No Court of Appeals opinions in our area today, but via the Star Tribune we learn of a Third Circuit decision striking down a Pittsburgh clinic-protest ordinance. What makes this opinion stand out is that Pittsburgh really wasn’t breaking new ground, just combining two restrictions (a 15-foot entrance buffer and a 100-foot area with an 8-foot “bubble” zone around people entering a facility) both previously upheld by the U.S. Supreme Court. The Third Circuit re-affirms the constitutionality of each restriction, standing alone. The Court found the combination to be too much, though.
How? First, the Court decided that either zone would do on its own, which seems like a failure of persuasion on the City’s part. Key to making any speech restriction is defining exactly why the restriciton is necessary. Saying that two “approved” restrictions are complementary apparently isn’t enough – the whole scheme must be justified. The other issue with the combination is just how complementary the zones are. The Court found that, despite being content-neutral and individually valid, the combination left certain kinds of speech – leafletting in particular – almost impossible to practice. Good choice by the challenging groups in picking a leafletter as their representative plaintiff. The existence of other “channels” of speech is often the saving grace of any speech or protest regulation. It just so happens in this area that the Supreme Court has positioned these particular “channels” opposite each other in past opinions: the ability to pass out literature by a clinic door saved the “bubble” regulations in Colorado; both “buffer” restriction precedents (arising from court injunctions, not legislation) had “bubble” provisions that were struck down. Maybe the thought here was that deference to legislation might allow the combination; at this point the answer is no, at least not with a lot more work put into justifying the combination.
As the story notes, the City heads back to district court, where it can still avoid an injunction by picking one of the zones and scrapping the other. Even so, the plaintiff has probably secured a place as a “prevailing party,” which is sure to keep the lawyers happy.