Supreme Court unanimously strikes down abortion clinic speech “buffer zones” … or did they?

posted at 11:21 am on June 26, 2014 by Ed Morrissey

It seems like they did, especially because of the momentum of the earlier ruling on the NLRB. The Supreme Court unanimously upheld the balance of power in the Constitution earlier today in NLRB v Noel Canning, but that wasn’t the only clause in the Constitution they defended. In another unanimous decision, the court struck down the “buffer zone” imposed by Massachusetts on public property surrounding abortion clinics, ruling them an affront to the First Amendment. But this may not be a big win for abortion opponents in the end, because the Court appears to have upheld the notion of buffer zones in principle:

The U.S. Supreme Court has ruled that a Massachusetts law requiring protesters to stay at least 35 feet from the entrances to clinics that provide abortions is unconstitutional, a decision that cast a legal cloud over similar provisions in 15 other states. …

The law barred protesters from crossing a painted line that kept them 35 feet from clinic doors. Anti-abortion groups sued, claiming the limit violated their free speech rights by making it impossible to converse with entering patients.

Nationwide, similar buffer-zone restrictions on abortion protests have been imposed in 15 other states through local laws or court orders.

According to NBC, the ruling does not affect an earlier ruling upholding an eight-foot “bubble zone” around people entering the clinics. Interestingly and critically, the decision also didn’t rule that the fixed zones were content nor viewpoint based, even though the only obvious outcome was to hinder the pro-life message from being freely disseminated in that zone. Instead, the court focused on Massachusetts’ application of this specific buffer zone:

The Act is not content based simply because it establishes buffer zones only at abortion clinics, as opposed to other kinds of fa­cilities. First, the Act does not draw content-based distinctions on its face. Whether petitioners violate the Act “depends” not “on what they say,” Holder v. Humanitarian Law Project, 561 U. S. 1, 27, but on where they say it. Second, even if a facially neutral law dispropor­tionately affects speech on certain topics, it remains content neutral so long as it is “ ‘justified without reference to the content of the regu­lated speech.’ ” Renton v. Playtime Theatres, Inc., 475 U. S. 41, 48. The Act’s purposes include protecting public safety, patient access to healthcare, and unobstructed use of public sidewalks and streets. The Court has previously deemed all these concerns to be content neutral. See Boos v. Barry, 485 U. S. 312, 321. An intent to single out for regulation speech about abortion cannot be inferred from the Act’s limited scope.

Nonetheless, it violates the right to free speech on public property:

Although the Act is content neutral, it is not “narrowly tailored” because it “burden[s] substantially more speech than is necessary to further the government’s legitimate interests.” …

At the same time, however, they impose serious burdens on petition­ers’ speech, depriving them of their two primary methods of com­municating with arriving patients: close, personal conversations and distribution of literature. Those forms of expression have historically been closely associated with the transmission of ideas. While the Act may allow petitioners to “protest” outside the buffer zones, petition­ers are not protestors; they seek not merely to express their opposi­tion to abortion, but to engage in personal, caring, consensual conver­sations with women about various alternatives. It is thus no answer to say that petitioners can still be seen and heard by women within the buffer zones. If all that the women can see and hear are vocifer­ous opponents of abortion, then the buffer zones have effectively sti­fled petitioners’ message. Pp. 19–23.

(2) The buffer zones burden substantially more speech than nec­essary to achieve the Commonwealth’s asserted interests. Subsection (e) of the Act already prohibits deliberate obstruction of clinic entrances. Massachusetts could also enact legislation similar to the federal Freedom of Access to Clinic Entrances Act of 1994, 18 U. S. C. §248(a)(1), which imposes criminal and civil sanctions for obstructing, intimidating, or interfering with persons obtaining or providing reproductive health services. Obstruction of clinic driveways can readily be addressed through existing local traffic ordinances. While the Commonwealth contends that individuals can inadvertently ob­struct access to clinics simply by gathering in large numbers, that problem could be addressed through a law requiring crowds blocking a clinic entrance to disperse for a limited period when ordered to do so by the police. In any event, crowding appears to be a problem only at the Boston clinic, and even there, only on Saturday mornings.

