Narrow Tailoring and Vehicular Buffer Zones: The Eleventh Circuit’s Application of McCullen and Moody in Florida Preborn Rescue v. City of Clearwater

I. Introduction

In Florida Preborn Rescue, Inc. v. City of Clearwater, Florida (11th Cir. Dec. 4, 2025), the Eleventh Circuit vacated a district court’s denial of a preliminary injunction and held that pro-life sidewalk counselors are likely to succeed on their First Amendment facial challenge to a municipal “vehicular safety zone” around the driveway of an abortion clinic. The court applied the Supreme Court’s decision in McCullen v. Coakley, 573 U.S. 464 (2014), to a much smaller buffer zone (effectively 38 feet of sidewalk, with a 5‑foot no‑go strip on either side of the driveway), and concluded that the ordinance is not narrowly tailored because Clearwater failed to seriously consider less speech‑restrictive alternatives, particularly a pre‑existing Florida anti‑obstruction statute.

The majority opinion (Judge Newsom, joined by Judge Grant) and a detailed dissent (Judge Abudu) sharply diverge on two central questions:

• How to apply McCullen’s narrow‑tailoring framework to small, driveway-specific buffer zones; and
• How to integrate the Supreme Court’s recent facial challenge standard in Moody v. NetChoice, LLC, 603 U.S. 707 (2024), into First Amendment time, place, and manner analysis.

The case therefore establishes an important circuit precedent: even very small, content‑neutral buffer zones on public rights‑of‑way must survive rigorous narrow‑tailoring scrutiny under McCullen, and the availability of generally applicable obstruction laws can be dispositive. It also illustrates ongoing tension in lower courts over how to implement Moody’s “unconstitutional in most of its applications” test in the First Amendment context.

II. Factual and Procedural Background

A. Parties and Activities

Bread and Roses Woman's Health Center in Clearwater, Florida, provides abortions on Tuesdays, Thursdays, and Saturdays. Florida Preborn Rescue, Inc. (“Florida Preborn” or “FPR”) is a self‑described pro‑life, religiously‑motivated non‑profit. Four individuals—Allen Tuthill, Antoniette Migliore, Scott Mahurin, and Judith Goldsberry—engage in “sidewalk counseling” outside the clinic. They typically appear on Tuesdays and Thursdays, usually in small numbers (two or three people), and seek to:

• Engage in one‑on‑one, conversational outreach to patients and passersby, and
• Distribute written literature (leaflets) to individuals entering or exiting the clinic.

On Saturdays, larger groups of protesters—distinct from the counselors—regularly appear.

B. Clearwater’s Vehicular Safety Zone Ordinance

The City of Clearwater responded to ongoing conflicts outside the clinic by adopting Ordinance No. 9665‑23. The recitals stated that protesters were:

• “Repeatedly crossing the driveway”
• “Impeding ingress and egress of vehicle traffic”
• “Getting within close proximity of driving cars with the intent to frighten and intimidate the vehicle occupants”

The City claimed it could not rely on trespass warnings because “the driveway is located on the public right-of-way,” and that “targeted arrests” were ineffective because officers cannot arrest for misdemeanors outside their presence and protesters temporarily complied when officers were present, then re‑entered the driveway later.

The operative provision creates a “vehicular safety zone” as follows:

• No pedestrian, bicyclist, or operator of a non‑motorized vehicle may “enter into or cross any portion of the vehicular driveway” or the sidewalk/swale “within five (5) feet north or south of the concrete driveway.”
• The restriction applies Monday–Saturday, 7:00 a.m. to 6:00 p.m.
• Exemptions exist for:
  • Police and public safety officers, fire and rescue personnel, and other emergency workers “in the course of their official business,” and
  • “Authorized security personnel employees or agents” of the clinic or related medical facilities “engaged in assisting patients and other persons to enter or exit the Clinic.”
• Violations constitute a Class III civil infraction.

Physically, the zone covers approximately 38 feet of sidewalk, including the portion that crosses the clinic driveway; the “5 feet north and south” language creates a de facto five‑foot “no‑go” strip on both sides of the driveway. Photographs in the record show painted lines demarcating the zone.

In practice, police officers testified that:

• They generally do not enforce the ordinance against ordinary pedestrians simply crossing through; instead, they apply it primarily to protesters and counselors.
• Informal enforcement consists of a warning, then a citation. If a person continues to violate the zone, officers arrest for obstruction, even though the ordinance itself only authorizes civil penalties.

