Veronica Price v. City of Chicago

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-2196
VERONICA PRICE, et al.,
Plaintiffs-Appellants,
v.
CITY OF CHICAGO, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 16-cv-8268 — Amy J. St. Eve, Judge.
____________________
ARGUED FEBRUARY 13, 2018 — DECIDED FEBRUARY 13, 2019
____________________
Before SYKES and BARRETT, Circuit Judges, and GRIESBACH,
Chief District Judge. ∗
SYKES, Circuit Judge. Pro-life “sidewalk counselors” sued
to enjoin Chicago’s “bubble zone” ordinance, which bars
them from approaching within eight feet of a person in the
vicinity of an abortion clinic if their purpose is to engage in
∗ Of the Eastern District of Wisconsin, sitting by designation.
2 No. 17-2196
counseling, education, leafletting, handbilling, or protest.
The plaintiffs contend that the floating bubble zone is a
facially unconstitutional content-based restriction on the
freedom of speech. The district judge dismissed the claim,
relying on Hill v. Colorado, 530 U.S. 703 (2000), which upheld
a nearly identical Colorado law against a similar First
Amendment challenge.
Abortion clinic buffer-zone laws “impose serious bur-
dens” on core speech rights. McCullen v. Coakley, 134 S. Ct.
2518, 2535 (2014). Under Hill, however, a floating bubble
zone like this one is not considered a content-based re-
striction on speech and thus is not subject to strict judicial
scrutiny. 530 U.S. at 725. Rather, the ordinance is classified as
a content-neutral “time, place, or manner” restriction and is
tested under the intermediate standard of scrutiny, which
asks whether the law is narrowly tailored to serve significant
governmental interests. Id. at 725–26. Hill answered that
question in the affirmative, holding that the governmental
interests at stake—preserving clinic access and protecting
patients from unwanted speech—are significant, and an
8-foot no-approach zone around clinic entrances is a narrow-
ly tailored means to address those interests. Id. at 716, 725–
30.
Hill’s content-neutrality holding is hard to reconcile with
both McCullen and Reed v. Town of Gilbert, 135 S. Ct. 2218(2015), and its narrow-tailoring holding is in tension with
McCullen. Still, neither McCullen nor Reed overruled Hill, so
it remains binding on us. Moreover, Chicago’s bubble-zone
law is narrower than the one upheld in Hill: Colorado’s no-
approach zone applies within a 100-foot radius of a clinic
entrance; Chicago’s applies within a 50-foot radius. Lastly,
No. 17-2196 3
we would open a circuit split if we allowed this facial chal-
lenge to move forward. The Third Circuit, applying Hill,
upheld Pittsburgh’s 8-foot bubble zone against a facial
challenge without requiring an evidentiary showing from
the City. See Brown v. City of Pittsburgh, 586 F.3d 263, 270–73
(3d Cir. 2009). We affirm the judgment.
I. Background
The case comes to us from a dismissal at the pleading
stage, so we sketch the facts as alleged in the plaintiffs’
complaint, accepting them as true for purposes of this
appeal. Deppe v. Nat’l Collegiate Athletic Ass’n, 893 F.3d 498,
499 (7th Cir. 2018). Pro-life advocates Veronica Price, David
Bergquist, Ann Scheidler, and Anna Marie Scinto Mesia
regularly engage in what’s known as “sidewalk counseling”
on the sidewalks and public ways outside Chicago abortion
clinics. This entails peacefully approaching women entering
the clinics to give them pro-life literature, discuss the risks of
and alternatives to abortion, and offer support if the women
were to carry their pregnancies to term. These conversations
must take place face to face and in close proximity to permit
the sidewalk counselors to convey a gentle and caring
manner, maintain eye contact and a normal tone of voice,
and protect the privacy of those involved.
In October 2009 the Chicago City Council adopted an or-
dinance that effectively prohibits sidewalk counseling by
banning the close approach it requires. The Council amend-
ed 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. The
ordinance provides:
4 No. 17-2196
A person commits disorderly conduct when
he … knowingly approaches another person
within eight feet of such person, unless such
other person consents, for the purpose of passing
a leaflet or handbill to, displaying a sign to, or en-
gaging in oral protest, education, or counseling
with such other person in the public way within a
radius of 50 feet from any entrance door to a
hospital, medical clinic or healthcare facili-
ty … .
CHI., ILL., CODE § 8-4-010(j)(1) (2009) (emphasis added).
