A local activist says 8 feet is too far to talk, and she's making a federal case of it.
In the city of Pittsburgh, protesters outside abortion clinics have had to maintain their distance from people seeking services in the clinics since December 2005, when city council passed the so-called "bubble zone" ordinance. The ordinance states that protesters must remain 15 feet from the entrance of the clinic, and 8 feet from anyone approaching the clinic.
Folks at clinics say the zones have been a blessing: They've led to fewer calls to police, less anti-abortion literature stuffed into pockets, and an end to the pushing, shoving and kicking that used to break out. They insist that the bubble still allows anti-abortion protesters to make their views known.
One such protester, however, disagrees.
On June 28, 2006, Mary Kathryn Brown filed a suit in U.S. district court seeking an injunction against the ordinance, claiming it infringed on her constitutional right to free speech. The registered nurse has stood outside the city's three abortion clinics for more than 15 years. In her suit, she stated that her actions aren't protesting, rather that she is there to "offer distraught women the truth" and that the ordinance prevents her from doing so.
Sue Frietsche of the Women's Law Project disagrees -- and so did judge Nora Barry Fisher. On Feb. 22, the judge refused to order an injunction putting an end to the zones.
"There's no possible way anyone could credibly claim this ordinance has shut down protesting," Frietsche says. At Planned Parenthood's Downtown clinic, protesters still routinely hold up graphic signs and attempt to speak to patients going in, literally toeing the painted line demarcating 15 feet.
"They can be seen, heard, their message is getting through. It's not interfering with their right to tell the women coming into the clinic they think they're wrong," says Frietsche. Eight feet, she says, is "conversational distance."
Not so, says David Cortman. Cortman is senior legal counsel and one of the team of attorneys representing Brown, from an Arizona-based pro-life organization called the Alliance Defense Fund.
"Pro-life citizens such as Miss Brown should not be required to endure a First Amendment obstacle course," he says. "Having a no-speak zone on a public sidewalk is an oxymoron. There's no right to privacy on a public sidewalk and there's no right to be left alone."
The judge struck down Brown's request for a preliminary injunction Feb 22.
"Brown's First Amendment rights in counseling, leafleting and orally communicating are undisputed. The fact that the intended message of the Plaintiff's communications may be offensive to listeners does not take away their constitutional protection," Fisher's opinion reads. "The present ordinance is not a regulation of speech, rather it is a regulation of the places where speech may occur," it continues. "The law's restrictions apply equally to all protesters, regardless of their message, and it makes no reference to the content of speech."
Cortman disagrees, saying that the ordinance is actually content-based. "In the 15-foot zone, the clinic workers can demonstrate all they like." He's referring to the volunteer escorts, who don't work for the clinics. An escort coordinator said that the 8-foot zone applies to them, as well, and that if a patient refuses an escort's offer to walk them in, the escort must respect that.
The opinion frequently cites a similar case, Hill v. Colorado. In that case, the U.S. Supreme Court upheld the constitutionality of a similar ordinance in Colorado, with 8-foot floating buffer zones around patients. That ordinance did not include a fixed buffer zone, like the 15 feet around clinic entrances in Pittsburgh's ordinance.
Bruce Ledewitz is a professor of law at Duquesne University with a focus on constitutional law. While he disagrees personally with the ordinance, calling it "the antithesis of free speech," he says Brown's case is hopeless. "The statute is constitutional under the First Amendment," he says. "The law was written to comply with [Hill v. Colorado]."
Cortman says Brown plans to appeal.