“Do you want me to write an opinion and say there’s no free speech right to quietly converse on an issue of public importance?”

– Justice Anthony Kennedy, in oral arguments for McCullen v. Coakley

On Wednesday, the United States Supreme Court heard oral arguments in McCullen v. Coakley, a constitutional challenge to a Massachusetts law creating buffer zones, sometimes called “zones of exclusion,” around abortion clinics. The law at issue, Mass. Gen. Laws ch. 266 § 120E ½ (2007), provides in part as follows: “No person shall knowingly enter or remain on a public way or sidewalk adjacent to a reproductive health care facility within a radius of 35 feet of any portion of an entrance, exit or driveway of a reproductive health care facility.” Eleanor McCullen, one of the challengers of the law, is a 76-year-old grandmother who in the past has stood on public sidewalks near abortion clinics in order to initiate one-on-one, non-confrontational conversations with women seeking abortions. The petitioners claim that, over the years, hundreds of women have accepted offers of help from McCullen and the other petitioners. They argue that the new law violates their right to free speech.

The First Circuit opinion below characterizes the plaintiffs’ appeal as advancing “a salmagundi of arguments, old and new, some of which are couched in a creative recalibration of First Amendment principles.” That opinion finds that “[t]he Massachusetts statute at issue here is a content-neutral, narrowly tailored time-place-manner regulation that protects the rights of prospective patients and clinic employees without offending the First Amendment rights of others.”

Unfortunately, the First Circuit is wrong about each of those points. Even more unfortunately, this law does the exact opposite of what most of us would hope . . . .

First Amendment precedent permits states to impose reasonable restrictions on the time, place, or manner of protected speech, so long as those restrictions (1) are justified without reference to the content of the regulated speech, (2) are narrowly tailored to serve a significant governmental interest, and (3) leave open ample alternative channels for communication of the information.

Here, Massachusetts meets none of those three requirements.

The law is not content-neutral, nor does it avoid discriminating against particular viewpoints. The Massachusetts law provides an exception for clinic employees and representatives in the zone of exclusion. While pro-life counselors could go to prison if they initiate conversations with women entering the clinic, Planned Parenthood employees are able welcome women into the facility without violating the law. The statute fails to be neutral on its face. Moreover, the law is not neutral as applied: the petitioners allege that clinic representatives “surround, cluster, yell, make noise, mumble, and/or talk loudly to clinic clients for the purpose of disrupting or drowning out pro-life speech and thwart Plaintiffs’ efforts to distribute literature,” all without legal penalty. The law effectively bans anti-abortion speech, while leaving opportunities to speak freely for those encouraging women to seek abortions. Not so neutral.

The law is also not narrowly tailored. The state argues that the law is meant to ensure that crowds don’t block the way of women attempting to enter the clinics. Yet the law as written prevents individual counselors from approaching women even when no crowds are present. It applies even when a single, mild-mannered, soft-spoken woman attempts to converse with a lone patient entering the clinic. The law does not single out abusive behavior, but rather it bans conduct even when it does not disrupt the peace. It criminalizes peaceful, consensual conversation. Surely the state could craft a law that would address legitimate safety concerns without burdening as much expression as the statute here.

The law does not leave open alternative channels for adequately communicating the information that pro-life counselors and advocates wish to convey. The petitioners in McCullen want to speak directly, quietly, and compassionately with women contemplating abortion. They don’t want to wave gruesome signs or yell out slogans from yards away. This message — whether you agree with it or not — is one that cannot be communicated from the distance mandated by the Massachusetts law. Neither is this message one that can be adequately communicated away from the clinic itself. A website or a letter to the editor of a local newspaper is not likely to reach the intended audience, and the method here is important. You may be able to protest from thirty-five feet away, but you can’t counsel from that distance. This law offers no alternative channel for communication for counselors like the petitioners.

Mind you, the law does still permit some anti-abortion voices to be heard. Unfortunately, it allows for just the sort of brash voices that many of us on both sides of the abortion debate would like to hear quieted — as a matter of practice, if not as a matter of law. Noisy, angry protesters can still congregate, picket, and express themselves outside the buffer zone. Of course, those are just the sort of speakers who do not need to be close to the women they are addressing. You can screech “Baby killer!” just as effectively from 35 feet as you can from three.

The irony here is that this sort of expansive, 35-foot buffer zone doesn’t stop the worst sorts of protests. Rather, it prevents the sort of respectful, non-confrontational communication that is least offensive (and sometimes helpful) to many women entering the facilities. Under this law, protesters can scream and picket from a distance. Yet they can’t quietly, calmly counsel. A kindly grandmother can’t have a conversation under this restriction, but those inclined to be obnoxious are not prevented from being obnoxious.

True, no woman entering a clinic should be forced to have a dialogue with a stranger on the street, even a kindly, grandmotherly type of stranger. She should not be compelled to engage in either political or personal speech. And she obviously should not be physically intimidated or assaulted. Laws that prevent that sort of disruptive, assaultive conduct by clinic bystanders are proper. Obviously, any law that would somehow require women to talk to strangers, even benevolent ones, would be silly. (I know of no suggestions of this latter sort.) But that’s not what is at issue in McCullen.

Essentially, unfortunately, the law the Supreme Court must consider in McCullen does exactly the opposite of what most of us want a legitimate speech restriction to do. Zones of exclusion, particularly one of this enormous size, may actually magnify the sort of speech the civil among us would like to minimize: if an opponent of abortion wants to talk to women at a Massachusetts clinic under this law, that opponent must choose between either screaming from a distance or not speaking at all.


Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit. She will be working at the Center for Legal Pedagogy at Texas Southern University during the 2013-2014 academic year. She looks forward to a career of teaching and writing about, but never practicing, law. You can reach her at tabo.atl@gmail.com


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