Bench Memos

McCullen v. Coakley: A Victory for Free Speech, Sort Of

Today’s 9–0 decision against Massachusetts in McCullen v. Coakley may not be a resounding victory for the First Amendment, but at least it’s something.

As Ed Whelan has already pointed out in his summary, the Supreme Court voted unanimously to strike down no-speech buffer zones extending 35 feet around Massachusetts abortion clinics. But don’t let the vote fool you: The majority opinion was written by Chief Justice Roberts, who was joined by the Court’s liberals. Justice Scalia wrote a blistering separate opinion concurring in the judgment, joined by Justices Kennedy and Thomas. Justice Alito wrote a separate opinion concurring in the judgment. The crux of these differing opinions is whether the Massachusetts law is truly viewpoint-neutral. The majority said it was; everyone else thought otherwise.

The majority opinion spent much of its time discussing the facts of the case, all of which are flattering to the plaintiffs:

Some of the individuals who stand outside Massachusetts abortion clinics are fairly described as protestors, who express their moral or religious opposition to abortion through signs and chants or, in some cases, more aggressive methods such as face-to-face confrontation. Petitioners take a different tack. They attempt to engage women approaching the clinics in what they call “sidewalk counseling,” which involves offering information about alternatives to abortion and help pursuing those options. Petitioner Eleanor McCullen, for instance, will typically initiate a conversation this way: “Good morning, may I give you my literature? Is there anything I can do for you? I’m available if you have any questions.” If the woman seems receptive, McCullen will provide additional information. McCullen and the other petitioners consider it essential to maintain a caring demeanor, a calm tone of voice, and direct eye contact during these exchanges. Such interactions, petitioners believe, are a much more effective means of dissuading women from having abortions than confrontational methods such as shouting or brandishing signs, which in petitioners’ view tend only to antagonize their intended audience. In unrefuted testimony, petitioners say they have collectively persuaded hundreds of women to forgo abortions.

As a result of these buffer zones, McCullen and the others couldn’t speak to the women they are seeking to persuade.

But someone else did get to speak to the women:

The second statutory exemption allows clinic employees and agents acting within the scope of their employment to enter the buffer zones. Relying on this exemption, the Boston clinic uses “escorts” to greet women as they approach the clinic, accompanying them through the zones to the clinic entrance. Petitioners claim that the escorts sometimes thwart petitioners’ attempts to communicate with patients by blocking petitioners from handing literature to patients, telling patients not to “pay any attention” or “listen to” petitioners, and disparaging petitioners as “crazy.”

Public streets and sidewalks are public forums for speech, but can be subjected to time/place/manner speech restrictions. Even then, the restrictions must be content-neutral, narrowly tailored to a significant governmental interest, and leave open alternative channels of communication.

That issue, the viewpoint-neutrality of the law, was the source of the most profound disagreement in this case. The plaintiffs had alleged from the beginning that the buffer zones were not content-neutral, a strong position in light of the law’s structure and history. But because the statute didn’t “draw content-based distinctions on its face,” the majority thought it was neutral, even though it had the “inevitable effect” of squelching speech about abortion.

Indeed, the majority was willing to take the Massachusetts legislature at its word:

[The statute’s] stated purpose is to “increase forthwith public safety at reproductive health care facilities.” Respondents have articulated similar purposes before this Court—namely, “public safety, patient access to healthcare, and the unobstructed use of public sidewalks and roadways.” It is not the case that “[e]very objective indication shows that the provision’s primary purpose is to restrict speech that opposes abortion.”

Ironically, the majority even used the overbreadth of the statute as an indication that it was not designed for the purpose of disfavoring one type of speech. What did the Chief cite for this proposition? A 1996 article by none other than then-professor Elena Kagan. The Chief used this argument to dispose of yet another example of invidious overbreadth, namely, that the crowd-control problems cited as the reason for imposing this statute on a whole state existed only at a single clinic.

The Chief continued. Only employees of the clinic were allowed to talk within the buffer zone, but no matter: “on the record before” the Court, “[t]here is nothing inherently suspect about providing some kind of exemption” to clinic employees, and then he goes along to cite several types of employees other than clinic escorts who would be covered by the exemption, such as maintenance workers or security guards. But unlike the clinic escorts, speech was not a central part of these employees’ work, so this was pretty weak tea. And for some reason that still doesn’t make sense to me, Chief Justice Roberts thought that whether the clinic authorizes escorts to speak within the buffer zones makes all the difference.

