I was looking through some old papers I wrote in law school (study break while I prepare for the bar exam) and figured since I hadn’t posted in ages, I might as well share them with y’all!
This one was for my Constitutional Law Seminar, and was written when McCullen v Coakley was still pending at the Supreme Court! I’m happy to say that SCOTUS unanimously agreed with me, and even used many of the same quotes and cases in their opinion! Enjoy!
McCullen v. Coakley: Crossing the Line on Free Speech
In the late 1980s some pro-life groups, such as Operation Rescue, attempted to prevent abortions by several controversial methods, including instigating clinic blockades- amassing large groups of protestors that would block entrances to the clinics in order to prevent women who were seeking abortions from accessing the clinic. In some extreme and isolated cases, groups or rogue individuals would resort to violence as a means of preventing clinics and doctors from providing abortion services. In reaction, the federal government implemented laws that prohibited pro-life protestors from blocking access to clinics, or from using force or harassment against employees or patients. Some states and local governments also instituted laws, called buffer zone laws, which prohibited pro-life protestors from being within a specified distance of clinic entrances.
The Supreme Court initially upheld several buffer zones during the 1990s, but given that federal restrictions already prohibit clinic violence and blockades, along with evidence showing that these disruptive activities have all but disappeared- free speech advocates question whether the state still has a rational basis for restricting the speech of peaceful pro-life protestors, especially sidewalk counselors.
In early 2014, the Supreme Court heard arguments regarding a Massachusetts’ law which makes it a crime for speakers that are not clinic “employees or agents . . . acting within the scope of their employment” to “enter or remain on a public way or sidewalk” within thirty-five feet of an entrance, exit, or driveway of an abortion clinic.[i] The plaintiffs in McCullen v. Coakley are asking the Supreme Court to overrule the First Circuit in regards to Buffer Zone laws, on the basis that the law in question unconstitutionally restricts the protestor’s freedom of speech.
This paper examines the constitutionality of the Massachusetts buffer zone law. Part I of this paper looks at the history behind buffer zone laws. Part II focuses on the Supreme Court’s treatment the regulation of free speech in general, and Part III looks at how the Court has specifically handled previous cases regarding buffer zones. The paper concludes by arguing that the Court should uphold the free speech rights of pro-life protestors by declaring the Massachusetts law unconstitutional for violating the guarantee of free speech found in the First Amendment.
I. The History Behind Buffer Zone Laws
“We hope to put these places out of business, expose abortionists to their community, embarrass them for what they do, expose staff workers at these places and eventually shut down the whole grisly abortion industry …”- Eric Johns, protestor with Operation Rescue.[ii]
- Early History
Shortly after Roe v. Wade legalized abortion in 1973, pro-life groups such as Operation Rescue utilized civil disobedience in their quest to end abortion in America.[iii] Included among their tactics were blocking abortion clinic entrances by having their activists lie down in front of them, chaining themselves to their fellow activists and to the property, and crowding patients in order to block the clinic entrances.[iv] According to data compiled by the National Abortion Federation, there were over 30,000 arrests made during these types of blockades from 1973-1994.[v]
During this time period, the streets and sidewalks outside of some of Massachusetts’ abortion clinics were the focus of similar civil disobedience protests by pro-life groups, who resorted to disruptive tactics.[vi] In 1994, a shooting at a Massachusetts clinic killed two employees and injured several others.[vii]
As a response to the disruptive behavior of some pro-life groups, in 1994 the Federal Government passed the Freedom of Access to Clinic Entrances (FACE) Act, making it a federal crime to injure, intimidate, or interfere with, someone who is seeking to obtain or provide an abortion.[viii]
In addition to the federal response, the Massachusetts legislature felt that “existing laws did not adequately safeguard clinic staff, potential patients, or members of the public,” so they addressed the situation in 2000 by passing the Massachusetts Reproductive Health Care Facilities Act (“2000 Act”).[ix]
The 2000 Act was modeled after a Colorado statute that had recently been upheld by the Supreme Court in Hill v. Colorado[x] and provided for a “floating” buffer zone that restricted pro-life activists from approaching within six feet of anyone entering or leaving an abortion clinic without that person’s consent, when within an eighteen foot radius of an abortion clinic entrance.[xi]
In 2007, the Massachusetts Legislature amended the 2000 Act to provide for a fixed thirty-five foot zone where it is unlawful to “knowingly enter or remain on a public way or sidewalk…within a radius of 35 feet from any portion of an entrance, exit, or driveway of a[n abortion clinic]”.[xii] Like the previous Act, the 2007 Act applies only during business hours, and exempts clinic employees “acting within the scope of their employment.”[xiii] The Legislature based the rationale for the revision based upon their belief that the 2000 Act was “ineffective” and did not provide adequate protection and access to abortion clinics.[xiv]
3. Recent History
The recent history of the pro-life movement has been much more peaceful than it was during the days of Operation Rescue. The movement in general has rejected violence as a legitimate tactic and has focused their attention on more peaceful measures.[xv] As evidence of this change in tactics, is the fact that in the more than a decade of time that has passed since the 2000 Act was adopted, there have been fewer than ten arrests for clinic blockades in the United States and Canada combined.[xvi]
The focus for many pro-life advocates is the type of peaceful protesting represented by the 40 Days for Life organization, which utilizes prayer vigils as means of protest. 40 Days for Life is committed to non-violence, and before being allowed to sign up to participate in one of their prayer vigils, it is required that individuals agree to follow the rules in 40 Days for Life’s “Statement of Peace” which states the following:
- I will pursue only peaceful solutions to the violence of abortion when volunteering with the 40 Days for Life campaign.
