– Alliance Defending Freedom attorneys representing pro-life sidewalk counselors asked the U.S. Supreme Court Thursday to weigh in on a Pittsburgh, Pennsylvania, censorship-zone law that muzzles free speech on public sidewalks outside of abortion facilities. Pittsburgh enacted a law that bans speech and advocacy—even prayer—in painted zones outside medical facility entrances. The city then chose to paint such zones outside only two facilities, Pittsburgh’s two abortion clinics, in the entire metropolitan area and enforced the ban against pro-life sidewalk counselors only.
Recognizing the constitutional problems with such a ban in light of a U.S. Supreme Court ruling
that struck down a similar Massachusetts law in 2014, the U.S. Court of Appeals for the 3rd Circuit last year claimed to narrow the law
to say that the ban doesn’t apply to sidewalk counseling, only prayer or standing quietly while holding a sign or wearing buttons. It then upheld the ban as constitutional. As the petition
filed with the high court in Bruni v. City of Pittsburgh
explains, “federal courts cannot rewrite state laws” to save them from unconstitutionality, and “the Third Circuit’s narrowing construction is ineffective because city officials and state courts are not bound by it, and they can still hold sidewalk counselors criminally liable in spite of it.”
“The right to free speech is for everyone, not just those in power,” said ADF Vice President of Appellate Advocacy John Bursch. “The government can’t silence speakers just because it doesn’t like what they have to say, and as Pittsburgh’s mayor made clear, the ban’s purpose was to prevent women seeking abortions from hearing messages of hope, encouragement, and true choice. The city can still prosecute pro-life sidewalk counselors and censor pro-life advocates even after the 3rd Circuit’s ruling, and until the Supreme Court weighs in, the threat remains.”
In 2014, the 3rd Circuit rightly observed that “the Ordinance imposes the same kind of burden on speech” as one the U.S. Supreme Court struck down in McCullen v. Coakley
and then sent the case back to the district court. But in 2019, after the case again rose to the 3rd Circuit, the court issued an opinion that declined to declare the law unconstitutional.
“Under the First Amendment, government doesn’t get to pick and choose the speech it allows,” said ADF Senior Counsel Kevin Theriot, who argued the case before the 3rd Circuit. “But because the 3rd Circuit reinterpreted Pittsburgh’s law in order to save it rather than strike it down for the constitutional problems it saw, Pittsburgh remains free to engage in the very censorship that the Supreme Court held unconstitutional just six years ago.”
ADF attorneys filed the lawsuit against Pittsburgh in 2014 on behalf of pro-life individuals who haven’t been allowed to speak or engage in sidewalk counseling within the zones. The city banned their speech in the zone while allowing others to talk about the weather, sports, or practically anything else. Pittsburgh Mayor Bill Peduto has been enforcing the law, which he voted for as a city councilman in 2005.
“Banning pro-life speech robs pregnant women of a life-changing choice,” said ADF Legal Counsel Elissa Graves, who has litigated the case on behalf of sidewalk counselors since its filing. “Sometimes a woman stops in the censorship zone and stretches out her hand to receive literature. Pittsburgh bans sidewalk counselors from reaching out at that critical moment but allows just about any other kind of speech in the zone. That robs a woman of a fully informed choice.”
Lawrence G. Paladin, Jr., one of more than 3,400 attorneys allied with ADF, is serving as local counsel in the case.