Constitutional Law - Freedom of Speech - Third Circuit Strikes Down Prophylactic Regulations Governing Speech Surrounding Health Care Facilities Providing Abortions

Article excerpt

Courts must make difficult choices when significant government interests conflict with free speech rights. One aspect of this debate concerns regulations restricting expression outside of abortion-providing facilities. The Supreme Court has upheld several regulations establishing prophylactic "zones" around such facilities, (1) recognizing "unquestionably legitimate" interests in "unimpeded access to health care facilities and the avoidance of potential trauma to patients associated with confrontational protests." (2) Recently, in Brown v. City of Pittsburgh, (3) the Third Circuit struck down a regulatory scheme that barred demonstrating and approaching other individuals within two prophylactic zones surrounding abortion clinics. Coupling the fact that this regulation placed only minor restrictions on speech with a realization that balancing public safety interests against First Amendment rights cannot be achieved by mere judicial reasoning indicates that the Brown court erred in failing to show greater deference to the city council's determinations. As a result, judicial ideology undesirably displaced democratic processes.

"In response to concerns about aggressive protests and confrontations at health care facilities providing abortions," (4) Pittsburgh adopted Ordinance No. 49, (5) which created two types of "zones" outside such sites. The one-hundred-foot "bubble zone" around a facility entrance prohibited an individual from approaching "within eight feet ... of [another] person, unless such other person consent[ed], for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education or counseling with such other person." (6) The bubble zone did not prevent leaflet distributors from merely standing near the path of an oncoming pedestrian. (7) The "buffer zone" established a fifteen-foot area surrounding facility entrances within which it was illegal to "congregate, patrol, picket or demonstrate." (8) Mary Kathryn Brown filed suit against the City seeking to prevent enforcement of the Ordinance due to its interference with her "sidewalk counseling" efforts against abortions. (9)

The district court denied Brown's motion for a preliminary injunction and with minimal analysis found the Ordinance facially valid. (10) After Brown's appeal, the Third Circuit reversed in part and remanded. (11) Writing for the panel, Chief Judge Scirica (12) noted that "[t]his case implicate[d] fundamental First Amendment interests" and that it presented the difficulty of "operationaliz[ing] First Amendment doctrine in terms of metes and bounds." (13) The court held that while neither of the restrictions posed a constitutional problem when considered individually, their combination violated the First Amendment. (14)

Declaring that the bubble zone was "materially indistinguishable" from that upheld by the Supreme Court in Hill v. Colorado, (15) the panel consequently recounted the Hill analysis. (16) It first considered whether the restriction was content-based or content-neutral, (17) noting that "[t]he principal inquiry in determining content neutrality ... is whether the government has adopted a regulation of speech because of disagreement with the message it conveys." (18) The court looked to Hill's holding that the identical Colorado regulation's "goals of protecting access to medical facilities and providing clear guidelines to police are 'unrelated to the content of the demonstrators' speech,' its 'restrictions apply equally to all demonstrators, regardless of viewpoint, and the statutory language makes no reference to the content of the speech.'" (19) Thus the panel classified this bubble zone, like that in Hill, as content-neutral. (20)

The standard of review for content-neutral time, place, and manner regulations requires that they, first, be "narrowly tailored"; second, "serve a significant governmental interest"; and third, "leave open ample alternative channels for communication of the information. …