Mary Kathryn Brown v. City of Pittsburgh

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-1819
MARY KATHRYN BROWN,
Appellant
v.
CITY OF PITTSBURGH;
PITTSBURGH CITY COUNCIL;
LUKE RAVENSTAHL, in his official capacity as
Mayor of the City of Pittsburgh
On Appeal from the United States District Court
for the Western District of Pennsylvania
D.C. Civil Action No. 06-cv-0393
(Honorable Nora B. Fischer)
Argued January 29, 2009

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2
Before: SCIRICA, Chief Judge,
AMBRO and SMITH, Circuit Judges.
Filed: October 30, 2009
DAVID A. CORTMAN, ESQUIRE (ARGUED)
JOSHUA B. BOLINGER, ESQUIRE
Alliance Defense Fund
1000 Hurricane Shoals Road, N.E.
Building D, Suite 600
Lawrenceville, Georgia 30043
BENJAMIN W. BULL, ESQUIRE
JEREMY D. TEDESCO, ESQUIRE
Alliance Defense Fund
15100 North 90 Streetth
Scottsdale, Arizona 85260
LAWRENCE G. PALADIN, JR., ESQUIRE
10700 Frankstown Road, Suite 305
Pittsburgh, Pennsylvania 15235
Attorneys for Appellant
YVONNE S. HILTON, ESQUIRE (ARGUED)
MICHAEL E. KENNEDY, ESQUIRE
GEORGE R. SPECTER, ESQUIRE
City of Pittsburgh Law Department
313 City-County Building

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3
414 Grant Street
Pittsburgh, Pennsylvania 15219
Attorneys for Appellees
STEVEN W. FITSCHEN, ESQUIRE
The National Legal Foundation
2224 Virginia Beach Boulevard, Suite 204
Virginia Beach, Virginia 23454
Attorney for Amicus Curiae-Appellant,
The National Legal Foundation
OPINION OF THE COURT
SCIRICA, Chief Judge.
This case requires us to delineate, in a quite literal sense,
the boundaries of the First Amendment’s protection of speech.
In response to concerns about aggressive protests and
confrontations at health care facilities providing abortions, the
City of Pittsburgh enacted Ordinance No. 49 in December 2005.
Pittsburgh, Pa., Code tit. 6, §§ 623.01–623.07. The Ordinance
established two different kinds of zones around hospitals,
medical offices, and clinics. Within the “buffer zone,” which
extends “fifteen feet (15') from any entrance to the hospital and
or [sic] health care facility,” “[n]o person or persons shall
knowingly congregate, patrol, picket or demonstrate.” § 623.04.

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For convenience, we use the term “the City” to refer1
collectively to Defendants the City of Pittsburgh, the Pittsburgh
City Council, and Luke Ravenstahl, in his official capacity as
Mayor of Pittsburgh.
4
The “bubble zone” encompasses “the public way or sidewalk
area within a radius of one hundred feet (100') from any
entrance door to a hospital and/or medical office/clinic.” §
623.03. Within this one-hundred-foot zone, “[n]o person shall
knowingly approach another person within eight feet (8') of such
person, unless such other person consents, for the purpose of
passing a leaftlet or handbill to, displaying a sign to, or engaging
in oral protest, education or counseling with such other person.”
Id.
Plaintiff Mary Kathryn Brown brought suit against the
City under 42 U.S.C. § 1983, contending the Ordinance1
violated the United States and Pennsylvania constitutions, as
well as a Pennsylvania statute. She also moved for a
preliminary injunction preventing the City from enforcing the
Ordinance against her. The District Court denied the motion,
finding the Ordinance facially valid and that Brown had failed
to show that the City had applied—or would apply—it in an
unlawful manner. Relying on its reasoning in the opinion
denying the preliminary injunction, the District Court also
dismissed several counts of Brown’s Complaint. Brown appeals
from both orders. We will reverse in part, vacate in part,

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Brown contends the District Court erred in taking judicial2
notice of the minutes from the City Council’s public meetings,
noting that other witnesses “testified that no violent altercations
occur at these facilities.” She does not, however, challenge the
5
dismiss in part, and remand for further proceedings consistent
with this opinion.
I.
As the Ordinance itself attests, the Pittsburgh City
Council sought to balance two important competing interests,
“ensur[ing] that patients have unimpeded access to medical
services while ensuring that the First Amendment rights of
demonstrators to communicate their message to their intended
audience is not impaired.” Pittsburgh, Pa., Code tit. 6, § 623.01.
Noting that, before the Ordinance, the Pittsburgh Police had
“consistently” been required “to mediate the disputes between
those seeking medical counseling and treatment and those who
would counsel against their actions,” the Council intended the
Ordinance to establish “clear guidelines for activity in the
immediate vicinity of the entrances to Health Care Facilities,”
in order to allow “a more efficient and wider deployment” of
policing services and to “help also reduce the risk of violence
and provide unobstructed access to Health Care Facilities.” Id.
During hearings on the proposed Ordinance, the Council heard
public comments complaining of physical violence and verbal
harassment at medical facilities providing abortions and
claiming the Ordinance was needed to prevent future harm.2

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authenticity of the minutes themselves. We refer to the minutes
here as part of the familiar process of consulting legislative
history in order to illuminate legislative intent. We do not draw
any conclusions about the truth of the testimony heard by the
City Council, but note only that certain testimony asserting the
need to protect public safety and preserve policing resources is
consistent with the purposes stated in the text of the Ordinance
itself.
According to Brown’s testimony, her “sidewalk counseling”3
consists of offering literature to women entering the medical
facilities and telling them “[t]hat the [abortion] procedure itself
is dangerous. That there is help available. That we’re here to
help [them]. That any reason [they] need[] to get an abortion,
that we have help and solutions to all those problems that [cause
them to] feel[] the need to do this.”
6
Brown is a registered nurse who works in Pittsburgh,
Pennsylvania. For more than fifteen years, she has spent
countless hours engaged in “sidewalk counseling” and3
leafletting outside three medical services facilities covered by
the Ordinance, attempting to dissuade women from undergoing
abortions, warning them of the procedure’s ostensible dangers,
and encouraging them to consider alternatives. Brown testified
that she believes a conversational, sympathetic approach is the
most effective, so in delivering her message, she refrains from
yelling or using amplification devices. Before the Ordinance’s
enactment, Brown had stood alongside the facilities’ entrances,

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Under the terms of the bubble zone, persons may not4
approach within eight feet of others in order to demonstrate or
otherwise engage in advocacy. As long as persons within the
bubble zone remain stationary, however, they are free to
advocate, even if their intended audience approaches within
eight feet of them.
7
or walked alongside women approaching the facilities, while
attempting to distribute leaflets and engage in conversation.
Since the Ordinance took effect, Brown claims she has
been effectively prevented from communicating her message.
The buffer zone prevents her from distributing leaflets next to
the facilities’ entrances, or from engaging in any advocacy
within fifteen feet of those entrances. She claims that because
of the bubble zone, she must either yell at people from a
distance of eight feet—often while walking backward or being
forced off the sidewalk into the street—or stand still and speak
to them in the one or two seconds it takes them to walk by.4
According to Brown, women have not taken a single leaflet
from her since the bubble zone foreclosed her ability to
approach or walk alongside them.
Brown has never been arrested for violating the
Ordinance. On two occasions police officers warned her to
abide by its terms. The details of the first encounter are disputed
by the parties, but Brown claims the police officer manifested an
intent to enforce the Ordinance selectively, applying its
restrictions to her anti-abortion expression but not her anti-

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8
pornography advocacy. Brown cannot identify the officer
involved in the second incident but asserts he enforced the
Ordinance against her while ignoring a clinic worker who had
allegedly engaged in prohibited conduct. Brown also recounts
other incidents in which clinic escorts, who assist women
entering the facilities, have allegedly violated the Ordinance by
engaging in forbidden activities within the fifteen-foot buffer
zone and approaching well within eight feet of Brown in the
bubble zone, without obtaining her consent, to denounce her
pro-life message. Brown asserts that in none of these cases did
the police enforce the Ordinance against the escorts.
In her Complaint, Brown claims the Ordinance violates
rights guaranteed her by the U.S. and Pennsylvania
Constitutions—specifically, the right to free speech and freedom
of the press (pertinent to the distribution of pamphlets), U.S.
Const. amend. I; Pa. Const. art. I, § 7, the right to due process,
U.S. Const. amend. XIV; Pa. Const. art. I, § 26, the right to
equal protection, U.S. Const. amend. XIV; Pa. Const. art. I, §
26, and the right to religious freedom, U.S. Const. amend. I; Pa.
Const. art. I, § 3—as well as by Pennsylvania’s Religious
Freedom Protection Act, 71 Pa. Stat. Ann. §§ 2401–2407.
Although the Complaint attacks the Ordinance facially and as
applied, Brown’s preliminary injunction motion was grounded
only on the as-applied challenge. Nevertheless, in the course of
denying her motion, the District Court ruled the Ordinance
facially valid. At oral argument on appeal, Brown’s counsel
explained that because both parties had had an opportunity to

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Our review of Brown’s motion for a preliminary injunction5
extends only to the arguments she presses on appeal, which do
not include all claims raised in her Complaint.
The District Court exercised jurisdiction under 28 U.S.C. §§6
1331 and 1367. We have jurisdiction to review the order
denying a preliminary injunction under 28 U.S.C. § 1292(a)(1).
9
brief the facial challenge fully on appeal, Brown was content for
us to decide that issue.5
II.
A.
We generally review a district court’s denial of a
preliminary injunction for abuse of discretion but review the
underlying factual findings for clear error and examine legal
conclusions de novo. McNeil Nutritionals, LLC v. Heartland6
Sweeteners, LLC, 511 F.3d 350, 357 (3d Cir. 2007). Where, as
here, “First Amendment rights are at issue,” we have modified
that standard. Child Evangelism Fellowship of N.J. v. Stafford
Twp. Sch. Dist., 386 F.3d 514, 524 (3d Cir. 2004). “Although
we normally will not disturb the factual findings supporting the
disposition of a preliminary injunction motion in the absence of
clear error, we have a constitutional duty to conduct an
independent examination of the record as a whole when a case
presents a First Amendment claim.” Id.
We first consider Brown’s facial challenge.

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10
As a general matter this court “will not invalidate
a statute on its face simply because it may be
applied unconstitutionally, but only if it cannot be
applied consistently with the Constitution.” . . .
Thus, plaintiff[’s] facial challenge will succeed
only if [the statute in question] “is
unconstitutional in every conceivable application,
or . . . it seeks to prohibit such a broad range of
protected conduct that it is constitutionally
‘overbroad.’”
Hohe v. Casey, 956 F.2d 399, 404 (3d Cir. 1992) (quoting
Robinson v. New Jersey, 806 F.2d 442, 446 (3d Cir. 1986);
Members of the City Council v. Taxpayers for Vincent, 466 U.S.
789, 796 (1984)); accord McGuire v. Reilly (McGuire I), 260
F.3d 36, 47 (1st Cir. 2001). This standard is consistent with the
Supreme Court’s declaration in United States v. Salerno that a
successful facial challenge requires the challenger to “establish
that no set of circumstances exists under which the Act would
be valid.” 481 U.S. 739, 745 (1987). More recently, the Court
has suggested that the bar may be slightly lower. Wash. State
Grange v. Wash. State Republican Party, 128 S. Ct. 1184, 1190
(2008). Nonetheless, even under the Washington State Grange
formulation, “a facial challenge must fail where the statute has
a plainly legitimate sweep.” Id. (internal quotation marks
omitted); see McCullen v. Coakley, 571 F.3d 167, 174 (1st Cir.
2009) (“Howsoever worded, this standard imposes a very heavy

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11
burden on a party who mounts a facial challenge to a state
statute.”).
1.
This case implicates fundamental First Amendment
interests. “[T]he public sidewalks, streets, and ways affected”
by the Ordinance “are ‘quintessential’ public forums for free
speech.” Hill v. Colorado, 530 U.S. 703, 715 (2000). The
activities regulated by the Ordinance—“leafletting, sign
displays, and oral communication”—are indisputably protected
forms of expression, and “although there is debate about the
magnitude of the statutory impediment to” Brown’s “ability to
communicate effectively with persons in the regulated zones,
that ability, particularly the ability to distribute leaflets, is
unquestionably lessened by this statute.” Id. Nonetheless, “[i]t
has been clear since [the Supreme] Court’s earliest decisions
concerning the freedom of speech that the state may sometimes
curtail speech when necessary to advance a significant and
legitimate state interest.” Taxpayers for Vincent, 466 U.S. at
804; see McGuire I, 260 F.3d at 42 (“Notwithstanding its
exalted position in the pantheon of fundamental freedoms, free
speech always must be balanced against the state’s responsibility
to preserve and protect other important rights.”). The Ordinance
here advances a number of significant government interests,
including “protecting a woman’s freedom to seek lawful
medical or counseling services in connection with her
pregnancy” and “ensuring the public safety and order.” Madsen
v. Women’s Health Ctr., Inc., 512 U.S. 753, 767–68 (1994); see

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Whether the City’s stated goal of “a more efficient . . .7
deployment” of policing resources should also be deemed a
significant interest is a more difficult issue. Although the state
has an undeniable interest in conserving finite resources, “[t]he
government cannot restrict the speech of the public at large just
in the name of efficiency.” Waters v. Churchill, 511 U.S. 661,
675 (1994) (plurality opinion); see Bd. of County Comm’rs v.
Umbehr, 518 U.S. 668, 676 (1996) (noting that although “the
government’s interest in achieving its goals as effectively and
efficiently as possible” is “significant . . . when it acts as
employer,” this interest is “relatively subordinate . . . when [the
government] acts as sovereign” (quoting Waters, 511 U.S. at
675)). Nonetheless, we assume, without deciding, that the
City’s interest in the efficient use of policing resources is
significant, as this issue does not affect our conclusion. See
infra note 20.
12
Hill, 530 U.S. at 715 (“It is a traditional exercise of the States’
police powers to protect the health and safety of their citizens.
That interest may justify a special focus on unimpeded access to
health care facilities and the avoidance of potential trauma to
patients associated with confrontational protests.” (internal
quotation marks and citation omitted)).7
Reconciling these competing values, even on the level of
abstract principle, is no easy task. Having to operationalize First
Amendment doctrine in terms of metes and bounds, as we are
compelled to do here, only increases the difficulty. If a

