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= McCullen v. Coakley = McCullen v. Coakley, 134 S.Ct. 2518 (2014) is a unanimous 2014 U.S. Supreme Court decision invalidating a Massachusetts law that made it a crime to knowingly stand on a public sidewalk within 35 feet of any healthcare facility where abortions are performed as unconstitutional under the First Amendment. Though the Court found that the law was content-neutral and therefore not subject to strict scrutiny, it held that the law was not narrowly tailored to serve significant government interests, unduly burdening speech in a manner that violated the First Amendment. Chief Justice Roberts authored the majority opinion, which was joined by Justices Ginsberg, Breyer, Sotomayor, and Kagan. Justice Scalia filed a concurring opinion which was joined by Justices Kennedy and Thomas. Justice Alito also filed a concurrence.

Legislative History of Massachusetts Abortion Clinic Buffer Zone Laws
The Massachusetts legislature initially passed a law designed to protect entrances to reproductive health facilities in 2000, when it enacted the Massachusetts Reproductive Health Care Facilities Act, Mass Gen. Laws, ch. 266 § 120E1/2 (2000). The 2000 law created an 18 foot radius around the entrances of all health care facilities that provided abortion services. The law permitted anyone to enter the radius, but prohibited anyone in that area from knowingly approaching another person without their consent for the purpose of leafletting, protesting, or other counseling. The law also made it a crime to knowingly obstruct another’s ability to enter an abortion clinic.

The 2000 law was modeled on a Colorado statute that the Supreme Court had upheld in Hill v. Colorado, 530 U.S. 703 (2000). The 2000 Massachusetts law was subsequently challenged as unconstitutional under the First Amendment, but following the Court’s approach in Hill, the First Circuit held that the statute was constitutional in McGuire v. Reilly, 386 F.3d 45 (1st Cir. 2004). The First Circuit concluded that the law was facially neutral and did not discriminate based on content or viewpoint, and was thus valid as a reasonable time, place, or manner restriction on speech. The Supreme Court declined to hear the appeal from the First Circuit's decision in McGuire.

In 2007, Massachusetts legislators began efforts to amend the 2000 law. The legislature held hearings on the law, where law enforcement officers offered testimony that prosecutions under the 2000 law were extremely low because of the great difficulty police officers encountered when trying to police the 18-foot buffer zones. Law enforcement officers also described the buffer zones as too crowded to effectively police, such that they could not determine whether patients consented to be approached by protesters, or when protesters were deliberately attempting to approach patients. Massachusetts Attorney General Martha Coakley testified that the rules regarding deliberate approach and consent were too difficult to enforce, and that a fixed no-entry buffer zone was needed to truly effectuate the state’s policy of protecting those attempting to enter abortion clinics.

The Massachusetts legislature responded by amending the 2000 law to replace the 18-foot radius with a 35-foot fixed buffer zone in which individuals were categorically prohibited from entering. The statute exempted four classes of individuals who were allowed to enter the 35-foot buffer zone: people entering or leaving reproductive health facilities, employees of such facilities, law enforcement officers, and persons using the public sidewalk solely as a means of reaching a destination. The amended 2007 statute retained the provision imposing criminal penalties on persons who knowingly obstruct another’s ability to enter an abortion facility.

Procedural History of McCullen v. Coakley
Petitioners in McCullen v. Coakley were among the classes of individuals barred from entering the 35-foot buffer zone created by the 2007 amendments to the Massachusetts Reproductive Health Care Facilities Act. Though the law was primarily drafted to keep protesters away from entrances to abortion clinics, petitioners in McCullen were not protestors. Instead, they offered women entering abortion clinics assistance, literature, and support as part of their general strategy of “sidewalk counseling.” Prior to the 2007 amendments, petitioners were able to stand near the entrance to the clinics and engaging in sidewalk counseling with patients entering the clinics. The 2007 amendments, however relegated petitioners to public streets and sidewalks much farther away from the clinic entrances, inhibiting their ability to come into contact with people entering abortion clinics and engage in sidewalk counseling.

