Can We Expect a 5–4 Decision in McCullen v. Coakley?

Yesterday the Supreme Court heard arguments in McCullen v. Coakley, which will be one of this term’s major First Amendment cases.  It asks whether the First Amendment is violated by a Massachusetts law creating a 35-foot fixed buffer zone around abortion clinics, in which individuals may not remain except if they are (1) headed toward the clinic or (2) representatives of the clinic. After the arguments, I predict the Massachusetts law is not long for this world, with a likely five justices who would find it to be content-based or insufficiently tailored to the state interest, and possibly more justices who would accept the law with some tweaks to the width or duration of the buffer zone.

One major theme of the arguments was whether the law was narrowly tailored to a content-neutral purpose of preventing congestion around clinic entrances.  All four liberal justices seemed to accept the congestion rationale and were sympathetic to the Commonwealth’s claim that it was too hard to police alternative laws. This was because of the difficulty in predicting when a large group might assemble and obstruct an entrance, proving intent to obstruct, or discerning when conversations were consensual.

Petitioners suggested numerous less-restrictive options, such as injunctions against bad actors, limiting buffer zones to the few busy times like Saturday mornings, or relying on the police to disperse crowds.  They also pointed out the Commonwealth’s failure to take advantage of state and federal laws already prohibiting blocking clinic entrances, intimidation, and assault.  Even Justice Kagan, who generally defended the law, asked why it couldn’t be limited in time or narrowed in space.  Justice Alito offered a host of hypotheticals, ranging from slaughterhouses to businesses under strike, and probed the government to determine what type of history of incidents at a hotly-contested location might justify a ban on speech there.  He never seemed satisfied with the answers, unsurprisingly, given his role at the forefront of the Court’s defense of free speech.

In response to comments from the U.S. Deputy Solicitor General (arguing as an amicus in favor of Massachusetts) suggesting that proving intent would be difficult, Justice Kennedy was incredulous, responding: “Even a dog knows the difference between being stumbled over and being kicked.”  He could not credit the argument that federal prosecutors couldn’t discern intent, in one of many statements suggesting that he will vote to strike down the law.

A second theme was content neutrality, given the law’s exception for clinic workers and volunteers acting in the course of their employment.  Justices Alito, Kennedy, and Scalia all prodded the respondents and the Deputy Solicitor General on this point.  Justice Alito observed that the law would allow a clinic worker to say, “Good morning, this is a safe clinic,” while prohibiting anyone from stating the opposite – a clear content-based distinction. The lawyer for the Commonwealth attempted to frame that contrast as simply an incidental effect of the law, but Justice Kennedy underscored that the consequences of the law were precisely what the Court had to consider. 

Finally, the court explored the degree of burden on speech created by the law.  Justice Scalia highlighted the fact that the petitioners did not want the right to protest, which presumably they could do from 35 feet away, but rather the right to quietly and peacefully converse with women entering the clinic. The Commonwealth’s attorney attempted to protect her argument about the availability of alternatives by saying that the First Amendment does not guarantee you the right to speak in the manner you choose.  That line of argument only seemed to aggravate Justice Kennedy, who viewed “the right to speak on an issue of public importance on a public sidewalk” as central to free speech and pointed out the Commonwealth’s duty to protect lawful speech while addressing its concerns about clinic access.

Given Justice Kennedy’s clear concerns about the Massachusetts law, it seems safe to expect at least a 5-4 decision overturning it.  But there is an outside chance that Justice Kagan could either concur in the judgment to strike down the law on far more limited grounds or that even the Chief Justice, who remained uncharacteristically silent, could attempt to cobble together a coalition to strike down the law in a very limited way.  If that happens, I fear he would sacrifice legal principle and logic for absolute numbers of votes, and would further muddy the waters of First Amendment law.  The more likely outcome, however, is a solid decision that will become the new leading case in this area of law and another reason fans of the First Amendment should love the Roberts Court.

Carrie Severino — Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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