Jeryl Turco v. City of Englewood , 935 F.3d 155 ( 2019 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 17-3716
_____________
JERYL TURCO
v.
CITY OF ENGLEWOOD, NEW JERSEY,
Appellant
_____________
Appeal from the United States District Court
for the District of New Jersey
(No. 2-15-cv-03008)
District Judge: Honorable Susan D. Wigenton
_____________
Argued July 17, 2018
____________
Before: McKEE, VANASKIE and SILER**, Circuit Judges.
(Opinion Filed: August 19, 2019)
______________
The Honorable Thomas I. Vanaskie retired from the Court
on January 1, 2019 after the submission of this case, but
before the filing of the opinion. This opinion is filed by a
quorum of the panel pursuant to 28 U.S.C. § 46(d) and Third
Circuit I.O.P. Chapter 12.
**
The Honorable Eugene E. Siler, Jr., United States Circuit
Judge for the U.S. Court of Appeals for the Sixth Circuit,
sitting by designation.
Donald A. Klein [Argued]
Weiner Law Group
629 Parsippany Road
P.O. Box 438
Parsippany, NJ 07054
Attorney for Appellant
Francis J. Manion [Argued]
American Center for Law and Justice
6375 New Hope Road
New Hope, KY 40052
Attorney for Appellee
___________
OPINION OF THE COURT
___________
McKEE, Circuit Judge.
The City of Englewood, New Jersey, appeals the
District Court’s grant of summary judgment in favor of a
plaintiff who claimed that an ordinance the City enacted to
create a buffer zone around clinics where abortions are
performed violated her freedom of speech, association, and
assembly. Because we conclude that there are genuine issues
of material fact precluding the entry of summary judgment to
either side, we will reverse and remand for further proceedings.
I. BACKGROUND
In March 2014, the City Council of Englewood
amended its ordinances to address aggressive antiabortion
protests that had been regularly occurring outside of
Metropolitan Medical Associates (“MMA” or “the clinic”)—a
health clinic that provided reproductive health services,
including abortions, to women.1 We will discuss the incidents
at MMA in more detail below, but at the outset, it is important
1
The facts included in this preliminary recitation are
undisputed by the parties.
2
to note that this dispute arises against a background that
included “militant activists and aggressive protestors”
beginning to gather outside of the facility in late 2013.2 Many
of these protestors were associated with an evangelical
ministry called the Bread of Life. The Bread of Life had ties to
other radical antiabortion organizations including those which
support violent reprisal against abortion providers. The Bread
of Life protestors engaged in extremely aggressive, loud,
intimidating, and harassing behavior towards patients, their
companions, and even other groups whose views generally
aligned with the Bread of Life’s antiabortion position.
The new ordinance read:
A. Definitions. As used in this
section, the following terms shall
have the meanings indicated:
1. “Health care facility” — as
set forth in N.J.S.A. 26:2H 2.
2. “Transitional facility” —
Community residences for
the developmentally disabled
and community shelters for
victims of domestic violence
as those terms are defined in
N.J.S.A. 40:55D-66.2.
B. Within the City of Englewood, no
person shall knowingly enter or
remain on a public way or
sidewalk adjacent to a health care
facility or transitional facility
within a radius of eight feet of any
portion of an entrance, exit or
driveway of such facility or within
the area within a rectangle created
by extending the outside
boundaries of any entrance, exit or
driveway of such facility in
straight lines to the point where
such lines intersect the sideline of
the street in front of such entrance,
2
JA 428.
3
exit or driveway. This subsection
shall not apply to the following
1. persons entering or leaving
such facility;
2. employees or agents of
such facility acting within the
scope of their employment
3. law enforcement,
ambulance, firefighting,
construction, utilities, public
works and other municipal
agents acting within the
scope of their employment;
and
4. persons using the public
sidewalk or street right of
way adjacent to such facility
solely for the purpose of
reaching a destination other
than such facility
C. The provisions of subsection B
shall only take effect during such
facility’s business hours and if the
area contained within the radius
and rectangle described in said
subsection B is clearly marked and
posted.
The practical effect of the ordinance was the creation of
three overlapping buffer zones at any qualifying facility. Two
semicircular buffer zones extended outwards eight feet from
either side of the facility’s entrance. The third buffer zone
spanned the width of the facility’s entrance and extended to the
street. A picture of the buffer zones (shown in yellow) is set
forth below:
4
Prior to enacting the disputed ordinance, the City had
increased police patrols on mornings when it anticipated Bread
of Life protestors would be present.3 Police officers present on
the scene imposed informal “no go zones” where protestors
could not stand. Those zones were similar to the buffer zones
that were part of the Ordinance. Although the police presence
temporarily eased tensions at MMA, the hostile protests and
resulting problems resumed immediately after officers left the
clinic.
