For some supporters (and I am one) of Roe v. Wade and later cases affording constitutional protection to a woman’s right to choose to have an abortion, McCullen is simply one of many cases in which the First Amendment should be read to protect speech with which we happen to disagree. But others who pride themselves on defending First Amendment rights have resisted that conclusion in this case. The jurisprudential zigzag over the years in the position of the ACLU is illustrative.
In a friend-of-the-court brief in Hill, the ACLU argued that because the Colorado statute “burdens substantially more speech than is necessary to accomplish the state’s goal,” the statute was facially unconstitutional. When the 2007 statute was proposed in Massachusetts, the Massachusetts ACLU opposed it, stating that “[i]f the message is unwelcome, as it often will be outside abortion clinics, the constitutionally appropriate response in a public forum is for the listener to walk away.”
But now that McCullen has reached the Supreme Court, both ACLU groups have switched sides. Their position, their brief states, has “evolved over time” and the Massachusetts law is, after all, constitutional on its face. Of course, the First Amendment has not changed in the 14 years between the filing of the ACLU briefs in Hill and McCullen; the ACLU has.