Upcoming Cert Decision in McCullen v. Coakley

by Ed Whelan

As it happens, I had a post with exactly this title more than three years ago. The case is the same: a First Amendment challenge to a Massachusetts statute that creates a no-speech zone within 35 feet of an abortion clinic. The pending certiorari petition, filed by law professor Mark Rienzi and lawyers at the Wilmer Cutler law firm, compellingly argues that the First Circuit’s decision upholding the statute mistakenly extends the Supreme Court’s (badly misguided) decision in Hill v. Colorado (2000) and creates a circuit conflict. The petition is slated for the Court’s conference next Thursday.

The Court denied the cert petition from three years ago, but there have been two significant changes since then. First, the previous cert petition was interlocutory. (For non-lawyer readers, that means that the case hadn’t yet reached final judgment.) As a general rule, the Court disfavors interlocutory petitions. The current petition, by contrast, is from the First Circuit’s decision affirming the district court’s final judgment in the case. Second, in 2011, the Ninth Circuit rendered a decision in Hoye v. City of Oakland that invalidated a city’s policy of differential enforcement of a no-approach zone. As the petition spells out, the First Circuit’s ruling squarely conflicts with the Ninth Circuit’s ruling.

Carrie Severino has previously highlighted her amicus brief in support of the petition. I’m also pleased to note an amicus brief filed on behalf of three of my favorite First Amendent scholars, Rick Garnett, Michael Stokes Paulsen, and Eugene Volokh. The amicus brief argues that the Court should grant cert to “place clear limits” on Hill, and it observes that the petitioners’ “free-speech rights [have] tumbled to the bottom of Hill’s slippery slope.”

An alternative reason to grant would be to overturn Hill entirely. As the amicus brief notes, legal scholars “from across a broad ideological spectrum have criticized Hill for ratcheting down standard First Amendment analysis of public-forum speech restrictions”; for example, Laurence Tribe has described Hill as “slam-dunk simple and slam-dunk wrong.”

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