In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 17-2196

VERONICA PRICE, et al.,

Plaintiffs-Appellants,

v.

CITY OF CHICAGO, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court 

for the Northern District of Illinois, Eastern Division.

No. 16-cv-8268 — Amy J. St. Eve, Judge.

____________________

ARGUED FEBRUARY 13, 2018 — DECIDED FEBRUARY 13, 2019

____________________

Before SYKES and BARRETT, Circuit Judges, and GRIESBACH, 

Chief District Judge.∗

SYKES, Circuit Judge. Pro-life “sidewalk counselors” sued 

to enjoin Chicago’s “bubble zone” ordinance, which bars

them from approaching within eight feet of a person in the 

vicinity of an abortion clinic if their purpose is to engage in 

 ∗ Of the Eastern District of Wisconsin, sitting by designation.
2 No. 17-2196

counseling, education, leafletting, handbilling, or protest. 

The plaintiffs contend that the floating bubble zone is a

facially unconstitutional content-based restriction on the 

freedom of speech. The district judge dismissed the claim, 

relying on Hill v. Colorado, 530 U.S. 703 (2000), which upheld 

a nearly identical Colorado law against a similar First 

Amendment challenge.

Abortion clinic buffer-zone laws “impose serious burdens” on core speech rights. McCullen v. Coakley, 134 S. Ct. 

2518, 2535 (2014). Under Hill, however, a floating bubble 

zone like this one is not considered a content-based restriction on speech and thus is not subject to strict judicial 

scrutiny. 530 U.S. at 725. Rather, the ordinance is classified as

a content-neutral “time, place, or manner” restriction and is 

tested under the intermediate standard of scrutiny, which 

asks whether the law is narrowly tailored to serve significant

governmental interests. Id. at 725–26. Hill answered that 

question in the affirmative, holding that the governmental

interests at stake—preserving clinic access and protecting 

patients from unwanted speech—are significant, and an

8-foot no-approach zone around clinic entrances is a narrowly tailored means to address those interests. Id. at 716, 725–

30.

Hill’s content-neutrality holding is hard to reconcile with

both McCullen and Reed v. Town of Gilbert, 135 S. Ct. 2218 

(2015), and its narrow-tailoring holding is in tension with 

McCullen. Still, neither McCullen nor Reed overruled Hill, so 

it remains binding on us. Moreover, Chicago’s bubble-zone

law is narrower than the one upheld in Hill: Colorado’s noapproach zone applies within a 100-foot radius of a clinic 

entrance; Chicago’s applies within a 50-foot radius. Lastly,
No. 17-2196 3

we would open a circuit split if we allowed this facial challenge to move forward. The Third Circuit, applying Hill, 

upheld Pittsburgh’s 8-foot bubble zone against a facial 

challenge without requiring an evidentiary showing from 

the City. See Brown v. City of Pittsburgh, 586 F.3d 263, 270–73 

(3d Cir. 2009). We affirm the judgment.

I. Background

The case comes to us from a dismissal at the pleading 

stage, so we sketch the facts as alleged in the plaintiffs’ 

complaint, accepting them as true for purposes of this 

appeal. Deppe v. Nat’l Collegiate Athletic Ass’n, 893 F.3d 498, 

499 (7th Cir. 2018). Pro-life advocates Veronica Price, David 

Bergquist, Ann Scheidler, and Anna Marie Scinto Mesia 

regularly engage in what’s known as “sidewalk counseling” 

on the sidewalks and public ways outside Chicago abortion 

clinics. This entails peacefully approaching women entering 

the clinics to give them pro-life literature, discuss the risks of 

and alternatives to abortion, and offer support if the women 

were to carry their pregnancies to term. These conversations

must take place face to face and in close proximity to permit 

the sidewalk counselors to convey a gentle and caring 

manner, maintain eye contact and a normal tone of voice, 

and protect the privacy of those involved. 

In October 2009 the Chicago City Council adopted an ordinance that effectively prohibits sidewalk counseling by 

banning the close approach it requires. The Council amended the City’s disorderly conduct ordinance to prohibit any 

person from approaching within eight feet of another person 

near an abortion clinic for the purpose of engaging in the 

types of speech associated with sidewalk counseling. The 

ordinance provides:
4 No. 17-2196

A person commits disorderly conduct when 

he ... knowingly approaches 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 within a 

radius of 50 feet from any entrance door to a 

hospital, medical clinic or healthcare facility ... .

CHI., ILL., CODE § 8-4-010(j)(1) (2009) (emphasis added).