C. Litigation and Issues on Appeal

Florida Preborn and the four individual counselors sued the City, asserting:

• Federal First Amendment claims (Free Speech and Free Exercise Clauses),
• Claims under the Florida Constitution, and
• A claim under the Florida Religious Freedom Restoration Act.

They sought a preliminary injunction against enforcement of the ordinance, limited to First Amendment free‑speech grounds. Initially, they argued that the ordinance was content‑based as applied and failed strict scrutiny; by the time of appeal, they had abandoned the content‑based argument and presented only a facial, content‑neutral, free‑speech challenge.

The district court:

• Assumed the ordinance was content‑neutral,
• Applied the time, place, and manner framework (intermediate scrutiny), and
• Held that Florida Preborn was unlikely to succeed on the merits because the ordinance was narrowly tailored to a significant governmental interest and left open ample alternative channels of communication.

Because it found no likelihood of success, the district court denied the preliminary injunction without reaching the other factors (irreparable harm, balance of harms, and public interest).

The Eleventh Circuit reversed. The key issues on appeal were:

1. Whether, under McCullen and Moody, Florida Preborn was likely to succeed on its facial claim that the ordinance is an unconstitutional time, place, and manner restriction.
2. Whether the City had shown the ordinance to be narrowly tailored to its vehicular safety interest, given less speech‑restrictive alternatives.
3. Whether the remaining preliminary‑injunction factors favored granting relief.

III. Overview of the Eleventh Circuit’s Decision

The majority held:

• The ordinance is assumed content‑neutral and therefore subject to intermediate scrutiny.
• Clearwater’s interest in vehicular safety and safe ingress/egress is significant and legitimate.
• However, the ordinance seriously burdens one of sidewalk counselors’ core protected activities—leafletting to patients arriving by car—and is not narrowly tailored under McCullen.
• The City failed to “seriously undertake” less intrusive alternatives, including the existing Florida anti‑obstruction statute, Fla. Stat. § 316.2045.
• Because the ordinance likely fails narrow tailoring, the plaintiffs are likely to succeed on the merits of their facial First Amendment challenge.
• The other preliminary injunction factors (irreparable harm, balance of harms, public interest) clearly favor the plaintiffs.

Consequently, the court vacated the denial of a preliminary injunction and remanded with instructions to enter the requested injunction against enforcement of the ordinance.

Judge Abudu dissented, arguing that:

• The plaintiffs had not met the high threshold for a facial constitutional challenge under Moody.
• The 5‑foot buffer imposed only a minimal burden on speech, leaving ample alternative channels, and was reasonably tailored to serious, documented safety issues.
• The plaintiffs had not shown irreparable harm or that the equities and public interest favored an injunction.

IV. Legal Framework

A. Preliminary Injunction Standard

A plaintiff seeking a preliminary injunction must show:

1. A substantial likelihood of success on the merits;
2. Irreparable injury unless the injunction issues;
3. The threatened injury to the plaintiff outweighs harm the injunction may cause the defendant; and
4. The injunction would not disserve the public interest.

See ACLU of Fla., Inc. v. Miami-Dade Cnty. Sch. Bd., 557 F.3d 1177, 1198 (11th Cir. 2009). The first factor is “the most important,” and many panels decline to reach the remaining factors if likelihood of success is lacking. The appellate court reviews the decision for abuse of discretion, with de novo review of underlying legal conclusions and clear‑error review of fact findings.

B. First Amendment Regulation of Speech on Public Sidewalks

The First Amendment, applied to municipalities via the Fourteenth Amendment, sharply limits government regulation of speech in traditional public fora such as public sidewalks. In such fora, government may enforce “time, place, and manner” restrictions only if they:

1. Are content‑neutral;
2. Are narrowly tailored to serve a significant governmental interest; and
3. Leave open ample alternative channels of communication.

See, e.g., Smith v. City of Fort Lauderdale, 177 F.3d 954, 956 (11th Cir. 1999).

Here, content neutrality was not at issue on appeal. The dispute focused on narrow tailoring and alternative channels.

C. Facial Challenges After Moody v. NetChoice

Moody restated the high bar for facial challenges, including in the First Amendment context. Ordinarily, to succeed facially, a plaintiff must show:

• There is “no set of circumstances” under which the law is valid, or
• In the First Amendment context, that “a substantial number of the law's applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep.”

603 U.S. at 723–24 (citation modified). The Court admonished lower courts to:

1. “Address the full range of activities the laws cover,” and
2. “Measure the constitutional against the unconstitutional applications.”