The court took a dim view of Massachusetts’ attempts to claim that they had no other choice but to impose a 35-foot no-speech buffer zone:

The Commonwealth has not shown that it seriously undertook to address these various problems with the less intrusive tools readily available to it. It identifies not a single prosecution or injunction against individuals outside abortion clinics since the 1990s. The Commonwealth responds that the problems are too widespread for individual prosecutions and injunctions to be effective. But again, the record indicates that the problems are limited principally to the Boston clinic on Saturday mornings, and the police there appear per­fectly capable of singling out lawbreakers.

There was a considerable amount of disagreement on the idea that the law was content-neutral, and this is the crux of the problem for free-speech advocates. Justice Antonin Scalia issued a scalding concurrence in part, with Justices Anthony Kennedy and Clarence Thomas joining, warning that this decision makes proving a violation of content neutrality in speech restrictions all but impossible:

The second half of the Court’s analysis today, invalidat­ing the law at issue because of inadequate “tailoring,” is certainly attractive to those of us who oppose an abortion speech edition of the First Amendment. But think again. This is an opinion that has Something for Everyone, and the more significant portion continues the onward march of abortion-speech-only jurisprudence. …

Does a statute become “justified without reference to the content of the regulated speech” simply because the statute itself and those defending it in court say that it is? Every objective indication shows that the provision’s primary purpose is to restrict speech that opposes abortion.

I begin, as suggested above, with the fact that the Act burdens only the public spaces outside abortion clinics. One might have expected the majority to defend the stat­ute’s peculiar targeting by arguing that those locations regularly face the safety and access problems that it says the Act was designed to solve. But the majority does not make that argument because it would be untrue. As the Court belatedly discovers in Part IV of its opinion, al­though the statute applies to all abortion clinics in Massa­chusetts, only one is known to have been beset by the problems that the statute supposedly addresses. See ante, at 26, 28. The Court uses this striking fact (a smoking gun, so to speak) as a basis for concluding that the law is insufficiently “tailored” to safety and access concerns (Part IV) rather than as a basis for concluding that it is not directed to those concerns at all, but to the suppression of antiabortion speech. That is rather like invoking the eight missed human targets of a shooter who has killed one victim to prove, not that he is guilty of attempted mass murder, but that he has bad aim.

Whether the statute “restrict[s] more speech than necessary” in light of the problems that it allegedly ad­dresses, ante, at 14–15, is, to be sure, relevant to the tailoring component of the First Amendment analysis (the shooter doubtless did have bad aim), but it is also rele­vant—powerfully relevant—to whether the law is really directed to safety and access concerns or rather to the suppression of a particular type of speech. Showing that a law that suppresses speech on a specific subject is so far­ reaching that it applies even when the asserted non­speech-related problems are not present is persuasive evidence that the law is content based. In its zeal to treat abortion-related speech as a special category, the majority distorts not only the First Amendment but also the ordinary logic of probative inferences.

The structure of the Act also indicates that it rests on content-based concerns. The goals of “public safety, pa­tient access to healthcare, and the unobstructed use of public sidewalks and roadways,” Brief for Respondents 27, are already achieved by an earlier-enacted subsection of the statute, which provides criminal penalties for “[a]ny person who knowingly obstructs, detains, hinders, impedes or blocks another person’s entry to or exit from a reproductive health care facility.” §120E½(e). As the majority recognizes, that provision is easy to enforce. See ante, at 28–29. Thus, the speech-free zones carved out by subsection (b) add nothing to safety and access; what they achieve, and what they were obviously designed to achieve, is the suppression of speech opposing abortion.

Indeed. While McCullen may have handed abortion opponents a technical victory, the truth is that the court punted on the issue of the lack of content neutrality in buffer-zone laws. That means future McCullens may have to do this all over again, and that may not be just on abortion in the future, either.

Two more decisions are left at the Supreme Court, and will publish on Monday. One is the Hobby Lobby/Conestoga case on the intrusion on religious practice imposed by the HHS contraception mandate. So far the Supreme Court seems to be united in defense of constitutional liberty, which may mean bad news for the Obama administration on its pet political project. The other is Harris v Quinn, which relates to forced payment of dues from people classified by the state against their will as public employees, which is another First Amendment case, in part. Gabriel Malor has a good primer on those cases at The Federalist.


