No. in the Supreme Court of the United States Colleen
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NO. IN THE SUPREME COURT OF THE UNITED STATES COLLEEN REILLY and BECKY BITER, Petitioners v. CITY OF HARRISBURG, HARRISBURG CITY COUNCIL, and ERIC PAPENFUSE, in his official capacity as Mayor of Harrisburg, Respondents On Petition for Writ of Certiorari to the United States Court of Appeals for the Third Circuit PETITION FOR WRIT OF CERTIORARI Mathew D. Staver, (Counsel of Record) Anita L. Staver Horatio G. Mihet Roger K. Gannam Daniel J. Schmid Liberty Counsel P.O. Box 540774 Orlando, FL 32854 (407) 875-1776 [email protected] Counsel for Petitioners i QUESTIONS PRESENTED 1. Whether this Court’s holding in Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015), that laws restricting speech on the basis of its function or purpose are facially content-based, overruled and replaced this Court’s previous test for content neutrality set forth in Hill v. Colorado, 530 U.S. 703 (2000). 2. Whether an Article III court’s use of the doctrine of constitutional avoidance to impose a narrowing construction on a content-based regulation of protected speech that is contrary to the law’s plain text and the government’s construction, enforcement, and defense conflicts with this Court’s binding precedents in United States v. Stevens, 559 U.S. 460, 481 (2010), and Reno v. ACLU, 521 U.S. 844, 884 (1997). 3. Whether this Court’s holding in McCullen v. Coakley, 573 U.S. 464, 494 (2014), that the government must demonstrate it seriously undertook to address alleged problems with protected speech by less restrictive tools readily available to it, requires that the government show, with a meaningful record, that other less restrictive alternatives were tried and failed or that such alternatives were closely examined and ruled out for good reason, as stated in Bruni v. City of Pittsburgh, 824 F.3d 353 (3d Cir. 2016) [hereinafter Bruni I]. ii PARTIES Petitioners are Colleen Reilly and Becky Biter. Respondents are the City of Harrisburg, Harrisburg City Council, and Eric Papenfuse, in his official capacity as Mayor of Harrisburg. (Respondents are collectively referred to herein as “Harrisburg” or the “City.”) CORPORATE DISCLOSURE STATEMENT Petitioners are individual residents of the Commonwealth of Pennsylvania. Neither Petitioner has a parent corporation nor a publicly held stock owner. DIRECTLY RELATED PROCEEDINGS COLLEEN REILLY; BECKY BITER; ROSALIE GROSS v. CITY OF HARRISBURG; HARRISBURG CITY COUNSEL; MAYOR ERIC PAPENFUSE, in his official capacity as Mayor of Harrisburg; Colleen Reilly; Becky Biter, Appellants, No. 18-2884 (3d Cir. Judgment Oct. 23, 2019) COLLEEN REILLY; BECKY BITER; ROSALIE GROSS v. CITY OF HARRISBURG; HARRISBURG CITY COUNSEL; MAYOR ERIC PAPENFUSE, in his official capacity as Mayor of Harrisburg; Colleen Reilly; Becky Biter, Appellants, No. 16-3722 (3d Cir. Judgment May 25, 2017) iii COLLEEN REILLY, BECKY BITER, and ROSALIE GROSS, Plaintiffs v. CITY OF HARRISBURG, HARRISBURG CITY COUNCIL, and ERIC PAPENFUSE, in his official capacity as Mayor of Harrisburg, Defendants, No. 1:16-CV-0510 (pending in M.D. Pa.; Order denying Petitioners’ motion for preliminary injunction Aug. 23, 2018) iv TABLE OF CONTENTS QUESTIONS PRESENTED ..................................... i PARTIES .................................................................. ii CORPORATE DISCLOSURE STATEMENT ......... ii DIRECTLY RELATED PROCEEDINGS ................ ii TABLE OF CONTENTS ......................................... iv TABLE OF CITED AUTHORITIES .........................x DECISIONS BELOW .............................................. 1 JURISDICTION ....................................................... 1 RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS ................................... 1 STATEMENT OF THE CASE ................................. 2 REASONS FOR GRANTING THE PETITION ...... 7 THE THIRD CIRCUIT’S DECISION CONFLICTS WITH THIS COURT’S PRECEDENT ON A QUESTION OF EXCEPTIONAL IMPORTANCE CONCERNING WHETHER A LAW RESTRICTING SPEECH IS CONTENT BASED. .......................................................... 7 This Court’s Decisions in Reed v. Town of Gilbert and McCullen v. Coakley Expanded the Category of Content-Based Laws and Overruled v or Replaced the Holding in Hill v. Colorado Regarding Whether a Law Is Content Based or Content Neutral. ............................................... 8 Hill held that laws may be content neutral even if they require government to review the content of the speech. ........ 8 Reed adopted a more exacting standard than Hill and overruled or replaced Hill by holding that laws are facially content based if they cannot be justified without reference to the content of the regulated speech. ................... 