Clift v. City of Burlington (925 F. Supp. 2d 614, 2013)

Memorandum Opinion and Order

WILLIAM K. SESSIONS III, District Judge.

Six Vermont residents, Agnes Clift, Amy Cochran, Molly Jesse, Rita Mantone, Bridget Mount, and Jean Osborne (the “Plaintiffs”) have brought facial and as-applied challenges to the constitutionality of Burlington Code § 21-113(2) (the “Ordinance”) under 42 U.S.C. § 1983. The Ordinance creates a fixed buffer zone extending 35 feet from the premises of a reproductive health care facility (“RHCF”) within which individuals may not “knowingly congregate, patrol, picket or demonstrate” unless they fall within one of five exemptions. The Plaintiffs claim that the Ordinance violates their First and Fourteenth Amendment rights because it discriminates on the basis of content and viewpoint; because it is an invalid time, place, and manner restriction; because it is substantially overbroad; and because it is unconstitutionally vague. Compl. ¶¶ 142-97, ECF No. 1.

Before the Court are two motions. For the reasons stated below, the Court grants the City’s Motion to Dismiss the facial challenges to the Ordinance, ECF No. 13, and denies Plaintiffs’ Motion for a Preliminary Injunction, ECF No. 8.

BACKGROUND

I.The Ordinance

On 'July 16, 2012, the Burlington City Council (the “Council”) amended the City’s Code of Ordinances by adopting a new article, Article IX, Health Center Buffer Zones. Burlington City Ordinance (“BCO”) § 21-111 et seq. Article IX consists of five sections.

Section 21-111 lists the Council’s findings. The Council recognized the need to balance individuals’ First Amendment “right to speak for or against certain medical procedures” with other individuals’ “right to obtain medical counseling and treatment in an unobstructed manner.” BCO § 21-111. The Council explained that in adopting the Ordinance, its intention was

to ensure public safety and order, regulate the use of public sidewalks and other conduct, promote the free flow of traffic on streets and sidewalks, reduce disputes and confrontations requiring law enforcement services, protect property rights, protect First Amendment freedoms of speech and expression and secure a person’s right to seek reproductive health care services.

Id. And the Council concluded that the limited buffer zone established by the Article was “necessary to ensure that patients have unimpeded access to reproductive health care services while also ensuring that the First Amendment rights of people to communicate their message to their intended audience is not unduly restricted or overburdened.” Id.

Section 21-112 defines several terms used throughout Article IX:

(1) Reproductive Health Care Facilities shall mean any building, structure or place, or any portion thereof, at which licensed, certified, or otherwise legally authorized persons provide health care services or health care counseling relating to the human reproductive system.

(2) Buffer Zone means an area of protection surrounding the premises of a Reproductive Health Care Facility that has a thirty-five (35) foot radius extending in all directions.

(3) Premises of a Reproductive Health Care Facility shall mean the driveway, entrance, entryway, or exit of a Reproductive Health Care Facility and any parking lot in which the facility has an ownership, easement or leasehold interest or other property right.

(4) Person shall include, but is not limited to

1. Individuals;

2. Corporations;

3. Not-for profit organizations;

4. Partnerships;

5. Associations; and

6. Groups or other entities.

Id. at § 21-112.

Section 21-113 contains two separate provisions. Subsection (1), which is not challenged by Plaintiffs, prohibits individuals from knowingly obstructing, detaining, hindering, impeding or blocking another person from entering or exiting an RHCF. Subsection (1) does not apply to certain municipal agents such as firemen and utility workers nor to employees or agents of an RHCF acting within the scope of their employment. Subsection (2), the provision at issue in this suit, states that “[n]o person or persons shall knowingly congregate, patrol, picket or demonstrate in the Buffer Zone.” Id. at § 21-113(2). Subsection (2) expressly exempts five categories of individuals from this general prohibition: (1) “persons entering or leaving [an RHCF]”; (2) “employees or agents of [an RHCF] acting within the scope of their employment”; (3) “law enforcement, ambulance, firefighting, construction, utilities, public works, and other municipal agents acting within the scope of their employment”; (4) “persons using the public sidewalk or street right-of-way adjacent to such facility solely for the purpose of reaching a destination other than such facility”; and (5) “any person or persons on private property having the consent of the property owner.” Id.

Section 21-114 authorizes civil penalties ranging from fifty to five hundred dollars for violations of the Article.

Section 21-115 contains a severability clause.

II. Planned Parenthood

A. The Buffer Zone

The Plaintiffs allege that the Ordinance, which came into effect on August 15, 2012, has severely disrupted their ability to approach, counsel, and distribute information to individuals approaching Planned Parenthood’s Burlington Health Center (“Planned Parenthood”) at 183 St. Paul Street. St. Paul Street runs north to south and has two travelling lanes (one in each direction) and parking spaces on both shoulders. Traffic is intermittent, and noise levels vary throughout the day. On both sides of the street, there is a small strip of grass and a public sidewalk running parallel to the road. Planned Parenthood occupies a single building with a main entrance accessible from the sidewalk on the west side of the street. Planned Parenthood also leases several parking spaces for its clients in a privately-owned lot located directly south of the building, Compl. ¶¶ 37-40; however, the lot is not in use at the moment because an underground parking facility is under construction. See Pis.’ Exs. 12-14.

The layout of the buffer zone at Planned Parenthood is not disputed. It consists of two areas: a half-circle with a radius of 35 feet centered on the main entrance of the facility and a quasi-trapezoid extending 35 feet to the north, south, and east of the lot. See Def. Ex. A. The two areas overlap, causing a continuous 228-foot stretch of sidewalk to fall within the buffer zone. Compl. ¶ 43. Because the west curb of St. Paul Street is 22 feet from the facility, the buffer zone extends as much as 13 feet into the street, just short of the lines that divide the travelling lanes. Id. at ¶¶ 38; Def. Ex. A.

