23-30 Vitagliano v. County of Westchester
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
August Term 2022
(Argued: May 9, 2023 Decided: June 21, 2023)
No. 23-30
––––––––––––––––––––––––––––––––––––
DEBRA A. VITAGLIANO,
Plaintiff-Appellant,
-v.-
COUNTY OF WESTCHESTER,
Defendant-Appellee. *
Before: LIVINGSTON, Chief Judge, REENA RAGGI, and SUSAN L. CARNEY, Circuit Judges.
Plaintiff-Appellant Debra Vitagliano, an aspiring sidewalk counselor, brought a First Amendment challenge to Westchester County’s recently enacted “bubble zone” law, which makes it illegal to approach within eight feet of another person for the purpose of engaging in “oral protest, education, or counseling” when inside a one-hundred-foot radius of a reproductive health care facility. The
The Clerk of Court is respectfully directed to amend the official caption to *
conform to the above.
1 district court dismissed the complaint, holding that Vitagliano lacks standing to mount a pre-enforcement challenge to the bubble zone law, and that, in any event, the Supreme Court’s decision in Hill v. Colorado, 530 U.S. 703 (2000), forecloses her First Amendment claim. We conclude that Vitagliano has standing to seek pre- enforcement relief because she has pleaded sufficient facts to support a credible threat that Westchester County will enforce the bubble zone law if she pursues her stated intention to engage in sidewalk counseling. We nevertheless affirm the judgment of dismissal because the district court correctly recognized that Hill dictates the conclusion that Westchester County’s bubble zone law withstands First Amendment scrutiny. Accordingly, the judgment of the district court is VACATED IN PART and AFFIRMED IN PART.
FOR PLAINTIFF-APPELLANT: JOSEPH C. DAVIS (Mark L. Rienzi, Daniel L. Chen, Daniel M. Vitagliano, on the brief), The Becket Fund for Religious Liberty, Washington, DC.
(Edward M. Wenger, Caleb B. Acker, Andrew B. Pardue, Holtzman Vogel Baran Torchinsky & Josefiak PLLC, Washington, DC, for Eleanor McCullen, as amicus curiae)
FOR DEFENDANT-APPELLEE: JOHN M. NONNA, Westchester County Attorney (Justin R. Adin, Deputy County Attorney, Shawna C. MacLeod, Senior Assistant County Attorney, on the brief), Westchester County Attorney’s Office, White Plains, NY.
(Stephanie Schuster, Emily Booth, Tanya Tiwari, Caiti Zeytoonian, Bichnga T. Do, Morgan, Lewis & Bockius LLP, Washington, DC, Boston, MA, and Los Angeles, CA, for Westchester Coalition for Legal Abortion – Choice Matters, Inc., Hope’s Door, Westchester Women’s Agenda, and
2 Planned Parenthood Hudson Peconic, Inc., as amici curiae)
PER CURIAM:
Plaintiff-Appellant Debra Vitagliano (“Vitagliano”) is an aspiring pro-life
sidewalk counselor who wishes to approach women entering abortion clinics and
engage them in peaceful conversation about abortion alternatives. Vitagliano
sued Westchester County (the “County”), pursuant to 42 U.S.C. § 1983, asserting
a First Amendment challenge to its recently enacted “bubble zone” law, which
makes it illegal to approach within eight feet of another person for the purpose of
engaging in “oral protest, education, or counseling” when inside a one-hundred-
foot radius of a reproductive health care facility. Vitagliano contends that the
County’s bubble zone law is a content-based restriction on speech that cannot
survive strict or intermediate scrutiny.
Vitagliano appeals from a judgment dismissing her claim. The district
court (Halpern, J.) determined sua sponte that she lacks standing to assert a pre-
enforcement challenge to the County’s bubble zone law and that, in any event, the
Supreme Court’s decision in Hill v. Colorado, 530 U.S. 703 (2000), which upheld a
materially identical bubble zone law in Colorado, forecloses Vitagliano’s First
Amendment claim. We disagree in part. The district court’s standing analysis
3 failed to credit Vitagliano’s well-pleaded allegations detailing the efforts she
undertook to become a sidewalk counselor and her plans to engage in such
counseling. Because Vitagliano has alleged facts that demonstrate a credible
threat of prosecution under the County’s bubble zone law if she pursues her plans
to counsel on the sidewalk, she has articulated an injury in fact that is sufficiently
concrete and imminent to confer Article III standing. Accordingly, we vacate the
district court’s ruling insofar as it dismissed Vitagliano’s suit for lack of standing.
