Colleen Reilly v. City of Harrisburg

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________

No. 18-2884
________________

COLLEEN REILLY; BECKY BITER;
ROSALIE GROSS

v.

CITY OF HARRISBURG; HARRISBURG CITY COUNSEL;
MAYOR ERIC PAPENFUSE, in his official capacity as
Mayor of Harrisburg

Colleen Reilly; Becky Biter,
Appellants
______________

On Appeal from the District Court
for the Middle District of Pennsylvania
(M.D. Pa. 1-16-cv-00510)
Honorable Sylvia H. Rambo, U.S. District Judge
________________

Submitted Under Third Circuit L.A.R. 34.1(a)
July 12, 2019

Before: SHWARTZ, KRAUSE, and FUENTES, Circuit Judges

(Opinion filed: October 23, 2019)
 ________________

OPINION*
________________

KRAUSE, Circuit Judge.

Plaintiffs Colleen Reilly and Becky Biter appeal the District Court’s denial of their

motion for a preliminary injunction seeking to enjoin the enforcement of a Harrisburg

ordinance that restricts certain types of expression within twenty feet of health care

facilities on the ground that it violates the First Amendment. Consistent with our recent

decision in Bruni v. City of Pittsburgh (Bruni II), No. 18-1084, slip op. (3d Cir. 2019), we

will affirm.

I. Background1

In November 2012, Harrisburg (the “City”) adopted Ordinance No. 12-2012,

codified as Harrisburg Code Chapter 3-371 (the “Ordinance”). It states, in relevant part:

No person or persons shall knowingly congregate, patrol,
picket or demonstrate in a zone extending 20 feet from any
portion of an entrance to, exit from, or driveway of a health
care facility.

Harrisburg, Pa., Code § 3-371.4 (2012); JA 164. The city council also ratified a preamble

that set forth “[f]indings” and the “purpose” of the Ordinance, which it articulated as

“ensur[ing] that patients have unimpeded access to medical services while protecting the

*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
1
Because we write primarily for the parties, we include only those facts and
elements of the procedural history necessary to resolve this appeal and discuss the facts in
greater detail in the context of our analysis below.
2
First Amendment rights of demonstrators to communicate their message.” Harrisburg,

Pa., Code § 3-371.2; JA 163–64. Harrisburg adopted the Ordinance following a city

council hearing during which the council heard testimony about problems that were

occurring outside of the city’s two reproductive health facilities, including:

[T]respassing on private property, blocking the driveway
entrance to [the] health care center, photographing or
videotaping staff at close range, documenting license plate
numbers of staff and patients . . . , yelling harassing and
offensive words . . . including threat[s] . . . , following the staff
to continue harassment . . . , pounding on the front window of
the health center entrance to harass volunteers and those . . .
seeking care, [and] standing on private property to photograph
employees through office windows.
JA 132.

Plaintiffs attest that they wish to engage within the zone in “sidewalk counseling,”

which they define as “peaceful . . . one-on-one conversations . . . , prayer[,]” and

leafletting through which they attempt to dissuade patients from obtaining an abortion.2

JA 65. They contend that their “sidewalk counseling and leafletting approach can only

be communicated through close, caring, and personal conversations,” and the buffer

zones created by the Ordinance significantly hinder their ability to effectively

communicate their message. JA 78.

2
As in Bruni II, see slip op. at 11 n.6, we will use the term “sidewalk counseling”
in this opinion in accordance with the meaning given to it by Plaintiffs.

3
 In March 2016, Plaintiffs filed a motion to preliminarily enjoin its enforcement on

First Amendment grounds, which the District Court denied.3 See Reilly v. City of

Harrisburg, 205 F. Supp. 3d 620, 625, 638–39 (M.D. Pa. 2016). We reversed and

remanded, holding that the District Court had improperly applied the preliminary

injunction standard by shifting the burden of demonstrating narrow tailoring to Plaintiffs;

however, we did not address the merits of Plaintiffs’ constitutional challenge. Reilly v.