- I will show compassion and reflect Christ’s love to all abortion facility employees, volunteers, and customers.
- I understand that acting in a violent or harmful manner immediately and completely disassociates me from the 40 Days for Life campaign.
- I am in no way associated with the abortion facility or its affiliates by way of employment, informant, volunteer, client, or otherwise.
While in front of [the] (abortion facility):
- I will be careful to yield to cars and pedestrians entering the parking lots.
- I will not obstruct the driveways, sidewalks, or doorways.
- I will not physically touch anyone, even in a friendly manner.
- I will not trespass on the private property of [the abortion clinic], which includes the parking lots, or throw anything into the abortion facility’s garbage cans.
- I will not litter on the public right of way
- I will closely attend to any children I bring to the prayer vigil
- I will not vandalize private or public property.
- I will cooperate with local city authorities.[xvii]
Other pro-life groups have pivoted their focus to education, such as Students for Life of America, whose annual conference is billed as “largest pro-life youth event in the world,”[xviii] or Live Action, which uses “powerful and dynamic media platforms to educate the public about the humanity of the unborn and investigative journalism to expose the threats against the vulnerable and defenseless.”[xix] Another tactic is “relocate[ing] the main abortion politics battlefield from the visible, participatory, and volatile streets to the more private, elite, and staid state legislative halls where they have enjoyed significant success.”[xx] In the legislative battle, non-profit legal groups like Alliance Defending Freedom, and Americans United for Life are leading the way with model legislation, as well as by defending states when regulations are challenged.[xxi]
Still others have moved their battle for the unborn to Crisis Pregnancy Centers, where “they offer information, ultrasounds, material support, and parent training with the aim of dissuading women from obtaining an abortion.”[xxii] Even Operation Rescue has changed their tactics, now dedicating themselves to “using peaceful, legal means to uncover abortion clinic wrong-doing, expose it to the public, and bring the offending abortionist to justice.”[xxiii]
While there may remain a fringe element that accepts and justifies the use of force to bring about the end of abortion, the evidence shows that abortion related violence has all but ceased to be a problem, and that the movement has shifted to more peaceful means of communicating its message and achieving its goals.
II. The Supreme Court’s Standards on Free Speech
While the Supreme Court recognizes that there are clear exceptions to freedom of speech, and that “a municipality may enact regulations in the interest of the public safety, health, welfare or convenience,” the Court maintains that “these [regulations] may not abridge the individual liberties secured by the Constitution to those who wish to speak, write, print or circulate information or opinion.”[xxiv]
In furthering these principles of freedom of speech, the Court has ruled multiple times that “the mere dissemination of ideas – no matter how offensive to good taste…may not be shut off in the name alone of “conventions of decency.”[xxv] Nor does “a claim that an audience that takes serious offense at particular expression is necessarily likely to disturb the peace and that the expression may be prohibited on this basis” enough to justify the regulation of certain speech.[xxvi] After all, the Court argues, a “function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging.”[xxvii]
The Court has also ruled that unwanted or annoying speech is not to be prohibited, saying:
The First and Fourteenth Amendments do not permit a State to make criminal the exercise of the right of assembly simply because its exercise may be “annoying” to some people…[a]nd such a prohibition, in addition, contains an obvious invitation to discriminatory enforcement against those whose association together is “annoying” because their ideas, their lifestyle, or their physical appearance is resented by the majority of their fellow citizens.[xxviii]
The Court has also recognized that certain places, are “public forums” and that the government’s ability to restrict speech there is “very limited.”[xxix] One example of this is public sidewalks, which the Court says are “quintessential” public forums, and “have been used for purposes of assembly, communicating thought between citizens, and discussing public questions.”[xxx] The Court added, that public access to sidewalks “is not a matter of grace by government officials but rather is inherent in the open nature of the location.”[xxxi]
The Court laid out a test by which to measure governmental regulations of free speech in public forums in Ward v. Rock Against Racism, ruling:
[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 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.[xxxii]
It is based upon these principles and precedents that the Court first took up the issue of buffer zones, and made their initial rulings, and it is under these rules that they will eventually consider the facts in McCullen as well.