Plaintiff/Appellee Jeryl Turco was not one of the hostile
or aggressive anti-abortion protestors. Rather, she refers to
herself as a “sidewalk counselor.” It is undisputed that, unlike
the violent and aggressive anti-abortion protestors affiliated
with groups such as Bread of Life, her practice was to calmly
approach women entering the clinic and attempt to engage in
peaceful, nonconfrontational communication. She believes
that such conversational interaction is far more effective than
the tactics favored by the aggressive protestors. In addition,
Turco routinely offered rosaries and literature about prenatal
care to patients entering the clinic. She also invited the women
to accompany her to a crisis pregnancy center across the street,
and often attempted to reassure the women by telling them
3
The Bread of Life protestors generally gathered on Saturday
mornings.
5
things such as: “we can help you” and “we are praying for
you.”
Turco brought this action against the City of Englewood
pursuant to 42 U.S.C. § 1983 to enjoin enforcement of the
Ordinance because she believed that it hampered her efforts to
provide counseling. She alleged that the Ordinance violated
her First Amendment rights to freedom of speech, assembly,
and association. She sought a declaration that the Ordinance
was unconstitutional on its face and as applied and sought to
enjoin its enforcement.
The District Court held the motion in abeyance until we
decided Bruni v. Pittsburgh,4 a case involving a similar
ordinance in the City of Pittsburgh that was then pending in our
court. After we decided Bruni, Turco elected not to renew her
motion for a preliminary injunction, and the parties proceeded
to discovery. Upon completion of discovery, the District Court
granted Turco’s cross-motion for summary judgment.5
The District Court concluded that the statute was
overbroad and not narrowly tailored to serve the government’s
interest. In explaining why it believed the Ordinance was
overbroad, the Court explained that the City “did not create a
targeted statute to address the specific issue of congestion or
militant and aggressive protestors outside of the Clinic.”6
Rather, it found that the City had “created a sweeping
regulation that burdens the free speech of individuals, not just
in front of the Clinic, but at health care and transitional
facilities citywide.”7
Perhaps somewhat understandably, the District Court’s
overbreadth analysis overlapped considerably with its narrow
tailoring analysis.8 The District Court found that the statute
4
824 F.3d 353 (3d Cir. 2016).
5
Turco v. City of Englewood, No. 2:15-cv-03008, 2017 WL
5479509, at *1 (D. N.J. Nov. 14, 2017).
6
Id. at *4.
7
Id.
8
See id. (addressing the “narrowly-tailored requirement” in
the overbreadth analysis section).
6
was not narrowly tailored because the City failed to
demonstrate that it had “employ[ed] alternative, less restrictive
means” of addressing the hostile protestors on the clinic’s
sidewalk.9 Instead, the Court found, the City had “put[] forth
speculative assertions that it tried and/or seriously considered
less restrictive alternatives, such as increased police presence
[or] injunctive relief, prior to adoption of the amended
Ordinance.”10 Accordingly, the Court granted Turco’s motion
for summary judgment, and this appeal followed.
II. JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction under 28 U.S.C. § 1291. We
review appeals from the grant of summary judgment de novo.11
We apply the same test as the district court: viewing the
evidence in the light most favorable to the nonmoving party,
we ask whether there is any genuine issue of material fact.12
“The mere existence of some evidence in support of the
nonmovant is insufficient to deny a motion for summary
judgment; enough evidence must exist to enable a jury to
reasonably find for the nonmovant on the issue.”13
III. DISCUSSION
We analyze § 1983 lawsuits that allege a First
Amendment violation using a three-part test.14 First, we
determine whether the First Amendment protects the speech at
issue.15 Next, we consider the “nature of the forum.”16 Finally,
we resolve “whether the [government’s] justifications for
9
Id. at *5.
10
Id.
11
J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 650 F.3d
915, 925 (3d Cir. 2011) (en banc).
12
Kelly v. Borough of Carlisle, 622 F.3d 248, 253 (3d Cir.
2010).
13
Id. (internal quotation marks omitted) (quoting Giles v.
Kearney, 571 F.3d 318, 322 (3d Cir. 2009)).
14
Cornelius v. NAACP Legal Defense and Educ. Fund, Inc.,
473 U.S. 788, 797 (1985).
15
Id.
16
Id.
7
exclusion from the relevant forum satisfy the requisite
standard.”17
Only the third prong of the test is at issue in this appeal.
The City concedes that the First Amendment fully protects the
speech at issue here and that the Ordinance clearly regulates
speech in a traditional public forum (i.e., the sidewalk).18 The
parties also agree—as do we—that the restrictions imposed are
content-neutral because they regulate “the total quantity of
speech by regulating the time, the place or the manner in which
one can speak . . . .”19 The Ordinance impacts the speech of
those who support abortion as well as those who oppose it; it
is clearly content neutral.20 We therefore apply intermediate
scrutiny.21 Accordingly, to withstand constitutional scrutiny,
17
Id.
