CASE NO UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Transcription

1 CASE NO UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT NIKKI BRUNI, et. al., v. CITY OF PITTSBURGH, et.al. Plaintiffs/Appellants, 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 Orlando, FL (407) Mary E. McAlister LIBERTY COUNSEL P.O. Box Lynchburg, VA Tel. (434) Attorney for Amici

2 DISCLOSURE STATEMENT Pursuant to 3d Cir. R , 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 i

3 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 II. III. 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 The District Court s Imposition Of Novel and Higher Burdens Of Proof On Pro-Life Sidewalk Counselors Impermissibly Sacrifices Fundamental Free Speech Rights A. McCullen Did Not Establish A New Burden Of Proof For Plaintiffs In Constitutional Challenges to Buffer Zones B. The District Court s Burden of Proof Would Eliminate Facial Challenges To Unconstitutional Speech Restrictions CONCLUSION CERTIFICATION OF BAR MEMBERSHIP CERTIFICATE OF WORD COUNT COMPLIANCE CERTIFICATE OF SERVICE AND VIRUS CHECK CERTIFICATE OF IDENTICAL COMPLIANCE ii

4 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 iii

5 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 (2014)... 8, 10, 11, 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 (2015)... 2 Riley v. National Federation of Blind of N. C., Inc., 487 U.S. 781 (1988)... 11, 16, 17 iv

6 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 Fed. R. App. P v

7 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 SHR. That case was previously before this Court on an appeal of the denial of Amici s motion for preliminary injunction, Case No , 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. 1

8 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, (1943), the district court here found no need for 2

9 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 3

10 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

11 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, (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 5

12 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 (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, (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). 6

13 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 7

14 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 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 8

15 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 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 9

16 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 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 10

17 the government from too readily sacrific[ing] speech for efficiency. Id. at (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 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 lessrestrictive 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 11

18 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, (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. 12

19 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, (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 13

20 disagreements with a point of view. See Edwards v. South Carolina, 372 U.S. 229, (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, (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 14

21 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, (1987); Forsyth Cty., Ga. v. Nationalist Movement, 505 U.S. 123, (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 15

22 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 (1931). Id. at (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 16

23 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, (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 17

24 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 18

25 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 ( [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)). 19

26 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 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 20

27 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 21

28 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 22

29 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 23

30 law is aimed directly at plaintiffs, who will have to take significant and costly compliance measures or risk criminal prosecution, plaintiffs may bring a preenforcement 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 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 24

31 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

32 For these reasons, Amici respectfully request that the Court reverse the decision of the district court. Dated April 20, Mathew D. Staver (Lead Counsel) Horatio G. Mihet Roger K. Gannam LIBERTY COUNSEL PO Box Orlando, FL (407) /s/ Mary E. McAlister Mary E. McAlister LIBERTY COUNSEL P.O. Box Lynchburg, VA Tel. (434) Attorneys for Amici 26

33 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 27

34 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, /s/ Mary E. McAlister Mary E. McAlister 28