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“Because the statute had not actually been enforced against”8
the Hill petitioners, “they only raised a facial challenge.” Hill,
530 U.S. at 710.
The Colorado statute provides in pertinent part: “No person9
shall knowingly approach 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
engaging in oral protest, education, or counseling with such
other person in the public way or sidewalk area within a radius
of one hundred feet from any entrance door to a health care
13
restrictive zone of some kind is constitutionally permissible,
how large may that zone be, and what kind of restrictions may
it impose? As we confront these perplexing issues, we are
mindful that we do not write on a blank slate. Several Supreme
Court decisions, which examined zones very similar to the ones
at issue here, control our analysis to a great extent. Hill, 530
U.S. 703; Schenck v. Pro-Choice Network of W. N.Y., 519 U.S.
357 (1997); Madsen, 512 U.S. 753.
The One-Hundred-Foot Bubble Zone
As the District Court recognized, the bubble zone defined
by the Ordinance is virtually identical to the one in the Colorado
statute Hill found facially valid. Brown v. City of Pittsburgh,8
543 F. Supp. 2d 448, 471–72 (W.D. Pa. 2008) (juxtaposing
relevant provisions). Compare Pittsburgh, Pa., Code tit. 6, §
623.03, with Colo. Rev. Stat. § 18-9-122(3). At oral argument,9

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facility.” Colo. Rev. Stat. § 18-9-122(3).
14
Brown’s counsel conceded that, under Hill, § 623.03’s bubble
zone, taken alone, is constitutional on its face. We agree that
§ 623.03’s bubble zone is materially indistinguishable from the
one upheld in Hill.
The petitioners in Hill put forward several different
arguments contesting the statute’s constitutionality, but the
Supreme Court found none of them convincing. The Court
rejected the contention that the bubble zone’s restrictions are
content-based, observing that “‘[t]he principal inquiry in
determining content neutrality . . . is whether the government
has adopted a regulation of speech because of disagreement with
the message it conveys.’” Hill, 530 U.S. at 719 (quoting Ward
v. Rock Against Racism, 491 U.S. 781, 791 (1989)); see id. at
737 (Souter, J., concurring) (“[A] restriction is content based
only if it is imposed because of the content of the speech, and
not because of offensive behavior identified with its delivery.”
(internal citation omitted)). The Colorado statute in Hill evinces
no such invidious intent because its goals of protecting access
to medical facilities and providing clear guidelines to police are
“unrelated to the content of the demonstrators’ speech,” its
“restrictions apply equally to all demonstrators, regardless of
viewpoint, and the statutory language makes no reference to the
content of the speech.” Id. at 719, 720 (majority opinion)
(internal quotation marks omitted). Nor is the statute content-
based because it restricts knowingly approaching another for

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15
purposes of “oral protest, education, or counseling,” while
imposing no limits on casual conversation—for example, saying
“good morning.” This distinction serves not to suppress certain
disapproved ideas, which would be presumptively invalid, but
instead to further legitimate, content-neutral goals:
[T]he statute’s restriction seeks to protect those
who enter a health care facility from the
harassment, the nuisance, the persistent
importuning, the following, the dogging, and the
implied threat of physical touching that can
accompany an unwelcome approach within eight
feet of a patient by a person wishing to argue
vociferously face-to-face and perhaps thrust an
undesired handbill upon her. The statutory
phrases, “oral protest, education, or counseling,”
distinguish speech activities likely to have those
consequences from speech activities . . . that are
most unlikely to have those consequences.
Id. at 724; see also McGuire I, 260 F.3d at 44 (“As long as a
regulation serves a legitimate purpose unrelated to expressive
content, it is deemed content-neutral even if it has an incidental
effect on some speakers and not others.”). In short, “[t]he
purpose of the Colorado statute is not to protect a potential
listener from hearing a particular message. It is to protect those
who seek medical treatment from the potential physical and
emotional harm suffered when an unwelcome individual
delivers a message (whatever its content) by physically

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16
approaching an individual at close range, i.e., within eight feet.”
Hill, 530 U.S. at 718 n.25.
The Hill Court also noted that the Colorado bubble zone
is “not a regulation of speech” per se, but rather “a regulation of
the places where some speech may occur.” Id. at 719. That is,
the bubble zone “does not entirely foreclose any means of
communication.” Id. at 726. It does not prohibit any message,
whether expressed orally or by sign or leaflet, but simply
imposes an eight-foot separation between the speaker and the
audience (absent consent to approach closer). As such, the
validity of the regulation is determined by reference to the
Court’s time, place, and manner doctrine. Under that doctrine,
“a regulation of the time, place, or manner of protected speech”
is constitutionally permissible if it is “narrowly tailored to serve
the government’s legitimate, content-neutral interests,” Ward,
491 U.S. at 798, and “leave[s] open ample alternative channels
for communication,” id. at 791 (internal quotation marks
omitted). When a time, place, and manner regulation takes the
form of a generally applicable statute, it “may satisfy the
tailoring requirement even though it is not the least restrictive or
least intrusive means of serving the statutory goal.” Hill, 530
U.S. at 726; see Madsen, 512 U.S. at 765 (contrasting this
standard with the more stringent scrutiny applicable to a
challenged injunction, which is valid only if it “burden[s] no
more speech than necessary to serve a significant government
interest”).

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17
Having concluded that the statute is content-neutral, the
Court found that its restrictions on speech are sufficiently
tailored to its legitimate objectives and leave open ample
alternative avenues of communication. Hill, 530 U.S. at 726.
The enforcement of an eight-foot barrier is a constitutionally
tolerable burden on expression because “signs, pictures, and
voice itself can cross an 8-foot gap with ease.” Id. at 729. The
Court acknowledged that “[t]he burden on the ability to
distribute handbills is more serious because it seems possible
that an 8-foot interval could hinder the ability of a leafletter to
deliver handbills to some unwilling recipients.” Id. at 727. But
noting that the statute did not “prevent a leafletter from simply
standing near the path of oncoming pedestrians and proffering
his or her material, which the pedestrians can easily accept,” the
Court found the regulation did not impose an excessive restraint.
Id. In support of this conclusion, the Court referred to its earlier
decision in Heffron v. International Society for Krishna
Consciousness, Inc., 452 U.S. 640 (1981), where it had upheld
a regulation restricting the distribution of literature to fair
booths. Heffron emphasized that the fair-booth restriction
“primarily burdened the distributors’ ability to communicate
with unwilling readers” and afforded an adequate opportunity
“to win the[] attention” of willing listeners. Hill, 530 U.S. at
728 (quoting Kovacs v. Cooper, 336 U.S. 77, 87 (1949)). The
bubble zone established by the Colorado statute (and the
Pittsburgh Ordinance) impairs primarily the effort to
communicate with unwilling listeners, and by allowing
leafletters significant mobility, it “interferes far less” with

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18
communication than the state-fair regulation upheld in Heffron.
Id. at 730. In sum, in light of the state’s “substantial and
legitimate interest” in protecting those attempting to enter health
care facilities, who “are often in particularly vulnerable physical
and emotional conditions,” the Court found the Colorado bubble
zone to be “an exceedingly modest restriction on the speakers’
ability to approach.” Id. at 729.
The Court was unmoved by petitioners’ argument that the
state could achieve its objectives through less restrictive means.
As noted above, a content-neutral time, place, and manner
restriction embodied in a generally applicable regulation need
not be “the least restrictive or least intrusive means of serving
the statutory goal.” Id. at 726. “[W]hether or not the 8-foot
interval is the best possible accommodation of the competing
interests at stake,” the Court believed it was obliged to “accord
a measure of deference to the judgment of the Colorado
Legislature.” Id. at 727. The Court rejected the view, advanced
by Justice Kennedy in his dissent, id. at 777–78 (Kennedy, J.,
dissenting), that the state interests at stake could be adequately
served—with less restriction of protected speech—by enforcing
pre-existing prohibitions on battery and harassment. The Court
recognized that the statute’s “prophylactic approach” to
“protect[ing] those who wish to enter health care facilities . . .
will sometimes inhibit a demonstrator whose approach in fact
would have proved harmless.” Id. at 729 (majority opinion).
But it found the bubble-zone approach to be “justified by the
great difficulty of protecting, say, a pregnant woman from

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The petitioners in Hill also contended that the statute was10
unconstitutionally overbroad, arguing that “it protects too many
people in too many places, rather than just the patients at the
facilities where confrontational speech had occurred,” and that
“it burdens all speakers, rather than just persons with a history
of bad conduct.” Hill, 530 U.S. at 730. The Court disagreed,
finding that the petitioners’ argument did “not identify a
constitutional defect.” Id. Because the regulation took the form
of a generally applicable statute, rather than an injunction, it
could not discriminate among individuals based on their past
conduct. Furthermore, the Court believed “the
19
physical harassment with legal rules that focus exclusively on
the individual impact of each instance of behavior, demanding
in each case an accurate characterization (as harassing or not
harassing) of each individual movement within the 8-foot
boundary.” Id. In light of the difficulties inherent in making the
individualized, case-by-case judgments necessary to enforce a
battery or harassment law, the Court concluded that “[a] bright-
line prophylactic rule may be the best way to provide protection,
and, at the same time, by offering clear guidance and avoiding
subjectivity, to protect speech itself.” Id.
In sum, the Hill Court upheld the Colorado statute,
finding it to be a content-neutral time, place, and manner
regulation that was narrowly tailored to serve significant
government interests while leaving open ample alternative
avenues of speech. As the bubble zone created by the10

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comprehensiveness of the statute is a virtue, not a vice, because
it is evidence against there being a discriminatory governmental
motive.” Id. at 731.
More fundamentally, the petitioners’ argument reflected
a basic misunderstanding of overbreadth doctrine. In the
Court’s seminal overbreadth cases, “the government attempted
to regulate nonprotected activity, yet because the statute was
overbroad, protected speech was also implicated.” Id. (citing
Houston v. Hill, 482 U.S. 451 (1987); Sec’y of State v. Joseph
H. Munson Co., 467 U.S. 947 (1984)). In Hill, by contrast, “it
is not disputed that the regulation affects protected speech
activity; the question is thus whether it is a ‘reasonable
restrictio[n] on the time, place, or manner of protected speech.’”
Id. (quoting Ward, 491 U.S. at 791). What the petitioners
classified as an “overbreadth” problem, in other words, was
better understood analytically as a concern to be addressed
within the framework of Ward’s narrow-tailoring test.
20
Ordinance at issue here is a virtually verbatim copy of the Hill
statute, we find this portion of the Ordinance, taken alone, to be
facially valid under the First Amendment’s Free Speech Clause.
The Fifteen-Foot Buffer Zone
Although Brown concedes that the one-hundred-foot
bubble zone is, taken on its own, constitutionally valid, she
contends the fifteen-foot buffer zone cannot withstand
constitutional scrutiny. In Madsen and Schenck, the Supreme
Court upheld buffer zones (established by injunctions) requiring

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The buffer zone upheld in Madsen extended not only thirty-11
six feet from the clinic’s entrance, but also thirty-six feet from
its driveway.
A content-based regulation of speech is subject to strict12
scrutiny, a more exacting level of review than was applied to the
regulations in Madsen, Schenck, or Hill. See ACLU v. Mukasey,
534 F.3d 181, 190 (3d Cir. 2008) (citing Turner Broad. Sys.,
Inc. v. FCC, 512 U.S. 622, 642 (1994)).
21
protesters to remain at least thirty-six feet and fifteen feet,
respectively, from clinic entrances. Brown asserts, however,11
that the Ordinance’s buffer zone is content-based, unlike the
content-neutral zones in Madsen and Schenck. Cf. Madsen, 512
U.S. at 762–64. The Ordinance provides that “[n]o person or
persons shall knowingly congregate, patrol, picket or
demonstrate” within fifteen feet of an entrance to a hospital or
health care facility. Pittsburgh, Pa., Code tit. 6, § 623.04. But
it explicitly exempts certain persons from the buffer zone’s
restrictions: “This section shall not apply to police and public
safety officers, fire and rescue personnel, or other emergency
workers in the course of their official business, or to authorized
security personnel employees or agents of the hospital, medical
office, or clinic engaged in assisting patients and other persons
to enter or exit the hospital, medical office, or clinic.” Id. It is
this exemption, Brown contends, that makes the Ordinance
content-based on its face.12

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22
The City does not deny that the buffer zone’s restrictions
would be content-based if the Ordinance allowed the exempted
categories of persons (including, most notably, volunteers
assisting women in entering the building) to “picket or
demonstrate” within the fifteen-foot zone while denying all
others the same ability. But the City insists that the exemption
should not be interpreted in such a manner, arguing that “[t]he
Ordinance’s exemption for authorized clinic volunteers in the
15' fixed buffer zone is limited to circumstances where the
volunteers are actually ‘engaged in assisting patients and other
persons to enter or exit the hospital, medical office, or clinic.’”
According to the City, the exemption allows the volunteers to
enter the buffer zone only for this non-content-related purpose;
notwithstanding the exemption, no person in the buffer zone
may engage in “demonstrations or oral protest, education, or
counseling with other individuals, including patients or other
protesters.” Id. at 20.
When considering a facial challenge to a state law, “a
federal court must, of course, consider any limiting construction
that a state court or enforcement agency has proffered.” Vill. of
Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455
U.S. 489, 494 n.5 (1982); see Ward, 491 U.S. at 795–96. Here,
the parties have identified no such limiting construction other
than the one offered by the City in this litigation, and we have
found none. Cf. McGuire v. Reilly (McGuire II), 386 F.3d 45,
52 (1st Cir. 2004) (noting that the Massachusetts Attorney
General had set forth a limiting interpretation of the statute at