Chicago’s ordinance is nearly identical to—indeed, was
modeled after—the Colorado law upheld in Hill. Both laws
impose an 8-foot no-approach bubble zone, but Chicago’s
law operates within a smaller radius. Colorado’s 8-foot
bubble zone applies within a 100-foot radius of an abortion-
clinic entrance. Chicago’s applies within a 50-foot radius.
The City’s ordinance otherwise mirrors the law at issue in
Hill.
In August 2016 the four sidewalk counselors and two ad-
vocacy groups joined together to sue the City under
42 U.S.C. § 1983 seeking declaratory and injunctive relief
against the enforcement of the bubble-zone ordinance. Their
complaint raised four claims: (1) the ordinance infringes the
freedom of speech guaranteed by the First Amendment, both
facially and as applied; (2) the ordinance is unconstitutional-
ly vague in violation of the Due Process Clause of the
Fourteenth Amendment; (3) the City selectively enforces the
bubble-zone ordinance in violation of the Equal Protection
Clause of the Fourteenth Amendment; and (4) the ordinance
infringes the plaintiffs’ state constitutional right to freedom
No. 17-2196 5
of speech and assembly. Much of the complaint describes
specific instances of selective or improper enforcement from
early 2010 through mid-2016, but those allegations have no
bearing on this appeal.
The City moved to dismiss the complaint for failure to
state a claim. See FED. R. CIV. P. 12(b)(6). The district judge
granted the motion in part. She ruled that Hill forecloses the
facial First Amendment challenge and the due-process
vagueness claim. But she allowed the case to proceed on the
as-applied First Amendment challenge, the equal-protection
claim alleging selective enforcement, and the state constitu-
tional claims. The parties eventually settled these remaining
claims and jointly moved to dismiss them. The judge entered
final judgment, setting up this appeal contesting only the
Rule 12(b)(6) ruling.
II. Discussion
We review a Rule 12(b)(6) dismissal de novo. O’Boyle v.
Real Time Resolutions, Inc., 910 F.3d 338, 342 (7th Cir. 2018).
The plaintiffs contend that Chicago’s bubble-zone ordinance
is a content-based restriction on speech and is facially un-
constitutional under strict scrutiny. Their fallback position is
that the ordinance flunks the narrow-tailoring requirement
of the intermediate test for content-neutral restrictions on
speech.
The Supreme Court considered and rejected these precise
arguments in Hill, as the plaintiffs must and do
acknowledge. As they see it, however, Hill is no longer an
insuperable barrier to suits challenging abortion clinic
bubble-zone laws. The premise of their claim is that the
Court’s more recent decisions in Reed and McCullen have so
6 No. 17-2196
thoroughly undermined Hill’s reasoning that we need not
follow it.
That’s a losing argument in the court of appeals. The
Court’s intervening decisions have eroded Hill’s foundation,
but the case still binds us; only the Supreme Court can say
otherwise. See State Oil Co. v. Kahn, 522 U.S. 3, 20 (1997) (“[I]t
is this Court’s prerogative alone to overrule one of its prece-
dents.”). The Court’s instructions in this situation are clear:
“If a precedent of this Court has direct application in a case,
yet appears to rest on reasons rejected in some other line of
decisions, the Court of Appeals should follow the case [that]
directly controls, leaving to this Court the prerogative of
overruling its own decisions.” Agostini v. Felton, 521 U.S. 203,
237–38 (1997) (quotation marks omitted).
That said, in the nineteen years since Hill was decided,
the Court has refined the concept of content neutrality and
clarified the requirement of narrow tailoring in a First
Amendment challenge of this type. To see how, it’s helpful
to trace the doctrinal development in this specific corner of
free-speech law.
A. Speech in a Traditional Public Forum
We begin with first principles. “The First Amendment
reflects a profound national commitment to the principle
that debate on public issues should be uninhibited, robust,
and wide-open.” Snyder v. Phelps, 562 U.S. 443, 452 (2011)
(quotation marks omitted). “Leafletting and commenting on
matters of public concern are classic forms of speech that lie
at the heart of the First Amendment … .” Schenck v.
Pro-Choice Network of W. N.Y., 519 U.S. 357, 377 (1997). More-
over, sidewalks and other public ways “occupy a special
No. 17-2196 7
position in terms of First Amendment protection because of
their historic role as sites for discussion and debate.”
