Appeal from the United States District Court for the Northern District of California Charles R. Breyer, District Judge, Presiding D.C. No. 3:07-cv-06411-CRB
The opinion of the court was delivered by: Berzon, Circuit Judge
Argued and Submitted October 8, 2010-San Francisco, California
Before: Stephen Reinhardt and Marsha S. Berzon, Circuit Judges, and Louis H. Pollak, Senior District Judge.*fn1
Throughout our nation's history, Americans have counted on the First Amendment to protect their right to ask their fellow citizens to change their mind. Abolitionists, suffragists, socialists, pacifists, union members, war protestors, religious believers, civil rights campaigners, anti-tax activists, and countless others have appealed to the principle, enshrined within the First Amendment, that in a democracy such as ours, public debate must be robust and free and that, for it to be so, the Constitution's protection of the freedom of speech must extend to the sidewalk encounter of the proselytizer and his prospective convert. These instances of public persuasion constitute the lifeblood of a self-governing people's liberty, and so even when the beliefs propagated seem to some the "rankest error" that "naturally would offend" any listener, our founding charter deems such encounters "in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy." Cantwell v. Connecticut, 310 U.S. 296, 309-310 (1940). This case calls on us to apply that principle.
Walter Hoye, a minister, is a so-called "sidewalk counselor." He regularly stands outside a reproductive health clinic in the City of Oakland, seeking to engage women in what he calls a "friendly conversation" to dissuade them from having an abortion.
Concerned about disruptive anti-abortion protests outside clinics, the Oakland City Council enacted a so-called bubble ordinance (the "Ordinance"), its name derived from the 100-foot metaphorical "bubble" the Ordinance creates around the entrances to reproductive health clinics. Within such zones, the Ordinance makes it an offense knowingly and willfully to approach within eight feet of an individual seeking entry to the clinic if one's purpose in approaching that person is to engage in conversation, protest, counseling, or various other forms of speech. The Ordinance is largely modeled after the Colorado statute held constitutional in Hill v. Colorado, 530 U.S. 703 (2000).*fn2
Hoye was convicted of two separate violations of the Ordinance. (His convictions were reversed on procedural grounds during the pendency of this appeal.) He now challenges the Ordinance in this § 1983 action, contending that the Ordinance infringes upon the freedom of speech guaranteed by the First Amendment to the United States Constitution. Hoye also argues that the Ordinance violates the federal constitution's Due Process Clause, as well as the state and federal guarantees of equal protection of the laws. A theme central to his challenges is his contention that Oakland does not enforce the Ordinance evenhandedly, as it has a policy of not enforcing the Ordinance against volunteers who engage in pro-abortion speech outside reproductive health clinics. The District Court granted Oakland's motion for summary judgment on all of Hoye's claims, and Hoye appealed. We now affirm in part, reverse in part, and remand for the determination of appropriate relief.
Several reproductive healthcare clinics are located within the City of Oakland (the "City"). For decades, anti-abortion activists have gathered outside them, trying to dissuade patients from seeking abortions and employees from performing them. Their insistent importuning has caused patients and employees to feel harassed, even intimidated. Also, in the past, protestors have blocked entrances to clinics, forcing patients and staff to climb through windows and fire escapes. Protestors have also sometimes mobbed patients' vehicles as they pull up to the clinic, preventing patients from stepping out.
Since approximately early 2006, Walter Hoye has stood outside the Family Planning Specialists clinic in Oakland, seeking to discourage women entering the clinic from having an abortion. Hoye's stated goal is "to have a personal, one-onone conversation with each woman concerning her individual situation and what is causing her to consider abortion." He also often holds a sign proclaiming, "Jesus loves you and your baby. Let us help." He says that he has "never called a woman a baby killer or murderer or told her she would rot in hell, or expressed any judgment like that."*fn3
Hoye reports that "[f]or most of the time I have been going, there has been only two or three other pro-life people there." He also states that he has never seen a "pro-life counselor block patients from getting to the [c]linic"; instead, he says, "We consciously try to space ourselves out on the sidewalk . . . [and] make sure there is room to pass." Video recordings of Hoye's activities, although incomplete, corroborate Hoye's account of his sidewalk counseling.
