586 F.3d 263 (3rd Cir. 2009), 08-1819, Brown v. City of Pittsburgh

Docket Nº:08-1819.
Citation:586 F.3d 263
Opinion Judge:SCIRICA, Chief Judge.
Party Name:Mary Kathryn BROWN, Appellant v. CITY OF PITTSBURGH; Pittsburgh City Council; Luke Ravenstahl, in his official capacity as Mayor of the City of Pittsburgh.
Attorney:David A. Cortman, Esquire (Argued), Joshua B. Bolinger, Esquire, Alliance Defense Fund, Lawrenceville, GA, Benjamin W. Bull, Esquire, Jeremy D. Tedesco, Esquire, Alliance Defense Fund, Scottsdale, AZ, Lawrence G. Paladin, Jr., Esquire, Pittsburgh, PA, for Appellant. Yvonne S. Hilton, Esquire (Arg...
Judge Panel:Before: SCIRICA, Chief Judge, AMBRO and SMITH, Circuit Judges.
Case Date:October 30, 2009
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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586 F.3d 263 (3rd Cir. 2009)

Mary Kathryn BROWN, Appellant


CITY OF PITTSBURGH; Pittsburgh City Council; Luke Ravenstahl, in his official capacity as Mayor of the City of Pittsburgh.

No. 08-1819.

United States Court of Appeals, Third Circuit.

October 30, 2009

Argued Jan. 29, 2009.

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David A. Cortman, Esquire (Argued), Joshua B. Bolinger, Esquire, Alliance Defense Fund, Lawrenceville, GA, Benjamin W. Bull, Esquire, Jeremy D. Tedesco, Esquire, Alliance Defense Fund, Scottsdale, AZ, Lawrence G. Paladin, Jr., Esquire, Pittsburgh, PA, for Appellant.

Yvonne S. Hilton, Esquire (Argued), Michael E. Kennedy, Esquire, George R. Specter, Esquire, City of Pittsburgh Law Department, Pittsburgh, PA, for Appellees.

Steven W. Fitschen, Esquire, The National Legal Foundation, Virginia Beach, VA, for Amicus Curiae-Appellant, The National Legal Foundation.

Before: SCIRICA, Chief Judge, AMBRO and SMITH, Circuit Judges.


SCIRICA, Chief Judge.

This case requires us to delineate, in a quite literal sense, the boundaries of the First Amendment's protection of speech. In response to concerns about aggressive protests and confrontations at health care facilities providing abortions, the City of Pittsburgh enacted Ordinance No. 49 in December 2005. Pittsburgh, Pa., Code tit. 6, §§ 623.01-623.07. The Ordinance established two different kinds of zones around hospitals, medical offices, and clinics. Within the " buffer zone," which extends " fifteen feet (15') from any entrance to the hospital and or [sic] health care facility," " [n]o person or persons shall knowingly congregate, patrol, picket or demonstrate." § 623.04. The " bubble zone" encompasses " the public way or sidewalk area within a radius of one hundred feet (100') from any entrance door to a hospital and/or medical office/clinic." § 623.03. Within this one-hundred-foot zone, " [n]o person shall knowingly approach another person within eight feet (8') of such person, unless such other person consents, for the purpose of passing a leaftlet or handbill to, displaying a sign to, or engaging in oral protest, education or counseling with such other person." Id.

Plaintiff Mary Kathryn Brown brought suit against the City 1 under 42 U.S.C. § 1983, contending the Ordinance violated the United States and Pennsylvania constitutions, as well as a Pennsylvania statute. She also moved for a preliminary injunction preventing the City from enforcing the Ordinance against her. The District Court denied the motion, finding the Ordinance facially valid and that Brown had failed to show that the City had applied-or would apply-it in an unlawful manner. Relying on its reasoning in the opinion denying the preliminary injunction, the District Court also dismissed several counts of Brown's Complaint. Brown appeals

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from both orders. We will reverse in part, vacate in part, dismiss in part, and remand for further proceedings consistent with this opinion.


As the Ordinance itself attests, the Pittsburgh City Council sought to balance two important competing interests, " ensur[ing] that patients have unimpeded access to medical services while ensuring that the First Amendment rights of demonstrators to communicate their message to their intended audience is not impaired." Pittsburgh, Pa., Code tit. 6, § 623.01. Noting that, before the Ordinance, the Pittsburgh Police had " consistently" been required " to mediate the disputes between those seeking medical counseling and treatment and those who would counsel against their actions," the Council intended the Ordinance to establish " clear guidelines for activity in the immediate vicinity of the entrances to Health Care Facilities," in order to allow " a more efficient and wider deployment" of policing services and to " help also reduce the risk of violence and provide unobstructed access to Health Care Facilities." Id. During hearings on the proposed Ordinance, the Council heard public comments complaining of physical violence and verbal harassment at medical facilities providing abortions and claiming the Ordinance was needed to prevent future harm.2

Brown is a registered nurse who works in Pittsburgh, Pennsylvania. For more than fifteen years, she has spent countless hours engaged in " sidewalk counseling" 3 and leafletting outside three medical services facilities covered by the Ordinance, attempting to dissuade women from undergoing abortions, warning them of the procedure's ostensible dangers, and encouraging them to consider alternatives. Brown testified that she believes a conversational, sympathetic approach is the most effective, so in delivering her message, she refrains from yelling or using amplification devices. Before the Ordinance's enactment, Brown had stood alongside the facilities' entrances, or walked alongside women approaching the facilities, while attempting to distribute leaflets and engage in conversation.