Chicago’s ordinance is nearly identical to—indeed, was 

modeled after—the Colorado law upheld in Hill. Both laws 

impose an 8-foot no-approach bubble zone, but Chicago’s 

law operates within a smaller radius. Colorado’s 8-foot 

bubble zone applies within a 100-foot radius of an abortionclinic entrance. Chicago’s applies within a 50-foot radius.

The City’s ordinance otherwise mirrors the law at issue in 

Hill.

In August 2016 the four sidewalk counselors and two advocacy groups joined together to sue the City under 

42 U.S.C. § 1983 seeking declaratory and injunctive relief 

against the enforcement of the bubble-zone ordinance. Their

complaint raised four claims: (1) the ordinance infringes the

freedom of speech guaranteed by the First Amendment, both 

facially and as applied; (2) the ordinance is unconstitutionally vague in violation of the Due Process Clause of the 

Fourteenth Amendment; (3) the City selectively enforces the

bubble-zone ordinance in violation of the Equal Protection 

Clause of the Fourteenth Amendment; and (4) the ordinance 

infringes the plaintiffs’ state constitutional right to freedom 
No. 17-2196 5

of speech and assembly. Much of the complaint describes

specific instances of selective or improper enforcement from 

early 2010 through mid-2016, but those allegations have no 

bearing on this appeal. 

The City moved to dismiss the complaint for failure to 

state a claim. See FED. R. CIV. P. 12(b)(6). The district judge

granted the motion in part. She ruled that Hill forecloses the 

facial First Amendment challenge and the due-process 

vagueness claim. But she allowed the case to proceed on the 

as-applied First Amendment challenge, the equal-protection

claim alleging selective enforcement, and the state constitutional claims. The parties eventually settled these remaining 

claims and jointly moved to dismiss them. The judge entered 

final judgment, setting up this appeal contesting only the

Rule 12(b)(6) ruling.

II. Discussion

We review a Rule 12(b)(6) dismissal de novo. O’Boyle v. 

Real Time Resolutions, Inc., 910 F.3d 338, 342 (7th Cir. 2018).

The plaintiffs contend that Chicago’s bubble-zone ordinance 

is a content-based restriction on speech and is facially unconstitutional under strict scrutiny. Their fallback position is 

that the ordinance flunks the narrow-tailoring requirement

of the intermediate test for content-neutral restrictions on 

speech.

The Supreme Court considered and rejected these precise 

arguments in Hill, as the plaintiffs must and do 

acknowledge. As they see it, however, Hill is no longer an 

insuperable barrier to suits challenging abortion clinic 

bubble-zone laws. The premise of their claim is that the 

Court’s more recent decisions in Reed and McCullen have so 
6 No. 17-2196

thoroughly undermined Hill’s reasoning that we need not 

follow it.

That’s a losing argument in the court of appeals. The 

Court’s intervening decisions have eroded Hill’s foundation, 

but the case still binds us; only the Supreme Court can say 

otherwise. See State Oil Co. v. Kahn, 522 U.S. 3, 20 (1997) (“[I]t 

is this Court’s prerogative alone to overrule one of its precedents.”). The Court’s instructions in this situation are clear: 

“If 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, 

237–38 (1997) (quotation marks omitted).

That said, in the nineteen years since Hill was decided,

the Court has refined the concept of content neutrality and

clarified the requirement of narrow tailoring in a First 

Amendment challenge of this type. To see how, it’s helpful 

to trace the doctrinal development in this specific corner of 

free-speech law.

A. Speech in a Traditional Public Forum

We begin with first principles. “The First Amendment 

reflects a profound national commitment to the principle 

that debate on public issues should be uninhibited, robust, 

and wide-open.” Snyder v. Phelps, 562 U.S. 443, 452 (2011) 

(quotation marks omitted). “Leafletting and commenting on 

matters of public concern are classic forms of speech that lie 

at the heart of the First Amendment ... .” Schenck v. 

Pro-Choice Network of W. N.Y., 519 U.S. 357, 377 (1997). Moreover, sidewalks and other public ways “occupy a special 
No. 17-2196 7

position in terms of First Amendment protection because of 

their historic role as sites for discussion and debate.” 

McCullen, 134 S. Ct. at 2529 (quotation marks omitted). These 

public spaces—“traditional public fora” in the doctrinal 

nomenclature—“have immemorially been held in trust for 

the use of the public and, time out of mind, have been used 

for purposes of assembly, communicating thoughts between 

citizens, and discussing public questions.” Hague v. Comm. 

for Indus. Org., 307 U.S. 496, 515 (1939).

