David Cortman [Senior Legal Counsel, Alliance Defense Fund]: "Over the last several years, the government has increasingly restricted pro-life speech, particularly when it occurs on public sidewalks outside abortion clinics. These restrictions are, at best, highly suspect under the First Amendment – and, at worst, completely unconstitutional. And that was no less the case in the most recent decision [PDF file] from the 3rd Circuit in Brown v. City of Pittsburgh that struck down a very bad ordinance restricting free speech.

Historically, the Supreme Court has gone out of its way to protect speech, especially when it occurs in a public forum, such as in a park or on a public sidewalk. Even during the civil rights protests and labor union pickets of the past, the Court was always careful to carve out protected speech from unprotected conduct. No more.

In what's commonly referred to in some circles as the "abortion distortion," the courts have abandoned their zealous protection of speech and thrown out the proverbial baby with the bathwater. Now, with the blessings of the courts, no longer are such regulations limited to prohibiting only unprotected conduct, they are prohibiting pure speech. And on a public sidewalk, no less.

Ignoring its own precedent, the Supreme Court, within the recent past, has upheld fixed buffer zones of varying distances which emanate from clinic entrances. These zones generally prohibit pro-life advocates from speaking anywhere in the zone, usually because they are prohibited from even entering the area. Interestingly, clinic workers are often exempt from those restrictions, either as written in the law (as was the case with Pittsburgh's ordinance [PDF file], which stated that no one was permitted to picket or demonstrate in the zone but then exempted clinic workers from this prohibition) or as a matter of practice.

The Supreme Court has also upheld what is known as a floating bubble zone. This restriction prohibits anyone (which, in practice, means pro-life advocates) from approaching any person closer than eight feet (hence, the floating bubble) for the purpose of leafleting or engaging in protest, education, or counseling (making it obvious where such "neutral" laws are aimed). Even without any expertise or legal background, it is easy for any person to see that these laws are designed to prohibit speech, not unprotected forms of conduct.

While arguing against Pittsburgh's defective ordinance on behalf of pro-life nurse Mary Kathryn Brown, I was asked by the 3rd Circuit judges how I would go about drafting such legislation. I responded that it is rather simple, actually: prohibit unprotected conduct (such as blocking, violence, and assaults) without regard to speech. Such a solution honors the Constitution and protects speech while at the same time protects women from any bad behavior. Everyone wins.

With that background, let's look at what the 3rd Circuit in the end called "unprecedented" restrictions that the City of Pittsburgh enacted. In an aggressive move to further push the envelope, the city, with advice and encouragement of attorneys supporting the abortion clinics, enacted a law that far surpassed any regulation that had ever before been upheld. They combined both a fixed zone with a floating zone. Considering that each zone either completely eliminates or severely hampers speech, speech hasn't got a chance when both are joined.

Did you ever try to hand out leaflets from over eight feet away from someone whom you are not allowed to approach? Not so simple. Or try to have a caring conversation beyond eight feet away from a person walking down the sidewalk while avoiding people, trees, mailboxes, or being pushed into the bus lane due to the width of the sidewalks? Kind of dangerous.

The city ridiculed Mary Kathryn Brown for having no "right" to speak to someone in a caring way. Well, at least they acknowledge she likes the compassionate approach. After all, if you are reaching out to women in love to encourage them to save their child from abortion, it's a good idea to be compassionate. Ironically, the law that the city touts as having the purpose of reducing an aggressive atmosphere actually serves to elevate it, as it encourages yelling and the use of amplification just to be heard.

Pittsburgh's law, in the opinion of the Alliance Defense Fund, and as the 3rd Circuit agreed, went too far. The court's opinion is extremely important as government bodies more frequently restrict protected speech on public sidewalks. The opinion serves to draw a line in the sand that municipalities may not cross.

Thankfully, there is a point where speech remains protected and, although not where it should be, it's a start to regaining free speech protections which the "abortion distortion" has served to chip away at the Constitution."

Mr. Cortman represented the plaintiff in Brown v. City of Pittsburgh before the US Court of Appeals for the 3rd Circuit.