Broad support for US Supreme Court to reject Pittsburgh’s censorship zones

WASHINGTON – A diverse array of groups, 17 states, and 97 members of Congress submitted friend-of-the-court briefs with the U.S. Supreme Court this week asking it to weigh in on a Pittsburgh, Pennsylvania, censorship-zone law similar to a Massachusetts law the high court struck down in 2014.

The law at issue in Bruni v. City of Pittsburgh prohibits speech and advocacy—including prayer—in painted zones outside medical facility entrances. The city chose to paint and enforce such censorship zones on the sidewalk outside only two facilities in the entire metropolitan area—Pittsburgh’s two abortion clinics—and banned face-to-face conversations by pro-life sidewalk counselors only. In March, Alliance Defending Freedom attorneys, who represent five sidewalk counselors challenging the law, asked the Supreme Court to take the case.

“The right to free speech is for everyone, not just those in power,” said ADF Senior Counsel and Vice President of Appellate Advocacy John Bursch. “As the briefs filed with the Supreme Court rightly explain, the government can’t silence speakers just because it doesn’t like what they have to say. Pittsburgh’s mayor made clear that the ban’s purpose was to prevent women interested in abortions from hearing messages of hope, encouragement, and true choice. That’s simply not constitutional.”

Recognizing the constitutional problems with such a ban in light of the 2014 Supreme Court ruling in McCullen v. Coakley, the U.S. Court of Appeals for the 3rd Circuit last year claimed to narrow the law to say that the ban doesn’t apply to sidewalk counseling, only prayer or standing quietly while holding a sign or wearing buttons. It then upheld the ban—contrary to what it ruled the first time it considered Pittsburgh’s law six years ago, when the same court observed that “the Ordinance imposes the same kind of burden on speech” as one the Supreme Court struck down in McCullen.

“The problem with the 3rd Circuit reinterpreting Pittsburgh’s law in order to save it, rather than rule against it for the obvious constitutional problems the court saw, is that the ruling does not bind local officials or state courts. Pittsburgh remains free to engage in the very censorship that the Supreme Court held unconstitutional just six years ago,” said ADF Senior Counsel Kevin Theriot, who argued the case before the 3rd Circuit.

“The Third Circuit disregarded the City of Pittsburgh’s interpretation of its own buffer-zone ordinance, and…adopted a narrower construction with weak grounding in the text that neither party advanced,” the brief filed by the states explains. “The court below thus strayed from constitutional avoidance into effectively rewriting local law.”

Members of Congress note in their brief that the Pittsburgh ordinance “targets and primarily impacts pro-life speech. Indeed, the ordinance’s sponsor confessed that the ordinance aimed to ‘protect[] the listen[er] from unwanted communication.’ Unsurprisingly, that ‘unwanted communication’ concerns only one topic: abortion…. The City of Pittsburgh may not prohibit sidewalk counselors from sharing their peaceful, prolife message simply because the City or the listeners dislike that speech.”

Eleanor McCullen, one of the pro-life sidewalk counselors who won their case at the Supreme Court in 2014, also filed a brief opposing Pittsburgh’s law: “In McCullen, the Court…unanimously concluded that buffer-zone ordinances violate the First Amendment by choking off sidewalk counselors’ quiet expressions of support to women open to information about abortion alternatives…. In an act of viewpoint discrimination far more extreme than the law at issue in McCullen, the [Pittsburgh] ordinance, and the buffer zones it creates, forbid sidewalk counselors from conversing with consenting pregnant women while permitting wide swaths of other conversation to continue. This sort of differential treatment is repugnant to the First Amendment and has iced the expression of Pittsburgh’s sidewalk counselors who (rightly) fear hefty fines and the possibility of jail time should they engage in constitutionally guaranteed expression too close to the City’s abortion clinics.”

ADF 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.

Lawrence G. Paladin, Jr., one of more than 3,100 attorneys allied with ADF, is serving as local counsel in the case.

Alliance Defending Freedom is an alliance-building, non-profit legal organization that advocates for the right of people to freely live out their faith.