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11th Cir. Upholds Protest Buffer Law While SCOTUS Considers Same

By William Peacock, Esq. on March 28, 2014 | Last updated on March 21, 2019

Two cases. Both involve abortion protests. Both have time/place/manner restrictions via a buffer zone, keeping protestors away from their intended location. One law, content-neutral, survives. The other? We'll see.

Therein lies the lesson, municipalities -- mask your ordinances in content-neutral draperies, and they're far more likely to survive.

11th Circuit

Protestors were picketing a Planned Parenthood official's home. The City of Winter Park responded with this gem of an ordinance [PDF}:

"It shall be unlawful for any person or persons to picket, protest or conduct any picketing or protesting activity within a buffer area of 50 feet from the property line of any dwelling unit in the City of Winter Park. It shall also be unlawful for any person or persons to picket, protest or conduct any picketing or protesting activity in any park, public street, public right-of-way, or on a sidewalk, where such activity impedes or interferes with the rights of others to travel on or in such areas in a safe manner, consistent with the traditional pedestrian, bicycle or motor vehicle use of such areas"

Notice the lack of the word "abortion" or any other message-specific content there. The Eleventh Circuit panel made quick work of the challenge to the ordinance, stating that the ordinance "is nearly on all fours with Frisby, and we thus hold that the it [sic] is similarly facially constitutional."

All fours with Frisby. Is that a dog pun?

Frisby v. Schultz was a Supreme Court case which upheld an ordinace that prohibited picketing a particular residence (the picketers were coincidentally pro life in that case as well) because the ordinance at issue "[t]he type of picketers banned by the ... ordinance generally do not seek to disseminate a message to the general public, but to intrude upon the targeted resident, and to do so in an especially offensive way," and because the picketers were free to proselytize elsewhere, through marches, door-to-door speeches, and literature distribution.

It wasn't all good news for the city, however. A separate "no loitering" ordinance, which allows private citizens to call the police to remove loiterers, was held to "grant[] private citizens unbridled discretion to invoke the City's power to regulate speech in public for a abutting private residences," and was therefore facially unconstitutional. 

Supreme Court

The timing on the Eleventh Circuit case is interesting, as is the subject matter, but it's a different ordinance than the one the Court will deal with this term.

In McCullen v. Coakley, the plaintiffs challenged a Massachusetts law that provided a buffer zone specifically protecting reproductive clinics, not an ordinance protecting residences. It was actually a surprise to some that the Court actually took the case, considering it had twice previously upheld similar protest buffer zones around abortion clinics, each time calling the statutes "content neutral" and pointing out that alternative channels of communication were available.

Despite the statutes' differences, they have two things in common: both were meant to deter the speech of abortion protestors and both were, at least on their face, content-neutral.

[Insert adage about skinning cats.]

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