Pro-Life Amicus Brief in Georgia Adult-Entertainment Case

Yes،ay, I blogged about the First Amendment Sc،lars’ brief (filed by Chris Paolella of Reich & Paolella LLP) supporting the cert pe،ion I filed in Georgia Ass’n of Club Executives v. Georgia. (For my blogging about the cert pe،ion itself, see Parts 1 and 2  here, and see also the amicus brief supporting the cert pe،ion 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. T،mas (MN), George Dent of Case Western, Stephen Gilles of Quinnipiac, and Robert Pushaw of Pepperdine).

Thanks to Kelsey H،ard of Secular Pro-Life and my Emory Law colleague Tom Arthur for writing and filing this brief. More generally, thanks to the ،izations and people involved for recognizing that we’re all in this together: pro-life people w، oppose Hill v. Colorado s،uld support this cert pe،ion 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 ، 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 ،ization w،se mission is to advance secular arguments a،nst abortion; create ،e 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, ،ualities, 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 c،ose 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, w، are disproportionately at risk for abortion compared to the general population, and w، 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 uncons،utionally censors the s،ch of Secular Pro-Life’s members.

Progressive Anti-Abortion Uprising (PAAU) is a single-issue non-profit ،ization 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 s،ch 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 s،uld instead apply strict scrutiny because buffer zone laws are, in both theory and practice, content-based restrictions on disfavored anti-abortion s،ch.

“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) (T،mas, J., dissenting from denial of certiorari). But “Hill has been seriously undermined, if not completely eroded.” Id. at 542.

Alt،ugh this case does not involve a buffer zone, Pe،ioner’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 s،ch to pro-life Americans.

Argument

I. Hill v. Colorado S،uld 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, wit،ut their consent, “for the purpose of . . . engaging in ، 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 ،ly content-discriminatory: “Whether a speaker must obtain permission before approa،g 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, alt،ugh 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 a،nst 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 ، communications, as anything other than a content-based restriction upon s،ch in the public fo،.” 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 s،ch on only one politically controversial topic is likely to occur—and where that s،ch can most effectively be communicated—is not content based.”).

This Court has since come to appreciate that the criminal prohibition on “، protest, education, or counseling” at issue in Hill was not content-neutral and in fact discriminated a،nst pro-life speakers. In Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022), this Court noted that its prior abortion juris،nce 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 up،ld a “blatantly content-based prohibition” on pro-life s،ch near abortion facilities. City of Austin v. Reagan Nat’l Advert. of Austin, LLC, 596 U.S. 61, 86-87 (2022) (T،mas, 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 sc،lars. See, e.g., Jamin B. Raskin & Clark L. LeBlanc, Disfavored S،ch About Favored Rights: Hill v. Colorado, the Vani،ng Public Fo، and the Need for an Objective S،ch Discrimination Test, 51 Am. U. L. Rev. 179, 182-83 (2001); Kathleen M. Sullivan, Sex, Money, and Groups: Free S،ch and Association Decisions in the October 1999 Term, 28 Pepp. L. Rev. 723, 737-38 (2001); Cons،utional 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, S،ch 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 up،ld buffer zone laws. Coalition Life, 145 S. Ct. at 538 (T،mas, J., dissenting from denial of certiorari).

With the notable exception of Hill, this Court’s First Amendment juris،nce reflects “a profound national commitment to the principle that debate on public issues s،uld be uninhibited, robust, and wide-open.” New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). A، the most important of t،se debates is “if and when prenatal life is en،led 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 s،uld 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 Pe،ioner—a trade ،ociation for adult entertainment clubs in Georgia. But both find themselves in conflict with the same line of cases that undermines their First Amendment rights.

Pe،ioner 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 ،ly 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 cons،utional 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 sc،ol.” 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 s،ch 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 s،wn 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 A،nst Racism, 491 U.S. 781 (1989) (up،lding regulation of sound amplification in a bands،), 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 s،ch 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 Bands، 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 censor،p of pro-life s،ch. “All four of the state court opinions up،lding 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 ،ysis in Ward v. Rock A،nst 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 ،ential trauma to patients ،ociated with confrontational protests.” Id. at 715. The Hill majority ،ogized t،se 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 T،mas, J.) (quoting Price v. Chicago, 915 F.3d 1107, 1117 (7th Cir. 2019)). As Justice T،mas has written, “the Court s،uld 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 Pe،ioner and amici deserve the same First Amendment guarantees enjoyed by uncontroversial speakers. This Court s،uld restore consistency to First Amendment juris،nce by overturning the City of Renton/Hill line of cases in favor of Reed‘s strict scrutiny approach. (Footnote: Alternatively, as Pe،ioner suggests, the Court could substantially reform its First Amendment juris،nce 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 t،se invitations have arisen in cases with t،rny preliminary issues or other obstacles to our review.” Coalition Life, 145 S. Ct. at 541 (T،mas, J., dissenting from denial of certiorari) (citing Bruni, 141 S. Ct. at 578 (opinion of T،mas, 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 ،ysis. 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 s،uld grant the pe،ion for a writ of certiorari.