As the Court explained in McCullen:

It is no accident that public streets and sidewalks have developed as venues for the exchange of ideas. Even today, they remain one 

of the few places where a speaker can be confident that he is not simply preaching to the 

choir. With respect to other means of communication, an individual confronted with an uncomfortable message can always turn the page, 

change the channel, or leave the Web site. Not 

so on public streets and sidewalks. There, a listener often encounters speech he might otherwise tune out. In light of the First 

Amendment’s purpose to preserve an uninhibited marketplace of ideas in which truth will 

ultimately prevail, this aspect of traditional 

public fora is a virtue, not a vice.

134 S. Ct. at 2529 (citation and quotation marks omitted). 

Thus, speech “is at its most protected on public sidewalks.” 

Schenck, 519 U.S. at 377.
8 No. 17-2196

That the sidewalk counselors seek to reach women as 

they enter an abortion clinic—at the last possible moment

when their speech might be effective—“only strengthens the 

protection afforded [their] expression.” McIntyre v. Ohio 

Elections Comm'n, 514 U.S. 334, 347 (1995). “Urgent, important, and effective speech can be no less protected than 

impotent speech, lest the right to speak be relegated to those 

instances when it is least needed. No form of speech is 

entitled to greater constitutional protection ... .” Id. (citation 

omitted). And direct “one-on-one communication” has long 

been recognized as “the most effective, fundamental, and 

perhaps economical avenue of political discourse.” 

McCullen, 134 S. Ct. at 2536 (quotation marks omitted).

* * *

It is a “guiding First Amendment principle that the government has no power to restrict expression because of its 

message, its ideas, its subject matter, or its content,” and this 

principle “applies with full force in a traditional public 

forum.” Id. at 2529 (quotation marks omitted). “Contentbased laws—those that target speech based on its communicative content—are presumptively unconstitutional” and get 

strict judicial scrutiny; laws of this type “may be justified 

only if the government proves that they are narrowly tailored to serve compelling state interests.” Reed, 135 S. Ct. at 

2226.

On the other hand, the government has “somewhat wider leeway to regulate features of speech unrelated to its 

content.” McCullen, 134 S. Ct. at 2529. “[E]ven in a public 

forum the government may impose reasonable restrictions 

on the time, place, or manner of protected speech, provided 

the restrictions are justified without reference to the content 
No. 17-2196 9

of the regulated speech, that they are narrowly tailored to 

serve a significant governmental interest, and that they leave 

open ample alternative channels for communication of the 

information.” Ward v. Rock Against Racism, 491 U.S. 781, 791 

(1989) (quotation marks omitted).

To date, the Supreme Court has applied the intermediate 

standard of scrutiny to abortion-clinic buffer zones, with 

mixed results. We now turn to those cases.

B. The Abortion Clinic Buffer-Zone Cases

1. Madsen v. Women’s Health Center and 

Schenck v. Pro-Choice Network of Western New York

The Court’s first two occasions to address abortion-clinic 

buffer zones came in cases involving injunctions entered by 

state and federal courts to address unlawful conduct associated with the large-scale clinic blockades of the early 1990s

for which ordinary law-enforcement responses had proven 

ineffective. Schenck, 519 U.S. at 362–63 (describing the clinic 

blockades); Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 

758–59 (1994) (same).

In Madsen the Court reviewed a state-court injunction 

barring the named defendants from entering a 36-foot buffer 

zone around a particular clinic. 512 U.S. at 760. As relevant 

here, the injunction also established a 300-foot zone around 

the clinic within which the defendants were prohibited from 

“physically approaching any person seeking the services of 

the [c]linic” without that person’s consent. Id. The Court first 

ruled that these restrictions were content neutral and did not 

require strict scrutiny. Id. at 762–64. However, the Court 

applied a “more stringent” form of intermediate scrutiny 

because injunctions “carry greater risks of censorship and 
10 No. 17-2196

discriminatory application than do general ordinances.” Id.

at 764–65. This yielded a split result: The Court upheld the 

fixed 36-foot buffer zone but invalidated the floating “no 

approach” zone. Id. at 768–70, 773–74.

