Sisters for Life, Inc. v. Louisville-Jefferson Cnty., KY Metro. Gov't ( 2022 )

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 22a0272p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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SISTERS FOR LIFE, INC., ANGELA MINTER, and KENTUCKY
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RIGHT TO LIFE ASSOCIATION, INC. (22-5150); EDWARD
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HARPRING and MARY KENNEY (22-5151),
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Plaintiffs-Appellants, │ Nos. 22-5150/5151
>
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v. │
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LOUISVILLE-JEFFERSON COUNTY, KY METRO │
GOVERNMENT (22-5150 & 22-5151); GREG FISCHER, │
Mayor, ERIKA SHIELDS, Chief of Police, Louisville Metro │
Police Department, and MIKE O’CONNELL (22-5150), │
Defendants-Appellees. │
┘
Appeal from the United States District Court
for the Western District of Kentucky at Louisville.
Nos. 3:21-cv-00367; 3:21-cv-00691—Rebecca Grady Jennings, District Judge.
Argued: December 8, 2022
Decided and Filed: December 21, 2022
Before: SUTTON, Chief Judge; GRIFFIN and NALBANDIAN, Circuit Judges.
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COUNSEL
ARGUED: Christopher Wiest, CHRIS WIEST, ATTY AT LAW, PLLC, Crestview Hills,
Kentucky, for Appellants in 22-5150. Francis J. Manion, AMERICAN CENTER FOR LAW &
JUSTICE, New Hope, Kentucky, for Appellants in 22-5151. Natalie Johnson, JEFFERSON
COUNTY ATTORNEYS’ OFFICE, Louisville, Kentucky, for Appellees. ON BRIEF:
Christopher Wiest, CHRIS WIEST, ATTY AT LAW, PLLC, Crestview Hills, Kentucky,
Thomas Bruns, BRUNS CONNELL VOLLMAR & ARMSTRONG, Cincinnati, Ohio for
Appellants in 22-5150. Francis J. Manion, Geoffrey R. Surtees, AMERICAN CENTER FOR
LAW & JUSTICE, New Hope, Kentucky, Edward L. White III, AMERICAN CENTER FOR
LAW & JUSTICE, Ann Arbor, Michigan, for Appellants in 22-5151. Natalie Johnson, John F.
Carroll, JEFFERSON COUNTY ATTORNEYS’ OFFICE, Louisville, Kentucky, for Appellees.
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Matthew F. Kuhn, Brett R. Nolan, Daniel J. Grabowski, OFFICE OF THE KENTUCKY
ATTORNEY GENERAL, Frankfort, Kentucky, for Amicus Curiae in 22-5150.
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OPINION
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SUTTON, Chief Judge. Sisters for Life, several individuals, and another pro-life
organization wish to offer leaflets and compassionate, if sometimes unwelcome, speech to
women entering abortion clinics in Louisville, Kentucky. But Louisville-Jefferson County
limited their speaking and pamphleteering in buffer zones near the entrance of each clinic.
Because these limits likely violate the First Amendment, see McCullen v. Coakley, 573 U.S. 464,
497 (2014), we preliminarily enjoin them.
I.
Edward Harpring, Mary Kenney, Angela Minter, Kentucky Right to Life, and Sisters for
Life (collectively, Sisters for Life) believe “that abortion takes the life of an innocent human
being and is harmful to mothers.” R.1 ¶ 19. They distribute pamphlets to, and try to engage
with, women entering abortion clinics, hoping to persuade the women not to end their
pregnancies. They focus “much or all” of their advocacy on women entering Louisville’s EMW
Women’s Surgical Center. R.55 at 3.
Two types of protestors have visited EMW in the past. Some have vandalized property,
blocked access to the Clinic, or committed other torts. The three individuals claim not to want
anything to do with such protests, and indeed say they do not “protest” or “demonstrate” near
EMW at all. R.1 ¶ 25. Instead, in “quiet, compassionate, non-threatening one-on-one
conversation[s],” they try to convince EMW’s patients “that there are lifesaving alternatives” to
abortion and that they “will accompany the woman in whatever way she may need.” Id. ¶ 22.