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They affirmed a free speech right AND safe access.

verbaluce on June 26, 2014 at 11:23 AM

9:0 three times…what’s up?

Schadenfreude on June 26, 2014 at 11:24 AM

I predict a curvescrewball on Monday.

Steve Eggleston on June 26, 2014 at 11:25 AM

thuja to run by against all life…news at 11:00

Schadenfreude on June 26, 2014 at 11:25 AM

And the Big Gulp is back……

d1carter on June 26, 2014 at 11:25 AM

Wow, the Roberts Court must of gotten a testosterone injection or something, with it finding the courage to do the right thing and all.

Robert_Paulson on June 26, 2014 at 11:26 AM

Okay, that formatting didn’t quite work. Let’s try again, this time with feeling…

I predict a curvescrewball on Monday.

Steve Eggleston on June 26, 2014 at 11:25 AM

There has to be a reason why the lieberals agreed, at least in judgement, with the conservatives the last few cases.

Steve Eggleston on June 26, 2014 at 11:26 AM

Harris v Quinn bugs the hell out of me.
a parent at home caring for a disabled child/family member is suddenly a public employee due to ssi and other benefits basically.
pure bullspit.

dmacleo on June 26, 2014 at 11:26 AM

My guess is that the remaining two cases will not be unanimous and are coming down so that the Justices will be on vacation during the resulting flap.

I just don’t see this SCOTUS upholding religious freedom after upholding Obamacare.

Happy Nomad on June 26, 2014 at 11:28 AM

the decision also didn’t rule that the fixed zones were content nor viewpoint based

Most adults probably wouldn’t be able to correctly use the word “nor” without consulting the dictionary.

Wait, that’s just smart-guy ed Morrisey.

jaxisaneurophysicist on June 26, 2014 at 11:29 AM

So union activists, the gay mafia and occupy freaks can now go anywhere and harass people?

Flange on June 26, 2014 at 11:31 AM

I’m so nervous about Hobby Lobby.

gophergirl on June 26, 2014 at 11:31 AM

The court took a dim view of Massachusetts’ attempts to claim that they had no other choice but to impose a 35-foot no-speech buffer zone:

Mass had another choice actually, blowing off Claymores toward anyone who dared raise a voice against the death clinics, but they didn’t want to pay for cleanup afterward.

Bishop on June 26, 2014 at 11:32 AM

Most adults probably wouldn’t be able to correctly use the word “nor” without consulting the dictionary.

Wait, that’s just smart-guy ed Morrisey.

jaxisaneurophysicist on June 26, 2014 at 11:29 AM

I wonder if the Captain knows enough to capitalize a proper name?

I’ll bet right about now you’re wishing there was an edit function after you just got done being a smarmy Grammar Nazi.

Bishop on June 26, 2014 at 11:34 AM

I’m so nervous about Hobby Lobby.

gophergirl on June 26, 2014 at 11:31 AM

We have good reason to be very nervous about it….

Athos on June 26, 2014 at 11:35 AM

Harris v Quinn bugs the hell out of me.
a parent at home caring for a disabled child/family member is suddenly a public employee due to ssi and other benefits basically.
pure bullspit.

dmacleo on June 26, 2014 at 11:26 AM

You forget the real crux of the case here- That caregiver is now forced into paying money to the SEIU or other public sector union.

Happy Nomad on June 26, 2014 at 11:36 AM

With all this good news from SCOTUS, you just know they’re going to rule against Hobby Lobby.

He Who Some Call A Traitor on June 26, 2014 at 11:36 AM

I’ll bet right about now you’re wishing there was an edit function after you just got done being a smarmy Grammar Nazi.

Bishop on June 26, 2014 at 11:34 AM

LOL!

VegasRick on June 26, 2014 at 11:38 AM

I live in Arizona and can hear heads exploding in California righy now.

Sabercat2 on June 26, 2014 at 11:40 AM

You forget the real crux of the case here- That caregiver is now forced into paying money to the SEIU or other public sector union.

