Of course in those cases, the First Amendment was not implicated regarding the rights of the speakers (who of course could have chosen not to withdraw from speaking), but it was implicated in that it involved private citizens engaged in speech. Suppose for a moment that the protesting students had, instead of doing what they did, engaged in a process of following the proposed speaker around and talked to him or her about choices, called them murderers and in general harassed them. Would a state university (making it state action subject to the First Amendment) have been justified in creating a "buffer zone" for the speaker? Remember of course that such a speaker is a public figure speaking in a public forum at a public event. Would such a restriction be consistent with the First Amendment? It’s not an easy case.
Last week, the U.S. Supreme Court handed down its decision in McCullen v. Coakley (PDF), in which a unanimous court ruled that:
The Massachusetts Act [that makes it a crime to knowingly stand on a “public way or sidewalk” within 35 feet of an entrance or driveway to any “reproductive health care facility,” violates the First Amendment.How did the court reach this result? The test applied is a familiar one:
[I]n a public forum," however, "the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions ‘are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.'"One presumes that the court thinks this "time, place and manner" restriction is constitutional:
The term demonstration includes demonstrations, picketing, speechmaking, marching, holding vigils or religious services and all other like forms of conduct that involve the communication or expression of views or grievances, engaged in by one or more persons, the conduct of which is reasonably likely to draw a crowd or onlookers," says the revised Regulation 7, which was effective June 13, 2013.The court has prohibited such things within 250 feet of the court. Of course, there are differences between the Supreme Court buffer zone regulation and the Massachusetts law creating a buffer zone at women's health clinics. As I will demonstrate on the flip, those differences favor the constitutionality of the Massachusetts law over the constitutionality of the Supreme Court regulation.
The Supreme Court of the United States is one of the three branches of our federal government (see Federalist 78). The property on which it sits belongs to the federal government. It is not private property. People who go to the Supreme Court are generally engaged in public business, sometimes of the highest magnitude. Defenders of this regulation would argue that protesting on the sidewalk in front of Supreme Court property makes it all better (and different from the Massachusetts law.) That's sophistry. The distance from the court itself is much larger than the distance from the health clinics subject of the Massachusetts law. Again, let us remember what the First Amendment provides:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.It appears that the Supreme Court’s regulation implicates both the right of the people to peacefully assemble and petition the government for redress (I imagine the court would argue that the way to petition it is to, erm, file a petition ... for cert. After all, justices just call balls and strikes, right?)
By contrast, the Massachusetts law was an attempt to protect private citizens engaged in the private conduct of visiting with their doctor. In other words, while the Supreme Court has restricted First Amendment rights that would be used on issues of the most public nature, the Massachusetts law intends to protect the exercise of the most private of rights, the right to consult with your doctor.
How does the court deal with this? Or does it even attempt to do so? Writing for the unanimous court, Chief Justice Roberts writes this description of the effect on "speech rights":
The buffer zones have displaced petitioners from their previous positions outside the clinics. McCullen offers counseling outside a Planned Parenthood clinic in Boston, as do petitioners Jean Zarrella and Eric Cadin. Petitioner Gregory Smith prays the rosary there. The clinic occupies its own building on a street corner. Its main door is recessed into an open foyer, approximately 12 feet back from the public sidewalk. Before the Act was amended to create the buffer zones, petitioners stood near the entryway to the foyer. Now a buffer zone—marked by a painted arc and a sign—surrounds the entrance. This zone extends 23feet down the sidewalk in one direction, 26 feet in the other, and outward just one foot short of the curb. The clinic’s entrance adds another seven feet to the width of the zone. The upshot is that petitioners are effectively excluded from a 56-foot-wide expanse of the public sidewalk in front of the clinic. [Emphasis supplied.]Soak that in for a moment—what this case is about is the fact that the petitioners are excluded from a 56-foot wide space. Outside of that, apparently under Massachusetts law, they can say anything they want. And to people engaged in the private conduct of visiting their physician. Not to Supreme Court justices engaged in the most public of business. How did 56 feet become a First Amendment violation? Chief Justice Roberts explains:
Petitioners at all three clinics claim that the buffer zones have considerably hampered their counseling efforts. Although they have managed to conduct some counseling and to distribute some literature outside the buffer zones—particularly at the Boston clinic—they say they have had many fewer conversations and distributed many fewer leaflets since the zones went into effect.Yes, I imagine losing the ability to "counsel" in the face of persons visiting their doctor would "hamper" their efforts to impose their counseling on these private citizens engaged in the private act of visiting their doctor. But is this "hampering" impinging on the First Amendment, and if so, why? Here is what the court said:
