By: Mike Gottlieb
Originally published on SCOTUSBlog
The Court granted cert. today in McCullen v. Coakley, a Massachusetts case regarding the permissibility of buffer zones around abortion clinics. Specifically, Massachusetts has a law making a crime to “enter or remain on a public way or sidewalk” within thirty-five feet of the entrance, exit, or driveway of a “reproductive health care facility.” The law exempts any employees or agents of such a clinic so long as they are acting within the scope of their employment. Petitioners challenged the constitutionality of the law under the First and Fourteenth Amendments, arguing that it restricts the speech of “only those who wish to use public areas near abortion clinics to speak about abortion from a different point of view.” Petitioners also argued that to the extent that the Court’s Hill v. Colorado (2000) decision controls the outcome of this case, that decision should be overruled.
This is a potentially significant case regarding the free speech rights afforded to abortion protesters. In Hill, the Court affirmed the constitutionality, by a vote of six to three, of a Colorado law that made it illegal for protesters to approach within eight feet of anyone within one hundred feet of a health-care facility for the purpose of counseling, educating, or protesting. The Court held that the Colorado buffer zone was a reasonable content-neutral regulation of of speech that appropriately balanced the need to protect medical patients from unwanted communication with the need to leave open sufficient channels of communication for those seeking to protest. Justice Stevens wrote for the Court and was joined by Chief Justice Rehnquist, as well as Justices O’Connor, Souter, Ginsburg, and Breyer (Justices Scalia, Thomas, and Kennedy dissented).
Here, petitioners claim that the Massachusetts law is “inescapably viewpoint-based” because it permits clinic agents to enter the specified “no-entry zones” with “impunity” and speak at will so long as they are “there on clinic business.” As such, the law permits speech that “will necessarily express the clinic’s view” while excluding any speech that does not. In that sense, petitioners argue, the Massachusetts law is distinguishable from the Colorado law in Hill: the Massachusetts law “applies only at abortion clinics; permits speech by clinic agents while excluding speakers who advocate alternatives to abortion; and completely excludes disfavored speakers from otherwise public areas.” Petitioners also cited a conflicting decision from the Ninth Circuit, which in reviewing a similar “preference for clinic speakers” rejected it under the First Amendment as the “epitome of a content-based restriction.” And, to the extent that Hill is not distinguishable, petitioners argue that it should be overruled.
The personnel of the Court has, obviously, changed since the Hill decision. And Justice Kennedy’s dissenting opinion in Hill suggests that respondents will have a difficult time finding a fifth vote. Specifically, Justice Kennedy explained in Hill that “Colorado’s scheme of disfavored-speech zones on public streets and sidewalks, and the Court’s opinion validating them, are antithetical to our entire First Amendment tradition.” Respondents will therefore have to show not just that the Massachusetts law complies with the general framework established in Hill, but also find some coalition of five Justices willing to preserve that decision.
Mike Gottlieb, Details on abortion protest grant, SCOTUSblog(Jun. 24, 2013, 1:19 PM), http://www.scotusblog.com/2013/06/details-on-abortion-protest-grant/