Sabelko

dissenting.

By voice, pamphlet or placard some citizens of the United States are actively engaged in a vigorous debate on the sidewalks, streets and other public places adjacent to health care facilities located in cities and towns across the country. The debate is also heard in the nation’s capítol.

*1174 Unlike the Senators who are given a privilege on the floor of the Senate, the citizen demonstrators in this case claim a right to free speech protected by the First Amendment. So it is that I address the question whether speech incident to demonstration activity in the vicinity of health care facilities may be proscribed by city ordinance.

The City of Phoenix enacted Ordinance No. G3705 requiring any person engaged in demonstration activity within 100 feet of a health care facility to withdraw at least eight feet away from any person who requests it. Because I believe the ordinance is not narrowly tailored and overly burdens protected speech, I respectfully dissent.

I

In 1993, due to concerns about harassment outside health care facilities, the City of Phoenix enacted an ordinance limiting “demonstration activity” near such clinics. The ordinance in effect allowed…

In response to rising protest around abortion clinics in Phoenix, Arizona, the City Council in November of 1993 passed an ordinance regulating the conduct of demonstrators in public areas within 100 feet of health care facilities. Known as the Phoenix “bubble” ordinance, the law makes illegal a demonstrator’s failure to honor a person’s “clearly communicated request” to withdraw to a distance of eight feet from the person if the demonstrator is in a public area within 100 feet of a health care facility.

Six days after Phoenix enacted the ordinance, plaintiffs Katherine Sabelko and Nancy Barto filed suit in federal court pursuant to 42 U.S.C. § 1983 seeking declaratory and injunctive relief against the City on the ground that the ordinance violated their First Amendment rights. The plaintiffs describe themselves as antiabortion sidewalk counselors who distribute literature in front of Phoenix clinics and attempt to engage others in peaceful conversation about alternatives to abortion.

The district court granted the injunction and the city now appeals. Appearing amici *1171 curiae in this action in support of the City are Planned Parenthood of Central and Northern Arizona, Inc.…