B. Application of the Ordinance

The buffer zone at Planned Parenthood does not prevent individuals from congregating, patrolling, picketing, or demonstrating once they are 35 feet or more away from the main entrance and parking lot of the facility. In theory, this means a person could occupy any space along the edge of the buffer zone; however, because of where it falls in relation to St. Paul Street, individuals may congregate, patrol, picket, and demonstrate in three stretches by Planned Parenthood. First, they may stand south of the buffer zone on the same side of the street as the facility, a location that is 193 feet from the main entrance. The Plaintiffs seldom occupy this location. Second, they may stand north of the buffer zone, where they are roughly 35 feet from the main entrance. This location is directly in front of a hair salon, and although Plaintiffs occasionally stand there, they generally try to avoid it to accommodate the salon-owner’s concerns that their activities would harm his business. Finally, the Plaintiffs may stand on the opposite side of St. Paul Street, across from Planned Parenthood’s main entrance or parking lot. This has been the primary location of the Plaintiffs’ activities since the Ordinance came into effect, and from that area, the Plaintiffs are at least 68 feet from the main entrance to Planned Parenthood. Compl. ¶ 46. After the Ordinance came into effect, the City marked off the last metered parking spot on the east side of St. Paul Street for Plaintiffs so that they would be more visible to persons entering or exiting Planned Parenthood. Id. ¶ 47.

Although the Plaintiffs are willing to share their views with passers-by and to provide information to individuals leaving the facility, their target audience is women who are entering Planned Parenthood to receive counseling or medical services. In the Plaintiffs’ experience, close, personal contact with that audience is the most effective way to communicate their message. Though each of the Plaintiffs expresses herself in a slightly different manner, they all agree that shouting from a distance is generally counter-productive. In an affidavit, Ms. Clift explained,

I have found that close personal communication, in a normal conversational voice level, with a kind, gentle voice, and with eye contact, using very few words — from a distance of six to ten feet — is the only way to effectively communicate with women at Planned Parenthood. I have found that eye contact and a smile are very important to get these women to be responsive. I often merely ask them if they would please take my brochure. My experience tells me that communicating in this manner is the best way to provide information and assistance to women seeking abortion.

Clift. Dec., ECF No. 8-10, ¶ 27.

The Plaintiffs claim that individuals entering the facility cannot hear them from any of the locations outside of the buffer zone unless they shout. The physical separation imposed by the buffer zone combined with ambient noise on the street from traffic or construction occasionally prevents' them from being heard at all. The Plaintiffs’ ability to distribute leaflets has also been significantly compromised. Many individuals entering the facility arrive by car and either park or are dropped off within the buffer zone. Theoretically, the Plaintiffs may still reach persons arriving by foot; however, it can be hard to identify whether a pedestrian is heading to the facility or simply walking past until that individual has entered the buffer zone. In fact, in the months since the Ordinance came into effect, only once have the Plaintiffs given a leaflet to a person entering or leaving the facility. The buffer zone interferes less with Plaintiffs’ other activities, which include holding signs, engaging in silent and vocal prayer, calling out to individuals entering the facility, and singing. The buffer zone has no impact on the Plaintiffs’ ability to communicate with individuals who voluntarily leave the buffer zone to speak with them or to pick up a leaflet; however, in practice, that is a relatively rare event.

None of the Plaintiffs have received tickets for violating the buffer zone at Planned Parenthood, but they have received verbal and written warnings from officers of the Burlington Police Department. For example, on August 15, 2012, Plaintiff Jean Osborne walked into the buffer zone to offer a leaflet to a couple that was approaching Planned Parenthood on foot. Compl. ¶ 61. After the couple declined, Osborne returned to the edge of the buffer zone. Id. Shortly thereafter, Officer Mike Warren arrived on the scene and spoke with Osborne. Officer Warren warned her that she would be ticketed if she continued to try to distribute leaflets inside the buffer zone. Id. When Osborne objected on the grounds that leafleting was not explicitly prohibited under the Ordinance, Officer Warren replied that any activity inside the zone was prohibited.

Later that day, another one of the Plaintiffs, Amy Cochran, entered the buffer zone to read her prayer book on a grass strip next to the sidewalk in front of Planned Parenthood. Id. ¶ 62. Officer Kim Shelley of the Burlington Police Department responded to a call reporting a violation of the buffer zone. Upon her arrival, Officer Shelley “observed Amy Cochran kneeling down on the greenbelt across from the entrance to the facility.” Def. Ex. G. Shelley “heard Cochran mumbling something about ‘God’ and ‘help these women.’ ” Id. Shelley then spoke with Cochran about the Ordinance and explained that no demonstrating was permitted within 35 feet of the building. Id. Shelley issued Cochran a written warning, escorted her out of the buffer zone, and informed her of an informational meeting about the Ordinance that would be taking place at City Hall later in the day. Id.; Pis.’ Ex. 18.

On the morning of January 23, 2013, Barry Kade, a pro-choice and free speech activist, began distributing leaflets in front of Planned Parenthood. Kade’s leaflets expressed opposition to the Ordinance and asked city residents to call for its repeal. After 20 minutes, two Burlington police officers arrived on the scene and requested that Kade leave. Kade refused to do so unless he was given a ticket or a written warning. One of the officers, Lieutenant Kathleen Stubbing, entered Planned Parenthood to speak with employees of the facility. When she emerged a few minutes later, Kade informed her that he would be leaving the buffer zone but requested that she let him know when officers would begin issuing tickets for violations of the Ordinance. See Pis.’ Ex. 20. Later that week, Kade sent an email to Lieutenant Stubbing asking her whether she would have given him a ticket if he had stayed. She simply responded that the police department remains “in the educational phase [in] reference [to] this ordinance.” Id.

On August 15, 2012 and at other times since the Ordinance came into effect, Planned Parenthood employees or agents have been stationed at the main entrance to escort individuals approaching the entrance. Id. ¶¶ 60, 63, 65-66. The Plaintiffs allege that these escorts have on at least two occasions interfered with their efforts to communicate with people entering Planned Parenthood. For instance, on August 29, 2012, Cochran was standing at the north end of the buffer zone with a sign containing the words “I REGRET MY ABORTION.” Cochran claims that when two individuals approached the main entrance from the south, two Planned Parenthood escorts walked in front of and alongside them in a manner that blocked their view of Cochran’s sign. And on September 5, 2012, a male and female were standing together outside Planned Parenthood smoking cigarettes. When Plaintiff Bridget Mount called out to the couple and offered information, a Planned Parenthood escort led them into the building.

