WSJ May Not Understand The Laws Behind The Buffer Zone Cases, But It Hates Them
Blog ››› ››› MEAGAN HATCHER-MAYS
Despite the fact that the Supreme Court struck down Massachusetts' abortion clinic buffer zone law, the Wall Street Journal editorial board complained that the Court didn't go further to disallow "other restrictions on abortion protests," inaccurately describing the majority opinion in the process.
On June 26, the Court ruled in McCullen v. Coakley that Massachusetts' buffer zone law violated the First Amendment because it was broader than necessary to achieve the Commonwealth's goal of promoting public safety outside of reproductive health clinics, while simultaneously declining to strike down the constitutionality of buffer zones in general. A version of the law was passed in 2000 in response to years of violent and deadly incidents outside of abortion clinics nationally and directed at Massachusetts clinics in particular. The legislature amended the law in 2007 to further help police officers enforce the law by implementing a 35-foot buffer zone around clinic entrances that prohibit anyone not on clinic business -- anti-choice protestors and pro-choice supporters alike -- from entering and remaining. The Court ultimately found that, while buffer zones are not unconstitutional in and of themselves, Massachusetts' law was not narrowly-tailored enough to support the legitimate interest in promoting public safety.
Joining and writing for the four liberal justices on the Court, Roberts limited his decision to the specific facts, and the specific petitioners in McCullen, as he struck down this specific buffer zone law. For Roberts, because the named plaintiff in this case was apparently a peaceful petitioner and not the "aggressive" type of "face-to-face" protestor who created "clashes" at the entrances of the health centers, the law regulated more speech than is allowed under the public safety rationale of constitutional buffer zones. But in a June 26 editorial, the Journal completely ignored the history of violence outside of abortion clinics across the country, and argued that Roberts "missed an opportunity to clean up one of the Court's mistakes" by failing to overturn Hill v. Colorado, a 2000 case that upheld the constitutionality of a different buffer zone law. The editorial went on to argue that the decision in McCullen "leaves too much speech in future jeopardy" because state legislatures are still free to regulate speech outside of clinics within the bounds of the First Amendment. The Journal also inaccurately claimed that Roberts confirmed that the Massachusetts law was "directed at peaceful speakers":
In McCullen v. Coakley, Chief Justice John Roberts writes that the law unconstitutionally restricts access to public sidewalks around abortion clinics in the name of "public safety" without "seriously addressing the problem through alternatives." By regulating public streets, the state directly foreclosed access to places that "developed as venues for the exchange of ideas." Restrictions must be based on misconduct, not directed at peaceful speakers.
So far, so good. The problem is that the Chief's opinion goes on to engage in contortions arguing that the Massachusetts law really wasn't trying to restrict the "content" of speech. That's critical because it means the law isn't subject to strict First Amendment scrutiny. It also means that while this Massachusetts law went too far, other restrictions on abortion protests might be allowable.
The fascinating question is why the Chief Justice refused to follow the logic of his own free-speech jurisprudence and overturn Hill v. Colorado. Perhaps he figured he would lose the four liberal Justices and thus the authority of a unanimous Court. Or perhaps he has been chastened by all of the liberal media critics who say he's too eager to overturn precedents.
The reality is that he's not eager enough, and thus the Court ends up with too many of these halfway decisions that reach the right outcome for what are often the wrong reasons. The First Amendment needs a more stalwart defender in the Chief Justice's chair.
The Journal's claim that Chief Justice Roberts had "to engage in contortions" to hold that the Massachusetts law was content and viewpoint neutral ignores the plain text of the buffer zone statute. Rather, "whether petitioners violate the Act 'depends' not 'on what they say,' but simply on where they say it." In other words, anti-choice and pro-choice supporters were free to do whatever they wanted, as long as it was outside the 35-foot buffer zone in front of reproductive health clinics. As Roberts pointed out, "petitioners [could] violate the Act merely by standing in a buffer zone, without displaying a sign or uttering a word."
Although the Journal doesn't bother to mention it, the buffer zone's obvious, stated, and still-constitutional goal was to increase public safety in light of specific instances of violence at abortion clinics in the past, including harassment, intimidation, assaults, and even a fatal shooting at a Brookline clinic in 1994. Clinics and their patients in other states have also had to deal with shootings, firebombings, and other forms of deadly violence. According to Boston Globe columnist Renée Loth, before the Massachusetts law was passed, "it was a time when women's health centers offering abortions were routinely bombed, burned, or doused with butyric acid [and] staffers received letters purporting to contain anthrax." As Roberts pointed out in his opinion, the Court has long held that a law designed to protect public safety is content neutral, even if it "may disproportionately affect speech on certain topics." By refusing to entertain the conservative justices' demand to overturn buffer zone precedent, this important governmental interest remains the constitutional justification for such protections around abortion clinics.
But the Journal ignores that it is the state's concern for the dangerous protestors -- not plaintiffs like McCullen -- that makes the law necessary. Despite these very real public safety concerns, the Journal still called on the Court to go further in future cases relating to buffer zones, potentially eliminating this real chance for states like Massachusetts to combat violence against women. Apparently, for the Journal, the free speech rights of anti-choice zealots automatically trump the freedoms of women attempting to access health care free of intimidation.
This is not, however, what McCullen held.