Yesterday, the Supreme Court of the United States heard oral argument in McCullen v. Coakley, a free speech case challenging Massachusetts’ law restricting the discussion of abortion on public sidewalks within 35 feet of an abortion clinic entrance. While the vehicles for free speech cases tend to be controversial topics, this discussion is limited to the free speech implications and not the topic of abortion.
In 2007, after a federal court struck down Massachusetts’ attempt to block anti-abortion speech near abortion clinics, Massachusetts passed a law designed to prevent any speech or assembly near abortion clinics. M.G.L.A. 266 § 129 E ½. This law provided that “[n]o person shall 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 . . .” Exceptions, of course, were added, for those entering or leaving the facility, employees “acting within the scope of their employment”, public workers, and passersby. The law applies during regular business hours of the facility and only if the “zones” are clearly marked. Violation of the statute can be punished by up to 2 ½ years in prison and up to $5,000 in fines.
Eleanor McCullen, et al. challenged the law, claiming that because it was a speech restriction on a traditional public forum and was content-based, it could not survive strict judicial scrutiny, as required. Ms. McCullen is a 76-year-old who attempts to dissuade potential abortion patients by attempting to engage in quiet conversation with them while they approach the facility.
At oral argument, Massachusetts defended its statute as a restriction on conduct. It argued that the law was necessary to prevent the inadvertent congestion in the immediate approaches to the clinics’ entrances and cited Saturday mornings in the Boston clinic as evidence of the potential congestion (apparently, this is the prime time to protest and counter-protest at abortion clinics, according to the record).
The problem with this argument is apparent. All sorts of congesting behavior are still allowed: employees taking a break would presumably be allowed to stand within the 35 foot zone and could perhaps even discuss abortion and abortion procedures (subject, of course, to applicable privacy laws). Clients walking in groups are allowed, as are normal conversations at the doorway, so long as the person is an employee or client. What is really restricted is political speech within the zone, regardless of whether the speaker is blocking the entrance or not.
Justice Alito, however, summarized the case best:
“Now, let me give you this example. A woman is approaching the door of a clinic, and she enters the zone. Two other women approach her. One is an employee of the facility, the other is not. The first who is an employee of the facility says, ‘good morning. This is a safe facility.’ The other one who’s not an employee says, ‘good morning, this is not a safe facility.’
Now, under this statute, the first one has not committed a crime; the second one has committed a crime. And the only difference between the two is that they’ve expressed a different viewpoint. One says it’s safe; one says it’s not safe. Now, how can a statute like that be considered viewpoint-neutral?”
Justice Kennedy also expressed concern over Massachusetts’ argument. Counsel for the government argued that:
“[N]o one is guaranteed any specific form of communication. So there is no guarantee, as a doctrinal matter, to close, quiet conversations.”
Justice Kennedy responded:
“You say there’s no guarantee of talking quietly? . . . Do you want me to write an opinion and say there’s no free speech right to quietly converse on an issue of public importance?”
Although the temptation is great to try to predict the outcome based on the reactions and questions of the Justices, there is no crystal ball. Leaving the issue of abortion entirely out of the equation, this case boils down to whether the government can restrict someone from speaking in a public forum on a particular topic. The congestion argument seemed to be a pretext, which some of the Justices, especially J. Scalia, repeatedly questioned counsel about. Hopefully, the Court will side with the Bill of Rights and freedom of speech and assembly over the government’s proclaimed interest in “preventing congestion” to clinics.
*Because this post only concerns the constitutionality of speech limitations in public forums, please refrain from commenting on the ills and/or benefits of abortion, the constitutionality of abortion, Roe v. Wade, etc. I’d like to keep the conversation focused. Thanks.