In this challenge of the constitutionality of an ordinance restricting protests and picketing within 20 feet of the entrance to a healthcare facility, the Third Circuit remanded the District Court for the Middle District of Pennsylvania’s denial of a preliminary injunction. The Third Circuit found that the District Court had improperly placed the burden of demonstrating likelihood of success on the plaintiffs, rather than the municipality, as is required in First Amendment cases.


The City of Harrisburg enacted an ordinance prohibiting persons from congregating, patrolling picketing, or demonstrating within 20 feet of the entrance to a healthcare facility. The stated purpose of the ordinance was to promote the health and welfare of residents and visitors to the City’s health care facilities, as well as the health and welfare of those wishing to voice their constitutionally protected speech outside of such facilities.  Except for certain exempted individuals (e.g., police and employees of the facility), the ordinance applied to all persons equally, regardless of the intent of their conduct or content of their speech. Two individuals who wished to provide “sidewalk counseling” to those entering abortion clinics challenged the Ordinance, claiming it created unconstitutional “buffer zones” and violated the First and Fourteenth Amendments. Plaintiffs sought preliminary injunctive relief. The District Court determined the Ordinance was content-neutral, as it did not define or regulate speech by subject matter or purpose, and applied intermediate scrutiny. The District Court did not grant Plaintiffs’ preliminary injunction request, concluding they had failed to demonstrate a likelihood of success on the merits. Plaintiffs appealed the denial of their request for preliminary injunction.

On appeal, the Third Circuit found the District Court had erred when it held Plaintiffs bore the burden of demonstrating likelihood of success on the merits. While a plaintiff typically bears such a burden, in First Amendment cases the government bears the burden of proof on the ultimate question of a statute’s constitutionality. Thus, a plaintiff must be deemed “likely to prevail” for the purpose of considering a preliminary injunction unless the Government shows the plaintiff’s proposed less restrictive alternatives are less effective than the challenged ordinance. Therefore, the Third Circuit remanded the matter back to the District Court.

Click here to read: Reilly v. City of Harrisburg, No. 16-3722 (3d Cir. May 25, 2017).

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