Nikki Bruni v. City of Pittsburgh

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________

No. 18-1084
_______________

NIKKI BRUNI; JULIE COSENTINO;
CYNTHIA RINALDI; KATHLEEN LASLOW;
PATRICK MALLEY,
Appellants

v.

CITY OF PITTSBURGH; PITTSBURGH CITY COUNCIL;
MAYOR PITTSBURGH
_______________

On Appeal from the United States District Court
for the Western District of Pennsylvania
(W.D. Pa. No. 2-14-cv-01197)
Honorable Cathy Bissoon, U.S. District Judge
_______________

Argued: February 6, 2019

Before: HARDIMAN, KRAUSE, and GREENBERG, Circuit
Judges

(Opinion Filed: October 18, 2019)
Kenneth J. Connelly
Elissa M. Graves
Kevin H. Theriot [ARGUED]
Kristen K. Waggoner
David A. Cortman
Alliance Defending Freedom
15100 North 90th Street
Scottsdale, AZ 85260

Lawrence G. Paladin, Jr.
Suite 6C
15 Duff Road
Pittsburgh, PA 15235

Counsel for Plaintiff-Appellants Nikki Bruni, Julie
Cosentino, Cynthia Rinaldi, Kathleen Laslow, and
Patrick Malley

Julie E. Koren
Matthew S. McHale ∗ [ARGUED]
Yvonne S. Hilton
City of Pittsburgh
Department of Law
414 Grant Street
313 City County Building
Pittsburgh, PA 15219

∗
Matthew S. McHale withdrew as counsel on July 3,
2019, prior to the issuance of this opinion.

2
 Counsel for Defendant-Appellees City of Pittsburgh,
Pittsburgh City Council, Mayor Pittsburgh

William A. Bonner, I
12 Veterans Square
P.O. Box 259
Media, PA 19063

Counsel for Amicus Curiae Life Legal Defense
Foundation

Jamie Cohn
Stephen M. Juris
Janice Mac Avoy
Fried Frank Harris Shriver & Jacobson
One New York Plaza
New York, NY 10004

Susan J. Frietsche
Women’s Law Project
Western Pennsylvania Office
428 Forbes Avenue
Suite 1710
Pittsburgh, PA 15219

Counsel for Amici Curiae Women Law Project,
National Abortion Federation

Stephen M. Crampton
P.O. Box 4506
Tupelo, MS 38803

3
 Counsel for Amici Curiae Pro Life Action League,
Sidewalk Advocates for Life

Steven W. Fitschen
The National Legal Foundation
524 Chesapeake
Chesapeake, VA 23322

Counsel for Amici Curiae Pacific Justice Institute,
Concerned Women for America, National Legal
Foundation

Matthew D. Staver
Horatio G Mihet
Roger K. Gannam
Liberty Counsel
P.O. Box 540774
Orlando, FL 32854

Counsel for Amici Curiae Colleen Reilly and Becky
Biter

Erek L. Barron
Whiteford Taylor & Preston
111 Rockville Pike
Suite 800
Rockville, MD 20850

Counsel for Amicus Curiae International Municipal
Lawyers

_______________

4
 OPINION OF THE COURT
_______________

KRAUSE, Circuit Judge.

This case requires us to determine the constitutionality
of a Pittsburgh ordinance that creates a fifteen-foot “buffer
zone” outside the entrance of any hospital or healthcare
facility. Pittsburgh, Pa., Code § 623.04 (2005) [hereinafter
“the Ordinance” or “Pitts. Code”]. In relevant part, the
Ordinance states that “[n]o person or persons shall knowingly
congregate, patrol, picket or demonstrate” in the prescribed
zone. Id. Outside of a Planned Parenthood in downtown
Pittsburgh, Plaintiffs engage in leafletting and “peaceful . . .
one-on-one conversations” conducted “at a normal
conversational level and distance” intended to dissuade
listeners from obtaining an abortion. Appellants’ Br. 9, 17–18.
As the City has asserted that the Ordinance applies to this
speech, known as “sidewalk counseling,” Plaintiffs argue that
the Ordinance is facially unconstitutional under the First
Amendment and the District Court erred in granting summary
judgment in the City’s favor. Because we conclude that the
Ordinance does not cover sidewalk counseling and thus does
not impose a significant burden on speech, we will affirm.

5
I. Background

A. Factual Background 1

1. History of the Ordinance

In the mid- and late 1990s, Planned Parenthood was the
site of numerous clashes between opponents and advocates of
abortion rights as well as individuals seeking the facility’s
services. 2 In addition to seeing “hundreds” of people at the
facility on a Saturday—“pro and anti”—the clinic was plagued
by bomb threats, vandalism, and blockades of its entrance. JA
322a. To address these incidents, the Bureau of Police
deployed an overtime detail of “up to ten officers and a
sergeant” to maintain order and security, often using crowd-
control barriers to separate demonstrators from each other and
from patients trying to enter the clinic. JA 1024a.

1
The background summarized here is drawn from the
record and our prior opinion in this case, Bruni v. City of
Pittsburgh (Bruni I), 824 F.3d 353, 357–59 (3d Cir. 2016).
Because we are reviewing a district court’s grant of summary
judgment, we consider the facts in the light most favorable to
the non-movants and draw all reasonable inferences in their
favor. See Hugh v. Butler Cty. Family YMCA, 418 F.3d 265,
266–67 (3d Cir. 2005).
2
The same was true of Allegheny Reproductive Health
Center, another clinic that provides abortions, which, in
addition to seeing hundreds of protestors, was fire bombed,
intentionally flooded, and had its windows shot out.

6
 In 2002, Planned Parenthood moved to its current
location at 933 Liberty Avenue. Although the incidents
lessened in severity, contemporaneous police logs and
testimony from Sergeant William Hohos indicate that “the
pushing,” “the shoving,” and “the blocking of the doors”
continued, and the overtime detail, reduced in size, continued
to provide a police presence. JA 323a, JA 834a, JA 837a.
After Pittsburgh was declared a financially distressed
municipality in late 2003, however, fiscal constraints and the
need for redeployment of limited police resources required the
detail to be discontinued, and police were called to address the
continuing incidents at the site on an as-needed basis. In the
wake of the detail’s discontinuation, the clinic reported an
“obvious escalation in the efforts of the protestors,” JA 357a,
including an increase in “aggressive pushing, shoving and . . .
harassing behavior that included shoving literature into
people’s pockets, hitting them with signs and blocking their
entrance into the building,” JA 352a.

In November 2005, the City Council held hearings on
proposed legislation that eventually resulted in the Ordinance.
Among those who testified were sidewalk counselors, clinic
escorts, patients, and other concerned members of the
community. Several witnesses insisted the Ordinance was
unnecessary either because they had never observed violent
incidents or were unaware of “significant violence” outside the
clinic. JA 348a. But other witnesses reported being personally
harassed and prevented from entering the clinic, being yelled
at through the glass doors of the clinic, and seeing patients
being surrounded on the sidewalk. A Planned Parenthood
counselor described patients entering the clinic in a
“psychological state [of] situational crisis,” threatening their
health. JA 355a. And “without [police] supervision,” the

7
President and CEO of Planned Parenthood of Western
Pennsylvania said, “there ha[d] been an increase in unlawful
behavior that . . . put[] . . . patients, their families, pedestrians
and . . . protestors at risk.” JA 352a.

The City Council also heard from Commander
Donaldson of the Pittsburgh Police Department. He reported
that police had been summoned to Planned Parenthood twenty-
two times in the past six months alone to “mediate
confrontations” and respond to incidents ranging from signs
“obstructing the front of the building” to protestors
“follow[ing] . . . people to the doorway.” JA 404a. They had
not made any arrests, however. According to Commander
Donaldson, the City had on its books “laws . . . that would
address obstructing traffic or passageways or . . . the [clinic’s]
doorway,” but those laws would not address the precise
problem that was occurring, namely attempts to block people
from entering the facility before they reached its front door. 3
JA 398a.

The debate on the Ordinance was extensive. Many
witnesses, both for and against the legislation, expounded on
the competing interests at stake and expressed a desire to
protect both free speech and access to healthcare, including
abortions.

