Yesterday, I blogged about the First Amendment Scholars’ brief (filed by Chris Paolella of Reich & Paolella LLP) supporting the cert petition I filed in Georgia Ass’n of Club Executives v. Georgia. (For my blogging about the cert petition itself, see Parts 1 and 2 here, and see also the amicus brief supporting the cert petition filed by the Foundation for Individual Rights and Expression (FIRE) and the First Amendment Lawyers Ass’n. The state’s brief is due in a month. See also this news article about the amicus briefs in Bloomberg Law.)
Today, I’ll talk about the brief filed by Secular Pro-Life, Progressive Anti-Abortion Uprising, and five law professors (Helen Alvaré of George Mason, Teresa Stanton Collett of University of St. Thomas (MN), George Dent of Case Western, Stephen Gilles of Quinnipiac, and Robert Pushaw of Pepperdine).
Thanks to Kelsey Hazzard of Secular Pro-Life and my Emory Law colleague Tom Arthur for writing and filing this brief. More generally, thanks to the organizations and people involved for recognizing that we’re all in this together: pro-life people who oppose Hill v. Colorado should support this cert petition even if they have no interest in (or are even opposed to) adult entertainment, because high-level First Amendment doctrines (like the distinction between content discrimination vs. content neutrality) are rarely hermetically sealed to particular business models! Supporting Reed v. Town of Gilbert and making it extremely hard for the government to discriminate in regulation and taxation pays dividends across the board, whether you support nude dancing or anti-abortion counseling.
Here’s the text of the (interesting parts of the) brief:
Interest of Amici Curiae
Secular Pro-Life is a not-for-profit organization whose mission is to advance secular arguments against abortion; create space for atheists, agnostics, and other secularists interested in anti-abortion work; and build interfaith coalitions of people interested in advancing secular arguments. Secular Pro-Life envisions a world in which people of all faith traditions, political philosophies, socioeconomic statuses, sexualities, races, and age groups oppose abortion.
Financial precarity motivates nearly three-quarters of abortions. The pro-life movement offers practical resources to help families overcome financial barriers and choose life for their children—but these resources are only useful to the extent that pregnant mothers know about them before it is too late. Therefore, Secular Pro-Life strongly supports the practice of peaceful sidewalk outreach to prevent abortions. Sidewalk outreach is especially critical for religiously unaffiliated mothers, who are disproportionately at risk for abortion compared to the general population, and who may not otherwise learn about free pregnancy supports that are commonly advertised through faith-based channels.
Secular Pro-Life takes an interest in this case because Hill v. Colorado, 530 U.S. 703 (2000), inhibits life-saving sidewalk outreach and unconstitutionally censors the speech of Secular Pro-Life’s members.
Progressive Anti-Abortion Uprising (PAAU) is a single-issue non-profit organization committed to ending elective abortion, focusing on issues that land at the intersection of pregnancy and parenting. Non-violent direct action, including sidewalk advocacy, is at the core of PAAU’s mission. Buffer zone laws of the type this Court upheld in Hill v. Colorado are designed to impede peaceful challenges to the oppressive status quo.
The following professors teach and/or research in the area of law and religion and are interested in the development of sound doctrine in this area, as well as the protection of free speech rights in Hill v. Colorado-type contexts. [List of professors and affiliations omitted because I gave their names above.]
Summary of Argument
Hill v. Colorado, 530 U.S. 703 (2000), was egregiously wrong on the day it was decided and remains so today. Relying on a line of cases that began with City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), this Court in Hill treated buffer zone laws as content-neutral time, place, and manner regulations subject to only intermediate First Amendment scrutiny. This Court should instead apply strict scrutiny because buffer zone laws are, in both theory and practice, content-based restrictions on disfavored anti-abortion speech.
“To be sure, this Court has not uttered the phrase ‘we overrule Hill.‘” Coalition Life v. City of Carbondale, 145 S. Ct. 537, 540 (2025) (Thomas, J., dissenting from denial of certiorari). But “Hill has been seriously undermined, if not completely eroded.” Id. at 542.
Although this case does not involve a buffer zone, Petitioner’s direct challenge to the mistaken reasoning of City of Renton and its progeny offers this Court an ideal vehicle to, at long last, utter the phrase “we overrule Hill” and restore freedom of speech to pro-life Americans.
Argument
I. Hill v. Colorado Should Be Overruled.
In Hill v. Colorado, 530 U.S. 703 (2000), this Court wrongly upheld a Colorado statute that criminalized “knowingly approach[ing]” within eight feet of a person, without their consent, “for the purpose of . . . engaging in oral protest, education, or counseling” near the entrance of a “health-care facility.” Colo. Rev. Stat. § 18-9-122(3). This type of statute is popularly known as a buffer zone law.