We nevertheless affirm the judgment on the merits because the district court
correctly concluded that Hill is dispositive of Vitagliano’s First Amendment claim.
BACKGROUND
I. Factual Background
A. Westchester County’s Bubble Zone Law
On June 27, 2022, Westchester County enacted the Reproductive Health
Care Facilities Access Act (the “Act”). Westchester Cnty., N.Y., Charter &
Admin. Code ch. 425 (2023). The Act’s stated purpose is to “prohibit interference
with accessing reproductive health care facilities and obtaining reproductive
health care services[.]” Id. § 425.11. The Act contains nine separate prohibitions
4 on conduct and speech outside of “reproductive health care facilit[ies].” Id.
§ 425.31(a)–(i). 1
The focal point of this appeal is § 425.31(i), the provision of the Act that
creates the so-called bubble zone. This section provides that it shall be unlawful
to:
Knowingly approach another person within eight (8) feet of such person, unless such other person consents, for the purpose of passing any material, item, or object to, displaying a sign to, or engaging in oral protest, education, or counseling with such other person in the public way within a radius of one hundred (100) feet from any door to a reproductive health care facility.
Id. § 425.31(i). 2
1 The Act defines a “[r]eproductive health care facility” as “any building, structure, or place, or any portion thereof, at which licensed, certified, or otherwise legally authorized persons provide reproductive health care services.” Westchester Cnty., N.Y., Charter & Admin. Code § 425.21(k). “Reproductive health care services” is, in turn, defined as “medical, surgical, counseling, or referral services relating to the human reproductive system, including services relating to pregnancy or the termination of a pregnancy.” Id. § 425.21(l). 2 The Act defines “[a]pproach” as “to move nearer in distance to someone.” Westchester Cnty., N.Y., Charter & Admin. Code § 425.21(a). It also specifies that “‘[e]ight (8) feet’ shall be measured from the part of a person’s body that is nearest to the closest part of another person’s body, where the term ‘body’ includes any natural or artificial extension of a person, including, but not limited to, an outstretched arm or hand- held sign.” Id. § 425.21(b).
5 Although not challenged in the instant appeal, the Act also makes it illegal
to: (1) “[k]nowingly physically obstruct or block another person” from entering or
exiting a reproductive health care facility; (2) “[s]trike, shove, restrain, grab, kick,
or otherwise subject to unwanted physical contact or injury” anyone seeking to
legally enter or exit a reproductive health care facility; (3) “[k]nowingly follow and
harass another person” within 25 feet of a reproductive health care facility or its
parking lot; (4) “[k]nowingly engage in a course of conduct or repeatedly commit
acts when such behavior places another person in reasonable fear of physical
harm” within 25 feet of a reproductive health care facility or its parking lot; (5)
“knowingly injure, intimidate, or interfere with” another by force, threat of force,
or physical blocking “to discourage such other person” from “obtaining or
providing” reproductive health care services; (6) “knowingly injure, intimidate, or
interfere with” another by force, threat of force, or physical blocking “because such
person was or is obtaining or providing” reproductive health care services; (7)
“[p]hysically damage a reproductive health care facility so as to interfere with its
operation”; and (8) “[k]nowingly interfere with the operation of a reproductive
health care facility[.]” Id. § 425.31(a)–(h).
6 Violations of the Act are misdemeanors, with a first conviction punishable
by up to $1,000 in fines and six months’ imprisonment. Id. § 425.41(a).
Subsequent convictions are punishable by up to $5,000 in fines and one year’s
imprisonment. Id. § 425.41(b). The Act also allows the County Attorney to
bring civil enforcement actions for injunctive relief. Id. § 425.61. It further
creates a private civil cause of action for treble damages and injunctive relief,
which can be brought by “any person whose ability to access the premises of a
reproductive health care facility has been interfered with,” or by any “owner,”
“operator,” “employee,” “volunteer,” and “invitee” of a reproductive health care
center. Id. § 425.51. And the Act provides for joint and several liability for
individuals who “acted in concert” to violate any of its prohibitions. Id. § 425.71.
