Constitution doesn’t allow special burdens on pro-life speech, US Supreme Court should say so

Freedom of speech is one of America’s greatest values, shared by those across the political spectrum. It is our common ground. Without it, the country we know and love would not exist. The Bill of Rights, women’s voting rights, and the civil rights movement were all possible only because individuals had the freedom to convince their neighbors of the justness of their cause. Civil discourse about public issues is our nation’s bedrock.

But 20 years ago, the Supreme Court created a major crack in that foundation when it comes to abortion-related speech on the public sidewalk, a fracture the high court should fix.

That’s why Alliance Defending Freedom, where I work, filed a lawsuit six years ago on behalf of five sidewalk counselors in Pittsburgh. We’ve now asked the U.S. Supreme Court to hear their case.

The Supreme Court is usually a strong defender of free speech. But in 2000, the court veered off course, upholding a Colorado law that banned sidewalk counselors from knowingly approaching within eight feet of another person to give them literature or provide counseling outside medical facilities. Even though the court walked that ruling back in 2014, lower courts continue to give state and local governments leeway to censor peaceful pro-life speech on public sidewalks, where courts safeguard expression about nearly everything else.

When the government regulates speech based on its subject matter or viewpoint, it violates the First Amendment. Pittsburgh did just that when it enacted a law that bans sidewalk counseling within 15 feet of the city’s two abortion clinics, including on the public sidewalk. The city allowed others to speak within the buffer zone about sports, the weather, or anything else it sees as purely social or random, while forcing pro-life speech out. That wrongly made the sidewalk counselors’ message of love, gentleness, and help seem dangerous and illegitimate, and made it difficult for the counselors to speak with willing passersby.

So the sidewalk counselors filed suit to overturn the ordinance. And if their speech had not concerned abortion, they probably would have won. Yet the district court ruled in the city’s favor twice, even though the city council chair and ordinance sponsor stated at a public hearing that the law was intended to stop people from hearing speech they dislike. The U.S. Court of Appeals for the 3rd Circuit initially upheld the sidewalk counselors’ challenge. But it later set aside what Pittsburgh said its own ordinance meant, i.e., that sidewalk counseling is banned. It then tried to judicially amend the ordinance to allow sidewalk counseling in the buffer zone and ruled for the city with respect to any other kind of pro-life speech.

The problem is that federal courts cannot rewrite state laws to save them from constitutional attack. Most courts know this: Seven courts of appeal hold that state or local governments’ interpretations of their own laws are the controlling factor, even if that reading helps show that a law is unconstitutional. The 3rd Circuit does not. Because its ordinance rewrite does not bind the city, Pittsburgh may prosecute sidewalk counselors for violating the buffer zone whenever it likes. This leaves the sidewalk counselors’ and their message of hope vulnerable to attack.

Nor do the 3rd Circuit’s edits solve the free-speech problem. Its ruling still allows the city to exclude anyone from praying, holding signs, sporting buttons, or wearing symbolic clothing on the public sidewalk outside abortion clinics. The Supreme Court has made clear that the city must prove that it tried or seriously considered less-speech-burdening options, and even the 3rd Circuit admitted Pittsburgh did not do that.

Unless the Supreme Court reverses the 3rd Circuit, lower courts will continue treating pro-life speech worse than other expression and sweep flagrant free-speech violations under the rug. The First Amendment protects “the freedom of speech,” not just speech the government likes. And democracy is harmed whenever the government bars people from peacefully saying what they think about public matters. The Supreme Court should grant review and make clear that key First Amendment principle applies equally to all speech, pro-life or not.

John Bursch is vice president of appellate advocacy at Alliance Defending Freedom (@AllianceDefends), which represents Nikki Bruni in Bruni v. city of Pittsburgh.