McCullen, 134 S. Ct. at 2529 (quotation marks omitted). These
public spaces—“traditional public fora” in the doctrinal
nomenclature—“have immemorially been held in trust for
the use of the public and, time out of mind, have been used
for purposes of assembly, communicating thoughts between
citizens, and discussing public questions.” Hague v. Comm.
for Indus. Org., 307 U.S. 496, 515 (1939).
As the Court explained in McCullen:
It is no accident that public streets and side-
walks have developed as venues for the ex-
change of ideas. Even today, they remain one
of the few places where a speaker can be confi-
dent that he is not simply preaching to the
choir. With respect to other means of commu-
nication, an individual confronted with an un-
comfortable message can always turn the page,
change the channel, or leave the Web site. Not
so on public streets and sidewalks. There, a lis-
tener often encounters speech he might other-
wise tune out. In light of the First
Amendment’s purpose to preserve an uninhib-
ited marketplace of ideas in which truth will
ultimately prevail, this aspect of traditional
public fora is a virtue, not a vice.
134 S. Ct. at 2529 (citation and quotation marks omitted).
Thus, speech “is at its most protected on public sidewalks.”
Schenck, 519 U.S. at 377.
8 No. 17-2196
That the sidewalk counselors seek to reach women as
they enter an abortion clinic—at the last possible moment
when their speech might be effective—“only strengthens the
protection afforded [their] expression.” McIntyre v. Ohio
Elections Comm'n, 514 U.S. 334, 347 (1995). “Urgent, im-
portant, and effective speech can be no less protected than
impotent speech, lest the right to speak be relegated to those
instances when it is least needed. No form of speech is
entitled to greater constitutional protection … .” Id. (citation
omitted). And direct “one-on-one communication” has long
been recognized as “the most effective, fundamental, and
perhaps economical avenue of political discourse.”
McCullen, 134 S. Ct. at 2536 (quotation marks omitted).
* * *
It is a “guiding First Amendment principle that the gov-
ernment has no power to restrict expression because of its
message, its ideas, its subject matter, or its content,” and this
principle “applies with full force in a traditional public
forum.” Id. at 2529 (quotation marks omitted). “Content-
based laws—those that target speech based on its communi-
cative content—are presumptively unconstitutional” and get
strict judicial scrutiny; laws of this type “may be justified
only if the government proves that they are narrowly tai-
lored to serve compelling state interests.” Reed, 135 S. Ct. at
2226.
On the other hand, the government has “somewhat wid-
er leeway to regulate features of speech unrelated to its
content.” McCullen, 134 S. Ct. at 2529. “[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
No. 17-2196 9
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.” Ward v. Rock Against Racism, 491 U.S. 781, 791
(1989) (quotation marks omitted).
To date, the Supreme Court has applied the intermediate
standard of scrutiny to abortion-clinic buffer zones, with
mixed results. We now turn to those cases.
B. The Abortion Clinic Buffer-Zone Cases
1. Madsen v. Women’s Health Center and
Schenck v. Pro-Choice Network of Western New York
The Court’s first two occasions to address abortion-clinic
buffer zones came in cases involving injunctions entered by
state and federal courts to address unlawful conduct associ-
ated with the large-scale clinic blockades of the early 1990s
for which ordinary law-enforcement responses had proven
ineffective. Schenck, 519 U.S. at 362–63 (describing the clinic
blockades); Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753,
758–59 (1994) (same).
In Madsen the Court reviewed a state-court injunction
barring the named defendants from entering a 36-foot buffer
zone around a particular clinic. 512 U.S. at 760. As relevant
here, the injunction also established a 300-foot zone around
the clinic within which the defendants were prohibited from
“physically approaching any person seeking the services of
the [c]linic” without that person’s consent. Id. The Court first
ruled that these restrictions were content neutral and did not
require strict scrutiny. Id. at 762–64. However, the Court
applied a “more stringent” form of intermediate scrutiny
because injunctions “carry greater risks of censorship and
10 No. 17-2196
discriminatory application than do general ordinances.” Id.at 764–65. This yielded a split result: The Court upheld the
fixed 36-foot buffer zone but invalidated the floating “no
approach” zone. Id. at 768–70, 773–74.
In Schenck the Court applied Madsen and upheld a provi-
sion in a federal-court injunction prohibiting the named
defendants from entering a fixed 15-foot buffer zone around
the doorways, driveways, and parking lots of certain abor-
tion clinics. 519 U.S. at 380–83. But the Court invalidated a
provision barring the defendants from approaching within
15 feet of any person entering or leaving the clinics. Id. at
377–79. The Court held that the 15-foot floating bubble zone
was unconstitutional because it prevented the defendants
“from communicating a message from a normal conversa-
tional distance or handing leaflets to people entering or
leaving the clinics who [were] walking on the public side-
walks.” Id. at 377.
