Sisters for Life, Inc. v. Louisville-Jefferson Cnty.

• Decision Date: 21 December 2022
• Docket Number: s. 22-5150/22-5151
• Parties: SISTERS FOR LIFE, INC., Angela Minter, and Kentucky Right to Life Association, Inc. (22-5150); Edward Harpring and Mary Kenney (22-5151), Plaintiffs-Appellants, v. LOUISVILLE-JEFFERSON COUNTY, KY Metro Government (22-5150 & 22-5151); Greg Fischer, Mayor, Erika Shields, Chief of Police, Louisville Metro Police Department, and Mike O'Connell (22-5150), Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

56 F.4th 400

SISTERS FOR LIFE, INC., Angela Minter, and Kentucky Right to Life Association, Inc. (22-5150); Edward Harpring and Mary Kenney (22-5151), Plaintiffs-Appellants,

v.LOUISVILLE-JEFFERSON COUNTY, KY Metro Government (22-5150 & 22-5151); Greg Fischer, Mayor, Erika Shields, Chief of Police, Louisville Metro Police Department, and Mike O'Connell (22-5150), Defendants-Appellees.

Nos. 22-5150/22-5151

United States Court of Appeals, Sixth Circuit.

Argued: December 8, 2022

Decided and Filed: December 21, 2022

ARGUED: Christopher Wiest, CHRIS WIEST, ATTY AT LAW, PLLC, Crestview Hills, Kentucky, for Appellants in 22-5150. Francis J. Manion, AMERICAN CENTER FOR LAW & JUSTICE, New Hope, Kentucky, for Appellants in 22-5151. Natalie Johnson, JEFFERSON COUNTY ATTORNEYS’ OFFICE, Louisville, Kentucky, for Appellees. ON BRIEF: Christopher Wiest, CHRIS WIEST, ATTY AT LAW, PLLC, Crestview Hills, Kentucky, Thomas Bruns, BRUNS CONNELL VOLLMAR & ARMSTRONG, Cincinnati, Ohio for Appellants in 22-5150. Francis J. Manion, Geoffrey R. Surtees, AMERICAN CENTER FOR LAW & JUSTICE, New Hope, Kentucky, Edward L. White III, AMERICAN CENTER FOR LAW & JUSTICE, Ann Arbor, Michigan, for Appellants in 22-5151. Natalie Johnson, John F. Carroll, JEFFERSON COUNTY ATTORNEYS’ OFFICE, Louisville, Kentucky, for Appellees. Matthew F. Kuhn, Brett R. Nolan, Daniel J. Grabowski, OFFICE OF THE KENTUCKY ATTORNEY GENERAL, Frankfort, Kentucky, for Amicus Curiae in 22-5150.

Before: SUTTON, Chief Judge; GRIFFIN and NALBANDIAN, Circuit Judges.

SUTTON, Chief Judge.

Sisters for Life, several individuals, and another pro-life organization wish to offer leaflets and compassionate, if sometimes unwelcome, speech to women entering abortion clinics in Louisville, Kentucky. But Louisville-Jefferson County limited their speaking and pamphleteering in buffer zones near the entrance of each clinic. Because these limits likely violate the First Amendment, see McCullen v. Coakley , 573 U.S. 464, 497, 134 S.Ct. 2518, 189 L.Ed.2d 502 (2014), we preliminarily enjoin them.

I.

Edward Harpring, Mary Kenney, Angela Minter, Kentucky Right to Life, and Sisters for Life (collectively, Sisters for Life) believe "that abortion takes the life of an innocent human being and is harmful to mothers." R.1 ¶ 19. They distribute pamphlets to, and try to engage with, women entering abortion clinics, hoping to persuade the women not to end their pregnancies. They focus "much or all" of their advocacy on women entering Louisville's EMW Women's Surgical Center. R.55 at 3.

Two types of protestors have visited EMW in the past. Some have vandalized property, blocked access to the Clinic, or committed other torts. The three individuals claim not to want anything to do with such protests, and indeed say they do not "protest" or "demonstrate" near EMW at all. R.1 ¶ 25. Instead, in "quiet, compassionate, non-threatening one-on-one conversation[s]," they try to convince EMW's patients "that there are lifesaving alternatives" to abortion and that they "will accompany the woman in whatever way she may need." Id. ¶ 22. They call this practice "sidewalk counseling." Id. ¶ 20.

The Louisville-Jefferson County law does two things. It first says that no one shall "knowingly obstruct, detain, hinder, impede, or block another person's entry to or exit from a healthcare facility." Louisville-Jefferson Ord. Code § 132.09(B)(1). No one objects to this prohibition on conduct.

The ordinance then creates a limitation on speech. It imposes a prophylactic ten-foot "buffer zone" around the entrance of any "healthcare facility" in the County and forbids any non-exempt individual from "knowingly enter[ing]" or "remaining ... within" it. Id. § 132.09(B)(2). The law defines "healthcare facility" to include "any institution" that provides medical services, including abortion clinics like EMW. Id. § 132.09(A). It says that the buffer zone extends "from the entrance of a healthcare facility to the closest adjacent sidewalk curb and 10 feet from side to side," and applies "during [a] facility's posted business hours." Id. § 132.09(B)(2). And it exempts from the buffer-zone rules four groups: "[p]ersons entering or leaving" a healthcare facility; "[p]ersons using the public sidewalk or street right-of-way adjacent to [a healthcare] facility solely for the purpose of reaching a destination other than such facility"; "municipal agents acting within the scope of their employment"; and "[e]mployees or agents of [a healthcare] facility acting within the scope of their employment." Id.