III. The Supreme Court’s Handling of Buffer Zone Laws
“[Petitioners] correctly state that their leafleting, sign displays, and oral communications are protected by the First Amendment. The fact that the messages conveyed by those communications may be offensive to their recipient does not deprive them of constitutional protection.”[xxxiii]
- Masden v. Women’s Health Center
At the height of pro-life civil disobedience in 1994, the Court heard Masden v. Women’s Health Center, which dealt with buffer zone regulations implemented by court-ordered injunctions.[xxxiv] Originally ordered in 1992 in response to ongoing clinic blockades, the injunction in Masden, among other things, implemented a thirty-six foot buffer zone around an abortion clinic in Florida.[xxxv] The Court upheld this provision in large part because the record showed that the protestors at this location “repeatedly had interfered with the free access of the patients and staff”.[xxxvi] Indeed, the protestors at this location went so far as to violate the district court’s original order that only prohibited blockading the entrances.[xxxvii] Additionally, this buffer zone was specifically drawn by a court order, not a general provision of law, and only targeted the specific location where the protestors had caused major problems, which the Court took into account in deciding that the buffer zone in this case was narrowly drawn to prohibit the unlawful actions.[xxxviii]
2. Schenck v. Pro-Choice Network
At the same time the Court was hearing Masden, a similar case regarding injunctions against pro-life protestors was making its way up to the Supreme Court—Schneck v. Pro-Choice Network. In 1990, a federal court in New York issued an injunction prohibiting any picketing or demonstrations around an abortion clinic within a fixed buffer zone of fifteen feet; additionally, the district court imposed a floating buffer zone of fifteen feet from anyone entering or leaving the clinic unless the conversation was consensual in nature.[xxxix]
In keeping with their previous ruling in Masden, the Court explained that the proper test for evaluating whether an injunction was content-neutral under the First Amendment, “[is] whether the challenged provisions… burden no more speech than necessary to serve a significant government interest.”[xl] While the Court acknowledged that “leafleting and commenting on matters of public concern are classic forms of free speech that lie at the heart of the First Amendments, and speech in public areas is at its most protected on public sidewalks,” having been presented with a record of behavior by protestors similar to that in Masden, they ruled that “in some situations, a record of abusive conduct makes a prohibition on classic speech in limited parts of a public sidewalk permissible,” and upheld the fixed fifteen foot buffer zone.[xli] While the Court upheld the fixed buffer zone, they also made it clear that the objective was to secure the sidewalks for access, noting:
We doubt that the District Court’s reason for including that provision-“to protect the right of the people approaching and entering the facilities to be left alone”-accurately reflects our First Amendment jurisprudence in this area. Madsen sustained an injunction designed to secure physical access to the clinic, but not on the basis of any generalized right “to be left alone” on a public street or sidewalk. As we said in Madsen, quoting from Boos v. Barry, 485 U.S. at 322, “as a general matter, we have indicated that in public debate our own citizens must tolerate insulting, and even outrageous, speech in order to provide adequate breathing space to the freedoms protected by the First Amendment.”[xlii]
The Court in Schenck did strike down the fifteen foot floating buffer zone, reasoning that the zone “burden[ed] more speech than is necessary to serve the relevant governmental interests. The floating buffer zones prevent defendants…from communicating a message from a normal conversational distance or handing leaflets to people entering or leaving the clinics who are walking on the public sidewalks.”[xliii]
3. Hill v. Colorado
In 2000, the Supreme Court heard a challenge to a 1993 Colorado statute that regulated speech-related conduct within 100 feet of all healthcare facilities. The statute called for an eight foot “floating buffer zone”, meaning that while within 100 feet of any health care facility, pro-life protestors could not approach within eight feet of anyone without their permission.[xliv] The Court chose to uphold the statute, saying that it was a “content-neutral time, place, and manner regulation.”[xlv]
The Court ruled that the statute in Hill was content-neutral because it affected all health care facilities, not just ones that provided abortions, saying, “the comprehensiveness of the statute [was] a virtue, not a vice, because it [was] evidence against there being a discriminatory governmental motive,” and that “there is no more effective practical guaranty against arbitrary and unreasonable government, than to require that the principles of law which officials would impose upon a minority must be imposed generally.”[xlvi]
In finding that the regulation was “narrowly tailored,” the Court in Hill strongly emphasized that the only restriction in the Colorado statute was on unwanted, close physical approaches by protestors, while other speech was allowed within the regulated area.[xlvii] The Court recognized that “the First Amendment protects the right of every citizen to reach the minds of willing listeners, and to do so there must be opportunity to win their attention.”[xlviii] The Court believed that the provision in Hill gave pro-life protestors this opportunity by protecting all other types of communication save actually approaching someone, with the Court “reiterating that only attempts to address unwilling listeners are affected.”[xlix] Under Hill, a plethora of other alternate speech activities were available to the protestors- silent prayer, talking in a loud voice, the wearing of pro-life shirts and symbols, and the stationary holding of signs and passing out of informational leaflets.
In his dissent, Justice Scalia, in his usably acerbic style, savages the majority opinion by saying, “[h]aving deprived abortion opponents of the political right to persuade the electorate that abortion should be restricted by law, the Court today continues and expands its assault upon their individual right to persuade women contemplating abortion that what they are doing is wrong.”[l] He goes on to argue that the regulation here, while not specifically aimed at a certain subject of communication, is still not content neutral, since it targets a specific type of communication- protests.[li]
Scalia also noted that the Court uses as its justification, “the State’s interest in protecting its citizens’ rights to be let alone from unwanted speech,” which Colorado not only never asserted, but actually explicitly rejected in its brief.[lii] Finally, he points to the language in Schenck, where the Court stated that there was no general right to be left alone.[liii]
III. How McCullen v. Coakley Crosses the Line
“Eleanor McCullen…is a 76-year-old grandmother who aims to stand on public sidewalks near abortion clinics in order to reach this unique audience at a unique moment, in a compassionate and non-confrontational way. Over the years, hundreds of women have accepted such offers of help from McCullen and other petitioners.”[liv]
- Reasonable Time, Place, and Manner?
