Vitagliano v. County of Westchester, No. 23-30 (2d Cir. 2023)
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Plaintiff, an aspiring sidewalk counselor, brought a First Amendment challenge to Westchester County’s recently enacted “bubble zone” law, which makes it illegal to approach within eight feet of another person for the purpose of engaging in “oral protest, education, or counseling” when inside a one-hundred-foot radius of a reproductive health care facility. The district court dismissed the complaint, holding that Plaintiff lacks standing to mount a pre-enforcement challenge to the bubble zone law and that, in any event, the Supreme Court’s decision in Hill v. Colorado, 530 U.S. 703 (2000) forecloses her First Amendment claim.
The Second Circuit vacated the district court’s ruling insofar as it dismissed Plaintiff’s suit for lack of standing. The court nevertheless affirmed the judgment on the merits because the district court correctly concluded that Hill is dispositive of Plaintiff’s First Amendment claim. The court concluded that Plaintiff has standing to seek pre-enforcement relief because she has pleaded sufficient facts to support a credible threat that Westchester County will enforce the bubble zone law if she pursues her stated intention to engage in sidewalk counseling.
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