Petition for Writ of Certiorari — McCullen v. Coakley

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In Toe O8Ficd OF THE CLERK

Supreme Court of the Hriten States

ELEANOR MCCULLEN, JEAN BLACKBURN ZARRELLA,

GREGORY SMITH, CARMEL FARRELL, AND ERIC CADIN,

Petitioners,

MARTHA COAKLEY,

ATTORNEY GENERAL FOR THE

COMMONWEALTH OF MASSACHUSETTS,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

TODD C. ZUBLER MARK L. RIENZI

WILMERCUTLERPICKERING Counsel of Record

HALE AND DORRLLP CATHOLIC UNIVERSITY

1875 Pennsyivania Ave, NW OF AMERICA

Washington, DC 20006 COLUMBUS SCHOOL OF LAW

(202) 663-6000 3600 John McCormack Rd., NE

Washington, DC 20064

MICHAELJ. DEPRIMO (202) 319-5140

778 Choate Avenue

Hamden, CT 06518 KEVIN H. THERIOT

(203) 281-1496 ALLIANCE DEFENSE FUND

15192 Rosewood

PHILIP D. MORAN Leawood, KS 66224

PHILIP D. MORAN P.C. (913) 685-8000

265 Essex Street, Suite 202

Salem, MA 01970

(978) 745-6085

QUESTIONS PRESENTED

Massachusetts has imposed a criminal prohibition

on “enter{ing] or remain[ing] on a public way or side-

walk ... within a radius of 35 feet of any portion of an

entrance, exit or driveway of a reproductive health care

facility.” The law applies only at abortion clinics, not at

hospitals or other medical facilities. The statute ex-

empts passersby and municipal agents (such as law-

enforcement officials). It also exempts people entering

or leaving the clinic, and clinic employees acting “within

the scope of their employment.” For others, the statute

makes it a crime to stand on the public sidewalk and

display signs, distribute leaflets, pray in silence, or con-

verse with willing listeners, even when there are no in-

coming patients in or near the zone.

The questions presented are:

1. Whether the First Circuit erred in holding—

contrary to Hill v. Colorado, 530 U.S. 703 (2000), appli-

cations of Hill by other courts, and well-established

First Amendment principles—that Massachusetts’ es-.

tablishment of unique speech-free zones around abor-

tion clinics is consistent with the First and Fourteenth

Amendments.

2. If Hill permits the establishment of such zones,

whether it should be limited or overruled.

(i)

PARTIES TO THE PROCEEDING

All of the petitioners are listed in the caption on the

cover. None of the petitioners is a corporation. See

Rule 29.6. Respondent is listed in the caption on the

cover.

(ii)

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED o.oo. sceesccsccsesseecseeecsevesseceees i

PARTIES TO THE PROCEEDING ......csscccscsessessesseeeee ii

TABLE OF AUTHORITIES .......ccccesscoscosscesecossseseseoseoee vi

CPTRT IIE LIF isscseeivsnictiniesicentceeainntanrssaontacaaiis 1

Ra, | Re: Me ee 2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED 2...0...scsccscsesssescoscceessesoeene 2

UIE a cissiicisssnicisctticennnriceitsniniatieindag le cacaeee: 4

REASONS FOR GRANTING THE PETI-

I seciciiniiisisichicaiainichaasaciait ai acree ei aa ak 10

I. THE DECISION UPHOLDING A NO-SPEECH

ZONE ON PUBLIC STREETS AND SIDE-

WALKS NEAR ABORTION CLINICS CON-

a Fr a i iaisiiesiochitececinscisessancapeianttinenaiinliageariiaaenss 12

A. The First Circuit’s Approval Of A Law

That Bans All First Amendment Activ-

ity In A Public Forum Conflicts With

FEGUS visivesosinn sith iacaluldipinaiain 12

B. By Focusing Solely On Abortion Clin-

ics, The Massachusetts Act Conflicts

With Hill’s Content-Neutrality Analy-

1i.ccccctnean decease 17

C. The Statutory Preference For Clinic

Speakers Conflicts With Hill’s Re-

quirement Of Viewpoint Neutrality................. 20

(iii)

