In McCullen v. Coakley, the United States Supreme Court struck down a Massachusetts law that made it a crime to knowingly stand on a ”public way or sidewalk” within 35 feet of an entrance or driveway of a reproductive health facility. (The “Act”) While the decision was unanimous the Court was sharply divided over whether or not the Act was content neutral since it was limited to only abortion clinics and whether the exemption of clinic employees and agents by allowing them to escort patients into the clinic favored one viewpoint over another thereby making the Act subject to strict scrutiny under the First Amendment, thereby guarantying that it would be declared invalid. 

Content Neutral – The majority ruled that since it was not necessary to examine the content of the message to determine whether or not a violation of the Act had occurred, the Act was not based on content or viewpoint; therefore, analysis under the strict scrutiny standard was not necessary. In addition, since employees and agents of the health care facilities were not allowed to engage the protesters or the person who they escorting (other than providing escort services) the exclusion for employees and agents was valid. The four conservative Justices called this flagrant viewpoint discrimination since the Act was directed at abortion clinics. The four liberal Justices joined in the opinion of Chief Justice Roberts while the four conservative Justices would have invalidated the Act on the grounds that it was blatant viewpoint discrimination.

More Speech Not Less – The record in this case showed there were no similar recurring problems with other healthcare facilities or other buildings in the state that host activities that might occasion protest comment. Chief Justice Roberts stated in his opinion that: “In light of the limited nature of the problem, it was reasonable for the Massachusetts Legislature to enact a limited solution.  When selecting among various options for combating a particular problem, legislatures should be encouraged to choose the one that restricts less speech, not more.”

Not the least restrictive means – The court notes that the Massachusetts law was unique in that it was the only such law in the United States that created fixed buffer zones around abortion clinics and while that in and of itself did not make the law unconstitutional there were other ways to achieve the same objective without the overreaching limitations on free speech in the Act.  The Court applied the intermediate scrutiny test concluding the Act was invalid because the buffer zone regulated more speech than necessary to achieve the State’s asserted interest. Chief Justice Roberts concluded there were other less intrusive ways to achieve the same objective such as criminalizing harassment, intimidation, and blocking of access to entrances and exits as well as injunctions against organizations and/or persons who violate the law.

Unanswered questions – Based on the court’s analysis it seems like adopting a buffer law may be an act of futility since there may almost always be a less restrictive option available. Be careful! In addition, the majority opinion did not address an earlier Supreme Court opinion upholding a 8-foot floating buffer zone within 100 feet of a health care facility while the dissent noted that it was very hard to square the earlier decision with the decision in this case. Why are they holding this analysis back?

What is of interest is that the majority reached a conclusion that the problem was unique to a particular situation and as a consequence laws can be drafted narrowly to address a problem based upon a record supporting the legislation. I would hope this would allow local government officials to draft narrowly based laws to solve problems based on facts with specific findings thereby avoiding other free speech traps like the ordinance being over inclusive or under inclusive.

For example, a narrowly drawn law that finds it is unsafe to have anyone standing on a sidewalk along the side of a bridge with a sign or soliciting as traffic streams into a city over a bridge when the sidewalk is properly signed seems to me reasonable and consistent with the test of being the least restrictive. Still  thinking of other examples is difficult so this approach will only work in extreme situations based on facts.

If you have a buffer zone law on the books you may want to review your ordinance in light of this case and the comments of Lisa Soronen,  who wrote an amicus brief on behalf of state and local government in McCullen v. Coakley. What about Westboro Baptist Church  and Missouri law creating a buffer zone that was upheld for funerals by the Eighth Circuit?

Pickets at Funeral of Veteran

Was Chief Justice Roberts signaling a new and more nuanced approach to the maddening problems local government officials face  in drafting laws?

One thing for sure is the abortion wars will continue with local government officials caught in the middle trying to keep order while protecting the constitutional rights of those who are constitutionally entitled to an abortion from those who are exercising their constitutional right of free speech to argue against someone having an abortion.

Howard Wright © 2014