They call this practice “sidewalk counseling.” Id. ¶ 20.
The Louisville-Jefferson County law does two things. It first says that no one shall
“knowingly obstruct, detain, hinder, impede, or block another person’s entry to or exit from a
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healthcare facility.” Louisville-Jefferson Ord. Code § 132.09(B)(1). No one objects to this
prohibition on conduct.
The ordinance then creates a limitation on speech. It imposes a prophylactic ten-foot
“buffer zone” around the entrance of any “healthcare facility” in the County and forbids any non-
exempt individual from “knowingly enter[ing]” or “remaining . . . within” it. Id. § 132.09(B)(2).
The law defines “healthcare facility” to include “any institution” that provides medical services,
including abortion clinics like EMW. Id. § 132.09(A). It says that the buffer zone extends “from
the entrance of a healthcare facility to the closest adjacent sidewalk curb and 10 feet from side to
side,” and applies “during [a] facility’s posted business hours.” Id. § 132.09(B)(2). And it
exempts from the buffer-zone rules four groups: “[p]ersons entering or leaving” a healthcare
facility; “[p]ersons using the public sidewalk or street right-of-way adjacent to [a healthcare]
facility solely for the purpose of reaching a destination other than such facility”; “municipal
agents acting within the scope of their employment”; and “[e]mployees or agents of
[a healthcare] facility acting within the scope of their employment.” Id.
Sisters for Life sued the County and various county officials. It alleged that this
restriction on sidewalk speech violated its rights under the First (and Fourteenth) Amendment’s
Free Speech Clause, and it sought to enjoin enforcement of the ordinance. The district court
declined to issue a preliminary injunction, reasoning that the ordinance likely did not violate
anyone’s free-speech rights and that the other factors did not favor an injunction.
II.
Those seeking a preliminary injunction must meet several requirements. They must show
a likelihood of success on the merits. They must show irreparable harm in the absence of the
injunction. They must show that the balance of equities favors them. And they must show that
the public interest favors an injunction. Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008).
In this case, as in many First Amendment cases, the key inquiry is the first one: Who is likely to
prevail on the constitutional claim? Roberts v. Neace, 958 F.3d 409, 416 (6th Cir. 2020) (per
curiam).
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We review a district court’s preliminary injunction decision for abuse of discretion and
any fact findings for clear error. Mich. State AFL-CIO v. Schuette, 847 F.3d 800, 803 (6th Cir.
2017). Notably, neither set of parties sought an evidentiary hearing and neither claims that any
material disputes of fact underlie this case. Mistakes of law by definition constitute an abuse of
discretion. Law Off. of John H. Eggersten P.C. v. Comm’r, 800 F.3d 758, 765 (6th Cir. 2015).
A.
“Congress shall make no law,” the First Amendment says, “abridging the freedom of
speech.” The Fourteenth Amendment limits state and local governments in the same manner.
See, e.g., Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1928 (2019).
Both sets of parties build from the same free-speech scaffolding. They agree that,
“because of their historic role as sites for discussion and debate,” streets and sidewalks “occupy a
special position in terms of First Amendment protection.” McCullen, 573 U.S. at 476. They
agree that the ordinance restricts sidewalk expression, namely speech within the buffer zone.
They agree that, if this restriction applies “without reference to [speech’s] content,” it must be
narrowly tailored to serve a significant government interest. See Ward v. Rock Against Racism,
491 U.S. 781, 791 (1989). They agree that if the ordinance instead restricts expression based on
its ideas or content, it must run the gauntlet of strict scrutiny—that is, it must be the least
restrictive means to serve a compelling interest. See United States v. Grace, 461 U.S. 171, 177
(1983). And they agree (or at least the County does not contest) that the ordinance would not
survive strict scrutiny.
That leaves two key questions. Is the ordinance content neutral? If so, is the ordinance
narrowly tailored?
