Bench Memos

Re: Buffer-Zone/Free Speech Case

On top of Carrie Severino’s more thorough discussion of yesterday’s oral argument in McCullen v. Coakley, I’ll highlight one passage of the oral-argument transcript that particularly struck me.

Before enacting in 2007 its 35-foot zone that pro-life sidewalk counselors can’t enter, Massachusetts had in place a law that created an 18-foot zone inside which speakers were prohibited from approaching within six feet of a potential listener. Asked by Justice Breyer of the evidence under the old law that the Massachusetts legislature relied on in adopting the 2007 law, the lawyer for Massachusetts answered:

Experience showed that there had to be a certain amount of space around the [abortion] facilities. What we had, for example, were pro choice advocates swearing and screaming at pro life advocates within the buffer zone. That’s at Joint Appendix 26 through 28. You had the Pink Group, which is a pro choice organization, pushing and shoving and jockeying for position. [Transcript, 31:13-20 (emphasis added).]

I’m not contending that the lawyer’s answer provides a comprehensive account of the evidence, and the lawyer elsewhere refers to problems caused by pro-life individuals (though it’s not clear that these amounted to anything more than things like “pacing across … driveways” and “stopping and standing and refusing to move”—see Transcript at 43). But it’s remarkable that the primary evidence that the state’s lawyer cites for a law that has the predominant effect of barring peaceful pro-life expression on public sidewalks within 35 feet of an abortion clinic is hostile behavior by “pro choice advocates.”