In January 2008, petitioners challenged the 2007 law and sought to enjoin its enforcement, bringing both a facial and as-applied First and Fourteenth Amendment challenge in the Federal District Court of Massachusetts. Following a bench trial, the District Court denied petitioners’ facial challenge. Petitioners appealed and the First Circuit affirmed the District Court’s decision. The First Circuit based its decision largely on its previous decisions in the McGuire litigation. It concluded that the 2007 law was similarly a reasonable “time, place, and manner” regulation, which have long been considered constitutional under the seminal Supreme Court decision Ward v. Rock Against Racism, 419 U.S. 781 (1989). The First Circuit also rejected petitioners’ arguments that the statute is vague, overbroad and an impermissible prior restraint on speech. The First Circuit remanded the case, and the District Court subsequently rejected petitioners’ as-applied challenge because it concluded that the 2007 law left sufficient alternative channels of communication available to petitioners. The First Circuit again affirmed, and the Supreme Court granted certiorari in 2013.

Majority Opinion
In 2014, the Supreme Court issued a unanimous opinion invalidating the 2007 Massachusetts law. Chief Justice Roberts authored the majority opinion, which was signed by Justices Ginsberg, Breyer, Sotomayor and Kagan, while Justices Scalia and Alito authored concurring opinions. The majority opinion held that though the statute affected speech occurring in a public forum, it was not content or viewpoint-based and thus was not subject to strict scrutiny. However, the Court held that despite the act’s content neutrality, it was not “narrowly tailored” to serve important government interests because it burdened substantially more speech than was necessary to serve the government’s legitimate interests, rendering it unconstitutional under the First Amendment.

The majority decision first analyzed whether the Massachusetts statute regulated speech in a public forum, concluding that it did. The opinion reasoned that because the statute limited speech on public ways and sidewalks, it clearly regulated speech in places that the Court has long considered “traditional public fora” (those which have historically been held open for the public exchange of ideas through speech). Because of this, the Court concluded that the Massachusetts law was subject to First Amendment scrutiny.

The Court then addressed what level of First Amendment scrutiny should apply to the Massachusetts statute, concluding that because the statute regulated features of speech unrelated to its content, it qualified as a reasonable “time, place and manner” restrictions such that strict scrutiny should not apply. The Court concluded that the First Amendment iteration of intermediate scrutiny, requiring reasonable time, place, and manner restrictions to be “justified without reference to the content of the regulated speech…narrowly tailored to serve a significant government interest" and that they "leave open ample alternative channels for communication.”

In evaluating whether the Massachusetts statute was content-based, the Court rejected two arguments advanced by respondents that the Massachusetts statute did in fact discriminate based on content. First, the Court rejected the argument that the statute discriminates against abortion-related speech because it establishes buffer zones only at abortion clinics. The Court reasoned that because the statute does not require law enforcement officers to evaluate the content of a person’s speech before prosecuting someone under the law, it cannot qualify as a content-based speech restriction. The Court determined that although the law may have a disparate impact on certain kinds of speech over others, such an effect does not transform a facially neutral law into a content-based law. The Court also noted that the statute was “justified without reference to the content of the regulated speech” given that the law's stated purpose of promoting public safety at abortion clinics was a content-neutral purpose.

Second, the Court rejected respondents’ argument that the Massachusetts statute was viewpoint discriminatory because it exempted abortion clinic employees from the statute, therefore favoring one viewpoint on abortion over another. The Court recognized that in some cases, exemptions that allow certain individuals to speak but not others can render a law view-point based, but refused to infer such an intent to the Massachusetts statute. The exemption for clinic employees and other limited classes of individuals, according to the Court, was unrelated to the regulation of certain viewpoints, and rather was a functional element of the statute designed to allow employees and law enforcement officers to do their jobs. The Court agreed that the exemptions could theoretically be applied in a viewpoint-discriminatory way, but that the evidence on the record before the Court was insufficient to support such an as-applied challenge.

Having concluded that the law was content-neutral, the Court then applied the reasonable time, place and manner version of intermediate scrutiny to the Massachusetts statute. Specifically, the McCullen Court evaluated whether the statute was “narrowly tailored to serve a significant government interest,” which requires that the regulation “not burden substantially more speech than is necessary to further the government’s legitimate interests.” In its analysis, the Court first accepted that Massachusetts’s stated interests in promoting public safety, patient access to healthcare, and the unobstructed use of public sidewalks all qualified as legitimate and significant interests sufficient to satisfy the governmental interest prong of the intermediate scrutiny test.