3
The City’s designated representative, who had been a
member of the overtime detail before it was disbanded,
likewise attested that the criminal laws were not adequate to
deal with protestors and demonstrators outside the clinic
because the obstructive conduct “[wasn’t] rising to those
levels. It was all the underlying stuff in between.” JA 1057a.

8
 2. The Ordinance

Shortly after these hearings, the City Council adopted
the Ordinance, and the mayor signed it into law. See Bruni v.
City of Pittsburgh (Bruni I), 824 F.3d 353, 357 (3d Cir. 2016).
Codified as Chapter 623 of the Pittsburgh Code of Ordinances,
the Ordinance states, in relevant part:

No person or persons shall knowingly
congregate, patrol, picket or demonstrate in a
zone extending 15 feet from any entrance to the
hospital and or health care facility. This section
shall not apply to police and public safety
officers . . . in the course of their official
business, or to authorized security personnel
employees or agents of the hospital, medical
office or clinic engaged in assisting patients and
other persons to enter or exit the hospital,
medical office, or clinic. 4

Pitts. Code § 623.04. The Council also ratified a preamble that
set forth the City’s goals in adopting the Ordinance, including

4
Although the Chapter does not define “health care
facility,” a “[m]edical [o]ffice/[c]linic” is defined as “an
establishment providing therapeutic, preventative, corrective,
healing and health-building treatment services on an out-
patient basis by physicians, dentists and other practitioners.”
Pitts. Code § 623.02. Penalties for violating the Ordinance
range from a $50 fine for a first offense to a thirty-day
maximum (and three-day minimum) jail sentence for a fourth
violation within five years. Id. § 623.05.

9
“provid[ing] unobstructed access to health care facilities” and
“medical services,” “avoid[ing] violent confrontations,”
“provid[ing] a more efficient and wider deployment” of City
services, and “ensuring that the First Amendment rights of
demonstrators to communicate their message . . . [are] not
impaired.” Id. § 623.01.

As originally passed, the Ordinance also included an
“[e]ight-foot personal bubble zone,” extending one hundred
feet around clinics, in which people could not be approached
without their consent “for the purpose of passing a leaflet or
handbill to, displaying a sign to, or engaging in oral protest,
education or counseling.” Id. § 623.03. Following a facial
challenge to the Ordinance, we concluded that the Ordinance
was content neutral and each zone was constitutionally
permissible but the combination of the two zones was not. See
Brown v. City of Pittsburgh, 586 F.3d 263, 273, 276–81 (3d
Cir. 2009). On remand, the City chose to abandon the floating
bubble zone and retain only the fixed buffer zone that
prohibited “congregat[ing], patrol[ling], picket[ing] or
demonstrat[ing].” Pitts. Code § 623.04. That choice was
effectuated by the District Court, which permanently enjoined
the bubble zone and required the City to demarcate any fixed
buffer zone prior to enforcement. 5

5
The injunction also required that the buffer zone be
construed to prohibit “any person” from “picket[ing] or
demonstrat[ing]” within the zone, including those allowed to
enter the zone pursuant to their official duties. See Brown, 586
F.3d at 275.

10
 3. Application of the Ordinance and
Plaintiffs’ Activities

Today, the City has demarcated buffer zones at two
locations, both of which provide reproductive health services
including abortions. Bruni I, 824 F.3d at 358. Plaintiffs Nikki
Bruni, Cynthia Rinaldi, Kathleen Laslow, Julie Cosentino, and
Patrick Malley engage in the bulk of their anti-abortion
activities outside the buffer zone at Planned Parenthood. See
id. at 359. In contrast to the conduct that gave rise to the
Ordinance, Plaintiffs do not physically block patients’ ingress
or egress or engage in violent tactics. Instead, they engage in
what they call “sidewalk counseling,” meaning “calm” and
“quiet conversations” in which they “offer assistance and
information to” women they believe are considering having an
abortion “by providing them pamphlets describing local
pregnancy resources, praying, and . . . peacefully express[ing]
[a] message of caring support.” 6 JA 59a; see Appellants’ Br.
9. That message, Plaintiffs explain, “can only be
communicated through close, caring, and personal

6
We will use the term “sidewalk counseling” in this
opinion with the meaning given to it by Plaintiffs. By contrast,
the title “sidewalk counselor” has sometimes been claimed by
those who engage in “‘in your face’ yelling . . . pushing,
shoving, and grabbing” consistent with aggressive
demonstration. Schenck v. Pro-Choice Network of W. N.Y.,
519 U.S. 357, 363 (1997). As Plaintiffs here have explained,
however, such conduct does not constitute sidewalk counseling
as they use the term and is “counter-productive to [their]
message of kindness, love, hope, gentleness, and help.” JA
574a.

11
conversations, and cannot be conveyed through protests.” JA
62a. Nonetheless, the City takes the position that Plaintiffs’
sidewalk counseling falls within the prohibition on
“demonstrating”—if not “congregating,” “patrolling,” and
“picketing” too, see JA 334a–37a—so while they can engage
in sidewalk counseling outside the zone, they cannot once
within its bounds. See Bruni I, 824 F.3d at 359.

Plaintiffs describe various ways that the buffer zone has
hindered their ability to effectively communicate their
message. The street noise makes it difficult for people to hear
them, forcing them to raise their voices in a way inconsistent
with sidewalk counseling. And at the distance at which they
are forced to stand, they are unable to differentiate between
passersby and individuals who intend to enter the facility,
causing them to miss opportunities to engage with their desired
audience through either speech or leafleting.

In addition to “sidewalk counseling,” Plaintiff Nikki
Bruni is the local leader of a group participating in the “Forty
Days for Life” movement, a global anti-abortion campaign. 7
Twice a year, campaign participants, including Plaintiffs, pray
outside of abortion clinics from 7 AM to 7 PM continuously
for forty days. They do so in shifts, and many participants wear

7
The movement describes its mission as “to bring
together the body of Christ in a spirit of unity during a focused
40 day campaign of prayer, fasting, and peaceful activism, with
the purpose of repentance, to seek God’s favor to turn hearts
and minds from a culture of death to a culture of life, thus
bringing an end to abortion.” Bruni v. City of Pittsburgh, 283
F. Supp. 3d 357, 363 (W.D. Pa. 2017).

12
or carry signs. As the leader of the group, Bruni organizes local
churches to ensure people are always outside of the clinic so
“there’s always groups on the sidewalk present during the 40
Days all day every day.” JA 141a. Although the exact number
of participants is disputed, the record reflects a daily presence
of somewhere between ten and forty people.

B. Procedural Background

About five years after we upheld the buffer-zone
component of the Ordinance in Brown as a content-neutral
time, place, and manner regulation, the Supreme Court decided
McCullen v. Coakley, striking down as insufficiently narrowly
tailored a Massachusetts law that created a thirty-five-foot
buffer zone in front of health facilities where abortions were
performed. 573 U.S. 464, 493–97 (2014). The Court found
the law “extreme,” id. at 497, and “truly exceptional,” id. at
490: although congestion occurred at one clinic in one city
once a week, the law applied statewide to all reproductive
health facilities and, with few exceptions, prohibited any
person from even “standing” in the zone, id. at 480, 493. To
justify this “significant . . . burden” on speech, id. at 489, the
Court held, the government must “show[] that it seriously
undertook to address the problem with less intrusive tools
readily available to it,” such as arrests, prosecutions, or
targeted injunctions, or “that it considered different methods
that other jurisdictions . . . found effective,” id. at 494.

