Broken Buffers and Fragile Bubbles - McCullen V. Coakley1

Broken Buffers and Fragile Bubbles - McCullen v. Coakley1 - On June 26, 2014, the Supreme Court held that a Massachusetts law prohibiting any person from "knowingly enter[ing] or remain[ing] on a public way or sidewalk adjacent to a reproductive health care facility within a radius of 35 feet of any portion of an entrance, exit or driveway of a reproductive healthcare facility" 2 violated the First Amendment.3 While recognizing the government's legitimate interest in protecting public safety, the Court was adamant that burdens on "normal conversation" 4 do not satisfy the narrow tailoring requirement for exceptions to free expression. 5The law in question was a 2007 amendment to the Massachusetts Reproductive Health Care Facilities Act. The original version of the Act provided for an eighteen-foot buffer zone around entrances and driveways of reproductive healthcare facilities and prohibited anyone from coming within six feet of another person in that zone without that person's consent. 6 The 2007 amendment replaced the bubble zones with a blanket thirty-five-foot buffer zone.7 Both the 2000 Reproductive Health Care Facilities Act and 2007 amendment included exceptions for "(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 ri ght-of-way adjacent to such facility solely for the purpose of reaching a destination other than such facility." 8 Additionally, both versions prohibited people from knowingly obstructing the entrance of a reproductive health care facility. 9The Supreme Court's decision in McCullen reversed a prior United States Court of Appeals for the First Circuit decision that upheld the 2007 amendment. 10 The First Circuit's holding in favor of the amended act was largely based on its prior decisions denying challenges to the original version of the Reproductive Health Care Facilities Act, as well as the Supreme Court's approval of a similar Colorado statute in Hill v. Colorado.11 The 1993 Colorado statute from Hill created 100-foot buffer zones around reproductive health care facilities and eight-foot bubble zones around individual people within the buffer zones. 12 In June of 2000, the Supreme Court upheld the Colorado law in a six-to-three decision.13 That same year, Massachusetts enacted the original Reproductive Health Car e Facilities Act.14 In 2004, the First Circuit, relying on Hill v. Colorado, rejected facial challenges to the law.15 The Supreme Court denied certiorari,16 likely because of the similarity to the Colorado statute, which the Court had endorsed just five years earlier.17The current case originated when the plaintiffs brought facial and as -applied First Amendment challenges against the 2007 amendment. 18 The plaintiffs claimed to be different from protestors; they aim to have one -on-one discussions ("sidewalk counseling" sessions) with people entering the clinics. 19 The plaintiffs alleged that the 2007 amendment prevented them from having these personal conversations because the buffer zones force them to remain a significant distance from the clinics.20 Additionally, the plaintiffs contended that the statute is discriminatory because it allows clinic employees and agents to remain within the buffer zones. 21 Both the District Court for the District of Massachusetts and the First Circuit denied the challenges on the grounds that the statute satisfied the valid time, place, and manner test from Ward v. Rock Against Racism .22 Under the Ward test, "even in a public forum the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the informa tion. …