Brief Fact Summary.
A Massachusetts statute prohibits anyone from knowingly standing on a “public way or sidewalk” within 35 feet of an entrance of driveway of abortion clinics. Petitioners approached and talked to women outside the facilities with the purpose of providing information about alternatives to abortions. The statute, however, prevented the petitioners from doing the act.
Synopsis of Rule of Law.
The First Amendment principle that the “government has no power to restrict expression because of its message, its ideas, its subject matter, or its content” applies with full force in a traditional public forum. In such a public forum, the government may not selectively shield the public from some kinds of speech just because they are more offensive than others.
It is thus no answer to say that petitioners can still be seen and heard by women within the buffer zones.View Full Point of Law
The Massachusetts Legislature enacted the Massachusetts Reproductive Health Care Facilities Act in 2000 to address clashes between abortion opponents and advocates that were occurring outside facilities where abortions were performed. The law stated that within an 35-foot radius around the entrances and driveways of the facilities, no one could knowingly approach another person to pass a leaflet, display a sign, or engage in oral protest or education. The petitioners claim, who stood outside Massachusetts abortion clinics, expressed their opposition to abortions and approached the clinics to offer information about alternatives to abortion to women.
Does the Massachusetts statute that prohibits individuals from approaching and talking to women outside but near entrances of facilities for abortions violate the First Amendment?
Yes, because even though the statute is content neutral, it is not narrowly tailored to serve a significant government interest. The statute is justified without reference to the content of the regulated speech. It is not enough for the State say that other approaches have not worked. Massachusetts have failed to seriously address the alleged problem through alternatives that leave the public forum open. The States may not do that under the First Amendment.
Justice Scalia and Alito
Scalia: As opposed to the majority’s decision, the statute should be reviewed under the strict scrutiny standard applicable to content-based legislation. This standard demands that a regulation represent “the least restrictive means” of furthering a compelling state interest. The statute’s purpose is to protect prospective clients of abortion clinics from having to hear abortion-opposing speech on public streets. The statute cannot limit its application to the single facility that has experienced the safety problems to which it is quite obviously not addressed.
Alito: The Massachusetts law discriminates based on viewpoint because it would allow a clinic employee approaching a woman outside the facility and providing helpful information about abortions. The sidewalk counselor and the clinic employee expressed opposing viewpoints, but only the first violated the statute.
The statute does not draw content-based distinctions on its face. Whether petitioners violate the statute depends not “on what they say” but simply on where they say it. The law specifically makes it a crime to knowingly “stand” in a buffer zone, even if the individual does not display any sign or speak. Moreover, the statute’s purpose which is to increase public safety at reproductive health care facilities is justified without reference to the content of the regulated speech.
However, Massachusetts have failed to demonstrate that the statute is narrowly tailored to serve a significant state interest. The buffer zones impose serious burdens on petitioners‘ speech. At three clinics in Massachusetts where petitioners attempt to counsel patients, the zones carve out a significant portion of public sidewalks, pushing petitioners back from the clinics’ entrances and driveways. This has prohibited petitioners from initiating personal conversations and offer sidewalk counseling to others. Such burden substantially more speech than necessary to achieve the State’s interest because no other states have a law that creates fixed buffer zones around abortion clinics.
Massachusetts emphasize the history in the State of obstruction at abortion clinics, and it has failed attempts to combat such obstruction. However, the State may not argue that they have tried other approaches on the books to address the problem because the last approaches Massachusetts undertook occurred 17 years ago. Since the State failed to examine and devise alternatives for the last couple of decades, the law does not overcome the First Amendment test.