- The Washington Times - Saturday, June 28, 2014

It started out as a hotly contested case that revived the decades old pro-choice vs. pro-life argument, but on Thursday the U.S. Supreme Court unanimously struck down a Massachusetts law that banned protestors within 35 feet of entrances, exists and driveways of abortion clinics.

The law expanded an earlier established Massachusetts buffer zone that kept activists 6-feet from any person who was within 18 feet of a health care clinic.

Before Thursday’s unanimous 9-0 McCullen v. Coakley ruling, the Court had previously established in Hill v. Colorado that protestors must keep an eight-foot distance from persons entering a health care facility when they were within 100-feet of a health care facility.

The Massachusetts law was a broader ban that said activists could not protest within 35-feet of a health care facility.

According to Leslie Kendrick, a professor who teaches First Amendment issues at the University of Virginia School of Law, the boundaries that protect a person’s personal space when they are entering a health care facility as they were established in Hill may still be valid.

“Nothing of this opinion says that Hill is not a good law,” Prof. Kendrick told The Washington Times. “What the Court was saying in this opinion was that the Massachusetts law is the only one like it in the country, and so basically they’re striking a law that’s a lone wolf, a law that is out there by itself, and they also gave examples of other kinds of regulations that they said would be perfectly fine.”

Prof. Kendrick said that nothing in the opinion also excluded Massachusetts from reverting back to its original buffer zone that kept activists 6-feet from any person who was within 18 feet of a health care clinic.

“Massachusetts used to have a law like the one in Colorado and they changed it,” she explained. Could Massachusetts go back to that law? The Court certainly did not say they could not go back to that old law.”

In Chief Justice John Roberts’ controlling opinion, he emphasized that the Court’s rationale stemmed from the fact that sidewalks are traditional open forums that were meant to cater to the free marketplace of ideas.

“The Massachusetts Act violates the First Amendment,” he wrote in the majority opinion. “By its very terms, the Act restricts access to public way[s]” and sidewalk[s], places that have traditionally been open for speech activities and that the Court has accordingly labeled “traditional public fora… The government’s ability to limit speech in such locations is very limited… [and] the buffer zones burden substantially more speech than necessary to achieve the Commonwealth’s asserted interests.”

While the Court conceded that some of the people who stand outside abortion clinics may want to express “their moral or religious opposition to abortion through… more aggressive methods such as face to face confrontation,” the Court argued that the some engage in peaceful “sidewalk counseling,” merely offering information about alternatives to abortion.

The Court expressed concerns in that the law suppressed of free speech in that the petitioners “say they have had fewer conversations and distributed many fewer leaflets since the zones went into effect.”

The Act was punishable by a $500 fine and up to three months in jail while a subsequent offense was punishable up to two and a half years in prison and a fine up to $5,000.

Furthermore, the law exempted only four classes of individuals: (1) “persons entering or leaving such a facility,”; (2) employees or agents of such a facility acting within the scope of their employment;” (3) “law enforcement, ambulance firefighting, utilities, public works employees and other municipal agents,”; and (4) “persons using the public sidewalk or street right-of-way adjacent to such facility solely for the purpose of reaching a destination other than such facility.”

The Massachusetts statute also exempted clinic “escorts” whose job it was to “thwart the petitioner’s attempts to communicate with patients by blocking petitioners from handling literature to patients, telling patients not to pay any attention or listen…”

The Court took issue with that since sidewalks have traditionally been considered a place for the exchange of ideas because, “there a listener often encounters speech he might otherwise tune out,” and that exempting some people from the law and not others was harmful to the First Amendment.

The Court illuminated this point with a 1984 decision, FCC v. League of Women Voters, reiterating that it is the First Amendment’s purpose “to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.”

Prof. Kendrick said that it is unclear how McCullen effect other buffer zone related regulations and future cases.

“What happens to other laws that are variations on these buffer zones? It’s going to be a matter of what lower courts say because the Supreme Court can’t rule on every one of them. How lower courts rule on these decisions in the future may be what sets the tone.”

• Jeffrey Scott Shapiro is a legal analyst for the Washington Times.

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