Faulhaber, Brad - HS Social Science
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McCullen v. Coakley Background
Argued: January 15, 2014
Decided: June 26, 2014
Background
The First Amendment protects all forms of communication from government censorship. The right to free speech is not absolute, however. There are some situations where the government can restrict speech. Some laws regulate the content of speech—what the speaker is allowed to say or not to say. As a general rule, the government cannot regulate the content of expression except in very special situations. However, the government can make reasonable rules governing the time, place, and manner of the speech. These rules control when, where, and how speech is allowed. For example, cities can require citizens to obtain permits to hold a parade, limit the times of day when loudspeakers may be used, or limit the places where political posters can be displayed.
When a court is evaluating whether a law is a valid restriction on the time, place, or manner of speech in a public forum like a street or park, it looks at these three factors:
It must be content- and viewpoint-neutral, that is, it cannot regulate the speech based on its content or on the viewpoint of the person speaking.
It must be “narrowly tailored” to serve a significant government interest—meaning the government’s reason for limiting the speech could not instead be accomplished with a law or policy that impacted free speech substantially less.
It must leave reasonable alternatives for the speakers to communicate their information.
This is a case about when a law is a valid regulation of the time, place, or manner of speech, and when it becomes an unconstitutional limit based on the content of the speech.
Facts
In 2007, Massachusetts passed a law intended to address repeated violence, harassment, and intimidation at abortion clinics. Protesters at clinics had clashed with clients and employees of the clinics. The law created a fixed “buffer zone” around the entrance to clinics. People could not knowingly enter or stand within a 35 foot radius of a facility entrance. Only people entering and leaving the facility and individuals simply passing through the zone on public sidewalks were permitted to enter the zone.
This 2007 law was actually an expansion of an earlier law from 2000, which had created “floating,” rather than fixed buffer zones. These floating buffer zones meant that no one could come within six-feet of an individual who was within 18-feet of a clinic entrance, unless the individual consented to the approach. Again, people entering or leaving the facility were exempt from this rule. After the floating buffer zones went to effect, protestors still blocked entrances and conflicts occurred. Deciding this law was not effectively preventing violence and intimidation, the Massachusetts legislature passed the 2007 “fixed” buffer zone. Since the law went into effect violence associated with the protesting has been a lot lower.
Eleanor McCullen and others wanted to stand on the sidewalk outside of a clinic to give quiet counseling to women considering abortion. Prior to 2007, she spoke to and supported many women who ultimately decided not to have abortions. The 2007 law made reaching these women significantly more challenging. McCullen sued, arguing that the law violated her right to free speech. The district court said the law was constitutional and the Court of Appeals agreed.
Issues
Do fixed buffer zones around abortion clinics violate the First Amendment rights of protestors?
Constitutional Amendment and Precedents
First Amendment
“Congress shall make no law…abridging the freedom of speech.”
Martin v. Struthers (1942)
Struthers, OH, had an ordinance that prohibited distribution of information by knocking on doors and ringing doorbells. A Jehovah’s Witness who was distributing information about a meeting in that way was fined under the law. She argued that the law was a violation of her free speech rights. The Supreme Court agreed. They acknowledged the city’s interest in preventing crime and reducing nuisances. But the Court said that trespassing laws could also serve that purpose without limiting speech. The justices said that the type of speech in this case was “clearly vital to the preservation of a free society” and, aside from reasonable time and manner restrictions, it must be protected.
Ward v. Rock Against Racism (1989)
New York City created guidelines regulating the volume of outdoor rock concerts. “Rock Against Racism” was planning a concert and was required to use city sound equipment and technicians rather than providing their own. Rock Against Racism argued the requirement to use city equipment was an unconstitutional limit on their free speech. They said there were other, less-restrictive, ways for the city to regulate volume. The Supreme Court disagreed. The Court said that the government had a substantial interest in protecting the well-being of other persons in the park and those who lived near it. The Court said that restrictions on the time, place, or manner of speech are not invalid “simply because there is some imaginable alternative that might be less burdensome on speech.”
Hill v. Colorado (2000)
Colorado passed a law that created “no-approach” buffer zones near health care facilities. This law prevented people from approaching within 8 feet other non-consenting people who were inside a 100 foot radius around the facility’s entrance. Anti-abortion activists said the law violated their right to free speech. The Supreme Court ruled against the activists and said the law was “not a regulation of speech. Rather, it is a regulation of the places where some speech may occur.” The Court said the law balanced the protestors’ rights to speak and the patient’s rights to avoid the speech. It also left reasonable alternatives for activists to speak to women at the facility.
Arguments for McCullen (Buffer Zones are Unconstitutional)
This law restricts the content of the activists’ speech, which is unconstitutional. It only applies to abortion clinics, not hospitals or other medical centers (unlike Hill). This means that the law effectively only restricts speech about abortion.