In deciding the constitutionality of the Massachusetts statute at issue in McCullen v Coakley, the Court should look to its prior precedent regarding the regulation of speech in public forums, because the statute deals with speech on public sidewalks, which as previously mentioned, the Court has noted many times, are “quintessential” public forums, and “have been used for purposes of assembly, communicating thought between citizens, and discussing public questions.”[lv]
As such, the Court should apply the test from Ward v. Rock Against Racism, which requires that regulations must be content neutral, narrowly tailored, and provide ample alternative means of communication. Taking these three elements and applying them to the statute in McCullen should show clearly whether or not the statue is a permissible regulation of free speech. It should be noted that the Court places the burden of proving that the regulations are not overly burdensome on the government, not those seeking to overturn the regulations.[lvi]
2. Content Neutral
In Police Dep’t of Chicago v. Mosley, the Court struck down regulations limiting the ability to picket at schools, saying the government may not create rules favoring speech on “one preferred subject,” conversely the government also may not create rules that effectively disfavor speech on one topic.[lvii] In regards to the 2007 Act, however, both State and lower federal courts have acknowledged that the law is focused deliberately on abortion related speech, [lviii] and Petitioners argue vehemently in their brief and in oral arguments that the 2007 Act is not content neutral because it only applies to abortion clinics, and because it exempts speech by abortion clinic employees and agents.
On the first contention, the Court has previously agreed that “apart from text, the effect of a law in its real operation is strong evidence of its object,”[lix] and the record contains no evidence of any non-abortion related speech being affected by the law.[lx] The 2007 Act undeniably applies only to abortion clinics, and only during business hours, which at the very least is suggestive regarding the type of speech it is designed to affect. Many who sympathize with abortion rights have also criticized the Court’s reasoning in Hill, with some of them calling it “slam-dunk simple and slam-dunk wrong,” [lxi] and that it “showed a striking readiness to accept [efforts] to draw a facially neutral statute to achieve goals clearly targeting particular content.”[lxii]
Additionally, in his concurrence in Hill, Justice Souter reasoned “[t]he fact that speech by a stationary speaker [was] untouched by th[e] statute show[ed] that the reason…[went] to the approaches, not the content of the speech of those approaching.”[lxiii] There is no such evidence here, as the speech of all pro-life protestors within thirty five feet of an abortion clinic is restricted, regardless of whether it is consensual or not.
The 2007 Act also exempts some speakers, namely employees and agents of the abortion clinics. These people may walk freely about the thirty five foot buffer zone, interacting with patients in a way that arguably expresses the views of the clinic. The Court has previously stated exemptions from speech regulations “may represent a governmental attempt to give one side of debatable public question an advantage,”[lxiv] and that “granting waivers to favored speakers would of course be unconstitutional.”[lxv] Therefore the government may not “grant the use of a forum to people whose view its finds acceptable, but deny use to those wishing to express less favored or more controversial views.”[lxvi] By allowing clinic workers and agents (such as volunteer “escorts”) to speak to women within the buffer zone while banning pro-life activists (such as “sidewalk counselors”) seeking to speak to these same women, the 2007 Act does just that. In oral arguments, Justice Alito gave the following example showing the problem:
A woman is approaching the door of a clinic, and she enters the zone. Two other women approach her. One is an employee of the facility, the other is not. The first who is an employee of the facility says, good morning. This is a safe facility. The other one who’s not an employee says, good morning, this is not a safe facility. Now, under this statute, the first one has not committed a crime; the second one has committed a crime. And the only difference between the two is that they’ve expressed a different viewpoint. One says it’s safe; one says it’s not safe. Now, how can a statute like that be considered viewpoint-neutral?[lxvii]
Respondents argue that the statute in that instance is not concerned with the speech of the clinic agent, but only exempts their actions (i.e. escorting the woman to the clinic doors).[lxviii] This however, should be considered unpersuasive as the Court has repeatedly held that a plethora of actions are forms of symbolic speech.[lxix] In Texas v Johnson, the Court said that conduct could be viewed as speech when “[a]n intent to convey a particularized message was present, and the likelihood was great that the message would be understood by those who viewed it.”[lxx] Many of the clinic escorts are volunteers, who participate for the express purpose of express purpose of symbolically expressing their permissive viewpoint on abortion, and this intent is well-known; therefore, it would be accurate to depict even the act of escorting women into the clinic as symbolic speech.[lxxi] By allowing this pro-choice, pro-clinic speech, but denying pro-life speech, the statute shows that it is not content neutral. As Justice Berzon of the 9th Circuit explained in a similar case, “distinguishing between speech that facilitates access to clinics and speech that discourages access is not content-neutral. It is the epitome of a content-based speech restriction.”[lxxii]
Because the law specifically targets speech at abortion clinics (which is logically going to be restricted to abortion related speech), and because it exempts the pro-clinic symbolic speech expressed by clinic employees and agents, the 2007 Act is not content neutral.
