Constitution Daily

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Free speech and public safety clash at the Supreme Court

May 28, 2014 by Nicandro Iannacci


Pro-life demonstrators at the Supreme Court
Pro-life demonstrators at the Supreme Court

This June promises to be a busy month for the Supreme Court, with at least 10 major cases undecided by May’s end.


Among the big cases yet to be decided is a conflict between the right of citizens to protest outside of a reproductive health care facility and the right of the government to regulate their behavior.


McCullen v. Coakley, heard by the high court on January 15, features the 77-year-old Eleanor McCullen, a member of the anti-abortion group Operation Rescue. McCullen has been outside the Planned Parenthood clinic in downtown Boston every Tuesday and Wednesday for the last 13 years.


McCullen is challenging a 2007 Massachusetts law that makes it a crime for public speakers other than clinic employees to be within 35 feet of entrances to facilities such as the one she frequents, allegedly making her communication with patients less effective. “It’s America,” she recently told NPR. “I should be able to walk and talk gently, lovingly, anywhere with anybody.”


By making an exception for clinic employees, McCullen argues the law’s “buffer zones” discriminate on the basis of the views of the speaker—even if the speaker is behaving in an orderly manner—thus violating her First Amendment right to free speech.


In contrast, Massachusetts state officials point to a harrowing history of violence and disorderly conduct outside of reproductive health care facilities in the United States. That  history led to passage of the Massachusetts law in the first place. Moreover, they say, the buffer zones apply to the conduct of all, regardless of a speaker’s point of view.


The state is also relying on precedent. In Hill v. Colorado (2000), the Supreme Court upheld a similar law in Colorado that made it illegal for protesters to be within eight feet of anyone within a 100-foot buffer zone around such facilities. However, it is important to note that the law at issue in Hill didn’t contain an exemption like the one established in Massachusetts.


The U.S. Court of Appeals for the First Circuit agreed with the state and upheld the law, ruling that “First Amendment rights do not guarantee to the plaintiffs (or anyone else, for that matter) an interested, attentive, and receptive audience, available at close-range.”


“The right of the state to take reasonable steps to ensure the safe passage of persons wishing to enter health care facilities cannot seriously be questioned,” it said.


Heated oral arguments at the Supreme Court featured silence from Chief Justice John Roberts and an apparent search for middle ground by Justice Elena Kagan.


In his brief for the court, Mark Rienzi of Catholic University, lead attorney for McCullen, posed a hypothetical situation in which animal rights activists seek to persuade slaughterhouse workers but face a buffer zone of restricted activity.


“You must have used it for me to say, oh, that’s terrible,” said Kagan. “But my reaction was kind of, ‘What’s wrong with that? Just have everyone take a step back.’ ”


Yet later on, Kagan grilled Massachusetts assistant attorney general Jennifer Grace Miller on the contours of the law, admitting that she was “a little bit hung up on why you need so much space.”


Other Justices expressed more predictable concerns. Justice Ruth Bader Ginsburg, for example, noted the “considerable history of disturbances” outside of health care facilities and the difficulty faced by law enforcement in trying to anticipate every bad actor. Justice Stephen Breyer reminded his colleagues that “we’re not legislators,” suggesting deference to policymakers.


Justice Antonin Scalia, however, said the case was not properly construed. “They can scream and yell and hold up signs from 35 feet,” he said of protesters. “But what they can’t do is try to talk the woman out of the abortion. It’s a counseling case, not a protest case.” Justice Samuel Alito pointed to the employee exemption as evidence that the Massachusetts law is not content-neutral and therefore potentially unconstitutional. “You could have created a completely silent zone,” he mused. “But that’s not this statute. … One can speak and say it’s safe. The other cannot speak and say it is not safe.”


Responding to a claim from Massachusetts assistant attorney general Miller that “no one is guaranteed any specific form of communication,” Justice Anthony Kennedy appeared dumbfounded. “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?” he asked. “In speech cases, when you address one problem, you have a duty to protect speech that’s lawful.”


A decision will be announced by the end of June.


Nicandro Iannacci is a web specialist at the National Constitution Center.


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