Id. at 724–25. Facial challenges remain “disfavored,” and courts may not collapse facial analysis into a fact‑bound as‑applied inquiry.

The Eleventh Circuit majority acknowledged Moody, and discussed how its facial‑challenge standard applies where the alleged defect is lack of narrow tailoring. It cited the Sixth Circuit’s Sisters for Life, Inc. v. Louisville-Jefferson County, 56 F.4th 400 (6th Cir. 2022), which held that if a statute is not narrowly tailored, it cannot be constitutionally applied to anyone, because narrow tailoring is an element of the facial constitutional test, not a fact‑bound application.

The majority analogized this to its prior approach in First Amendment vagueness challenges: if the law is unconstitutionally vague, it is facially invalid. See Young Israel of Tampa, Inc. v. Hillsborough Area Reg'l Transit Auth., 89 F.4th 1337, 1350 (11th Cir. 2024).

The dissent, by contrast, argued that the majority was again improperly treating a facial challenge as an as‑applied one and failing to systematically “measure [un]constitutional applications against the rest,” as Moody requires.

V. Majority’s Application of McCullen and Narrow Tailoring

A. Step One: Governmental Interest and Speech Burden

1. Significant Governmental Interest

Clearwater consistently articulated its governmental interest as “vehicular safety” and “safe and unobstructed access” to the clinic. The ordinance recitals and the City's briefing emphasized:

• The safety of protesters, patients, and drivers;
• The need to ensure “safe vehicular ingress and egress to and from the clinic;” and
• Concerns about driveway obstruction and near‑misses between protesters and vehicles.

The majority easily accepted this as a significant interest, citing Supreme Court precedent recognizing governmental interests in:

• Public safety and order;
• Free flow of traffic on streets and sidewalks; and
• Patients’ access to pregnancy‑related services.

See, e.g., Schenck v. Pro-Choice Network of W. N.Y., 519 U.S. 357, 376 (1997); McCullen, 573 U.S. at 486–87. The plaintiffs did not dispute the legitimacy or significance of this interest.

2. Burden on Sidewalk Counselors’ Speech—Focus on Leafletting

Under McCullen, the court must also carefully identify how the challenged law burdens speech, especially “forms of expression that have historically been closely associated with the transmission of ideas,” namely:

• “Normal conversation,” and
• “Leafletting on a public sidewalk.”

573 U.S. at 488–89. When government interferes with these modes, it imposes an “especially significant First Amendment burden.”

The majority here focused on leafletting to patients arriving by car.

• Pre‑Ordinance practice: Testimony from Migliore, Mahurin, Tuthill, and Goldsberry indicated that counselors would:
  • Stand at or near the driveway opening,
  • Step briefly into the portion of the driveway that crosses the public sidewalk (the “public right-of-way”),
  • Offer literature to occupants of cars that stopped and rolled down their windows, and
  • Engage in very brief oral exchanges with willing drivers.
• Post‑Ordinance effect: Because the ordinance prohibits pedestrians from entering or crossing any portion of the driveway and the five‑foot flanking area, counselors testified they:
  • Can no longer reach passengers in cars entering or exiting the clinic,
  • Can no longer stand at the driveway’s edge to hand literature to drivers as they turn in, and
  • Have effectively lost one of their “main activities” at the clinic: in‑car leafletting.

Photographs in the record corroborated that cars now travel beyond counselors’ arm’s reach. The City conceded that most patients arrive by car, meaning the ordinance cuts counselors off from the main flow of would‑be recipients.

The district court criticized plaintiffs for failing to “definitively quantify” the decline in leaflet distribution. The majority rejected the need for precise metrics, citing McCullen, where the Supreme Court relied on counselors’ testimony and estimates, not hard counts. There, the Court found it sufficient that counselors said they reached “far fewer people” than before, and that only 1 in 100 patients now initiated contact. 573 U.S. at 487–88.

The district court pointed out that counselors could still “wave” leaflets and that nothing in the ordinance stopped a willing listener from approaching them at the boundary. The majority responded that McCullen had expressly held that forcing speakers to rely on hand‑waving from a distance is inadequate:

“It is easier to ignore a pamphleteer with a handbill than a person who hands you the document and speaks to you.”

As in McCullen, the court concluded that the ordinance “seriously burdens” the counselors’ ability to engage in leafletting—one of their primary and historically protected means of communication.

