Case Summary and Outcome
The U.S. Supreme Court unanimously held that a Massachusetts statute establishing 35 foot buffer zones around the entrance of abortion clinics violated the First Amendment because the restriction was overly broad. The Petitioners, who provided information to people entering clinics on the available alternative to abortion, challenged the statute on the basis that it violated their rights under the First and Fourteenth Amendments. The Court reasoned that the statute was not content-based because a violation depended on where the speech was made, not what it said; nor was it viewpoint-discriminatory because exempting employees was not tantamount to authorizing them to speak about abortion. However, it held that the statute was not narrowly tailored because the State could have used less intrusive means to promote its legitimate interest in protecting public safety.
This case involves a challenge to a Massachusetts statute which prohibited knowingly standing within 35 feet of an entrance to a facility where abortions were performed. This was an amendment to an earlier statute that had established a six-foot ‘no approach’ zone. The Petitioners included individuals engaged in “sidewalk counseling”, providing information to people entering the facilities on the options to an abortion.
The Petitioners brought suit challenging the statute, alleging that it violated their rights under the First and Fourteenth Amendments, both facially and as it applied to them. The District Court denied both challenges and said that the ‘as applied’ challenge was insufficient because as it “left petitioners ample alternative channels of communication.” The Court of Appeals affirmed and, with regard to the Petitioners’ facial challenge, said that the Act was a reasonable “time, place, and manner” regulation under the test set out in Ward v. Rock Against Racism.
The Petitioners appealed to the Supreme Court.
Chief Justice Roberts delivered the opinion of the Court reversing the Court of Appeals and remanding the case for further proceedings consistent with its opinion.
The Court noted that the place restricted by the statute, public sidewalks, is one of the traditional public fora contemplated by the protections in the First Amendment. Therefore, it said, the government was very limited in the type of speech it may restrict and, to pass scrutiny, the restriction must be a reasonable ‘time, place, and manner’ restriction that is narrowly tailored.
Petitioners argued that the act was not content-neutral because it only applied to clinics that performed abortions and, by exempting clinic employees and agents, favored one viewpoint about abortion over others, it was not viewpoint-neutral. The Court disagreed, finding that the state has a legitimate interest in safety and public access on sidewalks and there is no inference that the legislature tried to single out speech about abortion in enacting this statute. Further, the Court found insufficient evidence of employees being authorized to speak about abortion inside the buffer zones so that the exemptions in the statute did not serve to make it viewpoint-discriminatory. The Court said that the State had a legitimate reason for exempting those acting within the scope of their employment from the requirements of the Act.
Having found the Act neither content- nor viewpoint-based, the Court said it did not need not be analyzed under strict scrutiny. However, even though the Court found the Act to be content-neutral, it still had to decide whether it was “narrowly tailored to serve a significant state interest”, specifically, to survive scrutiny, the Act may not “burden substantially more speech than is necessary to further the government’s legitimate interest.” The Court said that, although the government’s interest was in promoting public safety, the buffer zones burdened substantially more speech than was necessary to achieve that interest. It said that the State could have adopted less intrusive tools to prohibit physical violence, obstructing, or harassing.
Justice Scalia (joined by Justice Kennedy and Thomas) filed a concurring opinion holding that it was unnecessary dicta for the court to decide whether the statute was content-based as the Court found that the statute was not narrowly tailored, and therefore failed under the First Amendment regardless of whether it was content-based or not.
Justice Alito filed a concurring opinion, but would have found that the statute was not viewpoint-neutral as it implicitly discriminates by disfavoring speech that criticizes the clinic.