In Schenck the Court applied Madsen and upheld a provision in a federal-court injunction prohibiting the named 

defendants from entering a fixed 15-foot buffer zone around 

the doorways, driveways, and parking lots of certain abortion clinics. 519 U.S. at 380–83. But the Court invalidated a 

provision barring the defendants from approaching within 

15 feet of any person entering or leaving the clinics. Id. at 

377–79. The Court held that the 15-foot floating bubble zone

was unconstitutional because it prevented the defendants 

“from communicating a message from a normal conversational distance or handing leaflets to people entering or 

leaving the clinics who [were] walking on the public sidewalks.” Id. at 377.

The Court’s reasoning rested primarily on the venerable 

principle that leafletting on public sidewalks is core protected speech. “Leafletting and commenting on matters of public 

concern are classic forms of speech that lie at the heart of the 

First Amendment, and speech in public areas is at its most 

protected on public sidewalks, a prototypical example of a 

traditional public forum.” Id. But the Court was also concerned that the floating bubble zone was not narrowly

tailored: “With clinic escorts leaving the clinic to pick up 

incoming patients and entering the clinic to drop them off, it 

would be quite difficult for a protester who wishes to engage 

in peaceful expressive activity to know how to remain in 

compliance with the injunction,” resulting in “substantial 

risk that much more speech will be burdened than the 
No. 17-2196 11

injunction by its terms prohibits.” Id. at 378. The Court 

reserved the question “whether the governmental interests 

involved would ever justify some sort of zone of separation 

between individuals entering the clinics and protesters, 

measured by the distance between the two.” Id. at 377 (emphasis added).

2. Hill v. Colorado

The Court returned to this subject in Hill, this time reviewing a generally applicable law rather than a targeted 

injunction. As we’ve noted, Chicago’s bubble ordinance is 

identical to the Colorado law at issue in Hill except for the 

radius within which the no-approach zone applies. Because 

Hill is decisive here, the decision merits close review. 

The Court began with the question of content neutrality, 

observing that the 8-foot bubble zone “is not a regulation of 

speech” but instead is simply “a regulation of the places 

where some speech may occur.” Hill, 530 U.S. at 719. And 

the Colorado law, the Court said, was not content based 

because it “was not adopted because of disagreement with 

the message the speech conveys” but rather to ensure clinic 

access, protect patient privacy, and “provid[e] the police 

with clear guidelines.” Id. at 719–20 (quotation marks and 

alteration omitted).

The challengers argued that the law was content based 

because enforcement authorities would have to examine the 

content of the statements made by an approaching speaker 

to determine if a violation of the statute occurred. Id. at 720. 

The Court disagreed, saying that the law “places no restriction on—and clearly does not prohibit—either a particular viewpoint or any subject matter that may be discussed by 
12 No. 17-2196

a speaker. Rather, it simply establishes a minor place restriction on an extremely broad category of communications 

with unwilling listeners.” Id. at 723. The Court added: “[W]e 

have never suggested that the kind of cursory examination 

that might be required to exclude casual conversation ... 

would be problematic.” Id. at 722. On these understandings, 

the Court ruled that the bubble-zone law was properly 

classified as a content-neutral time, place, or manner regulation of speech and did not require strict scrutiny. Id. at 725.

Applying intermediate scrutiny, the Court held that

Colorado’s objectives—preserving clinic access and protecting patients from unwelcome speech—count as significant

governmental interests, and an 8-foot floating bubble zone 

within 100 feet of a clinic entrance is a narrowly tailored 

means to serve them. Id. at 726–30. The Court distinguished

the Colorado law from the no-approach zone it had invalidated just three years earlier: “Unlike the 15-foot zone in 

Schenck, this 8-foot zone allows the speaker to communicate 

at a ‘normal conversational distance.’” Id. at 726–27 (quoting 

Schenck, 519 U.S. at 377)). The Court acknowledged that the 

“burden on the ability to distribute handbills is more serious,” but that difficulty did not doom the Colorado law. Id. 

at 727. The 8-foot buffer zone, the Court said, did not “prevent a leafletter from simply standing near the path of 

oncoming pedestrians and proffering his or her material, 

which the pedestrians [could] easily accept.” Id.

Rounding out its narrow-tailoring analysis, the Court rejected the argument that Colorado could achieve its objectives through less restrictive means—say by enforcing its 

preexisting laws against harassment, disorderly conduct, 

and battery, as Justice Kennedy posited in dissent. Id. at 729; 
No. 17-2196 13

id. at 777–78 (Kennedy, J., dissenting). As the Court put it, 

the statute’s “prophylactic aspect” was justified based on the 

“great difficulty” of protecting abortion clinics and their 

patients via “legal rules that focus exclusively on the individual impact of each instance of behavior.” Id. at 729.

