The city of Pittsburgh in Pennsylvania is unconstitutionally prohibiting pro-life speech on the public sidewalk, and the Thomas More Society has filed an amici curiae (“friends of the court”) brief on behalf of 40 Days for Life, Sidewalk Advocates for Life, and other pro-life organizations in Bruni et al v. City of Pittsburgh et al. with the United States Supreme Court. The brief asks the high court to intervene in order to review and reverse the decision of the United States Court of Appeals for the Third Circuit, which upheld Pittsburgh’s restriction and, according to the filing, conflicts with both the First Amendment and previous Supreme Court decisions regarding free speech.

The case challenges a Pittsburgh city ordinance that bans life advocates from speaking—or even praying—within 15 feet of the entrance of any abortion facility. The lawsuit challenging the municipal rule was filed by five individuals who have regularly engaged in praying outside abortion facilities. They have also shared information about life-affirming alternatives with abortion-bound women. This legal battle between these pro-life citizens and the city of Pittsburgh has been to the United States Court of Appeals for the Third Circuit three times.

“This is an unconstitutional muzzling of free speech,” stated Thomas More Society Counsel Michael McHale. “The ordinance effectively creates a ‘no-pro-life-speech zone’ outside abortion centers, preventing the women entering them from hearing the helpful aid and alternative options these counselors have to offer. This is what has been at the heart of the challenge—ongoing in court for more than 10 years.”

“Beyond that, is the Third Circuit’s misapplication of the law,” McHale explained. “This is what the Supreme Court is being asked to resolve. Previous high court decisions have determined that a law regulating speech must be content-neutral and have set forth guidelines to ascertain compliance with that requirement. The Third Circuit has confused the issue by using incompatible legal standards to evaluate Pittsburgh’s repressive ordinance.”

The amicus brief demonstrated the prevalence of content-based restrictions in the buffer zone law.

“Pittsburgh’s buffer zone ordinance bans picketing and demonstrating, which are forms of advocacy or protest,” said Steve Crampton, Thomas More Society Senior Counsel. “Yet the law allows non-advocacy speech, including panhandling, asking someone for directions, or offering information about a nearby restaurant discount. This ordinance draws a distinction between advocacy and non-advocacy speech and therefore it defines regulated speech by its ‘function or purpose,’ which the Supreme Court has labeled as a form of content-based regulation. This banning of protest, while allowing non-advocacy speech, makes the buffer zone law unconstitutional.”

“There is additional evidence that the ordinance is discriminatory,” Crampton said. “The legislative history, and the fact it applies only outside abortion centers, shows it was specifically enacted to curtail pro-life speakers, such as ‘those who would counsel against’ abortion. Pittsburgh does not have laws prohibiting people from talking about animal cruelty outside steak houses or stores that sell fur coats. This attempt to silence pro-life advocacy is unacceptable, as free expression on public issues rests on the highest rung in the hierarchy of First Amendment values. It is a restriction on the public sidewalk—which for time immemorial has been the venue for public debate. The government simply has no power to ban such speech.”

The amicus brief observes that this case is similar to the Thomas More Society’s own ongoing appeal to the high court in Price v. Chicago, which involves the constitutionality of a floating bubble zone around women outside abortion vendors. Both cases question the ongoing validity of the Supreme Court’s 2000 decision in Hill v. Colorado, which narrowly upheld a bubble zone around abortion clinic clients on the rationale that governments can restrict pro-life speech on public sidewalks in order to prevent others from being offended. Chicago and Pittsburgh enacted their controversial ordinances in reliance on Hill. But later Supreme Court cases have rejected the notion that governments can muzzle the expression of controversial viewpoints on public sidewalks simply because they may offend others. However, the Supreme Court has yet to actually overrule Hill, and courts like the Third Circuit continue to invoke it in upholding government censorship of pro-life speech.

“The Supreme Court needs to resolve this matter,” added McHale. “As they have made abundantly clear in recent years, laws targeting speech based on the content of its message are unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests, something Pittsburgh is unable to do.”

Read the Thomas More Society’s Brief of Amici Curiae Forty Days for Life, Pro-Life Action League, Sidewalk Advocates for Life, Pro-Life Action Ministries, and Pro-Life Wisconsin in Support of Petitioners, filed April 29, 2020, with the United States Supreme Court in Bruni et al v. City of Pittsburgh et al here.