Tough free speech cases seem to have become a hallmark of the Roberts Court. This Term may be no exception, as the Justices consider whether a Massachusetts law creating a buffer zone to keep protesters away from abortion clinic entrance sidewalks is constitutional.

Recall that the Roberts Court has already wrestled with a federal ban on animal crush videos, a state law restricting sale of violent video games, issues related to protests at the funerals of deceased military service members, and a federal prohibition on false claims about military honors. In each of these controversial cases, the Court protected the free speech interests from regulation.

Now add to the list the case of McCullen v. Coakley, which pits a state’s interest in protecting women who want access to abortion clinics against the interests of anti-abortion protesters who want to be able to counsel and hand literature to women approaching clinics.

The case should be of interest to law students who are studying free speech and free expression, as well as to those studying constitutional law, reproductive rights, and gender jurisprudence.

The Court will not actually rule on the right to abortion in the case. State laws restricting access to abortion are proliferating, and a Supreme Court test reconsidering the scope of that right looms in the Court’s future. Instead, the Massachusetts case involves a tension between the desire of anti-abortion protesters to speak with women who are approaching reproductive health clinics and the desire of the patients to be left alone.

It is important to understand the regulatory landscape to follow the issues in the case. Since 1994, federal law has protected access to abortion clinics against threats, intimidation, or violent interference with women seeking reproductive services. But a sizeable handful of states and cities choose to provide additional protection that goes beyond what federal law provides to help facilitate access to clinics.

Massachusetts is one such state. From 2000 to 2007, Massachusetts had a law that prohibited anti-abortion protesters from approaching with six feet of anyone walking or driving in a radius of eighteen feet from the entrance of an abortion clinic. Massachusetts said the law was justified by the need to cope with violence, intimidation, and harassment at abortion clinics. But abortion protesters challenged the law, asserting that it interfered with their right to free speech and expression protected by the First Amendment. The U.S. Court of Appeals for the First Circuit upheld the law.

The 2000 law was patterned after a Colorado law that the Supreme Court upheld that same year in the case of Hill v. Colorado.  By a vote of six to three, the Justices ruled that the Colorado law did not discriminate on the basis of viewpoint, was narrowly drawn, left open other means of expression, and was neither too vague nor overbroad, thus passing the basic tests required by the First Amendment. Of the nine Justices who took part in the Colorado case in 2000, only five remain on the Court: Justices Ginsberg and Breyer, who voted to uphold the law, and dissenters Justices Scalia, Kennedy, and Thomas.

Massachusetts amended its law in 2007 to create a thirty-five-foot buffer zone, which means that no one may protest or approach potential patients within that area surrounding either the front door of a clinic or the driveway into the clinic parking lot. Anti-abortion activists are free to protest outside the thirty-five-foot zone or to wait until after regular clinic hours. The state said the amendment was necessary because there was still harassment going on outside clinics. The state said the six-foot floating buffer in the old law was hard to enforce, and public safety required a larger, fixed no-protest zone.

The law was challenged by anti-abortion protesters who maintain that they want to peacefully hand out literature and talk to women who are approaching abortion clinics. They hope to make the women understand that there are alternatives to abortion and that they can help them understand their options. The thirty-five-foot buffer zone pushes them into the street or outer edge of the sidewalk or beyond entry driveways, they complained.

One of their major complaints is that the 2007 amendments contain an exception that allows abortion clinic employees to be on the sidewalk or driveway within the thirty-five-foot zone. This, they suggest, allows viewpoint discrimination:  advocates for abortion services may speak within the buffer zone, but anti-abortion protesters may not. The state counters that the same exception existed in the 2000 law and was upheld by the First Circuit. Moreover, the state says the reason for the exemption is part of the public safety rationale for the law, so that clinic workers may help women approaching clinics navigate their way past the protesters.

Initially, the plaintiffs mounted a facial challenge, a type of legal argument that rests on the premise that the very existence of the law violates the Constitution; there is virtually no circumstance under which the law may be validly enforced. The First Circuit upheld the law against the facial challenge in 2009, and the Supreme Court denied review.

But the anti-abortion protesters continued their lawsuit, raising as-applied challenges. In an as-applied challenge, the plaintiff alleges that although a law may have some valid uses, it is unconstitutional in the specific circumstances present in the case. In an as-applied challenge, a law remains generally valid but may not be enforceable in particular situations.

In this case, the anti-abortion protesters say that the law works to interfere with their freedom of speech at abortion clinics in Boston, Worcester, and Springfield, Massachusetts. They argue again that the law permits viewpoint discrimination by favoring pro-abortion speakers over opponents, that the law singles out abortion clinics for speech restrictions that do not apply at other health-care facilities, and that at those three clinics there are not adequate alternative means to getting their message across to clinic patients.

The First Circuit in January 2013 rejected all of the as-applied arguments. It concluded that there was no evidence that clinic employees were using their ability to be inside the buffer zone to advocate for abortion, or that the state was tolerating such conduct to create viewpoint discrimination.  The First Circuit also found that the law met the requirements of the basic constitutional test for speech in a public forum like the sidewalks. The test, created by the Supreme Court, says that government may regulate the time, place, and manner of speech, as long as the regulation is neutral as to the content of the expression, is narrowly crafted so that it does not regulate too much speech, and leaves open alternate means of communication.

The First Circuit found the application of the Massachusetts law neutral and narrow, essentially saying those issues had not really changed from its decision in the facial challenge in 2009. The First Circuit saved its most profound discussion for the question of alternative means of communication. “As long as a speaker has an opportunity to reach her intended audience, the Constitution does not ensure that she always will be able to employ her preferred method of communication,” wrote Judge Bruce Selya.

The most obvious first question raised by the appeal is why the Supreme Court agreed to hear it. The majority that in 2000 protected the interests of clinic patients is gone. The anti-abortion protesters who appealed to the Supreme Court suggested that the Justices strike down the Massachusetts law, or if necessary, reconsider and perhaps overrule Hill v. Colorado.

The suggestion to reconsider Hill v. Colorado may find a sympathetic audience. Justice Scalia in his dissent in 2000 accused the majority of “distortion” in First Amendment law manifested by “aggressively proabortion novelties” in the Court’s rulings. Justice Kennedy, who would almost certainly have to be the fifth vote if the Court were going to rule for the rights of abortion patients, wrote in his 2000 dissent that when it came to abortion-related speech, the Court was “no longer” committed to the “proud tradition of free and open discourse.”

If you add to this distaste for abortion-related speech restrictions the Court’s recent track record of protecting very controversial speech from excessive government interference, the answer to why the Court took the case may become apparent.

Posted in McCullen v. Coakley, Featured, SCOTUS for law students

Recommended Citation: Stephen Wermiel, SCOTUS for law students (sponsored by Bloomberg Law): Buffer zones and free speech, SCOTUSblog (Oct. 10, 2013, 12:20 PM), http://www.scotusblog.com/2013/10/scotus-for-law-students-sponsored-by-bloomberg-law-buffer-zones-and-free-speech/