3. McCullen v. Coakley

Hill was decided in 2000. No new buffer-zone case 

reached the Court until McCullen in 2014. At issue was a 

Massachusetts law imposing a fixed 35-foot buffer zone 

around the entrance, exit, and driveway of every abortion 

clinic in the state. McCullen, 134 S. Ct. at 2526. Certain persons were exempt and could freely enter the zone: those

entering or leaving the clinic; employees or agents of the 

clinic; law enforcement, firefighters, construction and utility 

workers, and other municipal agents; and persons using the 

sidewalk or public way to reach a destination other than the 

clinic. Everyone else was kept out on pain of criminal penalty. Id.

As here, pro-life sidewalk counselors challenged the law. 

Id. at 2527. They argued that the buffer-zone law was a 

content-based restriction on speech and required strict 

scrutiny. The Court disagreed. First, the Court noted that 

“the Act does not draw content-based distinctions on its 

face.” Id. at 2531. To be sure, the Court explained, the 

Massachusetts law “would be content based if it required 

enforcement authorities to examine the content of the message that is conveyed to determine whether a violation has 

occurred.” Id. (quotation marks omitted). But enforcement of 

the law turned not on what people said while in the buffer 

zone “but simply on where they sa[id] it.” Id. “Indeed,” the 

Court said, “[a person could] violate the Act merely by 
14 No. 17-2196

standing in a buffer zone, without displaying a sign or 

uttering a word.” Id.

The Court continued:

To be clear, the Act would not be content neutral if it were concerned with [the] undesirable 

effects that arise from the direct impact of 

speech on its audience or listeners’ reactions to 

speech. ... If, for example, the speech outside 

Massachusetts abortion clinics caused offense 

or made listeners uncomfortable, such offense 

or discomfort would not give the Commonwealth a content-neutral justification to restrict 

the speech.

Id. at 2531–32 (citation, quotation marks, and alteration

omitted). In the end the Court concluded that the justifications for the law—“ensuring safety and preventing obstruction” at clinic entrances—“are, as a general matter, content 

neutral.” Id. at 2532.

But the Massachusetts buffer-zone law did not survive 

intermediate scrutiny. Citing Schenck and Madsen (but not 

Hill), the Court held that the Commonwealth’s safety and 

access objectives were sufficiently weighty under the intermediate standard of review. Id. at 2535. “At the same time,” 

however, “the buffer zones impose serious burdens on [the 

sidewalk counselors’] speech.” Id. Relying again on Schenck, 

the Court observed that the fixed 35-foot buffer zone made it 

“substantially more difficult” for sidewalk counselors to 

“distribute literature to arriving patients” and to engage in 

the kind of personal and compassionate conversations 

required for their messages to be heard. Id. at 2536.
No. 17-2196 15

Amplifying the theory behind the intermediate standard 

of scrutiny, the Court significantly clarified the role of the 

narrow-tailoring requirement:

The tailoring requirement does not simply 

guard against an impermissible desire to censor. The government may attempt to suppress 

speech not only because it disagrees with the 

message being expressed, but also for mere 

convenience. Where certain speech is associated with particular problems, silencing the 

speech is sometimes the path of least resistance. But by demanding a close fit between 

ends and means, the tailoring requirement 

prevents the government from too readily sacrificing speech for efficiency.

Id. at 2534 (quotation marks and alteration omitted). In other 

words, “[f]or a content-neutral time, place, or manner 

regulation to be narrowly tailored, it must not ‘burden 

substantially more speech than is necessary to further the 

government’s legitimate interests.’” Id. at 2535 (quoting 

Ward, 491 U.S. at 799). Put in more positive terms, “[t]o meet 

the requirement of narrow tailoring, the government must 

demonstrate that alternative measures that burden substantially less speech would fail to achieve [its] interests, not 

simply that the chosen route is easier.” Id. at 2540.

Against these background principles of narrow tailoring, 

the 35-foot fixed buffer zone flunked the test. “A painted line 

on the sidewalk is easy to enforce, but the prime objective of 

the First Amendment is not efficiency.” Id. Massachusetts 

had less restrictive regulatory options to ensure access to 

abortion clinics and prevent harassment of patients: existing 
16 No. 17-2196

state and local laws banning obstruction of clinic entrances; 

“generic criminal statutes forbidding assault, breach of the 

peace, trespass, vandalism, and the like”; and targeted 

injunctions like those in Schenck and Madsen. Id. at 2538. But 

the Commonwealth had not shown that “it seriously undertook to address the problem with less intrusive tools readily 

available to it.” Id. at 2539.