B. Vitagliano and Her Pro-Life Activities 3
Vitagliano is a 64-year-old mother of three and a resident of Westchester
County. App’x 1, 4. She has worked as an occupational therapist for 42 years,
primarily assisting special needs children. Id. at 4–5. She is a devout, practicing
3 The facts concerning Vitagliano and her pro-life activities are taken from her complaint and are accepted as true for purposes of this appeal. See Yamashita v. Scholastic Inc., 936 F.3d 98, 100 n.2 (2d Cir. 2019).
7 Catholic and, consistent with her faith, opposes abortion as contrary to her sense
of morality. Id. at 5.
Moved by her faith, in February 2021, Vitagliano began participating in a
peaceful prayer-vigil campaign at the Planned Parenthood facility in White Plains,
New York. Id. As part of the campaign, Vitagliano held signs with pro-life
messages and prayed on the sidewalk and public way outside the facility. Id. at
6. During her activities outside of Planned Parenthood, Vitagliano observed
others engage in sidewalk counseling by approaching women on their way into
the clinic, speaking with them, and distributing pamphlets and other materials.
Id. Vitagliano felt compelled to engage in sidewalk counseling, hoping to inform
women about abortion alternatives and advise them of available resources if they
decide to forego abortion procedures. Id.
Vitagliano “did not immediately engage in sidewalk counseling because she
felt she first needed proper training.” Id. In particular, she wanted to learn
effective techniques for approaching pregnant women, develop ideas for what to
say to them, and prepare herself for handling the different situations she may
confront. Id. Vitagliano thus enrolled in and completed two online classes (an
introductory course and an eight-week advanced course) on consulting pregnant
8 women considering abortion. Id. at 7. In spring 2022, Vitagliano obtained
pamphlets from local pro-life organizers, “which she planned to distribute while
engaging in future sidewalk counseling.” Id. Upon completing her training,
she volunteered as a “life consultant” at a local crisis pregnancy center, meeting
with women experiencing unplanned pregnancies and consulting with them
about their options. Id. Vitagliano began volunteering by shadowing other life
consultants and now volunteers in this capacity for two hours every week. Id.
“Now properly trained and with experience as a life consultant,” Vitagliano
avers that she “is prepared to engage in sidewalk counseling,” “would like to
counsel women on the public way as they approach the White Plains Planned
Parenthood,” and would do so “[b]ut for” the County law at issue in this litigation
Id. at 7, 15. If permitted, Vitagliano hopes to engage women entering the abortion
clinic to explore the details of their stories through active listening and asking
about their needs, feelings, and the reactions of their family members. Id. at 7–8.
She would initiate conversations by telling women something to the effect of
“[y]ou are not alone . . . [w]e can help you,” and would inform pregnant women
seeking abortions that there are people who will love and care for them and their
children. Id. at 8. Drawing on her experience as a mother and occupational
9 therapist, Vitagliano wants to share options besides abortion and encourage them
to carry their babies to term. Id. at 9. Before she could implement her training
and engage in sidewalk counseling, the County enacted the bubble zone law. Id.
II. Procedural History
In November 2022, Vitagliano filed suit against the County, asserting a First
Amendment claim under § 1983 characterizing the County’s bubble zone law as a
content-based restriction on speech that fails strict scrutiny. 4 Id. at 18–22. The
County filed a premotion letter concerning its anticipated motion to dismiss
Vitagliano’s claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Id. at 29–
31. The County argued in this letter that the Supreme Court’s decision in “Hill is
directly on point and binding here, and remains controlling precedent unless and
until the Supreme Court overturns it.” Id. at 30. In response, Vitagliano
acknowledged that Hill directly controls her claim and expressed her view that
“Hill was wrongly decided, is irreconcilable with intervening precedent, and
should be overruled by the Supreme Court.” Id. at 32. Because she could not
Vitagliano named Westchester County, County Executive George Latimer, and 4
County Attorney John M. Nonna as defendants in her complaint. App’x 3–4. After the parties stipulated that Latimer and Nonna would be “bound by and subject to any injunction or declaratory judgment [Vitagliano] obtains against the County in this action,” the parties agreed to drop Latimer and Nonna from the case. Id. at 24-28.