City of Harrisburg, 858 F.3d 173, 176–80 (3d Cir. 2017) (Reilly I).

On remand, the District Court held an evidentiary hearing on Plaintiffs’

preliminary injunction motion. Reilly v. City of Harrisburg, 336 F. Supp. 3d 451, 456

(M.D. Pa. 2018). The Court received numerous pieces of documentary evidence and

heard substantial testimony about the history of the Ordinance and Harrisburg’s financial

difficulties at the time of the Ordinance’s adoption, among other topics. See id. Based

on this new evidence and considering the standard for a preliminary injunction as

clarified in Reilly I, the District Court again denied Plaintiffs’ motion. Id. at 474. In

doing so, the Court concluded that the Ordinance permitted sidewalk counseling. Id. at

459 n.3, 463–64. This appeal followed.

3
Although not relevant here, Plaintiffs also alleged that the Ordinance violated
their First Amendment rights to free exercise of religion and assembly as well as their
Fourteenth Amendment rights to equal protection and due process. See Reilly v. City of
Harrisburg, 205 F. Supp. 3d 620, 625 (M.D. Pa. 2016).

4
II. Discussion4

Plaintiffs seek to preliminarily enjoin enforcement of the Ordinance. To obtain a

preliminary injunction, an “extraordinary remedy,” Doe ex rel. v. Boyertown Area Sch.

Dist., 897 F.3d 518, 526 (3d Cir. 2018) (citation omitted), the moving party must show

“(1) a reasonable probability of eventual success in the litigation, and (2) that it will be

irreparably injured . . . if relief is not granted,” Reilly I, 858 F.3d at 176 (alteration in

original) (citation omitted). If these two “threshold” factors are met, a court then

considers the remaining two factors—“(3) the possibility of harm to other interested

persons from the grant or denial of the injunction, and (4) the public interest”—and

determines, on balance, whether to grant the requested preliminary relief. Id. (citation

omitted).

At issue here is the first factor: whether Plaintiffs have a sufficient likelihood of

succeeding on the merits of their constitutional challenge to the Ordinance.5 In support

of their contention that the Ordinance violates their First Amendment rights, Plaintiffs

4
The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1343(a), and we
have jurisdiction under 28 U.S.C. § 1292(a)(1). “When reviewing a district court’s
[denial] of a preliminary injunction, we review the court’s findings of fact for clear error,
its conclusions of law de novo, and the ultimate decision . . . for an abuse of discretion.”
Bimbo Bakeries USA, Inc. v. Botticella, 613 F.3d 102, 109 (3d Cir. 2010) (citation
omitted). Because this is a First Amendment case, however, “we must conduct an
independent examination of the factual record as a whole.” Miller v. Mitchell, 598 F.3d
139, 145 (3d Cir. 2010) (internal quotation marks and citation omitted).
5
As we explained in Riley I, however, in First Amendment cases, “the
[g]overnment bears the burden of proof on the ultimate question of [a statute’s]
constitutionality.” 858 F.3d at 180 (alterations in original) (citation omitted).

5
make four arguments: (1) “[t]he District Court erred when it sua sponte rewrote the

Ordinance to permit sidewalk counseling” to save it from constitutional infirmity,

Appellants’ Br. 23; (2) the Ordinance is unconstitutionally vague and overbroad; (3) the

Ordinance is content based and subject to strict scrutiny; and (4) even if it is considered

content neutral, the Ordinance is not narrowly tailored and thus does not survive

intermediate scrutiny.6 As many of Plaintiffs’ arguments are foreclosed by our recent

decision in Bruni II, we begin there and then address Plaintiffs’ arguments in turn.

