Sabelko v. City of Phoenix

SCHROEDER, Circuit Judge: In response to rising protest around abortion clinics in Phoenix, Arizona, the City Council in November of 1993 passed an ordinance regulating the conduct of demonstrators in public areas within 100 feet of health care facilities. Known as the Phoenix “bubble” ordinance, the law makes illegal a demonstrator’s failure to honor a person’s “clearly communicated request” to withdraw to a distance of eight feet from the person if the demonstrator is in a public area within 100 feet of a health care facility.1 Six days after Phoenix enacted the ordinance, plaintiffs Katherine Sabelko and Nancy Barto filed suit in federal court pursuant to 42 U.S.C. § 1983 seeking declaratory and injunctive relief against the City on the ground that the ordinance violated their First Amendment rights. The plaintiffs describe themselves as antiabortion sidewalk counselors who distribute literature in front of Phoenix clinics and attempt to engage others in peaceful conversation about alternatives to abortion. The district court granted the injunction and the city now appeals. Appearing amici [1171] curiae in this action in support of the City are Planned Parenthood of Central and Northern Arizona, Inc. and the City of San Jose writing on behalf of 32 other California cities. In support of the plaintiffs-appellees is amicus Arizona Civil Liberties Union (AzCLU). The District Court Decision The district court’s preliminary injunction preventing enforcement of the ordinance rested upon no disputed issues of fact. The district court ruled as a matter of law that the ordinance violates the First Amendment, and all issues on appeal to this court are presented for our de novo review. The district court ruled the ordinance unconstitutional on four principal grounds which we summarize as follows: 1. Because the ordinance regulates “protest,” but not supportive speech, and because it gives private citizens the authority to silence speech, the district court ruled that it was viewpoint discriminatory.2 2. The court ruled the ordinance over-broad because, in the district court’s view, it effectively bans handbilling within the 100-foot area. 3. Ruling the ordinance vague, the district court found insufficiently clear meaning in the phrases “clearly communicated request” to withdraw and “demonstration activity.” 4. Finally, the district court rejected any analogy between the privacy interest infringed by demonstration activity targeting a home, as recognized in Frisby v. Schultz, 487 U.S. 474, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988), and that affected by activity targeting a health care facility. The district court held that the principles applicable to free speech in a public forum as enunciated in Perry Education Ass’n. v. Perry Local Educators’ Ass’n., 460 U.S. 37, 45, 103 S.Ct. 948, 955, 74 L.Ed.2d 794 (1983), control demonstration activity outside health care facilities. The Madsen Decision The district court’s injunction was entered on February 11,1994. The Supreme Court’s subsequent decision in Madsen v. Women’s Health Center, Inc., — U.S. -, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994), guides our review and controls our opinion today. In Madsen, the Supreme Court considered the validity under the First Amendment of a Florida state court injunction against named individual antiabortion protesters and persons acting in concert with them. The Court upheld the establishment of a 36-foot “buffer zone” around an abortion clinic in Melbourne, Florida. Within the buffer zone, the defendants were prohibited from demonstration activity of virtually any kind. The Supreme Court ruled that the injunction was content neutral despite the fact that it targeted only abortion protesters. We can find no basis for holding the Phoenix ordinance less content neutral than the Florida injunction. That injunction prohibited the defendants from “congregating, picketing, patrolling, demonstrating or entering” within 36 feet of the clinic. Quoting Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 2753-54, 105 L.Ed.2d 661 (1989), the Court held that the “principal inquiry in determining content neutrality is whether the government has adopted a regulation of speech “without reference to the content of the regulated speech.’ ” Madsen — U.S. at -, 114 S.Ct. at 2523. The Florida injunction passed this test, the Supreme Court said, because “none of the restrictions ... were directed to the contents of th[e] petitioner’s message.” Id. The Phoenix ordinance, like the Florida injunction, makes no reference to the content of the speech it purports to regulate. The Supreme Court’s ruling in Madsen thus fore [1172] closes the plaintiffs’ contention that the Phoenix ordinance is viewpoint based.3 In Madsen, the Court announced that an injunction is subject to more rigorous scrutiny than is a generally applicable ordinance. To survive appellate review, the injunction must burden “no more speech than necessary to serve a significant government interest.” Madsen, — U.S. at -, 114 S.Ct. at 2525 (citing NAACP v. Claiborne Hardware Co., 458 U.S. 886, 916, 102 S.Ct. 3409, 3427, 73 L.Ed.2d 1215 (1982)). The Court