Abrams on McCullen v. Coakley

On January 15, the Supreme Court will hear oral argument in McCullen v. Coakley, a challenge to Massachusetts’s abortion-clinic-entrance-access law.  In this case, the Court will have the opportunity to limit, or overrule, Hill v. Colorado,  ”what may well be its most indefensible First Amendment ruling so far this century,” according to First Amendment lawyer extraordinaire Floyd Abrams.  (FWIW, I tend to agree, and Hill would probably be my answer to my own exam question.)

In a WSJ op-ed, Abrams explains his antipathy to Hill and opposition to the law at issue in McCullen.  Hill upheld a Colorado statute that made it a criminal offense to approach within eight feet of another person to engage in “oral protest, education or counseling” within 100 feet of a health care facility entrance.  In effect, the Colorado law created speech-free “bubbles” around those going in or out of health care facilities.  The intent, as was quite clear at the time, was to obstruct anti-abortion protesters, and was quite overbroad, in that it extended well beyond what is necessary to prevent the obstruction of clinic entrances.  Nonetheless, the law was upheld as a content-neutral restriction.

The Massachusetts law is both more clearly focused on anti-abortion speech (it only applies to abortion clinics) and more broad, in that it prohibits anyone other than clinic employees  and patients from remaining within  35 feet of any clinic entrance.  As Abrams notes, the Massachusetts abortion-clinic-entrance-access law prohibits “peaceful, nondisruptive antiabortion advocacy via the distribution of leaflets and oral advocacy at the very places it is most likely to be effective,” and yet the rationale of Hill would seem to make that okay.

the Supreme Court decision in Hill v. Colorado (2000) provides support for just such a First Amendment limiting approach. . . .

the court was obliged to deal with the overbreadth problem. It did so by concluding that a “prophylactic approach” to the regulation of speech—one that permitted constitutionally protected speech to be regulated together with unprotected speech in order to facilitate the suppression of the latter—was constitutional. This seismic shift in First Amendment law was denounced by Justice Anthony Kennedy, in his dissent, as “contradict[ing] more than half a century of well-established principles.” “Overbreadth,” wrote Justice Kennedy, “is a constitutional flaw, not a saving feature.”

Justice Stevens’ opinion in Hill went even further. Extracting from its context a historic phrase from a dissenting opinion of Justice Louis Brandeis relating to the wiretapping of telephone calls, the opinion concluded that an “unwilling listener’s interest in avoiding unwanted communication” was one aspect of a broader “right to be let alone.” Much of the decision is based on that notion.

But, as Justice Antonin Scalia’s dissent pointed out, the Brandeis “bon mot” related to being let alone by the government—not empowering the government to suppress speech that might cause some level of discomfort. “[I]f protecting people from unwelcome communications,” Justice Scalia wrote, “is a compelling state interest, the First Amendment is a dead letter.”

Unlike many of those challenging the Massachusetts law in McCullen, Abrams himself is a supporter of abortion rights.  For him, this is just another instance of protecting speech with which he disagrees. Alas, the same is not the case with many other abortions rights supporters.  The ACLU opposed the Colorado law in Hill and the Massachusetts ACLU opposed enactment of the law at issue in McCullen. state level.  Yet now, as Abrams notes, both are on the side, filing briefs in defense of the law and explaining that their position has “evolved over time.”  As Abrams laments, it’s a shame that the ACLU (among others) put issue-specific advocacy ahead of a principled commitment to the freedom of speech.