18
See Turco, 2017 WL 5479509, at * 4 (noting that
Englewood did “not challenge the fact that the speech at issue
is protected under the First Amendment, or that its Ordinance
suppresse[d] speech in a traditional forum”). Indeed, public
streets and sidewalks are the “quintessential public forum”
and occupy a “special position in terms of First Amendment
protection.” Bruni, 824 F.3d at 366 (citation and internal
quotation marks omitted). When the government imposes
restrictions on communication in these areas, “it imposes an
especially significant First Amendment burden.” Id. (citation
and internal quotation marks omitted).
19
Rappa v. New Castle Cnty., 18 F.3d 1043, 1053–54 (3d Cir.
1994) (citations omitted).
20
See McCullen v. Coakley, 573 U.S. 464, 485 (2014). As
explained in depth below, McCullen considered a
legislatively enacted buffer zone similar to the one enacted
here. The Supreme Court concluded that such enactments
were “neither content nor viewpoint based and therefore need
not be analyzed under strict scrutiny.” Id. In light of this
authority and the parties’ agreement that we should apply
intermediate scrutiny, we need not discuss the appropriate
level of scrutiny in detail.
21
Id. at 485–86.
8
the Ordinance must be “narrowly tailored to serve a significant
governmental interest.”22
This “tailoring requirement does not simply guard
against an impermissible desire to censor.”23 Rather, “by
demanding a close fit between ends and means,” the narrow
tailoring requirement prevents the suppression of speech “for
mere convenience.”24 For a content neutral speech
restriction—such as the Ordinance—“to be narrowly tailored,
it must not ‘burden substantially more speech than is necessary
to further the government’s legitimate interests.’”25 Unlike a
content-based speech restriction, the Ordinance “‘need not be
the least restrictive or least intrusive means of’ serving the
government’s interests.”26 Rather, the First Amendment
prohibits the government from regulating speech in a way that
would allow a substantial burden on speech to fall in an area
that “does not serve to advance its goals.”27
The Supreme Court’s decision in McCullen v. Coakley
offers a useful starting point for our analysis. There, the
Massachusetts legislature amended its Reproductive Health
Care Facilities Act to address protests outside of abortion
clinics. The amended Act made it a crime to knowingly stand
on a “public way or sidewalk” within thirty-five feet of the
entrance or driveway to any facility where abortions were
performed.28 In nearly all material respects, the amended Act
was identical to the Ordinance before us, except the
Massachusetts law established a thirty-five foot buffer zone
and the Ordinance establishes an eight-foot buffer zone. This
is a substantial distinction that the District Court did not
22
Bruni, 824 F.3d at 363–64 (internal quotation marks
omitted) (quoting Madsen v. Women’s Health Ctr., Inc., 512
U.S. 753, 764 (1994)).
23
McCullen, 573 U.S. at 486.
24
Id.
25
Id. (quoting Ward v. Rock Against Racism, 491 U.S. 781,
799 (1989)).
26
Id. (quoting Ward, 491 U.S. at 798)).
27
Id. (internal quotation marks omitted) (quoting Ward, 491
U.S. at 799)).
28
Mass. Gen. Laws, ch. 266 § 120E½ (2012).
9
adequately discuss in relying upon McCullen to support its
order granting summary judgment to Turco.29 Nor did the
District Court fully appreciate the difference between the
presence of demonstrable alternatives in McCullen and the
evidence on this record that explains why less restrictive means
were not likely to serve the City’s interests here.
In McCullen, a sidewalk counselor (McCullen), sued to
enjoin enforcement of a Massachusetts statute that made it a
crime to stand within thirty-five feet of the entrance of any
place where abortions were performed. Following a trial based
on a stipulated record, the district court denied her challenge,
the Court of Appeals for the First Circuit affirmed, and the
Supreme Court granted certiorari.
After concluding that the Act was a content-neutral
restriction on speech in a traditional public forum (sidewalks),
the Court declared the statute unconstitutional. The Court’s
holding was based on the fact that “[t]he buffer zones burden
substantially more speech than necessary to achieve
[Massachusetts’s] asserted interest[].”30 The Court began its
narrow-tailoring analysis by identifying the interests at stake.
It noted that the buffer zones “clearly serve” the “government
interests in ‘ensuring public safety and order, promoting the
free flow of traffic on streets and sidewalks, protecting
property rights, and protecting a woman’s freedom to seek
pregnancy-related services.’”31
But the zones also placed “serious burdens” on the
counselors’ speech interests.32 The thirty-five foot buffer
zones resulted in a heavy burden on “one-on-one
communication,” which is the sidewalk counselors’ preferred
29
See Turco, 2017 WL 5479509, at *5 n.3 (noting only that
“the size of the buffer zone is not dispositive because
[Englewood] has failed to meet its burden and show that the
Ordinance is narrowly tailored to serve a legitimate
governmental interest”).
30
McCullen, 573 U.S. at 490.