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This principle of interpretation is consistent with13
Pennsylvania law. See Commonwealth v. Monumental Props.,
Inc., 329 A.2d 812, 827 (Pa. 1974) (“When the validity of an act
of the [Legislature] is drawn in question, and if a serious doubt
of constitutionality is raised, it is a cardinal principle that this
Court will first ascertain whether a construction of the statute is
fairly possible by which the [constitutional] question may be
avoided.” (internal quotation marks omitted) (alterations in
original)); Dole v. City of Phila., 11 A.2d 163, 168–69 (Pa.
1940) (applying the same principle to the construction of
ordinances).
23
issue in a letter sent to police departments). In the absence of a
limiting construction from a state authority, we must “presume
any narrowing construction or practice to which the law is fairly
susceptible.” City of Lakewood v. Plain Dealer Publ’g Co., 486
U.S. 750, 770 n.11 (1988) (internal quotation marks omitted);
see also INS v. St. Cyr, 533 U.S. 289, 299–300 (2001) (“[I]f an
otherwise acceptable construction of a statute would raise
serious constitutional problems, and where an alternative
interpretation of the statute is ‘fairly possible,’ we are obligated
to construe the statute to avoid such problems.” (quoting
Crowell v. Benson, 285 U.S. 22, 62 (1932))); Davet v. City of
Cleveland, 456 F.3d 549, 554 (6th Cir. 2006) (“[F]ederal courts
construe state statutes to avoid constitutional difficulty when
fairly possible . . . .” (internal quotation marks omitted)).13

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The effective performance of these functions may require14
other kinds of speech, as when police officers issue instructions
to abide by the law and clinic employees or volunteers help
direct patients in and out of the facilities. But this speech cannot
be classified as picketing or demonstrating and does not fall
24
We find § 623.04 amenable to the content-neutral
construction urged by the City, that is, an interpretation
prohibiting even the exempted classes of persons from
“picket[ing] or demonstrat[ing]” within the buffer zone. Each
of the exempted classes of persons—“police and public safety
officers, fire and rescue personnel, . . . other emergency
workers[,] . . . authorized security personnel employees [and]
agents of the hospital, medical office or clinic engaged in
assisting patients and other persons to enter or exit”—performs
important safety functions. The clear purpose of the exemption
is to ensure that the Ordinance’s restrictions do not impair the
performance of those functions. Accordingly, public safety
officers and emergency workers are exempt only “in the course
of their official business,” and security personnel employees or
agents of the health care facility are exempt only insofar as they
are “engaged in assisting patients and other persons to enter and
exit” the facility. The functions performed by these persons are
likely to require their presence in the buffer zone, thus
warranting an exemption from § 623.04’s general prohibitions
on congregating or patrolling within that space. But these
functions do not require or entail the picketing or demonstrating
activities generally proscribed by the buffer-zone restriction.14

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within the scope of § 623.04’s general prohibitions.
In McGuire I, the United States Court of Appeals for the15
First Circuit confronted an exemption similar to the one in §
623.04. The McGuire statute prohibited “knowingly
approach[ing] another person or occupied motor vehicle within
six feet of such person or vehicle,” without consent, “for the
purpose of passing a leaflet or handbill to, displaying a sign to,
or engaging in oral protest, education, or counseling with such
other person in the public way or sidewalk area within a radius
of 18 feet from any entrance door . . . to a reproductive health
care facility.” McGuire I, 260 F.3d at 51. Like § 623.04, the
McGuire statute exempted from the zone’s restrictions several
classes of persons, including “employees or agents of such
facility acting within the scope of their employment” and “law
enforcement, ambulance, firefighting, construction, utilities,
public works and other municipal agents acting within the scope
of their employment.” Id. The district court in McGuire had
25
Consequently, a construction that does not include these
advocacy activities in the exemption is “fairly possible.” St.
Cyr, 533 U.S. at 300. Such a reading may, in fact, be the best
way to give effect to the previously quoted phrases limiting the
exemption to the performance of particular functions. Having
determined that § 623.04 is susceptible to a construction that
avoids serious constitutional concerns, we adopt that
construction and hence find the buffer-zone provision facially
content neutral.15

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found that this exemption constituted viewpoint-based
discrimination, allowing employees and agents of the facility to
engage in unfettered (presumably pro-choice) protest and
counseling while restricting the pro-life message of the
plaintiffs. The court of appeals disagreed. Rather than invoking
the canon of constitutional avoidance, as we have done, the
court relied on a different ground:
The Massachusetts legislature may or may not
have intended the employee exemption to serve
the purpose envisioned by the plaintiffs [and the
district court]. There are other likely
explanations. For example, the legislature may
have exempted clinic workers—just as it
exempted police officers—in order to make
crystal clear what already was implicit in the Act:
that those who work to secure peaceful access to
[health care facilities] need not fear prosecution.
Id. at 47. In the context of a facial challenge, the court
explained, the question is whether the exemption “may
rationally be said” to serve at least one permissible, viewpoint-
and content-neutral purpose. Id.; accord McGuire II, 386 F.3d
at 58. The McGuire court believed the exemption was plausibly
intended to clarify that the statute does not prohibit certain
classes of persons from entering and remaining in the buffer
zone in order to perform tasks unrelated to advocacy. “Because
we can envision at least one legitimate reason for including the
26

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employee exemption in the Act,” the court concluded, “it would
be premature to declare the Act unconstitutional for all purposes
and in all applications.” McGuire I, 260 F.3d at 47. The court
noted that, to the extent “experience shows that clinic staffers
[and volunteers] in fact are utilizing the exemption as a means
either of proselytizing or of engaging in preferential pro-choice
advocacy, the plaintiffs remain free to challenge the Act, as
applied, in a concrete factual setting.” Id.
27
As a content-neutral time, place, and manner regulation,
the buffer zone is constitutionally valid if it is narrowly tailored
to serve the government’s significant interests and leaves open
ample alternative channels of communication. See Hill, 530
U.S. at 725–26. The zone may be “narrowly tailored” even if it
is not “the least restrictive or least intrusive means” of serving
those interests. Id. at 726 n.32 (quoting Ward, 491 U.S. at 798).
In Madsen and Schenck, the Supreme Court upheld buffer zones
extending thirty-six and fifteen feet, respectively, from clinic
entrances. As noted, because those buffer zones were
established by injunctions rather than generally applicable
legislation, they were subject to a more demanding standard of
review: the Court asked “whether the challenged provisions of
the injunction burden no more speech than necessary to serve a
significant government interest.” Madsen, 512 U.S. at 765; see
McCullen, 571 F.3d at 178–79 (distinguishing the tailoring test
applicable to generally applicable regulations from the test
applicable to injunctions). The government interests at stake
here are significant and largely overlap with those recognized in

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28
Madsen and Schenck. Accordingly, since the Court upheld the
buffer zones in Madsen and Schenck (one of which was more
than twice as large as the buffer zone here), finding them
sufficiently tailored under a test more exacting than the one
applicable here, the buffer zone established by the Ordinance is
a fortiori constitutionally valid. This conclusion is bolstered by
the First Circuit’s recent decision in McCullen v. Coakley, which
rejected a facial challenge to a Massachusetts statute
establishing 35-foot buffer zones—more than twice the size of
the Ordinance’s buffer zones here—around the entrances and
driveways of reproductive health care facilities. See An Act
Relative to Public Safety at Reproductive Health Care Facilities,
Mass. Gen. Laws ch. 266, § 120E1/2. The court found that the
statute was “content-neutral, narrowly tailored, and l[eft] open
ample alternative channels of communication.” McCullen, 571
F.3d at 184.
The Combination of the Two Zones
The Ordinance creates not a single bubble or buffer zone
in isolation, but a combination of the two types of zones.
Schenck upheld a fixed buffer zone while invalidating the
bubble-zone portion of an injunction. Schenck, 519 U.S. at
377–78. But as the Hill Court later explained, the constitutional
defect in the Schenck bubble zone lay in its specific attributes;
it imposed a fifteen-foot separation between speaker and listener
and otherwise represented an excessive burden on speech. Hill,
530 U.S. at 726–27. By contrast, Hill upheld a bubble zone that,
like the one here, imposed a shorter, eight-foot separation,

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29
allowed the speaker to remain stationary even if passersby
approached within eight feet, and protected speakers by
incorporating a scienter requirement. Id.; see id. at 740 (Souter,
J., concurring) (“In Schenck, the floating bubble was larger (15
feet) and was associated with near-absolute prohibitions on
speech.”). In other words, although Schenck informs our
constitutional analysis (along with Madsen and Hill), its
different facts mean we cannot simply adopt its conclusion, but
must instead examine the specific features of the two zones
combined here.
If the Ordinance’s bubble and buffer zones, taken
individually, are facially content-neutral, we see no reason why
the Ordinance’s combination of the two zones would not also be
content-neutral on its face. Accordingly, the test of
constitutional validity is again found in Ward: a content-neutral
time, place, and manner regulation of protected speech must be
“narrowly tailored to serve a significant governmental interest,
and [must] leave open ample alternative channels for
communication of the information.” Ward, 491 U.S. at 791.
Because we have already determined that the Ordinance serves
significant government interests, the key remaining
considerations are the “narrowly tailored” and “alternative
channels for communication” requirements. In Ward, the
Supreme Court made clear that the “narrowly tailored” standard
affords the government some discretion in deciding how best to
achieve its legitimate purposes. See also Hill, 530 U.S. at 727
(“[W]hether or not the 8-foot interval is the best possible

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30
accommodation of the competing interests at stake, we must
accord a measure of deference to the judgment of the Colorado
Legislature.”). As noted, a content-neutral time, place, and
manner regulation may be sufficiently tailored even if it is not
“the least restrictive or least intrusive means” of serving the
government interests at stake. Ward, 491 U.S. at 798; see Hill,
530 U.S. at 736 (Souter, J., concurring) (“[O]ur cases quite
clearly hold that restrictions on the time, place, or manner of
protected speech are not invalid ‘simply because there is some
imaginable alternative that might be less burdensome on
speech.’” (quoting United States v. Albertini, 472 U.S. 675, 689
(1985))). “[T]he requirement of narrow tailoring is satisfied ‘so
long as the . . . regulation promotes a substantial government
interest that would be achieved less effectively absent the
regulation.’” Ward, 491 U.S. at 799 (quoting Albertini, 472
U.S. 675, 689 (1985)); see id. at 800 (explaining that courts may
not second-guess the government’s decision “concerning the
most appropriate method for promoting significant government
interests or the degree to which those interests should be
promoted” (internal quotation marks omitted)). But the First
Amendment necessarily circumscribes the government’s
discretion; a restriction is not “narrowly tailored” simply
because it efficaciously serves a significant government interest.
“Government may not regulate expression in such a manner that
a substantial portion of the burden on speech does not serve to
advance its goals.” Id.; see Casey v. City of Newport, 308 F.3d
106, 112 & n.4 (1st Cir. 2002). Accordingly, a content-neutral
time, place, or manner regulation will be found to be “narrowly

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31
tailored” even if “a court concludes that the government’s
interest could be adequately served by some less-speech-
restrictive alternative,” “[s]o long as the means chosen are not
substantially broader than necessary to achieve [that] interest.”
Ward, 491 U.S. at 800. Our task is to apply this test to the
scheme of speech-restrictive zones established by the Ordinance,
using the Court’s decisions in Madsen, Schenck, and Hill as
guideposts.
“The burden is on the City to demonstrate the
constitutionality of its actions.” Startzell v. City of Phila., 533
F.3d 183, 201 (3d Cir. 2008). Here, the City argues that the
Ordinance’s combination of the buffer and bubble zones is
narrowly tailored because the two zones are complementary;
each serves a different significant interest. The bubble zone
“creates a small safety dome,” around entering clinic patients so
as to serve the government interest of preventing “persistent,
importunity, following and dogging,” Hill, 530 U.S. at 718.
“Because no protester is required to move out of the path of an
approaching person” under the bubble zone restrictions, the City
maintains that the “15' buffer zone is likewise necessary to
ensure unimpeded access to and from clinics.” The buffer zone
also “allows the police to have a bright-line test for enforcement
to keep doorways open.” Id. In short, the City believes the
Ordinance falls within the ambit of discretion afforded by Ward.

