On Wednesday, the Supreme Court heard oral arguments in the case of McCollum vs. Coakley, a case which challenged a Massachusetts law involving a 35-foot free speech buffer zone around abortion clinics in that state. The law was passed ostensibly to deal with cases of pro-life "protesters" blocking clinic access to patients. It became quite obvious early in this case that the pro-life "protesters" were not protesters at all. Instead, they were merely approaching clinic patrons to counsel them on alternatives to abortion. Were they trying to change their minds? Of course! Were they trying to "educate" them? Of course. Were they blocking them, obstructing them, making it impossible for them to get through the doors, or denigrate them in any way? Absolutely NOT! These were peaceful individuals, not protesters in any sense of the word.
The problem was actually explained by counsel for Massachusetts when defending the law. They more or less conceded the peacefulness of the people challenging this law when they said that pro-choice groups were showing up and causing disruptions, obstructions and that peaceful actions by the pro-life people often turned into ugly pushing and yelling matches. That is, the problems to the extent to which any existed, were caused by the pro-choice actors here. Left to their own devices- which, again, did not block any entrance- the pro-life people can only be described as peaceful. The fact is that Massachusetts, like any state, has the means to deal with regulating protests or obstructing entrances to any facility be it a store, a power plant, a job site, or an abortion clinic. You deal with the unsavory characters without interfering with the Free Speech rights of everyone.
And that is the major problem for Massachusetts here. In order to survive a Free Speech challenge, the law must past strict scrutiny. To do that, there must be a compelling state interest, the law must be narrowly tailored to meet that interest and must use the least restrictive means, and its restrictions must be content-neutral. Let us just give the state the first part. Even still, the law cannot withstand scrutiny because it is not narrowly tailored. The law assumes that anyone within that 35-foot buffer is violating the law unless they are a client or employee of the clinic. Secondly, it is not content-neutral since it allows clinic employees within that buffer zone "within the scope of their employment." As one line of questioning showed, suppose a woman approaches the clinic and a pro-life person approaches her and tells her that this particular clinic is dangerous, that there are health risks associated with abortion in general, and that there are options to abortion and we will even help you through your pregnancy and find a loving family for your baby. A clinic worker "within the scope of their employment" is there to escort the woman to the door and they tell the client to ignore those people. Under the state law, the clinic worker is fine and dandy while the pro-life person could be fined or imprisoned simply because the communication took place within 35 feet of the clinic. How this satisfies the content neutrality principle boggles the mind. The state countered that clinic employees are trained on what to say and what not to say within that 35-foot zone. In and of itself, that should be a bright red Free Speech impingement flag right then and there. The fact is that the speech restricted within the zone is not content neutral- its non-existent because content based speech is not even allowed. One side is proscribed by law, the other by staff training. And that is the problem- when the law dictates the speech and chills one side while, in a de facto stealth manner, endorses the opposite view, then it runs afoul of the First Amendment.
Furthermore, as the petitioner's summary indicated, this law was a knee-jerk piece of legislation in response to particular complaints involving one clinic in Boston on a particular day (Saturdays) during particular hours (between 7 and 9 AM). As the state conceded, according to NARAL- not exactly a neutral party here- of the 11 abortion clinics operational in Massachusetts, a handful reported persistent problems, some reported occasional problems and three reported no problems. The parameters of "persistent" and "occasional" were never defined. Still, the fact that the majority of Massachusetts clinics reported no persistent major problems by NARAL's own admission is indicative of the fact that other, least restrictive means were available and used for the alleged "problem." And it was that line of reasoning that both Scalia and Alito were getting at in the argument.
For her part, Kagan seemed troubled by the size of the buffer zone. But, that is not the point of this case. It is not the Supreme Court's job to stifle free speech in favor of taking up the yard stick. Even then, assuming there is no actual demonstrable obstruction, restrictions on speech need to be highly scrutinized. A ruling in favor of Massachusetts here could have ramifications on free speech rights beyond abortion clinics. For example, as Justice Alito alluded to, the hiring of replacement workers and the placement of union picketers can be seriously curtailed in labor dispute situations. Peaceful PETA demonstrators at a slaughterhouse can be curtailed. And the list goes on. Of course, if a union picketer blocks or injures a replacement worker, they have overstepped the lines. Likewise, if the PETA demonstrator blocks a delivery truck, they too have overstepped the line. And in Massachusetts, the petitioner concedes the fact that if Ms. McCollum had laid across the drive way to the clinic, or stood in front of a car, or blocked and harassed a client to within 8 feet of the clinic's door, she would have overstepped the line. But that is clearly not the case. Her only crime was being within that 35 foot buffer.
There are four important points to be made here. The first is that buffer zones have been upheld in previous cases, most notably an 8-foot zone in Colorado which Massachusetts asserts was not practical in their instance. So, theoretically, free speech buffer zones are constitutional in some instances, mainly when there is a greater chance of obstruction to a facility of any type. Thus, there is no need in this case to overrule the Colorado precedent. Second, the silence from Chief Justice Roberts, who usually is very involved in oral arguments, was notable in this case as he did not ask a single question of either side. This may mean that he may very well be the deciding voice in this case. Third, given the Supreme Court's recent Free Speech jurisprudence coupled with the apparent problems Justice Kagan has with the size of the buffer zone at the very least, it is difficult to see how the Massachusetts can prevail here. Fourth and finally, this is not a case about abortion. Abortion clinics and protests (and as Scalia repeatedly asserted, these were not protests) were merely the backdrop. This is a case about the First Amendment and free speech.
Most importantly, it should be noted that both sides agree that McCollum's only "crime" was being within this 35-foot zone. The state's presentation of certain actions that involved police intervention also noted that pro-choice protesters had arrived and instigated any problems at other clinics. Left to their own devices, the pro-life people were peaceful and did not even attempt to obstruct anyone. It begs the question as to why the pro-choice people are so afraid of someone telling another person that there are options to abortion, that there are risks associated with surgical abortions, and that the safety records of abortion clinics are questionable in some cases. Would they and could they actually defend a "clinic" like that of "Dr." Gosnell in Philadelphia? Unfortunately, there were no pro-life people in Philadelphia around that "clinic" to warn clients. But, imagine if Philadelphia had a restrictive law like that of Massachusetts. Would that make the government an accessory to the crime?