“Given the vital First Amendment interests at stake, it is 

not enough for Massachusetts simply to say that other 

approaches have not worked.” Id. at 2540. The Court concluded that “[t]he buffer zones burden substantially more 

speech than necessary to achieve the Commonwealth’s 

asserted interests.” Id. at 2537.

The Court closed with this:

[The sidewalk counselors] wish to converse 

with their fellow citizens about an important 

subject on the public streets and sidewalks—

sites that have hosted discussions about the issues of the day throughout history. [Massachusetts] assert[s] undeniably significant interests 

in maintaining public safety on those same 

streets and sidewalks, as well as in preserving 

access to adjacent healthcare facilities. But here 

the Commonwealth has pursued those interests by the extreme step of closing a substantial 

portion of a traditional public forum to all 

speakers. It has done so without seriously addressing the problem through alternatives that 

leave the forum open for its time-honored purposes. The Commonwealth may not do that 

consistent with the First Amendment.
No. 17-2196 17

Id. at 2541.

4. Reed v. Town of Gilbert

One more case is important to the current doctrinal landscape, though it did not involve an abortion-clinic buffer 

zone. Reed was a First Amendment challenge to the Sign 

Code in the Town of Gilbert, Arizona, which classified signs 

by the type of information they conveyed and regulated each 

category differently. 135 S. Ct. at 2224–25. For example, 

“Ideological Signs”—defined as any sign “communicating a 

message or idea[] for noncommercial purposes” other than 

construction signs, directional signs, and certain other 

categories—were treated most favorably. Id. at 2224. “Political Signs”—any “temporary sign designed to influence the 

outcome of an election”—were treated less favorably than 

Ideological Signs. Id. “Temporary Directional Signs” were 

regulated most heavily. Id. at 2225.

The Court began with an important clarification of the 

content-neutrality inquiry. First, a “regulation of speech is 

content based if a law applies to particular speech because of 

the topic discussed or the idea or message conveyed.” Id. at 

2227. The Court explained that the threshold question in the 

test for content neutrality is whether the challenged regulation “on its face draws distinctions based on the message a 

speaker conveys.” Id. (quotation marks omitted). The Court 

continued: “Some facial distinctions based on a message are 

obvious, defining regulated speech by particular subject 

matter, and others are more subtle, defining regulated

speech by its function or purpose. Both are distinctions 

drawn based on the message a speaker conveys” and require 

strict scrutiny. Id.
18 No. 17-2196

The Court then identified a “separate and additional category of laws that, though facially content neutral, will be 

considered content-based regulations of speech: laws that 

cannot be justified without reference to the content of the 

regulated speech[] or ... were adopted by the government 

because of disagreement with the message the speech conveys.” Id. (emphasis added) (quotation marks and alteration 

omitted). Laws of this type also get strict judicial scrutiny. Id.

at 2227.

On this illumination of the concept of content neutrality, 

the Court ruled that the Town’s Sign Code “is content based 

on its face.” Id. The Town’s regulatory requirements for “any 

given sign ... depend entirely on the communicative content 

of the sign.” Id. As the Court put it:

If a sign informs its reader of the time and 

place a book club will discuss John Locke’s 

Two Treatises of Government, that sign will be 

treated differently from a sign expressing the 

view that one should vote for one of Locke’s 

followers in an upcoming election, and both 

signs will be treated differently from a sign expressing an ideological view rooted in Locke’s 

theory of government.

Id.

The Town insisted that strict scrutiny did not apply because it had not discriminated between particular ideas or 

viewpoints within each sign category. The Court resoundingly rejected that position: “A law that is content based on 

its face is subject to strict scrutiny regardless of the government’s benign motive, content-neutral justification, or lack of 
No. 17-2196 19

animus toward the ideas contained in the regulated speech.” 

Id. at 2228 (quotation marks omitted). Put somewhat more 

directly: “[A] speech regulation targeted at specific subject 

matter is content based even if it does not discriminate 

among viewpoints within that subject matter.” Id. at 2230.

