AuthorWells, Jamie

Since the late twentieth century, courts have grappled with the tension between the First Amendment's right to free speech and the government's desire to provide women with safe, unobstructed access to healthcare facilities that offer birth control and abortion services. (1) To address the interests on both sides of this scale, cities have enacted "buffer zone" ordinances, which make it illegal to approach patients who seek access to such healthcare facilities. (2) In Price v. City of Chicago, (3) "sidewalk counselors" asked the Court of Appeals for the Seventh Circuit to strike down a Chicago buffer-zone ordinance given recent Supreme Court decisions that arguably rendered the ordinance unconstitutional.4 The court, however, affirmed the lower court's decision to uphold the Chicago ordinance, and concluded that the Supreme Court upheld a nearly identical ordinance in Hill v. Colorado that has not yet been overruled by any recent cases. (5)

Veronica Price, David Bergquist, Ann Scheidler, and Anna Marie Scinto Mesia regularly stood on the public sidewalks outside of Chicago abortion clinics to inform patients both of the risks associated with abortion procedures and alternative courses of action available to them. (6) To their dismay, in October of 2009, the City of Chicago ("City") "amended the City's disorderly conduct ordinance to prohibit any person from approaching within eight feet of another person near an abortion clinic for the purpose of engaging in the types of speech associated with sidewalk counseling." (7) The ordinance ("Chicago ordinance") effectively banned sidewalk counseling outside of abortion clinics or healthcare facilities. (8) The aforementioned individuals--self-proclaimed "sidewalk counselors"--joined with two pro-life advocacy groups ("Petitioners") to sue the City. (9) They sought declaratory and injunctive relief against the enforcement of the ordinance; they claimed it stifled their ability to engage in their counseling practices and violated their First Amendment right to free speech. (10) Petitioners insisted that they be allowed to approach women at a close proximity as they entered abortion clinics so they could speak in soft, gentle tones and protect the person's privacy. (11)

Petitioners claimed the Chicago ordinance was a "content-based restriction on speech and [was] facially unconstitutional under strict scrutiny." (12) Alternatively, they argued that, even if the court applied intermediate scrutiny, the ordinance failed to satisfy the narrow-tailoring requirement for content-neutral restrictions on speech and violated free speech as applied. (13) The lower court dismissed the claim, pursuant to Fed. R. Civ. P. 12(b)(6) and the Supreme Court's rejection of a similar argument for a nearly identical ordinance in Hill v. Colorado. (14) This appeal subsequently followed and contested the dismissal. (15) The question then became whether later Supreme Court decisions so undermined the Hill decision--particularly in terms of its analysis on content-neutrality and narrow-tailoring requirements--to justify an abandonment of this precedent. (16) The Court of Appeals for the Seventh Circuit affirmed the lower court's decision, decided that Hill still governs, and consequently foreclosed a facial First Amendment challenge to this ordinance. (17)

The First Amendment's right to free speech contravenes with states' Tenth Amendment police power to protect the health and safety of their citizens--with weighty fundamental rights on both sides of the scale. (18) The standard of review for speech restrictions differs depending on whether the restriction is content-based, which requires strict scrutiny, or content-neutral, which calls for intermediate scrutiny. (19) Restrictions are content-based when the government targets speech for its particular meaning or message. (20) A restriction is content-neutral when the government adopts the restriction for any reason other than to stifle the message. (21) Restrictions based on the time, place, or manner of speech are a subcategory of content-neutral speech because they do not seek to silence a particular message or meaning; rather, these restrictions regulate where, when, and how a person or entity may communicate a message, without reference to its meaning. (22) To determine content-neutrality in time, place, or manner cases, the government must satisfy the standard set forth in Ward v. Rock Against Racism. (23) This standard requires proving that the restriction is "justified without reference to the content of the regulated speech, that [it is] narrowly tailored to serve a significant governmental interest, and that [it leaves] open ample alternative channels for communication of the information." (24)

Applying this standard in Hill v. Colorado, the Supreme Court upheld an ordinance that provided an eight-foot buffer zone around patients entering abortion or healthcare facilities wherein no person could approach patients for the purpose of counseling, educating, or leafletting. (25) The majority declared the ordinance content-neutral because it neither discriminated among viewpoints nor restricted "any subject matter that may be discussed by a speaker." (26) Justice Scalia's dissenting opinion attacked the majority's application of the Ward standard, and argued that the buffer zone was a content-based restriction because it targeted speech that "communicates a message of protest, education, or counseling." (27) Additionally, Justice Scalia's dissent stated that the actual underlying governmental interest was to protect a nonexistent "right to be let alone." (28)

Since Hill, the Supreme Court has decided similar cases on narrower grounds, compelling some to question whether these subsequent decisions have rendered Hill obsolete in abortion-speech cases. (29) The Court upheld the content-neutrality of a similar buffer zone in McCullen v. Coakley, but decided the thirty-five-foot radius prevented pro-life advocates from accessing the sidewalk adjacent to the driveway, and consequently "burden[ed] substantially more speech than necessary" to achieve the government's interests. (30) In deciding that this ordinance was not narrowly tailored, the Court gave much import to the fact that the state had too eagerly foregone alternative measures that would have burdened speech to a substantially lesser degree. (31) Shortly after McCullen limited the narrowtailoring component set by Hill, the Court in Reed v. Town of Gilbert proceeded to expand the basis for labeling a restriction content-based. (32) In Reed, the Court decided that even a restriction that is content-neutral on its face can be deemed content-based if the law "cannot be 'justified without reference to the content of the regulated speech.'" (33) The Court explained that any restriction targeting specific subject matter is content-based, even if it does not discriminate among viewpoints within that subject matter. (34) The Court's decisions in McCullen and Reed have substantially undermined the force of Hill in determining both whether a restriction is content-based and whether a restriction is sufficiently narrowly-tailored. (35) For these reasons, Petitioners unsuccessfully argued that the Court should apply the McCullen and Reed standards and reverse the lower court's decision to uphold the Chicago ordinance. (36)

In Price v. City of Chicago, the Petitioners' argument depended on the court abandoning the Hill precedent in favor of the standards set forth in Reed and McCullen. (37) The court first addressed the Petitioners' stance by noting that while "[t]he [Supreme] Court's intervening decisions have eroded Hill's foundation ... the case still binds [this court]; only the Supreme Court can say otherwise." (38) Next, the court emphasized the urgency and importance of free speech and acknowledged that the time and place of the speech at issue here was the most protected type. (39) Despite the Supreme Court's acknowledgement of the significance of this type of speech, it has historically applied the intermediate standard of scrutiny to abortion speech. (40) Accordingly, this court did the same. (41)

The court subsequently analyzed relevant Supreme Court decisions and acknowledged that Hill directly conflicts with Reed and McCullen in two critical ways: (1) its facial analysis failed to satisfy the tests set out in Reed and McCullen, (42) and (2) those later cases that explicitly rejected Hill's narrow-tailoring process. (43) Nevertheless, the court concluded that, because Hill is the controlling law and the Supreme Court has not overruled it's decision, the court's analysis of...

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