The Court’s reasoning rested primarily on the venerable
principle that leafletting on public sidewalks is core protect-
ed speech. “Leafletting and commenting on matters of public
concern are classic forms of speech that lie at the heart of the
First Amendment, and speech in public areas is at its most
protected on public sidewalks, a prototypical example of a
traditional public forum.” Id. But the Court was also con-
cerned that the floating bubble zone was not narrowly
tailored: “With clinic escorts leaving the clinic to pick up
incoming patients and entering the clinic to drop them off, it
would be quite difficult for a protester who wishes to engage
in peaceful expressive activity to know how to remain in
compliance with the injunction,” resulting in “substantial
risk that much more speech will be burdened than the
No. 17-2196 11
injunction by its terms prohibits.” Id. at 378. The Court
reserved the question “whether the governmental interests
involved would ever justify some sort of zone of separation
between individuals entering the clinics and protesters,
measured by the distance between the two.” Id. at 377 (em-
phasis added).
2. Hill v. Colorado
The Court returned to this subject in Hill, this time re-
viewing a generally applicable law rather than a targeted
injunction. As we’ve noted, Chicago’s bubble ordinance is
identical to the Colorado law at issue in Hill except for the
radius within which the no-approach zone applies. Because
Hill is decisive here, the decision merits close review.
The Court began with the question of content neutrality,
observing that the 8-foot bubble zone “is not a regulation of
speech” but instead is simply “a regulation of the places
where some speech may occur.” Hill, 530 U.S. at 719. And
the Colorado law, the Court said, was not content based
because it “was not adopted because of disagreement with
the message the speech conveys” but rather to ensure clinic
access, protect patient privacy, and “provid[e] the police
with clear guidelines.” Id. at 719–20 (quotation marks and
alteration omitted).
The challengers argued that the law was content based
because enforcement authorities would have to examine the
content of the statements made by an approaching speaker
to determine if a violation of the statute occurred. Id. at 720.
The Court disagreed, saying that the law “places no re-
striction on—and clearly does not prohibit—either a particu-
lar viewpoint or any subject matter that may be discussed by
12 No. 17-2196
a speaker. Rather, it simply establishes a minor place re-
striction on an extremely broad category of communications
with unwilling listeners.” Id. at 723. The Court added: “[W]e
have never suggested that the kind of cursory examination
that might be required to exclude casual conversation …
would be problematic.” Id. at 722. On these understandings,
the Court ruled that the bubble-zone law was properly
classified as a content-neutral time, place, or manner regula-
tion of speech and did not require strict scrutiny. Id. at 725.
Applying intermediate scrutiny, the Court held that
Colorado’s objectives—preserving clinic access and protect-
ing patients from unwelcome speech—count as significant
governmental interests, and an 8-foot floating bubble zone
within 100 feet of a clinic entrance is a narrowly tailored
means to serve them. Id. at 726–30. The Court distinguished
the Colorado law from the no-approach zone it had invali-
dated just three years earlier: “Unlike the 15-foot zone in
Schenck, this 8-foot zone allows the speaker to communicate
at a ‘normal conversational distance.’” Id. at 726–27 (quoting
Schenck, 519 U.S. at 377)). The Court acknowledged that the
“burden on the ability to distribute handbills is more seri-
ous,” but that difficulty did not doom the Colorado law. Id.
at 727. The 8-foot buffer zone, the Court said, did not “pre-
vent a leafletter from simply standing near the path of
oncoming pedestrians and proffering his or her material,
which the pedestrians [could] easily accept.” Id.
Rounding out its narrow-tailoring analysis, the Court re-
jected the argument that Colorado could achieve its objec-
tives through less restrictive means—say by enforcing its
preexisting laws against harassment, disorderly conduct,
and battery, as Justice Kennedy posited in dissent. Id. at 729;
No. 17-2196 13
id. at 777–78 (Kennedy, J., dissenting). As the Court put it,
the statute’s “prophylactic aspect” was justified based on the
“great difficulty” of protecting abortion clinics and their
patients via “legal rules that focus exclusively on the indi-
vidual impact of each instance of behavior.” Id. at 729.
