First Amendment: Freedom of Speech

The First Amendment’s Free Speech Clause affords special protection to certain places traditionally open for speech activities, such as sidewalks and public ways, placing a heavy burden on any government attempt to restrict speech in what the Court has identified as “traditional public fora.” But even in a public forum, the government may impose reasonable restrictions on the time, place, or manner of protected speech—so-called time-place-manner restrictions—provided those 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.

This term, the Court struck down a particular, highly controversial time-place-manner restriction in Massachusetts, ruling 9–0 in McCullen v. Coakley that a state abortion-clinic buffer-zone law was not narrowly tailored. That buffer-zone law, codified as part of the Massachusetts Reproductive Health Care Facilities Act, made 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,” which the Act defined as “a place, other than within or upon the grounds of a hospital, where abortions are offered or performed.” Petitioners, individuals who attempt to engage women approaching Massachusetts abortion clinics in “sidewalk counseling” (which involves offering information about alternatives to abortion and help pursuing those options), claimed that the 35-foot buffer zones displaced them from their previous positions outside the clinics, considerably hampering their counseling efforts. The district court and the First Circuit both ruled the Act to be a reasonable time-place-manner restriction.

Writing for the Court, Chief Justice Roberts explained that although the act is not content based and is viewpoint neutral, it is not narrowly tailored because it burdens substantially more speech than is necessary to further the government’s legitimate interests, which he identified as “maintaining public safety on streets and sidewalks and . . . preserving access to adjacent reproductive healthcare facilities.” The majority identified several other less restrictive means of achieving those goals, such as prohibiting deliberate obstruction of clinic entrances or enforcing existing traffic regulations. Justice Roberts concluded that because of the importance of the First Amendment issues at stake, Massachusetts must show that such alternative measures that burden substantially less speech would fail to achieve the government’s interests, not simply that the chosen route is easier.

Justice Scalia, joined by Justices Kennedy and Thomas, and Justice Alito concurred only in the judgment. Those Justices disputed the majority’s claim that the act is viewpoint neutral and would have instead subjected it to strict scrutiny, which it would fail. Justice Scalia noted that just this term in McCutcheon v. FEC the Court found it unnecessary to parse the differences between two available standards where a statute challenged on First Amendment grounds fails even under the less demanding test. Thus, he claims that the Court’s digression about viewpoint neutrality is pure dicta that subjects anti-abortion speech to a less rigorous constitutional standard, allowing the Court to strike down the law while maintaining a double standard on anti-abortion speech.

But because Justice Roberts found the restriction to be content and viewpoint neutral (and thus not subject to strict scrutiny), Massachusetts and other states will be able to experiment with more narrowly tailored statutes in order to maintain patients’ access to abortion providers.