The Court, however, invalidated the law in its application of the narrow tailoring portion of the intermediate scrutiny standard, finding that the buffer zone law imposed serious burdens on petitioners’ speech. The Court cited the manner in which the buffer zones forced petitioners to engage in speech in locations far removed from the abortion clinic entrances as overly burdensome on petitioners' ability to engage in face-to-face contact with patients and to provide them with literature, thus depriving petitioners’ of their two primary modes of communication with their audience. The Court accepted evidence supplied by petitioners’ that cutting off their ability to engage in their preferred methods of “sidewalk counseling” seriously impeded their success in effectively communicating their message to their target audience.

The Court went on to conclude that these effects amounted to the burdening of substantially more speech than was necessary to serve Massachusetts’s stated interests of safety and access to abortion clinics. The Court identified a number of less-restrictive alternatives that Massachusetts could have relied on to promote those safe interests, such as the 2007 act’s more targeted second provision that provided for the prosecution of those who actually obstruct others’ access to abortion clinics. It also pointed to the federal Freedom of Access to Clinic Entrances Act of 1994 as an example of a law that narrowly penalizes only those who actually obstruct access to clinics without burdening speech in other ways, as well as similarly structured New York laws. The Court rejected the respondents’ arguments that the Massachusetts legislature had already experimented with less restrictive means under the 2000 law, and that the ineffectiveness of these alternatives was what prompted the 2007 amendments to the statute in the first place. The Court concluded that because Massachusetts could not point to a single prosecution under the 2000 law, it failed to demonstrate that it “seriously undertook to address the problem with less intrusive tools.” In sum, the Court held that the First Amendment’s narrow tailoring requirement required Massachusetts to show that the available alternative methods would actually fail to serve their interests, rather than simply argue that the alternative methods would make serving those interests more difficult. Since the law failed the narrow tailoring prong, the Court concluded that it violated the First Amendment, and ruled it unconstitutional.

Scalia Concurrence
Justice Scalia filed a concurring opinion, which Justices Kennedy and Thomas joined. Justice Scalia concluded that the Court’s analysis of whether the Massachusetts statute was content-based or content-neutral was unnecessary dicta, and that the majority's application of the time, place, and manner version of intermediate scrutiny was thus superfluous. Justice Scalia pointed to another recent Supreme Court decision interpreting the First Amendment, McCutcheon v. Federal Election Commission, in which the Court stated that it did not see any reason to “parse the differences between” strict scrutiny and intermediate scrutiny where the statute fails on First Amendment grounds under even the less-demanding test. Like the majority, Justice Scalia also concluded that the Massachusetts act was unconstitutional, but arrived at that result by concluding that the statute is content-based and that it thus failed strict scrutiny. He accepted respondents' argument that because the statute applies only to abortion clinics, it was content-based because it sought to achieve the suppression of speech opposing abortion only. Justice Scalia similarly concluded that the act’s exemption of abortion clinic employees rendered the law content-based because it effectively permitted those employees to engage in speech favorable to abortion rights while prohibiting others from speech against abortion rights, rendering the statute viewpoint-discriminatory. By concluding that the statute was content-based in these ways, Justice Scalia then applied strict scrutiny and concluded that the statute failed on the “compelling government interest” prong of the test. Thus, he disagreed with the majority opinion’s decision to address the tailoring requirement at all. Under this reasoning, Justice Scalia concluded that the law was ultimately invalid under the First Amendment because it failed strict scrutiny.

Alito Concurrence
Justice Alito also filed a concurring opinion, in which he agreed with Justice Scalia’s position that the employee exception to the Massachusetts statute rendered it viewpoint-discriminatory and thus invalid under a strict scrutiny analysis. He also indicated his agreement with the majority that the law burdens substantially more speech than is necessary under the tailoring prong of intermediate/strict scrutiny, and similarly concluded that the law should be struck down under the First Amendment.

Subsequent Developments
In 2014, the Massachusetts legislature responded to the result in McCullen by again amending its buffer zone law. The legislature passed S.B. 2283, which struck the unconstitutional provision of the 2007 law (§ 120E1/2) and replaced it with a new provision that empowers law enforcement officials to order the immediate withdrawal of one or more individuals who substantially impede access to a reproductive health care facility. The 2014 act maintains the provision imposing criminal penalties on individuals who intimidates or injures persons attempting to access a reproductive health care facility. To date, the amended 2014 act has not been challenged on First Amendment grounds.