McCullen v. Coakley
573 U.S. ____ (2014) (2014)
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Rule of Law:
A content-neutral government regulation restricting speech in a traditional public forum is unconstitutional if it burdens substantially more speech than necessary to further the government's legitimate interests, particularly when less restrictive alternatives have not been seriously considered.
Facts:
- In 2007, Massachusetts amended its Reproductive Health Care Facilities Act.
- The amended Act makes it a crime to knowingly stand on a public sidewalk within 35 feet of an entrance or driveway to a reproductive health care facility where abortions are performed.
- The Act exempts certain individuals, including clinic 'employees or agents of such facility acting within the scope of their employment.'
- Eleanor McCullen and other petitioners engage in 'sidewalk counseling' outside these clinics, which involves quiet, close, and personal conversations with women approaching the clinics to offer information about alternatives to abortion.
- The 35-foot fixed buffer zones displaced petitioners from their previous positions near clinic entrances.
- The buffer zones prevent the petitioners from engaging in the close, personal conversations they find effective, forcing them instead to raise their voices from a distance.
- Clinic 'escorts,' who are permitted inside the buffer zones as agents of the facility, often accompany patients and sometimes actively interfere with petitioners' attempts to communicate.
Procedural Posture:
- Petitioners sued Attorney General Coakley and other officials in the U.S. District Court for the District of Massachusetts, seeking to enjoin enforcement of the Act's buffer zone provision.
- Following a bench trial, the District Court denied petitioners' facial challenge to the law.
- Petitioners appealed to the U.S. Court of Appeals for the First Circuit, which affirmed the district court's decision, holding the Act was a reasonable time, place, and manner regulation.
- The case was remanded to the District Court, which then denied petitioners' as-applied challenges after a second bench trial.
- Petitioners again appealed to the First Circuit, which again affirmed the District Court.
- The petitioners filed a petition for a writ of certiorari, which the U.S. Supreme Court granted.
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Issue:
Does a Massachusetts law making it a crime to knowingly stand on a public way or sidewalk within 35 feet of an entrance to a reproductive health care facility violate the First Amendment's protection of free speech?
Opinions:
Majority - Roberts, C.J.
Yes, the Massachusetts law violates the First Amendment. Although the Act is content-neutral, it is not narrowly tailored to serve the government's legitimate interests. The court determined the law was content-neutral because it does not regulate speech based on its message but rather on its location, and it is justified by the state's interests in public safety and patient access, not by disagreement with the speech. However, the law fails the narrow tailoring requirement of the time, place, and manner test because it burdens substantially more speech than is necessary. It prevents petitioners from engaging in their primary forms of communication—close, personal conversations and literature distribution. The Commonwealth failed to show that it had seriously considered or tried less restrictive alternatives, such as targeted injunctions against problematic individuals, enforcing existing laws against obstruction, or enacting dispersal ordinances, which could have achieved its goals without creating a broad, speech-free zone.
Concurring - Scalia, J.
Yes, the law is unconstitutional, but the majority is wrong to conclude it is content-neutral. The law is transparently content-based because it applies only to abortion clinics, where one specific, controversial topic is the subject of speech. Furthermore, the exemption for clinic employees and agents constitutes blatant viewpoint discrimination, as it allows clinic-approved speech while silencing opposing views. The majority’s content-neutrality analysis is unnecessary dicta that wrongly preserves the flawed precedent of Hill v. Colorado. Because the law is content- and viewpoint-based, it should be subject to strict scrutiny, a test it would undoubtedly fail.
Concurring - Alito, J.
Yes, the law violates the First Amendment because it is a clear case of viewpoint discrimination. The statute's exemption for clinic employees and agents allows speech supportive of the clinic and abortion to occur within the buffer zone, while making it a crime for petitioners to express a contrary viewpoint in the same space. For example, a clinic employee could legally approach a woman to offer support, while a sidewalk counselor doing the same to offer alternatives would be breaking the law. This blatant discrimination based on viewpoint renders the statute unconstitutional on its face.
Analysis:
This decision significantly raises the bar for governments seeking to implement fixed buffer zones around facilities that are sites of public protest, particularly abortion clinics. By applying a rigorous 'narrow tailoring' analysis, the Court requires the government to demonstrate that it has exhausted less speech-restrictive alternatives before it can close off a traditional public forum. While the Court did not overrule its controversial precedent in Hill v. Colorado, this ruling curtails its practical effect by making fixed buffer zones much harder to justify. The decision shifts the legal landscape to favor more targeted, conduct-based regulations (like injunctions or anti-obstruction statutes) over broad, location-based prohibitions, thereby protecting speakers' access to their intended audience in public spaces.