For a number of years, "escorts" have helped patients approaching reproductive health clinics to navigate their way into the building when anti-abortion protestors are present. Hoye calls the escorts "pro-abortion activists." Barbara Hoke, an escort, provides a slightly different account: According to her, escorts are volunteers who, although not "legally affiliated" with the clinics, wait outside them, often wearing bright orange vests bearing the name of the clinic in front of which they are volunteering. "The escort's job," in Hoke's words, "is to create a clear pathway to the clinic so that patients seeking to enter the clinic may do so without being intimidated, harassed, or feeling physically threatened."
Hoye charges that "[t]hese activist escorts tell women not to listen to [him], that he is only there to harass [them], that [they] will only be safe with the escorts, and [that they should] not . . . take his literature or information because it is inaccurate." Hoye also says that escorts, "with their bodies, form barriers" to prevent him from approaching patients, make noise (such as "lalalala") to drown out Hoye, and have "assign[ed] some of their number to stand in front of [Hoye] with blank pieces of cardboard, thus blocking women from seeing [Hoye's] sign." The City, by and large, does not contest Hoye's account of the escorts' activities. Also, at Hoye's criminal trial, Hoke to a degree confirmed that account, testifying that she thought it important for escorts "to block a message that is inappropriate, that is meant to harm, is meant to intimidate, and meant to prevent a woman from just the quiet privacy of a moment in her life that is no one else's business."*fn4
On December 18, 2007, the Oakland City Council passed Ordinance No. 12849. Hoye filed the complaint in this case the next day, asking for a temporary restraining order. At a telephonic hearing on the request for a TRO, the District Court expressed reservations about the Ordinance's constitutionality and strongly suggested that the City amend it. The City, acquiescing, adopted an amended ordinance, Ordinance No. 12860, on February 5, 2008.
Section 3(b) of the Ordinance, as amended, makes it unlawful, within 100 feet of the entrance of a "reproductive health care facility," to
willfully and knowingly approach within eight (8) feet of any person seeking to enter such a facility, or any occupied motor vehicle seeking entry, without the consent of such person or vehicle occupant, for the purpose of counseling, harassing, or interfering with such person or vehicle occupant.
The Ordinance then goes on to define the three activities it regulates-"counseling," "harassing," and "interfering"- quite broadly. We dwell on the definition of "counseling," as it is instructive for two reasons. First, the Ordinance defines "counseling" relatively expansively: "Counseling" means "engaging in conversation with, displaying signs to, and/or distributing literature." Ord. § 2(e). So, under the Ordinance, within 100 feet of a clinic, a speaker wishing to engage in conversation with, display signs to, or distribute literature to a person entering the clinic must first obtain that person's consent before approaching within eight feet of that person.
Second, the definition of "counseling" was one of the sections of the Ordinance amended at the suggestion of the District Court. Originally, the Ordinance had defined "counseling" so as to restrict only "engaging in conversation . . . displaying signs . . . and/or distributing literature . . . in an effort to harass, intimidate, or persuade the individual not to access such reproductive health services." (Emphasis added). Thus, this provision, as originally enacted, was explicitly one-sided: A speaker who attempted to persuade a woman entering a reproductive health clinic to access reproductive health services was not "engaging in conversation" within the meaning of the Ordinance. Section (3)(b), the Ordinance's operative provision, reiterated the Ordinance's one-sided prohibition. It made it a misdemeanor to approach persons without consent for the purpose of counseling, harassing or interfering with them "in connection with seeking reproductive health services, or for the purpose of interfering with that person's or vehicle occupant's obtaining or providing reproductive health services." Ord. § 3(b) (emphasis added). At District Judge Breyer's suggestion, the City amended the Ordinance to strike all of the language italicized above. As a result, the Ordinance on its face no longer distinguishes in the key operative provisions between pro-abortion and anti-abortion advocacy.