The majority also underscored an additional, text‑based burden: the ordinance prohibits any “pedestrian” from entering the buffer during covered hours, except for specified first responders and clinic agents. Nothing in the text exempts patients or others who might wish to cross the line to accept a leaflet. The district court had read an implicit exemption for patients walking up to counselors, but the majority rejected that as inconsistent with the ordinance’s plain language and the canon that courts must analyze a law “as written” in a facial challenge.

B. Step Two: Narrow Tailoring Under McCullen

Under McCullen, a content‑neutral law is “narrowly tailored” if it does not “burden substantially more speech than is necessary to further the government’s legitimate interests.” 573 U.S. at 486 (quoting Ward v. Rock Against Racism, 491 U.S. 781, 799 (1989)). The law need not be the absolute least restrictive means, but the government:

• “May not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals.”
• Must show that less‑restrictive “alternative measures that burden substantially less speech would fail to achieve the government’s interests,” not simply that the chosen route is “easier” or more “efficient.”

McCullen identifies two independent ways a law can fail narrow tailoring:

1. The government has not “seriously undertaken” less intrusive tools “readily available” to address its concerns (the “alternative measures” problem); and
2. The law’s breadth is materially out of proportion to the problem—e.g., creating statewide buffer zones around all clinics when evidence of serious obstruction is limited to one facility (the “breadth mismatch” problem).

See 573 U.S. at 490, 493–95.

The Eleventh Circuit majority focused on the alternative measures prong and found it dispositive, expressly leaving open whether the ordinance also suffered from a breadth mismatch.

1. Plaintiffs’ Burden to Show Feasible Alternatives

As in Pine v. City of West Palm Beach, 762 F.3d 1262 (11th Cir. 2014), the court held that plaintiffs bear the burden of pointing to “feasible alternatives” in the record, after which the government must demonstrate that those alternatives would fail to achieve its interests.

Florida Preborn pointed to Fla. Stat. § 316.2045, Florida’s existing anti‑obstruction statute, as a less‑restrictive tool capable of addressing the City’s vehicular safety concerns.

2. Florida’s Anti‑Obstruction Statute as a Less Burdensome Alternative

Florida’s statute provides that:

“A person may not willfully obstruct the free, convenient, and normal use of a public street, highway, or road by… impeding, hindering, stifling, retarding, or restraining traffic or passage thereon… .”

Fla. Stat. § 316.2045(1)(a)(1). “Street or highway” is broadly defined as “[t]he entire width between the boundary lines of every way or place of whatever nature when any part thereof is open to the use of the public for purposes of vehicular traffic.” Id. § 316.003(90)(a).

The majority emphasized that this definition easily encompasses a driveway located on public right‑of‑way. It noted:

• The ordinance itself described the clinic driveway as located on “public right-of-way.”
• An aerial map attached to the ordinance showed that the clinic’s property line does not include the portion of the driveway that the public sidewalk crosses, confirming that this stretch of the driveway is indeed publicly owned.

Thus, as a matter of statutory text, § 316.2045 applies to the driveway.

3. Rejection of the City’s Distinctions

The City and the district court offered several reasons why § 316.2045 could not serve as an adequate alternative. The majority rejected them, one by one:

• Driveway not “public” / not a “road or highway”:
  • Officers testified inconsistently about whether the statute applied; some said it did not.
  • The majority held that officers’ subjective beliefs cannot override the statute’s broad textual definition of “street or highway.” On a facial challenge, courts must apply the law “as written,” not as individual officers view it.
  • The ordinance’s recitals and maps confirmed that the driveway portion at issue is public right‑of‑way.
• “After‑the‑fact” enforceability concern:
  • The City argued that obstruction laws only allow citation after an obstruction occurs, whereas the buffer allows proactive enforcement.
  • The majority noted that the ordinance itself is enforced only by civil infraction—also effectively after the fact—and does not, on its face, authorize arrest.
  • Thus, the “after‑the‑fact” criticism did not meaningfully distinguish the obstruction statute from the ordinance.
• Efficiency / ease of enforcement:
  • The City contended that enforcing § 316.2045 would be “significantly more tedious and less efficient” than enforcing a bright‑line buffer zone.
  • Quoting McCullen, the majority responded that a “painted line on the sidewalk is easy to enforce, but the prime objective of the First Amendment is not efficiency.” 573 U.S. at 495.
  • The City failed to argue—or show—that enforcing the obstruction statute would fail to achieve its interests, as opposed to being more administratively burdensome.
• Constitutionality of § 316.2045:
  • The City suggested that § 316.2045 had been “found unconstitutional” in prior district court decisions.
  • The majority clarified that earlier invalidations concerned prior versions of the statute and specific language since amended out; the current version has not been held unconstitutional.
  • In any event, the court did not decide that statute’s constitutionality; it only held that its existence is a viable, less‑restrictive alternative the City failed to meaningfully consider.

