In the next week, the Supreme Court will release an opinion in what I believe to be one of the most difficult cases of the term. The case involves a law in Massachusetts that makes it illegal 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.” A group of individuals challenged the law, seeking to approach women entering the facility to encourage them not to get an abortion.
Before I dig into the law underlying the case, I want to discuss what this case is not.
- This is not a case about yelling and screaming protesters. Justice Scalia even admitted during oral arguments that a ban on yelling and screaming within 35 feet would be upheld.
- This is not a case about harassment. If a woman told the protesters she did not wish to speak with them, and the protesters continued following the woman and wouldn’t leave her alone, police could intervene.
- This is not a case about an individual incident of protesters blocking traffic. Police have the power to disperse crowds.
- This is not a case just about abortion. If this law is upheld, governments will be able to stop labor unions, funeral protesters, and anyone else they want from speaking on public sidewalks.
This is a case about the prophylactic measures a state can take to protect women from violence and ensure unimpeded access to roads and sidewalks. The State’s power to do so is, of course, not absolute. As we learned last year in the Fred Phelps case, the State can’t stop controversial protestors at funerals even though these protests could easily lead to violence.
Massachusetts’s law raises two free speech issues. First, is the law a viewpoint-based restriction on speech? The First Amendment prohibits the State from taking sides when regulating speech. For instance, it would be legal for a government body to outlaw protests on city streets that block traffic. However, it would be illegal for that same government body to only outlaw anti-gay speech on those same city streets. The rule is a good one. Without it, a state would be free to discriminate against any politically unpopular group.
In this case, the protesters argue that allowing “employees or agents . . . acting within the scope of their employment” to enter the buffer zone is a viewpoint-based restriction. Imagine that one morning a woman comes to a Planned Parenthood. When she’s within 35 feet of the entrance, two people walk up to her—one’s an employee and one’s a protester. The employee, acting within the scope of her employment as a greeter, says: “good morning; this is a safe place.” The protester says: “good morning; this is not a safe place.” Under the law, only the protester could be arrested. That looks a lot like a viewpoint-based restriction.
The State responds that “acting within the scope of their employment” is much narrower than the protesters think. It only includes coming and going to work and no speech activities. Thus, it would be illegal for anyone to approach our hypothetical woman, making the restriction viewpoint-neutral.
It’s unlikely this issue will win the day for the protesters. Federal courts generally allow state actors to interpret their own laws (especially if it lets them avoid a difficult constitutional question). If the executive branch is going to enforce this law against everyone, it’s unlikely the Supreme Court will tell them to enforce it only against protesters just to strike the law down.
The second issue is whether the law is “narrowly tailored.” The First Amendment generally allows states to regulate the time (for instance, no protests after midnight), place (not outside of a classroom window), and manner (no loudspeakers) of speech provided that the regulation is “narrowly tailored” to serve a “significant governmental interest.” Additionally, the law must leave “ample alternative channels for communication.” This is known as intermediate scrutiny.
There’s no doubt here that safety and stopping sidewalks from being congested are significant governmental interests. The more difficult question is whether a 35 foot buffer that stops ALL speech, including protesters who silently hold signs or offer pamphlets to women, is narrowly tailored to those interests. In other words, is there a way to craft a law that would prohibit less speech while still protecting women? Options might include a smaller buffer zone, only prohibiting loud and disruptive speech, or bringing in more police officers.
The State argues that it has already tried these other options. For instance, it originally had a law that made it illegal for protesters to be within six feet of women coming to a clinic. However, the law turned out to be challenging to enforce. It was difficult to tell how far six feet was when everyone was moving around. But, moving from 6 feet to 35 feet is a big change. The court has to decide whether there was any in-between amount that would be effective.
Another issue is that the buffer zone lasts 24 hours a day. Massachusetts might be able to have a buffer zone on Saturdays and Sundays in Boston. But why do they need a buffer on Tuesday mornings in Worcester? The protesters testified that, many times, the only “crowd” was a single elderly woman. Is she really a threat for violence and congesting streets? The court might force Massachusetts to make a more fact-intensive determination in each city about when and where the buffer zone needs to exist.
It’s hard to predict exactly how the court will write its opinion, but it’s likely that the court will ultimately strike the law down. Nearly every justice expressed some concern about the law during oral arguments. While it’s likely that some abortion clinic buffer zone will remain legal, it’s hard to say what the limits will be. Also, keep in mind that the standard will continue to evolve and be fact-intensive. If Massachusetts is forced to move to a smaller or different buffer zone, but there continues to be congestion and violence, it may be justified in going back to a larger zone.
First Amendment law is notoriously complicated, but I hope this helps to explain some of the issues the court is struggling with. If you have any questions, feel free to ask about it in the comments.