Anyway, the least objectionable portion of the majority opinion is about the overbreadth or “narrow tailoring” question. Along with the Court’s four liberals, the Chief Justice concluded that the statute pushed the plaintiffs too far away from the clinics while not really preventing any legitimate harms. Factually, this seemed to be a strong point for the plaintiffs, since there was uncontradicted testimony that the plaintiffs’ effectiveness in persuading women not to abort dropped substantially after the statute’s restrictions came into play.

In a particularly strong paragraph, the majority considered it insufficient that Mrs. McCullen and the other plaintiffs could shout and yell if they wanted to:

That misses the point. Petitioners are not protestors. They seek not merely to express their opposition to abortion, but to inform women of various alternatives and to provide help in pursuing them. Petitioners believe that they can accomplish this objective only through personal, caring, consensual conversations. And for good reason: It is easier to ignore a strained voice or a waving hand than a direct greeting or an outstretched arm. While the record indicates that petitioners have been able to have a number of quiet conversations outside the buffer zones, respondents have not refuted petitioners’ testimony that the conversations have been far less frequent and far less successful since the buffer zones were instituted. It is thus no answer to say that petitioners can still be “seen and heard” by women within the buffer zones. If all that the women can see and hear are vociferous opponents of abortion, then the buffer zones have effectively stifled petitioners’ message.

Based on these problems, the majority concluded, the state should focus on enforcing laws that meet the stated purposes of the statute, i.e., preventing harassment and violence, rather than making up speech restrictions.

Justice Scalia’s separate opinion, although agreeing in the result, unloaded withering criticism on the majority, accusing the Chief of suborning “abortion distortion” and spending several pages of his opinion showing that the regulation was receiving special treatment simply because it involved abortion. The majority’s cursory analysis of the statute’s stated purpose, Justice Scalia said, would allow jurisdictions to squelch antiabortion speech: “With a dart here and a pleat there, such regulations are sure to satisfy the tailoring standards applied in Part IV of the majority’s opinion.” The fact that the statute targeted all abortion clinics in Massachusetts to fix problems at one clinic, Scalia said, was “rather like invoking the eight missed human targets of a shooter who has killed one victim to prove, not that he is guilty of attempted mass murder, but that he has bad aim.” Scalia concluded that the statute was content-based and therefore should have been subject to strict scrutiny, reiterating that Hill v. Colorado (2000) should be overruled.

In a parting salvo, Scalia said the following about narrow tailoring:

Having determined that the Act is content based and does not withstand strict scrutiny, I need not pursue the inquiry conducted in Part IV of the Court’s opinion—whether the statute is “‘narrowly tailored to serve a significant governmental interest[.]’” I suppose I could do so, taking as a given the Court’s erroneous content-neutrality conclusion in Part III; and if I did, I suspect I would agree with the majority that the legislation is not narrowly tailored to advance the interests asserted by respondents. But I prefer not to take part in the assembling of an apparent but specious unanimity. I leave both the plainly unnecessary and erroneous half and the arguably correct half of the Court’s analysis to the majority.

Justice Alito’s separate opinion concurring in the judgment laid out the same trenchant argument he raised at oral argument: an abortion clinic employee and a sidewalk counselor approach a woman near the entrance to the abortion clinic. Inside the buffer zone, the employee can say anything in the scope of her abortion-related employment but the nonemployee cannot, ergo viewpoint discrimination.

This is a disappointing opinion in many ways, but I will tender a few concluding thoughts. First, as Ed Whelan noted earlier, at least the Court upheld free speech and at least it’s 9-0 in favor.

Second, although the majority opinion concluded that the law was content-neutral, the holding on narrow tailoring may prove to be the decision’s silver lining. Hopefully after this decision, states will abandon broad, sweeping criminal statutes like this one and focus on individualized remedies to specific compelling problems.

Third, the biggest question remains: why didn’t the Court write a narrower opinion? The majority didn’t have to write the section about viewpoint-neutrality. That section adds nothing to the ultimate analysis, and seems more like a slap in the face to Scalia and other conservative justices than a productive exercise in doctrinal analysis. The statute didn’t survive the lower level of scrutiny anyway, so there was no need to determine whether the law was viewpoint-neutral. Nor was it necessary for the Chief to write that section to counter the possibility that some of the suggested policy alternatives could have been viewpoint-discriminatory (they hadn’t been briefed or argued). He could have abstained from making recommendations entirely. It would have been truly shocking if the liberals demanded that Roberts discuss that prong in exchange for joining his opinion. So: If the Chief was so interested in consensus or judicial minimalism or whatever, why decide that question at all?

Jonathan KeimJonathan Keim is Counsel for the Judicial Crisis Network. A native of Peoria, Illinois, he is a graduate of Georgetown University Law Center and Princeton University, an experienced litigator, and ...


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