Bench Memos

McCullen v. Coakley—Part 1

In today’s ruling in McCullen v. Coakley, all nine justices agree that the Massachusetts statute that creates a general no-speech zone on streets and sidewalks within 35 feet of an abortion clinic violates the First Amendment. But they divide sharply, 5-4, on their reasoning. I’m going to summarize the competing positions here, and in a follow-on post will offer some observations.

Chief Justice Roberts, joined by the Court’s four liberals, wrote the majority opinion. In Part III of his opinion (slip op. at 10-18), the Chief Justice concludes that the statute is content-neutral. First, although it has the inevitable effect of disproportionately restricting abortion-related speech, it can be justified by content-neutral concerns about public safety and patient access.

Second, the statute’s exemption for clinic employees does not render it viewpoint discriminatory because “[t]here is no suggestion in the record that any of the clinics authorize their employees to speak about abortion in the buffer zones.” Yes, there was testimony about clinic escorts “who expressed views about abortion to the women they were accompanying, thwarted [sidewalk counselors’] attempts to speak and hand literature to the women, and disparaged [the sidewalk counselors] in various ways.” But it is “unclear” whether these incidents occurred within the buffer zones. And even if they did, “the record does not suggest that they involved speech within the scope of the escorts’ employment.”

In Part IV of his opinion (pp. 18-29), the Chief determines that the statute is not “narrowly tailored to serve a significant governmental interest.” The buffer zones “burden substantially more speech than necessary to achieve the Commonwealth’s asserted interests.”

Justice Scalia and Justice Alito wrote opinions concurring in the judgment only.

In his opinion (joined by Kennedy and Thomas), Scalia slams the majority for “carr[ying] forward this Court’s practice of giving abortion-rights advocates a pass when it comes to suppressing the free-speech rights of their opponents” and for perpetuating “an entirely separate, abridged edition of the First Amendment applicable to speech against abortion.”

Scalia argues that the Court’s content-neutrality discussion is both unnecessary (pp. 2-4) and wrong (pp. 4-14). As to its wrongness: First, “Every objective indication shows that the provision’s primary purpose is to restrict speech that opposes abortion.” Only one abortion clinic “is known to have been beset by the problems that the statute supposedly addresses.” The buffer zones “add nothing to safety and access” and instead achieve only the suppression of speech opposing abortion. The statute was enacted “as a more easily enforceable substitute” for a law that was clearly directed at the suppression of unwelcome speech and was meant to serve the same interest. (Scalia also argues that the Court should have overruled Hill v. Colorado (2000)—which even liberal law professor Laurence Tribe calls “slam-dunk simple and slam-dunk wrong”—and that it may implicitly, if inadvertently, have done so.)

Second, Scalia argues that the statute is viewpoint discriminatory, as it’s crystal clear that clinic escorts act within the scope of their employment when they speak in favor of abortion and counter the speech of sidewalk counselors.

In his 3-page separate opinion, Alito explains his own view that the statute effects “blatant viewpoint discrimination.” 

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