31
Id. at 486–87 (quoting Schenck v. Pro-Choice Network of
W. N.Y., 519 U.S. 357, 376 (1997)).
32
Id. at 487.
10
method of speech.33 Imposing such a burden on that type of
speech demands particular constitutional protection because it
is “the most effective, fundamental, and perhaps economical
avenue of political discourse.”34 Similarly, leafleting in support
of controversial viewpoints is the “essence of First
Amendment expression.”35 Accordingly, “[n]o form of speech
is entitled to greater constitutional protection.”36 In sum, the
Court concluded that government-imposed burdens on one-on-
one communication, such as those imposed by the
Massachusetts statute, implicated particularly significant First
Amendment concerns.37
Moreover, the Massachusetts buffer zones carved out “a
significant portion of the adjacent public sidewalks” and
required the counselors to stand “well back” from the clinic.38
The Court identified “uncontradicted testimony” that showed
the buffer zones prohibited McCullen and her colleagues from
effectively engaging in sidewalk counseling either verbally or
by handing literature to the patients.39 As a result, the zones
significantly impacted McCullen’s ministry.40 McCullen
estimated that she had been able to persuade eighty women to
refrain from having abortions since the Act was amended to
create the thirty-five foot buffer zone, but that this figure was
“far fewer people” than she previously reached.41 Jean Zarella,
33
Id. at 488 (internal quotation marks omitted) (quoting
Meyer v. Grant, 486 U.S. 414, 424 (1988)).
34
Id. (internal quotation marks omitted) (quoting Meyer, 486
U.S. at 424)).
35
Id. at 489 (internal quotation marks omitted) (quoting
McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 347
(1995)).
36
Id. at 489 (internal quotation marks omitted) (quoting
McIntyre, 514 U.S. at 347); see also Schenk, 519 U.S. at 377
(“Leafletting and commenting on matters of public concern
are classic forms of speech that lie at the heart of the First
Amendment.”).
37
Id.
38
Id. at 487.
39
Id. at 487–88.
40
Id. at 487.
41
Id.
11
another petition in McCullen, described a far more dramatic
affect of the Massachusetts Act. Before its passing, she stated
that she had an estimated one-hundred “successful
interactions.” After its enactment, the buffer zones prevented
her from persuading a single patient. 42
The Court in McCullen rejected the government’s
contention that it had tried other approaches to address the
hostile sidewalk protestors, but that such approaches were
ineffective. Instead, the Court concluded that “the
Commonwealth [of Massachusetts had] too readily foregone
options that could [have] serve[d] its interests just as well,
without substantially burdening the kind of speech in which
[the sidewalk counselors] wish[ed] to engage.”43 It noted that
Massachusetts had not initiated criminal prosecutions for
existing laws that the hostile protestors could have been
construed to have violated.44 It also had not sought injunctions
against the hostile group in the approximately twenty years
leading up to the Act’s amendment. “In short,” the Court
concluded, Massachusetts “ha[d] not shown that it seriously
undertook to address the problem with less intrusive tools
readily available to it. Nor ha[d] it shown that it considered
different methods that other jurisdictions have found
effective.”45
Even though the District Court failed to fully appreciate
the distinctions between McCullen and this case, the Court here
did fully appreciate the extent to which McCullen should
inform its inquiry into the constitutionality of the Ordinance.
The background giving rise to the buffer zone in Massachusetts
and that which prompted the City of Englewood to enact the
buffer zone here are similar. The competing interests are
identical. Except for the size of the prescribed buffer zones, the
text of the two legislative enactments is nearly the same. In
fact, if the record here included uncontradicted facts similar to
those on the record in McCullen, then the Court’s holding there
would certainly dictate a similar outcome here. However, this
record differs from the one in McCullen in two very important
42
Id. at 487–88.
43
Id. at 490.
44
Id. at 494.
45
Id.
12
ways. First, the buffer zones’ exact impact on the sidewalk
counselors’ speech and the concomitant efficacy of their
attempts to communicate is unclear on this record. Indeed,
Turco admitted that she continued to speak with patients
entering the clinic after the enactment of the buffer zones. At
the very least, there is contradictory evidence regarding the
extent to which the buffer zone prevented Turco from
communicating her message as she wanted. Second, the
record—properly viewed in the light most favorable to the
City— established that the City considered and attempted to
implement alternative means of regulating speech, and that the
City did attempt to enforce existing laws before creating the
buffer zone. Those measures failed. Accordingly, we cannot
agree that Turco was entitled to judgment as a matter of law.