10 obtain her desired relief in the district court, Vitagliano suggested that “[i]n the
interest of judicial economy, [the district court] may therefore wish to dispense
with formal briefing, treat [the County’s] pre-motion letter as the motion, and
dispose of it.” Id. at 35.
In January 2023, the district court granted the County’s motion to dismiss
without further briefing. See Vitagliano v. County of Westchester, No. 22 Civ. 9370
(PMH), 2023 WL 24246 (S.D.N.Y. Jan. 3, 2023). The district court determined that
Vitagliano lacks Article III standing and, even if she has standing, Hill forecloses
her claims. On standing—which the parties did not discuss in their premotion
letters—the district court held that Vitagliano had not adequately alleged an injury
in fact stemming from the County’s bubble zone restriction because “she has never
engaged in sidewalk counseling” and “does not allege any concrete plans to do so
at any point in the future.” Id. at *3. As the court construed the complaint,
Vitagliano “only alleged, in the most general fashion, that . . . her exercise of free
speech has been chilled by the enactment of the Buffer Zone Provision.” Id.
(internal quotation marks omitted). The district court emphasized that
Vitagliano alleged that she “would need ‘proper training’ before she would even
consider sidewalk counseling.” Id. Vitagliano thus harbored only an abstract
11 and subjective fear about the bubble zone law, which, according to the district
court, is insufficient to confer Article III standing. Id.
On the merits, the district court, applying Hill, concluded that the bubble
zone law withstands intermediate scrutiny. Id. at *3–4. Recognizing that the
County’s bubble zone law is materially identical to the Colorado law the Supreme
Court previously upheld in Hill, the district court determined that the County’s
law is content neutral because “[i]t applies to all ‘protest,’ to all ‘counseling,’ and
to all demonstrators whether or not the demonstration concerns abortion, and
whether they oppose or support the woman who has made an abortion decision.”
Id. at *3 (quoting Hill, 530 U.S. at 726). The district court further concluded that
the law “is clearly narrowly tailored to advance Westchester County’s significant
governmental interest in protecting individuals attempting to enter health care
facilities from ‘unwanted encounters, confrontations, and even assaults by
enacting an exceedingly modest restriction on the speakers’ ability to approach.’”
Id. (quoting Hill, 530 U.S. at 729).
DISCUSSION
Vitagliano concedes that the Supreme Court’s decision in Hill is binding
precedent, and that the district court correctly applied this precedent in dismissing
12 her claim. Vitagliano nevertheless pursues this appeal in the hope that the
Supreme Court will revisit and overrule Hill and hold that bubble zone restrictions
like the County’s violate the First Amendment. Vitagliano also asserts error as to
the district court’s standing ruling, contending that the district court premised its
reasoning on an erroneous reading of her complaint and a misapplication of
standing precedent. We review de novo both the district court’s dismissal of a
complaint for lack of standing and for failure to state a claim. See Allco Fin. Ltd.
v. Klee, 805 F.3d 89, 93 (2d Cir. 2015).
I. Standing
We begin with standing “because it is a ‘jurisdictional’ requirement and
‘must be assessed before reaching the merits.’” Calcano v. Swarovski N. Am. Ltd.,
36 F.4th 68, 74 (2d Cir. 2022) (quoting Byrd v. United States, 138 S. Ct. 1518, 1530
(2018)). “To establish Article III standing, a plaintiff must show (1) an ‘injury in
fact,’ (2) a sufficient ‘causal connection between the injury and the conduct
complained of,’ and (3) a ‘likelihood’ that the injury ‘will be redressed by a
favorable decision.’” Picard v. Magliano, 42 F.4th 89, 97 (2d Cir. 2022) (quoting
Susan B. Anthony List v. Driehaus, 573 U.S. 149, 157–58 (2014)). The district court
determined that Vitagliano had not suffered an injury in fact and thus failed on
13 the first standing requirement. This conclusion, however, minimizes the
concreteness of Vitagliano’s plans to engage in sidewalk counseling, fails to credit
her allegations concerning the efforts she took to learn how to become a sidewalk
counselor, and overlooks the details as to how and where she plans to engage in
such counseling. Under applicable precedent, Vitagliano has adequately alleged
that she suffered an injury in fact and, furthermore, that this alleged injury was
caused by the law at issue and is redressable by a ruling in her favor.
