SCOTUS for law students (sponsored by Bloomberg Law): Buffer zones and free speech

Tough free speech cases seem to have become a hallmark of the Roberts Court. This Term may be no exception, as the Justices consider whether a Massachusetts law creating a buffer zone to keep protesters away from abortion clinic entrance sidewalks is constitutional.

Recall that the Roberts Court has already wrestled with a federal ban on animal crush videos, a state law restricting sale of violent video games, issues related to protests at the funerals of deceased military service members, and a federal prohibition on false claims about military honors. In each of these controversial cases, the Court protected the free speech interests from regulation.

Now add to the list the case of McCullen v. Coakley, which pits a states interest in protecting women who want access to abortion clinics against the interests of anti-abortion protesters who want to be able to counsel and hand literature to women approaching clinics.

The case should be of interest to law students who are studying free speech and free expression, as well as to those studying constitutional law, reproductive rights, and gender jurisprudence.

The Court will not actually rule on the right to abortion in the case. State laws restricting access to abortion are proliferating, and a Supreme Court test reconsidering the scope of that right looms in the Courts future. Instead, the Massachusetts case involves a tension between the desire of anti-abortion protesters to speak with women who are approaching reproductive health clinics and the desire of the patients to be left alone.

It is important to understand the regulatory landscape to follow the issues in the case. Since 1994, federal law has protected access to abortion clinics against threats, intimidation, or violent interference with women seeking reproductive services. But a sizeable handful of states and cities choose to provide additional protection that goes beyond what federal law provides to help facilitate access to clinics.

Massachusetts is one such state. From 2000 to 2007, Massachusetts had a law that prohibited anti-abortion protesters from approaching with six feet of anyone walking or driving in a radius of eighteen feet from the entrance of an abortion clinic. Massachusetts said the law was justified by the need to cope with violence, intimidation, and harassment at abortion clinics. But abortion protesters challenged the law, asserting that it interfered with their right to free speech and expression protected by the First Amendment. The U.S. Court of Appeals for the First Circuit upheld the law.

The 2000 law was patterned after a Colorado law that the Supreme Court upheld that same year in the case of Hill v. Colorado. By a vote of six to three, the Justices ruled that the Colorado law did not discriminate on the basis of viewpoint, was narrowly drawn, left open other means of expression, and was neither too vague nor overbroad, thus passing the basic tests required by the First Amendment. Of the nine Justices who took part in the Colorado case in 2000, only five remain on the Court: Justices Ginsberg and Breyer, who voted to uphold the law, and dissenters Justices Scalia, Kennedy, and Thomas.

Massachusetts amended its law in 2007 to create a thirty-five-foot buffer zone, which means that no one may protest or approach potential patients within that area surrounding either the front door of a clinic or the driveway into the clinic parking lot. Anti-abortion activists are free to protest outside the thirty-five-foot zone or to wait until after regular clinic hours. The state said the amendment was necessary because there was still harassment going on outside clinics. The state said the six-foot floating buffer in the old law was hard to enforce, and public safety required a larger, fixed no-protest zone.

The law was challenged by anti-abortion protesters who maintain that they want to peacefully hand out literature and talk to women who are approaching abortion clinics. They hope to make the women understand that there are alternatives to abortion and that they can help them understand their options. The thirty-five-foot buffer zone pushes them into the street or outer edge of the sidewalk or beyond entry driveways, they complained.

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SCOTUS for law students (sponsored by Bloomberg Law): Buffer zones and free speech