In light of McCullen, Plaintiffs filed a complaint,
challenging the Ordinance, pursuant to 42 U.S.C. § 1983,
under the First and Fourteenth Amendments. Bruni I, 824 F.3d
at 359. The District Court granted the City’s motion to dismiss

13
Plaintiffs’ First Amendment claims, and Plaintiffs appealed. 8
Id. at 360.

We vacated the District Court’s dismissal. Id. at 357,
373–74. Taking as true the complaint’s allegations that the
Ordinance had been enforced against Plaintiffs and had
significantly hindered their speech, id. at 369, we concluded
that the Ordinance “impose[d] a similar burden as that in
McCullen,” id. at 368 n.15, so that the City had the same
obligation as in McCullen to demonstrate “either that
substantially less-restrictive alternatives were tried and failed,
or that the alternatives were closely examined and ruled out for
good reason,” id. at 370. We thus remanded for factfinding on
these issues, as well as a determination about “the proper scope
of the Ordinance.” Id. at 357, 374. Notwithstanding our earlier
holding as to content neutrality in Brown, 586 F.3d at 273, 275,
277, we also directed the District Court to consider whether the
Ordinance should still be considered content neutral in light of

8
Plaintiffs also filed a motion for a preliminary
injunction to prevent the City from enforcing the Ordinance
against them, which the District Court denied and Plaintiffs did
not appeal. Bruni I, 824 F.3d at 359–60. In addition to
dismissing Plaintiffs’ First Amendment claims, the District
Court granted the City’s motion to dismiss Plaintiffs’
Fourteenth Amendment Due Process Clause challenge, a
decision we affirmed in Bruni I and that therefore is not on
appeal here. See id. at 360, 374–75. Earlier in this litigation,
Plaintiffs voluntarily dismissed their as-applied challenges to
the Ordinance, their claim under the Equal Protection Clause,
and their claim of selective enforcement against the mayor. Id.
at 359 n.5.

14
Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015), the Supreme
Court’s most recent pronouncement on the dividing line
between content-neutral and content-based restrictions. Bruni
I, 824 F.3d at 365 n.14.

On remand, the District Court accepted the City’s
contention that the Ordinance covered Plaintiffs’ sidewalk
counseling as a form of demonstrating and held that the
Ordinance was content neutral, even under Reed. Bruni v. City
of Pittsburgh, 283 F. Supp. 3d 357, 361, 367–68 (W.D. Pa.
2017). It also distinguished the Ordinance from the statute in
McCullen as creating a smaller buffer zone and allowing
Plaintiffs to reach their audience through sidewalk counseling
despite the buffer zone and therefore concluded that the
Ordinance imposed “only a minimal burden on Plaintiffs’
speech.” Id. at 369–71. Accordingly, it held that the City
“ha[d] no obligation to demonstrate that it tried—or considered
and rejected”—the alternatives identified in McCullen, such as
arrests or targeted injunctions, and even if the City did have
such an obligation, it had been satisfied. Id. at 371–72. The
Court therefore granted the City’s motion for summary
judgment. Id. at 373. This appeal followed.

II. Jurisdiction and Standard of Review

The District Court had jurisdiction under 28 U.S.C.
§ 1331, and we have jurisdiction under 28 U.S.C. § 1291. We
review a district court’s grant or denial of summary judgment
de novo, see EEOC v. Allstate Ins. Co., 778 F.3d 444, 448 (3d
Cir. 2015), and may affirm on any basis supported by the
record, Gorum v. Sessoms, 561 F.3d 179, 184 (3d Cir. 2009).
Summary judgment is appropriate only where “there is no
genuine dispute as to any material fact and the movant is

15
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
In the context of a First Amendment claim, we “examine
independently the facts in the record and ‘draw our own
inferences’ from them.” Tenafly Eruv Ass’n v. Borough of
Tenafly, 309 F.3d 144, 157 (3d Cir. 2002) (quoting Christ’s
Bride Ministries, Inc. v. Se. Pa. Transp. Auth., 148 F.3d 242,
247 (3d Cir. 1998)). Like the District Court, however, we
review the facts in the light most favorable to the nonmoving
party. See Hugh, 418 F.3d at 267.

III. Discussion

On appeal, Plaintiffs argue that the Ordinance violates
the Free Speech and Free Press Clauses 9 of the First
Amendment for three reasons: first, the Ordinance is content
based and therefore subject to strict scrutiny; second, even if it
is content neutral, the Ordinance is not narrowly tailored and
thus does not survive intermediate scrutiny; and third, the
Ordinance is overbroad. After providing an overview of the
general framework that guides our analysis, we address each
of these arguments.

9
For the reasons articulated in Bruni I, we treat
Plaintiffs’ free speech and free press claims together. See 824
F.3d at 373 (“Plaintiffs’ free press claim is . . . properly
considered a subset of their broader free speech claim, given
that the Freedom of the Press Clause and the Free Speech
Clause both protect leafleting from government
interference.”).

16
 A. General Framework

Plaintiffs allege that the Ordinance is unconstitutional
on its face. See Bruni I, 824 F.3d at 362. A facial challenge
“seeks to vindicate not only [a plaintiff’s] own rights,” as in an
as-applied challenge, but also “those of others who may . . . be
adversely impacted by the statute in question.” Id. (quoting
CMR D.N. Corp. v. City of Philadelphia, 703 F.3d 612, 623
(3d Cir. 2013)). Although facial challenges in the First
Amendment context are more forgiving than those in other
contexts, see United States v. Salerno, 481 U.S. 739, 745
(1987), “all agree that a facial challenge [under the First
Amendment] must fail where the statute has a plainly
legitimate sweep,” Wash. State Grange v. Wash. State
Republican Party, 552 U.S. 442, 449 (2008) (citation omitted).

As we explained in Bruni I, however, “the distinction
between facial and as-applied challenges is not so well defined
that it has some automatic effect or that it must always control
the . . . disposition in every case involving a constitutional
challenge.” 824 F.3d at 363 (quoting Citizens United v. FEC,
558 U.S. 310, 331 (2010)). Courts therefore look to “[t]he
relevant constitutional test” to resolve the inquiry, id. (citation
omitted), bearing in mind that a party seeking to invalidate a
law in its entirety bears a heavy burden, see Wash. State
Grange, 552 U.S. at 450–51; Brown, 586 F.3d at 269.

Here, the relevant test is that governing free speech
claims. The government’s ability to restrict speech in a
traditional public forum, such as a sidewalk, is “very limited.”
McCullen, 573 U.S. at 477 (citation omitted). That is because
traditional public fora “are areas that have historically been
open to the public for speech activities.” Id. at 476. In such

17
fora, the government may not restrict speech based on its
“communicative content,” Bruni I, 824 F.3d at 364 (quoting
Reed, 135 S. Ct. at 2226)—that is, the government “has no
power to restrict expression because of its message, its ideas,
its subject matter, or its content,” id. at 363 (quoting Ashcroft
v. ACLU, 535 U.S. 564, 573 (2002)).

By contrast, the government has greater leeway to
regulate “features of speech unrelated to its content.”
McCullen, 573 U.S. at 477. Thus, “[e]ven in a public forum
the government may impose reasonable restrictions on the
time, place, or manner of protected speech, provided the
restrictions ‘are justified without reference to the content of the
regulated speech, that they are narrowly tailored to serve a
significant governmental interest, and that they leave open
ample alternative channels for communication of the
information.’” Id. (quoting Ward v. Rock Against Racism, 491
U.S. 781, 791 (1989)).

The level of scrutiny a court applies to a restriction on
speech depends on whether it is content based or content
neutral. If the restriction is content based, it is subject to strict
scrutiny and is therefore “presumptively unconstitutional and
may be justified only if the government proves that [it is]
narrowly tailored to serve compelling state interests.” Reed,
135 S. Ct. at 2226; see McCullen, 573 U.S. at 478. If a
restriction is content neutral, “we apply intermediate scrutiny
and ask whether it is ‘narrowly tailored to serve a significant
governmental interest.’” Bruni I, 824 F.3d at 363–64 (quoting
Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 764

18
(1994)). The threshold question, therefore, is whether the
restriction here is content based or content neutral. 10

B. Content Neutrality

Plaintiffs contend that the Ordinance is content based
and thus subject to strict scrutiny because it regulates speech
“based on subject matter, function, or purpose,” rendering it
content based under Reed. 11 Appellants’ Br. 34. For the
reasons that follow, we disagree.