Rebecca Galvin, who served as a volunteer escort at Planned Parenthood while the Ordinance was in effect (and has since been hired as a part-time employee) testified that she and other escorts are trained to greet clients and to walk them to the entrance of Planned Parenthood without engaging them in any substantive conversation. Planned Parenthood instructs escorts not to engage in any advocacy, and in Galvin’s experience, they follow that directive. Galvin also testified that despite the intermittent traffic flow on St. Paul Street, she is able to hear the Plaintiffs when she is standing by the entrance to Planned Parenthood. She had no doubt that patients approaching Planned Parenthood could also hear communications from the other side of the street because they often reacted with fear, confusion, or anger.

III. The Ordinance Educational Meeting

Since the Ordinance came into effect, Plaintiffs have expressed confusion about the scope of the activities prohibited in the buffer zone. They profess not to understand the meaning of the terms “congregate” or “patrol”; they think the terms “demonstrating” and “picketing” do not cover some of their activities, including prayer and singing; and they are confused by the scope of the exception for “persons using the public sidewalk ... solely for the purposes of reaching a destination other than [an RHCF].” BCO § 21-113(2)(a)(4) (emphasis added).

Partially to address these concerns, city officials held an educational meeting at City Hall on August 15, 2012, to explain how they planned to enforce the Ordinance. Deputy Police Chief Jennifer Morrison, Assistant City Attorney Gene Burg-man, and Assistant to the Mayor Carina Driscoll all spoke on behalf of the City. Pis.’ Ex. 11. Plaintiffs Agnes Clift, Molly Jesse, and Bridget Mount were among those in attendance. During the meeting, the city officials acknowledged that administering the Ordinance would require police to consider the spirit, not just the letter of the law. For example, when the Plaintiffs asked whether praying inside the buffer zone constituted a violation of the Ordinance, the city officials explained that the police officer at the scene would have to determine whether the hypothetical praying amounted to a demonstration and was therefore subject to the Ordinance. Id. Driscoll, the Mayor’s assistant, explained that “the intent of the Ordinance was so that people entering RHCFs did not have to face demonstrators or be bothered.” Id. When asked to define the meaning of the key terms of the Ordinance, city officials advised the attendees that they would need to arrive at their own understanding of those terms by consulting a dictionary. Id.

Deputy Police Chief Morrison also explained that the Police Department would be entering an “educational phase” of enforcing the Ordinance and sought the Plaintiffs’ cooperation:

The ordinance has been passed. It has been conveyed to us. We are expected to be the enforcement arm of this ordinance. So we are going to do our best to work with people, to educate them, and to ask for compliance from them. It is not the desire of the Burlington Police Department to become adversarial. We understand that you have a very strong position about wanting to be there and to be where folks are accessing this area, but we also understand that the ordinance is clear that it’s creating a buffer zone. So, there, there is definitely, a lot of — some discretion in here as to what constitutes a demonstration, picketing, etc. In days ahead, will we need to flush out specifies of that? Maybe....

Pis.’ Ex. 11. When asked whether specific activities such as praying within the buffer zone would constitute “demonstrating,” Deputy Chief Morrison gave the following response:

I think I can’t give you a black-or-white answer. I think I’m going to tell you this: that if I am the officer dispatched to the scene, and I perceive that your act of standing within the buffer zone and praying or doing whatever you are doing constitutes a quote “demonstration,” then I will — then that officer will be expected to enforce the ordinance. I think there’s going to be a level of discretion that is involved here. And I think I would ask you that, really candidly, if there[ are] issues like that that need to be clarified, let’s do it through the wording of the language, let’s work on it together. Let’s not put our backs up and see how far we can go until we force a police officer to take action. We’re talking about folks who are out there doing the best they can, exercising — you know — under an ordinance that has some grey in it. Let’s work together to make it clear what is and isn’t allowed, but let’s not get into an adversarial position with the police officers on the street.

Id.

After the Ordinance Educational Meeting, Plaintiffs counsel, Norman Smith, sent a letter to Burlington Police Chief Michael Schirling requesting clarification as to whether the following activities were lawful within the buffer zone: offering literature, one-on-one oral communications, praying out loud, praying silently, praying silently while wearing a pro-life t-shirt, reading the Bible while wearing a pro-life t-shirt, singing, and singing while wearing a pro-life t-shirt. Letter to Chief Schirling, ECF. No. 8-26. The letter also requested clarification as to whether the Ordinance “prohibit[s] a non-exempt person from being inside the [buffer] zone for any purpose except to reach a destination other than a reproductive health care facility.” Id. In response, Chief Schirling stated that he could not answer those questions and referred the Plaintiffs to the City Attorney.

IV. Care Net

The Plaintiffs also allege that the Ordinance has been enforced differently at Care Net, a pro-life RHCF, than it has been at Planned Parenthood, which is pro-choice. Compl. ¶¶ 61-67, 86-96. For one, the City has posted five signs around Planned Parenthood demarcating the buffer zone but has not done the same at Care Net. Clift Dep. ¶¶ 36, 60, ECF No. 8-10. It is not clear whether the City installed the signs pursuant to Planned Parenthood’s request and, if so, whether Care Net has made a similar request.

On two occasions, protesters associated with the pro-choice group FED-UP Vermont have demonstrated within the buffer zone at Care Net. The first occurred on September 11, 2012. At approximately 5:30 p.m., Deb Coulture, the Executive Director of Care Net, called the Burlington Police to report the protest. Fifteen minutes later, Lieutenant Scott Davidson arrived on the scene and entered Care Net to speak with Coulture. Lieutenant Davidson asked Coulture what she wanted him to do and told her that the protesters had argued that the Ordinance did not apply to Care Net because it was not “a medical center.” Deck Deb Coulture ¶ 5, ECF No. 8-8. Coulture explained that Care Net provides reproductive health care services, including counseling, ultrasound, and pregnancy verification and stated that she wanted the protesters to abide by the buffer zone. Id. According to Coulture, Lieutenant Davidson told her that the protesters would be done shortly, expressed the opinion that the Ordinance was “ridiculous,” and asked her if she “really want[ed] to tie up an officer for the next 18 minutes.” Id. at ¶ 6. When Coulture repeated her request that he enforce the Ordinance, Lieutenant Davidson replied, “Do you want me to ticket them? It will take a lot longer than 18 minutes to ticket all of them. They are going to be gone in a little while. Do you really want me to tie up an officer when there are more important things going on in the city?” Id. Lieutenant Davidson then left the building, but he did not attempt to move the protesters out of the buffer zone. Compl. ¶ 96. Half an hour later, he returned and told Coulture that the demonstrators were leaving.

