The opinion's [PDF] syllabus get right to the point (which is a good feature for a syllabus to have):
In 2007, Massachusetts amended its Reproductive Health Care Facilities Act, which had been enacted in 2000 to address clashes between abortion opponents and advocates of abortion rights outside clinics where abortions were performed. The amended version of the Act makes it a crime to knowingly stand on a “public way or sidewalk” within 35 feet of an entrance or driveway to any “reproductive health care facility,” defined as “a place, other than within or upon the grounds of a hospital, where abortions are offered or performed.” [Mass. Gen. Laws, ch. 266, §§120E½]. The Act exempts from this prohibition four classes of individuals, including “employees or agents of such facility acting within the scope of their employment.” Another provision of the Act proscribes the knowing obstruction of access to an abortion clinic. McCullen and the other petitioners are individuals who attempt to engage women approaching Massachusetts abortion clinics in “side walk counseling,” which involves offering information about alternatives to abortion and help pursuing those options. They claim that the 35-foot buffer zones have displaced them from their previous positions outside the clinics, considerably hampering their counseling efforts. Their attempts to communicate with patients are further thwarted, they claim, by clinic “escorts,” who accompany arriving patients through the buffer zones to the clinic entrances. Petitioners sued Attorney General Coakley and other Commonwealth officials, seeking to enjoin the Act’s enforcement on the ground that it violates the First and Fourteenth Amendments, both on its face and as applied to them. The District Court denied both challenges, and the First Circuit affirmed. With regard to petitioners’ facial challenge, the First Circuit held that the Act was a reasonable “time, place, and manner” regulation under the test set forth in Ward v. Rock Against Racism.
Held: The Massachusetts Act violates the First Amendment.
(a) By its very terms, the Act restricts access to “public way” and “sidewalk,” places that have traditionally been open for speech activities and that the Court has accordingly labeled “traditional public fora.” The government’s ability to regulate speech in such locations is “very limited.” “[E]ven in a public forum,” however, “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 information.’ ”
(b) Because the Act is neither content nor viewpoint based, it need not be analyzed under strict scrutiny.
(1) The Act is not content based simply because it establishes buffer zones only at abortion clinics, as opposed to other kinds of facilities. First, the Act does not draw content-based distinctions on its face. Whether petitioners violate the Act “depends” not “on what they say,” but on where they say it. Second, even if a facially neutral law disproportionately affects speech on certain topics, it remains content neutral so long as it is “ ‘justified without reference to the content of the regulated speech.’ ” The Act’s purposes include protecting public safety, patient access to healthcare, and unobstructed use of public sidewalks and streets. The Court has previously deemed all these concerns to be content neutral. An intent to single out for regulation speech about abortion cannot be inferred from the Act’s limited scope. “States adopt laws to address the problems that confront them.” There was a record of crowding, obstruction, and even violence outside Massachusetts abortion clinics but not at other kinds of facilities in the Commonwealth.
(2) The Act’s exemption for clinic employees and agents acting within the scope of their employment does not appear to be an attempt to favor one viewpoint about abortion over the other. Given that some kind of exemption was necessary to allow individuals who work at the clinics to enter or remain within the buffer zones, the “scope of employment” qualification simply ensures that the exemption is limited to its purpose of allowing the employees to do their jobs. Even assuming that some clinic escorts have expressed their views on abortion inside the zones, the record does not suggest that such speech was within the scope of the escorts’ employment. If it turned out that a particular clinic authorized its employees to speak about abortion in the buffer zones, that would support an as-applied challenge to the zones at that clinic.
(c) Although the Act is content neutral, it is not “narrowly tailored” because it “burden substantially more speech than is necessary to further the government’s legitimate interests.” The buffer zones serve the Commonwealth’s legitimate interests in maintaining public safety on streets and sidewalks and in preserving access to adjacent reproductive healthcare facilities. At the same time, however, they impose serious burdens on petitioners’ speech, depriving them of their two primary methods of communicating with arriving patients: close, personal conversations and distribution of literature. Those forms of expression have historically been closely associated with the transmission of ideas. While the Act may allow petitioners to “protest” outside the buffer zones, petitioners are not protestors; they seek not merely to express their opposition to abortion, but to engage in personal, caring, consensual conversations with women about various alternatives. It is thus no answer to say that petitioners can still be seen and heard by women within the buffer zones. If all that the women can see and hear are vociferous opponents of abortion, then the buffer zones have effectively stifled petitioners’ message.
(2) The buffer zones burden substantially more speech than necessary to achieve the Commonwealth’s asserted interests. Subsection (e) of the Act already prohibits deliberate obstruction of clinic entrances. Massachusetts could also enact legislation similar to the federal Freedom of Access to Clinic Entrances Act of 1994, 18 U. S. C. §248(a)(1), which imposes criminal and civil sanctions for obstructing, intimidating, or interfering with persons obtaining or providing reproductive health services. Obstruction of clinic driveways can readily be addressed through existing local traffic ordinances. While the Commonwealth contends that individuals can inadvertently obstruct access to clinics simply by gathering in large numbers, that problem could be addressed through a law requiring crowds blocking a clinic entrance to disperse for a limited period when ordered to do so by the police. In any event, crowding appears to be a problem only at the Boston clinic, and even there, only on Saturday mornings.
The Commonwealth has not shown that it seriously undertook to address these various problems with the less intrusive tools readily available to it. It identifies not a single prosecution or injunction against individuals outside abortion clinics since the 1990s. The Commonwealth responds that the problems are too widespread for individual prosecutions and injunctions to be effective. But again, the record indicates that the problems are limited principally to the Boston clinic on Saturday mornings, and the police there appear per*fectly capable of singling out lawbreakers. The Commonwealth also claims that it would be difficult to prove intentional or deliberate obstruction or intimidation and that the buffer zones accordingly make the police’s job easier. To meet the narrow tailoring requirement, however, the government must demonstrate that alternative measures that burden substantially less speech would fail to achieve the government’s interests, not simply that the chosen route is easier. In any event, to determine whether someone intends to block access to a clinic, a police officer need only order him to move; if he refuses, then there is no question that his continued conduct is knowing or intentional. For similar reasons, the Commonwealth’s reliance on Burson v. Freeman, 504 U. S. 191, is misplaced. There, the Court upheld a law establishing buffer zones outside polling places on the ground that less restrictive measures were inadequate. But whereas “[v]oter intimidation and election fraud” are “difficult to detect,” obstruction and harassment at abortion clinics are anything but subtle. And while the police “generally are barred from the vicinity of the polls to avoid any appearance of coercion in the electoral process,” they maintain a significant presence outside Massachusetts abortion clinics. In short, given the vital First Amendment interests at stake, it is not enough for Massachusetts simply to say that other approaches have not worked.
708 F. 3d 1, reversed and remanded.
The court did not protect spitting on people accessing the clinic, yelling at people accessing the clinic, obstructing the clinic entrance, obstructing the sidewalk outside the clinic or even mass protesting in areas used to access the clinic.
