Pittsburgh enacted a law that bans speech and advocacy—even prayer—in painted zones outside medical facility entrances. The city then chose to paint such zones outside only two facilities in the entire metropolitan area, Pittsburgh’s two abortion clinics, and enforced the ban against pro-life speech only.
When the city leaders enacted the ordinance, Pitts. Code § 623.04, they were clearly aiming to inhibit any pro-life message from being communicated within the 15-foot buffer zone. It has been the city’s understanding and intention that this ordinance prohibit pro-life speech, including that of sidewalk counselors and those handing literature informing pregnant women of resources available for them and their children. This is true even though speech on other subjects has been permitted in the zone.
In Pittsburgh, authorities suggested that keeping a distance of 6 feet from others should help keep one safe from COVID-19, a highly contagious disease. However, the city requires no less than two and a half times that distance to be “safe” from pro-life speech. The city suggests 6 feet of separation for COVID-19 “when possible.” But the 15-foot buffer zone for pro-life speech is enforceable by a city ordinance authorizing fines and imprisonment.
Alliance Defending Freedom attorneys filed the lawsuit against Pittsburgh in 2014 on behalf of pro-life individuals who haven’t been allowed to speak or engage in sidewalk counseling within the zones. The city banned their speech in the zone while allowing others to talk about the weather, sports, or practically anything else. Pittsburgh Mayor Bill Peduto has been enforcing the law, which he voted for as a city councilman in 2005.
In 2014, the U.S. Court of Appeals for the Third Circuit rightly observed that “the Ordinance imposes the same kind of burden on speech” as one the U.S. Supreme Court struck down in McCullen v. Coakley and then sent the case back to the District Court. But in 2019, after the case again rose to the Third Circuit, the court issued an opinion that declined to declare the law unconstitutional. Instead, the U.S. Court of Appeals refused to rule against the city, essentially rewriting the ordinance to say that it did not apply to sidewalk counselors, even though the city has been using it for years to silence them. The court also concluded that it was constitutional to ban prayer and standing quietly while holding a sign or wearing buttons within the buffer zone.
As the petition filed by Alliance Defending Freedom with the high court in Bruni v. City of Pittsburgh explains, “federal courts cannot rewrite state laws” to save them from unconstitutionality, and “the Third Circuit’s narrowing construction is ineffective because city officials and state courts are not bound by it, and they can still hold sidewalk counselors criminally liable in spite of it.”
Already in place in Pittsburgh are ordinances making it illegal to block entrances and exits. In Pittsburgh, protests are permitted on the public sidewalks right outside of a church building, provided the protestors do not block entrances for those seeking to enter or exit. But in this egregious violation of First Amendment freedoms, and in a demonstration of animus towards pro-life citizens, Pittsburgh forces those advocating for loving options for the mother and child in front of abortion clinic to be a full 15 feet away.
If the city had a problem with sidewalk counselors undermining safety or access (which the evidence showed it did not), it could have employed those existing laws — or if that failed — sought a narrow injunction applicable to persons found guilty of violating laws that prohibit blocking entrances and exits. Instead, the city has used a broadly worded ordinance to achieve its goal of suppressing the First Amendment free speech rights of sidewalk counselors because of the content of their speech — due to its stated goal of “protecting the listen[er] from unwanted communication” outside of abortion clinics.
In Pittsburgh, if you’re protesting abortion, you must be 15 feet away. If you’re trying to be safe from a highly contagious disease that caused a strict international shutdown, 6 feet of distance is fine. Who knew that a grandmother praying while wearing a “love them both” t-shirt would be more dangerous than the risk of sharing or contracting COVID-19.
The Supreme Court is determining whether to hear this case.
Our Role in this Case
Independence Law Center and one of its allied attorneys, Andrea Shaw, represented an Amicus Curiae party, the Pro-Life Union of Greater Philadelphia and its team of roughly 150 sidewalk counselors, by filing an amicus brief that explains the important free speech principles at stake and asks the Supreme Court to hear the Bruni case. Alliance Defending Freedom represented the Pittsburgh sidewalk counselors who are challenging the Pittsburgh ordinance.