiffs’ speech

as seen in the decreased number of contacts between plaintiffs and the pregnant

women they were seeking to counsel. It was not plaintiffs, but the state, which had

to demonstrate the substantiality of the burden vis-à-vis the extent of the

restriction. Id.

That analysis is in keeping with the Court’s longstanding approach to laws

that restrict First Amendment rights, i.e., that the entity seeking to restrict the

fundamental right of individuals, not the speakers affected, must show that the

restriction does not burden more speech than necessary. As the Court said in

Schneider, freedom of speech is a fundamental personal right the exercise of which

lies at the foundation of free government by free men and as such must be

protected from restriction. 308 U.S. at 161. “In every case, therefore, where

legislative abridgment of the rights is asserted, the courts should be astute to

examine the effect of the challenged legislation, … to appraise the substantiality

22

of the reasons advanced in support of the regulation of the free enjoyment of

the rights.” Id. (emphasis added). The Martin Court invalidated a restriction on

door to door solicitation, again emphasizing that the onus is on the government, not

the speaker, to show that protected speech is not being unduly burdened. 319 U.S.

at 144. “In considering legislation which thus limits the dissemination of

knowledge, we must ‘be astute to examine the effect of the challenged legislation’

and must ‘weigh the circumstances and * * * appraise the substantiality of the

reasons advanced in support of the regulation.”’ Id. (citing Schneider, 308 U.S. at

161). In Schaumburg, the Court invalidated a statute prohibiting solicitation by

charities that devoted 25 percent or more of their funds to administrative costs, and

found that the Village had not met its burden of showing that its restriction

burdened no more speech than necessary. 444 U.S. at 633 “The issue is whether

the Village has exercised its power to regulate solicitation in such a manner as not

unduly to intrude upon the rights of free speech.” Id. The relevant analysis,

therefore, is not whether the speaker has proven that his speech is substantially

burdened, as claimed by the district court, but whether the state has demonstrated

that it is not burdening speech any more than is necessary to protect its interests.

B. The District Court’s Burden of Proof Would Eliminate Facial Challenges To Unconstitutional Speech Restrictions.

The district court’s decision to impose on Plaintiffs the burden of

demonstrating that the Ordinance has substantially burdened their speech also

23

contradicts precedents holding that speakers affected by a speech restriction have

standing to mount facial challenges. According to the district court, it was up to

plaintiffs, the victims of the speech restriction, to prove that their free speech

activities have been substantially burdened by compiling evidence of the efficacy

of their activities before the Ordinance was enacted, record the efficacy of their

activities after enactment, and at some unspecified point in time, compare the

records and provide that comparison to the court. Bruni 2017, 283 F.Supp.3d at

371.

Under the district court’s novel test, speech restrictions cannot be challenged

unless and until the speakers have amassed their evidence and the court has

deemed it sufficiently probative of a “substantial burden.” Until that burden of

proof is satisfied, the government need not show that it made any effort to solve its

purported problems without burdening speech. Id. That conclusion not only

impermissibly shifts the burden of proof from the City to the plaintiffs, but also

effectively eliminates an important means of challenging governmental overreach,

i.e., pre-enforcement facial challenges.

The Supreme Court has established that, when First Amendment rights are at

stake, those affected by an enactment need not wait until the statute has been

enforced against them to challenge its constitutionality. Virginia v. Am. Booksellers

Ass’n, Inc., 484 U.S. 383, 392 (1988). When, as is true with the buffer zone here, a

24

law is aimed directly at plaintiffs, who will have to take significant and costly

compliance measures or risk criminal prosecution, plaintiffs may bring a pre-

enforcement facial challenge. Id. That is particularly true when, as is true here, “the

alleged danger of this statute is, in large measure, one of self-censorship; a harm

that can be realized even without an actual prosecution.” Id. at 392-93. It has been

long settled that prudential limitations on standing are lessened within the context

of the First Amendment because of the risk that the mere existence of a restriction

might cause someone to refrain from exercising their Frist Amendment rights.

Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973). “Society as a whole then

would be the loser. Thus, when there is a danger of chilling free speech, the

concern that constitutional adjudication be avoided whenever possible may be

outweighed by society’s interest in having the statute challenged.” Id.

The district court’s assertion that Plaintiffs have to quantify the burden on

their free speech rights is antithetical to this precedent. The Supreme Court has

emphasized the importance of reigning in governmental restrictions on free speech,

leading to relaxed standing requirements and more stringent burdens of proof on

states seeking to restrict speech. The district court’s decision effectively precludes

facial challenges. It would also preclude any challenge by sidewalk counselors

who, for whatever reason (e.g., age or change of domicile), only became interested

in sidewalk counseling after the enactment of a buffer zone. If pre- and post-buffer

25

zone comparisons are now required to show substantial burden, then anyone who

was not involved in sidewalk counseling prior to a buffer zone cannot challenge it.

This cannot be the law.

The district court is continuing and expanding the courts’ assault on the

“individual right to persuade women contemplating abortion that what they are

doing is wrong.” Hill, 530 U.S. at 742 (Scalia J., dissenting). This Court should not

place its imprimatur on that continuing attack on free speech.

CONCLUSION

The district court has disregarded this Court’s and Supreme Court precedent

that protects free speech rights from excessive government regulation such as the

anti-speech buffer zone ordinance in this case. In so doing, it is perpetuating the

phenomenon of ascribing to abortion a “super protected” status that can supersede

even foundational constitutional protections. First Amendment rights enshrined in

our Constitution since 1789 should not be sacrificed on the altar of a “right to

abortion” discovered in the emanations of the penumbra of the Constitution in

1973.

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For these reasons, Amici respectfully request that the Court reverse the

decision of the district court.

Dated April 20, 2018.

Mathew D. Staver (Lead Counsel) Horatio G. Mihet Roger K. Gannam LIBERTY COUNSEL PO Box 540774 Orlando, FL 32854 (407) 875-1776 Email court@lc.org

/s/ Mary E. McAlister Mary E. McAlister LIBERTY COUNSEL P.O. Box 11108 Lynchburg, VA 24506 Tel. (434) 592-7000 Email court@lc.org

Attorneys for Amici

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CERTIFICATION OF BAR MEMBERSHIP

Pursuant to Local Rule 28.3(d) and 46.1(e), the undersigned counsel certifies

that she is a member of the bar of this Court.

/s/ Mary E. McAlister Mary E. McAlister

CERTIFICATE OF WORD COUNT COMPLIANCE

Pursuant to Fed. R. App. P. 32(a)(7)(C), the undersigned certifies this Brief

complies with the type-volume limitations of Fed. R. App. P. 32(a)(7)(B).

1. Exclusive of the sections exempted by Fed. R. App. P.

32(a)(7)(B)(iii), the Brief contains 6,413 words, according to the word count

feature of the software (Microsoft Word 2010) used to prepare the Brief.

2. The Brief has been prepared in proportionately spaced typeface using

Times New Roman 14 point.

/s/ Mary E. McAlister Mary E. McAlister

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CERTIFICATE OF SERVICE AND VIRUS CHECK

I hereby certify that on this 20th day of April, 2018: (1) I caused this Amicus

Curiae Brief to be filed electronically via the Court’s CM/ECF system and to be

served upon all counsel of record via Notice of Docket Activity through the

Court’s electronic filing system and that all counsel of record are electronic filing

users; and (2) a virus check was performed on the Brief, no viruses were found,

and that the antivirus software used was Microsoft Forefront Client Security.

/s/ Mary E. McAlister Mary E. McAlister

CERTIFICATE OF IDENTICAL COMPLIANCE

I hereby certify that the electronically filed version of Brief of Amici Curiae

is identical to the paper copies provided to the Court on April 20, 2018.

/s/ Mary E. McAlister Mary E. McAlister