10
Although the parties begin their briefing with an
application of intermediate scrutiny, we follow the Supreme
Court’s lead in McCullen by addressing first whether the
Ordinance is content based because the answer to that question
determines the correct level of scrutiny to apply. See 573 U.S.
at 478–79.
11
Plaintiffs make additional arguments in passing, but
they are not persuasive. First, Plaintiffs contend that the City’s
purpose in adopting the Ordinance was to “target anti-abortion
content” because the City Council’s discussion about the
Ordinance “centered entirely on abortion and the speech
outside of abortion facilities in Pittsburgh.” Appellants’ Br.
40–41. But the Supreme Court explicitly rejected this
argument in McCullen. See 573 U.S. at 481–82 (“States adopt
laws to address the problems that confront them. The First
Amendment does not require States to regulate for problems
that do not exist.” (quoting Burson v. Freeman, 504 U.S. 191,
207 (1992) (plurality opinion))). Second, Plaintiffs argue that
the Ordinance is content based as applied because it is enforced
only outside of reproductive health facilities and therefore
affects only abortion-related speech. Plaintiffs did not make

19
 In Reed, the Supreme Court considered the
constitutionality of an ordinance that regulated the manner of
display of outdoor signs depending on their subject matter. 134
S. Ct. at 2224–25. For example, the ordinance allowed
“Political Signs” to be bigger in size and remain posted longer
than those it defined as “Temporary Directional Signs.” Id. at
2224–25, 2227. The Court held that the regulation was content
based because the restrictions applied differently “depend[ing]
entirely on the communicative content of the sign[s].” Id. at
2227. As relevant here, the Court noted that whereas “[s]ome
facial distinctions . . . are obvious,” such as “defining regulated
speech by particular subject matter,” others are more “subtle,”
such as “defining regulated speech by its function or purpose.”
Id.

The thrust of Plaintiffs’ argument is that the Ordinance
is content based because the City interprets the word
“demonstrating” to apply to sidewalk counseling but not to
peaceful one-on-one communication about other subjects, like
sports teams, and, as a result, law enforcement must examine
the content of any speech to determine if it is prohibited.
However, despite the assumptions of both parties, 12 nothing in

this argument at summary judgment below, and it is therefore
forfeited. See Keenan v. City of Philadelphia, 983 F.2d 459,
471 (3d Cir. 1992). In any event, “a facially neutral law does
not become content based simply because it may
disproportionally affect speech on certain topics.” McCullen,
573 U.S. at 480. Reed, decided one year after McCullen, does
not speak to these aspects of McCullen’s analysis.
12
Although Plaintiffs contend that the City “enforces”
the Ordinance “to suppress [their] leafletting and sidewalk

20
the plain language of the Ordinance supports a construction
that prohibits peaceful one-on-one conversations on any topic
or conducted for any purpose at a normal conversational
volume or distance. In short, the Ordinance as written does not
prohibit the sidewalk counseling in which Plaintiffs seek to
engage within the zone.

No doubt, if the Ordinance by its terms did prohibit one-
on-one conversations about abortion but not about other
subjects within the zone, it would be highly problematic, see
Reed, 135 S. Ct. at 2230, particularly where, as here, the speech
alleged to be prohibited occurs on a public sidewalk and
constitutes one-on-one “normal conversation and leafletting,”
McCullen, 573 U.S. at 488—“core political speech entitled to
the maximum protection afforded by the First Amendment,”
Bruni I, 824 F.3d at 357. But under the doctrine of
constitutional avoidance, “[i]t has long been a tenet of First
Amendment law that in determining a facial challenge to a
statute, if it be ‘readily susceptible’ to a narrowing construction

conversations” within the buffer zone, Appellants’ Br. 17, the
record does not reflect any prosecution, arrest, or even citation.
Instead, it reflects that, except for isolated instances in which
police were called to Planned Parenthood but took no action,
Plaintiffs avoided the buffer zone based on an assumption,
shared by the City, about the scope of the Ordinance. The
realistic threat of the City’s enforcement is sufficient for
purposes of Plaintiffs’ standing. See Susan B. Anthony List v.
Driehaus, 573 U.S. 149, 158 (2014). As we explain below,
however, it does not preclude us under the doctrine of
constitutional avoidance from adopting a narrowing
construction of the Ordinance.

21
that would make it constitutional, it will be upheld.” 13 Virginia
v. Am. Booksellers Ass’n, Inc., 484 U.S. 383, 397 (1988); see
also Ayotte v. Planned Parenthood of N. New England, 546
U.S. 320, 328–29 (2006) (“Generally speaking, when
confronting a constitutional flaw in a statute, we try to limit the
solution to the problem.”).

Of course, we may not “rewrite a . . . law to conform it
to constitutional requirements,” United States v. Stevens, 559
U.S. 460, 481 (2010) (citation omitted), but, as we have
recognized on many occasions, “[i]n the absence of a limiting
construction from a state authority, we must ‘presume any
narrowing construction or practice to which the law is fairly
susceptible.’” 14 Brown, 586 F.3d at 274 (quoting City of

13
As we said in Brown, “[t]his principle of
interpretation is consistent with Pennsylvania law.” 586 F.3d
at 274 n.13 (citing Commonwealth v. Monumental Props., Inc.,
329 A.2d 812, 827 (Pa. 1974); and Dole v. City of Philadelphia,
11 A.2d 163, 168–69 (Pa. 1940)). And this is a particularly
compelling case in which to apply the doctrine given the
constitutional concerns inherent in restricting this kind of
speech. As the Court explained in McCullen, “‘one-on-one
communication’ is ‘the most effective, fundamental, and
perhaps economical avenue of political discourse.’” 573 U.S.
at 488 (quoting Meyer v. Grant, 486 U.S. 414, 424 (1988)).
Indeed, “[l]eafletting and commenting on matters of public
concern are classic forms of speech that lie at the heart of the
First Amendment.” Id. at 489 (quoting Schenck, 519 U.S. at
377).
14
That is not to say that the City’s interpretation of the
Ordinance is irrelevant—it is a consideration in a court’s

22
Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 770 n.11
(1988)); see Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200,
215 n.10 (3d Cir. 2001) (explaining that where a state court has
not authoritatively construed the terms of a stated policy, “we
are . . . required to give it a reasonable narrowing construction
if necessary to save it from unconstitutionality”); see also

determination of whether to adopt a limiting construction. See
Forsyth County v. Nationalist Movement, 505 U.S. 123, 131
(1992); see also Ward, 491 U.S. at 795–96. But the City’s
interpretation has not been adopted by any Pennsylvania court,
and where no state court has weighed in and the Ordinance is
readily susceptible to a “reinterpretation” consistent with the
Ordinance’s text, the City’s position is not dispositive. Free
Speech Coal., Inc. v. Attorney Gen. of the U.S., 677 F.3d 519,
539 (3d Cir. 2012); Saxe v. State Coll. Area Sch. Dist., 240 F.3d
200, 215–16, 215 n.10 (3d Cir. 2001); see also U.S. Nat’l Bank
of Ore. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 447
(1993) (stating, outside of the constitutional avoidance context,
that litigants cannot “extract the opinion of a court on
hypothetical Acts of Congress or dubious constitutional
principles” by agreeing on the proper construction of the law);
Comite de Jornaleros de Redondo Beach v. City of Redondo
Beach, 657 F.3d 936, 946 (9th Cir. 2011) (“[W]e are not
required to . . . adopt an interpretation precluded by the plain
language of the ordinance.” (citation omitted)). While other
Courts of Appeals take a contrary approach, see United Food
& Commercial Workers Int’l Union v. IBP, Inc., 857 F.2d 422,
431 (8th Cir. 1988); Hill v. City of Houston, 789 F.2d 1103,
1112 (5th Cir. 1986), our precedent is clear, see Free Speech
Coal., Inc., 677 F.3d at 539; Brown, 586 F.3d at 274; Saxe, 240
F.3d at 215–16, 215 n.10.

23
Frisby v. Schultz, 487 U.S. 474, 483 (1988) (“To the extent
they endorsed a broad reading of the ordinance, the lower
courts ran afoul of the well-established principle that statutes
will be interpreted to avoid constitutional difficulties.”).

