December 01, 2015 Urban Lawyer

Case Notes

McCullen v. Coakley, 134 S. Ct. 2518 (2014)

A state statute creating a 35-foot buffer zone around abortion clinics violates free speech rights under the First Amendment of the United State Constitution because the law is not narrowly tailored to serve a significant government interest. The petitioners, McCullen and others (“Sidewalk Counselors”), approached women outside clinics to engage in “sidewalk counseling,” which involved offering information about alternatives to abortion and help pursuing those options. The respondent was Massachusetts Attorney General Martha Coakley and other Commonwealth officials (“Attorney General”), who represented the state in support of the law. The Sidewalk Counselors challenged the Massachusetts Reproductive Health Care Facilities Act (“Act”), which made it a crime to knowingly stand on a public way or sidewalk within 35 feet of an entrance or driveway to any place, other than a hospital, where abortions are performed. MASS. GEN. LAWS, ch. 266, §§ 120E1/2(a) - (b) (2014). The Sidewalk Counselors argued the Act violated their right to free speech under the First Amendment because it denied them their principal methods of communicating with patients. The United States Court of Appeals for the First Circuit upheld the Act against the First Amendment challenge and rejected the Sidewalk Counselors’ arguments that the Act was substantially overbroad, void for vagueness, and an impermissible prior restraint. On appeal, the Supreme Court of the United States found that the Act regulated access to traditional public fora, such as public ways and sidewalks, which have a special position in terms of First Amendment protection because of their historic role as sites for discussion and debate. However, even in a public forum, reasonable restrictions may be placed on the time, place, or manner of protected speech as long as the restrictions are justified without reference to the content of the speech, are narrowly tailored to serve a significant governmental interest, and do not exclude other alternative channels for communication of the information. Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). First, the Court found that the Act was neither content nor viewpoint based because whether individuals violated the Act depended not on what they said, but on where they said it; therefore, the Act was not subject to strict scrutiny. Second, the Court found that the Act served important governmental interests, such as ensuring public safety outside abortion clinics, patient access to healthcare, preventing harassment and intimidation of patients and clinic staff, and unobstructed use of public sidewalks, roadways and clinic entrances. The third requirement was that the Act must be narrowly tailored. In order for the Act to be narrowly tailored, it must not “burden substantially more speech than is necessary to further the government’s legitimate interest.” Ward, 491 U.S. at 799. The Court held that the Act was not narrowly tailored because, although the buffer zones clearly served the government’s interest, the zones also imposed more burdens than necessary on the Sidewalk Counselors’ speech because they were deprived of their primary methods of communicating with patients. The Court also noted less burdensome alternatives the state could employ to achieve their interest, such as enacting legislation similar to the federal Freedom of Access to Clinic Entrances Act of 1994, adopting an ordinance such as the one New York City has that prohibits obstructing access to a clinic and makes it a crime to follow or harass another person within 15 feet of the premises of a reproductive health care facility, or injunctions. Because the Court found that the Act was not narrowly tailored, it did not consider the fourth part of the test, which is whether the Act left open alternative channels of communication. (Sarah Starr)

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