Drawing directly from McCullen, which highlighted local anti‑obstruction ordinances as less restrictive means to address driveway blockages, the majority concluded that Clearwater “ha[d] too readily forgone options that could serve its interests just as well, without substantially burdening the kind of speech in which [plaintiffs] wish[] to engage.” 573 U.S. at 490.

Accordingly, the ordinance “burdens substantially more speech than necessary to achieve the government’s asserted interests” and is not narrowly tailored.

C. Buffer Zone Size and the Relevance of McCullen and Sisters for Life

One might expect that a 5‑foot buffer would easily be distinguished from the 35‑foot buffer struck down in McCullen. The majority rejected that assumption as inconsistent with McCullen’s reasoning.

• Key point in McCullen: The Supreme Court’s analysis emphasized the law’s effect on the counselors’ ability to:
  • Stand where driveways intersect sidewalks, and
  • Offer literature to patients as they walk or drive by.
  The constitutional defect turned not on the absolute number of feet, but on whether the law foreclosed these particular modes of communication at critical points of access.
• Sixth Circuit’s approach in Sisters for Life: That court applied McCullen to a 10‑foot buffer. It held that “once a buffer zone burdens speech, McCullen demands narrow tailoring,” regardless of whether the zone is 35 feet or 10 feet or somewhere in between, and noted that forcing leafletting to occur from “more than an arm’s length away” was constitutionally significant. 56 F.4th at 406–07.

The Eleventh Circuit majority adopted this logic. Once a buffer zone, even a small one, pushes leaflet distribution beyond arm’s length for the key audience (here, patients arriving by car), McCullen requires the government to justify the burden under strict narrow‑tailoring scrutiny and show that less‑restrictive alternatives would not suffice. The focus is on whether the law burdens traditional, protected means of communication at critical access points, not the raw size of the zone.

The majority distinguished:

• Lucero v. Trosch and Schenck v. Pro-Choice Network because they involved injunctions targeted at specific, proven misconduct, which historically have been granted more leeway than broadly applicable statutes. McCullen itself highlighted the “First Amendment virtues of targeted injunctions as alternatives to broad, prophylactic measures.” 573 U.S. at 492–93.
• Bruni v. City of Pittsburgh because the Third Circuit there construed the ordinance so as not to prohibit the type of sidewalk counseling plaintiffs sought to engage in within the zone itself. In contrast, Clearwater’s ordinance, as written, flatly prohibits counselors’ presence in the zone.

D. Remaining Preliminary Injunction Factors

Having found a substantial likelihood of success on the merits, the majority proceeded—unlike the district court—to address the remaining factors.

1. Irreparable Injury

Citing Elrod v. Burns, 427 U.S. 347, 373 (1976), the court reaffirmed that “the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” It distinguished between:

• Direct penalization of speech (which constitutes irreparable injury), and
• “Incidental inhibition” (which may not).

Because Clearwater’s ordinance “categorically bars” plaintiffs from using a segment of a public sidewalk to distribute literature, it falls on the “direct penalization” side of the line. See KH Outdoor, LLC v. City of Trussville, 458 F.3d 1261, 1271–72 (11th Cir. 2006).

2. Balance of Harms and Public Interest

When the government is the opposing party, these two factors “merge.” See Nken v. Holder, 556 U.S. 418, 435 (2009).

The majority held:

• Even a temporary infringement of First Amendment rights is a “serious and substantial injury.”
• The City has “no legitimate interest in enforcing an unconstitutional ordinance.”

Accordingly, the balance of harms and the public interest favored granting the injunction. See KH Outdoor, 458 F.3d at 1272.

VI. The Dissent: Emphasis on Moody, Modest Burdens, and Public Safety

Judge Abudu’s dissent contests both the majority’s narrow‑tailoring analysis and its treatment of the preliminary‑injunction factors, centering on three themes:

1. The high bar for facial challenges under Moody;
2. The modest nature of the 5‑foot buffer and the continued availability of effective communication; and
3. The seriousness of documented safety concerns and the importance of the City’s interests.

