BRUNI v. CITY OF PITTSBURGH PENNSYLVANIA (2021)

The petition for a writ of certiorari is denied.

The city of Pittsburgh, like many jurisdictions, has created “buffer zones” around abortion clinics. These zones often impose serious limits on free speech. Many even prohibit certain one-on-one conversations. In 2000, we upheld one such law, determining that it survived under the First Amendment because it satisfied intermediate scrutiny. Hill v. Colorado, 530 U.S. 703, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000). Our use of intermediate scrutiny there, however, “is incompatible with current First Amendment doctrine as explained in Reed [v. Town of Gilbert, 576 U.S. 155, 135 S.Ct. 2218, 192 L.Ed.2d 236 (2015)] and McCullen [v. Coakley, 573 U.S. 464, 134 S.Ct. 2518, 189 L.Ed.2d 502 (2014)].” Price v. Chicago, 915 F.3d 1107, 1117 (CA7 2019). For example, these more recent decisions establish that strict scrutiny is the proper standard of review when a law targets a “specific subject matter ․ even if it does not discriminate among viewpoints within that subject matter.” Reed, 576 U.S. at 169, 135 S.Ct. 2218.

I agree with the Court's decision not to take up this case because it involves unclear, preliminary questions about the proper interpretation of state law. But the Court should take up this issue in an appropriate case to resolve the glaring tension in our precedents.