Bench Memos

Law & the Courts

Censoring Pro-Life Speech Is Unconstitutional

The U.S. Supreme Court building in Washington, D.C. (Molly Riley/Reuters)

The First Amendment’s protection of free-speech rights is nearly as old as our nation. Opposition to this principle is older.

Overzealous government officials have often tried — and sometimes succeeded — in suppressing their opponents’ speech. In the Founding era, President John Adams and the Federalists censored Jeffersonians with the infamous Alien and Sedition Acts. During the Civil Rights Movement, officials in the South flagrantly violated the speech rights of racial-equality marchers. And today, a prime target is pro-life advocates: on college campuses, at pro-life pregnancy centers, and of interest for the Supreme Court this winter, on public sidewalks near abortion facilities.

Bruni v. City of Pittsburgh concerns petitioner Nikki Bruni and her fellow sidewalk counselors who have challenged the city’s “buffer zone” ordinance, which prevents them from speaking with interested women about abortion, giving them resources, and offering personal support. A painted line that extends 15 feet from the abortion facilities’ door effectively shuts down a long section of public sidewalk and street to sidewalk counselors, pro-life advocates, and practically no one else.

The U.S. Court of Appeals for the 3rd Circuit glossed over this First Amendment violation, so my colleagues and I at Alliance Defending Freedom asked the Supreme Court to take the case. It will likely decide whether or not to do that in the coming weeks.

Six years ago, the Supreme Court issued a unanimous ruling in favor of pro-life sidewalk counselors in a similar case, McCullen v. Coakley. Although the censorship zones Massachusetts created in McCullen were larger than those that Pittsburgh created in Bruni, at least the Massachusetts zone prohibited all manner of speech. Here, Pittsburgh bans only speech that it disapproves. McCullen controls this case, and the city has clearly violated the First Amendment rights of the sidewalk counselors.

As McCullen recognized, “the government’s ability to restrict speech” on public sidewalks is “very limited” because they are a “public fora” that have “historically been open to the public for speech activities.” Consequently, Pittsburgh’s efforts to restrict pro-life advocates’ speech cannot stand.

The sidewalk counselors have no criminal record that might justify special restrictions on them. Pittsburgh officials just wanted a “more efficient” way to monitor and prohibit expression outside the abortion facilities. But McCullen rejected this argument, saying, “A painted line on the sidewalk is easy to enforce, but the prime objective of the First Amendment is not efficiency” (emphasis added).

All the sidewalk counselors want is to have quiet conversations with and offer help to abortion-minded women. Some women choose abortion because they feel as if they have no other choice. The counselors provide pamphlets about free help, pray with women, and express caring support. And they help connect interested women with food, education, financial resources, and adoption assistance.

Sidewalk counselors’ message of kindness, love, and help cannot be shouted from a distance. To express their message, the sidewalk counselors must be able to speak to interested women face to face. Although Pittsburgh allowed face-to-face conversations in the zone about the weather, sports, etc., it kept pro-life sidewalk counselors out.

The Supreme Court should grant review to correct this clear free-speech violation and the 3rd Circuit’s refusal to abide by McCullen by downplaying the buffer zone’s speech-squelching effect, when other federal appellate courts have faithfully applied that decision.

The city intended the buffer zone to prohibit pro-life speech. In fact, the City Council chair said the law was intended to protect listeners from “unwanted communication.” Yet the 3rd Circuit papered over this First Amendment violation by claiming to rewrite the law so that sidewalk counseling in the buffer zone is allowed and other pro-life advocacy is prohibited. But federal courts cannot rewrite state or local laws, as seven federal appellate courts recognize.

Further, the 3rd Circuit’s ruling hasn’t actually solved anything. Though the ruling purports to allow sidewalk counseling, it allows the city to ban praying silently, holding pro-life signs, or wearing symbolic clothing in the zone on the public sidewalk. And that violates the First Amendment.

The ACLU once said, “[W]hen you mess with First Amendment rights, it’s ultimately the weak and powerless who lose out the most. . . .” My colleagues and I at ADF emphatically agree. In fact, I think those words may never be truer than in Bruni, where those losing out are the unborn, who cannot speak for themselves as their very life hangs in the balance.

Nothing in the First Amendment allows special burdens on pro-life speech, and courts should stop inventing excuses to uphold them. The Supreme Court should grant review in Bruni and — after six years of litigation — finally put an end to Pittsburgh’s unconstitutional buffer-zone law.

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