Jeryl Turco v. City of Englewood
935 F.3d 155 (2019)
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Rule of Law:
The constitutionality of a content-neutral buffer zone ordinance under intermediate scrutiny cannot be decided on summary judgment when there are genuine issues of material fact regarding the ordinance's burden on speech and whether the government considered and reasonably rejected less restrictive alternatives.
Facts:
- In late 2013, aggressive and intimidating anti-abortion protestors associated with the Bread of Life ministry began gathering outside Metropolitan Medical Associates (MMA), a health clinic in Englewood, New Jersey.
- These protestors engaged in loud and harassing behavior toward patients and their companions.
- Jeryl Turco, a self-described 'sidewalk counselor,' also frequented the area to engage in what she described as calm, nonconfrontational communication with women entering the clinic, offering them literature and rosaries.
- Before passing an ordinance, the City of Englewood increased police patrols and officers created informal 'no go zones' on-site, but these measures were only temporarily effective, with problems resuming after officers left.
- In March 2014, the City of Englewood enacted an ordinance creating an eight-foot buffer zone around the entrances, exits, and driveways of all health care and transitional facilities during business hours.
- The ordinance prohibited individuals from knowingly remaining in the marked zone, with exceptions for people entering or leaving the facility, employees, and law enforcement.
- Turco believed the ordinance hampered her ability to effectively conduct her peaceful sidewalk counseling.
Procedural Posture:
- Jeryl Turco filed a lawsuit against the City of Englewood in the U.S. District Court for the District of New Jersey.
- Turco alleged the city's ordinance creating an eight-foot buffer zone around health clinics violated her First Amendment rights.
- Turco sought a declaratory judgment that the ordinance was unconstitutional and an injunction to prevent its enforcement.
- Following discovery, both Turco and the City of Englewood filed cross-motions for summary judgment.
- The District Court granted summary judgment in favor of Turco, holding that the ordinance was not narrowly tailored and was overbroad.
- The City of Englewood, as the losing party, appealed the District Court's decision to the U.S. Court of Appeals for the Third Circuit.
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Issue:
Does a city ordinance that creates an eight-foot buffer zone around health care and transitional facilities violate the First Amendment by not being narrowly tailored to serve a significant government interest, where there are disputed facts regarding the burden on speech and the availability of less restrictive alternatives?
Opinions:
Majority - McKee, Circuit Judge
Undetermined at this stage. The constitutionality of the ordinance cannot be decided on summary judgment because genuine issues of material fact exist regarding whether the ordinance is narrowly tailored. To survive intermediate scrutiny, a content-neutral speech restriction must be narrowly tailored to serve a significant government interest, meaning it must not burden substantially more speech than necessary. The court found that, unlike the record in McCullen v. Coakley which involved a 35-foot zone, this case presents contradictory evidence about the actual burden the eight-foot zone imposes on speech, as some counselors testified they could still effectively communicate. Furthermore, the City of Englewood presented evidence that it considered and attempted less restrictive alternatives, such as increased police presence, but found them to be ineffective or infeasible due to manpower limitations and the fear of retaliation that prevented victims from filing complaints. Citing Hill v. Colorado, which upheld a similar eight-foot zone, the court concluded that these disputed facts must be resolved at trial.
Analysis:
This decision reinforces that the 'narrowly tailored' analysis for content-neutral speech restrictions is a highly fact-intensive inquiry. It distinguishes the Supreme Court's holding in McCullen, clarifying that smaller buffer zones (like 8 feet) are not per se unconstitutional and that the government's evidence of trying less restrictive alternatives must be genuinely considered. The ruling cautions lower courts against granting summary judgment in such First Amendment cases when the factual record is contested, thereby ensuring that municipalities have the opportunity to prove at trial that a buffer zone was a necessary and proportional response to public safety concerns. It solidifies the principle that the specific context and evidentiary record are paramount in determining a buffer zone's constitutionality.