A. Our Decision in Bruni II

6
Plaintiffs also argue that the remaining preliminary injunction factors of
irreparable injury, public interest, and balance of harms support injunctive relief and that
we should reassign this case to a different district court judge. For the reasons explained
below, we conclude that Plaintiffs do not have a sufficient likelihood of prevailing on the
merits of their claim—a threshold requirement—and thus do not address these remaining
factors. We also decline to exercise our discretion to reassign this case to a different
district court judge. See United States v. Bergrin, 682 F.3d 261, 282 (3d Cir. 2012)
(“[R]eassignment is an extraordinary remedy that should seldom be employed.” (citation
omitted)). Although we agree that federal courts discussing the significant constitutional
rights on both sides of this issue should address the parties with appropriate sensitivity
and respect, including the respect due to the sincere religious beliefs and peaceful
practices of sidewalk counselors as defined by Plaintiffs, we are not persuaded that the
few isolated remarks on which Plaintiffs rely to seek recusal indicate bias or partiality on
the part of the District Judge here. As a general matter, “judicial remarks during the
course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties,
or their cases, ordinarily do not support a bias or partiality challenge,” Liteky v. United
States, 510 U.S. 540, 555 (1994), and here, while the District Judge appeared at certain
points to express skepticism about the peacefulness of sidewalk counseling, the record
before her did reflect instances when persons who called themselves “sidewalk
counselors” had engaged in loud and aggressive confrontations. That conduct, however,
brings such persons outside of Plaintiffs’ definition, and like the Supreme Court in
Schenck v. Pro-Choice Network of Western New York, we reject the notion that
“protestors” and “sidewalk counselors” as Plaintiffs use the term are one and the same.
519 U.S. 357, 363 (1997).
6
 In Bruni II, individuals who identified as sidewalk counselors challenged an

almost identical ordinance that created a fifteen-foot buffer zone outside the entrance of

any hospital or healthcare facility in the city of Pittsburgh. Bruni II, slip op. at 5, 9. As

here, the ordinance stated that “[n]o person or persons shall knowingly congregate,

patrol, picket or demonstrate” in the proscribed zone, id. at 9 (quoting Pittsburgh, Pa.,

Code § 623.04 (2005)), and, although the plaintiffs’ sidewalk counseling consisted only

of peaceful one-on-one conversations and leafletting, the city of Pittsburgh interpreted the

ordinance to prohibit the plaintiffs’ actions, Bruni II, slip op. at 12.

Looking at the plain meaning of the ordinance’s language, we concluded that the

proscribed activities—congregating, patrolling, picketing, and demonstrating—did not

encompass the sidewalk counseling in which the plaintiffs engaged. Id. at 24–26. As

such, we found the ordinance “readily susceptible” to a narrowing construction under the

doctrine of constitutional avoidance. Id. at 21 (quoting Virginia v. Am. Booksellers

Ass’n, 484 U.S. 383, 397 (1988)); id. at 24–26. In the absence of a state court’s

interpretation to the contrary, we therefore construed the ordinance narrowly not to

prohibit sidewalk counseling within the zone. Id. at 22 n.14, 27.

With the ordinance so interpreted, we rejected the plaintiffs’ argument that the

ordinance was content based. Id. at 28. Because the ordinance did not prohibit sidewalk

counseling—or any other peaceful one-on-one conversations on any topic or for any

purpose—we concluded that it neither regulated speech based on subject matter, function,

or purpose, nor required law enforcement to examine the content of the speech to

determine if a violation had occurred. Id. at 26–28. Indeed, we said, the Supreme Court

7
“has repeatedly considered regulation of [the proscribed] activities to be based on the

manner in which expressive activity occurs, not its content, and held such regulation

content neutral.” Id. at 26 (citing Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753,

763–64 (1994); Snyder v. Phelps, 562 U.S. 443, 456 (2011); Hill v. Colorado, 530 U.S.

703, 721 (2000); Schenck v. Pro-Choice Network of W. N.Y., 519 U.S. 357, 383–85

(1997); United States v. Grace, 461 U.S. 171, 181–82 (1983)). Therefore, we concluded

the ordinance was content neutral and subject to intermediate scrutiny. Bruni II, slip op.

at 28.