3. Narrowly Tailored to Serve a Significant Governmental Interest
Massachusetts cites as its governmental interest in implementing these regulations, a concern for public safety and the need to secure access to legal health services, pointing to what they call a “history of violence” outside abortion clinics.[lxxiii] Indeed, the Court has long recognized that the government has the power to regulate certain speech-related activities on public sidewalks, such as violence, obstruction and intimidation.[lxxiv] However, the Court has previously invalidated speech regulations where “there are appropriate public remedies to protect the peace and order of the community if [the speech at issue] should result in disorder and violence.”[lxxv]
The record before the Court shows that under the 2000 Act, there were only a handful of arrests and even fewer prosecutions for violations outside of abortion clinics; in fact, during oral arguments, it was asserted by petitioners (without contradiction) that the last conviction of an pro-life protestor in the state was in 1997, and the federal government had never prosecuted a FACE violation in the state.[lxxvi] The national statistics echo this assertion, as between 2000-2006 evidence shows that there were only three arrests for blockading clinics, and fewer than one hundred incidents of physical violence in the entire US and Canada.[lxxvii]
Absent evidence of actual violence justifying the stricter regulations, Massachusetts points to the opinion of some law enforcement officials that the 2000 Act was difficult to enforce, and did not allow them to keep the entrances to the clinic clear.[lxxviii] This argument does not seem persuasive for two reasons- first, there were already numerous state and federal laws that could be used to either prosecute or bring civil suit against individuals if they were truly blocking access to the clinics,[lxxix] and the Court expects states to use the laws on the books to their full extent before increasing regulations[lxxx]; and secondly, the Court has previously ruled “the First Amendment does not permit the State to sacrifice speech for efficiency,” therefore the opinion that a fixed zone would be easier to enforce is not a “significant” justification.[lxxxi]
Additionally, the fact that some women might be discouraged from entering an abortion clinic by the presence of protestors is not a governmental interest at all. Abortion clinics are businesses, and businesses have historically been the target of protests and demonstrations based on the services they provide. The Court has previously stated that protestors discouraging business is not a valid justification for the government’s interference:
It may be that effective exercise of the means of advancing public knowledge may persuade some of those reached to refrain from entering into advantageous relations with the business establishment which is the scene of the dispute. Every expression of opinion on matters that are important has the potentiality of inducing action in the interests of one rather than another group in society. But the group in power at any moment may not impose penal sanctions on peaceful and truthful discussion of matters of public interest merely on a showing that others may thereby be persuaded to take action inconsistent with its interests.[lxxxii]
Even if there was ample support for there being a “significant” governmental interest, the 2007 Act’s regulations are not narrowly drawn to serve the interests asserted by Massachusetts. For instance, the same interests have been cited in other cases where the regulations were much narrower- Masden and Schenck applied only to certain clinics where the record showed extraordinary circumstances necessitated them, and Hill regulated only unwanted physical approaches. The 2007 Act, however, categorically restricts all speech regardless of whether or not such speech raises any prospect of violence or obstruction. Similar to a law the Court struck down banning speech at airports, the Massachusetts regulations do not “merely regulate expressive activity … that might create problems such as congestion or … disruption” but outlaws all communications on the public sidewalks affected, even “talking and reading, or the wearing of campaign buttons or symbolic clothing.”[lxxxiii] Outlawing all these forms of communication plainly “burden[s] substantially more speech than in necessary.”[lxxxiv] As Alan Brownstein, a law professor at UC Davis School of Law, put it:
If the state’s goal was to prevent people from blocking access to the clinics, why couldn’t it draft a narrower, more precise law prohibiting obstruction? One or two peaceful “counselors” would not block access to a clinic. Yet the challenged law substantially burdened their ability to communicate their message. Perhaps loud protestors with signs could communicate their message 35 feet away from the targeted audience, but soft spoken counselors needed to be closer to the women they were addressing.[lxxxv]
Additionally most of the evidence regarding congestion that the state uses to justify the regulations occur only at one clinic (in Boston), at one specific time (Saturday mornings).[lxxxvi] If this is a limited problem, the Court has previously advised states that an individualized approach is preferable to a broad statutory response:
Predictions about imminent disruption from picketing involve judgments appropriately made on an individualized basis, not by means of broad classifications, especially those based on subject matter. Freedom of expression, and its intersection with the guarantee of equal protection, would rest on a soft foundation indeed if government could distinguish among picketers on such a wholesale and categorical basis.[lxxxvii]
Professor Brownstein, however, argues that this contention is doubtful, noting “[t] he Court has never prohibited government from legislating categorically or insisted that every time, place, and manner regulation has to be evaluated park by park, neighborhood by neighborhood, or street by street.”[lxxxviii]
The approach in the original 2000 Act was based off Hill, which was previously acknowledged by the Court as striking the appropriate balance between safety and free speech by limiting only unwanted close physical approaches. In Hill the Court states that “the First Amendment protects the right of every citizen to reach the minds of willing listeners, and to do so there must be opportunity to win their attention,” and reasoned that allowing protestors to attempt to engage listeners within the area of facilities protected their right and ability to speak.[lxxxix] The 2000 Act was a much narrower regulation that preserved this right held by all citizens, and is much less burdensome upon free speech.
