Reilly v. City of Harrisburg

• Decision Date: 31 August 2016
• Docket Number: Civ. No. 1:16-CV-0510
• Citation: 205 F.Supp.3d 620
• Parties: Colleen REILLY, Becky Biter, and Rosalie Gross, Plaintiffs, v. CITY OF HARRISBURG, Harrisburg City Council, and Eric Papenfuse, in his official capacity as Mayor of Harrisburg, Defendants.
• Court: U.S. District Court — Middle District of Pennsylvania

205 F.Supp.3d 620

Colleen REILLY, Becky Biter, and Rosalie Gross, Plaintiffs,

v.CITY OF HARRISBURG, Harrisburg City Council, and Eric Papenfuse, in his official capacity as Mayor of Harrisburg, Defendants.

Civ. No. 1:16-CV-0510

United States District Court, M.D. Pennsylvania.

Signed August 31, 2016

Horatio G. Mihet, Jonathan David Christman, Roger K. Gannam, Liberty Counsel, Orlando, FL, Rick J. Hecker, Clymer, Musser & Conrad, P.C., Lancaster, PA, for Plaintiffs.

Frank J. Lavery, Jr., Jessica S. Hosenpud, Joshua M. Autry, Lavery Faherty, Harrisburg, PA, for Defendants.

MEMORANDUM

SYLVIA H. RAMBO, United States District Judge

In this First Amendment action, Plaintiffs seek to strike down as unconstitutional a city ordinance requiring demonstrators to remain a certain distance from the entrances, exits, and driveways of health care facilities. Presently before the court are Plaintiffs' motion to preliminarily enjoin the enforcement of the ordinance, as well as Defendants' motion to dismiss Plaintiffs' claims. For the reasons stated herein, Plaintiffs' motion for a preliminary injunction will be denied, and Defendants' motion to dismiss will be granted in part and denied in part.

I. Factual and Procedural Background

Plaintiffs are individual citizens of Pennsylvania who regularly provide what they euphemistically refer to as "sidewalk counseling" outside of two health care facilities in Harrisburg, Pennsylvania that perform, among other procedures, abortions. (Doc. 1, ¶¶ 57-62.) Plaintiffs engage in leafletting, prayer, and individual conversations with women who are attempting to enter the health care facilities in an effort to dissuade them from obtaining abortions.¹ (Id. at ¶¶ 62-63.)

On November 13, 2012, Defendant Harrisburg City Council adopted Ordinance No. 12–2012 entitled "Interference With Access To Health Care Facilities (the "Ordinance")," which became effective on November 23, 2012. (Id. at ¶ 17.); see also Harrisburg, Pa. Mun. Code § 3-371 (2015), http://ecode360.com/13739606. The Ordinance's stated purpose is "to promote the health and welfare of [Harrisburg] residents and visitors to [Harrisburg]'s health care facilities, as well as the health and welfare of those who may wish to voice their constitutionally protected speech outside of such health care facilities." Harrisburg, Pa. Mun. Code, § 3-371.2C. The Ordinance makes it illegal for individuals, other than police or emergency personnel performing official functions, or employees of health care facilities that are assisting patients to enter or exit the facilities, to "knowingly congregate, patrol, picket or demonstrate in a zone extending 20 feet from any portion of an entrance to, exit from, or driveway of a health care facility." Id. at § 3-371.4A.

On March 24, 2016, Plaintiffs filed a complaint alleging, inter alia , that the "buffer zones" created by the Ordinance make it impossible for them to effectively counsel or distribute literature in opposition to abortions at the Hillcrest Women's Health Center located on North Front Street (the "Hillcrest Clinic"), and the Harrisburg Medical Center on North Second Street, which is operated by Planned Parenthood (the "Planned Parenthood Clinic"), because the buffer zones cover much of the sidewalk surrounding the clinics and are not physically marked. (Doc. 1, ¶¶ 40-41, 44, 50, 56.) Plaintiffs argue that the Ordinance violates their First Amendment rights to freely speak, exercise their religion, and assemble, as well as their Fourteenth Amendment due process and equal protection rights. On March 25, 2016, Plaintiffs filed a motion to preliminarily enjoin the Ordinance due to the irreparable harm it causes to their First Amendment rights. (See Doc. 3.) In addition to opposing Plaintiffs' motion for a preliminary injunction, on April 26, 2016, Defendants filed a motion to dismiss for failure to state a claim. (Doc. 16.) Both motions have been fully briefed and are ripe for disposition.

II. Discussion

Plaintiffs have moved for a preliminary injunction of the enforcement of the Ordinance on the basis that they are being irreparably harmed by the Ordinance's unconstitutional abrogation of their First Amendment right to engage in protected speech in public fora. Specifically, Plaintiffs argue that the Ordinance is a content-based restriction on protected speech because it only prohibits anti-abortion speech, and that it does not pass strict scrutiny because it is not narrowly tailored to serve a compelling state interest. Defendants have both opposed Plaintiffs' motion for a preliminary injunction and filed a motion to dismiss, arguing that the Ordinance is content-neutral and narrowly tailored to serve a significant government interest.

