Oddity in McCullen v. Coakley

As you know, the Supreme Court released its decision today in McCullen v. Coakley, the case about buffer zones established under Massachusetts state law. (Ed Whelan’s summary is here.) I’m still digesting the opinion, but one thing in the Chief Justice’s majority opinion jumped out at me on pages 16-17 of the slip opinion. The Chief has just worked through several of the stated reasons for the no-speech buffer zone and the exception for clinic employees who are acting in the “scope of their employment”:

Petitioners did testify in this litigation about instances in which escorts at the Boston clinic had expressed views about abortion to the women they were accompanying, thwarted petitioners’ attempts to speak and hand literature to the women, and disparaged petitioners in various ways. It is unclear from petitioners’ testimony whether these alleged incidents occurred within the buffer zones. There is no viewpoint discrimination problem if the incidents occurred outside the zones because petitioners are equally free to say whatever they would like in that area. Even assuming the incidents occurred inside the zones, the record does not suggest that they involved speech within the scope of the escorts’ employment. If the speech was beyond the scope of their employment, then each of the alleged incidents would violate the Act’s express terms. Petitioners’ complaint would then be that the police were failing to enforce the Act equally against clinic escorts. While such allegations might state a claim of official viewpoint discrimination, that would not go to the validity of the Act. In any event, petitioners nowhere allege selective enforcement.

It would be a very different question if it turned out that a clinic authorized escorts to speak about abortion inside the buffer zones. In that case, the escorts would not seem to be violating the Act because the speech would be within the scope of their employment. The Act’s exemption for clinic employees would then facilitate speech on only one side of the abortion debate—a clear form of viewpoint discrimination that would support an as-applied challenge to the buffer zone at that clinic. But the record before us contains insufficient evidence to show that the exemption operates in this way at any of the clinics, perhaps because the clinics do not want to doom the Act by allowing their employees to speak about abortion within the buffer zones. [citations omitted]

Now this is truly odd. The Chief says that the plaintiffs’ claim isn’t really about viewpoint discrimination because the plaintiffs haven’t shown that the escorts were acting illegally (i.e., outside the scope of their employment, and therefore subject to the criminal penalties). But it was apparently clear that in these incidents, the escorts were (1) hired by the clinic; (2) working for the clinic; (3) bringing women to the clinic; (4) with the women outside the clinic; (5) disparaging the plaintiffs; and (6) pushing away people who oppose the clinic. The state never prosecuted the escorts, suggesting that the state thought they were acting within the scope of their employment. And yet the Chief thinks there’s no record of evidence that the escorts were speaking within the scope of their employment? That is, to put it mildly, absurd.

In addition, the Chief wanted yet more evidence to show that the escorts were acting legally. But how does the facial validity of a state law turn on whether the clinic escorts were acting legally? As the Chief admits, that’s only relevant to a claim of selective enforcement. It’s incoherent.

Jonathan Keim — Jonathan 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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