On June 26, 2014, the U.S. Supreme Court decided McCullen v. Coakley, No. 12-1168, holding that a Massachusetts law that prohibits standing on a "public way or sidewalk" within 35 feet of a place (other than a hospital) where abortions are performed violates the First Amendment's protection of the freedom of speech.
In response to disorder outside a Boston clinic where abortions are performed, Massachusetts enacted a statute making it illegal to "knowingly enter or remain on a public way or sidewalk adjacent to a reproductive health care facility within a radius of 35 feet of any portion of an entrance, exit or driveway of [the] facility" (the statute exempted "employees or agents of such facility acting within the scope of their employment"). Massachusetts law already imposed penalties for anyone who "knowingly obstructs…another person's entry to or exit from a reproductive health care facility," or who came within six feet of another non-consenting person near a facility entrance for purposes of speech. A group of individuals who seek to discuss alternatives to abortion with women entering the clinics on Saturday mornings challenged the 35-foot restriction as violating their freedom of speech. The lower courts upheld the law, with the U.S. Court of Appeals for the First Circuit finding it a valid regulation of the "time, place, and manner" of speech.
The Supreme Court unanimously reversed and held the 35-foot restriction unconstitutional. The Court began by noting that public ways and sidewalks are regarded as "traditional public fora" that have a "special position in terms of First Amendment protection" because of their historic role as sites for discussion and debate. The Court stated that government's ability to restrict speech in these areas is "very limited." But even in a public form, the government can impose reasonable restrictions on the time, place, or manner of speech as long as the restrictions are content-neutral (i.e., justified without reference to the content of the speech) and narrowly tailored, and leave ample alternative channels for communication.
Applying this analysis, the Court first concluded that the Massachusetts law does not draw content-based distinctions because it applies regardless what a person says, and is concerned only with where they say it. The Court held that "a facially neutral law does not become content based simply because it may disproportionately affect speech on certain topics." The Court concluded that the law is justified without reference to the content of the speech because it is aimed at the safety concerns relating to obstructed access and congested sidewalks. And the Court held that the law's exemption for clinic employees was not facial viewpoint discrimination because "[t]here is no suggestion in the record that any of the clinics authorize their employees to speak about abortion in the buffer zones." If a clinic did, the Court stated, that "would support an as-applied challenge to the buffer zone at that clinic." Thus, the Court concluded that the law was not content-based or viewpoint-based, and therefore did not require strict scrutiny.
But the Court went on to hold that the statute failed the requirement that it be "narrowly tailored to serve a significant governmental interest." The Court noted that the statute's restrictions on "one-on-one communication" and "handing out leaflets" are "especially significant First Amendment burden[s]," even where the alternatives of "chanting slogans and displaying signs" were available "outside the buffer zones." The Court concluded that "the Commonwealth has not shown that it seriously undertook to address the problem with less intrusive tools readily available to it," such as more vigorous enforcement of preexisting statutes and local obstruction ordinances, or less speech-restrictive statutory approaches taken by other states and localities and by federal law. The Court rejected Massachusetts's argument that it would be too difficult to enforce narrower regulations, stating that "showing intentional obstruction" of a clinic entrance should not be difficult because "[t]o determine whether a protestor intends to block access to a clinic, a police officer need only order him to move." The Court also concluded that a statewide statute was not narrowly tailored to address "a problem shown to arise only once a week in one city at one clinic."
Chief Justice Roberts delivered the opinion of the Court, in which Justices Ginsburg, Breyer, Sotomayor, and Kagan joined. Justice Scalia concurred in the judgment, joined by Justices Kennedy and Thomas. Justice Alito separately concurred in the judgment.
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