Accordingly, Vitagliano has standing to bring this pre-enforcement challenge to
the County’s bubble zone law.
An injury sufficient to satisfy Article III must be “concrete and
particularized” and “actual or imminent, not ‘conjectural’ or ‘hypothetical.’”
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (citations omitted). An
allegation of future injury may suffice if the threatened injury is “certainly
impending,” or there is a “‘substantial risk’ that the harm will occur.” Clapper v.
Amnesty Int’l USA, 568 U.S. 398, 409, 414 n.5 (2013) (emphasis and internal
quotation marks omitted). “Pre-enforcement challenges to criminal statutes”—
such as the County’s bubble zone law—“are cognizable under Article III,” as it is
well established that a “plaintiff need not first expose [her]self to liability before
14 bringing suit to challenge . . . the constitutionality of a law threatened to be
enforced.” Picard, 42 F.4th at 97 (internal quotation marks and citations omitted).
Courts apply a three-prong test to assess the existence of a cognizable injury in fact
in the context of pre-enforcement challenges, which requires a plaintiff to
demonstrate: (1) “an intention to engage in a course of conduct arguably affected
with a constitutional interest”; (2) that the intended conduct is “proscribed by” the
challenged law; and (3) that “there exists a credible threat of prosecution
thereunder.” Susan B. Anthony List, 573 U.S. at 159 (internal quotation marks and
citation omitted). In other words, “a plaintiff has standing to make a
preenforcement challenge ‘when fear of criminal prosecution under an allegedly
unconstitutional statute is not imaginary or wholly speculative.’” Cayuga Nation
v. Tanner, 824 F.3d 321, 331 (2d Cir. 2016) (quoting Hedges v. Obama, 724 F.3d 170,
196 (2d Cir. 2013)). Vitagliano has satisfied all three elements to establish that she
has suffered an injury in fact related to the prospect of the County’s enforcement
of its bubble zone law.
First, Vitagliano’s desire to engage in sidewalk counseling involves a course
of conduct affected with a constitutional interest. Vitagliano alleges that she
wishes to “stand on the public way outside of a White Plains abortion clinic,
15 approach women entering the clinic, and initiate gentle, compassionate
conversations about the woman’s situation and resources available should she
decide to carry her child to term.” App’x 1–2. As part of her intended sidewalk
counseling, Vitagliano plans to distribute pamphlets containing information about
the services and resources available to women who have children. Id. at 7, 9.
These plans are clearly affected with a First Amendment interest. For one,
“traditional public fora,” such as the sidewalks and public ways where Vitagliano
wishes to engage in sidewalk counseling, “are areas that have historically been
open to the public for speech activities.” McCullen v. Coakley, 573 U.S. 464, 476
(2014). Furthermore, “[l]eafletting and commenting on matters of public concern
are classic forms of speech that lie at the heart of the First Amendment,” especially
in traditional public fora where speech “is at its most protected[.]” Schenck v. Pro-
Choice Network of W. N.Y., 519 U.S. 357, 377 (1997); see also Hill, 530 U.S. at 715
(“[L]eafletting, sign displays, and oral communications are protected by the First
Amendment.”). Because Vitagliano’s intended activities involve peaceful
communication on an issue of public concern in a public area, she has satisfied the
first prong of the pre-enforcement injury-in-fact test.
16 The district court denied Vitagliano standing because she “only alleged, in
the most general fashion, that . . . her exercise of free speech has been chilled by
the enactment of the Buffer Zone Provision.” Vitagliano, 2023 WL 24246, at *3
(internal quotation marks omitted). The district court emphasized that
Vitagliano had “never engaged in sidewalk counseling,” did not “allege concrete
plans to do so at any point in the future,” and needed “‘proper training’ before she
would even consider sidewalk counseling.” Id. The last statement, however,
misconstrued the complaint, which explained that Vitagliano has now received
such training. App’x 7. Further, a plaintiff asserting a pre-enforcement
challenge need only allege “an intention to engage in a course of conduct,” which
does not necessarily require specification of the date and time she plans to do
something of constitutional significance. Picard, 42 F.4th at 97 (quoting Susan B.