Here, the Ordinance is readily susceptible to a
narrowing construction. The text of the Ordinance says
nothing about leafletting or peaceful one-on-one
conversations, let alone on a particular topic or for a particular
purpose. And, to put a fine point on it, the floating bubble
zone, which was enjoined years ago, did prohibit “passing a
leaflet,” “educating,” or “counseling.” Pitts. Code § 623.03.
Those are not the activities that remain prohibited in the zone,
and “when the legislature uses certain language in one part of
the statute and different language in another, the court assumes
different meanings were intended.” Sosa v. Alvarez-Machain,
542 U.S. 692, 711 n.9 (2004) (quoting 2A N. Singer, Statutes
and Statutory Construction § 46:06, at 194 (6th rev. ed. 2000)).

The Ordinance prohibits four—and only four—
activities within the zone: “congregat[ing],” “patrol[ling],”
“picket[ing],” and “demonstrat[ing].” Pitts. Code
§ 623.04. And none of those terms, as commonly understood,
encompasses the sidewalk counseling in which Plaintiffs
engage. 15

15
In its briefing and at oral argument, the City justified
its interpretation by noting that in Schenck, the injunction at
issue referred to “sidewalk counseling” as a “form of
demonstrating,” and the Supreme Court did not reject that
characterization. See Appellees’ Br. 48 (citation omitted). But
the Court made clear that the term as used by some protestors
in that case was misleading given their aggressive actions, see

24
 To “congregate” means “to collect into a group or
crowd.” Congregate, Merriam-Webster’s Collegiate
Dictionary 262 (11th ed. 2005) [hereinafter Merriam-
Webster’s]; see also Congregate, The American Heritage
Dictionary of the English Language 388 (4th ed. 2006)
[hereinafter American Heritage] (defining “congregate” as
“bring or come together in a group, crowd, or assembly”). To
“patrol” is “to carry out a patrol,” defined in turn as “the action
of traversing a district or beat or of going the rounds along a
chain of guards for observation or the maintenance of
security,” Patrol, Merriam-Webster’s 909, and “[t]he act of
moving about an area especially by an authorized and trained
person . . . for purposes of observation, inspection, or security,”
Patrol, American Heritage 1290. To “picket” is to “serve as a
picket,” defined as “a person posted for a demonstration or
protest.” Picket, Merriam-Webster’s 937; see also Picket,
American Heritage 1327 (defining “picket” as “to post as a
picket” where “picket” is defined as “[a] person or group of
persons present outside a building to protest”). And to
“demonstrate” is defined as “to make a demonstration,” which
is defined in turn as “an outward expression or display” and “a
public display of group feelings toward a person or cause.”
Demonstrate, Merriam-Webster’s 332; see also Demonstrate,
American Heritage 484 (defining “demonstrate” as “[t]o
participate in a public display of opinion”).

Plaintiffs’ sidewalk counseling does not meet any of
these definitions. While the Supreme Court has noted that a

Schenck, 519 U.S. at 363, 381–82, and, as discussed, see supra
note 6, such conduct falls far outside Plaintiffs’ definition of
sidewalk counseling.

25
grouping of three or more people may constitute
“congregat[ing],” see Boos v. Barry, 485 U.S. 312, 316–17
(1988), approaching someone individually to engage in a one-
on-one conversation no more constitutes “congregat[ing]” than
walking alongside another person constitutes “patrol[ling].”
And while signs and raised voices may constitute “picket[ing]”
or “demonstrat[ing],” speaking to someone at a normal
conversational volume and distance surely does not. Simply
calling peaceful one-on-one conversations “demonstrating” or
“picketing” does not make it so when the plain meaning of
those terms does not encompass that speech. 16

Moreover, the activities that the Ordinance does
prohibit render it content neutral under binding Supreme Court
precedent. No doubt due to the easily identifiable nature and
visibility of “congregat[ing], patrol[ling], picket[ing] or
demonstrat[ing],” Pitts. Code § 623.04, the Court has
repeatedly considered regulation of those activities to be based
on the manner in which expressive activity occurs, not its
content, and held such regulation content neutral. See Madsen,

16
Perhaps because of this disconnect between the
Ordinance’s text and the specific expressive activities to which
the parties have assumed the Ordinance applies, the City’s own
witness struggled during his deposition to explain which
specific prohibition was even applicable to Plaintiffs’ sidewalk
counseling. For example, when asked “[w]hat part of the
Ordinance” would prohibit a sidewalk counselor from crossing
into the buffer zone while talking to a patient, the City’s
designated witness replied, “[c]all it congregating, patrolling,
picketing, or demonstrating, or any name you wish to give it.”
JA 337a.

26
512 U.S. at 759, 763–64 (addressing the precise language at
issue here, “congregating, picketing, patrolling, [and]
demonstrating,” and concluding that the injunction prohibiting
those activities was content neutral); see also Snyder v. Phelps,
562 U.S. 443, 456 (2011); Hill, 530 U.S. at 721; Schenck, 519
U.S. at 383–85; United States v. Grace, 461 U.S. 171, 181–82
(1983). 17 Nor does Reed alter that conclusion. See Reed, 135
S. Ct. at 2228–29.

In short, the doctrine of constitutional avoidance
counsels that we impose a limiting construction where, as here,
a statute has not been construed by a state court and is not only
susceptible to a narrowing construction but also demands that
construction on its face. See Am. Booksellers, 484 U.S. at 397;
Brown, 586 F.3d at 274; Saxe, 240 F.3d at 215 n.10. Because

17
We have continued to rely on Hill since McCullen and
Reed were handed down, see, e.g., Turco v. City of Englewood,
935 F.3d 155, 165 (3d Cir. 2019) (declining to strike down
eight-foot buffer zone as a matter of law because “such a
conclusion would be directly at odds with the Supreme Court’s
decision in Hill v. Colorado” (citation omitted)), as have some
of our sister circuits, e.g., March v. Mills, 867 F.3d 46, 64 (1st
Cir. 2017); Act Now to Stop War & End Racism Coal. &
Muslim Am. Soc’y Freedom Found., 846 F.3d 391, 403–04
(D.C. Cir. 2017). We note, however, that other Courts of
Appeals have observed that, even if “neither McCullen nor
Reed overruled Hill, so it remains binding on us,” the content
neutrality holding of Hill may be “hard to reconcile with both
McCullen and Reed,” Price v. City of Chicago, 915 F.3d 1107,
1109 (7th Cir. 2019) (Sykes, J.), petition for cert. filed, No. 18-
1516 (U.S. June 6, 2019).

27
the Ordinance, as properly interpreted, does not extend to
sidewalk counseling—or any other calm and peaceful one-on-
one conversations—there is no need for law enforcement “to
examine the content of the message . . . to determine whether
a violation has occurred.” McCullen, 573 U.S. at 479 (citation
omitted). The Ordinance so read is thus content neutral and
subject to intermediate scrutiny.

C. Application of Intermediate Scrutiny

Because we conclude the Ordinance does not implicate
Plaintiffs’ speech, we could end our analysis here if this were
an as-applied challenge. But because Plaintiffs have brought a
facial challenge, we briefly consider whether the Ordinance as
applied to the remaining expressive activity of congregating,
patrolling, picketing, or demonstrating within fifteen feet of the
clinic entrance is “narrowly tailored to serve a significant
governmental interest.” 18 Id. at 477 (quoting Ward, 491 U.S.
at 791). We easily conclude that it is.

18
To satisfy intermediate scrutiny, the government
bears the burden of demonstrating that a restriction on speech
is “narrowly tailored to serve a significant governmental
interest” and “leave[s] open ample alternative channels for
communication of the information.” McCullen, 573 U.S. at
477 (quoting Ward, 491 U.S. at 791). Plaintiffs do not dispute
the “ample alternatives” prong and, with its narrowing
construction, “the limited nature of the prohibition makes it
virtually self-evident that ample alternatives remain.” Frisby,
487 U.S. at 483. We therefore focus our inquiry, as do the
parties, on the issue of narrow tailoring.