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Brown incorrectly assumes that the Ordinance’s restrictions16
are content-based, and thus that they must satisfy a standard of
strict scrutiny. Nonetheless, her arguments about the speech-
restrictive effects of the Ordinance can also be measured against
the tailoring requirement set forth as part of Ward’s
intermediate-scrutiny standard.
32
Brown contends that the Ordinance’s restrictions are not
sufficiently tailored to the interests they serve. In particular,16
Brown notes that the Colorado statute upheld in Hill did not
contain a buffer zone in addition to the one-hundred-foot bubble
zone. Rather than take a prophylactic approach to blocked
entrances, the statute directly proscribed the offending behavior,
making it unlawful to knowingly “obstruct[], detain[], hinder[],
impede[], or block[] another person’s entry to or exit from a
health care facility.” Hill, 530 U.S. at 708 n.1 (quoting Colo
Rev. Stat. § 18-9-122(2)). In Brown’s view, “[t]his language
exemplifies narrow tailoring,” whereas the Ordinance’s addition
of the buffer zone excessively burdens speech by precluding any
advocacy activities within a fifteen-foot radius of the clinic
entrance irrespective of whether those activities actually impede
patient access.
Brown asserts that the addition of the buffer zone has an
especially onerous effect on leafletting. In Hill, the Supreme
Court expressed a similar concern. Although it found that the
eight-foot separation imposed by the bubble zone would not
necessarily present a significant obstacle to the display of signs

-- 32 of 83 --

33
and oral communication, Hill, 530 U.S. at 726–27, 729, the
Court recognized that “[t]he burden on the ability to distribute
handbills is more serious because it seems possible that an 8-
foot interval could hinder the ability of a leafletter to deliver
handbills to some unwilling recipients.” Id. at 727. In
nonetheless finding the Colorado statute constitutional, the Hill
Court noted approvingly that the bubble zone allowed leafletters
to stand stationary in the path of oncoming pedestrians. Id. at
727–28. The Court also observed that “demonstrators with
leaflets might easily stand on the sidewalk at entrances (without
blocking the entrance) and, without physically approaching
those who are entering the clinic, peacefully hand them leaflets
as they pass by.” Id. at 729–30. The Court acknowledged that
“[s]pecial problems . . . may arise where clinics have particularly
wide entrances” but determined that these problems were not the
appropriate subject of a facial challenge; instead, they “may be
worked out as the statute is applied.” Id. at 730. Because the
Ordinance here, unlike the Colorado statute, establishes a
fifteen-foot buffer zone around clinic entrances, leafletters
cannot stand directly next to the entrance door to ensure arm’s-
length access to all entering patients. In this sense, the
Ordinance’s buffer zone is analogous to placing very wide
entrances on all of the health care facilities covered by the
Ordinance. This case therefore appears to present in the context
of a facial challenge the problem identified but left unresolved
by Hill. According to Brown, the addition of the buffer zone
effectively forecloses her ability to leaflet, rendering the
Ordinance unconstitutional on its face.

-- 33 of 83 --

34
The question is close, but we think Brown has the better
argument. Although the Ordinance serves important
government interests, we believe the layering of two types of
prophylactic measures is “substantially broader than necessary
to achieve [those] interest[s].” Ward, 491 U.S. at 800. The Hill
Court allowed the prophylactic bubble zone established by the
Colorado statute, even though its restrictions swept up more
than the specific incidents of dogging and harassment that were
the government’s professed target. Hill, 530 U.S. at 729. But
the Ordinance’s combination of two prophylactic zones here
represents a restrictive step beyond the regulation approved in
Hill. We must, therefore, apply the Ward test (relied on by Hill)
for ourselves, in order to decide whether the Ordinance’s
prophylactic measures—which essentially superimpose
Schenck’s fifteen-foot buffer zone onto Hill’s one-hundred-foot
bubble zone— “burden substantially more speech than is
necessary to further the government’s legitimate interests.”
Ward, 491 U.S. at 799.
In determining whether the Ordinance’s restrictions are
sufficiently tailored to the government’s interests, we find it
significant that the Ordinance’s use of both types of zones
appears to be unprecedented among regulatory schemes upheld
by courts. We have noted that generally applicable time, place,
and manner regulations enacted by legislatures are entitled to
more deference than injunctions fashioned by courts. See
Madsen, 512 U.S. at 764-65. But from the standpoint of
appellate review, injunctions offer an advantage over generally

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Brown makes two arguments that attempt to define what is17
necessary to achieve the government’s interests in this case.
First, she focuses narrowly on her own individual activity,
asserting that because her advocacy in front of clinics has
always been peaceful, the Ordinance “punishes [her] for
phantom misconduct never committed by her.” But Brown’s
behavior is not the relevant benchmark for a generally
applicable regulation like the Ordinance. “[T]he validity of the
35
applicable legislation, as it is easier to determine what is
necessary to achieve a significant interest in the context of a
specific case, with specific defendants alleged to have engaged
in specific conduct. In upholding the fixed buffer-zone
injunctions in Madsen and Schenck, for example, the Supreme
Court relied on the factual findings of the district court
regarding defendant protesters’ behavior. “Based on this
conduct,” the Supreme Court determined “the District Court was
entitled to conclude . . . that the only way to ensure access [to
the clinic] was to move all protesters away from the doorways.”
Schenck, 519 U.S. at 381. Moreover, “because defendants’
harassment of police” in Schenck “hampered the ability of the
police to respond quickly to a problem, a prophylactic measure
was even more appropriate.” Id. at 382. Here, by contrast, we
address a combination of legislatively enacted speech-restrictive
zones without support, either in the record or in case law, for the
factual proposition that both zones are needed to achieve the
City’s legitimate interests in preventing harassment and
obstruction of entrances. As “[t]he burden is on the City to17

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regulation depends on the relation its bears to the overall
problem the government seeks to correct, not on the extent to
which it furthers the government’s interests in an individual
case.” Ward, 491 U.S. at 801; see also Albertini, 472 U.S. at
688 (“The First Amendment does not bar application of a
neutral regulation that incidentally burdens speech merely
because a party contends that allowing an exception in the
particular case will not threaten important government
interests.”).
Second, with respect to the “overall problem,” Brown
asserts that the City has not established the existence at
Pittsburgh health care facilities of harassment, dogging, or
obstruction sufficient to justify the Ordinance’s restrictions. The
Pittsburgh City Council’s public meeting minutes include
comments complaining of precisely these problems. But Brown
notes that other comments denied that such incidents ever
occurred at the Pittsburgh clinics, and she complains that the
public meeting minutes were inadmissible hearsay.
The public meeting minutes themselves are not crucial to
our analysis, as we have held that “a factual basis” justifying
legislation need not be “submitted to the legislative body prior
to the enactment of the legislative measure.” Phillips v.
Borough of Keyport, 107 F.3d 164, 178 (3d Cir. 1997) (en
banc); see id. (“Whatever level of scrutiny we have applied in a
given case, we have always found it acceptable for individual
legislators to base their judgments on their own study of the
36

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subject matter of the legislation, their communications with
constituents, and their own life experience and common sense
so long as they come forward with the required showing in the
courtroom once a challenge is raised.”). In secondary effects
cases such as this, where a regulation is justified on the basis of
conduct that is associated with certain types of protected
expression (but is not the direct result of the expression’s
content), courts owe deference to legislative judgments. See
McCullen, 571 F.3d at 179 (citing Turner Broad. Sys., Inc. v.
FCC, 520 U.S. 180, 195 (1997)); id. at 181 (observing that the
buffer-zone statute at issue was enacted to combat “the
secondary effects” of protests at health care facilities). In
making these judgments, legislatures may look outside of their
own regional jurisdictions for evidence substantiating the
problem to which a given regulation is addressed. See Mitchell
v. Comm’n on Adult Entm’t Establishments of State of Del., 10
F.3d 123, 133 (3d Cir. 1993) (“[A] city or state may rely heavily
on the experience of, and studies produced by, other cities and
states, as well as on court opinions from other jurisdictions.”
(citing City of Renton v. Playtime Theatres, Inc., 475 U.S. 41,
50–51 (1986)); Phillips, 107 F.3d at 175 (“It may well be that
the defendants here, by pointing to studies from other towns and
to other evidence of legislative facts, will be able to carry their
burden of showing that the ordinance is reasonably designed to
address the reasonably foreseeable secondary effect problems.”).
Here, the City relies on the Supreme Court’s opinions in Hill,
37

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Schenck, and Madsen, along with the First Circuit’s opinions in
McGuire I and McGuire II, for evidence of a need to protect
access and prevent harassment and intimidation at health care
facilities. (All of these cases were also cited during the City
Council’s debate on the Ordinance.) Accordingly, our
conception of the “overall problem” to which the Ordinance is
addressed properly draws on the legislative records and other
facts examined in those decisions. As we explain, however,
those cases—none of which upheld a combination of bubble and
buffer zones—do not support the proposition that the full extent
of the Ordinance’s restrictions is necessary to protect the
significant interests identified by the City.
38
demonstrate the constitutionality of its actions,” Startzell, 533
F.3d at 201, we conclude that the Ordinance burdens
substantially more speech than necessary and is thus
insufficiently tailored.
As demonstrated by the cases on which the City relies,
either one of the two zones, standing alone, would advance the
interests identified by the City. As Hill recognized, the one-
hundred-foot bubble zone is designed especially to prevent
harassment by enforcing a space of separation between
protesters and unwilling listeners. But by preventing persons
within the zone from approaching for advocacy purposes within
eight feet of those who have not signaled their consent, the
bubble zone also makes it more difficult for protesters to block
entrances to the clinic. Cf. Hill, 530 U.S. at 729 (noting that the

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In order to avoid running afoul of the bubble-zone18
restrictions, protesters might stand stationary in front of clinic
entrances, but such conduct could be regulated—with less
impact on expression than the buffer zone—by a law directly
proscribing obstruction or blockading of entrances, such as the
Colorado provision complementing the bubble-zone regulation
upheld in Hill. See Colo. Rev. Stat. § 18-9-122(2) (prohibiting
“knowingly obstruct[ing], detain[ing], hinder[ing], imped[ing],
or block[ing] another person’s entry to or exit from a health care
facility”).
Moreover, the relative simplicity of the buffer zone, the19
boundaries of which can be clearly and objectively marked on
39
prophylactic bubble zone relieves police of the need to “focus
exclusively on the individual impact of each instance of
behavior” and to characterize “each individual movement” made
by protesters).18
The fixed buffer zone also achieves the City’s interests.
Not only does it work directly to prevent obstruction, but by
preventing all but the expressly authorized individuals in §
623.04's exemption from congregating anywhere within fifteen
feet of a medical facility’s entrance, it also serves the City’s goal
of preventing harassment and intimidation. At the very least, the
buffer zone ensures that entering patients will not have to run a
“gauntlet” of protesters, Madsen, 512 U.S. at 758, in order to
obtain medical services.19

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the pavement, would appear to present an easier enforcement
task than that posed by the bubble zone’s floating eight-foot
space of separation. Cf. McCullen v. Coakley, 573 F. Supp. 2d
382, 391–99 (D. Mass. 2008) (Massachusetts replaced the
bubble zone upheld in McGuire II with a buffer zone because
enforcement of the bubble zone proved difficult and protesters
blocked clinic entrances.), aff’d, 571 F.3d 167 (1st Cir. 2009).
40
For these reasons, the buffer zone, taken alone, promises
to accomplish the City’s objectives of protecting patient access
and preventing harassment. On the other hand, the addition of
the bubble zone imposes significant burdens on protected
speech. Leafletting, a “classic form[] of speech that lie[s] at the
heart of the First Amendment,” Schenck, 519 U.S. at 377, is
especially hard hit by the bubble zone’s enforcement of a space
of separation. Although the buffer zone, standing alone, would
require leafletters to remain beyond arm’s reach of a medical
facilities’ entrances, they would still be able to approach
individuals outside of the fifteen-foot radius in order to
distribute their literature. With the additional restrictions of the
bubble zone, on the other hand, not only are leafletters forbidden
from distributing literature within the buffer zone, but they may
not approach within eight feet of oncoming pedestrians absent
their consent anywhere within one hundred feet of health care
facility entrances. As these consequences demonstrate, if the
multi-zone Ordinance does not effectively foreclose leafletting
entirely, it severely curtails it. In our view, the combination of
the two zones burdens substantially more speech than appears

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41
necessary, on this record, to achieve the government’s interests.
See Ward, 491 U.S. at 800.
Although the holdings in Madsen, Schenck, and Hill do
not dispose of the particular regulatory scheme presented here,
the Court’s opinions in those cases support our conclusion.
While upholding the thirty-six-foot buffer zone around clinic
entrances, Madsen invalidated a provision of the injunction that
would have prohibited defendants “from physically approaching
any person seeking services of the clinic ‘unless such person
indicates a desire to communicate’ in an area within 300 feet of
the clinic.” Madsen, 512 U.S. at 773. Like the bubble zone
here, that zone was designed “to prevent clinic patients . . . from
being ‘stalked’ or ‘shadowed’ . . . as they approached the
clinic.” Id. Nonetheless, the Court found “it is difficult, indeed,
to justify a prohibition on all uninvited approaches of persons
seeking the services of the clinic, regardless of how peaceful the
contact may be, without burdening more speech than necessary
to prevent intimidation and to ensure access to the clinic.” Id.
at 774. Accordingly, the Court refused to countenance this
additional layer of prophylaxis. While acknowledging the
serious incidents of disorder and obstruction to which the
injunction was addressed, the Court concluded the fixed buffer
zone was sufficient to accomplish the government interests at
stake; the addition of the no-approach zone was
unconstitutionally excessive.
Similarly, in Schenck the Court upheld a fifteen-foot
fixed buffer zone while striking down an additional bubble zone

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42
establishing a space of separation “around people entering and
leaving the clinics.” Schenck, 519 U.S. at 377. The Court again
found this zone “burden[ed] more speech than is necessary to
serve the relevant governmental interests,” in part because it
“prevent[ed] defendants . . . [from] handing leaflets to people
entering or leaving the clinics who are walking on the public
sidewalks.” Id.
And in Hill, which applied the more relaxed tailoring
standard pertinent to generally applicable regulations such as the
Ordinance, the Court indicated that the bubble zone at issue in
that case might raise serious constitutional concerns if applied
to a clinic with an unusually wide entrance. 530 U.S. at 730.
Here, because of the fifteen-foot fixed bubble zone, every
entrance is a wide entrance as far as leafletters are
concerned—indeed, at least a thirty-foot-wide entrance
(assuming the fifteen-foot radius is measured from the very
center of the door). We are thus unable to rely, as the Hill Court
was, on the prospect that “demonstrators with leaflets might
easily stand on the sidewalk at entrances . . . and, without
physically approaching those who are entering the clinic,
peacefully hand them leaflets as they pass by.” Id. at 729–30.
With the Ordinance’s multi-zone restrictions, not only are
leafletters unable to stand within fifteen feet of clinic entrances,
but they are constrained from moving freely even outside of that
protective zone. The fifteen-foot exclusion is a prophylaxis that
effectively advances the City’s interests. The additional burden
of the bubble zone’s restrictions would be, on this record,

