When I first heard that the Supreme Court’s opinion in McCullen v. Coakley, the case challenging Massachusetts’s 35-foot abortion clinic buffer zone law, was unanimous, I was disappointed. I knew that a unanimous decision, one that had “Something for Everyone” as Justice Scalia put it, would be narrower and weaker than a hard-hitting 5-4 decision that left the liberal members of the Court venting through their dissents. But I was also relieved. Chief Justice Roberts had not said a word throughout the oral argument, and that worried me. What was he up to?
Apparently he was working on writing an opinion striking down the law that all the justices would sign on to. In so doing, he unfortunately joined with the liberal wing of the Court to make some doctrinally confusing and erroneous holdings along the way.
For example, the majority held that the fact that the Massachusetts law explicitly exempted clinic agents acting “in the scope of their employment” did not render it viewpoint-based. Chief Justice Roberts seems to be under the impression that clinic escorts have some function other than to thwart the efforts of pro-life sidewalk counselors to communicate with women, when in fact, such thwarting is the totality of their mission. By focusing on whether the escorts used their statutory immunity to “speak about abortion,” he missed the point that clinic escorts can use their privileged position more subtly and more effectively by not even mentioning abortion. A clinic escort who says to a patient “Stay close to me. I’ll help you get into the clinic safely,” is far more effective in deterring the patient’s communication with pro-lifers than one who says, “I love abortion. How about you?” And while the escort is walking alongside the patient saying, “Come in,” the pro-life sidewalk counselor cannot approach and say, “Don’t go in. There are alternatives.” As Justice Alito stated, “This is blatant viewpoint discrimination.”
The second error was the Court’s holding that the fact that the law applied only at abortion clinics did not render it content or viewpoint based. Assuming arguendo that the law does not draw content-based distinctions on its face (an assumption Alito and other justices disputed, because of the escort exemption noted above), the key question in the inquiry is whether the law was “justified without reference to the content of the regulated speech.” Roberts and the liberal wing of the Court held that the Massachusetts law met this standard. The law’s stated purposes were public safety, access, and pedestrian convenience, which were content-neutral purposes. The legislature limited the application of the law to abortion clinics “in response to a problem that was, in its experience, limited to abortion clinics.”
There are myriad problems to the Court’s approach and conclusion. First, as I noted in an earlier article (History in the Making), legislatures hold hearings on the subjects they are interested in hearing about, and frequently only on those subjects they have already decided to act on. The evidence gathered in such hearings is selective, and “findings” are made by those who have usually already made up their minds. Massachusetts claimed that a 35-foot no-entry zone could have ended up anywhere where there was evidence of picketing problems, but would the Massachusetts legislature even have held hearings if, for example, the Catholic Church complained about disruptive picketing by homosexual activists? Would legislators even know about a problem with animal rights activists in, say, Springfield? The legislature’s “experience” of where problems were was dictated by its politically-motivated decision of where to look for such problems.
Moreover, the Court itself admitted that the “problems” the Legislature was reacting to were confined almost entirely to one clinic, on one day of the week (Saturday mornings in Boston). A single point does not describe a line. If the Legislature was simply attempting to limit as little speech as necessary to fix this solitary problem, why not impose buffer zones only around business entrances on the 1000 block of Commonwealth Avenue in Boston? Why instead, choose to impose zones around the entrance to every abortion clinic, in cities miles away, all across the state? The answer is that the Legislature saw the “problem” as inextricably entwined with the content of the protest, not just its conduct.
For example, what if a substance abuse clinic attracted protesters who were upset because the clinic had displaced a more popular planned use, such as a children’s museum? Would the Legislature respond with a law regulating protests outside all drug treatment facilities in the state, because that’s where the “problem” arose? Of course not. The reason the Massachusetts law targeted speech at abortion clinics was that the demonstrators were there because it was an abortion clinic. Their speech was not incidental to the location, and the legislature’s response was not incidental to their speech. Despite Chief Justice Roberts’s desperate efforts to prove otherwise, the law was premised on the content and viewpoint of the speech that was being suppressed.
In his dissent, Justice Scalia lamented that the Court’s holding that restrictions on speech applicable solely to abortion clinics are content-neutral “preserve[s] the ability of jurisdictions across the country to restrict anti-abortion speech without fear of rigorous constitutional review.” Rather than being subjected to strict scrutiny, future abortion-specific restrictions need only be “narrowly tailored,” and “[w]ith a dart here and a pleat there, such regulations are sure to satisfy” this laxer standard.
I made this same point many times before the McCullen decision came down: if the Supreme Court doesn’t drive a stake through the heart of abortion-clinic-specific speech regulations, then, even if the Massachusetts statute is struck down, cities and states will continue to experiment with different ways of restricting pro-life speech at abortion clinics, having no fear of political fall-out from accidentally restricting the speech of other causes and viewpoints.
However, considering the Court’s discussion and application of the “narrow tailoring” prong as applied to the Massachusetts law, I am no longer as pessimistic as I was that clinic-specific laws are the wave of the future. In finding the 35-foot buffer to fail the test for being narrowly tailored, the Court put several barriers in the way of future laws.
