February 13, 2018
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 16-cv-8268 - Amy
J. St. Eve, Judge.
Sykes and Barrett, Circuit Judges, and Griesbach, Chief
District Judge. [*]
"sidewalk counselors" sued to enjoin Chicago's
"bubble zone" ordinance, which bars them from
approaching within eight feet of a person in the vicinity of
an abortion clinic if their purpose is to engage in
counseling, education, leafletting, handbilling, or protest.
The plaintiffs contend that the floating bubble zone is a
facially unconstitutional content-based restriction on the
freedom of speech. The district judge dismissed the claim,
relying on Hill v. Colorado, 530 U.S. 703 (2000),
which upheld a nearly identical Colorado law against a
similar First Amendment challenge.
clinic buffer-zone laws "impose serious burdens" on
core speech rights. McCullen v. Coakley, 134 S.Ct.
2518, 2535 (2014). Under Hill, however, a floating
bubble zone like this one is not considered a content-based
restriction on speech and thus is not subject to strict
judicial scrutiny. 530 U.S. at 725. Rather, the ordinance is
classified as a content-neutral "time, place, or
manner" restriction and is tested under the intermediate
standard of scrutiny, which asks whether the law is narrowly
tailored to serve significant governmental interests.
Id. at 725-26. Hill answered that question
in the affirmative, holding that the governmental interests
at stake-preserving clinic access and protecting patients
from unwanted speech -are significant, and an 8-foot
no-approach zone around clinic entrances is a narrowly
tailored means to address those interests. Id. at
content-neutrality holding is hard to reconcile with both
McCullen and Reed v. Town of Gilbert, 135
S.Ct. 2218 (2015), and its narrow-tailoring holding is in
tension with McCullen. Still, neither
McCullen nor Reed overruled Hill,
so it remains binding on us. Moreover, Chicago's
bubble-zone law is narrower than the one upheld in
Hill: Colorado's no-approach zone applies within
a 100-foot radius of a clinic entrance; Chicago's applies
within a 50-foot radius. Lastly, we would open a circuit
split if we allowed this facial challenge to move forward.
The Third Circuit, applying Hill, upheld
Pittsburgh's 8-foot bubble zone against a facial
challenge without requiring an evidentiary showing from the
City. See Brown v. City of Pittsburgh, 586 F.3d 263,
270-73 (3d Cir. 2009). We affirm the judgment.
case comes to us from a dismissal at the pleading stage, so
we sketch the facts as alleged in the plaintiffs'
complaint, accepting them as true for purposes of this
appeal. Deppe v. Nat'l Collegiate Athletic
Ass'n, 893 F.3d 498, 499 (7th Cir. 2018). Pro-life
advocates Veronica Price, David Bergquist, Ann Scheidler, and
Anna Marie Scinto Mesia regularly engage in what's known
as "sidewalk counseling" on the sidewalks and
public ways outside Chicago abortion clinics. This entails
peacefully approaching women entering the clinics to give
them pro-life literature, discuss the risks of and
alternatives to abortion, and offer support if the women were
to carry their pregnancies to term. These conversations must
take place face to face and in close proximity to permit the
sidewalk counselors to convey a gentle and caring manner,
maintain eye contact and a normal tone of voice, and protect
the privacy of those involved.
October 2009 the Chicago City Council adopted an ordinance
that effectively prohibits sidewalk counseling by banning the
close approach it requires. The Council amended the
City's disorderly conduct ordinance to prohibit any
person from approaching within eight feet of another person
near an abortion clinic for the purpose of engaging in the
types of speech associated with sidewalk counseling. The
A person commits disorderly conduct when he ... knowingly
approaches another person within eight feet of such person,
unless such other person consents, 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 in the public way within a radius of 50
feet from any entrance door to a hospital, medical clinic or
III., Code § 8-4-010(j)(1) (2009) (emphasis added).
Chicago's ordinance is nearly identical to-indeed, was
modeled after-the Colorado law upheld in Hill. Both
laws impose an 8-foot no-approach bubble zone, but
Chicago's law operates within a smaller radius.
Colorado's 8-foot bubble zone applies within a 100-foot
radius of an abortion-clinic entrance. Chicago's applies
within a 50-foot radius. The City's ordinance otherwise
mirrors the law at issue in Hill.
August 2016 the four sidewalk counselors and two advocacy
groups joined together to sue the City under 42 U.S.C. §
1983 seeking declaratory and injunctive relief against the
enforcement of the bubble-zone ordinance. Their complaint
raised four claims: (1) the ordinance infringes the freedom
of speech guaranteed by the First Amendment, both facially
and as applied; (2) the ordinance is unconstitutionally vague
in violation of the Due Process Clause of the Fourteenth
Amendment; (3) the City selectively enforces the bubble-zone
ordinance in violation of the Equal Protection Clause of the
Fourteenth Amendment; and (4) the ordinance infringes the
plaintiffs' state constitutional right to freedom of
speech and assembly. Much of the complaint describes specific
instances of selective or improper enforcement from early
2010 through mid-2016, but those allegations have no bearing
on this appeal.