On May 13, 2008, the Oakland Police Department arrested Hoye and cited him for violating the Ordinance. An Alameda County jury convicted him, in January, 2009, of two counts (for separate incidents) of "harassment of persons seeking health care" in violation of § 3(b) of the Ordinance. Hoye appealed his convictions to the Appellate Division of the same court, which reversed the convictions on two grounds, neither pertinent here. See People v. Hoye, 115 Cal. Rptr. 3d 876, (Cal. App. Super. Ct. 2010). Shortly after the parties argued this case before us, the district attorney dismissed the prosecution against Hoye.
In the meantime, in this federal action, the parties filed cross-motions for summary judgment. On August 4, 2009, the District Court granted the City's motion in full.
Oakland's ordinance is not the only legislative attempt to facilitate access to reproductive healthcare facilities by imposing special restrictions on speech and conduct in the space immediately outside clinic entrances. See Freedom of Access to Clinic Entrances Act, 18 U.S.C. § 248; California Freedom of Access to Clinic and Church Entrances Act, Cal. Penal Code §§ 423 et seq.; Cal. Penal Code § 602.11. Nor is this case the first to raise difficult questions concerning the accommodation of women's right to an abortion with anti-abortion activists' right to free speech. In the last two decades, the Supreme Court has three times addressed the First Amendment rights of anti-abortion protestors outside reproductive healthcare facilities. See Madsen v. Women's Health Ctr., Inc., 512 U.S. 753 (1994); Schenck v. Pro-Choice Network of Western New York, 519 U.S. 357 (1997); Hill v. Colorado, 530 U.S. 703 (2000).*fn5
In Hill, the third case in this trilogy, the Supreme Court upheld, in the face of a First Amendment challenge, a Colorado statute markedly similar to the Ordinance. See Colo. Rev. Stat § 18-9-122. The statute, like the Ordinance, created a buffer zone of 100 feet outside healthcare facilities. Within that zone, the statute prohibited knowingly approaching within eight feet of another person, without that person's consent, for the purpose of "passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling" that person. Id.
Because the Ordinance is modeled on the Colorado statute upheld in Hill, that opinion controls much of our analysis in this case and leads us to the conclusion that the Ordinance is a facially valid restriction on the time, place, and manner of speech. But Hill did not concern in any way the activities of escorts-that is, individuals engaged in counteracting the effect of anti-abortion protestors' speech by facilitating potential patients' access to clinics. Accordingly, there was no contention in Hill that Colorado enforced its statute only against anti-abortion speakers. In contrast, Oakland appears to have read into its Ordinance an exception for speech that facilitates access to reproductive health services and so has enforced the Ordinance against anti-abortion speakers but not pro-abortion speakers. We conclude that, in doing so, Oakland unconstitutionally suppresses speech based on the content of its message.
Further, because Hill did not concern activities similar to those of the escorts in this case, the Supreme Court did not consider whether it would be constitutional to apply an ordinance like Oakland's to speakers whose attempts to convey their message are systematically countered by those opposed to that message. In this opinion, we take up that question briefly and, guided by the principle that government must consider the actual conditions speakers encounter when it restricts their speech, explain that it may be unconstitutional to apply the Ordinance to speakers if, under the circumstances surrounding a particular reproductive health clinic at a particular time, the application of the Ordinance would effectively foreclose speakers' ability to communicate their message. But because we would be required to speculate as to prospective facts, we leave the determination as to whether the Ordinance's application to Hoye actually has that effect for another day and a developed record.
For these reasons, we affirm the District Court's holding that the Ordinance is facially valid, but reverse the remainder of its ruling and remand with instructions to devise appropriate relief.