Content neutral? McCullen faced a similar question in the context of a similar buffer-
zone restriction outside abortion clinics in Massachusetts. 573 U.S. at 469. The Court reasoned
that the ordinance did not regulate speech based on its subject matter because it limited pro-life
and pro-choice speech—in truth all speech—within the buffer zone. Id. at 479–84. But the
Court cautioned that an ordinance, even if neutral on its face, could become content based if the
government enforced it selectively. Id. at 484–85. That is not a new idea. We have long held
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that a regulation may be content based by its nature, or may become so when applied with “an
unequal hand.” Yick Wo v. Hopkins, 118 U.S. 356, 373–74 (1886).
The question is whether yesterday’s caution has become today’s case. In a Rule 30(b)(6)
deposition, a representative of the County admitted that he “[did] not believe the ordinance
address[ed] . . . [agents of EMW or other escorts] speaking to [clinic] patients” within the buffer
zone. R.47 at 58. Consistent with that position, the County disclaims any plans to enforce the
ordinance against escorts of women into the Clinic, even though they have discussed abortion-
related topics in the buffer zone in non-neutral ways. See, e.g., R.44 at 47–50 (escorts telling
patients that the pro-life protestors are “liar[s]” and that patients should not “talk” or “listen to
them”). If that’s how the ordinance works—exempting pro-choice speakers while suppressing
pro-life speakers—strict scrutiny would apply. McCullen, 573 U.S. at 484–85; see Hoye v. City
of Oakland, 653 F.3d 835, 849–52 (9th Cir. 2011) (similar). But we need not resolve the point
because the ordinance fails narrow tailoring anyway, and at all events some of the claimants
(Harpring and Kenney) have not argued that the ordinance is content based. That said, the
district court on remand may wish to consider whether this evidence, or other evidence
introduced at trial, amounts to proof of content or viewpoint discrimination in the County’s
enforcement of the ordinance.
Narrow tailoring? Even a content-neutral regulation of the time, place, and manner of
speech still counts as a regulation of speech. That is not something this country lightly allows.
To satisfy the First Amendment, a content-neutral regulation must be “narrowly tailored to serve
a significant governmental interest.” Ward, 491 U.S. at 796. Why? Solving policy problems by
regulating speech is a means of last resort, not first resort, making “mere convenience”
insufficient and making us wary that “silencing the speech is sometimes the path of least
resistance.” McCullen, 573 U.S. at 486. Hence the “demand[]” of “a close fit between ends and
means.” Id. Hence the requirement that the government not “burden substantially more speech
than . . . necessary.” Id. Hence the goal of “prevent[ing] the government from too readily
‘sacrific[ing] speech for efficiency.’” Id. A critical feature of this inquiry turns on whether the
County “seriously undertook to address” the problems it faces “with less intrusive tools readily
available to it.” Id. at 494.
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What interests does the buffer zone advance? The County claims that it facilitates safe,
unimpeded access to abortion facilities and prohibits obstruction of them. The claimants do not
challenge the validity of these interests. And the federal courts have accepted them before. Id. at
486–87. At the same time, the buffer zone imposes “serious burdens” on the claimants’ speech
by “compromis[ing]” their “ability to initiate the close, personal conversations that they view as
essential to ‘sidewalk counseling.’” Id. at 487. At stake is whether the buffer zone fits the
County’s access interests closely.
The County has not demonstrated the requisite degree of fit. The first problem is the
breadth of the regulation. Even though caselaw permits a city to enact access laws focused on
abortion facilities, id. at 479, the County sought to advance its interests by imposing a buffer
zone on all medical facilities in Louisville. And why? The record does not reveal access
problems beyond EMW, and indeed the County concedes that EMW’s challenges are “unique.”
Appellee’s Br. 26. Yet the ordinance covers every single hospital, clinic, and dentist’s office in
the area. See Louisville-Jefferson Ord. Code § 132.09(B)(2). Because the County may not
“burden substantially more speech than is necessary” to further the County’s order and access
interests, McCullen, 573 U.S. at 486, and because the County has not made any showing that all
medical facilities need this kind of regulation, the ordinance lacks any tailoring, to say nothing of
narrow tailoring. “For a problem shown to arise only . . . at one clinic,” authorizing buffer zones
“at every” Louisville-Jefferson facility “is hardly a narrowly tailored solution.” Id. at 493; see,
e.g., Reynolds v. Middleton, 779 F.3d 222, 231–32 (4th Cir. 2015).