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Although we have focused our analysis on the20
governmental interest in preventing harassment and obstruction
of clinic entrances, we acknowledge that the City has also
asserted an interest in conserving police resources. Even
assuming that this interest is significant and justifies some sort
of prophylactic regulation, however, the City has not
demonstrated that an individual buffer or bubble zone would not
adequately serve this goal. Accordingly, the City’s asserted
interest in policing efficiency does not alter our conclusion that
the combination of the two zones is insufficiently tailored.
Brown also attacks the Ordinance as overbroad, but this21
argument appears to be limited to her as-applied challenge. See
infra Section II.B.1. To the extent Brown brings a facial
overbreadth challenge, her attack is foreclosed by Hill. See
supra note 10.
43
unduly—and unconstitutionally—onerous. Accordingly, we20
find the Ordinance’s combination of the two zones to be
insufficiently tailored under Ward.21
2.
Because we have concluded that the combination of the
bubble and buffer zones is invalid under the First Amendment,
we consider the remaining claims in Brown’s legal challenge
only insofar as they might invalidate either the bubble or buffer
zone on its own. Brown asserts that the same flaw that allegedly
renders the Ordinance a content-based restriction on

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The District Court determined that “[s]ince the case at hand22
involves the fundamental right to engage in free speech, strict
scrutiny is warranted.” Brown, 543 F. Supp. 2d at 485.
Although it is true generally under the Equal Protection Clause
that legislative actions are subject to strict scrutiny when they
“impermissibly interfere[] with the exercise of a fundamental
right,” id. (quoting Mass. Bd. of Ret. v. Murgia, 427 U.S. 307,
312 (1976)), this standard does not apply to content-neutral
time, place, and manner restrictions valid under Ward’s First
Amendment test. Whereas strict scrutiny demands that a
challenged regulation be the least restrictive means of achieving
44
speech—the exemption from the buffer zone restrictions of
certain persons, such as health care facility employees and
volunteers—also violates the Equal Protection Clause. Having
already rejected the argument that each of the Ordinance’s zones
is facially content-based, however, we also find that each is
consonant with equal protection. “[W]here the state shows a
satisfactory rationale for a content-neutral time, place, and
manner regulation, that regulation necessarily” survives scrutiny
under the Equal Protection Clause. McGuire I, 260 F.3d at 49-
50 (citing Thorburn v. Austin, 231 F.3d 1114, 1122 (8th Cir.
2000); Hoover v. Morales, 164 F.3d 221, 227 n.3 (5th Cir.
1998); DLS, Inc. v. City of Chattanooga, 107 F.3d 403, 411 n.7
(6th Cir. 1997)). “So it is here:” each zone of the Ordinance
“passes muster under the Equal Protection Clause for the same
reasons that it passes muster under the First Amendment.” Id.
at 50.22

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a compelling state interest, see ACLU, 534 F.3d at 190, Ward’s
intermediate-scrutiny standard asks whether a content-neutral
time, place, and manner regulation is narrowly tailored (but not
necessarily the least intrusive means) to serve a significant state
interest. If every time, place, and manner regulation were
subject to strict scrutiny under the Equal Protection Clause
simply because it burdened constitutionally protected speech,
Ward’s intermediate-scrutiny test would be rendered obsolete.
Instead, it is only content-based time, place, and manner
regulations that call for strict scrutiny—whether viewed through
the lens of First Amendment or Equal Protection doctrine. See
McCullen, 571 F.3d at 178 n.2 (explaining that the Court’s
conclusion that the challenged statute was facially content-
neutral “also serves to defeat the plaintiffs’ equal protection”
claim); McGuire I, 260 F.3d at 49 (citing Police Dep’t of Chi. v.
Mosley, 408 U.S. 92, 95 (1972), for the proposition that “the
equal protection interests involved in the differential treatment
of speech are inextricably intertwined with First Amendment
concerns”).
Supreme Court precedent supports this view. Where the
Court has applied strict scrutiny to time, place, and manner
regulations under the Equal Protection Clause, the restrictions
were content-based. See, e.g., Carey v. Brown, 447 U.S. 455
(1980) (invalidating statute that generally prohibited picketing
of residences or dwellings but exempted peaceful picketing of
employment sites involved in labor disputes); Mosley, 408 U.S.
45

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92 (invalidating ordinance that proscribed picketing near
schools, with exemption for schools involved in a labor dispute).
Conversely, the Court has applied a less demanding test to time,
place, and manner regulations that were not justified in terms of
content. See, e.g., Young v. Am. Mini Theatres, Inc., 427 U.S.
50, 71 n.34 (1976) (upholding a zoning ordinance regulating the
location of adult movie theaters, noting that the ordinance’s
purpose was to mitigate the “secondary effects” of crime and
urban “deterioration” rather than to “protect[] . . . citizens from
exposure to unwanted, ‘offensive’ speech”).
We do not question the sincerity of Brown’s religious23
convictions.
46
Brown also challenges the Ordinance under the First
Amendment’s Free Exercise Clause, claiming that its restrictions
impermissibly interfere with her religiously motivated efforts to
dissuade women from undergoing abortions. See McTernan,23
564 F.3d at 647 (“The Free Exercise Clause not only forbids
regulation of religious beliefs as such but also protects
religiously motivated expression.” (citing Employment Div.,
Dept. of Human Res. of Or. v. Smith, 494 U.S. 872, 877
(1990))). “The Free Exercise Clause, however, does not afford
absolute protection to religiously motivated expression.” Id. As
the Supreme Court has explained, “a law that is neutral and of
general applicability need not be justified by a compelling
governmental interest even if the law has the incidental effect of
burdening a particular religious practice.” Church of the Lukumi

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Relying on dicta in Smith, some litigants pressing Free24
Exercise claims have presented a “hybrid rights” theory,
contending that even a neutral, generally applicable regulation
is subject to strict scrutiny if it “incidentally burdens rights
protected by ‘the Free Exercise Clause in conjunction with other
constitutional protections, such as freedom of speech.’” Tenafly
Eruv Ass’n v. Tenafly, 309 F.3d 144, 165 n.26 (3d Cir. 2002)
(quoting Smith, 494 U.S. at 881). Like many of our sister courts
of appeals, we have not endorsed this theory, see McTernan, 564
F.3d at 647 n.5; Combs v. Homer-Center Sch. Dist., 540 F.3d
231, 244–47 (3d Cir. 2008) (per curiam), and Brown does not
propound it here.
47
Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 531 (1993). “A24
law is ‘neutral’ if it does not target religiously motivated
conduct . . . .” Blackhawk v. Pennsylvania, 381 F.3d 202, 209
(3d Cir. 2004). It is “generally applicable” if it extends to all
conduct that undermines the purposes of the law and does not
selectively burden religiously motivated conduct. Combs v.
Homer-Center Sch. Dist., 540 F.3d 231, 242 (3d Cir. 2008) (per
curiam) (citing Blackhawk, 381 F.3d at 209). Under the
Supreme Court’s decision in Smith, a neutral, generally
applicable law is subject only to rational-basis review, which
“requires merely that the action be rationally related to a
legitimate government objective.” Tenafly Eruv Ass’n v.
Tenafly, 309 F.3d 144, 165 n.24 (3d Cir. 2002).

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The free exercise analysis here addresses only the facial25
validity of the Ordinance. Brown’s claim that the city’s police
officers have selectively enforced it only against pro-life
protesters, and not clinic workers, is examined in Section II.B.2
below.
48
The Pittsburgh Ordinance is a facially neutral law of
general applicability. Its restrictions do not evince hostility to
religion, nor do they selectively burden religious conduct. The
Ordinance’s limitations apply irrespective of whether the beliefs
underpinning the regulated expression are religious or secular.
Brown disputes this conclusion, but her argument again relies on
the mistaken premise that the Ordinance applies only to the
speech of pro-life protesters and “not to clinic workers’ speech
on the same topic.” On its face, the Ordinance is content-neutral
and restricts the advocacy of all persons within the delimited
zones. Accordingly, the Ordinance is subject only to rational-25
basis review. As noted in our Ward analysis, the regulation
serves the significant and legitimate state interests of preserving
access and preventing harassment, intimidation, and violence.
It thus satisfies the rational-basis test prescribed by Smith.
Brown contends the Ordinance is invalid under
Pennsylvania’s Religious Freedom Protection Act (RFPA), 71
Pa. Stat. Ann. §§ 2401–2407. The RFPA was enacted in order
to provide more protection to the exercise of religious beliefs
than that currently afforded by the Free Exercise Clause of the
First Amendment to the Federal Constitution. See Combs, 540

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In 1993, Congress enacted the federal Religious Freedom26
Restoration Act (RFRA), 107 Stat. 1488, 42 U.S.C. §§ 2000bb
to 2000bb-4 (amended 2000), which attempted to resurrect the
compelling-interest test that had been applied to laws
substantially burdening religious exercise before the Supreme
Court’s Smith decision. But in City of Boerne v. Flores, 521
U.S. 507 (1997), the Supreme Court invalidated the statute as
applied to the states, holding that it “exceeded the scope of
Congress’ enforcement power under section 5 of the Fourteenth
Amendment,” Combs, 540 F.3d at 261 (Scirica, C.J.,
concurring) (citing Boerne, 521 U.S. at 536); see also Boerne,
521 U.S. at 534 (finding that the RFRA “is a considerable
congressional intrusion into the States’ traditional prerogatives
and general authority to regulate for the health and welfare of
their citizens”). In response, several states, including
Pennsylvania, enacted their own statutes bolstering protection of
religious freedom. See Combs, 540 F.3d at 261–62 & nn.47 &
48.
49
F.3d at 260–61 (Scirica, C.J., concurring) (discussing “the
development of federal First Amendment jurisprudence and its
influence on Pennsylvania law”). As noted, under the26
Supreme Court’s holding in Smith, neutral, generally applicable
laws burdening religion are subject only to rational-basis
scrutiny under the Federal Constitution’s Free Exercise Clause.
The RFPA, by contrast, prohibits any law from “substantially
burden[ing] a person’s free exercise of religion,” even if the
“burden . . . results from a rule of general applicability,” unless

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There is no question that the RFPA applies to the Ordinance27
at issue here. See 71 Pa. Cons. Stat. Ann. § 2406(a) (“This act
shall apply to any State or local ordinance and the
implementation of that law or ordinance, whether statutory or
otherwise and whether adopted or effective prior to or after the
effective date of this act.”).
50
the law is the least restrictive means of furthering a compelling
state interest. 71 Pa. Stat. Ann. § 2404.27
Significantly, not all burdens on the exercise of religion
trigger the RFPA’s heightened scrutiny. “In our modern
regulatory state, virtually all legislation . . . imposes an
incidental burden at some level by placing indirect costs on an
individual’s activity. . . . Pennsylvania . . . [has] identified a
substantiality threshold as the tipping point for requiring
heightened justifications for governmental action.” Combs, 540
F.3d at 262 (Scirica, C.J., concurring). In addition, the RFPA
requires “as a threshold matter” that persons invoking its
protections “prove . . . that their free exercise of religion has or
will likely be ‘substantially burdened’” by “clear and convincing
evidence”; only after that showing is made is the government
obliged to demonstrate that the challenged law or activity is the
least restrictive means of advancing a compelling interest. Id.
at 253 (per curiam opinion); see also id. at 262 (Scirica, C.J.,
concurring) (“[B]y requiring proof of a ‘substantial burden’ by
clear and convincing evidence, Pennsylvania appears to have set
a higher threshold than other religious restoration statutes.”);

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In Commonwealth v. Parente, 956 A.2d 1065 (Pa. Commw.28
Ct. 2008), the Pennsylvania Commonwealth Court construed the
third definition of “substantially burdens”: “Denies a person a
reasonable opportunity to engage in activities which are
fundamental to the person’s religion.” It appears that no court
has yet construed either of the first two definitions.
51
Commonwealth v. Parente, 956 A.2d 1065, 1074 n.16 (Pa.
Commw. Ct. 2008) (noting that the Pennsylvania Supreme Court
has stated that “[t]he standard of clear and convincing evidence
means testimony that is so clear, direct, weighty, and convincing
as to enable the trier of fact to come to a clear conviction,
without hesitancy, of the truth of the precise facts in issue”
(quoting In re Sylvester, 555 A.2d 1202, 1203–04 (Pa. 1989))).
According to the RFPA, a law “substantially burdens”
religious exercise if it: “(1) Significantly constrains or inhibits
conduct or expression mandated by a person’s sincerely held
religious beliefs;” “(2) Significantly curtails a person’s ability to
express adherence to the person’s religious faith;” “(3) Denies
a person a reasonable opportunity to engage in activities which
are fundamental to the person’s religion;” or “(4) Compels
conduct or expression which violates a specific tenet of a
person’s religious faith.” 71 Pa. Stat. Ann. § 2403. Brown
argues that the Ordinance “substantially burdens” her religiously
motivated advocacy activities under each of the first three
definitions.28