Applying intermediate scrutiny, the ordinance, as properly interpreted to exclude

sidewalk counseling, passed muster. Focusing on the “narrow tailoring” prong, we

concluded that the ordinance did not “burden substantially more speech than” was

“necessary to further the government’s legitimate interests” in protecting access to

pregnancy-related services, ensuring public safety, and eliminating neglect of law

enforcement needs. Id. at 30 (quoting McCullen v. Coakley, 573 U.S. 464, 486 (2014)).

Specifically, we explained that where a restriction imposes a significant burden on

speech, the government must show that it tried or “seriously considered[] substantially

less restrictive alternatives,” such as arrests or targeted injunctions. Bruni II, slip op. at

31. But where the burden on speech is not significant, “a less demanding inquiry is

called for.” Id. Because the ordinance was limited in scope and size, we concluded that

the burden on speech was not significant. Id. at 32–33. And because Pittsburgh had

“attempt[ed] or consider[ed] some less burdensome alternatives,” such as the use of an

overtime police detail and enforcement of existing criminal laws, “and conclud[ed] they

8
were unsuccessful in meeting the legitimate interests at issue,” the city had satisfied its

corresponding burden. Id. at 34 (citations omitted). We therefore held that the ordinance

was narrowly tailored and survived intermediate scrutiny. Id. at 35–36.

With this guidance, we now turn to Plaintiffs’ arguments.

B. Plaintiffs’ Arguments

First, the District Court did not err by interpreting the Ordinance narrowly to

exclude sidewalk counseling. As we explained in Bruni II, the doctrine of constitutional

avoidance counsels that “[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.” Id. at 22 (alteration in original) (internal quotation marks omitted) (quoting

Brown v. City of Pittsburgh, 586 F.3d 263, 274 (3d Cir. 2009)); see also Saxe v. State

Coll. Area Sch. Dist., 240 F.3d 200, 215 n.10 (3d Cir. 2001). Here, as in Bruni II, no

state court has interpreted the Ordinance, and the Ordinance is “fairly susceptible” to a

narrowing construction that excludes sidewalk counseling from its reach because the

plain meanings of the words “congregate,” “patrol,” “picket,” and “demonstrate” do not

cover peaceful one-on-one conversations or leafletting. Bruni II, slip. op. at 24–26. The

District Court therefore did not “rewrit[e]” the Ordinance but simply “reinterpret[ed]” it

consistent with the plain meaning of its terms.7 Free Speech Coal., Inc. v. Attorney Gen.

7
Plaintiffs’ arguments to the contrary are not persuasive. That the City asserts
that the Ordinance covers Plaintiffs’ sidewalk counseling is not dispositive. See Bruni II,
slip op. at 22 n.14. And given that our precedent is clear that a federal court may
interpret a state statute or municipal ordinance narrowly to avoid constitutional infirmity
where it is readily susceptible to such an interpretation, see id. at 22–24; Free Speech
Coal., Inc. v. Attorney Gen. of U.S., 677 F.3d 519, 539 (3d Cir. 2012); Brown, 586 F.3d at
9
of U.S., 677 F.3d 519, 539 (3d Cir. 2012) (quoting United States v. Stevens, 559 U.S. 460,

481 (2010)).

Second, the Ordinance is neither unconstitutionally vague nor overbroad. A law is

impermissibly vague “if it fails to provide people of ordinary intelligence a reasonable

opportunity to understand what conduct it prohibits” or “authorizes . . . arbitrary and

discriminatory enforcement.” Hill, 530 U.S. at 732 (citation omitted). Although

Plaintiffs are correct that the Ordinance does not provide definitions of the itemized

activities that are prohibited within the zone, “perfect clarity and precise guidance have

never been required even of regulations that restrict expressive activity.” Ward v. Rock

Against Racism, 491 U.S. 781, 794 (1989). And, here, we do have guidance from the

Supreme Court, which has found words like “demonstrate” not impermissibly vague,

particularly when viewed in context, see Schenck, 519 U.S. at 383,8 and, as is true of the

Ordinance, when such words are qualified by a scienter requirement, see Hill, 530 U.S. at

732–33. At bottom, Appellants’ vagueness and overbreadth arguments rely on the

assumption that the Ordinance can be interpreted to cover sidewalk counseling.9 As we