The Town could not defend its Sign Code under strict 

scrutiny. The Court assumed for the sake of argument that 

the Town’s objectives—aesthetics and traffic safety—were 

compelling enough to satisfy this most exacting standard of 

review. Id. at 2231. But the Code’s content-based distinctions 

were “hopelessly underinclusive.” Id. The Town could not 

explain how its interests in beautification and safety were 

furthered by strictly limiting temporary directional signs but

allowing other types of signs to proliferate. Id. “In light of 

this underinclusiveness,” the Court held, “the Town has not 

met its burden to prove that its Sign Code is narrowly 

tailored to further a compelling governmental interest.” Id.

at 2232.

C. Hill After Reed and McCullen

Hill is incompatible with current First Amendment doctrine as explained in Reed and McCullen. To begin, Hill 

started from the premise that “[t]he principal inquiry in 

determining content neutrality ... is whether the government has adopted a regulation of speech because of disagreement with the message it conveys.” 530 U.S. at 719 

(quoting Ward, 491 U.S. at 791). After Reed that’s no longer 

correct. We now know that the first step in the contentneutrality inquiry is to ask whether the challenged law is 

“content based on its face.” Reed, 135 S. Ct. at 2228.
20 No. 17-2196

As Reed explained, a “separate and additional category” of 

content-based laws includes facially neutral laws that “cannot be justified without reference to the content of the regulated speech[] or ... were adopted because of disagreement 

with the message the speech conveys.” Id. at 2227 (emphases 

added) (quotation marks and alteration omitted). But “an 

innocuous justification cannot transform a facially contentbased law into one that is content neutral.” Id. at 2228. 

“Because strict scrutiny applies either when a law is content 

based on its face or when the purpose and justification for 

the law are content based, a court must evaluate each question before it concludes that the law is content neutral and 

thus subject to a lower level of scrutiny.” Id. (emphases 

added).

In fairness, Hill did not completely ignore the actual text

of the Colorado statute. Though not clearly delineated, its 

facial analysis was twofold. The Court first concluded that 

Colorado’s bubble-zone law was content neutral because it 

didn’t restrict “either a particular viewpoint or any subject 

matter that may be discussed by a speaker.” Hill, 530 U.S. at 

723. In other words, the absence of viewpoint or subjectmatter discrimination was a sufficient indicator of content 

neutrality. Second, the Court dismissed the fact that enforcement authorities had to examine the content of an 

approaching speaker’s statements to determine if a violation 

of the law had occurred: “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.” Id. at 721.

Neither rationale survives McCullen and Reed. McCullen

explained in no uncertain terms that a law is indeed content 
No. 17-2196 21

based if enforcement authorities must “examine the content 

of the message that is conveyed to determine whether a 

violation has occurred.” 134 S. Ct. at 2531 (quotation marks 

omitted). And Reed clarified that the lack of viewpoint or

subject-matter discrimination does not spare a facially 

content-based law from strict scrutiny. 135 S. Ct. at 2230. As 

we explained shortly after Reed was decided, the Court has 

“effectively abolishe[d] any distinction between content 

regulation and subject-matter regulation. Any law distinguishing one kind of speech from another by reference to its 

meaning now requires a compelling justification.” Norton v. 

City of Springfield, 806 F.3d 411, 412 (7th Cir. 2015). In the 

wake of McCullen and Reed, it’s not too strong to say that 

what Hill explicitly rejected is now prevailing law.

There is more. Reed explained that a law is content based 

if it draws “more subtle” facial distinctions like those that 

“defin[e] regulated speech by its function or purpose.” 135 S. 

Ct. at 2227. By its terms, the law upheld in Hill regulates

speech undertaken “for the purpose of ... engaging in oral 

protest, education, or counseling.” 530 U.S. at 707 (emphasis 

added) (quotation marks omitted). And divining purpose 

clearly requires enforcement authorities “to examine the 

content of the message that is conveyed.” McCullen, 134 S. 

Ct. at 2531 (quotation marks omitted). How else could the 

authorities distinguish between a sidewalk counselor (illegal) and a panhandler, a pollster, or a passerby who asks for 

the time (all legal)?

Here’s another incongruity between Hill and the Court’s 

current jurisprudence. McCullen emphasized that a law is 

content based if it is “concerned with [the] undesirable 

effects that arise from the direct impact of speech on its 
22 No. 17-2196

audience or listeners’ reactions to speech.” 134 S. Ct. at 2531–

32 (quotation marks and alteration omitted). Yet Hill repeatedly cited concern for listeners’ reactions as an acceptable 

justification for Colorado’s bubble-zone law. True, the Court 

also mentioned concerns about clinic access and safety, but 

that does not diminish its emphasis on Colorado’s interest in 

“protect[ing] listeners from unwanted communication” and 

safeguarding the right “to be let alone.” 530 U.S. at 715–16, 

724 (quotation marks omitted). Indeed, the Court highlighted the “emotional harm suffered when an unwelcome 

individual delivers a message ... at close range.” Id. at 718 

n.25. The bubble-zone law upheld in Hill was aimed in 

substantial part at guarding against the undesirable effects 

of the regulated speech on listeners. After McCullen that’s

not a content-neutral justification.

