FAN 20.1 (First Amendment News) – Supreme Court Hands Down Abortion Buffer Zone Case (9-0)
→ The opinion can be found here.
→ Yet another First Amendment majority opinion by the Chief Justice (that makes 12).
Commentary by Tom Goldstein at SCOTUSblog: The abortion protests ruling is relatively narrow. The Court makes clear that states can pass laws that specifically ensure access to clinics. It holds that states cannot more broadly prohibit speech on public streets and sidewalks. It also notably rejects the protesters’ broadest arguments that such restrictions require strict constitutional scrutiny and are viewpoint based. A state can go beyond narrow laws that block obstructions to clinics, and more broadly ban abortion protests, only if it builds a record showing that the narrower measures don’t work. The S. Ct. majority says nothing about its prior buffer zone ruling in Hill, the validity of which now seems in real question.
→ Harris v. Quinn (opinion to be handed down this Monday).
→ Review still pending in Minority Television Project, Inc. v. Federal Communications Commission, which involves a federal law that prohibits public radio and television stations from transmitting paid advertisements for for-profit entities, issues of public importance or interest, and political candidates. The 9th Circuit, sitting en banc, ruled against the broadcasters. Chief Judge Alex Kozinski (joined by Judge John Noonan) dissented, and Judge Consuelo Callahan concurred in part and dissented in part.
The Abortion Clinic Buffer Zone Case: McCullen v. Coakley
Facts: “Three of the plaintiffs regularly engage in ‘sidewalk counseling’ at the Boston clinic. McCullen parks her car on Commonwealth Avenue and festoons it with pro-life signage; Zarrella sometimes prays aloud; and Cadin from time to time holds aloft a large pro-life sign. A fourth plaintiff, Smith, has demonstrated outside the Boston clinic for many years. He has displayed a crucifix, sung religious hymns, and prayed aloud. His prayers are meant to be heard by passersby in hopes of persuading them to opt against abortion. He sometimes brings a loudspeaker to amplify group prayers that occur outside the clinic on the second Saturday of every-month and on Good Friday.” (Source: 1st Cir. opinion)
→ A Massachusetts law provided for a fixed 35-foot buffer zone around the entrances, exits, and driveways of abortion clinics.
The issues in the case were:
(1) Whether the First Circuit erred in upholding Massachusetts’s selective exclusion law – which makes it a crime for speakers other than clinic “employees or agents . . . acting within the scope of their employment” to “enter or remain on a public way or sidewalk” within thirty-five feet of an entrance, exit, or driveway of “a reproductive health care facility” – under the First and Fourteenth Amendments, on its face and as applied to petitioners; and
(2) whether, if Hill v. Colorado permits enforcement of this law, Hill should be limited or overruled.
The First Circuit rejected the Plaintiff’s First Amendment claims. The Supreme Court reversed.
Majority Opinion: Chief Justice Roberts
Concurring Opinion: Justice Scalia (joined by Justices Kennedy and Thomas) concurs in judgment. Justice Alito wrote a separate opinion, concurring in the judgment.
→ Justice Scalia argues that Hill v. Colorado should be overruled, which today’s opinion does not formally do.
- Mark L. Rienzi for Petitioners
- Jennifer Grace Miller for Respondents
- Ian H. Gershengorn for United States (amicus curiae for Respondents)
Among those filing amicus briefs were the following:
- Cato Institute (Ilya Shapiro) for Petitioners
- American Center for Law & Justice (Jay Sekulow) for Petitioners
- Rutherford Institute (John W. Whitehead) for Petitioners
- Michigan & 11 other States (Bill Schuette) for Petitioners
- ACLU (Steven R. Shapiro) for Neither Party
- New York State, et al (Eric T. Schneiderman) for Respondents
- Planned Parenthood (Walter Dellinger) for Respondents
- American College of Obstetricians and Gynecologists, et al (Jack R. Bierig) for Respondents
- National League of Cities, et al (Mary Jean Dolan) for Respondents
- Anti-Defamation League, et al (Jeffrey S. Robbins) for Respondents
- National Abortion Federation, et al (Maria T. Vullo) for Respondents
→ Hat tip to SCOTUSblog for its remarkable real-time coverage of today’s decisions.
NOTE: My next scheduled FAN column will provided detailed information re the Roberts Court’s overall record in First Amendment freedom of expression cases. It will also include facts and figure re the Court’s 1-A work this term.