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52
In this case, the exercise of religion at issue—Brown’s
advocacy activities in front of the clinics—is also expression
protected by the First Amendment. Brown essentially urges us
to interpret the RFPA as carving out an exemption to the
Ordinance for religiously motivated ideas: its restrictions would
not apply to religiously motivated expression that would be
“substantially burdened” by the Ordinance. As we seek to
determine what constitutes a substantial burden in this context,
we confront two possibilities. First, “substantially burden”
might be defined such that the protection the RFPA affords to
religious speech is coextensive with (or lesser than) that
afforded to speech generally by the First Amendment. Under
this definition, if a given burden on expression is permissible
under the First Amendment, it would also be permissible under
the RFPA. Second, “substantially burden” might be defined
such that the RFPA would provide more protection to speech
motivated by religious belief than the First Amendment would
provide to that same speech. Under this definition, for example,
protesters inspired by non-religious beliefs could be restricted,
consistent with the First Amendment, from approaching within
eight feet of unwilling listeners in the bubble zone, but
protesters motivated by religious beliefs might be exempt from
that same restriction by virtue of the RFPA.
This second definition of “substantially burden” raises
serious constitutional concerns because it would cause the
applicability of the Ordinance to turn on whether a given
advocacy activity was motivated by religious or non-religious

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53
beliefs. The exemption for religiously motivated expression
would convert the Ordinance into precisely the kind of
viewpoint-based restriction of speech that the Supreme Court
has held presumptively invalid under the First Amendment. See
Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819,
829 (1995) (“The government must abstain from regulating
speech when the specific motivating ideology . . . is the rationale
for the restriction.”).
In Pennsylvania law, as in federal law, it is a canon of
statutory construction that “[w]hen the validity of an act of the
(Legislature) is drawn in question, and if a serious doubt of
constitutionality is raised, . . . [courts] will first ascertain
whether a construction of the statute is fairly possible by which
the (constitutional) question may be avoided.” Com., by
Creamer v. Monumental Props., Inc., 329 A.2d 812, 827 (Pa.
1974) (quoting Crowell v. Benson, 285 U.S. 22, 62 (1932)).
This principle applies with equal force to the interpretation of
municipal ordinances. See Dole v. Philadelphia, 11 A.2d 163,
168 (Pa. 1940); Kadash v. City of Williamsport, 340 A.2d 617,
621 (Pa. Commw. Ct. 1975). In accordance with this precept,
we construe the statutory scheme at issue here in a manner that
preserves it from serious constitutional doubt: the Ordinance’s
restrictions do not “substantially burden” religiously motivated
expression if they do not impose an impermissible burden under
the Free Speech Clause of the First Amendment.
This construction of the RFPA finds support not only in
the canon of constitutional avoidance, but also in the history of

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54
the Supreme Court’s Free Exercise Clause jurisprudence. As
noted, the purpose of the RFPA was to restore, under the
auspices of state law, the free exercise jurisprudence that held
sway under Sherbert v. Verner, 374 U.S. 398 (1963), before the
Supreme Court decided Employment Division v. Smith. See
supra note 26; Pa. Senate Journal, 2002 Reg. Sess. No. 67, at
2386 (Nov. 20, 2002) (statement of Sen. Jubelirer, co-sponsor
of the RFPA); id. at 2386–87 (statement of Sen. Mellow, co-
sponsor of the RFPA). In the Sherbert era, the Supreme Court
confronted a free exercise challenge to a rule confining
solicitation at state fairs to booths. See Heffron, 452 U.S. 640;
cf. Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1074 (9th
Cir. 2008) (looking to Sherbert-era Supreme Court cases in
interpreting the federal Religious Freedom Restoration Act).
The Court held that the rule did not unconstitutionally restrict
the plaintiff’s right to freely exercise “one of its religious rituals,
which enjoins its members to go into public places to . . . solicit
donations for the support of the Krishna religion,” because the
rule was valid under the Court’s test for time, place, and manner
restrictions on expression. Heffron, 452 U.S. at 645. Heffron
suggests that where the religious exercise in question is also
expression protected by the Free Speech Clause of the First
Amendment, the protection afforded by the Free Exercise
Clause—under the earlier “substantial burden” test of Sherbert,
which the RFPA seeks to restore—is congruent with the
protection provided by the Free Speech Clause. Indeed, this is
precisely the gloss a concurring opinion gave to Heffron at the
time:

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55
Our cases are clear that governmental regulations
which interfere with the exercise of specific
religious beliefs or principles should be
scrutinized with particular care. See, e.g.,
Sherbert v. Verner, 374 U.S. 398, 402–03
(1963). . . . I read the Court as accepting these
precedents, and . . . holding that even if Sankirtan
[a Krishna ritual involving the distribution of
literature and solicitation of funds] is ‘conduct
protected by the Free Exercise Clause,’ it is
entitled to no greater protection than other forms
of expression protected by the First Amendment
that are burdened to the same extent by [the law at
issue].
Id. at 659 n.3 (Brennan, J., concurring in part and dissenting in
part); cf. Mahoney v. U.S. Marshals Serv., 454 F. Supp. 2d 21,
38 (D.D.C. 2006) (applying the federal Religious Freedom
Restoration Act and holding that “even if the Court were to
assume that plaintiffs were exercising their religion by
demonstrating in front of the Mass, there would . . . be no
substantial burden on this exercise[] for the same reasons . . . the
time, place, and manner restrictions in this case were
reasonable”).
Accordingly, we find that the RFPA confers on
religiously motivated expression the same extent of protection
provided by the First Amendment to expression generally.
Since we have already determined that the bubble and buffer

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56
zones, taken individually and on their face, survive First
Amendment scrutiny, we also find that their restrictions may be
applied to Brown’s advocacy activities without “substantially
burdening” her exercise of religion under the RFPA.
3.
Brown’s other claims, then, do not require us to modify
our determination under the First Amendment: in tandem the
buffer and bubble zones are inadequately tailored, but either of
them individually would be facially valid. As this is an
interlocutory appeal from the denial of a preliminary injunction,
our review would normally be limited to deciding whether such
an injunction should issue. But “the Supreme Court has held the
‘general rule’ of limited review is one of ‘orderly judicial
administration, not a limit on judicial power.’” OFC Comm
Baseball v. Markell, No. 09-3297, 2009 WL 2710153, at *4 (3d
Cir. Aug. 31, 2009) (quoting Thornburgh v. Am. Coll. of
Obstretricians & Gynecologists, 476 U.S. 747, 757 (1986),
overruled on other grounds by Planned Parenthood of Se. Penn.
v. Casey, 505 U.S. 833 (1992)). “If a preliminary injunction
appeal presents a question of law ‘and the facts are established
or of no controlling relevance,’ the panel may decide the merits
of the claim.” Pitt News v. Pappert, 379 F.3d 96, 105 (3d Cir.
2004) (quoting Thornburgh, 476 U.S. at 756–57); accord
Markell, 2009 WL 2710153, at *4–5; see Cavel Intern., Inc. v.
Madigan, 500 F.3d 551, 559 (7th Cir. 2007) (awarding judgment
on the merits because, “[a]lthough the appeal is from the denial
of a preliminary injunction, the merits of [plaintiff’s] challenge

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57
to the horse-meat law have been fully briefed and argued and
there are no unresolved factual issues the resolution of which in
a trial would alter the result”); Solantic, LLC v. City of Neptune
Beach, 410 F.3d 1250, 1274 (11th Cir. 2005) (“[W]e do not
think it necessary or prudent to confine our opinion to holding
that [the plaintiff] has shown a likelihood of success on the
merits, when it is altogether clear that [the plaintiff] will succeed
on the merits of its First Amendment claims.”).
A decision on the merits is appropriate here, as the issue
of the Ordinance’s facial validity has been fully briefed and
argued, and the relevant facts—which, in the context of a facial
challenge, do not encompass the features of particular clinic
sites or specific incidents of enforcement—are undisputed. The
dispositive question—whether, on these undisputed facts, the
Ordinance is a content-neutral time, place, and manner
regulation that is narrowly tailored to significant government
interests and leaves open ample alternative channels of
communication—is one of law. Because we find that the
Ordinance’s combination of zones is not narrowly tailored, we
hold on the merits that the Ordinance is facially invalid.
This conclusion, however, does not end the matter. The
Ordinance has an express severability provision. Pittsburgh, Pa.,
Code tit. 6, § 623.06 (“If any portion of this Chapter is held
invalid, unenforceable, or unconstitutional by any court of
competent jurisdiction, it shall not affect the validity of the
remaining portions of this Chapter, which shall be given full
force and effect.”). The question, therefore, is which zone shall

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Of course, nothing we have said prohibits the City from29
enacting a different regulatory scheme consistent with the
constitutional restrictions we have delineated in this opinion.
58
be invalidated and which shall be left in effect. Because either
zone individually is lawful, the decision of which zone to
employ belongs not to us but rather to the City. On remand,
therefore, the City should inform the District Court of its
preference, and the court should enjoin enforcement of the other
zone.29
B.
Even to the extent that the Ordinance is facially valid, it
may be unlawful as applied. Brown brings two types of as-
applied challenges against the Ordinance. First, she argues that
facts specific to the clinic sites at which she protests—the
number of other businesses falling within the restrictive zones,
the ambient noise levels, the width of the sidewalks,
etc.—render the application of the Ordinance at those locations
invalid under the Free Speech Clause of the First Amendment.
Second, she contends that even if the Ordinance is content-
neutral on its face, it has been selectively enforced by the
Pittsburgh police, who have allegedly applied it only to persons,
such as Brown, expressing pro-life views, and not to clinic
workers and volunteers advocating pro-choice positions.

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59
1.
In upholding the Colorado statute against a facial
challenge, the Hill Court suggested that the result of as-applied
challenges to the statute could depend on facts unique to the
particular locations at which the statute’s restrictions were
enforced. See Hill, 530 U.S. at 730 (“Special problems that may
arise where clinics have particularly wide entrances or are
situated within multipurpose office buildings may be worked out
as the statute is applied.”); see also id. at 738-39 (Souter, J.,
concurring) (Although the statute “could possibly be applied to
speakers . . . who might try to engage . . . people having no
business with the facility,” this objection does not “weigh
heavily on a facial challenge” because “I am skeptical about the
number of health care facilities with substantial pedestrian
traffic within 100 feet of their doors but unrelated to the
business conducted inside.”); id. at 740 (“Whether floating
bubble zones are so inherently difficult to administer that only
fixed, no-speech zones (or prohibitions on ambulatory
counseling within a fixed zone) should pass muster is an issue
neither before us nor well-suited to consideration on a facial
challenge.”); cf. id. at 738 (Under the statute, “[t]he content of
the [speaker’s] message will survive on any sign readable at
eight feet and in any statement audible from that slight
distance.”). Accepting Hill’s invitation, Brown argues that the
Ordinance is substantially overbroad because, given the large
number of non-health care facilities that fall within the one-
hundred-foot zone around the clinics at issue here, the vast

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Because the City may prefer the bubble to the buffer zone,30
see supra note 28, we consider Brown’s as-applied challenge to
the former.
The District Court explained, “The Plaintiff has provided31
the Court with exhibits in support of her motion for a
preliminary injunction which display the facilities at issue and
the surrounding zones. However, since those photographs were
taken in 2006, the areas have changed. Therefore, the Court has
taken a view of these areas pursuant to its inherent power to
‘observe places or objects that are material to litigation but
60
majority of the persons whom the Ordinance hinders protesters
from engaging are not patients and have no business with the
clinics; that the noise levels at the clinics make it extremely
difficult, if not impossible, for Brown to make herself heard
from eight feet away; and that the width of the sidewalk and
other physical impediments make it extremely difficult, if not
impossible, for Brown to engage people in conversation at the
prescribed distance of eight feet without venturing into the street
or otherwise putting her safety at risk.30
Although the District Court acknowledged these
arguments, it apparently found them unpersuasive. Brown
complains that this aspect of the court’s decision was tainted by
the court’s unannounced visit to, and inspection of, the
Pittsburgh clinic sites, undertaken after the close of evidence
and outside of the presence of the parties or the court reporter.31

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which cannot feasibly be brought, or satisfactorily reproduced,
within the courtroom.’” Brown, 543 F. Supp. 2d at 455 n.8
(quoting 2 McCormick on Evidence § 219 (6th ed.)); see also id.
at 456 n.9, 458 n.13, 463 n.16, 464 n.18, 465 n.20 (referring to
site visits).
61
The City argues that it is “proper and appropriate for a Judge to
take such a view pursuant to the Court’s inherent power to
observe places or objects that are material to litigation but which
cannot feasibly be brought or satisfactorily reproduced within
the courtroom.” 2 McCormick on Evidence § 219 (6th ed.).
We believe the District Court’s site visits were improper.
The problem is not that the court viewed locations outside of the
courtroom. Rather, it is that the court did so outside the record
and without notice to the parties. See 2 McCormick on
Evidence § 219 (“The judge in a bench trial may take a view [of
a place or object outside the courtroom], though to do so without
allowing the parties to attend invites a claim of error.”).
“[B]ecause counsel were not informed when the judge would be
conducting h[er] inspection, the parties had no way of knowing
exactly what the court looked at, or how the judge went about
h[er] visit.” Clicks Billiards Inc. v. Sixshooters Inc., 251 F.3d
1252, 1267 (9th Cir. 2001). “Without presence of counsel there
is no way to be certain . . . that the court does not view the
wrong premises or objects. . . . [Furthermore, w]hen there is an
improper view the parties have no opportunity to cross-examine,
to object to the introduction of the evidence, or to rebut the

