4 Reasons Why the U.S. Supreme Court Should Hear This Anti-Free Speech ‘Buffer Zone’ Case

May 14, 2020


Maureen Collins

May 14, 2020

4 Reasons Why the U.S. Supreme Court Should Hear This Anti-Free Speech ‘Buffer Zone’ Case

Maureen Collins

Back in 2014, Eleanor McCullen challenged an anti-free speech law in Massachusetts at the U.S. Supreme Court. The case involved a “buffer zone” designed to keep pro-life counselors and advocates from being able to speak to parents seeking an abortion as those parents walked to the door of an abortion clinic. Eleanor won in a unanimous decision.

Today, a similar law in Pittsburgh, Pennsylvania, is preventing pro-life sidewalk counselors from continuing the same ministry that Eleanor did. And a federal court rewrote the city’s law to uphold it.

That’s why Eleanor, 17 states, 97 members of Congress, 14 law professors, and numerous other organizations and individuals filed friend-of-the-court briefs with the Supreme Court, asking it to uphold Eleanor’s victory and end this unfair law in Bruni v. City of Pittsburgh.

Here are four major reasons why the Supreme Court should hear this case.

1. The Supreme Court Unanimously Struck Down a Buffer Zone Law in McCullen v. Coakley

As a pro-life sidewalk counselor, Eleanor stood outside a large Planned Parenthood building in downtown Boston, providing comfort and information to the men and women entering the abortion facility. Many times, the lives of their unborn children were saved. Eleanor was present when some of these children were born, served as godmother to others, and certain mothers even named their little girls after her.

But in 2007 the state of Massachusetts passed a so-called “buffer zone” law that made it difficult for Eleanor to continue this important work. The law prevented pro-life advocates like Eleanor from speaking within 35 feet of the entrances, exits, and driveways of abortion facilities.

This harmed Eleanor’s ministry. She and other sidewalk counselors were forced to raise their voices at the women and men to get their attention, giving off the impression they were there to condemn—not help—parents who were considering aborting their unborn babies.

Thankfully, Alliance Defending Freedom and allied attorneys challenged the law on Eleanor’s behalf. And she won in a unanimous decision at the Supreme Court in McCullen v. Coakley, creating an important precedent.

But now, a 15-foot “buffer zone” law in Pittsburgh, Pennsylvania continues to silence pro-life speech despite the Supreme Court’s ruling in McCullen. And the Pittsburgh law discriminates against pro-life speech even more directly than the law in Eleanor’s case.

As Eleanor’s friend-of-the court brief explains: “In an act of viewpoint discrimination far more extreme than the law at issue in McCullen, the ordinance, and the buffer zones it creates, forbids sidewalk counselors from conversing with consenting pregnant women while permitting wide swaths of other conversation to continue.”

Eleanor asked the Supreme Court to hear Bruni v. Pittsburgh and uphold the precedent created in her case, allowing pro-life sidewalk counselors to speak freely.

2. Federal Courts Have No Authority to Rewrite State or Local Laws.

While it is vital that the Supreme Court upholds the precedent in McCullen for pro-life advocates like Eleanor, it’s also vital for our constitutional system.

Lower courts must apply Supreme Court precedent. But in Bruni v. Pittsburgh, the U.S. Court of Appeals for the Third Circuit dodged it in a curious way. Instead of applying McCullen and striking down Pittsburgh’s law as unconstitutional, the Third Circuit claimed to rewrite the city’s law in order to save it. This is just the latest legal gymnastics some lower courts have used to rule against pro-life individuals. It flies in the face of state sovereignty and is deadly to our Constitution’s separation of powers. Federal courts do not have the authority to rewrite state or local laws. Here, for example, the Third Circuit’s claimed rewrite does not prohibit Pittsburgh from prosecuting or state courts from convicting pro-life counselors for engaging in conduct the Third Circuit said the buffer zone allows!

That’s why 17 states filed a friend-of-the court brief asking the Supreme Court to hear Bruni v. Pittsburgh.

3. Pittsburgh Engaged in Viewpoint Discrimination and Targeted Pro-Life Speech

The First Amendment doesn’t only protect those Americans who agree with the government. The First Amendment protects every American’s right to speak and believe freely. So, it is particularly problematic that Pittsburgh’s buffer zone law targets the speech of pro-life sidewalk counselors.

Passed in 2005, Pittsburgh’s law’s text allows city officials to ban leafleting and other free speech around the facilities of abortionists, eye doctors, dentists, and other providers. But these restrictions are only actually in place on the public sidewalks outside of Pittsburgh’s two abortion clinics. Only there has the city painted lines on the pavement to keep sidewalk counselors out. The city allows other to speak face-to-face in the zone about the weather, directions, sports, or practically anything else.

This is viewpoint discrimination. And it’s something the Supreme Court struck down in Reed v. Town of Gilbert, a case ADF won unanimously on behalf of an Arizona pastor.

Fourteen law professors point this out in a friend-of-the-court brief in support of Bruni. Their brief quoted the Reed decision, which said that government “has no power to restrict its message, its ideas, its subject matter, or its content.”

4. Banning Pro-life Speech Robs Pregnant Women of a Life-Changing Choice

Finally, it’s worth repeating: The First Amendment protects the freedom of speech for every American. Not most Americans, or those Americans with popular views, but every American. This includes pro-life sidewalk counselors.

That’s why the pro-life groups Life Defense Foundation writes in its brief that sidewalk counseling “provides not just the last, but often the only chance for reaching women considering abortion and their companions with the message that they have other options.” It is important for women considering abortion to hear about all their options before making a life-altering—not to mention life-ending—decision.

If pro-life sidewalk counselors are denied the right to speak freely to willing women, many women will never hear their important message.

The brief continues: sidewalk counselors’ “quiet-style delivery is an essential part of the message they seek to communicate, and the communication of this message is seriously hampered if not entirely destroyed by the City of Pittsburgh’s ordinance.”

The best choice is a fully informed choice. Because Pittsburgh’s law prevents women from hearing their options, it is not only anti-free speech but, in many ways, anti-woman.

You can see all the friend-of-the-court briefs filed in support of Bruni v. Pittsburgh here.


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