McCullen v. Coakley, content neutrality, and “place” restrictions

The Court has often held that content-neutral restrictions on the “time, place, or manner” of speech are constitutionally permissible. And indeed many restrictions focus on particular places — sidewalks outside people’s homes (Frisby v. Schultz), particular parks (Ward v. Rock Against Racism), sidewalks outside schools (Grayned v. City of Rockford), blocks around high-profile political meetings (such as political conventions or International Monetary Fund meetings), and the like.

But would a “place” restriction, even when it applies to all speakers in that place, ever be content-based precisely because it focuses on a particular places? Would this be so for a restriction on picketing outside gun shops? A restriction on picketing outside draft offices? A restriction on picketing outside abortion clinics? Assume the restriction treats all speakers the same (i.e., doesn’t have a carve-out for labor picketers, friendly picketers, and the like) and doesn’t define the place in a way that itself focuses on speech (i.e., doesn’t say something like “no picketing near pro-gay-rights parades”).

The conventional answer is that such restrictions are content-neutral (again, assuming they don’t have facial carveouts for particular kinds of speech), if their justifications are unrelated to speech. Thus, if a place restriction is justified by a need for special security against violent attack at that place, it would be content-neutral (though not necessarily constitutional as a result). If it justified by a concern that people at the place might be offended by the particular ideas likely to be expressed by the speakers, it would likely be content-based. But of course figuring out the true justification can be a highly contested matter.

Here is how the debate played out in McCullen; first, the majority opinion, which held the restriction on speech outside abortion clinics to be content-neutral (though it ultimately concluded that the restriction was still too broad and thus unconstitutional):

It is true, of course, that by limiting the buffer zones to abortion clinics, the Act has the “inevitable effect” of restricting abortion-related speech more than speech on other subjects. But a facially neutral law does not become content based simply because it may disproportionately affect speech on certain topics. On the contrary, “[a] regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others.” The question in such a case is whether the law is “‘justified without reference to the content of the regulated speech.’”

The Massachusetts Act is. Its stated purpose is to “increase forthwith public safety at reproductive health care facilities.” Respondents have articulated similar purposes before this Court — namely, “public safety, patient access to healthcare, and the unobstructed use of public sidewalks and roadways.” It is not the case [as Justice Scalia’s concurrence argues] that “[e]very objective indication shows that the provision’s primary purpose is to restrict speech that opposes abortion.”

We have previously deemed the foregoing concerns to be content neutral. Obstructed access and congested sidewalks are problems no matter what caused them. A group of individuals can obstruct clinic access and clog sidewalks just as much when they loiter as when they protest abortion or counsel patients.

To be clear, the Act would not be content neutral if it were concerned with undesirable effects that arise from “the direct impact of speech on its audience” or “[l]isteners’ reactions to speech.” If, for example, the speech outside Massachusetts abortion clinics caused offense or made listeners uncomfortable, such offense or discomfort would not give the Commonwealth a content-neutral justification to restrict the speech. All of the problems identified by the Commonwealth here, however, arise irrespective of any listener’s reactions. Whether or not a single person reacts to abortion protestors’ chants or petitioners’ counseling, large crowds outside abortion clinics can still compromise public safety, impede access, and obstruct sidewalks….

[P]etitioners note that these interests “apply outside every building in the State that hosts any activity that might occasion protest or comment,” not just abortion clinics. By choosing to pursue these interests only at abortion clinics, petitioners argue, the Massachusetts Legislature evinced a purpose to “single[] out for regulation speech about one particular topic: abor­tion.”

We cannot infer such a purpose from the Act’s limited scope. The broad reach of a statute can help confirm that it was not enacted to burden a narrower category of disfa­vored speech. At the same time, however, “States adopt laws to address the problems that confront them. The First Amendment does not require States to regulate for problems that do not exist.”

The Massachusetts Legislature amended the Act in 2007 in response to a problem that was, in its experience, limited to abortion clinics. There was a record of crowding, obstruction, and even violence outside such clinics. There were apparently no similar recurring problems associated with other kinds of healthcare facilities, let alone with “every building in the State that hosts any activity that might occasion protest or comment.” In light of the limited nature of the problem, it was reasonable for the Massachusetts Legislature to enact a limited solution. When selecting among various options for combating a particular problem, legislatures should be encouraged to choose the one that restricts less speech, not more.

Justice Scalia objects that the statute does restrict more speech than necessary, because “only one [Massachusetts abortion clinic] is known to have been beset by the problems that the statute supposedly addresses.” But there are no grounds for inferring content­ based discrimination here simply because the legislature acted with respect to abortion facilities generally rather than proceeding on a facility-by-facility basis. On these facts, the poor fit noted by Justice Scalia goes to the question of narrow tailoring, which we consider below.

Here is Justice Scalia’s contrary view:

It blinks reality to say, as the majority does, that a blanket prohibition on the use of streets and sidewalks where speech on only one politically controversial topic is likely to occur — and where that speech can most effectively be communicated — is not content based. Would the Court exempt from strict scrutiny a law banning access to the streets and sidewalks surrounding the site of the Republican National Convention? Or those used annually to commemorate the 1965 Selma-to-Montgomery civil rights marches? Or those outside the Internal Revenue Service? Surely not.

The majority says, correctly enough, that a facially neutral speech restriction escapes strict scrutiny, even when it “may disproportionately affect speech on certain topics,” so long as it is “justified without reference to the content of the regulated speech.” …

The majority points only to the statute’s stated purpose of increasing “‘public safety’” at abortion clinics, and to the additional aims articulated by respondents before this Court — namely, protecting “‘patient access to healthcare … and the unobstructed use of public sidewalks and roadways.’”

Really? 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 [later in] 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. 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 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, 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 far­reaching 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,” 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.” As the majority recognizes, that provision is easy to enforce. 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.

Further contradicting the Court’s fanciful defense of the Act is the fact that subsection (b) was enacted as a more easily enforceable substitute for a prior provision. That provision did not exclude people entirely from the restricted areas around abortion clinics; rather, it forbade people in those areas to approach within six feet of another person without that person’s consent “for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education or counseling with such other person.” As the majority acknowledges, that provision was “modeled on a … Colorado law that this Court had upheld in Hill.” And in that case, the Court recognized that the statute in question was directed at the suppression of unwelcome speech, vindicating what Hill called “[t]he unwilling listener’s interest in avoiding unwanted communication.” The Court held that interest to be content neutral.

The provision at issue here was indisputably meant to serve the same interest in protecting citizens’ supposed right to avoid speech that they would rather not hear…. [For reasons given in the Hill dissents, and in articles critical of Hill, I] conclude that Hill should be overruled…. Protecting people from speech they do not want to hear is not a function that the First Amendment allows the government to undertake in the public streets and sidewalks.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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