The second incident occurred on October 9, 2012. Terri Seward, the Development Director of Care Net, called the Burlington Police Department at approximately 5:40 p.m. to report that around ten protesters were demonstrating 12 to 15 feet from Care Net’s entrance. After describing the basic circumstances of the protest to the dispatcher, Seward was placed on hold for several minutes. Def. Ex. M. Seward called the Department again, at which point she spoke to a different dispatcher, who informed her that the reason for the delay was that the Department was responding to several emergencies at that time. Seward told the dispatcher that the protest would probably be wrapping up around 6 p.m. anyway. The dispatcher advised Seward that an officer would return her call as soon as one became free. Id. Seward observed two marked police vehicles pass Care Net during the protest, but neither stopped to respond to her call.

Police Officer Brownell returned Seward’s call around 7:30 that evening. Officer Brownell explained that he had driven past the protest earlier in the evening while he was responding to another engagement. He advised Seward “to call again if there were any issues in the days to follow” but that “since the protesters were no longer on the scene, it would not be possible to take action [that night].” Def. Ex. N. At the end of the call, Seward requested that Officer Brownell speak with a fellow officer, Andi Higbee, who was in contact with Care Net after the September 11 incident, and to follow up with a board member at Care Net.

DISCUSSION

I. Protest Buffer Zones and the First Amendment

This case presents the question of whether the City of Burlington may prohibit individuals from knowingly congre- ' gating, patrolling, picketing, or demonstrating within 35 feet of reproductive health care facilities. Fortunately, it is not one that the Court must answer on its own. Over the last twenty years, the Supreme Court and several circuit courts have addressed the constitutionality of provisions that are substantially similar, though certainly not identical, to the Ordinance. A detailed summary of those cases follows, but two features of the framework they apply warrant emphasis at the outset.

First, restrictions on speech are subject to differing levels of scrutiny. Regulations that proscribe or burden speech on the basis of its content or viewpoint must endure strict scrutiny, the most exacting standard. See, e.g. R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 386, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992) (“The government may not regulate [speech] based on hostility- or favoritism — towards the underlying message expressed.”). Such content-based restrictions are “presumptively invalid,” id. at 382, 112 S.Ct. 2538, and must be the least restrictive means of promoting a compelling government interest. United States v. Playboy Entm’t Group, Inc., 529 U.S. 803, 813, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000). Restrictions on the time, place, and manner in which speech may occur — that is, restrictions that burden speech incidentally and for reasons unrelated to its content or viewpoint — are subject to intermediate scrutiny. See Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 642, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994). They must be “narrowly tailored to serve a significant governmental interest” and must “leave open ample alternative channels for communication.” Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). The cases discussed below make clear that protest buffer zones are subject to intermediate scrutiny as long as they are not drafted or enforced in way that discriminates on the basis of content or viewpoint.

Second, challenges to the constitutionality of a regulation may proceed on a facial or as-applied basis. When addressing the former, courts principally look to the text of the statute or ordinance to determine whether it has a “plainly legitimate sweep.” Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008). How the regulation has been enforced and how it impacts the litigants in a particular circumstance are generally considerations reserved for as-applied, not facial challenges.

A. Madsen, Schenck, and Hill

The Supreme Court has decided three cases involving buffer zones at medical facilities. In Madsen v. Women’s Health Center, Inc., 512 U.S. 753, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994) and Schenck v. Pro-Choice Network of Western New York, 519 U.S. 357, 117 S.Ct. 855, 137 L.Ed.2d 1 (1997), the Supreme Court first confronted the issue in the context of court-issued injunctions prohibiting specific individuals or organizations from interfering with public access to clinics. In Madsen, a Florida state court initially enjoined a group of protesters from blocking or interfering with access to an abortion clinic in Melbourne, Florida. 512 U.S. at 757-58, 114 S.Ct. 2516. After that provision proved insufficient, the state court expanded its injunction to prohibit the protesters

(2) At all times on all days, from blocking, impeding, inhibiting, or in any other manner obstructing or interfering with access to, ingress into and egress from any building or parking lot of the Clinic. (A) At all times on all days, from congregating, picketing, patrolling, demonstrating or entering that portion of the public right-of-way or private property within [36] feet of the property line of the Clinic....

(5) At all times on all days, in an area within [300] feet of the Clinic, from physically approaching any person seeking the services of the Clinic unless such person indicates a desire to communicate by approaching or by inquiring of the [petitioners]----

Id. at 759-60,114 S.Ct. 2516.

Reviewing the revised injunction, the Supreme Court determined that it was not content or viewpoint-based simply because it applied only to anti-abortion protesters; after all, they were the ones whose conduct gave rise to underlying lawsuit and justified the injunction. Id. at 762-63, 114 S.Ct. 2516. The Court also recognized that the injunction served a variety of legitimate government interests, including preserving a woman’s freedom to seek lawful medical and counseling services, maintaining public safety and order, promoting the free flow of traffic on public streets and sidewalks, and protecting patients’ privacy concerns. Id. at 767-68, 114 S.Ct. 2516.

Whether each provision of the injunction was narrowly tailored to serve those interests presented a more difficult question. Explaining that court-issued injunctions generally pose a greater risk of “censorship and discriminatory application,” the Court applied a more exacting standard than it would have for an identically-phrased legislative enactment. Id. at 764, 114 S.Ct. 2516. Instead of considering whether the injunction “promote[d] a substantial government interest that would be achieved less effectively absent the regulation,” Ward, 491 U.S. at 799, 109 S.Ct. 2746 (emphasis added), the Court demanded that each provision “ ‘be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.’ ” Madsen, 512 U.S. at 765, 114 S.Ct. 2516 (quoting Califano v. Yamasaki, 442 U.S. 682, 702, 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979)) (emphasis added). Using this heightened standard, the Court upheld the 36-foot fixed buffer zone (with respect to public but not private property) because it was necessary to protect access to the clinic; however, the Court struck down the prohibition on approaching patients or potential patients within 300 feet of the clinic because it burdened more speech than necessary. Id. at 768-76, 114 S.Ct. 2516.