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Brown does not dispute that the improper visit is subject to32
a harmless error standard.
62
evidence.” Lillie v. United States, 953 F.2d 1188, 1191 (10th
Cir. 1992). In addition, “because there is no record of the view,
the litigants may effectively be denied any means of challenge
on appeal.” Id.; see also Sixshooters, 251 F.3d at 1267 (“All of
this is another way of saying that the record on appeal is
incomplete.”).
The City contends that any error in the site views was
harmless. We cannot agree. “Erroneous admission of32
evidence is harmless only if other competent evidence is
‘sufficiently strong’ to permit the conclusion that the improper
evidence had no effect on the decision.” Lillie, 953 F.2d at
1192; accord Great Am. Ins. Co. v. Norwin Sch. Dist., 544 F.3d
229, 251 (3d Cir. 2008) (“An erroneous evidentiary ruling will
be considered harmless if it is highly probable that the district
court’s [ruling] did not affect [the party’s] substantial rights.”
(alterations in original and internal quotation marks omitted)).
Here, although the District Court does not appear to have made
explicit factual findings regarding noise levels, pedestrian traffic
in the zones, or the effect of particular site features on Brown’s
activities, it is hard to imagine the District Court’s visits did not
play a role in its rejection of Brown’s arguments. In fact, the
City lends support to this conclusion when it contends that
“[t]he District Court found that the noise levels did not impede
Brown’s ability to communicate under the Ordinance after

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Our remand will also allow the District Court to make33
explicit findings as to noise levels and other environmental
conditions and to clarify the effect of these conditions on the
merits of Brown’s claim.
63
careful examination of both testimony of the parties and the
District Court’s own site visits to the various medical facilities
in question.” Because we cannot say with confidence that the
able District Court’s site visits did not influence its finding that
the Ordinance—as applied to the particular clinic locations
where Brown protests—was not overbroad and did not
excessively burden Brown’s speech rights under Ward, we will
vacate the District Court’s ruling on this aspect of the as-applied
challenge. On remand, the District Court should allow the
parties a chance to attend site visits and give them a chance to
respond, on the record, to proposed factual findings drawn from
the visits.33
Brown also complains that the District Court considered
other evidence to which she did not have a chance to respond,
such as newspaper articles reporting crime levels and transit
cutbacks, see Brown, 543 F. Supp. 2d at 462 n.15, 463 n.17, and
an internet website displaying crime statistics, see id. at 455 n.8.
She contends this material was not appropriate for judicial
notice and was inadmissible hearsay. In response, the City
points out that evidentiary rules are relaxed in a preliminary
injunction proceeding, and that “the trial court should be
allowed to give even inadmissible evidence some weight when

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In addition to the as-applied claims raised by Brown,34
Amicus National Legal Foundation argues that the Ordinance is
unconstitutionally vague as applied because it is unclear what
constitutes “consent” under the bubble-zone regulation. See
Pittsburgh, Pa., Code tit. 6, § 623.03 (“No person shall
knowingly approach another person within eight feet (8') of such
person, unless such other person consents . . . .”). Brown raised
this argument before the District Court but omitted it on appeal.
Although “we need not necessarily reach issues advanced only
by amici,” In re Paoli R.R. Yard PCB Litig., 221 F.3d 449, 465
n.6 (3d Cir. 2000), we will briefly address this contention.
As Amicus acknowledges, the Supreme Court in Hill
rejected a facial vagueness challenge to an identical statutory
“consent” provision. See Hill, 530 U.S. at 732–33. Despite
petitioners’ “hypertechnical theories as to what the statute
covers, such as whether an outstretched arm constitutes
‘approaching,’” the Court “conclude[d] that it is clear what the
64
it is thought advisable to do so in order to serve the primary
purpose of preventing irreparable harm before a trial can be
held.” 11 Wright & Miller, Federal Practice & Procedure §
2949, at 471. We do not dispute this general principle, but as
with the site visits, our view is that the parties apparently had no
notice that the District Court was considering the material to
which Brown objects; accordingly, the parties had no
opportunity to rebut this evidence or place it into context. Our
remand will allow Brown to respond to this material and to
make objections to its admissibility.34

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ordinance as a whole prohibits.” Id. at 733 (internal quotation
marks omitted). “[S]peculation about possible vagueness in
hypothetical situations,” the Court emphasized, “will not support
a facial attack on a statute when it is surely valid in the vast
majority of its intended applications.” Id. (internal quotation
marks omitted).
Although Amicus characterizes its vagueness claim as an
as-applied challenge, it is essentially the same kind of facial
attack rebuffed by Hill. Amicus does not cite any occasion on
which the Ordinance was enforced against Brown on the ground
that she had failed to obtain consent from a person she
approached. Cf. Coates v. City of Cincinnati, 402 U.S. 611,
620–21 (1971) (White, J., dissenting) (“[S]ince we have no
information from this record as to what conduct was charged
against these defendants, we are in no position to judge the
statute as applied.”). Instead, Amicus focuses on the alleged
ambiguity inherent in the terms of the statute itself. See, e.g.,
Amicus Br. 5 (“[T]he term ‘consent’ in Pittsburgh’s ordinance
is an undefined condition that lacks the clarity . . . required for
Ms. Brown . . . to know what she must do to attain this ‘consent’
from a patient going to the clinic.”); id. at 10 (complaining of
the Ordinance’s “lack of definitional clarity”). Amicus also
poses the sort of hypothetical questions turned aside by Hill.
See, e.g., id. at 5 (“If there are several people in a group, must
[Brown] gain consent from all of them or just the person she is
seeking to speak to?”). We fail to see how the questions Amicus
65

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asks about the Ordinance are meaningfully different from the
ones raised by the Hill petitioners—who, like Brown, pondered
the meaning of the consent requirement in the context of their
pro-life clinic advocacy.
Moreover, as in Hill, any vagueness concern “is
ameliorated by the fact that” the Ordinance “contains a scienter
requirement.” Hill, 530 U.S. at 732. If Brown believes that a
person within the bubble zone has consented to her
a p p r o a c h — h o w e v e r t h a t p e rc e iv e d c o n se n t w a s
manifested—then the Ordinance’s “knowingly” requirement
protects her from liability.
66
2.
Brown’s second type of as-applied challenge argues that
the Pittsburgh police have discriminated on the basis of
viewpoint in enforcing the statute, applying its restrictions only
to pro-life protesters like Brown and not to clinic workers and
volunteers. As the City observes, because the Ordinance on its
face does not discriminate based on content or viewpoint,
Brown can prevail only if she establishes a pattern of
discriminatory enforcement evincing an intent to target
particular viewpoints. Under Monell v. Department of Social
Services, 436 U.S. 658 (1978), “a local government may not be
sued under § 1983 for an injury inflicted solely by its employees

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Brown’s Complaint does not name as defendants any of the35
police officers allegedly involved in selective enforcement of
the Ordinance.
67
or agents.” Id. at 694. In other words, plaintiffs may not rely35
on a theory of respondeat superior to impose liability on
municipalities. “Instead, it is when execution of a government’s
policy or custom, whether made by its lawmakers or by those
whose edicts or acts may fairly be said to represent official
policy, inflicts the injury that the government as an entity is
responsible under § 1983.” Id.
Brown contends that “the Ordinance itself” is the
“policy” giving rise to municipal liability, and that “[w]hen
‘challenging the constitutionality of a policy . . .’ a plaintiff is
not required to ‘allege a sequence of constitutional deprivations;
the claim that the policy resulted in the plaintiff suffering such
a deprivation satisfies Monell.’” Doby v. DeCrescenzo, 171 F.3d
858, 868 (3d Cir. 1999). The principle Brown cites is a correct
statement of the law, but it is not applicable here because
Brown’s premise is faulty—the Ordinance itself is not an
unconstitutional policy. As the Supreme Court has explained,
“[p]roof of a single incident of unconstitutional activity is not
sufficient to impose liability under Monell, unless proof of the
incident includes proof that it was caused by an existing . . .
municipal policy, which policy can be attributed to a municipal
policymaker.” City of Oklahoma City v. Tuttle, 471 U.S. 808,
823–24 (1985) (plurality opinion). The rationale for this rule is

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Justice Brennan did not join the plurality opinion in Tuttle36
because he found it “needlessly complicate[d].” Tuttle, 471 U.S.
at 825 (Brennan, J., concurring). In Tuttle, the plaintiff argued
that her husband had been shot by police officers due to a
“policy” of inadequate training. The plurality doubted that a
“policy of ‘inadequate training’” was itself unconstitutional, and
thus expressed skepticism about whether Monell liability could
be predicated on such a “policy,” even assuming it could be
shown to have caused the unconstitutional police conduct, id. at
822–23 (plurality opinion). Justice Brennan, by contrast,
thought the specific nature of the underlying policy was
unimportant, as long as there was such a policy and it was the
cause of the unconstitutional action: “If a municipality takes
actions—whether they be of the type alleged in Monell . . . or
this case—that cause the deprivation of a citizen’s constitutional
rights, § 1983 is available as a remedy.” Id. at 833 n.8
(Brennan, J., concurring). The difference between the two
68
straightforward. “[A] single incident of police misbehavior by
a single policeman is insufficient as sole support for an
inference that a municipal policy or custom caused the incident.”
Id. at 832 (Brennan, J., concurring); see id. at 822–24 (plurality
opinion) (contrasting the facially unconstitutional, explicit
policy at issue in Monell, only one application of which was
sufficient to trigger municipal liability, to fact patterns that
present no such explicit policy, where “more proof than the
single incident will be necessary” to establish a causal
connection between the incident and some municipal policy) ;36

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opinions, however, is not relevant here. Both opinions (and thus
a majority of the Court) agreed that a single incident of
unconstitutional police conduct, standing alone, was insufficient
to establish municipal liability because it could not support an
inference that there existed a city policy that was the cause of
the incident.
Demonstration of a “pattern” of selective enforcement may37
not be necessary in cases where there is direct evidence of an
69
see also Monell, 436 U.S. at 691 (explaining that municipal
liability can exist even when “discriminatory practices” are “not
authorized by written law,” but only if such practices are
sufficiently “permanent and well settled as to constitute a
‘custom or usage’ with the force of law” (quoting Adickes v.
S.H. Kress & Co., 398 U.S. 144, 167–68 (1970))). More
recently, the Supreme Court has confirmed this jurisprudence,
stating that “in order to win a viewpoint discriminatory
enforcement challenge against a law that is facially neutral, the
challenger would need to show ‘a pattern of unlawful
favoritism.’” McGuire II, 386 F.3d at 64 (quoting Thomas v.
Chi. Park Dist., 534 U.S. 316, 325 (2002)). As we have already
determined in our analysis of Brown’s facial challenge, the
Ordinance itself is a time, place, and manner regulation that
does not discriminate unlawfully on the basis of content or
viewpoint. Accordingly, to prevail against the City on her
discriminatory enforcement claim, Brown must demonstrate “a
pattern of unlawful favoritism.”37

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explicit policy to implement a facially neutral law in an
unconstitutionally discriminatory way. But where a plaintiff
relies primarily on incidents of discriminatory enforcement as
circumstantial evidence of a municipal policy or custom, proof
of a pattern is required, as Tuttle makes clear.
70
Furthermore, in order to show such a pattern, Brown
must prove not merely that the weight of Pittsburgh’s
enforcement of the Ordinance has tended to fall more heavily on
those who advocate one viewpoint (e.g., a pro-life view) than on
those who advocate another (e.g., a pro-choice view); Brown
must also prove that such enforcement occurred because of the
viewpoint expressed. That is, Brown must show an intent to
discriminate on the basis of viewpoint. See McGuire II, 386
F.3d at 63. This requirement follows from Ward’s statement
that “[a] regulation that serves purposes unrelated to the content
of expression is deemed neutral, even if it has an incidental
effect on some speakers or messages but not others.” Ward, 491
U.S. at 791. If advocates of a particular viewpoint happen to
engage in certain proscribed conduct more than those who
espouse other views, then the law restricting that conduct will
have the effect of discriminating between different viewpoints.
But a differential effect is, in itself, no constitutional vice, as
long as the purpose of the law is viewpoint-neutral. See
Madsen, 512 U.S. at 763 (“That petitioners all share the same
viewpoint regarding abortion does not in itself demonstrate that
some invidious content- or viewpoint-based purpose motivated
the issuance of the order. It suggests only that those in the

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71
group whose conduct violated the court’s order happen to share
the same opinion regarding abortions being performed at the
clinic.”).
If a law is not unconstitutionally viewpoint- or content-
based on its face simply because it is especially likely to affect
advocates of a particular viewpoint, then the acts of police
officers enforcing the law cannot be unconstitutionally
viewpoint- or content-based simply because they primarily
affect exponents of that view. On the as-applied level, too,
differential impact alone is not sufficient evidence of
unconstitutional viewpoint discrimination. “If we require
invidious legislative intent to make this kind of otherwise
content-neutral statute content or viewpoint discriminatory, then
there seems no reason why we should not require invidious
intent by the enforcers to take this statute outside of the category
of content-neutrality now.” McGuire II, 386 F.3d at 63. Indeed,
to hold otherwise would create an anomaly in which faithful
enforcement of a regulation whose burdens fall incidentally on
a particular viewpoint would be unconstitutionally
discriminatory, even though the regulation itself was valid on its
face.
Our analysis yields the following conclusion: in order to
establish municipal liability for selective enforcement of a
facially viewpoint- and content-neutral regulation, a plaintiff
whose evidence consists solely of the incidents of enforcement
themselves must establish a pattern of enforcement activity

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The District Court formulated the legal standard correctly:38
“In order to prevail, Brown must show that the Defendant City
caused the alleged constitutional violation of which she
complains through a municipal custom, practice, or policy.
Additionally, in order to succeed on an as-applied First
Amendment viewpoint discrimination claim, some showing of
intent on the part of the government is necessary.” Brown, 543
F. Supp. 2d at 486 (internal citation omitted).
72
evincing a governmental policy or custom of intentional
discrimination on the basis of viewpoint or content.38
Brown testified about two encounters she had with
Pittsburgh police officers. On January 28, 2006, Officer
Timothy Alexander arrived at the Planned Parenthood Clinic
downtown and observed several protesters within the fifteen-
foot buffer zone; the protesters dispersed upon his arrival. A
security guard at the clinic pointed Brown out to Officer
Alexander. When Officer Alexander approached Brown, she
asked him to clarify the Ordinance’s terms. According to
Brown’s testimony, the officer said she “could not stand and do
anything within the fifteen foot spot in front of the clinic,” and
that “he didn’t want to see [Brown] chasing women down the
street.” Brown testified that there is a pornography shop located
within the one-hundred-foot bubble zone in front of the Planned
Parenthood Clinic. As Brown recalled matters, she showed
Officer Alexander some anti-pornography literature she was
carrying and asked him if she could distribute it in front of the

