Less buffer more free speech

Thirteen years ago, the Supreme Court upheld a Colorado law that created an 8-foot buffer zone around any person who didn’t want to be approached while entering an abortion center. Justice Anthony Kennedy dissented from that ruling, saying the law was a direct violation of free speech.

That was then, and now a very different court is considering a challenge to an even broader buffer zone in McCullen v. Coakley. The 2007 Massachusetts law at issue created a 35-foot buffer zone around abortion centers for anyone but employees and clients, regardless of whether clients wanted to be approached. Supporters of the law say it helps prevent pro-life protestors from obstructing the entrance. But Massachusetts and the federal government already have various laws that forbid obstructing entrances to medical facilities.

“An injunction against groups and individuals who have interfered with access, keeping them back, I think that’s perfectly permissible,” said Mark Rienzi, the lawyer for pro-life sidewalk counselor Eleanor McCullen, in arguments Wednesday.

A majority of the court seemed leery about Massachusetts’ law. Even liberal Justice Elena Kagan expressed skepticism about the 35-foot rule. “You know, 35 feet is a ways,” she said. “It’s from this bench to the end of the court.” Later in the arguments she added, “I guess I’m a little bit hung up on why you need so much space.”

Kennedy made his continuing dislike for such laws clear. As a hypothetical, he said the law would bar an elderly woman from having “meaningful conversation” with women going into the clinic.

“There is no guarantee, as a doctrinal matter, to close, quiet conversations,” said Jennifer Grace Miller, the assistant attorney general of Massachusetts. “The question is, are there adequate alternatives? And in this particular instance in this record, there are adequate alternatives. Take, for example, the situation—”

“You say there’s no guarantee of talking quietly?” Kennedy interrupted. “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?”

With Kennedy’s thumb on the scale, the current court seems likely to rule the state buffer zone law unconstitutional at some level, and may declare buffer zones violations of free speech, full stop.

The justices had some extended discussion about what employees could say to clients within the buffer zone, if speech was restricted for everyone else.

“A woman is approaching the door of a clinic, and she enters the zone,” said Justice Samuel Alito. “Two other women approach her. One is an employee of the facility, the other is not. The first who is an employee of the facility says, ‘Good morning. This is a safe facility.’ The other one who’s not an employee says, ‘Good morning, this is not a safe facility.’ Now, under this statute, the first one has not committed a crime. The second one has committed a crime. And the only difference between the two is that they’ve expressed a different viewpoint.”

“Your Honor, I think what the statute distinguishes is based on what those two different people are doing,” responded Miller. The employee could talk because she was “escorting that individual into the facility” as part of her job, she said.

The lawyer for Massachusetts as well as the lawyer for the federal government, which sided with the state, reminded the justices of their own precedent as well as multiple lower federal court rulings that had upheld buffer zone laws. The 1st U.S. Circuit Court of Appeals upheld Massachusetts’ buffer zone law in January of last year. The 1st Circuit based its ruling on the Supreme Court precedent in the Colorado case. Rienzi argued that the Massachusetts law shouldn’t survive under the precedent in the Colorado case, because the Colorado law at least allowed sidewalk counselors to approach willing recipients. He didn’t go so far as to ask the court to overturn its precedent and throw out buffer zone laws entirely.

The normally chatty Chief Justice John Roberts did not say anything during the arguments. But he has issued broad defenses of free speech rights in the past. He wrote the decision in Snyder v. Phelps, the case concerning Westboro Baptist protestors at a fallen Marine’s funeral. Roberts acknowledged that the protestors were “hurtful” to the grieving family but maintained their right to protest.

“Speech is powerful,” Roberts wrote in 2011. “It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”