Three years later, in Schenck, the Supreme Court revisited the issue when it considered the constitutionality of a preliminary injunction prohibiting abortion protesters from “ ‘demonstrating within fifteen feet from either side or edge of, or in front of, doorways or doorway entrances, parking lot entrances, driveways and driveway entrances of such facilities’ (fixed buffer zones), or ‘within fifteen feet of any person or vehicle seeking access to or leaving such facilities’ (floating buffer zones).” 519 U.S. at 367, 117 S.Ct. 855. Once again, the Court determined that the governmental interests in “ensuring public safety and order, promoting the free flow of traffic on streets and sidewalks, protecting property rights, and protecting a woman’s freedom to seek pregnancy-related services” were “significant enough to justify an appropriately tailored injunction,” id. at 376, 117 S.Ct. 855; however, the Court concluded that only the fixed buffer zone was in fact necessary to serve those interests. Id. at 376-82,117 S.Ct. 855. In doing so, the Court acknowledged that the fixed buffer zone was a prophylactic measure, especially because an unchallenged portion of the injunction prohibited “blocking, impeding or obstructing access” to the clinic, but the Court deferred to the District Court’s assessment that the fixed buffer zone was necessary to keep the clinic entrances clear. See id. The Court in Schenck also swiftly rejected the suggestion that the term “demonstrating” was unconstitutionally vague, finding that when the injunction was read as a whole, “people ‘of ordinary intelligence’ (and certainly defendants whose demonstrations led to this litigation in the first place) have been given a reasonable opportunity to know what is prohibited.’ ” Id. at 383, 117 S.Ct. 855 (quoting Grayned v. City of Rockford, 408 U.S. 104, 110, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972)).

In Hill v. Colorado, the Supreme Court addressed the constitutionality of a legislatively-enacted buffer zone for the first time. 530 U.S. 703, 730, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000). In 1993, the Colorado General Assembly enacted a statute making it a misdemeanor to

knowingly approach another person within eight feet of such person, unless such other person consents, 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 in the public way or sidewalk area within a radius of one hundred feet from any entrance door to a health care facility.

Colo.Rev.Stat. § 18-9-122(3). The General Assembly defined the term “health care facility” broadly to include “any entity that is licensed, certified, or otherwise authorized or permitted by law to administer medical treatment in [Colorado].” Id. at § 18-9-122(4). And the General Assembly enacted a related provision making it a separate misdemeanor to “knowingly obstruct!], detain!], hinder!], impede!], or blockf] another person’s entry to or exit from a health care facility.” Id. at § 18-9-122(2).

Despite having struck down similar provisions in Madsen and Schenck, the Court upheld the 8-foot floating buffer zone in Hill. Though the petitioners did not challenge the substantiality of the State’s interest in enacting the statute, the Court reaffirmed the proposition that the state’s general police powers “justified] a special focus on unimpeded access to health care facilities and the avoidance of potential trauma to patients associated with confrontational protests.” Hill, 530 U.S. at 715, 120 S.Ct. 2480. The Court also clarified that the State could take into account “the interests of unwilling listeners in situations where ‘the degree of captivity makes it impractical for the unwilling viewer or auditor to avoid exposure.’ ” Id. at 718, 120 S.Ct. 2480 (quoting Erznoznik v. City of Jacksonville, 422 U.S. 205, 209, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975)).

Applying intermediate scrutiny, the Court found that the statute was also narrowly tailored and left open ample alternative channels for communication. Hill, 530 U.S. at 725-30, 120 S.Ct. 2480. While the Court noted that the 8-foot separation would have little impact on demonstrators’ ability to convey their message with signs, the Court conceded that the separation might make it more difficult for a speaker to be heard. Hill, 530 U.S. at 726, 120 S.Ct. 2480. But because the statute placed no restriction on the use of amplification equipment, allowed a speaker to converse at a “normal conversational distance,” and permitted protesters to remain stationary while individuals passed within 8 feet of them, there were sufficient alternative avenues of communication available to the protesters. Id. at 727-28, 120 S.Ct. 2480.

Though the Court was also troubled by the burden placed on protesters’ ability to distribute handbills, it noted that the statute did not “prevent a leafletter from standing near the path of oncoming pedestrians and proffering his or her material, which the pedestrians can easily accept.” Id. at 727, 120 S.Ct. 2480. The Court’s discussion revealed that it would not insist on the least restrictive or least intrusive means of fulfilling the State’s statutory goals, even when core forms of expression were burdened. Echoing Schenck, the Court explained that while the statute might “sometimes inhibit a demonstrator whose approach in fact would have proved harmless,” this “aspect is justified by the great difficulty of protecting, say, a pregnant woman from physical harassment with legal rules that focus exclusively on the individual impact of each instance of behavior, demanding in each case an accurate characterization (as harassing or not harassing) of each individual movement within the 8-foot boundary.” Id. at 729, 120 S.Ct. 2480. “A bright-line prophylactic rule,” the Court reasoned, “may be the best way to provide protection and, at the same time, by offering clear guidance and avoiding subjectivity, to protect speech itself.” Id.

Finally, the Court rejected petitioners’ contentions that the statute was unconstitutionally overbroad and vague in quick succession. The Court explained that it considered the statute’s applicability to all persons and all health care facilities to be a constitutional “virtue, not a vice, because it was evidence against there being a discriminatory governmental motive.” Id. at 731, 120 S.Ct. 2480. As the statute simply amounted to a restriction on the places where certain communications could occur, rather than a complete ban, the Court insisted that the petitioners demonstrate that the overbreadth of the statute was both real and substantial-a threshold they could not meet. Id. at 731-32, 120 S.Ct. 2480. When it addressed the vagueness challenge, the Court relied heavily on the presence of a scienter requirement, which in .their view rendered quite remote the likelihood that a person of ordinary intelligence would not understand what conduct the statute prohibits. Id. at 732, 120 S.Ct. 2480. Though the petitioners conjured up numerous hypothetical situations to test whether certain conduct would be proscribed by the statute, the Court, looking to the statute as a whole, thought that the statute was clear about what it prohibited and that its application was valid in the “vast majority of its intended applications.” Id. at 733, 120 S.Ct. 2480 (quoting United States v. Raines, 362 U.S. 17, 23, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960)).