A. Facial Challenge Under Moody

The dissent begins by emphasizing that facial challenges are “hard to win,” quoting Moody’s admonition. To prevail, FPR must show not just some unconstitutional applications, but that:

• Either the ordinance is unconstitutional in all its applications, or
• Its unconstitutional applications “substantially outweigh” its constitutional ones.

603 U.S. at 723–24.

Judge Abudu argues that the majority:

• Focuses almost entirely on how the ordinance affects these particular sidewalk counselors at this particular clinic; and
• Fails to conduct Moody’s required two‑step facial analysis: first, assessing the full range of regulated activities; second, measuring unconstitutional applications against constitutional ones.

She notes that the ordinance:

• Applies to all pedestrians, bicyclists, and non‑motorized vehicles (not just anti‑abortion speakers),
• Addresses specific, documented safety problems over an extended period (73 calls to police in a year, escalating confrontations), and
• Enhances safety for patients, escorts, protesters, and officers alike.

Given these facts, she contends that FPR failed to show that the ordinance’s unconstitutional applications (if any) substantially outweigh its legitimate ones, as required for facial invalidation.

B. Modest Buffer and Ample Alternative Channels

Judge Abudu underscores the small size of the buffer relative to McCullen and notes that:

• The buffer is only five feet on either side of the driveway; the rest of the sidewalk and driveway remains available.
• Testimony showed that counselors’ voices can be clearly heard an additional five feet away.
• Counselors can still stand near the driveway edge (outside the 5‑foot zone), wear high‑visibility vests, and offer literature to drivers.

She relies in part on Hill v. Colorado, 530 U.S. 703 (2000), where the Supreme Court upheld an 8‑foot “bubble zone” preventing speakers from approaching unwilling listeners within 100 feet of a healthcare facility entrance. In Hill, the Court acknowledged the importance of leafletting but held that, at eight feet, leafleteers could still stand near the path of pedestrians and “proffer[]” materials that pedestrians could “easily accept.” 530 U.S. at 727–28.

Judge Abudu stresses two points:

• The First Amendment protects the right to “reach the minds of willing listeners,” but does not entitle speakers to invade personal space or force interactions on unwilling listeners.
• Patients have a recognized privacy interest and “right to be let alone,” particularly when they are in a quasi‑captive situation accessing medical services.

In her view, Clearwater’s ordinance:

• Does not prevent willing listeners from engaging; drivers can still stop, roll down windows, or even pull over nearby to interact with counselors.
• Merely establishes a modest “breathing space” buffer consistent with Hill and other precedents.
• Leaves “ample alternative channels” for FPR to communicate—same message, same location, just slightly more than arm’s length away from the driveway itself.

C. Narrow Tailoring and Public Safety Evidence

The dissent highlights the extensive evidence of public disturbance and safety risks:

• 73 calls for service over one year;
• Officers witnessing protesters repeatedly crossing the driveway and impeding ingress and egress;
• Reports of protesters stepping close to moving vehicles with the apparent intent to intimidate occupants.

Judge Abudu emphasizes that the ordinance was crafted in response to law‑enforcement requests for more effective tools, after trespass warnings proved unworkable because the driveway is public right‑of‑way.

She criticizes the majority for underweighting this record, and for assuming that general obstruction laws alone, enforced after the fact, would adequately protect safety. In her view:

• The City’s interest in preventing harm ex ante justifies a small, fixed buffer as a prophylactic measure.
• The modest geographic scope (one driveway, five feet on each side) contrasts sharply with Massachusetts’s statewide 35‑foot buffer in McCullen.

D. Preliminary Injunction Factors

Finally, Judge Abudu argues that FPR failed to establish:

• Irreparable harm: Any burdens are minimal and speculative, not “actual and imminent.” Counselors can still leaflett and converse from just beyond the 5‑foot line.
• Balance of harms: The City has shown significant tangible harms from past confrontations and obstruction. Enjoining enforcement risks re‑creating dangerous conditions.
• Public interest: The ordinance serves public safety, traffic management, and patient access—all important public interests—and should not be lightly enjoined at the preliminary stage.

On her view, the district court reasonably weighed these considerations and did not abuse its discretion. The preliminary injunction should therefore have been denied.

VII. Precedents and Their Influence

A. McCullen v. Coakley (2014)

McCullen is the linchpin of the majority’s analysis. It stands for several principles:

• Even content‑neutral buffer zones around abortion clinics must meet strict narrow‑tailoring requirements.
• Courts must pay particular attention to restrictions on leafletting and quiet, conversational outreach—“the essence of First Amendment expression on the street corner.”
• Governments must seriously explore and, where feasible, utilize less burdensome tools (e.g., enforcing existing obstruction or harassment laws) before resorting to buffer zones that broadly limit peaceful speech.