It is no accident that public streets and sidewalks have developed as venues for the exchange of ideas. Even today, they remain one of the few places where a speaker can be confident that he is not simply preaching to the choir. With respect to other means of communication, an individual confronted with an uncomfortable message can always turn the page, change the channel, or leave the Web site. Not so on public streets and sidewalks. There, a listener often encounters speech he might otherwise tune out. In light of the First Amendment’s purpose “to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail,” FCC v. League of Women Voters of Cal., 468 U. S. 364, 377 (1984), this aspect of traditional public fora is a virtue, not a vice.Now I never thought of the idea of haranguing people walking down the sidewalk as a core First Amendment value. But we live and learn. But what about the Massachusetts law prohibits this? Outside the 56-foot zone, can’t this occur? Or is the idea of making it easier for persons coming to visit their doctors to avoid being "counseled" a blot on the First Amendment? The court says:
For a content-neutral time, place, or manner regulation to be narrowly tailored, it must not “burden substantially more speech than is necessary to further the government’s legitimate interests.” Ward, 491 U. S., at 799. Such a regulation, unlike a content-based restriction of speech, “need not be the least restrictive or least intrusive means of ” serving the government’s interests. Id., at 798. But the government still “may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals.” Id., at 799.To be sure, this is gobbledygook that permits the court to decide cases in any manner it wants. So what did it want to do here and how did it justify what it wanted to do? Chief Justice Roberts writes:
The buffer zones impose serious burdens on petitioners’ speech. At each of the three Planned Parenthood clinics where petitioners attempt to counsel patients, the zones carve out a significant portion of the adjacent public sidewalks, pushing petitioners well back from the clinics’ entrances and driveways. The zones thereby compromise petitioners’ ability to initiate the close, personal conversations that they view as essential to “sidewalk counseling.”This is indeed the effect, and though the court goes through a fiction of pretending that is not the intent, it is in fact the intent. But it is not the only intent. There is a real safety concern. Is there some other way to address the safety concern? And is the idea of making it harder for these "counselors" to impose themselves on people engaged in private business with their doctor really a First Amendment concern? Here is what the court says:
The Commonwealth’s interests include ensuring public safety outside abortion clinics, preventing harassment and intimidation of patients and clinic staff, and combating deliberate obstruction of clinic entrances. The Act itself contains a separate provision, subsection (e)—unchallenged by petitioners—that prohibits much of this conduct. That provision subjects to criminal punishment “[a]ny person who knowingly obstructs, detains, hinders, impedes or blocks another person’s entry to or exit from a reproductive health care facility.” Mass. Gen. Laws, ch. 266, §120E½(e). If Massachusetts determines that broader prohibitions along the same lines are necessary, it could enact legislation similar to the federal Freedom of Access to Clinic Entrances Act of 1994 (FACE Act), 18 U. S. C. §248(a)(1), which subjects to both criminal and civil penalties anyone who “by force or threat of force or by physical obstruction, intentionally injures, intimidates or interferes with or attempts to injure, intimidate or interfere with any person because that person is or has been, or in order to intimidate such person or any other person or any class of persons from, obtaining or providing reproductive health services.”Here we go. This is truly one of the most remarkable passages I think I have ever seen written in a court opinion. What the court is saying is that instead of imposing a reasonable buffer zone of 56 feet in width, what Massachusetts should do instead is use vague criminal laws to prosecute people under a harassment statute. This is good jurisprudence? No, this is cynical nonsense.
The court even has the temerity to recommend to Massachusetts that:
If the Commonwealth is particularly concerned about harassment, it could also consider an ordinance such as the one adopted in New York City that not only prohibits obstructing access to a clinic, but also makes it a crime “to follow and harass another person within 15 feet of the premises of a reproductive health care facility.” N. Y. C. Admin. Code §8–803(a)(3) (2014).8Wow. Just wow. Here is "the majesty of the law" at work:
Respondents have but one reply: “We have tried other approaches, but they do not work.” Respondents emphasize the history in Massachusetts of obstruction at abortion clinics, and the Commonwealth’s allegedly failed attempts to combat such obstruction with injunctions and individual prosecutions. They also point to the Commonwealth’s experience under the 2000 version of the Act, during which the police found it difficult to enforce the sixfoot no-approach zones given the “frenetic” activity in front of clinic entrances. Brief for Respondents 43. According to respondents, this history shows that Massachusetts has tried less restrictive alternatives to the buffer zones, to no avail. We cannot accept that contention.Judicial minimalism! Balls and strikes!
Maybe this is the right decision. I think it is not. But I do know it is a very cynical decision that argues in bad faith. I assume it is the result of a back room deal, otherwise it is hard to imagine Justice Ginsburg signing on to it.
I know this observation offends many who see the court as some designed neutral arbiter. It isn’t. It is part of our political world, not a neutral umpire.