B. Buffer Zones in the Circuit Courts

The Second Circuit has considered the validity of buffer zones in two cases, both of which involved injunctions restraining anti-abortion protesters. In United States v. Scott, the defendant was convicted of violating the Freedom of Access to Clinic Entrances Act (“FACE”) “ ‘by using physical obstruction to intentionally injure, intimidate or interfere with, or attempt to injure, intimidate or interfere with, [a clinic’s] patients, escorts, and staff because they were obtaining or providing reproductive health services’ and on at least two occasions by using the threat of force.” 187 F.3d 282, 284-85 (2d Cir.1999) (quoting United States v. Scott, 958 F.Supp. 761, 775-76 (D.Conn.1997)). After repeated violations of a narrower injunction, the District Court precluded Scott from entering within 28 feet of the clinic’s entrance or within 8 feet of persons and their vehicle after they have verbally indicated no interest in literature or counseling. On appeal, the Second Circuit upheld both the fixed and the floating buffer zones, but the principal focus of the decision was the floating buffer zone. The Court distinguished Schenck on the grounds that Scott’s buffer zone was smaller and permitted Scott to approach individuals until they expressed disinterest in his message. Scott, 187 F.3d at 288.

In New York ex rel. Spitzer v. Operation Rescue National, the Second Circuit reviewed a preliminary injunction that, among other things, expanded previously-imposed fixed buffer zones at two facilities from 15 to 60 feet. 273 F.3d 184, 192 (2d Cir.2001). Although the Second Circuit determined that the injunction was content-neutral and served significant governmental interests, it struck down the enlarged, 60-foot buffer zones because they were “more extensive than necessary” to preserve access to the clinics. Id. at 203. The Court nevertheless left the original 15-foot buffer zone intact. Id. at 209.

Cases from several other circuits also merit consideration because of their factual similarities to the one at hand. The First Circuit has rejected a series of challenges to a Massachusetts statute establishing buffer zones around reproductive health care facilities. See McGuire v. Reilly (“McGuire I”), 260 F.3d 36 (1st Cir.2001); McGuire v. Reilly (“McGuire II”), 386 F.3d 45 (1st Cir.2004); McCullen v. Coakley (“McCullen I”), 571 F.3d 167 (1st Cir.2009); McCullen v. Coakley (“McCullen II”), 708 F.3d 1 (1st Cir.2013). The statute was most recently amended in 2007 to create fixed buffer zones comprising

a radius of 35 feet of any portion of an entrance, exit or driveway of a reproductive health care facility or within the area within a rectangle created by extending the outside boundaries of any entrance, exit or driveway of a reproductive health care facility in straight lines to the point where such lines intersect the sidelines of the street in front of such entrance, exit or driveway.

McCullen I, 571 F.3d at 173.

Much like the Burlington Ordinance, the Massachusetts statute provides that no person may “knowingly enter or remain on a public way or sidewalk adjacent to a reproductive health care facility,” id. at 173, and it exempts four classes of persons:

(1) persons entering or leaving such facility;

(2) employees or agents of such facility acting within the scope of their employment;

(3) law enforcement, ambulance, firefighting, construction, utilities, public works and other municipal agents acting within the scope of their employment; and

(4) persons using the public sidewalk or street right-of-way adjacent to such facility solely for the purpose of reaching a destination other than such facility.

Id. at 173-74. In McCullen I & II, the First Circuit rejected facial and as applied challenges to the statute. See McCullen I, 571 F.3d at 184; McCullen II, 708 F.3d at *8-12.

In Brown v. City of Pittsburgh, 586 F.3d 263 (3d Cir.2009), the Third Circuit addressed the constitutionality of a Pittsburgh ordinance establishing a floating buffer zone virtually indistinguishable from the Colorado statute in Hill, as well as a fixed buffer zone of 15 feet within which “[n]o person or persons shall knowingly congregate, patrol, picket, or demonstrate.” Brown, 586 F.3d at 267, 273. Although the Third Circuit determined that each of the provisions was facially valid on its own and served important government interests, it concluded that “the layering of two types of prophylactic measures [was] substantially broader than necessary to achieve those interests.” Id. at 279 (internal quotation omitted). The Third Circuit therefore instructed the City of Pittsburgh to choose the provision it wanted to enforce and directed the district court to enjoin enforcement of the other.

Finally, in Hoye v. City of Oakland, 653 F.3d 835, 859 (9th Cir.2011), the Ninth Circuit upheld the facial constitutionality of an Oakland Ordinance establishing a floating buffer zone that was also similar to the Colorado statute in Hill; however, the as-applied challenge was a different matter. After the City admitted that it had a “policy of distinguishing between speech that facilitates access to clinics and speech that discourages access to clinics,” id. at 851, the Ninth Circuit applied strict scrutiny and invalidated the enforcement policy. Id. at 853-54.

II. Recent First Amendment Jurisprudence

The Plaintiffs argue that five major First Amendment cases decided in the last few years undermine the force of the buffer zone cases preceding them. See Brown v. Entm’t Merchants Ass’n, — U.S.-, 131 S.Ct. 2729, 180 L.Ed.2d 708 (2011) (invalidating a statute imposing restrictions and labeling requirements on the sale of violent video games); Sorrell v. IMS Health, Inc., — U.S.-, 131 S.Ct. 2653, 180 L.Ed.2d 544 (2011) (holding that a statute restricting the sale, disclosure and use of pharmacy records to marketers was impermissibly content-based); Snyder v. Phelps, — U.S.-, 131 S.Ct. 1207, 179 L.Ed.2d 172 (2011) (holding that the First Amendment shielded protesters from tort liability for picketing at a soldier’s funeral); United States v. Stevens, 559 U.S. 460, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010) (striking down a federal statute prohibiting the creation, sale, or possession of portrayals of animal cruelty); Citizens United v. Federal Election Com’n, 558 U.S. 310, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010) (striking down a federal campaign statute banning corporations from engaging in political speech).

These cases do not carry the weight Plaintiffs assign them. First, they all involve restrictions on speech that were expressly content or viewpoint-based. In Sorrell, for example, the Court found that “the express purpose and practical effect” of Vermont’s statute banning the sale or dissemination of prescriber-identifying information was “to diminish the effectiveness of marketing by manufacturers of brand-name drugs.” 131 S.Ct. at 2663. In Brown and Stevens, the content-based nature of the statutes was even more obvious, as the regulations in those eases placed restrictions on depictions of animal cruelty and violent video games. Brown, 131 S.Ct. at 2733 (striking down a California statute prohibiting the sale or rental of “violent video games” to minors); Stevens, 130 S.Ct. at 1582 (striking down a federal statute establishing a criminal penalty for anyone who knowingly “ ‘creates, sells, or possesses a depiction of animal cruelty,’” if done “ ‘for commercial gain’ ” in interstate or foreign commerce) (quoting 18 U.S.C. § 48(a)).

