Bench Memos

Upcoming Cert Decision in McCullen v. Coakley

Briefing is now complete on the certiorari petition in McCullen v. Coakley, which presents important questions whether a Massachusetts statute that creates a no-speech zone within 35 feet of an abortion clinic violates the First Amendment.  The certiorari petition argues that the First Circuit’s ruling below is in conflict both with the Supreme Court’s 2000 decision in Hill v. Colorado and with rulings of numerous courts of appeals. 

Of particular interest is an amicus brief in support of the petition that was submitted by six professors of constitutional law—in alphabetical order, Lillian R. BeVier (U. Va.), Richard W. Garnett (Notre Dame), Michael Stokes Paulsen (St. Thomas), Lee J. Strang (Toledo), Eugene Volokh (UCLA), and Kevin C. Walsh (Richmond)—who state that although they “have divergent perspectives on the Court’s abortion jurisprudence, [they] agree on the importance of the First Amendment principles at stake.”  Among other things, the amicus brief argues:

1.  The First Circuit stretched Hill in a way that “threatens to multiply the damage to First Amendment jurisprudence that results when free-speech decisions track ideological divides over the subject-matter of the underlying speech.”

2.  Hill is at the center of a collapse in the coherence of free-speech doctrine.  Hill “departed from the standard First Amendment analysis of restrictions on speech in a traditional public forum.”  In particular, Hill:

“(i) obscured the distinction between content-neutral and content-based restrictions on speech;

“(ii) inverted ordinary First Amendment principles by imposing a ‘listener preclearance requirement’;

“(iii) created ‘a virtual template for developing passable government speech regulations targeted at the  expression of unpopular views in public places’;

“(iv) illustrated ‘how far the Court has allowed overbreadth to drift from its central premises’; and

“(v) recognized ‘a public “right to be let alone” [that] is in tension with literally decades of First Amendment jurisprudence.’ 

“For these reasons, among others, Hill has been condemned by both progressive and conservative scholars, including one prominent jurist [Laurence Tribe] who has described the case as ‘slam-dunk simple and slam-dunk wrong.’”

3.  Hill caused, and the First Circuit’s decision below deepened, “divisions among the lower courts over First Amendment analysis of public-forum speech restrictions.”

The cert petition is set for the Court’s March 5 conference.  This case would appear to present an important opportunity to resolve conflicts among the circuits and to re-establish the coherence of First Amendment free-speech doctrine.