McCullen v. Coakley

On Wednesday, I sat in on the oral arguments for McCullen v. Coakley, a case that brings a First Amendment challenge to a thirty-five foot buffer zone in front of reproductive health clinics in Massachusetts.

Back in the day, I was part of the team that brainstormed ideas for an as-applied challenge to the law. Even back then, we knew that the case had SCOTUS potential; but it was another thing entirely to be there in the courtroom and watch Mark Rienzi argue for the petitioners.  Suffice to say, it was an amazing experience and I’m extraordinarily proud of the team that made it to the Superbowl of the legal world brought the case all the way to the Supreme court.

Assorted comments on oral arguments and the case are below the jump:

A lot of the case will focus on whether or not the buffer zone is a content-neutral restriction or a content-based restriction, and, if it is content-based, whether it is narrowly tailored.

At one point, one of the Justices [Elena Kagan, I think] asked the counsel for the Commonwealth, Jennifer Miller, why a zone of thirty-five feet was chosen.  Her reply was basically that a thirty-six foot buffer zone was found to be constitutional in Masden [v. Women’s Health Center].

Problematically, the standard for upholding a speech restriction is not merely, “Hey, it was done before,” but includes the requirement of narrow tailoring, i.e. the restriction must be the least restrictive means necessary to achieve the state’s interest.  Simply making a buffer zone as large as possible is not “narrowly tailored;” in fact, it is the opposite.  By all accounts, the Massachusetts legislature did not study each individual clinic to determine the true scope of the problems outside of them, nor did it try to find the smallest zone possible; it made the largest zone that it thought it could get away with.

Justice Breyer’s questioning focused on the legislative history that brought about this law.  There was an interesting exchange wherein Justice Breyer all but put words into Attorney Miller’s mouth, asking her to state that the Commonwealth had fully developed its record before passing this speech restriction.  Justice Scalia said, “You should say ‘yes,” provoking laughter from the courtroom.

Ultimately, it appeared as if Miller could neither defend the Commonwealth’s legislative fact-finding nor its decision to make a thirty-five foot buffer zone (as opposed to one that is a fraction of that size).  Neither she nor her co-counsel were able to address the problem of adequacy of other venues for the same speech (i.e. sidewalk counselors who want to speak to pregnant women, as distinguished from mere abortion protestors).

Interestingly, Justice Breyer’s commentary about the legislative record seemed to indicate that he would give Chevron deference to the Commonwealth, rather than analyse this under the normal test for First Amendment restrictions.

A court will give Chevron deference to an administrative agency’s interpretation of statutes and its rule-making, under the theory that administrative agencies are specialists in a particular area and that Congress delegated rule-making abilities to those agencies. So long as the record indicates that there is a basis for the interpretation, or the rule that was made, courts will defer to the agency’s judgement.

However, restrictions on free speech are governed by either a “strict scrutiny” analysis (i.e. the restriction must be narrowly tailored to meet a compelling state interest); time, place, and manner restrictions are held to a lower standard of reasonableness, provided that those restrictions leave open other adequate avenues of expression.  Usually, blanket prohibitions on speech on a public sidewalk are struck down.

If deference is given to the law-making of the Commonwealth, the restrictions will most certainly be upheld: the state need only point to things in its record indicating that this restriction has some sort of basis in the record.  But that is not how the First Amendment works.


Justice Alito posed the following hypothetical to the Commonwealth: one person walks up to a woman entering a health facility and says, “This is a safe facility.” Another person walks up to the same woman and says “This is an unsafe facility.” The former person is engaging in lawful activity; the latter person can be arrested. How is that not a content-based restriction on free speech?

Attorney Miller answered that it was a restriction on conduct, not on speech.

Aside from the patent absurdity of such a statement (we could use that “logic” to ban all speech, since if that is “conduct,” there is nothing that is speech), it highlighted one of the weaknesses in the Commonwealth’s oral argument. Mark Rienzi answered the Court’s questions forthrightly and knowledgeably. He had an incredible grasp of the buffer zone law, the clinics in Massachusetts that are governed under it, the laws in other states and municipalities, and First Amendment jurisprudence. Although he did not answer every question in a way that made every Justice agree with him, he gave thoughtful answers to tough questions.

The Commonwealth, however, seemed intent on dodging the difficult issues in this case. It repeatedly characterised the plaintiffs as abortion protestors, as if their activities could happen just as well thirty-five feet away from a clinic entrance as within speaking distance. (Justice Scalia repeatedly reminded the attorneys representing the Commonwealth that the plaintiffs are attempting to counsel women and offer them concrete assistance, not merely to rant about how they dislike abortion.) The attorneys classified the actions in Justice Kennedy’s hypothetical as “conduct,” not speech, although it is plainly speech. Another dodge of a tough question came with the AFL-CIO issue.


This type of dodging of tough issues was also seen when the Justices brought up the AFL-CIO’s amicus brief.  The AFL-CIO sided with the plaintiffs, stating that if a state can enact such a buffer zone in front of abortion clinics, it can also create a buffer zone in front of businesses that have labour disputes and strikes. When the bench asked the Commonwealth about this, the flippant answer was that there was not the history of violence in labour disputes and strikes as there is by pro-lifers in front of abortion clinics.

While I have not seen a direct comparison of such incidences of violence (but may do one myself), there is clearly a history of union-based violence in or near businesses that have disputes with unions.  There are also a lot of very peaceful strikers, as there are peaceful anti-abortion advocates. Again, I do not have a comparison of that, but neither did Attorney Miller when she made her comment: her statement was merely that abortion protestors are more violent [and apparently so much more violent that a comparison with unions is inappropriate, and an anti-union bill would not withstand a court challenge based on precedent that upholds an abortion clinic buffer zone] without a single actual fact or study to back it up.


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