Anthony List, 573 U.S. at 159). Vitagliano included in her complaint descriptions
of the origin of her desire to become a sidewalk counselor, the steps she took to
train and prepare to serve as a sidewalk counselor, the abortion clinic outside
which she intends to provide sidewalk counseling, and the approach she plans to
take when having sidewalk-counseling conversations. App’x 5–12.
17 This level of detail more than suffices to establish Vitagliano’s “earnest
desire to engage in sidewalk counseling” “but for” the enactment of the bubble
zone restriction. Id. at 15; see also, e.g., Silva v. Farrish, 47 F.4th 78, 87 (2d Cir. 2022)
(finding that a group of fishermen could bring a pre-enforcement challenge to state
fishing laws when they alleged the regulations “deterred and chilled” them from
fishing and that “they would fish if they did not fear prosecution”); Picard, 42 F.4th
at 95, 97–101 (finding standing for a pre-enforcement challenge to a criminal
statute restricting activity outside of courthouses for a plaintiff who alleged
“[a]bsent his fear” of prosecution “he would continue to promote jury nullification
outside New York courthouses”). That Vitagliano had not engaged in sidewalk
counseling prior to the Act’s passage does not require a different result. See Susan
B. Anthony List, 573 U.S. at 159 (requiring only an “intention to engage in a course
of conduct” (internal quotation marks omitted)); 303 Creative LLC v. Elenis, 6 F.4th
1160, 1172 (10th Cir. 2021) (finding intent to engage in conduct where “[a]lthough
Appellants have not yet offered wedding website services,” they “provided clear
examples of the types of websites they intend to provide”), cert. granted on different
question, 142 S. Ct. 1106 (2022); Telescope Media Grp. v. Lucero, 936 F.3d 740, 750 (8th
18 Cir. 2019) (finding standing where plaintiff planned to “enter” business that would
be affected by challenged law).
Second, Vitagliano’s sidewalk counseling is squarely proscribed by the Act.
In evaluating this prong of the standing analysis, a plaintiff’s intended conduct
need only be “‘arguably proscribed’ by the challenged statute,” not necessarily “in
fact proscribed.” Picard, 42 F.4th at 98 (quoting Susan B. Anthony List, 573 U.S. at
162). Vitagliano’s allegations exceed the applicable standard. The challenged
provision of the Act makes it illegal within 100 feet of an abortion clinic to
“[k]nowingly approach another person within eight (8) feet,” absent that person’s
consent, “for the purpose of passing any material, item, or object to, displaying a
sign to, or engaging in oral protest, education, or counseling.” Westchester Cnty.,
N.Y., Charter & Admin. Code § 425.31(i). This is precisely what sidewalk
counseling entails and Vitagliano’s allegations make it clear that her desired
course of conduct is proscribed by the Act.
Third, and finally, Vitagliano has demonstrated that she faces a credible
threat of enforcement if she follows through with her intention to engage in
sidewalk counseling. The County contends that Vitagliano “has not identified a
credible threat of enforcement, outside of the general existence of the law,” and
19 argues that she must plead something more than an intention to engage in conduct
clearly proscribed by the Act. Appellee’s Br. 8; see also id. at 7–10. To be sure,
“[t]he identification of a credible threat sufficient to satisfy the imminence
requirement of injury in fact necessarily depends on the particular circumstances
at issue.” Knife Rights, Inc. v. Vance, 802 F.3d 377, 384 (2d Cir. 2015). But the
County’s argument ignores the well-established proposition that “[w]here a
statute specifically proscribes conduct, the law of standing does not place the
burden on the plaintiff to show an intent by the government to enforce the law
against it.” Tweed-New Haven Airport Auth. v. Tong, 930 F.3d 65, 71 (2d Cir. 2019)
(internal quotation marks and citation omitted). Rather, we “presume[ ] such
intent in the absence of a disavowal by the government or another reason to
conclude that no such intent existed.” Id. (internal quotation marks and citation
omitted). The credible-threat standard “sets a low threshold and is quite
forgiving to plaintiffs seeking such preenforcement review, as courts are generally
willing to presume that the government will enforce the law as long as the relevant
statute is recent and not moribund.” Cayuga Nation, 824 F.3d at 331 (internal
quotation marks and citation omitted).