TABLE OF CONTENTS—Continued

D. This Court Should Grant The Petition

To Articulate Clear Limits On Hill, Or,

Alternatively, To Overrule Hill...................0000. 25

Il. THE DECISION BELOW CONFLICTS WITH

CoURTS OF APPEALS DECISIONS CON-

CERNING PUBLIC FORUM SPEECH RE-

NE scenic ccnicciassetehieinichainicablitbicciiliniiitatiniinsaapiat 28

A. The Decision Below Conflicts With

Other Circuits Concerning Whether

And How Governments May Establish

Speech-Free Buffer Zones..............-..cc0scscceeeeees 28

B. The Decision Below Conflicts With

Other Circuits Concerning Whether

Complete Bans On Speech In A Par-

ticular Location Are Governed By Hill

CP FOUR FF FOE esescitcanstticstnitinittntniitciinnsiien 31

CIE <iusiinlacicnsstecisssauiudsiadsliniatucimntianainciabicasnneinie’ 33

APPENDIX A: Opinion of the United States

Court of Appeals for the First Circuit af-

firming the denial of petitioners’ request

for preliminary and permanent injunctive

relief, dated July 8, 2009........ccrccorscsccesererccecsesereseseess la

APPENDIX I: The ome General’s

Guidance.............. os De Ree OO aE 27a

APPENDIX B: Memorandum of the United

States District Court for the District of

Massachusetts denying relief, dated Au-

TABLE OF CONTENTS—Continued

APPENDIX C: Order of the United States

Court of Appeals for the First Circuit de-

nying petition for rehearing and petition

for rehearing en banc, dated August 18,

APPENDIX D: Statutory Provision

Mass. Gen. Laws c. 266, § 120E 1/2..................00 125a

TABLE OF AUTHORITIES

CASES

Page(s)

Ashcroft v. American Civil Liberties Union,

Be rn Ie MIE saicitsicentesinstsicininansnsibhensncinieosenensnvaecones 24

Berger v. City of Seattle, 512 F.3d 582 (9th Cir.

RAIA RE REE Ae EO OTe OR 29

Berger v. City of Seattle, 569 F.3d 1029 (9th

Lit Tincccaihaidcithearieiniaiiadciaiesaaninenticaiensannenl 28, 29, 32

Board of Airport Commissioners v. Jews for

Jesus, 482 U.S. 569 (1987) .......ccceeccesees 10, 11, 31, 32

Board of Education, Island Trees Union Free

School District No. 26 v. Pico, 457 U.S. 853

EON Eee 27

Broadrick v. Oklahoma, 413 U.S. 601 (1973) ................ 17

Brown v. City of Pittsburgh, 2009 WL 3489838

CG CAR. CGE, BG, BI) seco seccsessccccenescctovereccecccess 26, 30, 32

City of Chicago v. Morales, 527 US. 41 (1999)............- 17

City of Ladue v. Gilleo, 512 U.S. 43 (1994) .............c0000 21

City of Los Angeles v. Alameda Books, Inc.,

Se Oe 23

Consolidated Edison Co. v. Public Service

Commission, 447 U.S. 530 (1980)............ccccseceeseeees 22

Dombrowski v. Pfister, 380 U.S. 479 (1965) ............c0020 23

First National Bank of Boston v. Bellotti,

ge. RIE IPE EE en Ee 21

First Unitarian Church of Salt Lake City v.

Salt Lake City Corp., 308 F.3d 1114 (10th

TABLE OF AUTHORITIES—Continued

Page(s)

Frisby v. Schultz, 487 U.S. 474 (1988) .0..0........cccccceeeeeee 13

Gonzales v. Carhart, 550 U.S. 124 (2007).................-20000 23

Good News Club v. Milford Central School,

BE |__| SENET Remeron ome one ea 14

Halfpap v. City of West Palm Beach, 2006 WL

5700261 (S.D. Fla. Apr. 12, 2006) (unpub-

SE sincennsicteeaionaittciceinsunnabicstidensnidiasaiiasiatibaiiannbnntontia 15, 30

Heffron v. International Society for Krishna

Consciousness, 452 U.S. 640 (1981) ..............ceeeeeeeeee 14

Hiil v. Colorado, 530 U.S. 703 (2000)................e00 passim

Hoye v. City of Oakland, 642 F.. Supp. 2d 1029

CG ek Ge. SEND asncceicibicncabniuiiohhappasmsniaaacctniaes 21, 26, 31

Huminski v. Corsones, 396 F.3d 53 (2d Cir.