Since the Ordinance took effect, Brown claims she has been effectively prevented from communicating her message. The buffer zone prevents her from distributing leaflets next to the facilities' entrances, or from engaging in any advocacy within fifteen feet of those entrances. She claims that because of the bubble zone, she must either yell at people from a distance of eight feet-often while walking backward or being forced off the sidewalk into the street-or stand still and speak to them in the one or two seconds it takes them to

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walk by.4 According to Brown, women have not taken a single leaflet from her since the bubble zone foreclosed her ability to approach or walk alongside them.

Brown has never been arrested for violating the Ordinance. On two occasions police officers warned her to abide by its terms. The details of the first encounter are disputed by the parties, but Brown claims the police officer manifested an intent to enforce the Ordinance selectively, applying its restrictions to her anti-abortion expression but not her anti-pornography advocacy. Brown cannot identify the officer involved in the second incident but asserts he enforced the Ordinance against her while ignoring a clinic worker who had allegedly engaged in prohibited conduct. Brown also recounts other incidents in which clinic escorts, who assist women entering the facilities, have allegedly violated the Ordinance by engaging in forbidden activities within the fifteen-foot buffer zone and approaching well within eight feet of Brown in the bubble zone, without obtaining her consent, to denounce her pro-life message. Brown asserts that in none of these cases did the police enforce the Ordinance against the escorts.

In her Complaint, Brown claims the Ordinance violates rights guaranteed her by the U.S. and Pennsylvania Constitutions-specifically, the right to free speech and freedom of the press (pertinent to the distribution of pamphlets), U.S. Const. amend. I; Pa. Const. art. I, § 7, the right to due process, U.S. Const. amend. XIV; Pa. Const. art. I, § 26, the right to equal protection, U.S. Const. amend. XIV; Pa. Const. art. I, § 26, and the right to religious freedom, U.S. Const. amend. I; Pa. Const. art. I, § 3-as well as by Pennsylvania's Religious Freedom Protection Act, 71 Pa. Stat. Ann. §§ 2401-2407. Although the Complaint attacks the Ordinance facially and as applied, Brown's preliminary injunction motion was grounded only on the as-applied challenge. Nevertheless, in the course of denying her motion, the District Court ruled the Ordinance facially valid. At oral argument on appeal, Brown's counsel explained that because both parties had had an opportunity to brief the facial challenge fully on appeal, Brown was content for us to decide that issue.5



We generally review a district court's denial of a preliminary injunction for abuse of discretion but review the underlying factual findings for clear error and examine legal conclusions de novo.6 McNeil Nutritionals, LLC v. Heartland Sweeteners, LLC, 511 F.3d 350, 357 (3d Cir.2007). Where, as here, " First Amendment rights are at issue," we have modified that standard. Child Evangelism Fellowship of N.J. v. Stafford Twp. Sch. Dist., 386 F.3d 514, 524 (3d Cir.2004). " Although we normally will not disturb the factual findings supporting the disposition of a preliminary injunction motion in the

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absence of clear error, we have a constitutional duty to conduct an independent examination of the record as a whole when a case presents a First Amendment claim." Id.

We first consider Brown's facial challenge.

As a general matter this court " will not invalidate a statute on its face simply because it may be applied unconstitutionally, but only if it cannot be applied consistently with the Constitution." ... Thus, plaintiff['s] facial challenge will succeed only if [the statute in question] " is unconstitutional in every conceivable application, or ... it seeks to prohibit such a broad range of protected conduct that it is constitutionally ‘ overbroad.’ "

Hohe v. Casey, 956 F.2d 399, 404 (3d Cir.1992) (quoting Robinson v. New Jersey, 806 F.2d 442, 446 (3d Cir.1986); Members of the City Council v. Taxpayers for Vincent, 466 U.S. 789, 796, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984)); accord McGuire v. Reilly (McGuire I), 260 F.3d 36, 47 (1st Cir.2001). This standard is consistent with the Supreme Court's declaration in United States v. Salerno that a successful facial challenge requires the challenger to " establish that no set of circumstances exists under which the Act would be valid." 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). More recently, the Court has suggested that the bar may be slightly lower. Wash. State...

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