A. The Buffer Zones’ Impact on “Sidewalk Counselors.”
During discovery, Turco agreed that she could talk “to
patients on some kind of regular basis both before and after
[the] adoption of the buffer zone ordinance.”46 But she also
stated that navigating the buffer zones was akin to traversing
an “obstacle course.”47 Nevertheless, Turco testified that she
was able to walk from one side of the entrance to the other,48
even though an occasional snow bank or parked car sometimes
imposed difficulties.49
Similarly, Rosemary Garrett, who also refers to herself
as “a sidewalk counselor,” testified that she was still able to
help women even after the buffer zones were implemented.50
Specifically, she stated in her deposition that she “wasn’t
bothered by the new buffer zone” because it did not affect her
ministry.51 In fact, she stated that her counseling efforts were
thwarted only when the hostile protestors began “yelling and
screaming” and displaying “disturbing pictures.”52 When that
happened, the women began running into the clinic to avoid
46
JA 222–23.
47
JA 224.
48
JA 224.
49
JA 225.
50
JA 135.
51
JA 134.
52
JA 135–36.
13
the protests, which prevented the sidewalk counselors from
approaching the women and offering help.53 According to
Garrett, it was the “aggressive” actions of the anti-abortion
protestors—not the buffer zones—that lead her to stand at the
far corner from the entrance of the facility in order to conduct
her ministry.54
Thus, on this record, we cannot say that the eight-foot
buffer zone imposed an inappropriate burden on speech as a
matter of law. Moreover, such a conclusion would be directly
at odds with the Supreme Court’s decision in Hill v.
Colorado.55 There, the Court considered whether a Colorado
statute that regulated speech within 100 feet of a health care
facility violated the First Amendment. Specifically, the statute
made it “unlawful within the regulated areas for any person to
‘knowingly approach’ within eight feet of another person,
without that person’s consent, ‘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.”56
The statute made it “more difficult [for sidewalk counselors]
to give unwanted advice, particularly in the form of a handbill
or leaflet, to persons entering or leaving medical facilities.”57
Some of those who referred to themselves as “sidewalk
counselors” sued Colorado, alleging that the statute violated
the First Amendment. After the Colorado state courts denied
the challenge, the Supreme Court granted certiorari.
As in McCullen, the Court began its analysis by
discussing the interests at stake, finding that the plaintiffs’
“First Amendment interests . . . [were] clear and undisputed”
because, inter alia, “the public sidewalks, streets, and ways
affected by the statute [were] ‘quintessential’ public forums for
53
JA 135, 137.
54
JA 137–38.
55
530 U.S. 703 (2000).
56
Hill, 530 U.S. at 707 (quoting Colo. Rev. Stat. § 18-9-
122(3) (1999)).
57
Id. at 708.
14
free speech” and the plaintiffs’ ability to communicate was
“unquestionably lessened” by the Colorado statute.58
Concomitantly, the Court noted that the state had an
interest in protecting the health and safety of its citizens, which
“may justify a special focus on unimpeded access to health care
facilities and the avoidance of potential trauma to patients
associated with confrontational protests.”59 Moreover, the
Court noted that “rules that provide specific guidance to
enforcement authorities serve the interest in evenhanded
application of the law.”60 Finally, the Court found that it was
important to distinguish between “state restrictions on a
speaker’s right to address a willing audience and those
[restrictions] that protect listeners from unwanted
communication.”61 It noted that the First Amendment
protected a speaker’s “right to attempt to persuade others to
change their views,” but “the protection afforded to offensive
messages does not always embrace offensive speech that is so
intrusive that the unwilling audience cannot avoid it.”62 The
Court explained the reasonableness and necessity for the eight
foot buffer zone as follows:
The statute seeks to protect those
who wish to enter health care
facilities, many of whom may be
under special physical or
emotional stress, from close
physical approaches by
demonstrators . . . . [T]he statute’s
prophylactic aspect is justified by
the great difficulty of protecting,
say, a pregnant woman from
physical harassment with legal
rules that focus exclusively on the
individual impact of each instance
of behavior, demanding in each
case an accurate characterization
58
Id. at 714–15.
59
Id. at 715 (citation omitted) (citing Madsen, 512 U.S. at
753).
60
Id.
61
Id. at 715–16.
62
Id. at 716 (citation omitted).
15
(as harassing or not harassing) of
each individual movement within
the 8-foot boundary. Such
individualized characterization of
each individual movement is often
difficult to make accurately. . . .
[T]he 8-foot restriction on an
unwanted physical approach
leaves ample room to
communicate a message through
speech. Signs, pictures, and voice
itself can cross an 8-foot gap with
ease.63
Given the record in Hill, the statute satisfied the Court’s
narrow tailoring analysis. It found that the eight-foot buffer
zone between speakers and passersby did not greatly affect
communications.64 Clinic patients were still able to read
signs,65 sidewalk counselors could conduct conversations in a
normal tone,66 and the buffer zone allowed a leafleteer to stand
“near the path of oncoming pedestrians [while] proffering his
or her material, which the pedestrians [could] easily accept.”67
The District Court did not explain why the eight-foot buffer
zone here was unconstitutional despite the Supreme Court’s
conclusion that the eight-foot buffer zone in Hill passed
constitutional muster. In fact, the District Court did not even
cite Hill.
63
Id. at 729
64
Id. at 726.