The record in this case simply does not support Massachusetts’ assertion that the regulations in the 2007 Act serve a significant governmental interest that could not be served by the 2000 Act, limited injunctive relief at affected clinics where there is a proven problem, or some combination of other more modest regulations than the 2007 Act provides for.
4. Ample Alternative Means of Communication
Throughout our nation’s judicial history the right to engage in free speech activities, such as asking others to willingly stop and converse, has been jealously guarded by the Court.[xc] By enacting a complete prohibition on any speech within thirty five feet of abortion clinics, the 2007 Act effectively deprives women of the “right and privilege to determine for [themselves] what speech and speakers are worthy of their attention,’[xci] and deprives pro-life protestors of their rights without allowing them ample alternative means of communication.
Unlike the regulations in Hill, which prohibited only one type of communication and left all other methods untouched, the 2007 Act indiscriminately bans all communication within the thirty five foot zone. Respondents argue that the pro-life protestors have ample alternative methods of communication… outside the buffer zone.[xcii] The Court has already excluded this as an argument, stating that “[o]ne is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place.”[xciii] Under the 2007 Act, any and all methods of communication by pro-life protestors is forbidden, including entering the zone while merely wearing a pro-life shirt or symbol, engaging in non-obstructive peaceful prayer within the zone, or entering into a conversation regarding abortion with a willing participant. The fact that the protestors can engage in these methods of communication in another place is not evidence of ample means of alternate communication.
Additionally, the Court has previously recognized that “one-on-one communication is the most effective, fundamental, and perhaps economical avenue of political discourse,’ and that “the First Amendment protects [citizens’] right not only to advocate their cause, but also to select what they believe to be the most effective means for so doing.” [xciv]
To this end, Petitioners’ desire to exercise their right to free speech by speaking one-on-one to the women who are potentially seeking abortions, in a compassionate and non-confrontational manner, in order to provide them with information on resources that may ease their worries about continuing their pregnancy to its natural conclusion.[xcv] They very logically argue that the effectiveness of their advocacy relies largely on their ability to speak in a normal conversational tone to women as they walk along the public sidewalks adjacent to an abortion clinic, and that the thirty five-foot buffer zones enacted by the 2007 Act not only do not allow them to engage consensual conversations within the zone, but also hinder their attempts to engage women already within the zones in conversations.[xcvi] The alternative they are left with is standing thirty five feet away, yelling at women entering the clinic, which is arguably extremely damaging to their message of compassion and non-confrontation.
The speech regulations contained in the 2007 Act amount to a total prohibition of speech, and the definition of a prohibition allows for no actual alternative method of communication, save going outside the zone being regulated. Even when they go outside the zone, the message of pro-life protestors is considerably less effective in nature, and is therefore diminished by the so-called alternative methods of communications Massachusetts would allow them.
While in the past the Supreme Court has upheld some forms of buffer zones, the jurisprudential precedent shows that they have taken a very limited approach that seeks to proactively protect the rights of pro-life protestors, and these previous Supreme Court decisions are straightforwardly distinguishable from the facts in McCullen v. Coakley.
The Supreme Court’s guidelines regarding when public speech is allowed to be regulated is not upheld by the facts in McCullen. The 2007 Act’s targeting of speech only outside of abortions clinics, combined with the exemptions that allow symbolic speech favoring abortion clinics demonstrate that the regulations are not content neutral. The historical evidence does not show that there is a significant governmental interest requiring the level of regulations contained in the 2007 Act, nor that the prior laws were insufficient to handle any issues Massachusetts abortion clinics were facing under the 2000 Act. Finally, the complete prohibition included in the 2007 Act emphatically precludes any alternative methods of communication, save going somewhere else. Because of the failure of the Massachusetts law to meet the standards set by prior Court precedent, the Court should overrule the First Circuit, and uphold the free speech rights of the pro-life protestors.
[i] McCullen v. Coakley, 708 F.3d 1 (1st Cir. Mass. 2013), cert. granted, 2013 U.S. LEXIS 4811 (U.S. 2013).
[ii] Clinics Prepare for Operation Rescue – Again, Associated Press, July 05, 1993 available at: http://www.holysmoke.org/fem/fem0249.htm.
[iii] Operation Rescue, History, (2014), http://www.operationrescue.org/about-us/history/.
[iv] Operation Rescue v. Women’s Health Ctr., 626 So. 2d 664 (1989).
[v] Nat’l Abortion Fed’n , Incidents of Violence and Disruption against Abortion Providers in US & Canada, (2012), http://www.prochoice.org/about_abortion/violence/documents/Stats_Table.pdf.
[vi] Operation Rescue, 626 So. 2d 664, at 664-65.
[vii] McGuire v. Reilly, 260 F3d 36,39 (1st Circ. 2001).
[viii] Title 18, U.S.C., §248.