3. McCullen v. Coakley
Hill was decided in 2000. No new buffer-zone case
reached the Court until McCullen in 2014. At issue was a
Massachusetts law imposing a fixed 35-foot buffer zone
around the entrance, exit, and driveway of every abortion
clinic in the state. McCullen, 134 S. Ct. at 2526. Certain per-
sons were exempt and could freely enter the zone: those
entering or leaving the clinic; employees or agents of the
clinic; law enforcement, firefighters, construction and utility
workers, and other municipal agents; and persons using the
sidewalk or public way to reach a destination other than the
clinic. Everyone else was kept out on pain of criminal penal-
ty. Id.As here, pro-life sidewalk counselors challenged the law.
Id. at 2527. They argued that the buffer-zone law was a
content-based restriction on speech and required strict
scrutiny. The Court disagreed. First, the Court noted that
“the Act does not draw content-based distinctions on its
face.” Id. at 2531. To be sure, the Court explained, the
Massachusetts law “would be content based if it required
enforcement authorities to examine the content of the mes-
sage that is conveyed to determine whether a violation has
occurred.” Id. (quotation marks omitted). But enforcement of
the law turned not on what people said while in the buffer
zone “but simply on where they sa[id] it.” Id. “Indeed,” the
Court said, “[a person could] violate the Act merely by
14 No. 17-2196
standing in a buffer zone, without displaying a sign or
uttering a word.” Id.The Court continued:
To be clear, the Act would not be content neu-
tral if it were concerned with [the] undesirable
effects that arise from the direct impact of
speech on its audience or listeners’ reactions to
speech. … If, for example, the speech outside
Massachusetts abortion clinics caused offense
or made listeners uncomfortable, such offense
or discomfort would not give the Common-
wealth a content-neutral justification to restrict
the speech.
Id. at 2531–32 (citation, quotation marks, and alteration
omitted). In the end the Court concluded that the justifica-
tions for the law—“ensuring safety and preventing obstruc-
tion” at clinic entrances—“are, as a general matter, content
neutral.” Id. at 2532.
But the Massachusetts buffer-zone law did not survive
intermediate scrutiny. Citing Schenck and Madsen (but not
Hill), the Court held that the Commonwealth’s safety and
access objectives were sufficiently weighty under the inter-
mediate standard of review. Id. at 2535. “At the same time,”
however, “the buffer zones impose serious burdens on [the
sidewalk counselors’] speech.” Id. Relying again on Schenck,
the Court observed that the fixed 35-foot buffer zone made it
“substantially more difficult” for sidewalk counselors to
“distribute literature to arriving patients” and to engage in
the kind of personal and compassionate conversations
required for their messages to be heard. Id. at 2536.
No. 17-2196 15
Amplifying the theory behind the intermediate standard
of scrutiny, the Court significantly clarified the role of the
narrow-tailoring requirement:
The tailoring requirement does not simply
guard against an impermissible desire to cen-
sor. The government may attempt to suppress
speech not only because it disagrees with the
message being expressed, but also for mere
convenience. Where certain speech is associat-
ed with particular problems, silencing the
speech is sometimes the path of least re-
sistance. But by demanding a close fit between
ends and means, the tailoring requirement
prevents the government from too readily sac-
rificing speech for efficiency.
Id. at 2534 (quotation marks and alteration omitted). In other
words, “[f]or a content-neutral time, place, or manner
regulation to be narrowly tailored, it must not ‘burden
substantially more speech than is necessary to further the
government’s legitimate interests.’” Id. at 2535 (quoting
Ward, 491 U.S. at 799). Put in more positive terms, “[t]o meet
the requirement of narrow tailoring, the government must
demonstrate that alternative measures that burden substan-
tially less speech would fail to achieve [its] interests, not
simply that the chosen route is easier.” Id. at 2540.
Against these background principles of narrow tailoring,
the 35-foot fixed buffer zone flunked the test. “A painted line
on the sidewalk is easy to enforce, but the prime objective of
the First Amendment is not efficiency.” Id. Massachusetts
had less restrictive regulatory options to ensure access to
abortion clinics and prevent harassment of patients: existing
16 No. 17-2196
state and local laws banning obstruction of clinic entrances;
“generic criminal statutes forbidding assault, breach of the
peace, trespass, vandalism, and the like”; and targeted
injunctions like those in Schenck and Madsen. Id. at 2538. But
the Commonwealth had not shown that “it seriously under-
took to address the problem with less intrusive tools readily
available to it.” Id. at 2539.