The second problem is that the County has not shown that it “seriously undertook to
address” its concerns “with less intrusive tools.” McCullen, 573 U.S. at 494. Absent a
prophylactic buffer zone, the County says, it cannot protect access and ensure order around its
abortion clinics. But the County offers no tenable, or for that matter record-supported,
explanation why the first prohibition in the law—that no one shall “knowingly obstruct, detain,
hinder, impede, or block another person’s entry to or exit from a healthcare facility,” Louisville-
Jefferson Ord. Code § 132.09(B)(1)—will not work. Unchallenged here, this aspect of the law
bars anyone from “obstruct[ing]” or “hinder[ing]” or “imped[ing]” access to a clinic. Id. That’s
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assuredly a law whose ends and means fit snugly. Why not use that law to meet the County’s
access and order goals?
Keep in mind that EMW keeps video surveillance of its entrance. The County does not
explain why it cannot use EMW’s footage and, in connection with law enforcement, identify and
cite harassing or obstructing protestors. Notably, in his Rule 30(b)(6) deposition, the County’s
representative admitted that he could “[o]ftentimes” “ascertain a violation” of existing County
laws based on EMW’s security footage. R.47 at 70. The County’s only response is to say that
this approach would be more “difficult.” Id. at 119. “Of course” it would be. McCullen, 573
U.S. at 495. More than some difficulty, however, is required to uphold regulations that suppress
speech. “A painted line on the sidewalk is easy to enforce, but the prime objective of the First
Amendment is not efficiency.” Id.
Most of the protestors that the law targets, moreover, appear to be repeat visitors to the
Clinic. That permits the County or EMW to seek targeted injunctions preventing those
individuals—and them alone—from standing outside the Clinic’s entrances. On this point, in
another portion of his Rule 30(b)(6) deposition, the County’s representative conceded that “the
[police] officers that regularly ma[de] calls for service” to EMW “would probably recognize
some of the people that are out there.” R.47 at 98. The County offers little explanation why
customized injunctive relief would serve its interests less effectively. It does not explain how
many, or how few, arrests or prosecutions it has initiated under the no-obstruction law. What
was problematic for Massachusetts in McCullen—its failure to focus regulation on the problem
through targeted injunctions, 573 U.S. at 494–95—is problematic for Louisville here.
It may be true that violations of the County’s no-obstruction law would lead only to
misdemeanor citations. Louisville-Jefferson Ord. Code § 132.09(F)(1)–(2). But if the concern is
that law enforcement’s remedial hand is weak, the County holds the key. Other legislative
options exist. The County could enact a local copy of the federal Freedom of Access to Clinic
Entrances Act, which bars “physical obstruction” meant to “interfere with” access to clinics like
EMW and which permits graduated civil penalties and criminal sanctions. 18 U.S.C.
§ 248(a)(1)–(c). The Court made this precise point in McCullen. 573 U.S. at 490–91.
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Along similar lines, the County admits that protestors tend not to harass or obstruct clinic
visitors when police patrol near EMW. Yet the County has done little to show that additional
patrols, or patrols focused on the times when the most obstructive protestors arrive, could not
reduce protestors near EMW to acceptable levels. The County asserts that a “constant[]” police
presence near EMW “just really isn’t feasible,” but does not explain whether constant patrols are
needed and has not shown that the most obstructive protestors indeed are always there. R.47 at
120; see McCullen, 573 U.S. at 495.
Keep in mind, moreover, that the goal of the plaintiffs is not to harass or protest, whether
loudly or violently. The point of their speech is to offer a compassionate ear. To this day, it
remains unclear why the County has sought to suppress their speech along with those types of
protests that are far more likely to hinder access to a clinic and are sometimes designed to do just
that.