The Eleventh Circuit imported McCullen’s framework wholesale and applied it to Clearwater’s much smaller vehicular buffer, underscoring that size alone does not save a law if it still blocks counselors from engaging in protected activities like driveway leafletting.

B. Sisters for Life, Inc. v. Louisville-Jefferson County (6th Cir. 2022)

The majority treated the Sixth Circuit’s decision as persuasive and closely analogous. There, sidewalk counselors challenged a 10‑foot buffer around “the entrance to” abortion clinics. The Sixth Circuit:

• Relied on McCullen to find that the buffer seriously burdened arm’s‑length leafletting,
• Rejected the idea that smaller zones are categorically easier to justify, and
• Emphasized that once a buffer impairs speech, narrow tailoring is required “whether its yoke is heavy or light.”

The Eleventh Circuit majority adopted this conceptual approach and extended it to Clearwater’s 5‑foot vehicular zone.

C. Lucero v. Trosch (11th Cir. 1997) and Schenck v. Pro-Choice Network (1997)

Both cases predate McCullen and upheld larger buffer zones in the abortion context, but in the context of injunctions tailored to specific actors whose past conduct had been adjudicated unlawful.

McCullen distinguished such injunctions from general statutes:

• Injunctions regulate specific “bad actors” in a particular dispute, justified by findings about their prior conduct.
• Broad statutes and ordinances apply to everyone—including peaceful counselors with no history of wrongdoing—and thus must be narrower and more speech‑protective.

The majority here followed McCullen’s caution against relying on injunction cases to justify general buffer ordinances.

D. Pine v. City of West Palm Beach (11th Cir. 2014)

Pine applied McCullen to a 100‑foot noise restriction around healthcare facilities. The court:

• Accepted the noise ordinance as content‑neutral;
• Required the plaintiffs to point to feasible less‑restrictive alternatives; and
• Ultimately upheld the law, finding no viable alternative with substantially less impact on speech.

The majority here cited Pine to frame the burden‑shifting for alternative measures: plaintiffs must identify alternatives; the government must show they would not achieve its goals.

E. Hill v. Colorado (2000)

The dissent invoked Hill to argue that modest distancing rules can be consistent with the First Amendment so long as leafletting remains practically possible and listeners retain meaningful choice whether to engage.

Although Hill concerned an 8‑foot “floating bubble” around individual persons rather than a fixed zone around a driveway, its discussion of balancing speakers’ and unwilling listeners’ rights remains influential. The dissent used it to support the proposition that a small buffer aimed at protecting patients from unwanted approaches can be valid even when it modestly burdens leafletting.

F. Moody v. NetChoice, LLC (2024)

Both opinions contend with Moody, but they differ sharply on application:

• The majority reads Moody as compatible with treating a lack of narrow tailoring as a structural defect that renders a law facially invalid, in line with Sisters for Life and its own vagueness cases.
• The dissent insists Moody requires a more global accounting of an ordinance’s constitutional and unconstitutional applications and criticizes the majority for focusing almost exclusively on one clinic and one class of speakers.

This division signals that the Eleventh Circuit is not yet fully unified on how Moody reshapes facial First Amendment litigation, particularly where the challenge is directed at narrow tailoring rather than content discrimination.

VIII. Simplifying Key Legal Concepts

1. Content-Neutral Time, Place, and Manner Restrictions

A regulation is “content‑neutral” if it applies regardless of what is being said, focusing instead on when, where, or how speech occurs (e.g., no amplified sound after midnight, no blocking sidewalks). Such regulations:

• Do not directly discriminate against any viewpoint or subject matter.
• Are evaluated under intermediate scrutiny (time, place, and manner doctrine).

Even then, they must be carefully justified, especially in traditional public fora like sidewalks.

2. Narrow Tailoring

“Narrow tailoring” in this context has a specific meaning:

• The law need not be the single least restrictive means imaginable.
• But it must avoid burdening substantially more speech than necessary to achieve the government’s goals.
• If a significant portion of the speech burden does not advance those goals, the law is not narrowly tailored.

Courts often look for whether the government:

• Seriously tried enforcing existing laws (e.g., obstruction, harassment, noise) before adopting broader speech restrictions; and
• Considered narrower options (e.g., targeted injunctions, better policing, time‑limited rules) that would protect its interests without broadly excluding peaceful speakers.