Even worse, the law restricts one particular viewpoint on this issue. Since the anti-abortion activists are the only ones who want to engage in speech at these clinics, the law effectively bans anti-abortion speech only. The law allows clinic employees, who are probably pro-abortion, to walk within the zone and escort patients into the clinic and talk to them.
The activists want to discuss important public issues on public sidewalks. That is exactly the kind of speech that should receive the highest level of protection from government interference.
The law is not “narrowly tailored.” It addresses peaceful speech and consensual conversations. If the purpose of the law was to prevent large mobs, violence, and blocked entrances, then a more narrow law that does not also ban peaceful, cooperative speech would work.
The government has criminal penalties for things like harassment, obstructing entrances to buildings, and violent acts. The government should prosecute people who violate those rules, not restrict everyone’s speech.
The law does not leave the activists with effective alternative channels of communication. These activists make a difference by speaking quietly with and counseling women. Displaying large signs and yelling across a 35-foot barrier will not be nearly as effective in achieving their goals of convincing women to avoid abortion.
Arguments for Coakley (Buffer Zones are Constitutional)
This law does not regulate speech based on its content. It applies equally to everyone who wants to speak near these facilities, regardless of their topic or message.
This law is a valid regulation of the time, place and manner of the speech. The protestors are not prevented from speaking, just limited from entering a narrow zone to protect the safety of others. The government has an important interest in protecting people’s safety.
The law does not restrict any viewpoint more than another. Both pro-choice and pro-life advocates are prevented from speaking in the buffer zone. Employees are not allowed to protest within the buffer zone either; they are only allowed to act in their “scope of employment.”
The law is not too broad. The state tried a less restrictive law, but it was not effective. Even peaceful protestors can block entrances or intimidate patients. This law is effective because it prevents violence while still allowing free speech.
There are many alternatives open to the protesters. They are still able to convey their message. The Constitution does not guarantee the right to communicate one’s views at all times in all places.
Our society has many examples of “buffer zones” in which speech is constitutionally – from zones around political conventions and voting areas, to those that protect funeral goers, to a rule prohibiting protesting on the plaza of the Supreme Court itself.
Decision
The Court ruled in favor of McCullen, deciding that the Massachusetts buffer zone law was unconstitutional. Chief Justice Roberts wrote the opinion of the Court, which Justices Breyer, Ginsburg, Sotomayor and Kagan joined. Justice Scalia wrote a concurring opinion, which Justices Kennedy and Thomas joined. Justice Alito wrote a concurring opinion.
Majority
The Court decided the Massachusetts buffer zone law violates the First Amendment. The Court said that since the law restricted speech on public sidewalks—a place that traditionally receives strong First Amendment protection— then it must:
be neutral with regard to the content of the speech or viewpoint of the speakers, and
be narrowly tailored to a specific government interest,
leave open alternative channels of communication.
The majority ruled that the law was content and viewpoint neutral, because it affected the speech of all parties. However, the justices said that the buffer zones were not narrowly tailored—that they burdened more speech than was necessary to achieve the government’s interests in protecting patient safety. The type of quiet counseling that Eleanor McCullen wants to provide does not threaten patient safety. They said Massachusetts could have used existing harassment or assault laws or passed different laws that both protected free speech and protected patient safety. For example, a narrowly tailored law might instead prohibit people from blocking entrances to facilities or harassing or physically harming others.
The opinion emphasized that speaking and offering pamphlets on a public sidewalk are a traditional way to share information and ideas. The Court determined that since the Act is not narrowly tailored, they did not need to address whether it left open alternative channels of communication.
Concurrence
Justice Scalia agreed that the law violates the First Amendment, but believes the law was not content neutral. He argued because the buffer zones were only located around abortion clinics and because employees of the clinics were exempted, that content was regulated. When a law restricting speech is not content neutral, it is almost always unconstitutional. Justices Scalia, Kennedy, and Thomas also said that Hill v. Colorado should be overturned.
Justice Alito wrote that the act violates the First Amendment because it is not viewpoint neutral. The law is aimed at the speech of individuals offering counseling against abortions, not the employees providing information on how to obtain an abortion.
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McCullen v. Coakley: Position Paper
Team A: McCullen– The Buffer Zone law violates the First Amendment
Eleanor McCullen is a 76-year old grandmother who is a member of the anti-abortion group Operation Rescue. For more than 10 years, she has regularly visited a healthcare facility in her city that offers abortions. She goes to talk to the women coming to the facility—to advise and support them, and to tell them that they have other options. She never intimidated, harassed, or threatened anyone. In 2007, however, the Massachusetts legislature made her activism much more difficult. Now, instead of politely asking a woman if she wants to talk, Eleanor must remain behind a line drawn around the entrance to the clinic – 35 feet from the door.
