« A Fine Old Cannibal | Main | Law School Classes on a Workshop Model »

Wednesday, November 04, 2009

Buffers, Bubbles, and Abortion Speech

In my recent book, Speech Out of Doors:  Preserving First Amendment Liberties in Public Places, I examine various restrictions on public assembly and expression including the phenomenon of expressive zoning.  Although not a new tactic (the first speech zones appear to have been used against the Wobblies in the early twentieth century), carving public space into zones in an effort to regulate public speech and assembly has become increasingly common.  The tactic is now used, for example, at every national party convention and mass protest.  Expressive zoning can have substantial negative effects on the ability of speakers to contest particular places and to engage in protected forms of speech such as leafletting.  

Responding to incidents of violence at or near abortion clinics, judges (through injunctions) and legislatures have imposed spatial restrictions on speech and assembly.  These restrictions take two common forms -- the "buffer zone," which typically regulates congregating and demonstrating within some specified distance of clinic entrances, and the "bubble," which restricts the ability of sidewalk counselors and other speakers to aproach within some specified distance of unwilling audiences at certain distances from clinic entrances.  The Supreme Court has upheld both fixed buffer zones and bubbles as valid time, place, and manner restrictions.  But none of the Court's abortion clinic zoning cases upheld the use of both measures at the same time. 

In Brown v. City of Pittsburgh, the Third Circuit recently invalidated a Pittsburgh ordinance that combined a 15-foot buffer zone with an 8-foot bubble applicable within 100 feet of the entrance to hospitals, medical offices, and clinics.  In an opinion by Chief Judge Scirica, the court held the ordinance facially invalid on the ground that, in combination, the zones severely curtailed (if not precluded) the plaintiff, a sidewalk counselor, and others from leafletting near abortion clinics.  The panel held that either measure, operating by itself, would be adequate to serve the City's interests in protecting access to the clinic and preventing harassment of clinic patrons.  

As I argue in the book, efforts to defuse tensions surrounding the abortion debate through expressive zoning have resulted in some questionable limits on public speech and assembly.  Brown is an important decision concerning the validity of spatial restrictions at or near abortion clinics.  By carefully examining the terms and effects of the spatial restrictions, the court was able to demonstrate that Pittsburgh's layered zones burdened more speech that necessary to serve its legitimate interests.  While speakers have no right to harass or threaten anyone at or near the clinics, their right to offer or distribute literature on public ways must be preserved.  

Posted by Tim Zick on November 4, 2009 at 10:54 AM in First Amendment | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Buffers, Bubbles, and Abortion Speech:


I agree that the remedy here is curious. It appears the court woodenly applied the severability provision -- if any portion of this Chapter is held invalid . . . It wasnt a portion that was invalidated, of course, but the scheme as a whole. Also, why remand for the as-applied challenge given the facial invalidation? The plaintiff did challenge the buffer and bubble separately. If the court had invalidated only the buffer, or only the bubble, then obviously the invalid portion could be severed. As things stand, the courts disposition does seem to create the problems you pose going forward. I would think that until the city adopts a constitutional scheme, the speech zoning provisions cannot be enforced (together or separately).

At 09:06 PM 11/4/2009, you wrote:
Date: Wed, 4 Nov 2009 18:06:49 -0800
MIME-Version: 1.0
Content-Type: text/html; charset=us-ascii

Posted by: Tim Zick | Nov 5, 2009 9:27:40 AM

Thanks for posting about this decision. I've been puzzling over it since first reading it.

Assuming that the Third Circuit properly interpreted the buffer to ban all speech activity, including stationary leafletting, the decision seems right on the merits, even under the speech-stultifying rationale of Hill v. Colorado. But the remedy chosen by the Third Circuit is peculiar in two respects. First, the panel remanded for severance after purporting to hold the statute _facially_ invalid. Can that be right? Normally, a statute that fails the narrow tailoring requirement under the First Amendment would be completely invalid, rather than cut back through severance to be more narrowly tailored. Second, the panel seems to give the City the option on remand of whether to keep the bubble or the buffer. (See p. 58 "Because either zone individually is lawful, the decision of which zone to employ belongs not to us but rather to the City. On remand, therefore, the City should inform the District Court of its preference, and the court should enjoin enforcement of the other zone."). Normally, severability is a function of legislative intent rather than litigation option.

Suppose that X and Y violate the statute after the panel decision but before the severance determination. X violates the buffer and Y violates the bubble. Under the Third Circuit's reasoning, does X, Y, or both have a First Amendment defense to prosecution? If not both, then is it the City's choice? Shouldn't both have as a valid defense that the law violates the First Amendment because it is not narrowly tailored?

Posted by: Kevin C. Walsh | Nov 4, 2009 9:06:48 PM

The comments to this entry are closed.