Citizens United is perhaps slightly more relevant to Plaintiffs’ position, but they rely on it for the broad proposition that the government cannot issue “restrictions distinguishing among different speakers, allowing speech by some but not by others.” 130 S.Ct. at 898. In doing so, Plaintiffs overlook the obvious differences between a regulation that prohibits a particular class of speakers (corporations) from engaging in speech with a particular content (electioneering communication) and one that restricts the locations where patrolling, picketing, demonstrating, or congregating may occur. Accord McCullen v. Coakley, 759 F.Supp.2d 133, 137 (D.Mass.2010) (rejecting the notion that time-place-manner restrictions are analyzed differently after Citizens United). The notion that Citizens United signified a sea-change in the treatment of time-place-manner restrictions is also firmly dispelled by Snyder. Although the Court determined that protesters at a soldier’s funeral could not be subject to tort damages for their First Amendment activity, the Court reaffirmed the principle that “[protesters’] choice of where and when to conduct [their] picketing is not beyond the Government’s regulatory reach-it is ‘subject to reasonable time, place, or manner restrictions’ that are consistent with the standards announced in this Court’s precedents.” 131 S.Ct. at 1218 (quoting Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221 ,(1984)). The Court noted that there were several “situations where the location of targeted picketing can be regulated under provisions that the Court has determined to be content-neutral” and cited the fixed buffer zone upheld in Mad-sen with approval. Snyder, 131 S.Ct. at 1218.

Having laid out the precedents guiding this opinion, the Court first addresses the City’s motion to dismiss the Plaintiffs’ facial challenges and then turns to the Plaintiffs’ motion for a preliminary injunction.

III. The Motion to Dismiss the Facial Challenges to the Ordinance

The City moves to dismiss Plaintiffs’ facial challenges on the grounds that they fail to state a claim on which relief may be granted. See Fed.R.Civ.P. 12(b)(6). “[0]nly a complaint that states a plausible claim for relief survives a motion to dismiss,” Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)), and a facial challenge that is deficient as a matter of law may be dismissed. See Kittay v. Giuliani, 252 F.3d 645, 646-47 (2d Cir.2001) (citing United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987)); see also Cook v. Gates, 528 F.3d 42, 65 (1st Cir.2008) (affirming a district court’s dismissal of facial challenges to the “Don’t Ask, Don’t Tell” statute). A party advancing a facial challenge carries a heavy burden, for it “must fail where the statute has ‘a plainly legitimate sweep.’ ” Wash. State Grange, 552 U.S. at 449, 128 S.Ct. 1184 (quoting Washington v. Glucksberg, 521 U.S. 702, 739-40 & n. 7,117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) (Stevens, J;, concurring)). In considering a facial challenge, the Court looks “only [to] the text of the statute itself, not its application to the particular circumstances of an individual.” Field Day, LLC v. County of Suffolk, 463 F.3d 167, 174 (2d Cir.2006) (citing City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 770 n. 11, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988)); see also Wash. State Grange, 552 U.S. at 449-50, 128 S.Ct. 1184 (“In determining whether a law is facially invalid, we must be careful not to go beyond the statute’s facial requirements and speculate about ‘hypothetical’ or ‘imaginary’ cases.”).

A. Time, Place, and Manner Restriction

Following the example of previous buffer-zone cases, the Court applies intermediate scrutiny. See, e.g. Hill, 530 U.S. at 719, 725, 120 S.Ct. 2480; McCullen I, 571 F.3d at 175. “Content neutral time, place and manner regulations must be narrowly tailored to serve a significant government interest, and must leave open ample alternative channels of communication.” Zalaski v. City of Bridgeport Police Dep’t, 613 F.3d 336, 341 (2d Cir.2010) (internal quotation marks omitted). On its face, the Ordinance meets each of these requirements.

1. Content (and Viewpoint) Neutrality

“As a general rule, laws that by their terms distinguish favored speech from disfavored speech on the basis of the ideas or view expressed are content-based.” Turner Broad. Sys., 512 U.S. at 643, 114 S.Ct. 2445. The Supreme Court has further explained that “the principal inquiry in determining the content neutrality, in speech cases generally, and in time, place, or manner eases in particular, is whether the government has adopted a regulation of speech because of disagreement with the message it conveys.” Ward, 491 U.S. at 791, 109 S.Ct. 2746; see also Hill, 530 U.S. at 719, 120 S.Ct. 2480 (applying Ward). “Government regulation of expressive activity is content neutral so long as it is ‘justified without reference to the content of the regulated speech.’” Ward, 491 U.S. at 791, 109 S.Ct. 2746 (quoting Clark, 468 U.S. at 293, 104 S.Ct. 3065). A regulation is not content-based simply because it disproportionately burdens certain speakers or has an incidental effect on some and not others. McGuire I, 260 F.3d at 44 (citing Hill, 530 U.S. at 719, 120 S.Ct. 2480; Ward, 491 U.S. at 791, 109 S.Ct. 2746).

On its face, the Ordinance is content-neutral. The Council’s findings contained in the Ordinance state that its goals are to ensure public safety and order while balancing First Amendment freedoms with the right of individuals to seek reproductive health care services. BCO § 21-111. The Plaintiffs argue that the Court need not consider those objectives because they are merely pretext, but this argument fails for several reasons. On a facial challenge, the Court looks only to “the text of the statute itself, not to the particular circumstances of an individual.” Field Day, 463 F.3d at 174. By definition, an argument grounded in pretext requires the Court to look beyond the text and is therefore inappropriate in the context of a facial challenge; the Court must take the Council’s findings at face value. Cf. United States v. O’Brien, 391 U.S. 367, 383, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968) (“It is a familiar principle of constitutional law that this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive.”).

To the extent that Plaintiffs are arguing that the objectives mentioned in section 21-111 are fully addressed by the unchallenged provision prohibiting anyone from obstructing access to RHCFs, section 21-113(1), the Court has several responses: First, this argument essentially recasts an objection to the necessity of the buffer zone — i.e. a reason why the buffer zone might not be narrowly tailored — as a reason for doubting its content neutrality. In this respect, Plaintiffs conflate two components of the time-place-manner standard. Second, Plaintiffs ignore the fact that the Supreme Court has condoned the use of buffer zones and other “prophylactic” measures in cases where there were also direct prohibitions on obstructing access to medical facilities. See Hill, 530 U.S. at 707 n. 1,120 S.Ct. 2480; Madsen, 512 U.S. at 759-60, 114 S.Ct. 2516. Accordingly, the Court finds the City’s choice to supplement a direct prohibition with a buffer zone largely irrelevant to the question of whether the Ordinance is content-neutral.

