Misapplying McCullen v. Coakley

by Ed Whelan

In the Court’s recent ruling in McCullen v. Coakley, all nine justices agreed that the Massachusetts statute that created a general no-speech zone on public streets and sidewalks within 35 feet of an abortion clinic violated the First Amendment.

Although the justices divided sharply, 5-4, on their reasoning, all agreed that the effect of the statute on speech on public streets and sidewalks was critical to their analysis. Chief Justice Roberts’s majority opinion (joined by the four liberals) emphasized that “public streets and sidewalks” are “traditional public fora”—“areas that have historically been open to the public for speech activities”—and that the “government’s ability to restrict speech in such locations is ‘very limited.’” Justice Scalia’s concurrence similarly emphasized that public streets and sidewalks “are traditional forums for speech on matters of public concern” and thus “‘hold a special position in terms of First Amendment protection.’”

Evidently missing this critical point, a state judge in North Carolina has reportedly purported to apply McCullen to protect persons arrested for protesting inside North Carolina’s legislative building. But there is nothing in the news report about the ruling that would remotely suggest that the inside of North Carolina’s legislative building would qualify as a full-fledged traditional public forum. And it would be surprising indeed if there has historically been unrestricted public access to that building for speech activities.