First, the Court gave short shrift to the notion pressed by Massachusetts that as long as demonstrators and counselors can be “seen and heard” by women entering the clinic, they are enjoying all the free speech rights they are entitled to. The Court expounded both on the centrality of leafleting and one-on-one conversation as fundamental means of communication in our nation’s history, as well as on the irreplaceable value of these means in the context of reaching out to abortion-bound women: “It is easier to ignore a strained voice or a waving hand than a direct greeting or an outstretched arm.”
And the right to attempt such communication is not limited to an audience of presumptively willing listeners. Rather, sidewalks “remain one of the few places where a speaker can be confident that he is not simply preaching to the choir.” Other means of communication can be shut off with the click of a button, but on public sidewalks, “a listener often encounters speech he might otherwise tune out. . . . [T]his aspect of traditional public fora is a virtue not a vice.”
In making this point, the Court signaled a retreat from its decision in Hill v. Colorado, 530 U.S. 703 (2000),where it upheld a law prohibiting approaching without consent within 8 feet of another person, for the purpose of communicating with such person, where such approach takes place within 100 feet of a medical facility. In Hill, the Court held that the law was narrowly tailored to serve the state’s interest in allowing people to avoid unwanted communication. Here, the Court stated instead that the ability to engage in uninvited speech on a public sidewalk is a First Amendment virtue. In his concurrence, Justice Scalia declared that, by stating that the Massachusetts law would not be content-neutral if it were concerned with undesirable effects of unwanted speech, the Court had effectively overruled Hill.
Moreover, the Court did not limit its discussion to communicating with pedestrians on public sidewalks, but included leafleting and speaking to persons entering clinic parking lots in cars as speech that is deserving of protection. The First Circuit had simply dismissed the impact of the 35-foot buffer zone at clinics where patients entered clinic property in cars, as if these patients were ipso facto out of bounds for any sidewalk counseling anyway. I was concerned that the Supreme Court justices would be so focused on the sidewalks of Boston that it would, perhaps inadvertently, leave that misapprehension intact. On the contrary, the majority opinion clearly considered and rejected the state’s argument that leafleting is “just not compatible with modern vehicular traffic.” The Court asserted that obstruction and safety concerns in driveways “can be readily addressed through existing local ordinances.”
Indeed, the availability of other means by which a city can protect safety and access was the linchpin of the Court’s ruling that the Massachusetts law was not narrowly tailored. There are many other tools in the municipal toolbox, the Court noted, that can be employed before resorting to restrictions on free speech. These include both generally applicable laws against trespass, obstruction, and assault, as well as laws specifically prohibiting obstruction and interference with access to abortion clinics that many jurisdictions, including Massachusetts, have already enacted.
The pro-life petitioners in McCullen had made this same point at every opportunity, but it was countered by the state’s response that “nothing else worked.” The Supreme Court’s response to this “argument from futility” was a joy to read. After reviewing the state’s history of [non-]enforcement of existing laws and injunctions, the Court concluded, “the Commonwealth has not shown that it seriously undertook to address the problem with less intrusive tools readily available to it. Nor has it shown that it considered different methods that other jurisdictions have found effective.”
Commenting specifically on the legislative record that purportedly showed the many problems and violations that led to the enactment of the ordinance, the Court stated, “If Commonwealth officials can compile an extensive record of obstruction and harassment to support their preferred legislation, we do not see why they cannot do the same to support injunctions and prosecutions against those who might deliberately flout the law.” Gotcha! Massachusetts Attorney General Coakley should have been using her time and resources to prosecute individual wrongdoers (if there were any), instead of testifying before the legislature in favor of a law restricting the rights of law-abiding citizens.
In sum, “To meet the requirement of narrow tailoring, the government must demonstrate that alternative measures that burden substantially less speech would fail to achieve the government’s interests, not simply that the chosen route is easier.” A city or state cannot, consistent with the First Amendment, pursue its interests in protecting safety and access to abortion clinics by means that substantially impinge on free speech without first “seriously addressing the problem through alternatives that leave the forum open for its time-honored purposes.”
Thus, while the Court erroneously removed obstacles to cities and states enacting abortion-clinic-specific laws in theory, it made the test for such laws one that few jurisdictions will be able to pass: they must demonstrate that they seriously undertook to achieve the interests in protecting safety and access (not in helping women avoid unwanted communication) by other means, and that those means were inadequate or unsuccessful. But, as we saw in the case of pastor Walter Hoye in Oakland, laws restricting speech at abortion clinics are passed not because pro-lifers are violating existing laws, but because they aren’t violating existing laws. Some of these laws seem to be motivated simply by a desire to do a favor to Planned Parenthood or to give a leg up to a local politician eyeing higher office. The slim chance of success seems unlikely to justify the effort that that would be required to satisfy the standard laid out by the Supreme Court.
The unanimity of the McCullen decision may be, as Justice Scalia said, a specious one, and in many ways the decision leaves more, not less, jurisprudential confusion in its wake. But it is now cities and states that attempt to restrict speech that will have to deal with that confusion. For the past fourteen years, whenever a speech-restrictive law was enacted, the pro-lifers have had the burden of convincing a court that the law was different from—and worse than—the law upheld by the Supreme Court in Hill. Now it will be the city that has to persuade a court that its speech restriction is different from—and better than—the law struck down unanimously in McCullen.