City moved to dismiss the complaint for failure to state a
claim. See Fed. R. Civ. P. 12(b)(6). The district
judge granted the motion in part. She ruled that
Hill forecloses the facial First Amendment challenge
and the due-process vagueness claim. But she allowed the case
to proceed on the as-applied First Amendment challenge, the
equal-protection claim alleging selective enforcement, and
the state constitutional claims. The parties eventually
settled these remaining claims and jointly moved to dismiss
them. The judge entered final judgment, setting up this
appeal contesting only the Rule 12(b)(6) ruling.
review a Rule 12(b)(6) dismissal de novo. O'Boyle v.
Real Time Resolutions, Inc., 910 F.3d 338, 342 (7th Cir.
2018). The plaintiffs contend that Chicago's bubble-zone
ordinance is a content-based restriction on speech and is
facially unconstitutional under strict scrutiny. Their
fallback position is that the ordinance flunks the
narrow-tailoring requirement of the intermediate test for
content-neutral restrictions on speech.
Supreme Court considered and rejected these precise arguments
in Hill, as the plaintiffs must and do acknowledge.
As they see it, however, Hill is no longer an
insuperable barrier to suits challenging abortion clinic
bubble-zone laws. The premise of their claim is that the
Court's more recent decisions in Reed and
McCullen have so thoroughly undermined
Hill's reasoning that we need not follow it.
a losing argument in the court of appeals. The Court's
intervening decisions have eroded Hill's
foundation, but the case still binds us; only the Supreme
Court can say otherwise. See State Oil Co. v. Kahn,
522 U.S. 3, 20 (1997) ("[I]t is this Court's
prerogative alone to overrule one of its precedents.").
The Court's instructions in this situation are clear:
"If a precedent of this Court has direct application in
a case, yet appears to rest on reasons rejected in some other
line of decisions, the Court of Appeals should follow the
case [that] directly controls, leaving to this Court the
prerogative of overruling its own decisions."
Agostini v. Felton, 521 U.S. 203, 237-38 (1997)
(quotation marks omitted).
said, in the nineteen years since Hill was decided,
the Court has refined the concept of content neutrality and
clarified the requirement of narrow tailoring in a First
Amendment challenge of this type. To see how, it's
helpful to trace the doctrinal development in this specific
corner of free-speech law.
Speech in a Traditional Public Forum
begin with first principles. "The First Amendment
reflects a profound national commitment to the principle that
debate on public issues should be uninhibited, robust, and
wide-open." Snyder v. Phelps, 562 U.S. 443, 452
(2011) (quotation marks omitted). "Leaflertting and
commenting on matters of public concern are classic forms of
speech that lie at the heart of the First Amendment ...
." Schenck v. Pro-Choice Network of W. N.Y.,
519 U.S. 357, 377 (1997). Moreover, sidewalks and other
public ways "occupy a special position in terms of First
Amendment protection because of their historic role as sites
for discussion and debate." McCullen, 134 S.Ct.
at 2529 (quotation marks omitted). These public
spaces-"traditional public for a" in the doctrinal
nomenclature-"have immemorially been held in trust for
the use of the public and, time out of mind, have been used
for purposes of assembly, communicating thoughts between
citizens, and discussing public questions." Hague v.
Comm. for Indus. Org., 307 U.S. 496, 515 (1939).
Court explained in McCullen:
It is no accident that public streets and sidewalks have
developed as venues for the exchange of ideas. Even today,
they remain one of the few places where a speaker can be
confident that he is not simply preaching to the choir. With
respect to other means of communication, an individual
confronted with an uncomfortable message can always turn the
page, change the channel, or leave the Web site. Not so on
public streets and sidewalks. There, a listener often
encounters speech he might otherwise tune out. In light of
the First Amendment's purpose to preserve an uninhibited
marketplace of ideas in which truth will ultimately prevail,
this aspect of traditional public fora is a virtue, not a
134 S.Ct. at 2529 (citation and quotation marks omitted).
Thus, speech "is at its most protected on public
sidewalks." Schenck, 519 U.S. at 377.
the sidewalk counselors seek to reach women as they enter an
abortion clinic-at the last possible moment when their speech
might be effective-"only strengthens the protection
afforded [their] expression." Mclntyre v. Ohio
Elections Comm'n,514 U.S. 334, 347 (1995).
"Urgent, important, and effective speech can be no less
protected than impotent speech, lest the right to speak be
relegated to those instances when it is least needed. No form
of speech is entitled to greater constitutional protection
... ."Id. (citation omitted). And direct
"one-on-one communication" has long been recognized
as "the most ...