3. “Ample Alternative Channels”

A restriction must leave speakers enough ways to get their message across effectively. This does not mean:

• They must be allowed to communicate in their most preferred manner at their exact preferred spot; or
• The law is invalid simply because some communications become harder or less effective.

But if a law essentially eliminates a historically significant mode of communication at a crucial place and time (for example, leafletting to cars entering a facility), courts may find that alternative channels are not “ample.”

4. Facial vs. As‑Applied Challenges

• As‑applied challenge: Plaintiff argues that a law, as applied to their specific conduct or circumstances, is unconstitutional (even if valid in other contexts).
• Facial challenge: Plaintiff argues that the law is invalid in all—or at least in a substantial proportion—of its applications, compared to its legitimate sweep.

Under Moody, facial challenges require courts to consider all the ways a law might be used, not just the plaintiff’s case, and to weigh constitutional against unconstitutional applications.

5. Traditional Public Forum

“Traditional public fora” are places historically used for public expression—streets, sidewalks, and parks. The government’s ability to limit speech in such places is “very limited.” Regulations in these spaces are subject to higher scrutiny than similar rules in nonpublic or limited public fora (e.g., inside a courthouse or a school classroom).

IX. Likely Impact and Future Implications

A. Buffer Zones at Clinics and Beyond

This decision sends a clear message in the Eleventh Circuit:

• Even small, driveway‑specific buffer zones around clinics will be scrutinized carefully under McCullen.
• Cities relying on “vehicular safety” rationales must show they have genuinely tried enforcing generally applicable obstruction and traffic laws before carving out buffer zones on public rights‑of‑way.
• Courts will look closely at whether the ordinance blocks arm’s‑length leafletting and conversational outreach to the primary audience (here, patients in cars) at key access points.

Municipalities in the Eleventh Circuit considering similar buffers—around abortion clinics, protests at other controversial facilities, or politically sensitive locations—will need to:

• Build strong evidentiary records of attempted enforcement under existing laws and why those proved inadequate; and
• Draft regulations narrowly, steering clear of categorical bans on peaceful presence and leafletting at driveway or entrance points on public property.

B. The Role of General Obstruction Statutes

By treating Florida’s § 316.2045 as a serious, less burdensome alternative, the court signals that:

• General public‑order statutes (obstruction, disorderly conduct, etc.) are an important first line of defense before enacting targeted speech restrictions.
• Failure to use or meaningfully consider such statutes will weigh heavily against narrow tailoring.

This approach may encourage municipalities to:

• Train officers in the use of existing tools rather than immediately turning to new speech‑restrictive ordinances; and
• Be prepared to defend, with concrete evidence, why those tools are insufficient in a given context.

C. Continuing Uncertainty About Moody’s Application

The split between the majority and dissent underscores ongoing uncertainty in how Moody interacts with:

• The McCullen/Ward narrow‑tailoring framework; and
• Facial challenges to content‑neutral time, place, and manner restrictions.

Key questions likely to recur:

• When is lack of narrow tailoring a “structural” defect that renders a law facially invalid, as opposed to a defect only in specific applications?
• How granular must a court be in cataloguing all potential applications of an ordinance (e.g., across days/times, kinds of speakers, types of conduct) before declaring it facially invalid?

Future Eleventh Circuit and Supreme Court decisions may need to refine how Moody’s “substantial number of unconstitutional applications” standard coexists with robust protection for speech in traditional public fora.

X. Conclusion

Florida Preborn Rescue v. City of Clearwater is a significant addition to buffer‑zone jurisprudence in the Eleventh Circuit. The court:

• Reaffirmed McCullen’s core teaching that even content‑neutral buffer zones must be tightly tailored,
• Applied that teaching to a relatively small vehicular safety zone at a single clinic entrance, and
• Held that the City’s failure to use an existing anti‑obstruction statute undermined narrow tailoring, making a facial First Amendment challenge likely to succeed.

At the same time, the strong dissent highlights the countervailing interests in patient safety, traffic management, and the high bar for facial challenges under Moody, arguing that the 5‑foot buffer imposes only modest burdens and leaves ample alternatives.

The ruling thus both constrains municipalities’ ability to regulate speech around clinic driveways and deepens the ongoing conversation about how to balance robust sidewalk speech rights with public safety and ordered access to healthcare facilities in the post‑McCullen, post‑Moody landscape.