Sisters for Life sued the County and various county officials. It alleged that this restriction on sidewalk speech violated its rights under the First (and Fourteenth) Amendment's Free Speech Clause, and it sought to enjoin enforcement of the ordinance. The district court declined to issue a preliminary injunction, reasoning that the ordinance likely did not violate anyone's free-speech rights and that the other factors did not favor an injunction.

II.

Those seeking a preliminary injunction must meet several requirements. They must show a likelihood of success on the merits. They must show irreparable harm in the absence of the injunction. They must show that the balance of equities favors them. And they must show that the public interest favors an injunction. Winter v. Nat. Res. Def. Council , 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). In this case, as in many First Amendment cases, the key inquiry is the first one: Who is likely to prevail on the constitutional claim? Roberts v. Neace , 958 F.3d 409, 416 (6th Cir. 2020) (per curiam).

We review a district court's preliminary injunction decision for abuse of discretion and any fact findings for clear error. Mich. State AFL-CIO v. Schuette , 847 F.3d 800, 803 (6th Cir. 2017). Notably, neither set of parties sought an evidentiary hearing and neither claims that any material disputes of fact underlie this case. Mistakes of law by definition constitute an abuse of discretion. Law Off. of John H. Eggertsen P.C. v. Comm'r , 800 F.3d 758, 765 (6th Cir. 2015).

A.

"Congress shall make no law," the First Amendment says, "abridging the freedom of speech." The Fourteenth Amendment limits state and local governments in the same manner. See, e.g. , Manhattan Cmty. Access Corp. v. Halleck , ––– U.S. ––––, 139 S. Ct. 1921, 1928, 204 L.Ed.2d 405 (2019).

Both sets of parties build from the same free-speech scaffolding. They agree that, "because of their historic role as sites for discussion and debate," streets and sidewalks "occupy a special position in terms of First Amendment protection." McCullen , 573 U.S. at 476, 134 S.Ct. 2518. They agree that the ordinance restricts sidewalk expression, namely speech within the buffer zone. They agree that, if this restriction applies "without reference to [speech's] content," it must be narrowly tailored to serve a significant government interest. See Ward v. Rock Against Racism , 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). They agree that if the ordinance instead restricts expression based on its ideas or content, it must run the gauntlet of strict scrutiny—that is, it must be the least restrictive means to serve a compelling interest. See United States v. Grace , 461 U.S. 171, 177, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983). And they agree (or at least the County does not contest) that the ordinance would not survive strict scrutiny.

That leaves two key questions. Is the ordinance content neutral? If so, is the ordinance narrowly tailored?

Content neutral? McCullen faced a similar question in the context of a similar buffer-zone restriction outside abortion clinics in Massachusetts. 573 U.S. at 469, 134 S.Ct. 2518. The Court reasoned that the ordinance did not regulate speech based on its subject matter because it limited pro-life and pro-choice speech—in truth all speech—within the buffer zone. Id. at 479–84, 134 S.Ct. 2518. But the Court cautioned that an ordinance, even if neutral on its face, could become content based if the government enforced it selectively. Id. at 484–85, 134 S.Ct. 2518. That is not a new idea. We have long held that a regulation may be content based by its nature, or may become so when applied with "an unequal hand." Yick Wo v. Hopkins , 118 U.S. 356, 373–74, 6 S.Ct. 1064, 30 L.Ed. 220 (1886).

The question is whether yesterday's caution has become today's case. In a Rule 30(b)(6) deposition, a representative of the County admitted that he "[did] not believe the ordinance address[ed] ... [agents of EMW or other escorts] speaking to [clinic] patients" within the buffer zone. R.47 at 58. Consistent with that position, the County disclaims any plans to enforce the ordinance against escorts of women into the Clinic, even though they have discussed abortion-related topics in the buffer zone in non-neutral ways. See, e.g. , R.44 at 47–50 (escorts telling patients that the pro-life protestors are "liar[s]" and that patients should not "talk" or "listen to them"). If that's how the ordinance works—exempting pro-choice speakers while suppressing pro-life speakers—strict scrutiny would apply. McCullen , 573 U.S. at 484–85, 134 S.Ct. 2518 ; see Hoye v. City of Oakland , 653 F.3d 835, 849–52 (9th Cir. 2011) (similar). But we need not resolve the point because the ordinance fails narrow tailoring anyway, and at all events some of the claimants (Harpring and Kenney) have not argued that the ordinance is content based. That said, the district court on remand may wish to consider whether this evidence, or other evidence introduced at trial, amounts to proof of content or viewpoint discrimination in the County's enforcement of the ordinance.

Narrow tailoring? Even a content-neutral regulation of the time, place, and manner of speech still counts as a regulation of speech. That is not something this country lightly allows. To satisfy the First Amendment, a content-neutral regulation must be "narrowly tailored to serve a significant governmental...