As Justice Scalia pointed out in his dissent, buffer zone laws like the one enacted in Colorado are facially content-discriminatory: “Whether a speaker must obtain permission before approaching within eight feet—and whether he will be sent to prison for failing to do so—depends entirely on what he intends to say when he gets there.” Hill, 530 U.S. at 742 (Scalia, J., dissenting). Moreover, although the statute defined “health care facility” broadly, it was clear from the legislative history and context that the buffer zone was enacted for the benefit of abortion facilities to discourage protests against them.
The majority nevertheless treated the buffer zone like a content-neutral regulation, opining that “the statute applies equally to used car salesmen, animal rights activists, fundraisers, environmentalists, and missionaries.” Id. at 723 (majority opinion). That reasoning is pretextual to the point of undermining confidence in the Court. “[I]t blinks reality to regard [Colorado’s] statute, in its application to oral communications, as anything other than a content-based restriction upon speech in the public forum.” Id. at 748 (Scalia, J., dissenting); see also McCullen v. Coakley, 573 U.S. 464, 501 (2014) (Scalia, J., concurring in judgment) (“It blinks reality to say . . . that a blanket prohibition on the use of streets and sidewalks where speech on only one politically controversial topic is likely to occur—and where that speech can most effectively be communicated—is not content based.”).
This Court has since come to appreciate that the criminal prohibition on “oral protest, education, or counseling” at issue in Hill was not content-neutral and in fact discriminated against pro-life speakers. In Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022), this Court noted that its prior abortion jurisprudence had “distorted First Amendment doctrines,” identifying Hill as the primary example of that First Amendment abortion distortion. Id. at 287 & n.65. Hill is an “erroneous decision” which used a “long-discredited approach” to uphold a “blatantly content-based prohibition” on pro-life speech near abortion facilities. City of Austin v. Reagan Nat’l Advert. of Austin, LLC, 596 U.S. 61, 86-87 (2022) (Thomas, J., dissenting); see also Reed v. Town of Gilbert, 576 U.S. 155, 167 (2015) (relying on Hill dissents).
Hill immediately received overwhelming criticism from legal scholars. See, e.g., Jamin B. Raskin & Clark L. LeBlanc, Disfavored Speech About Favored Rights: Hill v. Colorado, the Vanishing Public Forum and the Need for an Objective Speech Discrimination Test, 51 Am. U. L. Rev. 179, 182-83 (2001); Kathleen M. Sullivan, Sex, Money, and Groups: Free Speech and Association Decisions in the October 1999 Term, 28 Pepp. L. Rev. 723, 737-38 (2001); Constitutional Law Symposium, Professor Michael W. McConnell’s Response, 28 Pepp. L. Rev. 747, 752 (2001) (quoting Prof. Chemerinsky as being “troubled by the rationale that was given” in Hill); Timothy Zick, Speech Out of Doors: Preserving First Amendment Liberties in Public Places 101 (2008); Ronald J. Krotoszynski, Jr. & Clint A. Carpenter, The Return of Seditious Libel, 55 UCLA L. Rev. 1239, 1262-63 (2008). In the quarter-century since, Hill has only continued its slide into this Court’s anti-canon. “Yet, lower courts continue to feel bound by it” and continue to uphold buffer zone laws. Coalition Life, 145 S. Ct. at 538 (Thomas, J., dissenting from denial of certiorari).
With the notable exception of Hill, this Court’s First Amendment jurisprudence reflects “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). Among the most important of those debates is “if and when prenatal life is entitled to any of the rights enjoyed after birth.” Dobbs, 597 U.S. at 263. And nowhere is that deliberation more consequential than in the very place that buffer zone laws aim to censor it.
Therefore, this Court should overrule Hill v. Colorado.
II. The “Secondary Effects Doctrine” Ties This Case to Hill.
At first blush, amici might seem to have little in common with Petitioner—a trade association for adult entertainment clubs in Georgia. But both find themselves in conflict with the same line of cases that undermines their First Amendment rights.
Petitioner presents the following question:
A Georgia statute imposes a tax that, on its face, singles out businesses defined by the content of their expression; the State seeks to justify the tax by the need to address “secondary effects.” Is this tax subject to strict scrutiny under the First Amendment because it is facially content-discriminatory, as recently affirmed by Reed v. Town of Gilbert, 576 U.S. 155 (2015), or does a content-neutral rationale make the tax subject to intermediate scrutiny under City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986)?