ITI viscid ictal 32

Kovacs v. Cooper, 336 U.S. 77 (1949).........cccccsssscceeenseees 12

Lovell v. City of Griffin, 303 U.S. 444 (1988)..............-+ 14

McGuire v. Reilly, 260 F.3d 36 (1st Cir. 2001)..... passim

McGuire v. Reilly, 386 F.3d 45 (1st Cir.

STD vichassnicsiabatseunadilalieiascidhieeibasicadscailidiiatcdihseaacta 5, 9, 21, 22

McQueary v. Stumbo, 453 F. Supp. 2d 975

ee Be: I orcicccachseichonscceiecaeciiseiioteaianiabaiobeden 30

Menotti v. City of Seattle, 409 F.3d 1113 (9th

ARR atin ns or ee reo NTO AO ne TO 26

New York ex rel. Spitzer v. Operation Rescue

National, 273 F.3d 184 (2d Cir. 2001)...................--. 15

New York v. Ferber, 458 U.S. 747 (1982) .............cceess« 31

viii

TABLE OF AUTHORITIES—Continued

Page(s)

Parks v. Finan, 385 F.3d 694 (6th Cir. 2004)................ 32

Phelps-Roper v. Nixon, 545 F.3d 685 (8th Cir.

Sin cssehoacdeeeceddseaninscencaleesenenadshiasetiaslnnenaiamneiieaaddibctaiinnsingas 29, 30

Phelps-Roper v. Strickland, 539 F.3d 356 (6th

A iid siecle etn adsceadeaeumaieninhbeginaneensbublenesmneben 26

Police Department of Chicago v. Mosley,

Re Ss HU cibtetieasentacetistendeincsncecctnetsintcioniiinn 20, 25, 27

R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) ....... 21, 24

Railway Express Agency, Inc. v. New York,

LS |, Eee 21

Rosenberger v. Rector, 515 U.S. 819 (1995) ............c0000 20

Schenck v. Pro-Choice Network, 519 U.S. 357

cic 13

Schneider v. State, 308 U.S. 147 (1989) ............eseeeeeees 16

Shuger v. State, 859 N.E.2d 1226 (Ind. App.

SUITE eiuiiuiddti nici ttadsunsasentiadinmeniaainanbabisiniieainiinieindiiapennesaeneh 26

Spingola v. Village of Granville, 39 Fed. Appx.

£2. OO 26

Thomas v. Chicago Park District, 534 U.S. 316

co ca taiensanasbantonis 25

Turner Broadcasting System, Inc. v. FCC, 512

I ar acedamsinemiienitn 24

United States v. Grace, 461 U.S. 171 (19838)............. 14, 27

United States v. Playboy Entertainment

Group, Inc., 529 U.S. 803 (2000) -.............00-ceeeeseeeees 24

TABLE OF AUTHORITIES—Continued

Page(s)

Ward v. Rock Against Racism, 491 U.S. 781

(RD) cciscchinccosenasieadateae aE istaitiencnsnartycovscsscoceccocces 15

Washington State Grange v. Washington State

Republican Party, 128 S. Ct. 1184 (2008)............... 31

CONSTITUTIONAL AND STATUTORY PROVISIONS

U.S. Const.

SENDING. F cccccesssnsse Ett istincttcessncsscescoceccccceccccee 2

QOTUGUNE,. TEE V ceccneee ee itirttcettaveceesseercocececeseecceee 2

BS UG, © ee cacao cccenvcocvcccccccece 5

28 U.S.C.

| Ta 2

Code. Bee v. SiR, © Beet tiatitbastsaseessccccccnsccscccccccerveccees 4

Mass. Gen. Laws

Bb, SR, Bh Se acseee att atinettanenscnessececereeccccecececeee 5

Te 2, 5, 6, 19

Con, BOG, Titra iccenececccesccccconce passim

OTHER AUTHORITIES

ACLU Amicus Br., Hill v. Colorado, 530 U.S.