20 The County enacted the bubble zone restrictions in June 2022, just months
before Vitagliano brought this action—hardly moribund—and Vitagliano’s
intended course of conduct falls squarely within the Act’s prohibitions.
Moreover, there is no indication that the County has disavowed enforcement of
the bubble zone restriction; to the contrary, when asked at oral argument, the
County declined to represent that county officials would not enforce the law.
With no reason to doubt that the County will enforce its recently enacted law
against those who violate its terms, we may presume that Vitagliano faces a
credible threat of enforcement if she pursues her intention to counsel on the
sidewalk.
The County relies on Adam v. Barr, 792 F. App’x 20 (2d. Cir. 2019), in which
we held that a pro se plaintiff lacked standing to sue federal officials to enjoin
potential enforcement of the Controlled Substances Act (“CSA”), 84 Stat. 1242, 21
U.S.C. § 801 et seq., against him because he wished to possess and use marijuana
for religious purposes. But Adam, an unpublished summary order, is not
analogous to the instant case. Adam arose out of a suit against the federal
government, involving a supposed threat of prosecution under a decades-old law
with nationwide scope. We explained that the presumption that the government
21 will enforce its own laws “in and of itself, is not sufficient to confer standing, as
courts also consider the extent of that enforcement in determining whether a
credible threat of prosecution exists.” Adam, 792 F. App’x at 23. Despite the
CSA’s extensive enforcement history, the plaintiff was unable to marshal examples
of enforcement actions that involved the kind of personal religious use of
marijuana in which he planned to partake. Id. at 22–23. Because the plaintiff
had not “partizularize[d] the CSA’s enforcement in relation to” his conduct, he
was “simply . . . at risk just like any other person in the country who might violate
the CSA.” Id. at 23. We thus held that “the threat of enforcement against him
[was] insufficiently imminent to confer Article III standing.” Id. (citation
omitted).
The circumstances of Vitagliano’s case present an eminently more credible
threat of prosecution. Vitagliano seeks to enjoin a newly enacted law aimed
specifically at Westchester County reproductive health care facilities and designed
to curb the very conduct in which she intends to engage outside such facilities.
Far from the facts of Adam, Vitagliano’s allegations reveal her intent to engage in
conduct only recently criminalized and in the precise location that the new law
22 targets. We are convinced that the “particular circumstances at issue” here make
the threat of prosecution highly “credible.” Knife Rights, 802 F.3d at 384.
The County additionally cites several cases in which a plaintiff faced either
previous enforcement actions or a stated threat of future prosecution under a
challenged law. See Appellee’s Br. 8. While evidence of such activity is, of
course, relevant to assessing the credibility of an enforcement threat, none of these
cases suggest that such evidence is necessary to make out an injury in fact. See,
e.g., Susan B. Anthony List, 573 U.S. at 164 (observing “that past enforcement
against the same conduct is good evidence that the threat of enforcement is not
chimerical” (emphasis added) (internal quotation marks and citations omitted)).
Weakening the County’s argument, we have explained that requiring an “overt
threat to enforce” a criminal prohibition “would run afoul of the Supreme Court’s
admonition not to put ‘the challenger to the choice between abandoning his rights
or risking prosecution.’” Tong, 930 F.3d at 70 (quoting MedImmune, Inc. v.
Genentech, Inc., 549 U.S. 118, 129 (2007)). And we have previously found standing
where there was no “express threat of prosecution specifically directed at the
plaintiff.” Cayuga Nation, 824 F.3d at 332 n.9 (citing Knife Rights, 802 F.3d at 384
n.4, 386–87). Likewise, the Supreme Court and at least four other circuits have
23 sustained pre-enforcement standing without a past enforcement action or an overt
threat of prosecution directed at the plaintiff. 5
Vitagliano has thus adequately alleged an injury in fact for Article III
purposes. She additionally satisfies the causation and redressability
requirements, in that her injury is fairly traceable to the challenged bubble zone
law and can be redressed by her requested relief, i.e., a declaration that the bubble
zone law is unconstitutional and an injunction enjoining its enforcement. See
Lujan, 504 U.S. at 560–61. Therefore, Vitagliano has standing to bring this pre-
enforcement challenge to the County’s bubble zone law.
