Next Wednesday, the Supreme Court will hear argument in McCullen v. Coakley, which involves a First Amendment challenge to a 2007 Massachusetts statute that creates a no-speech zone within 35 feet of an abortion clinic. In today’s Wall Street Journal, liberal First Amendment expert Floyd Abrams explains that the case “presents the court with an opportunity to reconsider what may well be its most indefensible First Amendment ruling so far this century”—its 2000 ruling in Hill v. Colorado, which upheld a criminal statute prohibiting abortion-related speech around abortion clinics. (One quibble: My own judgment is that the year 2000 was the last year of the 20th century, not part of “this century.”)
As Abrams, who identifies himself as a supporter of Roe v. Wade, spells out:
[T]he 2007 Massachusetts law, with its 35-foot exclusion zone, is anything but narrow in its impact. It effectively prevents Eleanor McCullen and her colleagues from engaging in entirely peaceful, nondisruptive antiabortion advocacy via the distribution of leaflets and oral advocacy at the very places it is most likely to be effective. This is what First Amendment law refers to as “overbreadth”—laws that in the course of criminalizing constitutionally unprotected speech or activities limit or impair speech that is fully protected.
At the certiorari stage, I highlighted an amicus brief filed on behalf of three of my favorite First Amendent scholars, Rick Garnett, Michael Stokes Paulsen, and Eugene Volokh. That brief observes that the petitioners’ “free-speech rights [have] tumbled to the bottom of Hill’s slippery slope.” It further notes that legal scholars “from across a broad ideological spectrum have criticized Hill for ratcheting down standard First Amendment analysis of public-forum speech restrictions.” Those scholars (as Abrams also notes) include Laurence Tribe, who has described Hill as “slam-dunk simple and slam-dunk wrong.”
McCullen provides the Court a golden opportunity to repudiate Hill.
Unfortunately, as Abrams points out, the ACLU has done a reversal in the wrong direction since Hill: whereas it argued in Hill that the Colorado statute violated the First Amendment, it now says that its position has “evolved over time” and that the Massachusetts law is constitutional.