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73
pornography store. In Brown’s words, he replied that he “didn’t
care what [Brown] did in front of the porn shop, as long as [she]
wasn’t in front of the clinic.”
Officer Alexander’s account of this encounter was
somewhat different. He testified that he believed that the
protesters at the clinic (he did not recall speaking specifically
with Brown) showed him two different types of pamphlets and
asked him if they could pass out either one, but that he did not
pay attention to the content of the pamphlets. “I was not there
. . . to find out what the content of this information was,” he
stated, “but only to let [the protesters] know that whatever they
did they had to follow the [Ordinance’s] rules.” Officer
Alexander further explained that “it is common practice in the
[police] department that an officer would have to personally
witness a violation before he would enforce an ordinance.”
Brown, 543 F. Supp. 2d at 459.
Brown’s second encounter with a police officer occurred
in September 2006. Brown testified that, while standing outside
of the fifteen-foot buffer zone in front of a clinic in the East
Liberty neighborhood of Pittsburgh, she had tried to speak with
a woman and hand her a piece of literature, at which point a
clinic worker standing inside the buffer zone had hit Brown’s
hand away and yelled at her to back up. Brown had walked over
to a police car nearby and told an unidentified officer what had
happened, but she testified that “he told me that he could not do
anything about it because he had not seen the incident. I
explained to him, he had . . . to see the incident. He said it

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74
didn’t matter. He hadn’t seen it. He couldn’t do anything about
it.” Brown recounted that the officer did, however, “tell me that
if he saw me again going up behind women walking down the
street, that he would arrest me.”
In her testimony, Brown recalled other incidents in which
private citizens, usually clinic employees or volunteers,
allegedly violated the Ordinance by confronting Brown,
denouncing her views, and interfering with her attempts to
communicate with consenting women—all within the
Ordinance’s regulated zones. The District Court found,
however, that “the police have not witnessed these events nor
were they called to the scene.” Brown, 543 F. Supp. 2d at 461.
We agree with the District Court that “[t]his evidence
does not amount to a ‘pattern of unlawful favoritism’” in the
City’s enforcement of the Ordinance. Id. at 486. First, “[t]o the
extent that [Brown is] claiming that the statute is
unconstitutional as applied merely because private pro-choice
persons are engaging in acts that are illegal under the statute,
[her] claim has nothing to do with the [Ordinance] at all and
[she] cannot bring it because there is no state action.” McGuire
II, 386 F.3d at 60. Accordingly, Brown’s “evidence of private
activity must be linked to the state’s enforcement efforts
somehow.” Id. (citing Edmonson v. Leesville Concrete Co., 500
U.S. 614, 622–24 (1991); Lugar v. Edmonson Oil Co., 457 U.S.
922, 941–42 (1982); Flagg Bros. v. Brooks, 436 U.S. 149,
164–66 (1978)).

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Brown testified that she asked Officer Alexander “what39
[she] was able to do” within the restrictions of the Ordinance
“because [she] didn’t want to get in any trouble.” According to
Brown,
Multiple times [Officer Alexander] enforced the
ordinance against me. He told me I could not
stand and do anything within the fifteen foot spot
in front of the clinic, that I must always obey a
uniformed officer, including the security guard.
That he didn’t want to see me chasing women
down the street. That I could do anything I
wanted to do in front of the pornography shop,
because I showed him the literature I was passing
out, both the abortion-related and the
pornography-related. He told me he didn’t care
what I did down in front of the porn shop, as long
as I wasn’t in front of the clinic.
75
Brown’s two encounters with police satisfy the state-
action requirement, but they do not manifest discriminatory
enforcement of the Ordinance, let alone discriminatory
enforcement attributable to a municipal policy or custom.
Officer Alexander explicitly testified that he did not care about
the content of the literature distributed by protesters; regardless
of subject matter or viewpoint, any advocacy activity within the
prescribed zones had to conform to the Ordinance’s restrictions.
Even if we relied solely on Brown’s account of this encounter,
we would still find no evidence of content-based enforcement.39

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We assume, without deciding, that this conduct by the clinic40
escort violated the Ordinance. But cf. McGuire II, 386 F.3d at
64 (considering evidence “that some escorts tell patients that
they do not have to listen to the [protesters] . . . that some
escorts have tried to drown out the words of the plaintiffs . . .
[and] that some escorts have taken anti-abortion leaflets out of
the hands of patients,” but concluding that “[t]here is no
evidence that patients did not consent to almost all of the takings
of these leaflets” and that “[n]one of these three kinds of acts is
76
Brown stated that Officer Alexander said she could distribute
literature in front of the pornography shop, which is within the
one-hundred-foot bubble zone, but the Ordinance allows for the
distribution of any kind of literature in that zone, as long as
purveyors do not approach within eight feet of unwilling
passersby. It is only within the fifteen-foot buffer zone
immediately in front of clinic entrances that the distribution of
literature is absolutely prohibited. Even on Brown’s own
account, then, the evidence does not show that Officer
Alexander made a distinction on the basis of the content of the
message. It shows only that he distinguished, appropriately,
between the locations at which the leafletting occurred.
The September 2006 incident also fails to display an
intent to discriminate on the basis of content or viewpoint.
Although Brown claims that a clinic escort within the buffer
zone violated the Ordinance by yelling at her to back up and
hitting her hand away, the unidentified officer to whom she40

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self-evidently a violation of the statute as interpreted by the
Attorney General”).
Although we adjudicated the merits of Brown’s facial41
challenge, we do not do so with respect to her selective
enforcement claim. Because a district court’s factfinding in a
preliminary injunction proceeding does not preclude further
factual development during subsequent proceedings on the
merits, because Brown’s selective enforcement claim is more
fact-intensive than her facial challenge, and because of the
special solicitude courts show to First Amendment interests, we
77
reported this event replied that he did not see it. But even if he
had seen the escort’s conduct, and even if we assume—in the
absence of any record evidence—that the officer failed to
enforce the Ordinance against the escort because of the escort’s
viewpoint, Brown would still need to show that the officer’s
inaction was the product of an unlawfully discriminatory
governmental policy or custom. Here, the evidence before the
District Court fell well short of that mark. As noted, one
enforcement incident cannot meet the burden of proof imposed
by Monell. And even if we assess the encounter with Officer
Alexander in the light most favorable to Brown, we find no
basis for inferring that the City has a policy or custom of
enforcing the Ordinance based on the content of the speech or
the viewpoint of the speaker. On the record before us, Brown
has failed to substantiate her claim of unlawfully discriminatory
enforcement.41

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believe Brown is entitled to a further opportunity to develop the
factual basis of her claim. See St. Thomas-St. John Hotel &
Tourism Ass’n Inc. v. Gov’t of the U.S. Virgin Islands, 357 F.3d
297, 301 (3d Cir. 2004) (noting that because “a preliminary
injunction is customarily granted on the basis of procedures that
are less formal and evidence that is less complete than in a trial
on the merits,” the standard rule is that “the findings of fact and
conclusions of law made by a court granting a preliminary
injunction are not binding at trial on the merits” (quoting Univ.
of Texas v. Camenisch, 451 U.S. 390, 395 (1981)); Griffin v.
Box, 910 F.2d 255, 263 (5th Cir. 1990) (stating that an appellate
opinion “which only disposes of the issues on [a] temporary or
preliminary injunction[] is not intended to foretell the district
court’s final determination after a full ventilation of the facts”).
78
3.
To establish entitlement to a preliminary injunction,
the moving party must demonstrate that each of
the following factors favors the requested relief:
(1) the likelihood that the moving party will
succeed on the merits; (2) the extent to which the
moving party will suffer irreparable harm without
injunctive relief; (3) the extent to which the
nonmoving party will suffer irreparable harm if
the injunction is issued; and (4) the public
interest.

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The District Court denied the City’s motion to dismiss42
insofar as it sought the dismissal of Mayor Luke Ravenstahl and
the Pittsburgh City Council as parties. This aspect of the
District Court’s order is not before us.
79
McNeil Nutritionals, LLC v. Heartland Sweeteners, LLC, 511
F.3d 350, 356–57 (3d Cir. 2007). Because we have determined
that Brown has not demonstrated a likelihood of success with
respect to her claim of selective enforcement, we will affirm that
aspect of the District Court’s order. For the reasons given
above, however, we will vacate the denial of the preliminary
injunction with respect to Brown’s claim that the Ordinance is
unconstitutional as applied to specific clinic sites.
III.
In addition to appealing the District Court’s denial of
preliminary injunctive relief, Brown also appeals from the
court’s order dismissing several of her claims. Specifically, the
court dismissed Brown’s freedom of the press and due process
claims under the Federal Constitution, as well as her claims
under the Pennsylvania Constitution, and her claim under the
Pennsylvania Religious Freedom Protection Act. The City did42
not seek dismissal of Brown’s claims under the Freedom of
Speech Clause, Free Exercise Clause, or Equal Protection
Clause of the Federal Constitution, and the District Court’s
opinion therefore left these claims undisturbed. The District
Court’s decision to partially dismiss Brown’s Complaint was
based entirely on the analysis in its preliminary injunction

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Under Federal Rule of Civil Procedure 54(b), a district43
court “may direct entry of a final judgment as to one or more,
but fewer than all, claims” and thus convert a partial dismissal
into an appealable final order, but the District Court here did not
do so.
80
opinion. Brown contends this was error because the standard
for deciding a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6) is different from the standard for deciding a
motion for preliminary injunctive relief.
Ordinarily, we do not have appellate jurisdiction over an
order dismissing only some of the claims in a case because 28
U.S.C. § 1291’s rule of finality requires that a district court
judgment be “final as to all claims” in order to be appealable.
Mellon Bank, N.A. v. Metro Commc’ns, Inc., 945 F.2d 635, 640
(3d Cir. 1991) (citing Andrews v. United States, 373 U.S. 334,
340 (1963)). Brown, however, argues that our review of the43
dismissal order is authorized by the doctrine of pendent
appellate jurisdiction. This doctrine, “in its broadest
formulation, allows an appellate court in its discretion to
exercise jurisdiction over issues that are not independently
appealable but that are intertwined with issues over which the
appellate court properly and independently exercises its
jurisdiction.” E.I. Dupont de Nemours & Co. v. Rhone Poulence
Fiber & Resin Intermediates, S.A.S., 269 F.3d 187, 202–03 (3d
Cir. 2001). The Supreme Court has admonished courts to
construe the doctrine narrowly, but it has not defined the

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81
contours of pendent appellate jurisdiction with precision. See
Swint v. Chambers County Comm’n, 514 U.S. 35, 43–51 (1995).
“[W]e have defined pendent appellate jurisdiction to mirror the
Supreme Court’s two examples: inextricably intertwined orders
or review of the non-appealable order where it is necessary to
ensure meaningful review of the appealable order.” E.I.
Dupont, 269 F.3d at 203.
Here, it is not the case that review of the non-appealable
partial dismissal order is necessary to ensure meaningful review
of the appealable order denying a preliminary injunction.
Rather, the converse is true—because the District Court rested
its analysis of the motion to dismiss on its preliminary injunction
opinion, meaningful review of the non-appealable order
necessitates review of the appealable order. Accordingly, if
pendent appellate jurisdiction exists, it must be because the two
orders are “inextricably intertwined.”
Whether the two orders are “inextricably intertwined” is
a difficult question, but we need not resolve it. Assuming
arguendo that we can exercise pendent appellate jurisdiction
over the partial dismissal order, we decline to do so here. See
Am. Soc’y for Testing & Materials v. Corrpro Cos., 478 F.3d
557, 580 (3d Cir. 2007) (noting that exercise of pendent
appellate jurisdiction is “discretionary”); McMahon v.
Presidential Airways, Inc., 502 F.3d 1331, 1357 (11th Cir. 2007)
(stating that “[e]ven if the order [in question] is inextricably
intertwined [with an issue properly before the court on
interlocutory appeal], we have discretion to deny an appeal that

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82
has no other jurisdictional basis”); Brotherton v. Cleveland, 173
F.3d 552, 568 (6th Cir. 1999) (“[W]e decline to exercise
whatever discretionary pendent appellate jurisdiction we may
have.”). We see no compelling reason to review the partial
dismissal at this time, especially since it did not dispose of
Brown’s primary claim under the Free Speech Clause of the
First Amendment. Of course, because the District Court has not
yet entered a final judgment, it is free to reconsider its dismissal
order during subsequent proceedings, whether based on the
reasoning in this opinion or on any other argument Brown may
offer. See Fed. R. Civ. P. 54(b) (explaining that “any order or
other decision, however designated, that adjudicates fewer than
all the claims or the rights and liabilities of fewer than all the
parties . . . may be revised at any time before the entry of a
[final] judgment”).
IV.
For the foregoing reasons, we will reverse the denial of
preliminary injunctive relief with respect to Brown’s facial
challenge. Reaching the merits, we hold that the combination of
the Ordinance’s buffer and bubble zones is invalid but that
either zone, individually, is valid on its face. We will affirm the
District Court’s denial of preliminary injunctive relief with
respect to Brown’s claim of selective enforcement, and vacate
it with respect to her claim that the Ordinance is unconstitutional
as applied to particular clinic locations. We will dismiss
Brown’s appeal from the District Court’s order partially

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83
dismissing her Complaint. And we will remand for appropriate
further proceedings.

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