Supreme Court unanimously strikes down abortion clinic speech "buffer zones" ... or did they?

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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