10 The Third Circuit’s Decision Below Conflicts With Reed by Relying on the Overruled or Replaced Portions of Hill’s Content-Neutrality Analysis. ............................................ 13 THE THIRD CIRCUIT’S DECISION CONFLICTS WITH THIS COURT’S PRECEDENTS AND THE PRECEDENTS OF EVERY OTHER CIRCUIT ON A QUESTION OF EXCEPTIONAL IMPORTANCE CONCERNING WHETHER AN ARTICLE III COURT MAY IMPOSE A NARROWING CONSTRUCTION ON A LAW THAT IS CONTRARY TO THE PLAIN TEXT AND vi THE GOVERNMENT’S CONSTRUCTION, ENFORCEMENT, AND DEFENSE OF THE LAW. ................. 16 This Court’s Precedents Establish That Article III Courts Are Not Empowered to Rewrite a Law to Conform It to the Requirements of the First Amendment. ...................... 17 The Circuit Courts Have Universally Held That Article III Courts Are Not Empowered to Rewrite a Law to Save It From Constitutional Condemnation Under the First Amendment. ........... 19 The Third Circuit’s Decision Below Conflicts With This Court’s Precedents and the Precedents of Every Circuit..................................... 21 THE THIRD CIRCUIT’S DECISION CONFLICTS WITH THIS COURT’S PRECEDENT ON A QUESTION OF EXCEPTIONAL IMPORTANCE CONCERNING WHETHER THE GOVERNMENT MUST DEMONSTRATE WITH A MEANINGFUL RECORD THAT LESS RESTRICTIVE ALTERNATIVES WERE INSUFFICIENT. ............................. 28 This Court’s Precedent in McCullen Unequivocally Holds That the Government May Not Rely on Its vii Simple, Unproven Assertion That Less Restrictive Alternatives Are Insufficient. ....................................... 28 This Court held that it is not enough for the government “simply to say that other approaches have not worked.” .................................. 29 McCullen mandates that the government demonstrate it seriously undertook to address the alleged problem with less intrusive tools or considered methods that other jurisdictions have found effective. ....................... 30 The Third Circuit’s Bruni I Decision Determined McCullen Requires a Meaningful Record That Less Restrictive Alternatives Were Tried and Failed or Were Closely Examined and Ruled out for Good Reason. .............................................. 31 The Third Circuit’s Decision Below Conflicts With This Court’s Precedent. ......................................... 33 CONCLUSION ....................................................... 35 APPENDIX ............................................................. 1a viii OPINION OF THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT AFFIRMING DENIAL OF PETITIONERS’ MOTION FOR PRELIMINARY INJUNCTION AGAINST HARRISBURG BUFFER ZONE ORDINANCE, FILED OCTOBER 23, 2019 (Reilly II) ........................................................... 1a OPINION OF THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA DENYING PETITIONERS’ MOTION FOR PRELIMINARY INJUNCTION AGAINST HARRISBURG BUFFER ZONE ORDINANCE, FILED AUGUST 23, 2018 ..... 22a OPINION OF THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT IN BRUNI v. CITY OF PITTSBURGH AFFIRMING SUMMARY JUDGMENT AGAINST CHALLENGE TO PITTSBURGH BUFFER ZONE ORDINANCE, FILED OCTOBER 18, 2019 (Bruni II) ......................................................... 69a ORDER OF THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT DENYING PETITION FOR REHEARING, FILED DECEMBER 3, 2019 ................................................................114a CITY OF HARRISBURG CODE CHAPTER 3-371. INTERFERENCE WITH ACCESS TO HEALTHCARE FACILITIES, ix CODIFYING CITY OF HARRISBURG ORDINANCE NO. 12-2012, FILED MARCH 24, 2016 ...........................................116a EXCERPTS FROM DEPOSITION TESTIMONY OF CITY OF HARRISBURG POLICE CAPTAIN DERIC MOODY, FILED OCTOBER 28, 2017 ..........................119a EXCERPTS FROM TRANSCRIPT OF ORAL ARGUMENT IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ON MARCH 21, 2017, FILED OCTOBER 28, 2017 ..........................121a EXCERPTS FROM HARRISBURG POLICE DISPATCH INCIDENT REPORT DATED JULY 2, 2014, FILED OCTOBER 28, 2017 ..........................................................124a EXCERPTS FROM TRANSCRIPT OF PRELIMINARY INJUNCTION HEARING IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA ON OCTOBER 31 AND NOVEMBER 1, 2017, FILED NOVEMBER 21, 2017 ...................................125a x TABLE OF CITED AUTHORITIES Cases Al Bahlul v. United States, 767 F.3d 1 (D.C. Cir. 2014) .................................................................. 20 Am. Booksellers v. Webb, 919 F.2d 1493 (11th Cir. 1990) ........................................................... 20 Bell v. Keating, 697 F.3d 445 (7th Cir. 2012) ........ 20 Bruni v. City of Pittsburgh, 824 F.3d 353 (3d Cir. 2016) [Bruni I] .................................... i,31,32 Bruni v. City of Pittsburgh, No. 18-1084, 2019 WL 5281050 (3d Cir. Oct. 18, 2019) [Bruni II] ........................... 6,12,13,15,22,23,24,27