28
 As Plaintiffs acknowledge, the interests that the City
seeks to protect—unimpeded access to pregnancy-related
services, ensuring public safety, and eliminating “neglect” of
law enforcement needs—are legitimate. 19 Bruni I, 824 F.3d at
368 (quoting Pitts. Code § 623.01); see McCullen, 573 U.S. at
487, 496–97 (describing these interests as “undeniably
significant” interests that are “clearly serve[d]” by buffer
zones); see also Turco v. City of Englewood, 935 F.3d 155, 166
(3d Cir. 2019) (recognizing the government’s significant
interest in “protecting the health and safety of its citizens,
which ‘may justify a special focus on unimpeded access to
health care facilities and the avoidance of potential trauma to
patients associated with confrontational protests’”) (citation

19
To the extent Plaintiffs argue that the City’s stated
interests were not substantiated on remand, the record—
including reports of violent incidents, obstruction of patients’
ingress and egress, and aggressive confrontations—establishes
otherwise. See supra Section I.A.1. Plaintiffs’ additional
argument that there has been no obstructive conduct preventing
access to the clinic’s entrance in recent years and, therefore,
that the Ordinance is no longer necessary is also belied by the
record. For starters, there is evidence in the record to the
contrary. For example, a clinic escort declared in 2014 that she
was “aware of incidents at [Planned Parenthood] in which
escorts were pushed by a protester and where protesters placed
their hands on patients and thrust their leaflets inside patients’
coat pockets or handbags.” JA 709a–10a. More importantly,
the fact that an otherwise constitutional restriction on speech is
successful in serving the interests for which it was intended is
hardly a reason to strike it down.

29
omitted). Instead, Plaintiffs argue that the Ordinance is not
narrowly tailored to those interests.

To be narrowly tailored, a regulation must not “burden
substantially more speech than is necessary to further the
government’s legitimate interests.” McCullen, 573 U.S. at 486
(quoting Ward, 491 U.S. at 799). At the same time, it “‘need
not be the least restrictive or least intrusive means of’ serving
the government’s interest,” id. (quoting Ward, 491 U.S. at
798), and we “afford[] some deference to a municipality’s
judgment in adopting a content-neutral restriction on speech,”
Bruni I, 824 F.3d at 370.

In arguing that the restriction on speech here is not
narrowly tailored, Plaintiffs do not distinguish between the
Ordinance as read to include sidewalk counseling and the
Ordinance as read to exclude it. Rather, quoting Bruni I, they
contend we “already made clear that ‘the City has the same
obligation to use less restrictive alternatives to its buffer zone
as . . . Massachusetts had with respect to the buffer zone at
issue in McCullen.’” Appellants’ Br. 25 (quoting Bruni I, 824
F.3d at 369). So, say Plaintiffs, just as in McCullen, the City
had to demonstrate on remand that “substantially less-
restrictive alternatives,” including arrests, prosecutions, and
injunctions, “were tried and failed, or . . . were closely
examined and ruled out for good reason.” Bruni I, 824 F.3d at
370. Because the City here concededly failed to make a
showing of that magnitude, Plaintiffs contend the Ordinance
necessarily fails intermediate scrutiny.

Plaintiffs mistake the import of Bruni I in two respects.
First, in reviewing the District Court’s dismissal of Plaintiffs’
complaint, we did not conclusively determine that the City

30
“ha[d] the same obligation to use less restrictive alternatives”
as in McCullen. Bruni I, 824 F.3d at 369. As appropriate at
the pleading stage, we “accept[ed] all [of Plaintiffs’] factual
allegations as true,” id. at 360 (citation omitted), and held that
“[b]ecause of the significant burden on speech that the
Ordinance allegedly imposes, the City ha[d] the same
obligation to use,” id. at 369 (emphasis added), or show that it
“seriously considered, substantially less restrictive
alternatives,” id. at 357, as in McCullen. On that basis, we
remanded for a determination of the proper scope of the
Ordinance, the actual burden on Plaintiffs’ speech, and a
means–ends analysis “by the standard that McCullen now
requires.” Id. at 375.

Second, to the extent Plaintiffs’ argument is that
McCullen imposes on a municipality “the same obligation” as
on Massachusetts—even in the absence of a “significant
burden on speech,” id. at 369—they are mistaken. As we
recognized in Bruni I, where the burden on speech is de
minimis, a regulation may “be viewed as narrowly tailored,
even at the pleading stage,” id. at 372 n.20, and McCullen and
Bruni I both observed that where there is only “a slight burden
on speech, any challengers would struggle to show that
‘alternative measures [would] burden substantially less
speech,’” id. (alteration in original) (quoting McCullen, 573
U.S. at 495). In short, while McCullen and Bruni I made clear
that a “rigorous and fact-intensive” inquiry will be required
where a restriction imposes a significant burden on speech,
Bruni I, 824 F.3d at 372, they also made clear (and logic
dictates) that a less demanding inquiry is called for where the
burden on speech is not significant—whether due to a

31
restriction’s scope, the size of the speech-free zone, or some
combination of the two. 20

In this case, now that we have before us both a
developed record and a narrow construction of the Ordinance,
it is apparent that the burden it imposes is different from
McCullen both in scope and size and is instead akin to that
imposed by the thirty-six-foot and fifteen-foot buffer zones
that the Supreme Court upheld in Madsen v. Women’s Health
Center, Inc., 512 U.S. at 757, 776, and Schenck v. Pro-Choice
Network of Western New York, 519 U.S. at 364, 380,
respectively.

20
In Bruni I, we explained that when dealing with core
speech, such as sidewalk counseling, whether a restriction is
less burdensome in “degree”—meaning size in the context we
used it—is not necessarily dispositive of whether the burden
on speech is significant. 824 F.3d at 368. A court must also
consider the burden as “a matter of . . . kind,” referring to the
type of speech a restriction prohibits. Id. Elsewhere in the
opinion, however, we also recognized that there may be cases
where the “degree” of burden is so minimal that it, alone, will
determine whether the burden on speech should be considered
significant, thus potentially negating any need for the
government to show that substantially less-restrictive
alternatives were tried and failed or seriously considered and
reasonably rejected. See id. at 372 n.20 (quoting McCullen,
573 U.S. at 495). As “degree” could refer to the size of the
zone or significance of the burden, depending on the context,
and both subjects are mentioned in today’s opinion, we will use
the terms “scope” and “size,” rather than “kind” and “degree,”
for the sake of clarity.

32
 As to scope, although the restrictions in those cases
were more targeted in that they were created by way of
injunction, not legislation, see Schenck, 519 U.S. at 361;
Madsen, 512 U.S. at 757, the Ordinance is narrower in scope
because it limits only congregating, patrolling, picketing, and
demonstrating within a fifteen-foot buffer zone, and does not
sweep in the “one-on-one communication,” including “normal
conversation and leafletting,” that McCullen emphasized “have
historically been more closely associated with the transmission
of ideas,” 573 U.S. at 488. Thus, so long as she is not
“congregating” with others in the buffer zone, an individual
plaintiff is not barred by the Ordinance from engaging in
sidewalk counseling inside its borders. Cf. Schenck, 519 U.S.
at 367, 369–70, 383–84 (describing and upholding the district
court’s decision to allow only two sidewalk counselors inside
the fifteen-foot buffer zone); Madsen, 512 U.S. at 759
(prohibiting not only “congregating, picketing, patrolling,
[and] demonstrating” within the zone but also “entering”).

And as to size, the relatively small buffer zone imposed
by the Ordinance, like those in Madsen and Schenck, does not
prevent groups like Forty Days for Life from congregating
within sight and earshot of the clinic. Nor does it prevent
protestors, demonstrators, or picketers from being seen and
heard, or any of these persons from speaking outside the zone
with willing listeners who are entering or exiting. See Schenck,
519 U.S. at 384–85; Madsen, 512 U.S. at 770. And size, while
not necessarily in and of itself dispositive, see Bruni I, 824 F.3d
at 368, is still a “substantial distinction” that must factor into a
court’s analysis of the relative burden on speech, Turco, 935
F.3d at 163.