[ix] Brief of Petitioner-Appellant at 3, McCullen v. Coakley, No. 12-1168 (U.S. May 25, 2013).
[x] Hill v. Colo., 530 U.S. 703 (U.S. 2000).
[xi] Mass. Stat. 200, Ch. 217.
[xii] Mass. Gen. Laws Ch.266, § 120E½ (2012).
[xiii] Id. §120E½(b)(1)-(4).
[xiv] Brief of Petitioner-Appellant at 10-12, McCullen v. Coakley, No. 12-1168 (U.S. May 25, 2013).
[xv] See generally: Violence: Why It Won’t Work, in Joseph M. Scheidler, Closed (Tan Books & Pub 1993).
[xvi] Nat’l Abortion Fed’n , Incidents of Violence and Disruption against Abortion Providers in US & Canada, (2012), http://www.prochoice.org/about_abortion/violence/documents/Stats_Table.pdf.
[xvii] 40 Days for Life, Statement of Peace, available at: http://vigilcalendar.com/sb/login/login_page.
[xviii] Students for Life of America, About Us, available at: http://studentsforlife.org/about-us/.
[xix] Live Action, About Live Action, available at: http://www.liveaction.org/about/.
[xx] Joshua C. Wilson, The Anti-abortion Movement Has Changed. Here’s What that Means for Abortion Clinics., Wash. Post, Jan. 16, 2014 available at: http://www.washingtonpost.com/blogs/monkey-cage/wp/2014/01/16/the-anti-abortion-movement-has-changed-heres-what-that-means-for-abortion-clinics/
[xxiii] Operation Rescue, History, available at: http://www.operationrescue.org/about-us/history/.
[xxiv]Schneider v. State 308 U.S. 147, 160 (1939).
[xxv] Papish v. Board of Curators of Univ. of Missouri, 410 U.S. 667, 670 (1973).
[xxvi] Texas v. Johnson, 491 US, 397, 409 (1989).
[xxvii] Terminiello v. Chicago, 337 U.S. 1, 4 (1949).
[xxviii] Coates v. Cincinnati, 402 U.S. 611, 616 (1972)
[xxix] US v. Grace, 461 US 171, 177 (1983).
[xxx] US v. Kokinda, 497 US 720, 743 (1990) (quoting Hague v. Committee for Industry Organizations, 307 US 496, 515 (1939), opinion of Roberts, J.)
[xxxii] Ward v. Rock Against Racism, 491 U.S. 781, 791(1989).
[xxxiii] Hill v. Colorado, 530 US 703, 715 (2000).
[xxxiv] Madsen v. Women’s Health Ctr., 512 U.S. 753 (U.S. 1994)
[xxxvi] Id., at 769.
[xxxvii] Id., at770.
[xxxix] Schneck v. Prochoice Network, 519 US 357 (1997).
[xl] Id., at 374.
[xli] Id., at 377. The record further showed that “protesters purposefully or effectively blocked or hindered people from entering and exiting the clinic doorways, from driving up to and away from clinic entrances, and from driving in and out of clinic parking lots…followed and crowded people right up to the doorways of the clinics (and sometimes beyond) and then tended to stay in the doorways, shouting at the individuals who had managed to get inside,” and even harassed the police. Id., at 379.
[xlii] Id., at 383.
[xliii] Id., at 377
[xliv] Colo. Rev. Stat. §18-9-122(3) (1999).
[xlv] Hill v. Colo., 530 U.S. 703, 719 (2000).
[xlvi] Id., at 731.
[xlvii] Id., at 726-7.
[xlviii] Id., at 723.
[xlix] Id., at 727.
[l] Id., at 741-42.
[li] Id., at 746-48.
[lii] Id., at 750.
[liii] Id., at 751.
[liv] Brief of Petitioner-Appellant at 3, McCullen v. Coakley, No. 12-1168 (U.S. May 25, 2013).
[lv] US v. Kokinda, 497 US 720, 743 (1990).
[lvi] See Board of Trustees of New York State University v. Fox, 492 US 469, 480 (1989); US v. Playboy, 529 US 803, 816 (2000).
[lvii] Police Dep’t of Chicago v. Mosley, 408 U.S. 92, 101-2 (U.S. 1972).
[lviii] Pet. App. 166a, 113a, 117a.
[lix] Church of Lukumi Babalu Aye Inc. v. City of Hialeah, 508 US 520, 535 (1993)
[lx] Brief of Petitioner-Appellant at 24, McCullen v. Coakley, No. 12-1168 (U.S. May 25, 2013).
[lxi] Lawrence Tribe, quoted in Colloquium, Professor Michael W. McConnell’ Response, 28 Pepp. L. Rev. 747, 750 (2001).
[lxii] Kathleen M. Sullivan, Sex, Money, and Groups: Free Speech and Association Decisions in the October 1999 Term, 28 Pepp. L. Rev. 723, 737 (2001)
[lxiii] Hill at 738.
[lxiv] City of Ladue v. Gilleo, 512 US 43, 51 (1994).
[lxv]Thomas v Chicago Bank District, 534 US 316, 325 (2002).
[lxvi] Mosely, 408 US at 96.