Happy Nomad on June 26, 2014 at 11:36 AM

Oh I didn’t forget, thats the result of defaulting them to public employees and the only reason its being done.
they get to pay dues for nothing as they get no employee benefits, they have to come up with the money possibly reducing care to the person needing it, and they are employees w/o ever applying or interviewing.
roberts will declare it a state tax.

dmacleo on June 26, 2014 at 11:40 AM

Two more decisions are left at the Supreme Court, and will publish on Monday. One is the Hobby Lobby/Conestoga case on the intrusion on religious practice imposed by the HHS contraception mandate. So far the Supreme Court seems to be united in defense of constitutional liberty, which may mean bad news for the Obama administration on its pet political project. The other is Harris v Quinn, which relates to forced payment of dues from people classified by the state against their will as public employees, which is another First Amendment case, in part.

According to the tea leaves readers at Scotusblog, Roberts and Alito have not written as many opinions as the rest, and it is likely that Alito writes Harris, and Roberts writes Hobby Lobby.

Wethal on June 26, 2014 at 11:43 AM

With this decision, Hill v Colorado is up for game.

sentinelrules on June 26, 2014 at 11:46 AM

Don’t have a good feeling about the Hobby Lobby case.

changer1701 on June 26, 2014 at 11:47 AM

I suspect Harris v. Quinn is the one they might go the other way on, because it’s about $$$ for the imperial gubmint.

Mr. D on June 26, 2014 at 11:53 AM

An 8′ bubble and a 10 day recess. Scotus rulings are becoming more complicated then NFL rules, like unempeded to the QB and can’t block kicks by jumping on the back of the guy in front of you.

Kissmygrits on June 26, 2014 at 11:54 AM

The other is Harris v Quinn, which relates to forced payment of dues from people classified by the state against their will as public employees, which is another First Amendment case, in part.

Must be ruled a tax if SCOTUS wishes to remain consistent.

NotCoach on June 26, 2014 at 11:55 AM

So, you can protest closer to an abortion clinic, but not he president. WTF?

The justices ruled unanimously that the Secret Service acted appropriately when it moved anti-Bush protesters several blocks further away from the president’s dinner table, even while allowing a friendly crowd of demonstrators to hold their ground.

People are not at liberty to speak whenever, however, and wherever they please,” Justice Ruth Bader Ginsburg ruled for the court.

Still to come are cases concerning protests outside abortion clinics, false statements in campaign advertising, and the rights of employers to claim religious exemptions from government regulations.

The decision in the Bush protest case essentially boiled down to one salient fact: presidents must be protected at all costs. “There are people out there who want to kill the president,” Chief Justice John Roberts said during oral arguments in March.

You think that maybe one of the “good” protestors might be a bad guy and want to harm the president? Seriously. I guess as long as you keep saying nice things before he gets there, you should be fine.

Patriot Vet on June 26, 2014 at 11:58 AM

There has to be a reason why the lieberals agreed, at least in judgement, with the conservatives the last few cases.

Steve Eggleston on June 26, 2014 at 11:26 AM

Quid pro quo for that Roberts decision on Obamacare.

Immolate on June 26, 2014 at 12:02 PM

There has to be a reason why the lieberals agreed, at least in judgement, with the conservatives the last few cases.

Steve Eggleston on June 26, 2014 at 11:26 AM

Perhaps as far as the recess appointments case goes, the liberals were afraid to concede too much power to a future GOP president.

Wethal on June 26, 2014 at 12:10 PM

I live in Arizona and can hear heads exploding in California right now.

Sabercat2 on June 26, 2014 at 11:40 AM

I’m here in California, and so far I’m neither hearing nor seeing that. Yet. Love to have that happen, though. :)

They’s just find another way.

hawkeye54 on June 26, 2014 at 12:10 PM

With all this good news from SCOTUS, you just know they’re going to rule against Hobby Lobby.

He Who Some Call A Traitor on June 26, 2014 at 11:36 AM

It’s a business owned by a Christian so, yeah, most likely.

hawkeye54 on June 26, 2014 at 12:13 PM

As long as protesters aren’t destructive or physically blocking access there shouldn’t be any problem at all.

whatcat on June 26, 2014 at 12:14 PM

It’s a business owned by a Christian

hawkeye54 on June 26, 2014 at 12:13 PM

Wait. That’s still allowed?

faraway on June 26, 2014 at 12:14 PM

I wonder if the Captain knows enough to capitalize a proper name?
I’ll bet right about now you’re wishing there was an edit function after you just got done being a smarmy Grammar Nazi.

