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Price v. City of Chicago

United States Court of Appeals, Seventh Circuit

February 13, 2019

Veronica Price, et al., Plaintiffs-Appellants,
City of Chicago, et al., Defendants-Appellees.

          Argued February 13, 2018

          Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 16-cv-8268 - Amy J. St. Eve, Judge.

          Before Sykes and Barrett, Circuit Judges, and Griesbach, Chief District Judge. [*]


         Pro-life "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.

         Abortion 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 716, 725-30.

         Hill's 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.

         I. Background

         The 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.

         In 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 ordinance provides:

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 healthcare facility....

         Chi., 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.

         In 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.

         The 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.

         II. Discussion

         We 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.

         The 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.

         That's 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).

         That 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.

         A. Speech in a Traditional Public Forum

         We 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).

         As the 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 vice.

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.

         That 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 ...

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