65
Id. (“The 8-foot separation between the speaker and the
audience should not have any adverse impact on the readers’
ability to read signs displayed by demonstrators.”).
66
Id. at 726–27 (“[T]his 8-foot zone allows the speaker to
communicate at a ‘normal conversational distance.’” (quoting
Schenk, 519 U.S. at 377)).
67
Id. at 727. The Court allowed that the “8-foot interval could
hinder the ability of a leafletter to deliver handbills to some
unwilling recipients.” Id. Ultimately, it found that the
Colorado restriction adequately protected the rights of the
counselors to convey their message.
16
Given the Court’s analysis in Hill, we simply cannot
conclude that the eight-foot buffer zones established under the
Ordinance posed a severe burden on speech, and the record is
clearly inadequate to support such a conclusion as a matter of
law. Rather, we conclude that there are material issues of
genuine fact regarding the extent to which Turco retained the
ability to communicate despite enactment of the eight-foot
buffer zone.
B. Less Restrictive Alternatives.
We also disagree with the District Court’s conclusion
that the record shows that the City failed to consider less
restrictive means of regulating speech in front of the clinic. To
be sure, the District Court was clearly correct when it found
that the City had not “prosecute[d] any protestors for activities
taking place on the sidewalk” and “did not seek injunctive
relief against individuals whose conduct was the impetus for
the Ordinance.”68 Those facts are not disputed.
However, the City and its representatives explained that
it had attempted to increase police presence at the Clinic, had
considered alternative means of bringing order to the sidewalk,
and proffered reasonable explanations for why those and other
means were ineffective. The former Chief of Police, Arthur
O’Keefe, testified that, given the limitations of “manpower”
and the need to be able to deploy officers in response to
emergencies such as drive-by shootings, it was not feasible to
permanently provide a significantly increased police presence
at the clinic.69 He also stated that some off-duty officers
worked at the clinic, but that the police department had “finite
resources” and much of it was devoted to violent crime.70
Accordingly, he could not “simply dedicate an officer four
hours at a time every day to enhance their security.”71
During her deposition, Lynn Algrant, the President of
Englewood City Council, testified extensively about the
alternative means that the Council considered and why they
were ineffective. She stated that the City had attempted to
68
Turco, 2017 WL 5479509, at *5.
69
JA 207.
70
JA 207.
71
Id.
17
increase police presence at the clinic on a volunteer basis, but
officers were not signing-up for any shifts.72 She also testified
that, despite manpower restrictions, on-duty officers were
regularly dispatched to the clinic, but the hostile protests would
resume as soon as the officers left.73 Algrant said that she
encouraged the clinic to seek an injunction or file criminal
complaints, but those efforts were hampered because the clinic
escorts feared for their safety.74 She recalled occasions where
clinic escorts were so frightened that they became
“hysterical,”75 yet they still refused to file complaints because
of the threat of retaliation from the hostile protestors. The
safety concerns were not unwarranted. One of the women at
the clinic found a picture of herself on the internet inside of a
bullseye, and as a result, the clinic escorts “were extremely
protective of their privacy and extremely protective for their
safety.”76
Timothy Dacey, the City Manager for Englewood,
supported Algrant’s testimony. He believed that “it [would
have been] cost prohibitive for [the City] to provide security
for the clinic.”77 Dacey also stated that the police department’s
policy prohibited them from providing individual security
coverage to private businesses.78 He also testified that an
increase in police patrols in the area were ineffective, and that
the clinic escorts were too fearful to make complaints.79 Chief
O’Keefe confirmed this in his testimony, stating that some of
the targets of the protestors’ ire gave their names, but “many
other people that were involved in incidents did not” because
they were “concerned about subsequent identification or . . .
were emotionally too distraught to become involved further.”80
72
JA 54.
73
JA 55, 58–59.
74
JA 60, 64.
75
JA 75.
76
JA 64.
77
JA 86.
78
JA 87.
79
JA 88–89.
80
JA 205.
18
This fear was also borne out by the deposition testimony
from clinic escorts and through e-mails between the escorts and
City officials. One clinic escort testified that “antiabortion
groups [were] notorious for finding out people’s personal
information, whether patients or abortion providers or escorts”
and using it to further target their acts of harassment.81 She
stated that her colleagues “have had antiabortion protesters
show up at their place of work, their houses, [and] put their
phone numbers and addresses and personal information and
photos on websites.”82 As a result, the clinic escorts were “very
careful to not let the protestors get any of our personal
information” and used nicknames for each other while
conversing on the sidewalk.83 The sidewalk escort testified that
she was concerned about the Bread of Life’s apparent
affiliation with a “fringe antiabortion group[],” Abolish
Human Abortion.84 That group was itself aligned with
“domestic terrorists” and “clinic bombers.”85 She also testified
that the Bread of Life protestors were aligned with “Operation
Rescue” a group that also aligned itself “with clinic bombers
and celebrate[d] the murders of abortion doctors.”86
That same clinic escort submitted a certification which
included as exhibits several detailed accounts of the chaotic
sidewalk environment that had developed outside of the
clinic.87 She noted that the Bread of Life protestors filmed the
patients’ license plates when they parked their cars, but she was
unsure what they did with the information.88 She also stated
that the hostile protests had escalated to a point that included
“repeated physical assaults of escorts.”89
In summary, the testimony of the various stakeholders
when properly viewed in the light most favorable to the City
81
JA 145.
