Federal court denies injunction against enforcement of Harrisburg buffer zone

By Kathleen McGuire Gilbert | Oct 11, 2016

HARRISBURG, Pa. - A Pennsylvania federal court recently denied a preliminary injunction in Reilly v. City of Harrisburg, a case in which the plaintiffs have challenged a Harrisburg ordinance establishing a buffer zone around health care facilities.

The buffer zone ordinance established a 20-foot zone in which individuals may not congregate, patrol, picket or demonstrate. Such zones are typically created around clinics offering abortion services to ensure patient access.

In the 2014 U.S. Supreme Court case McCullen v. Coakley, the court ruled on a similar buffer zone case. A Massachusetts law established a 35-foot buffer zone around “reproductive health care facilities” -- basically non-hospital-based clinics offering abortion services.

“There is a fair rationale for that type of law,” Brian Connolly, an associate with the legal firm Otten Johnson Robinson Neff & Ragonetti, told the Pennsylvania Record.

“The law was enacted to allow safe access for women who were seeking services, but it’s also a matter of providing safe passage along the sidewalk.”

The government is permitted to restrict the time, place or manner of free speech as long as the restrictions pass a two-prong test: under “strict scrutiny,” they must be content-neutral and under intermediate scrutiny. Content-neutral restrictions must also be narrowly tailored to serve a significant governmental interest.

Although the restriction on speech is not required to be the least restrictive means available, it must allow for “ample alternative channels for communication,” court documents state.

Connolly said there was some dispute among the Supreme Court justices in McCullen on the question of content neutrality. If the buffer zone is prohibiting abortion protesters from entering the zone but allowing employees to enter, it could be argued that it is functionally restricting anti-abortion speech. The Supreme Court ultimately found that the restrictions were not related to the content of the speech.

In the Harrisburg case, the district court, citing McCullen, deemed the restrictions to be content-neutral and is allowing the case to move forward to determine whether the law meets the narrow tailoring requirement. The court denied the preliminary injunction because the plaintiff did not demonstrate a high likelihood of success.

“It would seem that the plaintiff may have done a somewhat bad job of briefing the preliminary injunction," Connolly said.

In addition, the difference in the size of the buffer zone may prove to be significant in the court’s eyes.

“It’s an additional 15 feet in which people who want to engage in free speech and expression activities will be able to engage in those activities… That could be material,” Connolly said. However, the case is still in its early stages, he noted.

Cases like Reilly, at the district court level, likely will put the spotlight on the question of narrow tailoring.

“We’re seeing district courts having to grapple with this notion that they need to weigh evidence put forth by the government as to why the government chose that particular means of regulating the speech in question,” Connolly said.

The district court also ruled to dismiss several motions in the case: the claim that the buffer zone ordinance is unconstitutionally vague, the claim that it is a prior restraint, the selective enforcement claim, the substantive due process and equal protection claims, the free exercise claim and claims against the Harrisburg City Council and Mayor Eric Papenfuse.

In addition to moving forward with the narrow tailoring test, the court will consider the plaintiff’s claim that the ordinance is overly broad.

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