Speech and expression

  • January 24, 2014
    Guest Post
    Last week, I attended the argument before the U.S. Supreme Court in McCullen v. Coakley, a case challenging Massachusetts’ law creating a 35-foot buffer zone around abortion clinics. 

    The law limits anyone from occupying the space around the entrance or driveway of an abortion clinic. These limits apply whenever people identify as pro-choice or anti-choice, and have exceptions for patients, those accompanying them into the clinic, clinic staff, those on official business, and pedestrians who happen to cross a clinic’s path while on their way somewhere else. Anyone can still distribute literature, hold signs, protest, or engage in conversation—just not within that 35-foot neutral zone to let patients through.

    During the oral arguments, Justice Antonin Scalia acknowledged that “if it was a protest, keeping them back 35 feet might not be so bad.” But then he added that this particular case is, in his view, “a counseling case, not a protest case.”
    This distinction is not warranted. Whether people shout loudly or talk softly is not the point. The statute’s goal is to diffuse congestion, not regulate speech. It simply ensures that patients have safe passage into clinics when exercising their own constitutional rights.
    In the decades since abortion was legalized in the U.S, doctors and clinic staff have been constantly threatened with harm, patients have been routinely harassed, and abortion clinics have suffered bombings, arson, and blockades. In fact, according to the National Abortion Federation, there have been eight murders, 17 attempted murders, 42 bombings, 181 incidences of arson, and thousands of incidents involving other criminal activities since 1977.
  • January 22, 2014
    Guest Post
    by Alan E. Brownstein, Professor of Law, Boochever and Bird Chair for the Study and Teaching of Freedom and Equality, UC Davis School of Law
    Massachusetts law creates a 35 foot buffer zone around the entrances of clinics that provide abortion services. As written and applied, the law prohibits even a single individual standing on a public sidewalk near a clinic’s entrance from calmly trying to counsel women against having an abortion. During last week’s oral argument in McCullen v. Coakley, many Justices appeared to be convinced that a regulation prohibiting such seemingly quiet and persuasive speech violated the First Amendment.
    Massachusetts argued the law was a permissible content-neutral attempt to eliminate congestion preventing people from safely entering and leaving clinics. The regulation satisfied intermediate level scrutiny, the appropriate standard of review, because the law served an important state interest, allowed adequate alternative avenues of communication, and did not ignore less restrictive alternatives – that is, the law did not burden substantially more speech than necessary to further its purposes.
    The Court seemed unconvinced. Several Justices returned repeatedly to a single inquiry: If the state’s goal was to prevent people from blocking access to the clinics, why couldn’t it draft a narrower, more precise law prohibiting obstruction? One or two peaceful “counselors” would not block access to a clinic. Yet the challenged law substantially burdened their ability to communicate their message. Perhaps loud protestors with signs could communicate their message 35 feet away from the targeted audience, but soft spoken counselors needed to be closer to the women they were addressing. Even Justice Kagan, who seemed somewhat sympathetic to the state’s position, suggested the 35 foot size of the buffer zone was problematic.
  • January 16, 2014
    The remarkable silence of Chief Justice John Roberts cast a pall of uncertainty over oral arguments in McCullen v. Coakley, heard yesterday morning at the Supreme Court. Adding to the unusual environment was Justice Elena Kagan, who appeared to seek a middle ground between upholding the law at hand and scrapping it altogether.
    That law is a 2007 regulation enacted by the Massachusetts state legislature, mandating a 35-foot “buffer zone” around all reproductive health centers. The petitioner, 77-year-old Eleanor McCullen, has spent every Tuesday and Wednesday morning for the last 13 years outside one such center: the Planned Parenthood clinic on Commonwealth Avenue in downtown Boston. She claims the buffer zones infringe upon her First Amendment right to free speech by making her communication with patients less effective. “It’s America,” McCullen told NPR. “I should be able to walk and talk gently, lovingly, anywhere with anybody.”
    Mark Rienzi, attorney for Ms. McCullen, advanced the argument that buffer zones are unconstitutional. Under the test for “time, place and manner” restrictions as outlined in Grayned v. City of Rockford, he explained, the buffer zones were not narrowly tailored to the state’s stated interest in preventing obstruction and congestion. For example, in response to objections from Justice Sonia Sotomayor, Rienzi noted that laws governing military funeral protests were aimed specifically at acts that disrupt “the peace and good order” of the funeral, as opposed to all activity.