703, avatlable at 1999 WL 1045141 2.0... ceccccceeee 27

AFL-CIO Amicus Br., Hill v. Colorado,

530 U.S. 708, available at 1999 WL 1084471.......... 27

Chen, Alan K., Statutory Speech Bubbles, First

Amendment Overbreadth, and Improper

Legislative Purpose, 38 Harv. C.R.-C.L. L.

FROG, Bb Cte aiettenenertatensecevseccecceccccecere 28

TABLE OF AUTHORITIES—Continued

Page(s)

Colloquium, Professor Michael W. McConnell’s

Response, 28 Pepp. L. Rev. 747 (2001)................00+- 28

Oral Argument Transcript, McMullen v. Coak-

ley, No. 08-2310 (Ist Cir. May 5, 2009),

available at 2009 WL 1346643 ...............ccc-cccesceeseeseess 16

PETA Amicus Br., Hill v. Colorado, 530 U.S.

708, available at 1999 WL 1082802 ...............--ccc-c-e- 26

Raskin, Jamin B. & Clark L. LeBlanc, Disfa-

vored Speech About Favored Rights: Hill v.

Colorado, the Vanishing Public Forum

and the Need for an Objective Speech Dis

crimination Test, 51 Am. U.L. Rev. 179

Sullivan, Kathleen M., Sex, Money, and

Groups: Free Speech and Association De-

cisions in the October 1999 Term, 28 Pepp.

FP | Rr re IN 28

Webster’s Third New International Dictionary

ITI anicccnensnnsniinisapatianahaminnineasadtadimsadiantamiadatmicanimiia 13

IN THE

Supreme Court of the United States

No. 09-

ELEANOR MCCULLEN, JEAN BLACKBURN ZARRELLA,

7REGORY SMITH, CARMEL FARRELL, AND ERIC CADIN,

Petitioners,

Vv.

MARTHA COAKLEY,

ATTORNEY GENERAL FOR THE

COMMONWEALTH OF MASSACHUSETTS,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

OPINIONS BELOW

The opinion of the court of appeals affirming the

denial of petitioners’ request for preliminary and per-

manent injunctive relief (App. la-28a) is reported at

571 F.3d 167. The order denying petitioners’ petition

for rehearing or rehearing en banc is included at App.

123a-124a. The opinion of the district court denying re-

lief (App. 29a-122a) is reported at 573 F. Supp. 2d 382.

JURISDICTION

The judgment of the court of appeals was entered

on July 9, 2009. Plaintiffs’ petition for rehearing or re-

hearing en banc was denied on August 18, 2009. The

jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The First Amendment to the United States Consti-

tution provides in relevant part:

Congress shall make no law ... abridging the

freedom of speech, or of the press ....

The Fourteenth Amendment to the United States

Constitution provides in relevant part:

No State shall make or enforce any law which

shall abridge the privileges or immunities of

citizens of the United States; nor shall any

State deprive any person of life, liberty, or

property, without due process of law; nor deny

to any person within its jurisdiction the equal

protection of the laws.

Chapter 266, Section 120E1/2 of the Massachusetts

General Laws (“the Act”), is reprinted in full at App.

125a-127a. In relevant part, Section 120E1/2 provides:

(a) For the purposes of this section, “reproduc-

tive health care facility” means a place, other

than within or upon the grounds of a hospital,

where abortions are offered or performed.

(b) No person shall knowingly enter or remain

on a public way or sidewalk adjacent to a re-

productive health care facility within a radius

of 35 feet of any portion of an entrance, exit or

driveway of a reproductive health care facility

or within the area within a rectangle created by

extending the outside boundaries of any en-

trance, exit or driveway of a reproductive

health care facility in straight lines to the point

where such lines intersect the sideline of the

street in front of such entrance, exit or drive-

way. This subsection shall not apply to the fol-

lowing:-—

(1) persons entering or leaving such facil-

ity;

(2) employees or agents of such facility act-

ing within the scope of their employment;

(3)law enforcement, ambulance, fire-

fighting, construction, utilities, public

works and other municipal agents acting

within the scope of their employment; and

(4) persons using the public sidewalk or

street right-of-way adjacent to such facility

solely for the purpose of reaching a desti-

nation other than such facility.