33
 Also as in Madsen and Schenck, the record shows that
the City resorted to a fixed buffer zone not in the first instance
but after attempting or considering some less burdensome
alternatives and concluding they were unsuccessful in meeting
the legitimate interests at issue. See Schenck, 519 U.S. at 380–
82; Madsen, 512 U.S. at 769–70. These included an overtime
police detail in front of Planned Parenthood until the cost
became prohibitive once the City was declared a financially
distressed municipality; 21 incident-based responses by the
police that proved unsuccessful in preventing or deterring
aggressive incidents and congestion; and consideration of
criminal laws that the police were finding inadequate to
address the problem of protestors following patients and
obstructing their way to the clinic.

True, as Plaintiffs point out, this record does not reflect
that the City tried or seriously considered arrests, prosecutions,
or targeted injunctions, which Plaintiffs would have us treat as
dispositive. But where the burden imposed by a restriction on

21
In McCullen, Massachusetts did not assert such
economic hardships. While the Court noted that “the prime
objective of the First Amendment is not efficiency,” McCullen,
573 U.S. at 495, it did not have occasion to consider
circumstances where “the limitations of ‘manpower’ and the
need to be able to deploy officers in response to emergencies”
made it “not feasible to permanently provide a significantly
increased police presence at the clinic,” Turco, 935 F.3d at 167.
As we recently recognized, however, the facts “that the police
department ha[s] finite resources,” id. (citation omitted), and a
city has “financial restraints,” id. at 167–68, are relevant to the
narrow tailoring analysis.

34
speech is not significant, the government need demonstrate
neither that “it has tried or considered every less burdensome
alternative,” Bruni I, 824 F.3d at 370, nor that it tried or
considered every less burdensome alternative discussed in
McCullen. Instead, as we reiterated in Turco, this is an
“intensely factual . . . inquiry,” 935 F.3d at 170, that must
account for “the ‘broad principle of deference to legislative
judgments’ and that a legislative body ‘need not meticulously
vet every less burdensome alternative,’” id. at 171 (quoting
Bruni I, 824 F.3d at 370 n.18). And, as we recognized there in
remanding for further fact-finding, a municipality can
demonstrate that it “attempted . . . [or] considered alternative
means of bringing order to the sidewalk” even if it “ha[s] not
‘prosecute[d] any protestors for activities taking place on the
sidewalk’ and ‘did not seek injunctive relief against individuals
whose conduct was the impetus for the Ordinance.’” Id. at 167
(second alteration in original) (quoting Turco v. City of
Englewood, No. 2:15-cv-03008, 2017 WL 5479509, at *5
(D.N.J. Nov. 14, 2017)). The ultimate question remains
whether a restriction on speech “burden[s] substantially more
speech than is necessary to further the government’s legitimate
interests.” McCullen, 573 U.S. at 486 (emphasis added)
(quoting Ward, 491 U.S. at 799).

Consistent with Madsen and Schenck, the Ordinance, as
we have construed it, does not do so. 22 The Ordinance

22
We recognize that the City may have a legitimate
concern about access to healthcare facilities if it transpires that
multiple one-on-one conversations impair access to the
facilities, see McCullen, 573 U.S. at 486–87, and that the City
may then have occasion to revisit the terms of the Ordinance
having developed a record that would satisfy McCullen and

35
therefore is “narrowly tailored to serve a significant
governmental interest,” McCullen, 573 U.S. at 477 (quoting
Ward, 491 U.S. at 791), and it satisfies intermediate scrutiny.

D. Overbreadth

Finally, Plaintiffs argue that the Ordinance is
unconstitutionally overbroad because it authorizes the City to
create buffer zones at any health facility in the City, regardless
of whether the City has identified a problem at the location in
the past. A law may be overbroad under the First Amendment
where “a substantial number of its applications are
unconstitutional, judged in relation to the [law’s] plainly
legitimate sweep.” Bruni I, 824 F.3d at 374 (quoting Stevens,
559 U.S. at 473). The overbreadth doctrine is “strong
medicine,” Kreimer v. Bureau of Police, 958 F.2d 1242, 1265
(3d Cir. 1992) (citation omitted), should therefore be “used
sparingly,” id., and will “not be[] invoked when a limiting
construction has been or could be placed on the challenged”
law, Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973).

Plaintiffs’ overbreadth challenge is not well-founded.
As a general matter, “[t]he fact that the coverage of a statute is
broader than the specific concern that led to its enactment is of
no constitutional significance,” Hill, 530 U.S. at 730–31, and
its applicability more generally is one of the reasons that we
consider it to be a content-neutral restriction on speech, see id.
at 731. For that reason, “[w]hen a buffer zone broadly applies
to health care facilities” to include “buffer zones at non-

Bruni I, as well as the content-neutrality requirement of Reed.
See Turco, 935 F.3d at 162–63. That, however, is not the
Ordinance before us today.

36
abortion related locations,” we may then “conclude ‘the
comprehensiveness of the statute is a virtue, not a vice, because
it is evidence against there being a discriminatory
governmental motive.’” Turco, 935 F.3d at 171 (quoting Hill,
530 U.S. at 730–31).

Nor is the Ordinance overbroad because it affords the
City discretion to select particular health facilities at which it
will demarcate a buffer zone. Since the demarcation
requirement was put in place approximately ten years ago, the
City has exercised that discretion as to only two facilities, both
of which suffered from violence and obstruction in the past.
Yet we may not, as Plaintiffs suggest, simply assume that “the
statute’s very existence may cause others not before the court
to refrain from constitutionally protected speech or
expression.” Broadrick, 413 U.S. at 612. Instead, we revert
again to the “principle . . . well-established in First
Amendment jurisprudence”—“our duty to ‘accord a measure
of deference to the judgment’ of [the] city council,’” Turco,
935 F.3d at 171 (quoting Hill, 530 U.S. at 727), considering
“[the] statute’s application to real-world conduct, not fanciful
hypotheticals,” id. at 172 (quoting Stevens, 559 U.S. at 485).
Applying that principle here, we conclude the Ordinance is not
substantially overbroad.

In sum, Plaintiffs have not carried their “burden of
demonstrating, ‘from the text of [the law] and from actual fact,’
that substantial overbreadth exists.” Virginia v. Hicks, 539
U.S. 113, 122 (2003) (alteration in original) (citation omitted).
We therefore affirm the District Court’s grant of summary
judgment to the City on this claim.

37
IV. Conclusion

For the foregoing reasons, we will affirm the District
Court’s order granting summary judgment.

38
Nikki Bruni et al. v. City of Pittsburgh et al. (Bruni II), No. 18-
1084

HARDIMAN, Circuit Judge, concurring.

I join the Court’s opinion because it rightly construes
the Pittsburgh Ordinance to allow conversation on a public
sidewalk. I write separately to highlight the impact of Reed v.
Town of Gilbert, 135 S. Ct. 2218 (2015). In my view, Reed
weakened precedents cited in the Court’s content neutrality
analysis and will constrain Pittsburgh’s enforcement of the
Ordinance going forward.

I

It is true that the Supreme Court has held that restricting
“congregating, picketing, patrolling, [and] demonstrating”
around abortion clinics is facially content neutral. Madsen v.
Women’s Health Ctr., Inc., 512 U.S. 753, 759, 757–65 (1994);
see Op. 26–27. The Court has even extended this content
neutrality to “wildly expansive definitions” of “demonstrate”
and “picket.” Hill v. Colorado, 530 U.S. 703, 744 (2000)
(Scalia, J., dissenting); see id. at 721–22 (majority opinion)
(“defining ‘demonstrate’ as ‘to make a public display of
sentiment for or against a person or cause’ and ‘picket’ as an
effort ‘to persuade or otherwise influence’” (quoting Webster’s
Third New International Dictionary 600, 1710 (1993))); see
also Schenck v. Pro-Choice Network of W. N.Y., 519 U.S. 357,
374 n.6, 381–82 (1997) (upholding injunction against
“demonstrating,” even though it would target some “stationary,
nonobstructive demonstrations”).