“Given the vital First Amendment interests at stake, it is
not enough for Massachusetts simply to say that other
approaches have not worked.” Id. at 2540. The Court con-
cluded that “[t]he buffer zones burden substantially more
speech than necessary to achieve the Commonwealth’s
asserted interests.” Id. at 2537.
The Court closed with this:
[The sidewalk counselors] wish to converse
with their fellow citizens about an important
subject on the public streets and sidewalks—
sites that have hosted discussions about the is-
sues of the day throughout history. [Massachu-
setts] assert[s] undeniably significant interests
in maintaining public safety on those same
streets and sidewalks, as well as in preserving
access to adjacent healthcare facilities. But here
the Commonwealth has pursued those inter-
ests by the extreme step of closing a substantial
portion of a traditional public forum to all
speakers. It has done so without seriously ad-
dressing the problem through alternatives that
leave the forum open for its time-honored pur-
poses. The Commonwealth may not do that
consistent with the First Amendment.
No. 17-2196 17
Id. at 2541.
4. Reed v. Town of Gilbert
One more case is important to the current doctrinal land-
scape, though it did not involve an abortion-clinic buffer
zone. Reed was a First Amendment challenge to the Sign
Code in the Town of Gilbert, Arizona, which classified signs
by the type of information they conveyed and regulated each
category differently. 135 S. Ct. at 2224–25. For example,
“Ideological Signs”—defined as any sign “communicating a
message or idea[] for noncommercial purposes” other than
construction signs, directional signs, and certain other
categories—were treated most favorably. Id. at 2224. “Politi-
cal Signs”—any “temporary sign designed to influence the
outcome of an election”—were treated less favorably than
Ideological Signs. Id. “Temporary Directional Signs” were
regulated most heavily. Id. at 2225.
The Court began with an important clarification of the
content-neutrality inquiry. First, a “regulation of speech is
content based if a law applies to particular speech because of
the topic discussed or the idea or message conveyed.” Id. at
2227. The Court explained that the threshold question in the
test for content neutrality is whether the challenged regula-
tion “on its face draws distinctions based on the message a
speaker conveys.” Id. (quotation marks omitted). The Court
continued: “Some facial distinctions based on a message are
obvious, defining regulated speech by particular subject
matter, and others are more subtle, defining regulated
speech by its function or purpose. Both are distinctions
drawn based on the message a speaker conveys” and require
strict scrutiny. Id.18 No. 17-2196
The Court then identified a “separate and additional cat-
egory of laws that, though facially content neutral, will be
considered content-based regulations of speech: laws that
cannot be justified without reference to the content of the
regulated speech[] or … were adopted by the government
because of disagreement with the message the speech con-
veys.” Id. (emphasis added) (quotation marks and alteration
omitted). Laws of this type also get strict judicial scrutiny. Id.
at 2227.
On this illumination of the concept of content neutrality,
the Court ruled that the Town’s Sign Code “is content based
on its face.” Id. The Town’s regulatory requirements for “any
given sign … depend entirely on the communicative content
of the sign.” Id. As the Court put it:
If a sign informs its reader of the time and
place a book club will discuss John Locke’s
Two Treatises of Government, that sign will be
treated differently from a sign expressing the
view that one should vote for one of Locke’s
followers in an upcoming election, and both
signs will be treated differently from a sign ex-
pressing an ideological view rooted in Locke’s
theory of government.
Id.The Town insisted that strict scrutiny did not apply be-
cause it had not discriminated between particular ideas or
viewpoints within each sign category. The Court resound-
ingly rejected that position: “A law that is content based on
its face is subject to strict scrutiny regardless of the govern-
ment’s benign motive, content-neutral justification, or lack of
No. 17-2196 19
animus toward the ideas contained in the regulated speech.”
Id. at 2228 (quotation marks omitted). Put somewhat more
directly: “[A] speech regulation targeted at specific subject
matter is content based even if it does not discriminate
among viewpoints within that subject matter.” Id. at 2230.
The Town could not defend its Sign Code under strict
scrutiny. The Court assumed for the sake of argument that
the Town’s objectives—aesthetics and traffic safety—were
compelling enough to satisfy this most exacting standard of
review. Id. at 2231. But the Code’s content-based distinctions
were “hopelessly underinclusive.” Id. The Town could not
explain how its interests in beautification and safety were
furthered by strictly limiting temporary directional signs but
allowing other types of signs to proliferate. Id. “In light of
this underinclusiveness,” the Court held, “the Town has not
met its burden to prove that its Sign Code is narrowly
tailored to further a compelling governmental interest.” Id.
at 2232.