Cert. Pet. at i. City of Renton concerned “a constitutional challenge to a zoning ordinance . . . that prohibits adult motion picture theaters from locating within 1,000 feet of any residential zone, single- or multiple-family dwelling, church, park, or school.” City of Renton, 475 U.S. at 43. This Court acknowledged that “the ordinance treats theaters that specialize in adult films differently from other kinds of theaters.” Id. at 47. And content-based restraints on speech are normally subject to strict scrutiny. See id. at 46-47 (citing Carey v. Brown, 447 U.S. 455, 462-63 & n.7 (1980); Police Dep’t of Chi. v. Mosley, 408 U.S. 92, 95, 98-99 (1972)). “Nevertheless, . . . the Renton ordinance is aimed not at the content of the films shown at ‘adult motion picture theatres,’ but rather at the secondary effects of such theaters on the surrounding community.” Id. at 47.
This Court further developed this idea in Ward v. Rock Against Racism, 491 U.S. 781 (1989) (upholding regulation of sound amplification in a bandshell), opining that “[a] regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others.” Id. at 791 (citing City of Renton, 475 U.S. at 47-48). The “incidental” impact on speech was outweighed by the governmental interests in addressing secondary effects, namely, “avoid[ing] undue intrusion into residential areas and other areas of the park” and “ensur[ing] the quality of sound at Bandshell events.” Id. at 791-92.
The sound amplification ordinance at issue in Ward is readily distinguishable from content-based buffer zone laws. Nevertheless, Colorado relied upon Ward to justify its pretextual censorship of pro-life speech. “All four of the state court opinions upholding the validity of [the Colorado buffer zone law] concluded that it is a content-neutral time, place, and manner regulation. Moreover, they all found support for their analysis in Ward v. Rock Against Racism.” Hill, 530 U.S. at 719. Supporters of the buffer zone cited a secondary-effects interest in “unimpeded access to health care facilities and the avoidance of potential trauma to patients associated with confrontational protests.” Id. at 715. The Hill majority analogized those rationales to the “interest in preserving tranquility” that had led this Court to apply less than strict scrutiny in Ward. Id. at 716.
And so, adult entertainers and right-to-life advocates find themselves sharing the same doctrinal bed. This Court’s use of intermediate scrutiny in City of Renton and Hill “‘is incompatible with current First Amendment doctrine as explained in Reed.'” Bruni v. City of Pittsburgh, 141 S. Ct. 578 (2021) (opinion of Thomas, J.) (quoting Price v. Chicago, 915 F.3d 1107, 1117 (7th Cir. 2019)). As Justice Thomas has written, “the Court should take up this issue in an appropriate case to resolve the glaring tension in our precedents.” Id.
This is that case. The question presented here has significant implications for the free exchange of ideas concerning abortion and the right to life. Both Petitioner and amici deserve the same First Amendment guarantees enjoyed by uncontroversial speakers. This Court should restore consistency to First Amendment jurisprudence by overturning the City of Renton/Hill line of cases in favor of Reed‘s strict scrutiny approach. [Footnote: Alternatively, as Petitioner suggests, the Court could substantially reform its First Amendment jurisprudence by limiting City of Renton‘s application to zoning matters. Cert. Pet. at 6-7, 32. This approach would also have the effect of overruling Hill.]
III. This Case Provides an Ideal Vehicle to Overrule Hill.
“This Court has received a number of invitations to make clear that Hill lacks continuing force. Some of those invitations have arisen in cases with thorny preliminary issues or other obstacles to our review.” Coalition Life, 145 S. Ct. at 541 (Thomas, J., dissenting from denial of certiorari) (citing Bruni, 141 S. Ct. at 578 (opinion of Thomas, J.)). The buffer zone challenged in Bruni v. Pittsburgh, for instance, involved “unclear, preliminary questions about the proper interpretation of state law.” Bruni, 141 S. Ct. at 578.
But unlike in Bruni and other recent buffer zone cases, there are no side issues in this case that would preclude this Court’s effective review. The First Amendment question has been fully litigated, and the Georgia Supreme Court expressly relied on City of Renton in its analysis. Ga. Ass’n of Club Executives, Inc. v. State, 908 S.E.2d 551, 561 (Ga. 2024); Cert. Pet. at 15a. City of Renton and its intermediate scrutiny progeny, including Hill, are ripe for review.
Conclusion
This Court should grant the petition for a writ of certiorari.