This limitation on speech has inhibited its effectiveness, just as it did in McCullen. By
requiring EMW’s patients to be as much as ten feet away from Sisters of Life as they enter the
Clinic, the buffer zone “compromise[s]” Sisters for Life’s “ability to initiate the close, personal
conversations” that are “essential” to its compassionate, person-to-person message. McCullen,
573 U.S. at 487. The buffer zones likewise make it “substantially more difficult for” Sisters for
Life “to distribute literature to arriving patients,” because they place potential pamphleteers more
than an arm’s length away from EMW’s entrants and make it easier for agents of EMW to
deflect the literature they offer. Id. at 488. The buffer zone also makes “quiet conversations”
with EMW clinic entrants difficult if not impossible. Id. at 489. Noise from protestors outside
the buffer zones makes it infeasible for Sisters for Life to converse quietly with clinic entrants if
they cannot enter the buffer zone to talk; meanwhile, the buffer zone makes Sisters for Life “stop
abruptly at its painted border,” making its members “appear ‘untrustworthy’ or ‘suspicious.’” Id.
at 487.
Consider how a buffer zone took a “toll” on the speech of sidewalk counselors in
McCullen and here. Id. In McCullen, one counselor said that she had persuaded “far fewer
people” “not to terminate their pregnancies” after passage of the law. Id. Another “estimated
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having about 100 successful interactions over the years before the 2007 amendment, but not a
single one since.” Id. Still another said that “only one woman out of 100 will make the effort”
to speak to her under the new law. Id. at 488 (quotation omitted). Something similar has
happened in Louisville under its buffer zone. One of today’s plaintiffs says she persuaded “three
to six” women per month to forego abortion before passage of the buffer-zone law, but “none”
afterwards. R.44 at 54–55. Another, who says he helped to prevent between fifty and sixty
abortions per year prior to the ordinance, says the ordinance has “practically eliminated”
effective sidewalk counseling. R.1 ¶ 23; R.45 at 29. Still another says that, given the buffer
zones, she “really [doesn’t] have a chance to talk” to most clinic entrants anymore. R.46 at 14.
The Court’s conclusion in McCullen applies here. This buffer zone is not narrowly
tailored.
The County offers several contrary arguments. It argues that the buffer zones are
geographically small and thus burden speech only modestly. But what we have just said, backed
up by uncontested record evidence parallel to that in McCullen, establishes that the buffer zone
suppresses speech. It makes things “substantially more difficult” for Sisters for Life’s members:
they cannot “initiate” as many “close, personal conversations” with clinic entrants, since they
must now stand several feet away from them; they cannot distribute as much literature, since
distribution now takes place beyond an arm’s length; and they can attempt far fewer “quiet
conversations” with EMW’s patients, since noise from protestors makes such conversations
infeasible absent entry into the buffer zone. McCullen, 573 U.S. at 487–89. As a result, and as
in McCullen, it is uncontested that Sisters for Life has persuaded “far fewer people” to decline
abortion in the ordinance’s wake. Id. at 487. The ordinance self-evidently burdens Sisters for
Life’s speech.
That the buffer zone in McCullen was larger does not change things. That decision does
not create distinct sets of rules for a 35-foot buffer zone near an entrance, a 10-foot buffer zone
near an entrance, and all manner of buffer zones in between. It instead says that narrow tailoring
is required for all such burdens on speech. Once a buffer zone burdens speech, McCullen
demands narrow tailoring. Id. at 489 (explaining that narrow tailoring takes effect “[w]hen the
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government makes it more difficult to engage in” speech). Subsequent cases confirm the point:
Narrow tailoring turns on whether a law sweeps more broadly than necessary, not on whether its
yoke is heavy or light. Am. for Prosperity Found. v. Bonta, 141 S. Ct. 2373, 2384–85 (2021).
The County observes that Sisters for Life mainly visits EMW rather than other medical
facilities. That does not help. In facial First Amendment challenges, we consider a statute’s full
range of applications even when some of them do not implicate a particular plaintiff. See, e.g.,
Packingham v. North Carolina, 137 S. Ct. 1730, 1737 (2017); Simon & Schuster, Inc. v.
Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 121–23 & n.* (1991). Put differently, if
a statute is not narrowly tailored, it cannot be constitutionally applied to anyone, even if a more
narrowly tailored statute might still capture a plaintiff’s conduct. Cutting v. City of Portland,
802 F.3d 79, 86 (1st Cir. 2015); Hodge v. Talkin, 799 F.3d 1145, 1156–57 (D.C. Cir. 2015); Am.
for Prosperity, 141 S. Ct. at 2387–89.