explained that the standard is more lenient in cases such as this where we review an ordinance of general applicability. See Madsen — U.S. at -, 114 S.Ct. at 2524-25. In contrast to an injunction, a content neutral, time, place and manner restriction in an ordinance survives First Amendment scrutiny if it is “narrowly tailored to serve a significant governmental interest, and leave[s] open ample alternative channels of communication.” Perry, 460 U.S. at 45, 103 S.Ct. at 955 (citations omitted). The dissent urges a more stringent standard for an ordinance than an injunction. In Madsen, Justice Stevens propounded the same view but the majority expressly rejected it. Madsen at -, 114 S.Ct. at 2525. We are bound by the majority. The Court held in Madsen that the injunction survived scrutiny under the more rigorous standard because it burdened no more speech than necessary to serve significant government interests. The Court focused on several such interests that the Phoenix ordinance likewise serves. These include a woman’s right to abortion and other pregnancy-related treatment, see Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), as well as the state’s interest in public safety and order, including street and sidewalk traffic control, see Madsen, — U.S. at -, 114 S.Ct. at 2526. The Madsen Court agreed with the Florida Supreme Court that “the state’s strong interest in residential privacy, acknowledged in Frisby v. Schultz, 487 U.S. 474, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988), applied by analogy to medical privacy,” Madsen at -, 114 S.Ct. at 2526. The Court approved the Florida court’s view that just as targeted picketing of the home threatens the psychological well-being of a “captive” resident, targeted picketing of a hospital or clinic threatens the physical and psychological well-being of a patient held “captive” by medical circumstance. See id. (citing Operation Rescue v. Women’s Health Center, Inc., 626 So.2d 664, 673 (Fla.1993)). The Supreme Court’s decision in Madsen thus undermines the pillars supporting the district court’s ruling that the ordinance is unconstitutional. Under the standard announced in Madsen, the ordinance is not viewpoint discriminatory, but is content neutral. It is a time, place and manner restriction that serves several significant state interests. Under Madsen, it is not violative of the First Amendment if it is narrowly tailored to serve those interests and leaves open ample alternative means of communication. See Perry, 460 U.S. at 45, 103 S.Ct. at 955. The provisions of the ordinance challenged in this case are no more vague than those of the injunction in Madsen. Finally, the Supreme Court in Madsen expressly recognized that persons approaching a health care facility represent a “captive audience,” thus rejecting the position of the district court in this case that a public area adjacent to a health care facility must be considered, for all purposes, an open forum. Appellees’ principal contention on appeal is that the ordinance is overbroad and not sufficiently narrowly tailored. They contend that by permitting “any person” to ward off a demonstrator, the ordinance curtails too much speech. They argue that to survive [1173] scrutiny, the ordinance must permit only patients seeking health care services to terminate unwanted confrontations and face-to-face communications. The problem the city faces is that such narrowing would compromise the very privacy interests the ordinance was meant to protect. The approach appellees suggest would require a woman to identify herself as a patient seeking pregnancy-related services in order to terminate an unwanted confrontation. Moreover, by preventing the parent or partner of a young or sick patient from invoking protection on her behalf, the narrowing that appellees advocate would tend to leave exposed to the most persistent demonstrators those least capable of declining to receive their message. The appellees, amicus AzCLU and the dissent express concern about the possibility that under this ordinance, escorts or others who may have no relationship whatever to the patients may create a zone around a patient even larger than the eight feet contemplated by the ordinance. They suggest, for example, that an escort might repeatedly invoke the “bubble” while advancing toward a counselor beyond eight feet from the patient. The parties provide little basis for assessing how likely such a scenario may be. We nevertheless observe that as the distance between the escort and the patient increases, so does the ability of other counselors to approach the patient. Appellees offer no alternative provision that would adequately protect the city’s concerns and avoid the theoretical possibility that escorts might inflate the “bubble” zone the city contemplated. In support of their overbreadth position, appellees and our dissenting colleague point us to another portion of the Madsen disposition which they incorrectly assert is disposi-tive of the issues before us. The Court in Madsen struck down as overbroad a provision of the injunction that drew a line of 300 feet from the facility and barred “all uninvited approaches of persons seeking the services of the