274; Saxe, 240 F.3d at 215–16, 215 n.10, it is of no consequence that some other circuits
take a contrary approach, Bruni II, slip op. at 22 n.14.
8
Indeed, in Schenck, the Supreme Court “quickly refuted” an argument that the
term “demonstrating” was vague. 519 U.S. at 383 (“When the injunction is read as a
whole, we believe that people of ordinary intelligence (and certainly defendants, whose
demonstrations led to this litigation in the first place) have been given a reasonable
opportunity to know what is prohibited.” (internal quotation marks and citations
omitted)).

Plaintiffs also argue that the Ordinance is vague “because it does not require
9

Defendants to visibly mark the buffer zone boundaries on the sidewalk,” Appellants’ Br.
10
conclude that is not a reasonable reading of the Ordinance’s plain language, see Bruni II,

slip op. at 28, however, the Ordinance is neither unconstitutionally vague nor overbroad.

Third, the Ordinance is not content based and thus not subject to strict scrutiny. A

law is content based if it (1) regulates speech based on “subject matter,” “function,” or

“purpose”; (2) “cannot be justified without reference to the content of the regulated

speech”; or (3) was “adopted by the government because of disagreement with the

message [the speech] conveys.” Reed v. Town of Gilbert, 135 S. Ct. 2218, 2227 (2015)

(alteration in original) (internal quotation marks and citations omitted). Plaintiffs argue

that the Ordinance is content based under each of these tests. We disagree.

Plaintiffs first contend that the Ordinance is content based because it regulates

speech “whose function or purpose is to ‘demonstrate’ or ‘picket’” but not “speech whose

function or purpose is to communicate something else.” Appellants’ Br. 44. But, as we

explained in Bruni II, “demonstrating” and “picketing,” both of which have obvious

visible manifestations, go to “the manner in which expressive activity occurs, not its

content.” Bruni II, slip op. at 26 (citing Madsen, 512 U.S. at 759, 763–64; Snyder, 562

37, and there is some evidence in the record indicating that the lack of clear demarcation
of the zone has created uncertainty about its bounds. While we agree with Plaintiffs that
this raises vagueness concerns, such concerns are ameliorated in large part by the
Ordinance’s scienter requirement. See Brown, 586 F.3d at 291 n.34 (citing Hill, 530 U.S.
at 732). And, “[a]s always, enforcement requires the exercise of some degree of police
judgment.” Hill, 530 U.S. at 733 (quoting Grayned v. City of Rockford, 408 U.S. 104,
114 (1972)). To the extent there remain vagueness concerns, however, we are confident
that if the District Court determines a remedy is necessary on remand, it could fashion
one that does not require disposing of the Ordinance in its entirety. See, e.g., Brown v.
City of Pittsburgh, No. 06-393, 2010 WL 2207935, at *2 n.2 (W.D. Pa. May 27, 2010).
11
U.S. at 456; Hill, 530 U.S. at 721; Schenck, 519 U.S. at 383–85; and Grace, 461 U.S. at

181–82).

Plaintiffs next argue that the Ordinance is content based because it bans “only

discussions ‘of substance’” and “leafletting about abortion alternatives” in the buffer

zone, thus requiring law enforcement to examine the content of any speech to determine

whether it is prohibited within the zone. Appellants’ Br. 44. That being so, Plaintiffs

contend, the Ordinance “cannot be justified without reference to the content of the

regulated speech.” Id. (citation omitted). But the District Court’s narrow interpretation

renders this argument moot: The Ordinance as properly interpreted does not prohibit

sidewalk counseling—or any other peaceful one-on-one conversations about any subject

or for any purpose—in the zone. Therefore, “there is no need for law enforcement ‘to

examine the content of the message . . . to determine whether a violation has occurred.’”

Bruni II, slip op. at 28 (omission in original) (quoting McCullen, 573 U.S. at 479)).

