A good chunk of the debate in McCullen v. Coakley relates to an exception in the Massachusetts statute. Recall that the law outlaws “knowingly stand[ing] on a ‘public way or sidewalk’ within 35 feet of an entrance or driveway to any place, other than a hospital, where abortions are performed,” with several exceptions:
(1) “persons entering or leaving such facility”; (2) “employees or agents of such facility acting within the scope of their employment”; (3) “law enforcement, ambulance, firefighting, construction, utilities, public works and other municipal agents acting within the scope of their employment”; 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.”
And exception 2, for facility employees, proved highly controversial.
In modern First Amendment law, one of the most important rules is that content-based speech restrictions are generally presumptively unconstitutional — I won’t get into the exceptions here — but content-neutral speech restrictions are usually constitutional. (In this case, the majority held that the restriction was content-neutral but still too broad to be constitutional, but that’s unusual.) And all the Justices agreed that, if exception 2 authorized abortion clinic employees and agents (usually volunteer escorts) “to speak about abortion inside the buffer zones,” it would make the law viewpoint-based, and therefore content-based: anti-abortion speakers (and others) would be restricted from speaking in the zone, but presumably pro-abortion-rights employees and agents would be allowed.
The disagreement related to whether exception 2 does indeed authorize such pro-abortion speech. Here was the majority’s view (in the opinion written by Chief Justice Roberts and joined by the four more liberal Justices) (boldface emphasis and some paragraph breaks added):
It is of course true that “an exemption from an otherwise permissible regulation of speech may represent a governmental ‘attempt to give one side of a debatable public question an advantage in expressing its views to the people.’” At least on the record before us, however, the statutory exemption for clinic employees and agents acting within the scope of their employment does not appear to be such an attempt.
There is nothing inherently suspect about providing some kind of exemption to allow individuals who work at the clinics to enter or remain within the buffer zones. In particular, the exemption cannot be regarded as simply a carve-out for the clinic escorts; it also covers employees such as the maintenance worker shoveling a snowy side walk or the security guard patrolling a clinic entrance.
Given the need for an exemption for clinic employees, the “scope of their employment” qualification simply ensures that the exemption is limited to its purpose of allowing the employees to do their jobs. It performs the same function as the identical “scope of their employment” restriction on the exemption for “law enforcement, ambulance, fire-fighting, construction, utilities, public works and other municipal agents.” Contrary to the suggestion of Justice Scalia, there is little reason to suppose that the Massachusetts Legislature intended to incorporate a common law doctrine developed for determining vicarious liability in tort when it used the phrase “scope of their employment” for the wholly different purpose of defining the scope of an exemption to a criminal statute.
The limitation instead makes clear — with respect to both clinic employees and municipal agents — that exempted individuals are allowed inside the zones only to perform those acts authorized by their employers. There is no suggestion in the record that any of the clinics authorize their employees to speak about abortion in the buffer zones. The “scope of their employment” limitation thus seems designed to protect against exactly the sort of conduct that petitioners and Justice Scalia fear.
Petitioners did testify in this litigation about instances in which escorts at the Boston clinic had expressed views about abortion to the women they were accompanying, thwarted petitioners’ attempts to speak and hand literature to the women, and disparaged petitioners in various ways. It is unclear from petitioners’ testimony whether these alleged incidents occurred within the buffer zones. There is no viewpoint discrimination problem if the incidents occurred outside the zones because petitioners are equally free to say whatever they would like in that area.
Even assuming the incidents occurred inside the zones, the record does not suggest that they involved speech within the scope of the escorts’ employment. If the speech was beyond the scope of their employment, then each of the alleged incidents would violate the Act’s express terms. Petitioners’ complaint would then be that the police were failing to enforce the Act equally against clinic escorts. While such allegations might state a claim of official viewpoint discrimination, that would not go to the validity of the Act. In any event, petitioners nowhere allege selective enforcement.
It would be a very different question if it turned out that a clinic authorized escorts to speak about abortion inside the buffer zones. In that case, the escorts would not seem to be violating the Act because the speech would be within the scope of their employment. [Footnote: Less than two weeks after the instant litigation was initiated, the Massachusetts Attorney General’s Office issued a guidance letter clarifying the application of the four exemptions. The letter interpreted the exemptions as not permitting clinic employees or agents, municipal employees or agents, or individuals passing by clinics “to express their views about abortion or to engage in any other partisan speech within the buffer zone.” While this interpretation supports our conclusion that the employee exemption does not render the Act viewpoint based, we do not consider it in our analysis because it appears to broaden the scope of the Act -- a criminal statute -- rather than to adopt a “‘limiting construction.’”] The Act’s exemption for clinic employees would then facilitate speech on only one side of the abortion debate — a clear form of viewpoint discrimination that would support an as-applied challenge to the buffer zone at that clinic. But the record before us contains insufficient evidence to show that the exemption operates in this way at any of the clinics, perhaps because the clinics do not want to doom the Act by allowing their employees to speak about abortion within the buffer zones.