82
JA 145.
83
JA 145.
84
JA 146.
85
JA 146.
86
JA 146.
87
JA 166.
88
JA 181.
89
JA 179.
19
demonstrated that the City considered alternative means of
restricting speech around the clinic. A jury could find that
financial restraints and fear of reprisal prevented these
measures from being effective. We therefore hold that this
record was not appropriate for summary judgment.
C. Our Decision in Bruni.
Our decision here is consistent with our earlier decision
in Bruni.90 There, we considered whether a Pittsburgh
Ordinance that established fifteen-foot buffer zones around all
health care facilities violated the First Amendment. That
ordinance read:
No person or persons shall
knowingly congregate, patrol,
picket or demonstrate in a zone
extending fifteen (15) feet from
any entrance to the hospital and or
health care facility. This section
shall not apply to police and public
safety officers, fire and rescue
personnel, or other emergency
workers in the course of their
official business, or to authorized
security personnel employees or
agents of the hospital, medical
office or clinic engaged in
assisting patients and other
persons to enter or exit the
hospital, medical office, or
clinic.91
We noted that, on its face, this statute applied to all hospitals
and health care facilities in Pittsburgh.92 However, the City had
only ever demarcated two buffer zones, both in front of
facilities that provided abortion services.93 A group of persons
who wanted to communicate with women entering the clinics
sued the City of Pittsburgh, claiming that the ordinance
90
824 F.3d 353 (3d Cir. 2016).
91
Pittsburgh Pa., Code § 623.04.
92
Bruni, 824 F.3d at 358.
93
Id.
20
violated the First Amendment.94 They also sought a
preliminary injunction.95 Following a hearing on the
injunction, the District Court granted Pittsburgh’s motion to
dismiss the complaint. The plaintiffs appealed and we
reversed.
We held that the District Court erred by dismissing the
plaintiffs’ complaint and remanded for further factual
development. Specifically, we found that allegations in the
complaint suggested that the burden imposed on speech was
akin to that in McCullen.96 The plaintiffs alleged that the buffer
zone prevented them from reaching their intended audience
and made conversations with the clinic’s patients much more
difficult.97 Because the case was still at the pleading stage,
those allegations were sufficient to require the government to
prove “either that substantially less-restrictive alternatives
were tried and failed, or that the alternatives were closely
examined and ruled out for good reason.”98 We noted that
Pittsburgh could not simply forego the range of alternatives
available to it “without a meaningful record demonstrating that
those options would fail to alleviate the problems meant to be
addressed.”99 Finally, Bruni emphasized the “rigorous and
fact-intensive nature of intermediate scrutiny’s narrow-
tailoring analysis,” and cautioned that the facts developed as
the proceedings commenced would ultimately decide whether
the restriction was justified.100
Although Bruni arose at the pleading stage and the case
before us was resolved through a motion for summary
judgment, Bruni is instructive because it highlights the
intensely factual nature of the inquiry that is usually needed to
resolve disputes arising from imposition of buffer zones such
as this one. We emphasized that “the constitutionality of buffer
zone laws turns on the factual circumstances giving rise to the
94
Id. at 359.
95
Id.
96
Id. at 369.
97
Id.
98
Id. at 370.
99
Id. at 371.
100
Id. at 372–73.
21
law in each individual case—the same type of buffer zone may
be upheld on one record where it might be struck down on
another.”101
This record contains a multitude of contradicting factual
assertions. Some facts suggest that the buffer zones imposed a
significant restraint on the plaintiff’s ability to engage in
constitutionally-protected communication. Others support
Englewood’s position that the buffer zones hardly affected
plaintiff’s ability to reach her intended audience. Some facts
support plaintiff’s argument that the City had foregone less-
restrictive options to address the chaotic environment outside
of the clinic. Others show that Englewood considered these
options and reasonably rejected them or found them to be
ineffective.102 In short, the record does not conclusively
demonstrate that either party is entitled to summary judgment
on the narrow tailoring claim.
D. Overbreadth.
We also find that the District Court erred in finding that the
ordinance was overbroad. Englewood correctly argues that the
District Court’s reliance on McCullen was misplaced. There,
the Supreme Court explicitly stated that it did not “need [to]
consider [the] petitioners’ overbreadth challenge” because it
found that Massachusetts’s statute was not narrowly
tailored.103 In relying on McCullen, the District Court seems to
have conflated the narrow-tailoring analysis with the
overbreadth analysis.104 To support its conclusion that the
Ordinance was overbroad, the District Court stated: “To meet
the narrowly-tailored requirement, Defendant must create an
Ordinance that targets the exact wrong it seeks to remedy.”105
101
Id. at 357.
