State of Massachusetts Snatches at Straws In Attempt to Justify Law Limiting Pro-Life Speech

Will Pro-Life Advocates’ Equal Rights to Freedom of Speech be Recognized?

On Wednesday, January 15, 2014, the Supreme Court of the United States is set to hear oral arguments in the case, McCullen v. Coakley, in which a pro-life sidewalk counselor is challenging a Massachusetts law that creates a 35-foot “speech free” zone around the entrances to abortion clinics. As the numerous amicus briefs filed in this case indicate, the Court’s decision has a great potential to even the playing field and affirm the rights of pro-life speakers to use public streets and sidewalks for free speech activities. [For more background information, click here.]

Based on the briefs, we may expect some of the following issues to be a part of Wednesday’s arguments as the State attempts to justify its ban on pro-life speech at abortion clinic entrances:

1) The Commonwealth of Massachusetts and several amici have argued that the law is justified because “nothing else worked” to stop the supposedly rampant lawlessness of the pro-life advocates who picket and sidewalk counsel on the public sidewalks. Proponents of this argument include the Solicitor General of the United States who has weighed in supporting the law and who will receive ten minutes for oral argument before the Court. The alleged evidence of violence and lawlessness involve incidents from a decade or more ago, such as the murder of several abortion clinic workers by a mentally deranged individual, as well as the clinic blockade strategies that were employed in the early 1990s. Notably, blockade efforts have not been employed on a large scale in Massachusetts—or throughout the nation—since the passage of legislation greatly increasing the criminal and civil penalties for blocking access to clinics. Notwithstanding this evidence, the argument runs that a 35-foort bubble zone is essential to curb pro-life lawlessness. As the Petitioners pointed out in their reply brief, there is but a paltry record to support the assertion that nothing, short of a bubble zone, works to curb violence. The Supreme Court upheld a similar—but not so extreme—form of bubble zone in Hill v. Colorado. But, according to the new argument, that type of law is insufficient because sidewalk counselors have been doing exactly what the Supreme Court said they could do: stand at clinic entrances and offer literature to women passing by. According to the Massachusetts, this is impermissible because clinic is then “perceived” to be blocked, which apparently is as good as actually being blocked. Thus, a zone in which no one can enter for speech purposes is justified, notwithstanding the fact that this deprives pro-life speakers of any effective means of reaching vulnerable women.

2) Massachusetts and several amici, again, including the United States Solicitor General, have made strides to separate this case from Hill. They insist that this case is not an appropriate vehicle for revisiting the Hill decision, despite the fact that the lower courts relied on Hill in upholding the law, as have courts upholding bubble zone laws in various other Federal Appellate courts. As LLDF has noted previously, Hill was decided by a vote of 6 to 3. Of the six in the majority, four have now been replaced by new justices: Roberts, Alito, Sotomayor, and Kagan. The three Hill dissenters are still on the Court. Thus, overturning Hill would require the votes of two of the four new justices, in addition to the three dissenters.

3) Finally, Massachusetts has broken new ground in its attempt to justify the 35-foot buffer around clinic driveways as well as clinic entrances that open onto a sidewalk by claiming that it is unsafe for vehicles to encounter leafleting near driveway entrances. The State asserted:

It is dangerous, for both protesters and passengers, to stand right at the edges of a busy driveway as cars turn into and out of a parking lot. In fact, certain time-honored forms of protest, such as leafleting, are just not compatible with modern vehicular traffic. While leafleting to pedestrians remains a vibrant form of protest, it is impossible to safely pass a pamphlet “close to the hands” of a driver, whose hands are—or at least should be—firmly clamped to the steering wheel.

This is a classic example of an argument that proves too much. If leafleting people in cars, including cars that are pulling into parking lots, is so dangerous  then why did Massachusetts ban this activity only at abortion clinics? Shouldn’t there be a statewide ban on picketing and leafleting near all driveways, as well as ban on any type of leafleting or soliciting of people in vehicles? Doubtless, all types of groups that engage in time-honored speech activities on or near public thoroughfares will object, including, one might assume, the ACLU, which—curiously enough—is supporting the State on this one. As one attorney pointed out, maybe the state should ban changing the radio station while driving as that involves taking one hand from the steering wheel.

“Good people have gone to jail under laws less burdensome than Massachusetts’ scheme,” comments Dana Cody, LLDF’s President and Executive Director. “LLDF’s client Walter Hoye fought the application of Oakland’s bubble zone law—and although he won on the record in his case—the law was ultimately upheld based on the Hill decision.” Cody concludes, “These laws fly in the face of the very notion of Freedom of Speech. It is time for the Supreme Court to put an end to these perverse attempts to silence pro-life speakers.”