Misapplying McCullen v. Coakley

In the Court’s recent ruling in McCullen v. Coakley, all nine justices agreed that the Massachusetts statute that created a general no-speech zone on public streets and sidewalks within 35 feet of an abortion clinic violated the First Amendment.

Although the justices divided sharply, 5-4, on their reasoning, all agreed that the effect of the statute on speech on public streets and sidewalks was critical to their analysis. Chief Justice Roberts’s majority opinion (joined by the four liberals) emphasized that “public streets and sidewalks” are “traditional public fora”—“areas that have historically been open to the public for speech activities”—and that the “government’s ability to restrict speech in such locations is ‘very limited.’” Justice Scalia’s concurrence similarly emphasized that public streets and sidewalks “are traditional forums for speech on matters of public concern” and thus “‘hold a special position in terms of First Amendment protection.’”

Evidently missing this critical point, a state judge in North Carolina has reportedly purported to apply McCullen to protect persons arrested for protesting inside North Carolina’s legislative building. But there is nothing in the news report about the ruling that would remotely suggest that the inside of North Carolina’s legislative building would qualify as a full-fledged traditional public forum. And it would be surprising indeed if there has historically been unrestricted public access to that building for speech activities.

Most Popular


Courage: The Greatest of Virtues

EDITOR’S NOTE: The following is Jonah Goldberg’s weekly “news”letter, the G-File. Subscribe here to get the G-File delivered to your inbox on Fridays. Dear Reader (Or Listener), As the reporter assigned the job of writing the article about all of Sidney Blumenthal’s friends and supporters told his ... Read More

My American Dream

This morning, at 8 a.m., I did something I’ve wanted to do for as long as I can remember: I became an American. I first applied for a visa in early 2011, and since then I have slowly worked my way through the system — first as a visa-holder, then as a permanent resident (green card), and, finally, as a ... Read More

The Gun-Control Debate Could Break America

Last night, the nation witnessed what looked a lot like an extended version of the famous “two minutes hate” from George Orwell’s novel 1984. During a CNN town hall on gun control, a furious crowd of Americans jeered at two conservatives, Marco Rubio and Dana Loesch, who stood in defense of the Second ... Read More