Plaintiffs expressly assert both facial and as-applied challenges to the Ordinance under the Free Speech, Free Exercise, and Free Assembly clauses of the First Amendment, as well as the Due Process and Equal Protection Clauses of the Fourteenth Amendment.² While an as-applied challenge aims at correcting violations of the named plaintiffs' individual rights, "[a] facial challenge ‘seeks to vindicate not only [a plaintiff's] own rights, but those of others who may also be adversely impacted by the statute in question.’ " Bruni v. City of Pittsburgh , 824 F.3d 353, 362 (3d Cir.2016) (quoting CMR D.N. Corp. v. City of Phila. , 703 F.3d 612, 623 (3d Cir.2013) ) (alterations in original). A statute may be invalidated on its face under the First Amendment only "if a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep." United States v. Stevens , 559 U.S. 460, 473, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010). Despite the distinction between facial and as-applied challenges, the court must still consider "facial challenges simply by applying the relevant constitutional test to the challenged statute, without trying to dream up whether or not there exists some hypothetical situation in which application of the statute might be valid." Bruni , 824 F.3d at 363 (citing Doe v. City of Albuquerque , 667 F.3d 1111, 1124–25 (10th Cir.2012) ). Thus, "[t]he relevant constitutional test...remains the proper inquiry," Bruni , 824 F.3d at 363 (citing Doe , 667 F.3d at 1127 ), as the distinction goes to the remedy sought rather than what must be pleaded to state a claim, see Citizens United v. FEC , 558 U.S. 310, 331, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010).

Because the disposition of both motions turns on the merits analysis of Plaintiffs' First Amendment claims, the court must address whether Plaintiffs have stated a free speech claim under the less rigorous 12(b)(6) standard before deciding if Plaintiffs have met the considerably more onerous burden required for the granting of a preliminary injunction.³ As a threshold matter applicable to both motions, however, the court must determine the level of scrutiny to apply to the Ordinance, which turns on whether its restrictions on speech are content-based or content-neutral.

A. Content Neutrality

Plaintiffs argue that the United States Supreme Court's holding in Reed v. Town of Gilbert , ––– U.S. ––––, 135 S.Ct. 2218, 2226, 192 L.Ed.2d 236 (2015), requires that strict scrutiny be applied to the Ordinance because it discriminates based upon content by only prohibiting certain types of speech and "defining regulated speech by its function or purpose."⁴ Id. at 2227. Specifically, Plaintiffs argue that by making it illegal for individuals to congregate, patrol, picket or demonstrate within the restrictive zone, the Ordinance limits speech both by type and its intended purpose. Defendants argue in response that the Ordinance is content-neutral because it does not regulate what speech may occur, only where it may occur, does not prefer one viewpoint over another, and its purpose of protecting patients' access to health care facilities is unrelated to the content of speech.

A regulation restricting speech is content-based if it: (1) "define[s] speech by particular subject matter"; (2) "define[s] regulated speech by its function or purpose"; or (3) cannot be justified "without reference to the content of the regulated speech" or was "adopted by the government ‘because of disagreement with the message [the speech] conveys.’ " Reed , 135 S.Ct. at 2227 (citation omitted). "A law that is content-based on its face is subject to strict scrutiny regardless of the government's benign motive, content-neutral justification, or lack of ‘animus toward the ideas contained’ in the regulated speech." Id. at 2228 (quoting Cincinnati v. Discovery Network, Inc. , 507 U.S. 410, 429, 113 S.Ct. 1505, 123 L.Ed.2d 99 (1993) ). Under strict scrutiny, the challenged law is "presumptively unconstitutional and may be justified only if the government proves that [it is] narrowly tailored to serve compelling state interests," Bruni , 824 F.3d at 363 (citing Reed , 135 S.Ct. at 2226 ), and the content-based restriction must be "the least restrictive or least intrusive means of serving the government's interests," McCullen v. Coakley , ––– U.S. ––––, 134 S.Ct. 2518, 2535, 189 L.Ed.2d 502 (2014).

On the other hand, "[a] regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others." Ward v. Rock Against Racism , 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) (citing Renton v. Playtime Theatres, Inc. , 475 U.S. 41, 47–48, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986) ). Intermediate scrutiny applies to such content-neutral restrictions, wherein the challenged law must be "narrowly tailored to serve a significant governmental interest." Madsen v. Women's Health Ctr., Inc. , 512 U.S. 753, 764, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994). Under intermediate scrutiny, the restriction on speech need not be the least restrictive means available, but must "leave open ample alternative channels for communication." Ward , 491 U.S. at...