Of far greater significance is the fact that the actual language of the Ordinance is neutral with respect to the content and viewpoint of the speech it regulates. The terms “congregate”, “patrol”, “picket”, and “demonstrate” identify the ways in which an individual is expressing herself, but they do not favor one subject matter or viewpoint over another. That the Ordinance may at times require law enforcement to examine an individual’s speech to determine whether she is congregating, patrolling, picketing, or demonstrating does not make it a content-based regulation for the purposes of the First Amendment. As the Supreme Court explained in Hill,

It is common in the law .to examine the content of a communication to determine the speaker’s purpose. Whether a particular statement constitutes a threat, blackmail, an agreement to fix prices, a copyright violation, a public offering of securities, or an offer to sell goods often depends on the precise content of the statement. We have never held, or suggested, that it is improper to look at the content of an oral or written statement in order to determine whether a rule of law applies to a course of conduct. With respect to the conduct that is the focus of the Colorado statute, it is unlikely that there would often be any need to know exactly what words were spoken in order to determine whether “sidewalk counselors” are engaging in “oral protest, education, or counseling” rather than pure social or random conversation.

Theoretically, of course, cases may arise in which it is necessary to review the content of the statements made by a person approaching within eight feet of an unwilling listener to determine whether the approach is covered by the statute. But that review need be no more extensive than a determination whether a general prohibition of “picketing” or “demonstrating” applies to innocuous speech. The regulation of such expressive activities, by definition, does not cover social, random, or other everyday communications. See Webster’s Third New International Dictionary 600, 1710 (1993) (defining “demonstrate” as “to make a public display of sentiment for or against a person or cause” and “picket” as an effort “to persuade or otherwise influence”). Nevertheless, we have never suggested that the kind of cursory examination that might be required to exclude casual conversation from the coverage of a regulation of picketing would be problematic.

530 U.S. at 721-22, 120 S.Ct. 2480 (emphasis added). The Court’s insight can be restated rather succinctly: a regulation is not content-based simply because an enforcing officer might have to consider what an individual is saying to determine whether she is expressing herself in the manner proscribed.

The other provisions in the Ordinance are also content-neutral. The term “reproductive health care facility” includes any facility where “legally authorized persons provide health care services or health care counseling relating to the human reproductive system.” BCO § 21-112. It is certainly true that demonstrations in the vicinity of a reproductive health care facility are more likely to feature certain content than, say, demonstrations near a pediatrician’s office; however, the mere fact that the Ordinance will disproportionately burden individuals protesting for or against a particular procedure is insufficient to render it content-based. See Hill, 530 U.S. at 724, 120 S.Ct. 2480 (rejecting as “flawed” the “theory that a statute restricting speech becomes unconstitutionally content based because of its application to the specific locations where that discourse occurs”) (quotation omitted); Hoye, 653 F.3d at 846 (“[Njeither the fact that the Ordinance applies only to speech outside reproductive health care facilities, not hospitals generally, nor the fact that it protects only those ‘seeking to enter’ the facilities renders it content-based.”); McGuire I, 260 F.3d at 44 (“Although the Act clearly affects anti-abortion protesters more than other groups, there is no principled basis for assuming that this differential treatment results from a fundamental disagreement with the content of their expression.”). In fact, as it is defined in the Ordinance, the term RHCF does not discriminate between facilities that provide particular services such as abortion or contraception and those that do not.

Similarly, the exemption of RHCF employees and agents acting within the scope of their employment does not render the Ordinance content or viewpoint-based. The exemption identifies individuals by virtue of their association with an RHCF rather than the content or viewpoint of their speech, and it is again significant that the particular RHCF that employs them is protected by the buffer zone regardless of whether it has adopted a pro-choice or pro-life viewpoint. Furthermore, the exemption is limited in significant respects: First, it applies only to “employees or agents of an RHCF”, not to all individuals sharing the viewpoint held by that RHCF. BCO § 21-113 (emphasis added). Second, it only applies when those agents and employees are “acting within the scope of their employment.” Id. (emphasis added). The Ordinance therefore applies to an RHCF employee or agent who, by congregating, picketing, patrolling, or demonstrating, is not acting within the scope of her employment.

As other courts have noted, there are also rational, nondiscriminatory reasons for including the agent or employee exception. The City “could have concluded that clinic employees are less likely to engage in directing of unwanted speech toward captive listeners — a datum that the Hill Court recognized as justifying the statute there.” McGuire I, 260 F.3d at 46 (citing Hill, 530 U.S. at 715-17, 120 S.Ct. 2480); see also McCullen I, 571 F.3d at 178 (“[T]he exception for persons associated with RHCFs remains reasonably related to the legislature’s legitimate public safety objectives. No more is exigible to reject this aspect of the plaintiffs’ facial challenge.”). “[Wjhere differential treatment is justified, on an objective basis, by the government’s content-neutral effort to combat secondary effects [of certain speech], it is insufficient that a regulation may have been adopted in direct response to the negative impact of a particular form of speech.” McGuire I, 260 F.3d at 45 (citing Hill, 530 U.S. at 723, 120 S.Ct. 2480; Madsen, 512 U.S. at 762-64, 114 S.Ct. 2516). Even if the Court assumed that the Ordinance would affect anti-abortion protesters more than other groups, it would still be permissible as written.

2. Significant Governmental Interests

On its face, the Ordinance also serves significant governmental interests. In Schenck, the Supreme Court explained that the interests of “ensuring public safety and order, promoting the free flow of traffic on streets and sidewalks, protecting property rights, and protecting a woman’s freedom to seek pregnancy-related services” were, in combination, “significant enough to justify an appropriately tailored injunction to secure unimpeded physical access to the clinics.” 519 U.S. at 376, 117 S.Ct. 855; see also Hill, 530 U.S. at 715, 120 S.Ct. 2480 (citing similar interests to uphold a buffer zone created by statute); Operation Rescue Nat’l, 273 F.3d at 202 (recognizing that ensuring public safety and order, protecting free