The continued vitality of this content neutrality analysis
is questionable after Reed. Before Reed, the Court vacillated
between two tests for content neutrality. See generally
Genevieve Lakier, Reed v Town of Gilbert, Arizona, and the
Rise of the Anticlassificatory First Amendment, 2016 Sup. Ct.
Rev. 233; Elena Kagan, Private Speech, Public Purpose: The
Role of Governmental Motive in First Amendment Doctrine,
63 U. Chi. L. Rev. 413 (1996). In cases like Hill, Schenck, and
Madsen, the “government’s purpose [w]as the threshold
consideration.” Madsen, 512 U.S. at 763; see Hill, 530 U.S. at
719; Schenck, 519 U.S. at 371–74 & n.6 (relying solely on
Madsen to hold injunction content neutral). But in other cases,
the Court’s first consideration was whether a law “draw[s]
content-based distinctions on its face.” McCullen v. Coakley,
573 U.S. 464, 479 (2014). Any law that did so was necessarily
content based, no matter the government’s purpose. See, e.g.,
Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims
Bd., 502 U.S. 105, 116–17, 122 n.* (1991).

Reed adopted the latter test for content neutrality. It held
that “[a] law that is content based on its face is subject to strict
scrutiny regardless of the government’s benign motive,
content-neutral justification, or lack of ‘animus toward the
ideas contained’ in the regulated speech.” 135 S. Ct. at 2228
(quoting Cincinnati v. Discovery Network, Inc., 507 U.S. 410,
429 (1993)); see id. at 2237–39 (Kagan, J., concurring in the
judgment). By doing so, Reed “overturn[ed] the standard that
[the Court] had previously used to resolve a particular class of
cases”—a class that includes cases like this one and Hill. Brian
A. Garner et al., The Law of Judicial Precedent 31 (2016)
(citing Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 66–67
(1996), and Planned Parenthood of Se. Pa. v. Casey, 947 F.2d
682, 691–93 (3d Cir. 1991), aff’d in part, rev’d in part, 505
U.S. 833 (1992)). In fact, Reed rebuked Hill several times: by
noting that the errant Court of Appeals relied on it, 135 S. Ct.

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at 2226; and by favorably citing dissents in Hill authored by
Justices Scalia and Kennedy, id. at 2229.

Reed also seems to have expanded the types of laws that
are facially content based. Facial distinctions, the Court
explained, may not only be “obvious, defining regulated
speech by particular subject matter.” Id. at 2227. They may also
be “subtle, defining regulated speech by its function or
purpose.” Id. Two cases discussed in Reed exemplify this
subtle content discrimination.

The first, Sorrell v. IMS Health Inc., involved a law that
restricted the sale, disclosure, and use of information about
drug prescriptions. See 564 U.S. 552, 563–64 (2011); Reed,
135 S. Ct. at 2227. The Court held content based a provision
that allowed the sale of that information for “‘educational
communications,’” but not for “marketing.” Sorrell, 564 U.S.
at 564 (quoting Vt. Stat. Ann., tit. 18, § 4631(e)(4) (Supp.
2010)). “[E]ducation[ ]” and “marketing” are examples of
speech’s “function or purpose” under Reed. 135 S. Ct. at 2227.
They explain how or why a speaker speaks, not what is said. Id.

The second case that underscores the protection
afforded to speech’s function or purpose is NAACP v. Button,
371 U.S. 415 (1963). See Reed, 135 S. Ct. at 2229. In that case,
Virginia “attempt[ed] to use a statute prohibiting ‘improper
solicitation’ by attorneys to outlaw litigation-related speech of
the National Association for the Advancement of Colored
People.” Id. (quoting Button, 371 U.S. at 438). The Button
Court rejected that attempt, holding that “advocacy” and “‘the
opportunity to persuade to action’” are First Amendment
rights. 371 U.S. at 437–38 (quoting Thomas v. Collins, 323
U.S. 516, 537 (1945)). Describing the Virginia law over 50

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years later, the Reed Court called it “facially content-based.”
135 S. Ct. at 2229.

So Reed demands that we construe the Ordinance
narrowly. And it steers us away from precedents that focused
on a law’s purpose rather than its facial effect. For laws once
held content neutral because of purpose may well be facially
content based after Reed. Compare, e.g., Hill, 530 U.S. at 720–
21 (holding content neutral a ban on “picketing,”
“demonstrating,” “protest, education, or counseling” even
though it may require the government “to review the content
of the statements made”), with McCullen, 573 U.S. at 479
(“The [buffer zone law] would be content based if it required
‘enforcement authorities’ to ‘examine the content of the
message that is conveyed . . . .’” (quoting FCC v. League of
Women Voters of Ca., 468 U.S. 364, 383 (1984))), and Reed,
135 S. Ct. at 2227–29 (highlighting facially content based laws
that target solicitation and educational communications). Even
some purposes previously held content neutral may now be
content based. Compare, e.g., Hill, 530 U.S. at 716 (citing
“[t]he unwilling listener’s interest in avoiding unwanted
communication”), and Turco v. City of Englewood, 935 F.3d
155, 162, 166-67 (3d Cir. 2019) (citing that interest to support
narrow tailoring of concededly content neutral law), with
McCullen, 573 U.S. at 481 (“To be clear, the Act would not be
content neutral if it were concerned with undesirable effects
that arise from ‘the direct impact of speech on its audience’ or
‘[l]isteners’ reactions to speech.’” (quoting Boos v. Barry, 485
U.S. 312, 321 (1988))), and Reed, 135 S. Ct. at 2227
(protecting speech’s “function or purpose”).

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 II

Today our Court does what Reed requires. We hold that
“[b]ecause the Ordinance, as properly interpreted, does not
extend to sidewalk counseling—or any other calm and
peaceful one-on-one conversations,” the City cannot examine
the content of a conversation to decide whether a violation has
occurred. Op. 27–28. It will instead examine, for example,
decibel level, the distance between persons, the number of
persons, the flow of traffic, and other things usually unrelated
to the content or intent of speech. See, e.g., Reed, 135 S. Ct. at
2228 (confirming that banning sound amplification is content
neutral); id. at 2232 (stating that “entirely forbidding the
posting of signs” is content neutral); McCullen, 573 U.S. at
491–92 (collecting laws that, by penalizing conduct like
obstruction or assault, may pass intermediate scrutiny).

The Court’s decision constrains the City’s enforcement
discretion. Pittsburgh cannot target quiet conversations even if
they are not in a tone of “kindness, love, hope, gentleness, and
help.” Op. 11 n.6 (quoting JA 574a); see, e.g., id. at 25–26. It
must allow not only conversations that help and love, but also
those that serve any other “function or purpose” within the
bounds of protected speech. Reed, 135 S. Ct. at 2227; see, e.g.,
id. at 2228–29 (discussing Sorrell, 564 U.S. at 563–64
(“educati[ng]” and “marketing”), and Button, 371 U.S. at 438–
40 (“solicit[ing],” “advoca[ting],” and “urg[ing]”)).

And the City’s enforcement of the Ordinance must be
evenhanded. Consider clinic employees and agents who, under
the injunction issued in Brown v. City of Pittsburgh, can
“congregate” or “patrol” when helping persons enter or exit a
clinic. See 586 F.3d 263, 273–75 (3d Cir. 2009); Brown v. City
of Pittsburgh, 2010 WL 2207935, at *2 n.2 (W.D. Pa. May 27,

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2010); JA 1324a (permanent injunction order). Before today,
the City’s broad and amorphous interpretation of the Ordinance
risked allowing those employees to engage in speech that
others could not. That sort of disparate treatment would now
be content or viewpoint based. See Reed, 135 S. Ct. at 2230
(citing Rosenberger v. Rector and Visitors of Univ. of Va., 515
U.S. 819 (1995), and Citizens United v. FEC, 558 U.S. 310
(2010)). Our decision today clarifies that the words
“congregate” and “patrol” address conduct—the assembly of
people in one place or the action of pacing back and forth. See
Op. 25. So interpreted, the Brown injunction’s narrow
exception does not discriminate between types of speech.

With these understandings, I join the Court’s opinion.

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