[lxvii] MCCULLEN v. COAKLEY, The Oyez Project at IIT Chicago-Kent College of Law, http://www.oyez.org/cases/2010-2019/2013/2013_12_1168 (last visited March 22, 2014)
[lxix] See generally: United States v. O’Brien, 391 U.S. 367 (U.S. 1968) (burning of draft card); Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (U.S. 1969) (wearing of armbands); Clark v. Community for Creative Non-Violence, 468 U.S. 288 (U.S. 1984) (sleeping overnight in a public park); Texas v. Johnson, 491 U.S. 397 (1989) (flag burning); Barnes v. Glen Theatre, 501 U.S. 560 (U.S. 1991) (nude dancing).
[lxx] Texas v. Johnson, 491 U.S. 397, 404 (1989).
[lxxi] Ilissa Gold, My First Morning (Of Many) As a Clinic Escort, Daily Kos, Feb. 18, 2011, available at: http://www.dailykos.com/story/2011/02/18/943882/-My-First-Morning-Of-Many-As-A-Clinic-Escort (last visited Mar. 14, 2014).
[lxxii] Hoye v. City of Oakland, 653 F.3d 835, 851 (9th Cir. 2011).
[lxxiii] Brief of Petitioner-Appellant at 3, McCullen v. Coakley, No. 12-1168 (U.S. May 25, 2013).
[lxxiv] See Ward, 491 U.S. 781, (1989).
[lxxv] Kunz v. People of NY, 340 US 290, 294 (1951).
[lxxvi] MCCULLEN v. COAKLEY, The Oyez Project at IIT Chicago-Kent College of Law, http://www.oyez.org/cases/2010-2019/2013/2013_12_1168 (last visited March 12, 2014).
[lxxvii] Nat’l Abortion Fed’n , Incidents of Violence and Disruption against Abortion Providers in US & Canada, , (2012), http://www.prochoice.org/about_abortion/violence/documents/Stats_Table.pdf.
[lxxviii] Brief of Respondent, at 10, McCullen v. Coakley, No. 12-1168 (U.S. May 25, 2013).
[lxxix] See, e.g., Mass. Gen. Laws Ch. 266, § 120E1/2(e) (obstructing, detaining, hindering, impeding, or blocking a person’s entry to abortion clinic); id. § 120E (obstructing entry to medical facilities); 18 U.S.C. § 248(a)(1) (using force, threat of force, or physical obstruction to injure, intimidate, or interfere with any person obtaining or providing reproductive health services); Mass. Gen. Laws Ch. 265, § 13A (assault and battery; enhanced sentence if perpetrator knows victim is pregnant); Id. ch. 272, § 53(b) (disturbing the peace). State and federal laws also specifically prohibit impersonating a police officer–a form of misconduct advanced as a justification for the 2007 Act. See Id. Ch. 268, § 3; 18 U.S.C. § 912; JA 124, See 18 U.S.C. § 248(c)(1) (permitting any person seeking to provide or obtain reproductive health services to seek injunctive relief, attorneys’ fees, and compensatory and punitive damages); id. § 248(c)(2)-(3) (permitting federal and state attorneys general to seek injunctive relief, civil penalties, and compensatory damages on behalf of aggrieved persons); Mass. Gen. Laws Ch. 266, § 120E (permitting medical facilities to obtain injunctive relief and compensatory and exemplary damages against persons obstructing entry); Id. Ch. 12, § 11H (permitting state attorney general to obtain injunctive relief against private persons who intimidate, interfere with, or coerce a person seeking to exercise rights protected by federal or state law).
[lxxx] Riley v. National Federation of Blind, 487 US 781, 795 (1988) (“North Carolina has an antifraud law, and we presume that law enforcement officers are ready and able to use it”).
[lxxxii] Thornhill v. Alabama, 310 U.S. 88, 104 (1940).
[lxxxiii] Board of Airport Comm’rs of L.A. v. Jews for Jesus, Inc., 482 U.S. 569, 574-75 (1987).
[lxxxiv] Ward, 491 US at 799.
[lxxxv] Alan Brownstein, Recapping McCullen V. Coakley Oral Argument, ACS Blog, Jan. 22, 14 at available at https://www.acslaw.org/acsblog/recapping-mccullen-v-coakley-oral-argument.
[lxxxvi] Brief of Petitioner-Appellant, at 13, McCullen v. Coakley, No. 12-1168 (U.S. May 25, 2013).
[lxxxvii] Police Dept of Chicago v. Mosely, 409 U.S. 92, 100-101(1972).
[lxxxviii] Brownstein, Supra.
[lxxxix] Id. at 723.
[xc] Cantwell v Connecticut, 310 US 296, 309 (1940).
[xci] Citizens United v. FEC, 558 US 310, 340-41 (2010).
[xcii] Brief of Respondent, at 49-50, McCullen v. Coakley, No. 12-1168 (U.S. May 25, 2013).
[xciii] Schneider, 308 U.S. at 163.
[xciv] Meyer v. Grant, 486 US 414, 424 (1988).
[xcv] See generally, Brief of Petitioner-Appellant, McCullen v. Coakley, No. 12-1168 (U.S. May 25, 2013).