Finally, Plaintiffs contend that the Ordinance is content based because it was

“enacted . . . to counteract listeners’ reactions to speech,” an impermissibly content-based

purpose. Appellants’ Br. 40 (capitalization omitted). Specifically, they point to three

statements as evidence of a content-based motive for enacting the Ordinance: a comment

at a city council hearing calling the legislation necessary to “protect the dignity” of

patients10; the Ordinance’s description of its “purpose” as assisting police in their

10
Plaintiffs erroneously imply that it was a Planned Parenthood employee who
made this and other allegedly offending comments. But “a resident of the neighborhood”
made these comments. JA 132.
12
“effort[s] to prevent violent confrontations”; and Defendants’ statement in a brief that

“Harrisburg determined that it needed a buffer zone as a preventative measure” in part

because “[s]ometimes, a patient’s loved one would react protectively, escalating the

situation.” Appellants’ Br. 41 (alterations in original) (citations omitted).

None of these statements indicate that the City adopted the Ordinance for an

impermissibly content-based reason. To begin with, the interests identified in the

Ordinance itself—providing “access to health care facilities,” “prevent[ing] violent

confrontations,” and “protecting the First Amendment rights of demonstrators to

communicate their message”—are content neutral. JA 163–64; see McCullen, 573 U.S.

at 480–81. Indeed, the Supreme Court has said so repeatedly. See Bruni II, slip op. at 29

(citing cases). Plaintiffs’ attempt to transform the content-neutral goal of “prevent[ing]

violent confrontations”—and the related goal of de-escalating tense situations—into a

content-based restriction akin to a heckler’s veto is unavailing: “[a] regulation that serves

purposes unrelated to the content of expression is deemed neutral, even if it has an

incidental effect on some speakers or messages but not others.”11 McCullen, 573 U.S. at

480 (alteration in original) (quoting Ward, 491 U.S. at 791); see Startzell v. City of

Philadelphia, 533 F.3d 183, 200 (3d Cir. 2008) (distinguishing a “heckler’s veto,” which

11
Moreover, contrary to Plaintiffs’ argument, the Ordinance does not
impermissibly regulate the “undesirable effects that arise from ‘the direct impact of
speech on its audience’ or ‘listeners’ reactions to speech,’” because “[w]hether or not a
single person reacts to abortion protesters’ chants or petitioners’ counseling, large crowds
outside abortion clinics can still compromise public safety, impede access, and obstruct
sidewalks.” McCullen, 573 U.S. at 481 (quoting Boos v. Barry, 485 U.S. 312, 321
(1988)).
13
is an “impermissible content-based restriction on speech where the speech is prohibited

due to an anticipated disorderly or violent reaction of the audience,” from a “content-

neutral time, place, or manner restriction”). And as for the allegedly offending stray

comment, it is irrelevant because the individual resident who uttered it does not speak for

the City. We therefore agree with the District Court that the Ordinance is content neutral.

Fourth, the Ordinance is narrowly tailored and therefore survives intermediate

scrutiny. 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). As was true in Bruni II, the Ordinance, as

properly interpreted, does not impose a significant burden on speech. The scope of

prohibited expressive activities is identical to that in Bruni II and the fact that the buffer

zone is five feet larger than the zone in Bruni II is not enough to render the burden on

speech significant. See Bruni II, slip op. at 30 (“[W]e afford[] some deference to a

municipality’s judgment in adopting a content-neutral restriction on speech.” (second

alteration in original) (citation omitted)). Indeed, the buffer zone is significantly smaller

than the thirty-five-foot zone in McCullen that was not narrowly tailored because, among

other things, it “carve[d] out a significant portion of the adjacent public sidewalks,

pushing petitioners well back from the clinic’s entrances and driveways.” 573 U.S. at

487.