Before turning to the validity of Oakland's bubble ordinance, we must address an antecedent question, namely, whether we should decide this case at all in light of the "national policy forbidding federal courts to stay or enjoin pending state court proceedings except under special circumstances." Younger v. Harris, 401 U.S. 37, 41 (1971); see Columbia Basin Apartment Ass'n v. City of Pasco, 268 F.3d 791, 799-800 (9th Cir. 2001). "The Younger doctrine . . . counsels federal-court abstention when there is a pending state proceeding." Moore v. Sims, 442 U.S. 415, 423 (1979). State criminal proceedings against Hoye were commenced- and completed-during the pendency of this federal action.*fn6
But the circumstances in which federal courts should decline to exercise their jurisdiction "are carefully defined and remain the exception, not the rule." Gilbertson v. Albright, 381 F.3d 965, 969 n.2 (9th Cir. 2004) (en banc) (quotation omitted). We conclude that this case does not fit into the "carefully defined" Younger exception to mandatory federal jurisdiction.
Hoye filed this federal case in December, 2007, well before the district attorney filed a criminal complaint in state court on June 6, 2008. Cf. Agriesti v. MGM Grand Hotels, Inc. 53 F.3d 1000, 1001 (9th Cir. 1995) (holding that when a citation had issued but no charging document had been filed with state court, "there [were] no ongoing state judicial proceedings" for purposes of Younger abstention). Still, "where state criminal proceedings are begun against the federal plaintiffs after the federal complaint is filed but before any proceedings of substance on the merits have taken place in the federal court, the principles of Younger v. Harris . . . apply in full force." Hicks v. Miranda, 422 U.S. 332, 350 (1975). The commencement of state proceedings only ceases to require federal abstention after the federal court proceedings have moved beyond an "embryonic stage." Doran v. Salem Inn, Inc., 422 U.S. 922, 929 (1975).
Here, the federal proceedings had begun nearly six months before the commencement of criminal proceedings in state court. By that time, the District Court had denied Hoye's motion for a temporary restraining order, it had held four status conferences and hearings in this case, and the City Council had amended the Ordinance in response to the District Court's expression of its deep reservations about the Ordinance's constitutionality. Thus, by the time state proceedings began, the federal proceedings had been long pending, and the District Court's intervention in the case had resulted in a significant change in the relative positions of the parties. We therefore conclude that the federal proceedings had progressed beyond an embryonic stage, so that "considerations of economy, equity, and federalism counsel against Younger abstention." Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229, 238 (1984); see id. (concluding that "a federal court action in which a preliminary injunction is granted has proceeded well beyond the 'embryonic stage' "); Adultworld Bookstore v. City of Fresno, 758 F.2d 1348, 1350-51 (9th Cir. 1985) (holding that Younger abstention was not required when state criminal proceedings began after the district court had conducted an "extended evidentiary hearing on the question of a preliminary injunction" but had not issued the injunction).
We therefore turn to consideration of the challenge to Oakland's "bubble ordinance."
 In Hill, the Supreme Court held that Colo. Rev. Stat § 18-9-122(3) was facially constitutional under the time, place, and manner analysis set forth in Ward v. Rock Against Racism, 491 U.S. 781 (1989), and Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288 (1984). Hill, 530 U.S. at 719-730. In those two cases, the Supreme Court explained that government may impose restrictions on speech in a public forum so long as the restrictions "[(1)] are justified without reference to the content of the regulated speech, [(2)] . . . are narrowly tailored to serve a significant governmental interest, and [(3)] . . . leave open ample alternative channels for communication of the information." Ward, 491 U.S. at 791 (quoting Clark, 468 U.S. at 293).
The relevant portions of the Ordinance largely replicate the Colorado statute the Supreme Court considered in Hill, so our analysis of the Ordinance's facial constitutionality is mostly controlled by that case.*fn7 But the Ordinance does depart from the Colorado statute in some details. We discuss the two most important such departures but conclude that they are not of decisive significance to the Ordinance's facial constitutionality.
