The U.S. Eleventh Circuit Court of Appeals ordered a preliminary injunction against a city ordinance in Clearwater, Florida that created a pedestrian “buffer zone” outside an abortion facility. The 2-1 decision reverses a lower court’s denial for an injunction sought by a group of sidewalk counselors and orders the lower court to grant the injunction while the litigation continues toward a permanent decision. The appeals court stated that the counselors were “likely to succeed on the merits” since the buffer zone “stifled” their First Amendment right to convey their pro-life message in a public place.
The ordinance, passed in 2023, created a “vehicular safety zone” that prohibited pedestrians from using a portion of a public sidewalk to come within five feet of the driveway of the abortion facility Bread and Roses Woman’s Health Center during its business hours. City officials argued the measure was necessary to ensure patient safety and prevent traffic obstruction. However, Florida Preborn Rescue, Inc., a pro-life nonprofit, and four sidewalk counselors sued claiming the law violated their First Amendment rights by restricting counseling and leafletting in an area where there is a “public right-of-way.”
Writing for the majority, Circuit Judge Kevin Newsom cited U.S. Supreme Court precedent from the 2014 McCullen v. Coakley decision, which struck down a Massachusetts buffer zone law, that stated the government’s ability to restrict speech in a public forum is “very limited” and any law doing so must be “narrowly tailored.”
Judge Newsom wrote that the Supreme Court has “historically” recognized two forms of expression “closely associated with the transmission of ideas,” and those are “normal conversation” and “leafletting on a public sidewalk.” The Clearwater Ordinance, just as the Massachusetts law in McCullen, “seriously burdens Florida Preborn’s speech…by restricting the sidewalk counselors’ ability to distribute leaflets to patients as they arrive at the clinic,” reads the opinion.
Judge Newsom also noted the ordinance was not narrowly tailored as it also barred facility patients from entering the zone to accept literature.
“The prime objective of the First Amendment is not efficiency,” Judge Newsom again cited McCullen, this time underscoring that the ordinance burdened substantially more speech than necessary to achieve the government’s asserted interest in promoting vehicular safety
“The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury,” concluded the opinion.
Liberty Counsel Founder and Chairman Mat Staver said, “This ruling from the Eleventh Circuit marks a significant victory for sidewalk counselors and free speech advocates. Public sidewalks have always been protected places where people can gather to participate in the peaceful exchange of ideas. Abortion buffer zone laws collide with free speech and hinder women and girls from receiving information that could change their fateful decisions to end the life of their child. This recent decision should be an encouragement to pro-life sidewalk counselors around the country.”