Also, as in Bruni II, Harrisburg did not “resort[] to a fixed buffer zone . . . in the

first instance” but “attempt[ed] or consider[ed] some less burdensome alternatives and

14
conclud[ed] they were unsuccessful in meeting the legitimate interests at issue.”12 Bruni

II, slip op. at 34. At the hearing on the preliminary injunction, a councilperson testified

that existing criminal laws prohibiting trespassing, excessive noise, and disorderly

conduct were insufficient to keep protests under control before the Ordinance’s

enactment. This was in large part due to the City’s inability to expend police resources to

enforce these laws because of the City’s grave financial situation: As the former special

counsel to the Harrisburg City Council explained, with over 300 million dollars in debt,

the City was placed under receivership status and could afford neither to hire additional

police officers nor to pay officers overtime to patrol the clinics.13 See Turco v. City of

12
Plaintiffs contend that Defendants have not carried their burden because
“Defendants’ entire ‘meaningful record’ of what they considered prior to enacting the
Ordinance consists of the 12-page transcript of the only council meeting where the
Ordinance was substantively discussed” and that record was “devoid of any serious
consideration of less restrictive alternatives.” Appellants’ Br. 52. But we agree with the
District Court that a local government is not required to “produce all available evidence
and consider alternatives at a single, recorded hearing before taking action.” Reilly, 336
F. Supp. 3d at 466. Even when a burden on speech is significant, all that our precedent
requires is that “substantially less-restrictive alternatives were tried and failed, or that the
alternatives were closely examined and ruled out,” Bruni v. City of Pittsburgh (Bruni I),
824 F.3d 353, 370 (3d Cir. 2016) (citation omitted), not that the only evidence a court can
consider in determining whether the government has satisfied its burden must be derived
from a committee council hearing that was recorded. More importantly, the burden here
is not significant, so the City need only show that the restriction did not “burden[]
substantially more speech than . . . necessary to further the government’s legitimate
interests.” Bruni II, slip op. at 35 (quoting McCullen, 573 U.S. at 486). Through
declarations, documentary evidence, and in-court testimony, Defendants have done so.
13
The City also decreased police benefits, causing officers to leave the force and
fewer to join, at times leaving only four to eight police officers to patrol the City—a
consequence the effects of which Harrisburg continues to feel to this day. Plaintiffs
suggest that the City’s financial woes could not have been as bad as Defendants say—and
as the District Court found—because Harrisburg’s Chief of Police said during the same
hearing at which the Ordinance was discussed that he would “step up enforcement of the
15
Englewood, 935 F.3d 155, 167, 169 (3d Cir. 2019) (recognizing relevance of a city’s

“financial restraints” and police department’s “finite resources” in the narrow tailoring

analysis). The record also demonstrates that Harrisburg considered differently sized

zones and, based on the competing interests at stake, settled on twenty feet as the optimal

size, rejecting Planned Parenthood’s request for a twenty-four-foot zone. Thus, given

that the burden the Ordinance imposes on speech is not significant and the City has

demonstrated that it tried or considered some less-restrictive alternatives, we conclude

that the Ordinance is narrowly tailored and survives intermediate scrutiny. That being so,

Plaintiffs do not have a “reasonable probability of eventual success in the litigation,”

Reilly I, 858 F.3d at 176 (citation omitted), and the District Court therefore did not err in

denying their motion for a preliminary injunction.14

III. Conclusion

For the foregoing reasons, we will affirm the decision of the District Court.

City’s noise and trash ordinances.” Appellants’ Br. 57. But the Police Chief’s testimony
merely reflects in context that councilmembers were not pleased that those ordinances
were not adequately being enforced—no doubt due at least in part to scarce resources—
and that the Police Chief would try to address their concerns going forward. His offer to
“help . . . out” the City’s code enforcement division while its leader was having personal
difficulties, JA 572, also does not demonstrate that there were resources available to
station officers outside the City’s reproductive health facilities on a continuous basis.
14
We recognize that the City could have a legitimate concern about access to
healthcare facilities if there are multiple one-on-one conversations that block access to
the facilities. See McCullen, 573 U.S. at 486–87. The City may then have occasion to
revisit the terms of the Ordinance, having developed a record that would satisfy
McCullen and Bruni I, as well as the content-neutrality requirement of Reed. See Turco,
935 F.3d at 162–63.

16