Amicus Brief Supporting Certiorari in Vitagliano v. County of Westchester

In June 2023, the United States Court of Appeals for the Second Circuit upheld the dismissal of a lawsuit filed by Debra Vitagliano, a woman who participates in prayer vigils and seeks to counsel women entering the Planned Parenthood in White Plains, New York. Vitagliano challenged a Westchester County law establishing a 100-foot “bubble zone” around abortion clinics and prohibiting anyone from coming within eight feet of another person without that person’s consent whenever “engaging in oral protest, education, or counseling.” The Second Circuit reached its conclusion based solely on the Supreme Court’s 2000 decision in Hill v. Colorado, a 5-4 decision that upheld a Colorado restriction similar to the Westchester County law.

In August 2023, I joined Stanford law professor Michael McConnell and Steve McFarland of the Christian Legal Society in an amicus brief in support of certiorari. Our brief makes two principal arguments. First, we argue that Hill and the Westchester County law both violate the core of the public forum doctrine that is rooted in the right of assembly. Second, we argue that Hill and the Westchester County law both conflict with the Court’s free speech jurisprudence, which recognizes the protections of the First Amendment for even emotionally charged expression directed toward possibly unreceptive listeners. You can read the full brief here.