Faulhaber, Brad - HS Social Science
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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.