    Justice Ruth Bader Ginsburg was first out of the gate with a nod to the “considerable history of disturbances” outside of reproductive health clinics and the state’s inability to pick out bad actors in advance of any given moment. Justice Stephen Breyer acknowledged the limitations of the judiciary, reminding counsel that “we’re not legislators” and suggesting that the Court did not have the basis to demand more than a “reasonable record” from policymakers. And Justice Kagan took issue with a hypothetical situation proposed by Mr. Rienzi, which featured animal rights activists who wish to persuade the employees of a slaughterhouse. “You must have used it for me to say, oh, that’s terrible,” she said. “But my reaction was kind of, ‘What’s wrong with that? Just have everyone take a step back.’”
  • December 5, 2013
    Guest Post
    by Erwin Chemerinsky, Dean and Distinguished Professor of Law, Raymond Pryke Professor of First Amendment Law and ACS Faculty Advisor, University of California, Irvine School of Law
    United States v. Apel, which I argued in the Supreme Court on December 4, involves the right to protest outside of a closed military base. Vandenberg Air Force Base, located in California, is surrounded by a fenced perimeter and entering requires going through a gate with an armed guard. About two hundred yards from the perimeter the military has painted a green line on the ground. Just outside this green line is Highway 1, Pacific Coast Highway. The military has given an easement to California for Highway 1, which is a fully open road with no signs to even indicate that it is part of the base. On the edge of Highway 1, on the public side of the green line, there is a designated protest zone.
    My client, Dennis Apel, has been protesting outside of Vandenberg Air Force Base for the last 17 years. In 2003, right before the Iraq war, he threw blood against the wall, just inside the green line, which says, “Vandenberg Air Force Base.” He was convicted of vandalism and spent a short time in jail. He was issued a bar order keeping him from the base. In 2007, he went into the base in violation of his bar letter and was given a letter permanently barring him from entering Vandenberg.
    On several occasions in 2010, he went to protest at Vandenberg. He always stayed on the public side of the green line in the public protest area on Highway 1. Military officials said that he was on base property in violation of the bar letter and ordered him to leave; when he refused he was prosecuted and convicted for violating 18 U.S.C. §1382, which prohibits entering a military base after a person has been barred.
    The United States Court of Appeals for the Ninth Circuit reversed his conviction holding that §1382 applies only if the United States has exclusive possession of the area. This is in accord with the approach followed for decades, in the Ninth Circuit and courts throughout the country.
    The United States government sought certiorari and argued that §1382 applies to all of the area owned by the United States and that national security was jeopardized by the Ninth Circuit’s approach.  There were two questions before the Supreme Court: first, does §1382 apply to this public protest zone? Second, if so, does the First Amendment protect a right to engage in peaceful protest?
  • October 4, 2013
    Guest Post
    The latest wrecking ball flailing around in the rubble of America’s election and campaign finance laws, McCutcheon v. Federal Election Commission, will be argued in the Supreme Court on October 8.  Once again we can expect counsel and some members of the Court to be on the lookout for deviant, “forbidden” thinking about money and democracy. 
    As in Citizens United in 2010, the Arizona public funding case in 2011 (American Free Enterprise Club’s Freedom Club PAC v. Bennett), and the Montana challenge to Citizens United in 2012 (American Tradition Partnership v. Bullock), the McCutcheon plaintiffs ask five members of the Court to override longstanding law,  ignore common-sense and historical conceptions of corruption, and denounce widely-shared American values such as equal participation in elections and self-government,  to impose a preference for unregulated money in elections. 
    At issue is whether the federal aggregate contribution limits (currently $48,000 to candidates and $74,000 to party committees) violate freedom of speech under the First Amendment. One plaintiff is Shaun McCutcheon, CEO of a company that services the coal and mining industry. Although he was among a handful of people who contributed hundreds of thousands of dollars to candidates and SuperPACs in the last election cycle, he claims that his freedom of speech is violated by the federal aggregate limit of $123,000. The other plaintiff is the Republican National Committee, whose members naturally wish to receive as much money as they can, and claim that the aggregate limits violate their freedom of speech.