To the contrary, I’m not in the habit of using the majuscule for anything but Capitalised Essences like Truth, Beauty, and Neurodynamics (but I repeat myself!). The only reason some of my posts come out with capital letters is that I rely heavily on autocorrect when using my phone. I typically never use caps, for names or otherwise, when I’m on my computer.

Grammar fascism has nothing to do with it; I’m just mocking ed’s supercilious ness from earlier today when he ludicrously conjectured that most adults wouldn’t know the word “callow”–used copiously in the print media — without consulting a dictionary.

Glass houses and stones.

jaxisaneurophysicist on June 26, 2014 at 12:22 PM

jaxisaneurophysicist on June 26, 2014 at 12:22 PM

Uh huh, sure, the software managed to miss “Ed” which is quite common but found “Morrisey” which is not, and in this case has a double “S” at the end anyway.

A poor carpenter blames his tools, in your case auto-correct.

Just admit you got caught with your pants down and move on, it happens to everyone, the question is whether you’re big enough to admit it.

Bishop on June 26, 2014 at 12:32 PM

I’m so nervous about Hobby Lobby.

gophergirl on June 26, 2014 at 11:31 AM

We have good reason to be very nervous about it….

Athos on June 26, 2014 at 11:35 AM

…the decision on the abortion clinics was just a little red meat throw our way…for the let down coming on Hobby Lobby.

JugEarsButtHurt on June 26, 2014 at 12:34 PM

jaxisaneurophysicist on June 26, 2014 at 12:22 PM

Oh yeah…uh…”superciliousness” somehow got past auto-correct with a space between supercilious and ness, curious that auto-correct didn’t flag “ness”.

Bishop on June 26, 2014 at 12:38 PM

9:0 three times…what’s up?

Schadenfreude on June 26, 2014 at 11:24 AM

No more invites to the SOTU from Barry!

slickwillie2001 on June 26, 2014 at 12:39 PM

Cleanser

Schadenfreude on June 26, 2014 at 12:41 PM

It’s a business owned by a Christian

hawkeye54 on June 26, 2014 at 12:13 PM

Wait. That’s still allowed?

faraway on June 26, 2014 at 12:14 PM

Apparently, not for long given the targeting by Obumbles admin and activist judges far and wide.

hawkeye54 on June 26, 2014 at 12:48 PM

Just admit you got caught with your pants down and move on, it happens to everyone, the question is whether you’re big enough to admit it.

Bishop on June 26, 2014 at 12:32 PM

It’s always funny to watch as self-appointed board grammar/spelling cops hoist themselves on their own petards! It’s a doubled-edged sword they attempt to wield, it is.

whatcat on June 26, 2014 at 1:43 PM

So far the Supreme Court seems to be united in defense of constitutional liberty, which may mean bad news for the Obama administration on its pet political project.

Yeah, remember the last time everyone thought this in a Roberts court case about 0bamacare?

GWB on June 26, 2014 at 1:50 PM

…the decision on the abortion clinics was just a little red meat throw our way…for the let down coming on Hobby Lobby.

JugEarsButtHurt on June 26, 2014 at 12:34 PM

I don’t know…do they have a history of doing that? Going one way on one case to set up another case? Things looked good for H.L. in the preliminary stages of the case, but I don’t want to jinx things…

bmmg39 on June 26, 2014 at 1:55 PM

Good.. I was a bit concerned because things get crazy out there between the two sides. You can be pro-life without yelling in someone’s face.

Illinidiva on June 26, 2014 at 1:57 PM

I don’t know…do they have a history of doing that? Going one way on one case to set up another case?

bmmg39 on June 26, 2014 at 1:55 PM

Not necessarily “going one way”, but in the order they announce them. At least some people have seen evidence of that – I don’t know.

GWB on June 26, 2014 at 2:08 PM

. You can be pro-life without yelling in someone’s face.

Illinidiva on June 26, 2014 at 1:57 PM

And a pretty rare thing that is….btw.

But liars like you love to spread misinformation and tar pro-lifers.

CW on June 26, 2014 at 6:46 PM