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Abortion Protesters Say SCOTUS Must Rethink Content Neutrality

July 1, 2020, 9:01 PM

The U.S. Supreme Court could say Thursday if it will revisit the issue of how to determine if a law prohibiting protests within a short distance of a clinic where abortions are performed is content neutral for purposes of deciding if the law interferes with protesters’ First Amendment rights.

Abortion protesters in Harrisburg, Pa., and Chicago asked the court to review two cases from the Third and Seventh circuits, which had concluded the question was settled by the Supreme Court in 2000’s Hill v. Colorado.

The protesters argued that Hill’s content-neutrality discussion has been superseded by two more recent decisions, 2014’s McCullen v. Coakley and 2015’s Reed v. Town of Gilbert.

Both cities have “buffer” or “bubble” zone laws. Harrisburg’s law prohibits people from knowingly congregating, patrolling, picketing, or demonstrating within 20 feet of any part of a health care facility. Chicago’s law precludes protesters from coming within eight feet of people on sidewalks and public ways within a 50-foot radius of a clinic entrance.

The federal courts upheld the laws as narrowly tailored time, place, and manner restrictions. Both observed that the laws didn’t prohibit or restrict protesters from expressing any particular viewpoint or subject matter.

In Hill, the high court said that, theoretically, it might be necessary in a particular case for law enforcement to look at what a protester said upon approaching a person within a prohibited area to determine if the protester’s conduct fell within the activity a law prohibits. But the court said it’s not “improper to look at a statement’s content in order to determine” if a law applies.

The court “eviscerated” this approach in McCullen, when it wrote that a law restricting speech “would be content based if it required ‘enforcement authorities’ to ‘examine the content of the message conveyed to determine’” if a violation has occurred, the Harrisburg protesters said in their petition for review.

The Chicago protesters’ petition argued that the Hill court’s test for determining content neutrality—whether the government adopted the speech regulation because it disagrees with the message conveyed by particular speech—skipped the crucial first step of determining if a law is content-based on its face.

If a law applies to particular speech because of the topic or subjects different categories of speech to different restrictions, then it is plainly content based, the protesters said.

Calling Hill an “outlier” and a “doctrinal anomaly,” the protesters argued the Supreme Court must clear up the confusion it has caused by expressly overruling it.

Liberty Counsel represents the Harrisburg protesters. The city is represented by Lavery Law.

Thomas More Society, Consovoy McCarthy PLLC, and Stephen M. Crampton of Tupelo, Miss., represent the Chigago protesters. Chicago is represented by the city’s corporation counsel.

The cases are Price v. Chicago, U.S., No. 18-1516, conference 7/1/20; Reilly v. Harrisburg, Pa., U.S., No. 19-983, conference 7/1/20.

To contact the reporter on this story: Mary Anne Pazanowski in Washington at mpazanowski@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Nicholas Datlowe at ndatlowe@bloomberglaw.com

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