The County insists that injunctions would burden more speech than buffer zones. But we
do not see how. Injunctions requiring some people (engaged in obstruction) to stay away from
the Clinic’s entrance constrict less than ordinances requiring everyone (whether engaged in
obstruction or not) to stay away. The County’s objections to injunctions at any rate do not
explain its qualms about video surveillance or other order-restoring techniques.
The County adds that clinic entrants often refuse to file police reports and that county
police cannot stand perpetual vigil over the Clinic. True but unresponsive. Neither videos nor
injunctions rely on police reports or a constant police presence. The essential point of a video is
to alleviate the need for round-the-clock surveillance by officers or others.
The County maintains that the ordinance creates buffer zones only when a facility
requests painted lines outside its entrance. But that is not what the ordinance says. It applies
always and everywhere there is a healthcare facility. Nothing in the ordinance at any rate limits
the scenarios in which a medical facility may ask for painted lines, and the First Amendment
“does not leave us at the mercy of noblesse oblige.” United States v. Stevens, 559 U.S. 460, 480
(2010). Putting the same point more elaborately, we would not bless an ill-tailored statute if the
government enforced it only in particularly worthy cases. Id. We do not see what changes when
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an intermediate step towards enforcement—the decision whether or not to paint the lines—turns
on private parties’ discretionary acts. Many enforcement decisions, after all, begin with parallel
private choices. A blanket ban on solicitation would not become constitutional if a municipality
enforced it only after citizens reported pushy solicitors. Cf. Martin v. City of Struthers, 319 U.S.
141, 144–49 (1943).
Hill v. Colorado, 530 U.S. 703 (2000), does not require a different conclusion. True, Hill
rejected an overbreadth challenge to a floating “bubble zone” law that applied to all medical
facilities. Id. at 730–31. But in Hill, the defendants had argued that their ordinance helped clinic
patients “avoid[] unwanted communication.” Id. at 716. The Hill Court reasoned that every
entrance to every medical facility potentially implicated that interest, such that the Hill
ordinance’s geographic reach did not raise overbreadth concerns. Id. at 731. Here, by contrast,
the County has not deployed an unwanted-communication justification. Having turned away
from Hill’s reasoning, the County cannot rely on its conclusions. True also, there may be some
tension between Hill (which upheld a floating bubble zone restriction) and McCullen (which
invalidated a fixed buffer zone restriction). But because the County’s ordinance more closely
resembles the fixed buffer zone invalidated in McCullen than the floating bubble zone upheld in
Hill and because it does not comply with the “narrow tailoring” required by McCullen, the
ordinance is likely unconstitutional.
All in all, the ordinance faces many narrow-tailoring problems, and Sisters for Life is
likely to succeed on the merits.
B.
The other factors do not justify withholding preliminary relief. For starters, Sisters for
Life faces irreparable harm. “The loss of First Amendment freedoms, for even minimal periods
of time,” amounts to irreparable injury. Roman Catholic Diocese v. Cuomo, 141 S. Ct. 63, 67
(2020) (per curiam) (quotation omitted). Because the ordinance likely violates the First
Amendment, applying it to Sisters for Life would irreparably injure them.
Nor do the remaining preliminary injunction factors alter the equation. The equities are
neutral: some visitors to EMW may perceive the speech as harming them, but suppressing
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speech harms the speakers. Similarly, the public interest cuts in favor of reducing disorder on
public sidewalks but against violating the free-speech rights of Sisters for Life. Just as “[t]he
First Amendment’s guarantee of free speech does not extend only to categories of speech that
survive an ad hoc balancing of relative social costs and benefits,” Stevens, 559 U.S. at 470, we
cannot re-weigh the equities so as to undercut the First Amendment, see United States v.
Oakland Cannabis Buyers’ Co-op., 532 U.S. 483, 497–98 (2001).
We reverse and remand with instructions for the district court to preliminarily enjoin
defendants from enforcing Louisville-Jefferson Ord. Code § 132.09(B)(2).