Pittsburgh is unconstitutionally prohibiting pro-life speech on the public sidewalk, according to an amici curiae (“friends of the court”) brief filed by the Thomas More Society in Bruni et al v. City of Pittsburgh et al. The brief, filed with the United States Court of Appeals for the Third Circuit in Philadelphia, supports a group of pro-life sidewalk counselors who filed a lawsuit challenging the constitutionality of Pittsburgh’s 15-foot buffer zone ordinance, which strangles pro-life speech by prohibiting picketing, congregating or demonstrating outside of abortion clinic entrances. This is the third time this case has been heard by the Third Circuit Court of Appeals.
The Thomas More Society’s brief, filed on behalf of Sidewalk Advocates for Life and the Pro-Life Action League, argues that the ordinance clearly “draws distinctions based on the message a speaker conveys” and therefore is a content-based violation of free speech. It argues that the lower court’s decision is erroneous because it was primarily based upon Hill v. Colorado, a 2000 decision of the United States Supreme Court that has since been superseded by more recent Supreme Court decisions.
Specifically, the Thomas More Society’s brief cites the Supreme Court’s 2014 McCullen v. Coakley decision which declared Massachusetts’s 35-foot buffer zone around abortion clinics there to be a violation of the Free Speech Clause of the First Amendment. It also cites the Reed v. Town of Gilbert 2015 decision by the high court holding that laws targeting speech based on content are unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve “compelling state interests.”
Thomas Olp, Thomas More Society attorney, explained the relevance of the content-restrictions in the buffer zone law. “Pittsburgh’s buffer zone ordinance bans picketing and demonstrating, which are forms of advocacy or protest. Yet the law allows non-advocacy speech, including panhandling and even “barking”, for example, offering information about a nearby bar or restaurant discount. The ordinance draws a distinction between advocacy and non-advocacy speech and therefore it defines regulated speech by its ‘function or purpose,’ which the Supreme Court has said is a form of content-based regulation. This banning of protest, while allowing non-advocacy speech, makes the buffer zone law unconstitutional.”
“There is additional evidence that the ordinance is discriminatory. The legislative history shows it was enacted to curtail pro-life speakers, i.e., ‘those who would counsel against’ abortion. Pittsburgh does not prohibit people from talking about animal cruelty outside of steak houses or stores that sell fur coats. This discriminatory attempt to silence pro-life advocacy is unacceptable, as pro-life speech is expression on public issues and therefore rests on the highest rung in the hierarchy of First Amendment values. It is a restriction on the public sidewalk, which for time immemorial has been the venue for public debate. The government simply has no power to ban such speech,” added Olp.
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This is the third time this case has been heard by the Third Circuit Court of Appeals. The first ruling declared the ordinance unconstitutional “overkill” because it created both a buffer zone around an abortion clinic entrance and a moving bubble zone around each abortion clinic client. Pittsburgh then eliminated the bubble zone and kept the buffer zone. In the second appeal, the decision of the lower court to uphold the amended ordinance was reversed because the Court of Appeals did not believe it was “narrowly tailored” to serve “compelling state interests” as defined by the Supreme Court.
Read the Thomas More Society’s Brief of Amici Curiae Sidewalk Advocates for Life and the Pro-Life Action League Supporting Appellants and Seeking Reversal, filed on behalf of Sidewalk Advocates for Life and the Pro-Life Action League, on April 20, 2018, with the United States Court of Appeals for the Third Circuit in Bruni et al v. City of Pittsburgh et al here.