This law is an unconstitutional violation of Eleanor’s free speech rights, as guaranteed by the First Amendment. The First Amendment holds a vital place in our democracy—it exists to protect and foster discussions about important public issues. And this law goes to the very heart of that purpose. The activists want to discuss important public issues on public sidewalks. That is exactly the kind of speech that should receive the highest level of protection from government interference.
The state argues that the law does not regulate speech based on its content, but in fact it does. It only applies at abortion clinics—not even at hospitals or other medical facilities. That means that it effectively only applies to speech about abortion. Even worse, the law has the effect of restricting only one viewpoint on this important issue – that of the people opposed to abortion. They are the ones the state had in mind when it drew this buffer zone. Employees of the clinics may come and go through the buffer zone and may talk with patients and escort them into the clinic. People advising against abortion do not have that freedom.
Violence in our society is a real problem, but Eleanor and her co-activists are not promoting or encouraging violence or harassment. Such harassment outside abortion clinics was only committed by a small number of people. The Massachusetts law, however, did not attempt to only address their actions. Instead, they wrote a law that puts the same limits on peaceful speech and consensual conversations as it puts on large mobs and aggressive protesters. The law could have been more narrowly tailored to address the real problem. Moreover, we already have laws that make it a crime to harass or assault people or block building entrances. Law enforcement could rely on those laws to remove bad actors. The wrongdoers could be prosecuted without restricting everyone’s speech.
In the end, the buffer zone rules leave Eleanor with no good alternative to communicate her message. The compassionate and non-confrontational counseling she wants to provide cannot be delivered through a megaphone or posted on a sign to be read from 35 feet away. It can’t be argued in a newspaper editorial or voiced during a public debate. She wants to touch the lives of the women who need a caring presence, to talk with them, and tell them there are other options—at the very facility where the abortions take place. Those who disagree with her message need not ban her from delivering it, though. Under the First Amendment, they, too, have the right to speak a different message. It is through this public debate that our society obtains information from a diversity of sources and makes decisions about policies.
McCullen v. Coakley: Position Paper
Team B: Coakley– The Buffer Zone law does not violate the First Amendment
Beginning in the 1980s and continuing for more than 20 years, reproductive healthcare facilities in Massachusetts were the target of intense protests and violence. Protesters crowded patients trying to enter these facilities, confronted patients and employees, surrounded them, and yelled at them. Individuals would block facility entranceways by standing, laying down, or chaining themselves to each other and to the facility. Their stated goal was to prevent the clinics from operating by physically blockading them. Protesters on both sides of the issue crowded around clinics, creating congested areas charged with anger. In 1994, a shooting took place at one such facility, killing two employees and injuring several other people. Workers and patients feared for their safety.
The patients of these reproductive care facilities are men and women seeking birth control, treatment for disease, mammograms, counseling, and, sometimes, abortion. They have the right to visit these facilities without being threatened or physically blocked. After several attempts, the Massachusetts legislature finally found a solution that keeps facility entrances clear and the surrounding sidewalks safe: a fixed buffer zone around the facility entrances that still accommodates all forms of speech within the sight, presence, and earshot of the approaching patients.
The law simply restricts the space within which protesters can engage in speech. It applies equally to everyone who wants to speak, regardless of their topic, message, or viewpoint. In Massachusetts, tense exchanges by protesters on both sides of the abortion rights issue made the problems with blocked entrances even worse—and both sides are limited by this new buffer zone. It only applies at reproductive healthcare facilities because they were the only type of facility facing these problems.
The Supreme Court has ruled that governments may limit the time, place, or manner of speech to comply with significant government interests. Massachusetts clearly has a significant interest in protecting the safety of patients accessing reproductive healthcare facilities. The regulation is narrow, as it only prohibits speech within the 35 foot radius. And it treats all speech and conduct the same. The only people exempted from the regulation are people going to and from the clinic and pedestrians passing by. Even employees are not allowed to speak freely within the zone—they can only act within the scope of their employment.
Earlier laws with smaller, floating buffer zones were not effective. It would also not be effective to simply limit the actions of “violent” or “aggressive” protesters—even peaceful activists can calmly block the entrance to a building, as they did before the 35-foot zone was established. This law is effective precisely because it keeps entrances clear while still allowing free speech. Protesters can still convey their message in any way they want, just outside the zone.
Americans have the right to free speech, but it can be limited by reasonable regulations. Such limits apply whenever a town bans loudspeakers at night, prevents protesters from coming too close to a funeral, or restricts electioneering too close to polling places. The Supreme Court itself even restricts protests on its building’s own plaza. This is one more example of a law that reasonably (and only slightly) limits speech in the service of an important government interest.