102
Turco characterized the “the unwillingness of witnesses to
come forward with complaints about criminal behavior [as] . .
. preeminently a matter of factual dispute” in her pleadings.
(Docket #45, 10).
103
McCullen, 573 U.S. at 496 n.9.
104
JA 11.
105
JA 11 (quoting Frisby v. Schultz, 487 U.S. 474, 485 (1988)
(“A statute is narrowly tailored if it targets and eliminates no
more than the exact source of the evil it seeks to remedy.”)).
22
Although overbreadth and narrow tailoring are related,106 the
Supreme Court has rejected the District Court’s assertion that
an Ordinance must precisely target the acts it was passed to
remedy.107
In Hill, the Supreme Court held that “[t]he fact that the
coverage of a statute is broader than the specific concern that
led to its enactment is of no constitutional significance. What
is important is that all persons entering or leaving health care
facilities share the interests served by the statute.”108 When a
buffer zone broadly applies to health care facilities, we may
conclude “the comprehensiveness of the statute is a virtue, not
a vice, because it is evidence against there being a
discriminatory governmental motive.”109
Bruni also discussed the plaintiffs’ allegation that the
statute was overbroad because it authorized creation of buffer
zones at non-abortion related locations.110 We declined to find
that the ordinance was facially unconstitutional without further
development in the record. We reiterated the Supreme Court’s
admonition in Hill that the comprehensiveness of a statute
demonstrates a lack of discriminatory motive and is not
constitutionally determinative.111 Ultimately, in Bruni we
concluded that we could not assess the breadth of the ordinance
absent a “well-supported conclusion” about how widely it
swept.112 We also reiterated the “broad principle of deference
to legislative judgments” and that a legislative body “need not
meticulously vet every less burdensome alternative.”113 This
principle is well-established in First Amendment
jurisprudence, and we are mindful of our duty to “accord a
106
See Bruni, 824 F.3d at 374 (“It is true that the breadth of
the challenged law plays a role in the narrow-tailoring
analysis of the Plaintiffs’ free speech claim.” (citations
omitted)).
107
Hill, 530 U.S. at 730–31.
108
Id.
109
Id. at 731.
110
Bruni, 824 F.3d at 373–74.
111
Hill, 530 U.S. at 731.
112
Bruni, 824 F.3d at 374.
113
Id. at 370 n.18.
23
measure of deference to the judgment” of Englewood city
council.114
We conclude that the District Court erred in granting
summary judgment because the ordinance was not overbroad.
Courts may not strike down a regulation as “overbroad unless
the overbreadth is substantial in relation to the [regulation’s]
plainly legitimate sweep.”115 The Supreme Court has
“vigorously enforced the requirement that a statute’s
overbreadth be substantial.”116 The hesitation to label a statute
overbroad arises from a court’s need to strike a balance
between competing social costs:
On the one hand, the threat of
enforcement of an overbroad law
deters people from engaging in
constitutionally protected speech,
inhibiting the free exchange of
ideas. On the other hand,
invalidating a law that in some of
its applications is perfectly
constitutional . . . has obvious
harmful effects.”117
“In determining whether a statute’s overbreadth is substantial,
we consider a statute’s application to real-world conduct, not
fanciful hypotheticals.”118 “[T]he overbreadth claimant bears
the burden of demonstrating, ‘from the text of [the law], and
from actual fact,’ that substantial overbreadth exists.”119
114
Hill, 530 U.S. at 727.
115
McCauley v. Univ. of the Virgin Islands, 618 F.3d 232,
241 (3d Cir. 2010) (alteration in original) (internal quotation
marks and citations omitted).
116
United States v. Stevens, 559 U.S. 460, 485 (2010)
(emphasis in original).
117
McCauley, 618 F.3d at 241 (quoting United States. v.
Williams, 553 U.S. 285, 292 (2008)).
118
Stevens, 559 U.S. at 485 (citations omitted).
119
Id. (alteration in original) (emphasis in original) (quoting
Virginia v. Hicks, 539 U.S. 113, 122 (2003)).
24
The same concern is present here. The record is
essentially devoid of any factual development concerning the
“legitimate sweep” of the buffer zones. We therefore “think it
unwise for us to assess the proper scope of the City’s
Ordinance without there first being a resolution of the merits
of the Plaintiffs’ free speech claim.”120 Accordingly, we will
also reverse the District Court’s grant of summary judgment on
grounds that the statute was overbroad.
III.
For the foregoing reasons, the District Court’s order granting
summary judgment is hereby reversed, and the case remanded
for proceedings consistent with this opinion.
120
Bruni, 824 F.3d at 374.
25