[Footnote: Of course we do not hold that “[s]peech restrictions favoring one viewpoint over another are not content based unless it can be shown that the favored viewpoint has actually been expressed” [quoting Justice Scalia’s opinion]. We instead apply an uncontroversial principle of constitutional adjudication: that a plaintiff generally cannot prevail on an as-applied challenge without showing that the law has in fact been (or is sufficiently likely to be) unconstitutionally applied to him. Specifically, when someone challenges a law as viewpoint discriminatory but it is not clear from the face of the law which speakers will be allowed to speak, he must show that he was prevented from speaking while someone espousing another viewpoint was permitted to do so. Justice Scalia can decry this analysis as “astonishing” only by quoting a sentence that is explicitly limited to as-applied challenges and treating it as relevant to facial challenges.]
The dissenters thought this was not a sound interpretation of exception (2). Let me begin with some examples from Justice Alito’s dissent:
Consider this entirely realistic situation. A woman enters a buffer zone and heads haltingly toward the entrance. A sidewalk counselor, such as petitioners, enters the buffer zone, approaches the woman and says, “If you have doubts about an abortion, let me try to answer any questions you may have. The clinic will not give you good information.” At the same time, a clinic employee, as instructed by the management, approaches the same woman and says, “Come inside and we will give you honest answers to all your questions.” The sidewalk counselor and the clinic employee expressed opposing viewpoints, but only the first violated the statute.
Or suppose that the issue is not abortion but the safety of a particular facility. Suppose that there was a recent report of a botched abortion at the clinic. A nonemployee may not enter the buffer zone to warn about the clinic’s health record, but an employee may enter and tell prospective clients that the clinic is safe.
And here is the argument from Justice Scalia’s dissent, joined by Justices Thomas and Kennedy, that such speech would indeed likely be excluded by the law (some paragraph breaks added):
The Court takes the peculiar view that, so long as the clinics have not specifically authorized their employees to speak in favor of abortion (or, presumably, to impede antiabortion speech), there is no viewpoint discrimination. But it is axiomatic that “where words are employed in a statute which had at the time a well-known meaning at common law or in the law of this country[,] they are presumed to have been used in that sense unless the context compels to the contrary.”
The phrase “scope of employment” is a well-known common-law concept that includes “[t]he range of reasonable and foreseeable activities that an employee engages in while carrying out the employer’s business.” The employer need not specifically direct or sanction each aspect of an employee’s conduct for it to qualify. Indeed, employee conduct can qualify even if the employer specifically forbids it. In any case, it is implausible that clinics would bar escorts from engaging in the sort of activity mentioned above. Moreover, a statute that forbids one side but not the other to convey its message does not become viewpoint neutral simply because the favored side chooses voluntarily to abstain from activity that the statute permits.
There is not a shadow of a doubt that the assigned or foreseeable conduct of a clinic employee or agent can include both speaking in favor of abortion rights and countering the speech of people like petitioners. Indeed, as the majority acknowledges, the trial record includes testimony that escorts at the Boston clinic “expressed views about abortion to the women they were accompanying, thwarted petitioners’ attempts to speak and hand literature to the women, and disparaged petitioners in various ways,” including by calling them “‘crazy.’”
What a surprise! The Web site for the Planned Parenthood League of Massachusetts (which operates the three abortion facilities where petitioners attempt to counsel women), urges readers to “Become a Clinic Escort Volunteer” in order to “provide a safe space for patients by escorting them through protestors to the health center.” The dangers that the Web site attributes to “protestors” are related entirely to speech, not to safety or access. “Protestors,” it reports, “hold signs, try to speak to patients entering the building, and distribute literature that can be misleading.” The “safe space” provided by escorts is protection from that speech.
Going from bad to worse, the majority’s opinion contends that “the record before us contains insufficient evidence to show” that abortion-facility escorts have actually spoken in favor of abortion (or, presumably, hindered antiabortion speech) while acting within the scope of their employment. Here is a brave new First Amendment test: Speech restrictions favoring one viewpoint over another are not content based unless it can be shown that the favored viewpoint has actually been expressed. A city ordinance closing a park adjoining the Republican National Convention to all speakers except those whose remarks have been approved by the Republican National Committee is thus not subject to strict scrutiny unless it can be shown that someone has given committee-endorsed remarks. For this Court to suggest such a test is astonishing.
[Footnote: The Court states that I can make this assertion “only by quoting a sentence that is explicitly limited to as-applied challenges and treating it as relevant to facial challenges.” That is not so. The sentence in question appears in a paragraph immediately following rejection of the facial challenge, which begins: “It would be a very different question if it turned out that a clinic authorized escorts to speak about abortion inside the buffer zones.” And the prior discussion regarding the facial challenge points to the fact that “[t]here is no suggestion in the record that any of the clinics authorize their employees to speak about abortion in the buffer zones.” To be sure, the paragraph in question then goes on to concede only that the statute’s constitutionality as applied would depend upon explicit clinic authorization. Even that seems to me wrong. Saying that voluntary action by a third party can cause an otherwise valid statute to violate the First Amendment as applied seems to me little better than saying it can cause such a statute to violate the First Amendment facially. A statute that punishes me for speaking unless x chooses to speak is unconstitutional facially and as applied, without reference to x’s action.] …
Of course, now that the statute has been struck down, everyone — including clinic employees and agents — would be free to speak about abortion and about other topics. But whether the statute purported to exempt clinic employees and agents from the speech restriction helped drive the Justices’ decision as to whether to treat it as content-based (and indeed viewpoint-based) or content-neutral.