The first significant difference between the Ordinance and the Colorado statute is that the Ordinance creates a buffer zone only outside of "reproductive health care facilit[ies]," Ord. § 3(b), although the Colorado statute created a buffer zone outside of all health care facilities, including hospitals. Colo. Rev. Stat § 18-9-122(3). In fact, the Ordinance does not apply to hospitals that provide reproductive health services or to reproductive health facilities operated or owned by hospitals.*fn8
The Ordinance's preamble suggests that the reasons hospitals, and clinics owned or operated by hospitals, are excluded are that "offices and facilities that have patient stays of shorter duration may be more vulnerable . . . on account of the layout and design of their facilities and parking areas as well as their staff deployment" and that "the facilities with the fewest resources for providing adequate security . . . are those not affiliated with hospitals."
Hoye contends that the narrower range of the Ordinance shows that it, unlike the statute in Hill, is not content-neutral. But we fail to see how, under Hill, the Ordinance's application to a narrower class of healthcare facilities could make it content-discriminatory. It is true that the Ordinance is more closely targeted to the kinds of facilities where anti-abortion activists are likely to gather. But Hill rejected 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." Id. at 724 (quotation omitted). Instead, the Supreme Court explained that the Colorado statute was content-neutral because it "was not adopted because of disagreement with the message" of the speech it regulates, id. at 719 (quotation omitted), and because "the statutory language makes no reference to the content of the [regulated] speech." Id.; see id. at 725 (explaining that the statute is content-neutral because it "is not limited to those who oppose abortion" and "it applies to all . . . demonstrators whether or not the demonstration concerns abortion"); Ward, 491 U.S. at 791 ("A regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others." (emphasis added)); Menotti v. City of Seattle, 409 F.3d 1113, 1129 (9th Cir. 2005) ("That Order No. 3 predominantly affected protestors with anti-WTO views did not render it content based.").*fn9
For similar reasons, we cannot find a defect of constitutional proportions in the fact that the Ordinance regulates approaching a narrower class of individuals than the Colorado statute. The Colorado statute imposed restrictions on approaching anyone within the buffer zone, see Colo. Rev. Stat. § 18-9-122(3) ("No person shall knowingly approach another person . . . ." ), while the Ordinance only regulates knowingly approaching individuals "seeking to enter" the reproductive healthcare facility. Ord. § 3(b). The only reason that this departure from the Colorado statute might be relevant is that it might exacerbate the already disproportionate effect the Colorado statute may well have had on anti-abortion messages as compared to pro-abortion messages, or to messages on subjects having nothing to do with abortion. But, again, Hill instructs that, in regulating speech immediately outside reproductive health facilities, disproportionate effect is not of decisive significance to the content-neutrality inquiry. 530 U.S. at 724-25.
 In sum, given Hill, neither 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.*fn10
Instead, we look to whether the Ordinance's substantive terms are content-based, and to whether the statute was enacted "be-cause of disagreement with the message" of the speech it regulates, Hill, 530 U.S. at 719 (quotation omitted), to determine whether it is content-neutral.
Hoye does not contend that the statute was enacted because of substantive disagreement with the message of the speech it regulates, nor does the record contain any evidence that it was. We must therefore examine whether the Ordinance's substantive terms make facial distinctions between categories of speech based on content.
 We begin again with a comparison with Hill, to see whether there are any differences that would render the Ordinance, but not the Colorado statute, content-based. The Ordinance does regulate slightly different categories of speech than the Colorado statute in Hill. The Colorado statute restricted approaching another person "for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling with" that person. Colo. Rev. Stat. § 18-9-122(3). The Ordinance restricts approaching others "for the purpose of counseling, harassing, or interfering with" them, § Ord. 3(b), and then defines "counseling," "harassing," and "interfering" so as to incorporate the same expressive activities restricted by the Colorado statute. See Ord. §§ 2(c), (d) & (e). But the Ordinance then describes in a new way the regulated category of speech: The Ordinance's definition of "counseling" includes "engaging in conversation," Ord. § 2(e), a category of ...