Finally, Hill’s narrow-tailoring analysis conflicts with

McCullen’s insistence that “the government must demonstrate that alternative measures that burden substantially 

less speech would fail to achieve [its] interests, not simply 

that the chosen route is easier.” 134 S. Ct. at 2540. Recall

McCullen’s exhortation against the use of broad prophylactic 

regulations in speech-sensitive zones: “A painted line on the 

sidewalk is easy to enforce, but the prime objective of the 

First Amendment is not efficiency. ... Given the vital First 

Amendment interests at stake, it is not enough for 

Massachusetts simply to say that other approaches have not 

worked.” Id. In stark contrast, Hill specifically approved the 

“bright-line prophylactic” aspect of Colorado’s bubble-zone 

law precisely because other less restrictive measures—e.g., 

laws against harassment and breach of the peace—were 

harder to enforce. 530 U.S. at 729.
No. 17-2196 23

In short, McCullen and Reed have deeply shaken Hill’s 

foundation. Yet the case remains on the books and directly 

controls here. The plaintiffs urge us to follow the Third 

Circuit’s lead in Bruni v. City of Pittsburgh, which reversed 

the dismissal of a challenge to Pittsburgh’s fixed 15-foot 

clinic buffer zone and remanded for a case-specific narrowtailoring analysis in light of McCullen. 824 F.3d 353, 372–73

(3d Cir. 2016). The court held that dismissal at the pleading 

stage was improper based on McCullen’s “important clarification of the rigorous and fact-intensive nature of intermediate scrutiny’s narrow-tailoring analysis.” Id. at 372. This was 

so, the court held, notwithstanding circuit precedent that 

upheld Pittsburgh’s 15-foot buffer zone just a few years 

earlier. Id. at 367–73 (distinguishing Brown v. City of 

Pittsburgh, 586 F.3d 263 (3d Cir. 2009)).

We do not regard Bruni’s approach as a viable option

here. As we’ve noted, Chicago’s bubble-zone ordinance is a 

carbon copy of the Colorado law upheld in Hill except for 

the smaller radius within which it applies. And Hill’s 

narrow-tailoring analysis was highly generalized; it did not 

rest on the specific facts of the case or an evaluation of

Colorado’s evidentiary showing. Accordingly, a remand for 

a case-specific narrow-tailoring analysis would effectively

deny Hill’s controlling force.

It would also create a circuit split. In Brown, the predecessor case to Bruni, the Third Circuit upheld a separate

provision in Pittsburgh’s abortion-clinic law establishing an

8-foot no-approach bubble zone within a 100-foot radius of 

clinic entrances—“a virtually verbatim copy of the Hill 

statute”—without requiring a factual showing from the City.

586 F.3d at 273. Bruni left that part of Brown untouched.
24 No. 17-2196

Hill directly controls, notwithstanding its inconsistency 

with McCullen and Reed. Only the Supreme Court can bring 

harmony to these precedents. The district judge correctly 

dismissed the facial First Amendment challenge.

D. Due-Process Vagueness Claim

In a cursory final argument, the plaintiffs maintain that 

Chicago’s bubble-zone ordinance is unconstitutionally 

vague. This argument too is foreclosed by Hill, which rejected a vagueness challenge to Colorado’s bubble-zone law.

530 U.S. at 732–33. The plaintiffs rely on Justice Kennedy’s 

dissenting position: “In the context of a law imposing criminal penalties for pure speech, ‘protest’ is an imprecise word; 

‘counseling’ is an imprecise word; ‘education’ is an imprecise word.” Id. at 773 (Kennedy, J., dissenting). Perhaps he 

was right, but his view did not carry the day. The judge

properly dismissed the due-process vagueness claim.

III. Conclusion

The road the plaintiffs urge is not open to us in our hierarchical system. Chicago’s bubble-zone ordinance is materially identical to—indeed, is narrower than—the law upheld 

in Hill. While the Supreme Court has deeply unsettled Hill, it 

has not overruled the decision. So it remains binding on us.

The plaintiffs must seek relief in the High Court.

AFFIRMED.