clinic regardless of how peaceful the contact may be” within that area. Madsen, — U.S. at -, 114 S.Ct. at 2529. This injunctive ban the Supreme Court termed a “consent” requirement. The Court held it burdened more speech than necessary to prevent intimidation and ensure access. The ordinance in question here has no' such bar against uninvited approaches. It permits any approach to any individual until the individual affirmatively requests a disengagement. Moreover, there is no limitation on approaches beyond a 100-foot line, whereas the Madsen line was 800 feet. Finally, once the “bubble” is invoked, communication is not prohibited or interrupted, but simply distanced to eight feet. For these reasons we hold that the ordinance is narrowly tailored to serve significant interests. For similar reasons, we conclude that it also allows ample alternative means of communication. Contrary to the claims of appellees and the dissent, there is no bar to signs, placards, or pictures. Counselors can handbill and approach anyone outside the 100-foot barrier, and anyone within the 100 feet until and unless that person objects. The First Amendment protects the right of a prospective recipient of a handbill to refuse the communication as well as the right of the prospective communicant to offer it. Martin v. Struthers, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313 (1943); Schneider v. State, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155 (1939). The JUDGMENT OF THE DISTRICT COURT IS REVERSED AND THE MATTER REMANDED WITH INSTRUCTIONS TO VACATE THE INJUNCTION. Footnotes [1] The ordinance provides: ORDINANCE NO. G3705 AN ORDINANCE AMENDING CHAPTER 23, ARTICLE 1 OF THE PHOENIX CITY CODE, BY ADDING SECTION 23-10.1, RELATING TO UNIMPEDED ACCESS TO HEALTH CARE FACILITIES; AND DECLARING AN EMERGENCY. WHEREAS, unimpeded access to health care services is critically and uniquely important to the public health, safety and welfare; and WHEREAS, persons attempting to access health care facilities are subject to harassing or intimidating activity tending to impede their access to those facilities by demonstrators approaching within extremely close proximity; and WHEREAS, such activity near health care facilities creates a “captive audience" situation where persons seeking services cannot avoid the area outside the facilities, and their physical and emotional conditions may make them especially vulnerable to the adverse physiological and emotional effects of such harassing or intimidating activities directed at them from extremely close proximity; and WHEREAS, such activity in extremely close proximity tends to undermine a person’s right to privacy and interfere with a person's right to seek legitimate health care treatment and counseling; and WHEREAS, this ordinance does not preclude all protesting, picketing, demonstrating, leafleting or educational activities near a health care facility but is a necessary time, place and manner restriction intended to reconcile and protect the First Amendment rights of demonstrators and the rights of persons using health care facilities to be free from direct confrontation, hindrance, harassment, intimidation and harm; and WHEREAS, existing law does not adequately protect such access to health care facilities; NOW THEREFORE, BE IT ORDAINED by the Council of the City of Phoenix as follows: SECTION 1. Chapter 23, Article 1, Phoenix Ci1y Code, is amended by adding section 23-10.1 to read: Sec. 23-10.1 IMPEDING ACCESS TO HEALTH CARE FACILITIES. A. It is unlawful for any person, in the course of demonstration activity within the access area of a health care facility, to fail to withdraw upon a clearly communicated request to do so to a distance of at least eight (8) feet away from any person who has made the request. B. For purposes of this section: 1. "Access area” means any portion of a public street or other public place or any place open to the public within one hundred (100) feet of an exterior wall or entryway of a health care facility. [2] The plain terms of the ordinance contradict the district court’s assertion that it restricts only certain kinds of speech. The ordinance does not limit its reach to "oral protest, education [and] counseling;” it merely lists them among the activities it regulates under the rubric of "demonstration activity,” and it states explicitly that [1172] “[£]or purposes of this section ... demonstration activity ... is not limited to" these activities. [3] Plaintiffs' contention that the ordinance improperly vests discretion in private citizens to curtail speech is likewise insupportable. The cases they cite are concerned only with discretion vested in agents of the government. Like the Colorado Court of Appeals, which recently considered an even stricter ordinance, we know of no authority “that would extend this doctrine to limit the right of a private citizen to determine whether to permit others to confront [her] concerning medical ... treatment." Hill v. City of Lakewood, No. 94CA0856, 1995 WL 411983, *4 (Colo.App.) (upholding ordinance forbidding uninvited approaches to within eight feet of a per [1173] son less than 100 feet away from entrance to a health care facility).