C. Hill After Reed and McCullen
Hill is incompatible with current First Amendment doc-
trine as explained in Reed and McCullen. To begin, Hill
started from the premise that “[t]he principal inquiry in
determining content neutrality … is whether the govern-
ment has adopted a regulation of speech because of disa-
greement with the message it conveys.” 530 U.S. at 719(quoting Ward, 491 U.S. at 791). After Reed that’s no longer
correct. We now know that the first step in the content-
neutrality inquiry is to ask whether the challenged law is
“content based on its face.” Reed, 135 S. Ct. at 2228.
20 No. 17-2196
As Reed explained, a “separate and additional category” of
content-based laws includes facially neutral laws that “can-
not be justified without reference to the content of the regu-
lated speech[] or … were adopted because of disagreement
with the message the speech conveys.” Id. at 2227 (emphases
added) (quotation marks and alteration omitted). But “an
innocuous justification cannot transform a facially content-
based law into one that is content neutral.” Id. at 2228.
“Because strict scrutiny applies either when a law is content
based on its face or when the purpose and justification for
the law are content based, a court must evaluate each ques-
tion before it concludes that the law is content neutral and
thus subject to a lower level of scrutiny.” Id. (emphases
added).
In fairness, Hill did not completely ignore the actual text
of the Colorado statute. Though not clearly delineated, its
facial analysis was twofold. The Court first concluded that
Colorado’s bubble-zone law was content neutral because it
didn’t restrict “either a particular viewpoint or any subject
matter that may be discussed by a speaker.” Hill, 530 U.S. at
723. In other words, the absence of viewpoint or subject-
matter discrimination was a sufficient indicator of content
neutrality. Second, the Court dismissed the fact that en-
forcement authorities had to examine the content of an
approaching speaker’s statements to determine if a violation
of the law had occurred: “We have never held, or suggested,
that it is improper to look at the content of an oral or written
statement in order to determine whether a rule of law ap-
plies to a course of conduct.” Id. at 721.
Neither rationale survives McCullen and Reed. McCullen
explained in no uncertain terms that a law is indeed content
No. 17-2196 21
based if enforcement authorities must “examine the content
of the message that is conveyed to determine whether a
violation has occurred.” 134 S. Ct. at 2531 (quotation marks
omitted). And Reed clarified that the lack of viewpoint or
subject-matter discrimination does not spare a facially
content-based law from strict scrutiny. 135 S. Ct. at 2230. As
we explained shortly after Reed was decided, the Court has
“effectively abolishe[d] any distinction between content
regulation and subject-matter regulation. Any law distin-
guishing one kind of speech from another by reference to its
meaning now requires a compelling justification.” Norton v.
City of Springfield, 806 F.3d 411, 412 (7th Cir. 2015). In the
wake of McCullen and Reed, it’s not too strong to say that
what Hill explicitly rejected is now prevailing law.
There is more. Reed explained that a law is content based
if it draws “more subtle” facial distinctions like those that
“defin[e] regulated speech by its function or purpose.” 135 S.
Ct. at 2227. By its terms, the law upheld in Hill regulates
speech undertaken “for the purpose of … engaging in oral
protest, education, or counseling.” 530 U.S. at 707 (emphasis
added) (quotation marks omitted). And divining purpose
clearly requires enforcement authorities “to examine the
content of the message that is conveyed.” McCullen, 134 S.
Ct. at 2531 (quotation marks omitted). How else could the
authorities distinguish between a sidewalk counselor (ille-
gal) and a panhandler, a pollster, or a passerby who asks for
the time (all legal)?
Here’s another incongruity between Hill and the Court’s
current jurisprudence. McCullen emphasized that a law is
content based if it is “concerned with [the] undesirable
effects that arise from the direct impact of speech on its
22 No. 17-2196
audience or listeners’ reactions to speech.” 134 S. Ct. at 2531–
32 (quotation marks and alteration omitted). Yet Hill repeat-
edly cited concern for listeners’ reactions as an acceptable
justification for Colorado’s bubble-zone law. True, the Court
also mentioned concerns about clinic access and safety, but
that does not diminish its emphasis on Colorado’s interest in
“protect[ing] listeners from unwanted communication” and
safeguarding the right “to be let alone.” 530 U.S. at 715–16,
724 (quotation marks omitted). Indeed, the Court highlight-
ed the “emotional harm suffered when an unwelcome
individual delivers a message … at close range.” Id. at 718
n.25. The bubble-zone law upheld in Hill was aimed in
substantial part at guarding against the undesirable effects
of the regulated speech on listeners. After McCullen that’s
not a content-neutral justification.