II. Merits
We need not dwell on the merits of Vitagliano’s First Amendment challenge
to the County’s bubble zone law, as Vitagliano concedes (and we agree) that the
district court correctly applied Hill in dismissing her claim. At issue in Hill was
a 1993 Colorado statute that made it unlawful within 100 feet of any health care
See Virginia v. Am. Booksellers Ass’n, Inc., 484 U.S. 383, 392–93 (1988) (permitting 5
a pre-enforcement challenge to a statute initiated before the statute became effective); Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 302 (1979) (finding pre- enforcement standing without a specific threat of prosecution and even though the criminal prohibition had “not yet been applied and may never be applied” to a particular course of conduct); see also Speech First, Inc. v. Fenves, 979 F.3d 319, 336–37 (5th Cir. 2020); Speech First, Inc. v. Schlissel, 939 F.3d 756, 766 (6th Cir. 2019); Majors v. Abell, 317 F.3d 719, 721 (7th Cir. 2003); Mangual v. Rotger-Sabat, 317 F.3d 45, 57 (1st Cir. 2003).
24 facility to “‘knowingly approach’ within eight feet of another person, without that
person’s consent, ‘for the purpose of passing a leaflet or handbill to, displaying a
sign to, or engaging in oral protest, education, or counseling with such other
person[.]’” Hill, 530 U.S. at 707 (quoting Colo. Rev. Stat. § 18-9-122(3) (1999)).
Although not identical in all respects, the County’s bubble zone law was modeled
after this Colorado law. 6 Similar to Vitagliano, the petitioners in Hill were
sidewalk counselors who alleged that Colorado’s bubble zone chilled the exercise
of their fundamental right to free speech. Id. at 708–09. Furthering the
similarities between the two cases, the Hill petitioners asserted that Colorado’s law
was a content-based restriction on speech that failed strict scrutiny. Id. at 709.
The Supreme Court determined that Colorado’s bubble zone law was
content-neutral because it “simply establishes a minor place restriction on an
extremely broad category of communications with unwilling listeners.” Id. at
723. “Instead of drawing distinctions based on the subject that the approaching
6 For instance, § 425.31(i) of the Act prohibits passing “any material” within the prescribed bubble zone, whereas Colorado’s law restricted the passing of “leaflet[s] or handbill[s].” Compare Westchester Cnty., N.Y., Charter & Admin. Code § 425.31(i), with Colo. Rev. Stat. § 18-9-122(3). Moreover, the County’s bubble zone restrictions operate only outside of facilities that offer reproductive health care services (including abortion facilities and anti-abortion pregnancy centers), whereas Colorado’s law applies outside of all facilities licensed to provide medical treatment. Compare Westchester Cnty., N.Y., Charter & Admin. Code § 425.21(k)–(l), with Colo. Rev. Stat. § 18-9-122(4).
25 speaker may wish to address”—a paradigmatic regulation targeting content—the
restriction “applies equally to used car salesmen, animal rights activists,
fundraisers, environmentalists, and missionaries,” permitting each to “attempt to
educate unwilling listeners on any subject,” so long as they did not approach
within eight feet without consent to do so. Id. Applying intermediate scrutiny,
the Court held that the Colorado law was a valid time, place, and manner
regulation that (1) was narrowly tailored to serve the important governmental
interests of safeguarding public health and safety and shielding captive listeners
from unwanted communication and (2) left open ample alternative channels for
communication. Id. at 714–18, 725–30.
Vitagliano argues in her briefing why she believes Hill was wrongly decided
and is irreconcilable with intervening Supreme Court precedent. These
arguments have no bearing on the disposition of the appeal now before us. The
Supreme Court has stated in clear terms that “[i]f a precedent of this Court has
direct application in a case, yet appears to rest on reasons rejected in some other
line of decisions, the Court of Appeals should follow the case [that] directly
controls, leaving to this Court the prerogative of overruling its own decisions.”
Agostini v. Felton, 521 U.S. 203, 237 (1997) (internal quotation marks and citation
26 omitted). Accordingly, Hill remains controlling precedent and dictates that the
County’s bubble zone withstands First Amendment scrutiny.
CONCLUSION
For the foregoing reasons, we VACATE the portion of the district court’s
judgment finding that Vitagliano lacked standing and AFFIRM the dismissal of
Vitagliano’s challenge to the County’s bubble zone law on the merits.