Finally, Hill’s narrow-tailoring analysis conflicts with
McCullen’s insistence that “the government must demon-
strate that alternative measures that burden substantially
less speech would fail to achieve [its] interests, not simply
that the chosen route is easier.” 134 S. Ct. at 2540. Recall
McCullen’s exhortation against the use of broad prophylactic
regulations in speech-sensitive zones: “A painted line on the
sidewalk is easy to enforce, but the prime objective of the
First Amendment is not efficiency. … Given the vital First
Amendment interests at stake, it is not enough for
Massachusetts simply to say that other approaches have not
worked.” Id. In stark contrast, Hill specifically approved the
“bright-line prophylactic” aspect of Colorado’s bubble-zone
law precisely because other less restrictive measures—e.g.,
laws against harassment and breach of the peace—were
harder to enforce. 530 U.S. at 729.
No. 17-2196 23
In short, McCullen and Reed have deeply shaken Hill’s
foundation. Yet the case remains on the books and directly
controls here. The plaintiffs urge us to follow the Third
Circuit’s lead in Bruni v. City of Pittsburgh, which reversed
the dismissal of a challenge to Pittsburgh’s fixed 15-foot
clinic buffer zone and remanded for a case-specific narrow-
tailoring analysis in light of McCullen. 824 F.3d 353, 372–73
(3d Cir. 2016). The court held that dismissal at the pleading
stage was improper based on McCullen’s “important clarifi-
cation of the rigorous and fact-intensive nature of intermedi-
ate scrutiny’s narrow-tailoring analysis.” Id. at 372. This was
so, the court held, notwithstanding circuit precedent that
upheld Pittsburgh’s 15-foot buffer zone just a few years
earlier. Id. at 367–73 (distinguishing Brown v. City of
Pittsburgh, 586 F.3d 263 (3d Cir. 2009)).
We do not regard Bruni’s approach as a viable option
here. As we’ve noted, Chicago’s bubble-zone ordinance is a
carbon copy of the Colorado law upheld in Hill except for
the smaller radius within which it applies. And Hill’s
narrow-tailoring analysis was highly generalized; it did not
rest on the specific facts of the case or an evaluation of
Colorado’s evidentiary showing. Accordingly, a remand for
a case-specific narrow-tailoring analysis would effectively
deny Hill’s controlling force.
It would also create a circuit split. In Brown, the prede-
cessor case to Bruni, the Third Circuit upheld a separate
provision in Pittsburgh’s abortion-clinic law establishing an
8-foot no-approach bubble zone within a 100-foot radius of
clinic entrances—“a virtually verbatim copy of the Hill
statute”—without requiring a factual showing from the City.
586 F.3d at 273. Bruni left that part of Brown untouched.
24 No. 17-2196
Hill directly controls, notwithstanding its inconsistency
with McCullen and Reed. Only the Supreme Court can bring
harmony to these precedents. The district judge correctly
dismissed the facial First Amendment challenge.
D. Due-Process Vagueness Claim
In a cursory final argument, the plaintiffs maintain that
Chicago’s bubble-zone ordinance is unconstitutionally
vague. This argument too is foreclosed by Hill, which reject-
ed a vagueness challenge to Colorado’s bubble-zone law.
530 U.S. at 732–33. The plaintiffs rely on Justice Kennedy’s
dissenting position: “In the context of a law imposing crimi-
nal penalties for pure speech, ‘protest’ is an imprecise word;
‘counseling’ is an imprecise word; ‘education’ is an impre-
cise word.” Id. at 773 (Kennedy, J., dissenting). Perhaps he
was right, but his view did not carry the day. The judge
properly dismissed the due-process vagueness claim.
III. Conclusion
The road the plaintiffs urge is not open to us in our hier-
archical system. Chicago’s bubble-zone ordinance is materi-
ally identical to—indeed, is narrower than—the law upheld
in Hill. While the Supreme Court has deeply unsettled Hill, it
has not overruled the decision. So it remains binding on us.
The plaintiffs must seek relief in the High Court.
AFFIRMED.