(d) Whoever knowingly violates this section

shall be punished, for the first offense, by a fine

of not more than $500 or not more than three

months in a jail or house of correction, or by

both such fine and imprisonment, and for each

subsequent offense, by a fine of not less than

$500 and not more than $5,000 or not more than

two and one-half years in a jail or house of cor-

rection, or both such fine and imprisonment.

STATEMENT

In 2007, Massachusetts enacted a law that creates

no-speech zones on the public streets and sidewalks

outside abortion clinics. For 35 feet in every direction

from every entrance, exit, or driveway of an abortion

clinic, the Act prohibits speakers from engaging in

peaceful speech, including the distribution of leaflets,

display of signs, consensual conversation, and commu-

nication with others from a normal conversational dis-

tance. Relying largely on this Court’s decision in Hill

v. Colorado, 530 U.S. 703 (2000), the First Circuit found

these abortion-specific no-speech zones to be neutral,

narrowly tailored, and not substantially overbroad.

1. The 2007 statute at issue in this case replaced a

law enacted by the Massachusetts legislature in 2000

that restricted certain speech-related conduct on public

streets and sidewalks outside abortion clinics. The

statute adopted by Massachusetts in 2000 prohibited

making close, physical approaches within six feet of

unwilling listeners outside abortion clinics. The law

was designed to address “violence and aggressive be-

havior” outside the clinics. McGuire v. Reilly, 260 F.3d

36, 39 (ist Cir. 2001) (McGuire J) (reversing entry of

preliminary injunction). The Massachusetts legislature

partially modeled that law on a ban on unwanted physi-

cal approaches upheld in Hill. See McGuire I, 260 F.3d

at 40.

In Hill, this Court upheld a Colorado statute that

made it a crime to “knowingly approach another person

within eight feet of such person, unless such person

consents.” Hill, 530 U.S. at 707 n.1 (quoting Colo. Rev.

Stat. § 18-9-122(3)). The Court’s analysis in Hill relied

heavily on the fact that the Colorado law barred only

physical approaches and left open other means of com-

munication. Thus the Court noted that the law’s 8-foot

distance “certainly can make it more difficult for a

speaker to be heard,” but found that (i) the 8-foot dis-

tance still allows a speaker to communicate with an

unwilling listener from a “normal conversational dis-

tance,” id. at 726-727, and (ii) that the ban on close

physical approaches did not preclude stationary sign-

holding, and did not prevent a leafletter from “simply

standing [inside the zone] near the path of oncoming

pedestrians and proffering his or her material ... which

the pedestrians can easily accept.” Jd. at 727. Because

the prohibition on close, unwanted approaches applied

equally at all health care facilities (not just abortion

clinics), and to all speakers (not just abortion oppo-

nents), the Court found the law content- and viewpoint-

neutral. Id. at 714, 726-727.

Relying largely on Hill, the First Circuit upheld

the 2000 statute against a First Amendment challenge

in McGuire I, 260 F.3d at 51, and McGuire v. Reilly,

386 F.3d 45, 65-66 (Ist Cir. 2004) (McGuire ID) (affirm-

ing constitutionality of the floating no-approach law).

Massachusetts justified its Hill-inspired prohibition on

close, unwanted approaches outside abortion clinics on

the basis of the purported inadequacy of existing laws

already regulating objectionable conduct on the public

sidewalks outside these locations. For example, federal

law makes it illegal to “obstruct{], intentionally injure[],

intimidate[] or interfere[]’ with access to reproductive

health services. See 18 U.S.C. § 248. Massachusetts

law separately prohibits interfering with any person’s

exercise of a constitutional right, G.L. c. 265, § 37, or

obstructing access to any medical facility, G.L. c. 266,

§ 120E (2000).' The First Circuit accepted this ration-

ale, upholding the 2000 no-approach law as a prophylac-

tic measure because existing laws “cast wider nets”

that might catch “big fish” but otherwise “would let the

fingerlings through.” McGuire I, 260 F.3d at 49.”

2. In 2007, Massachusetts amended its 2000 no-

approach law. Although there was no evidence of a

single prosecution in the preceding six years under any

state, federal or local law directly targeting obstruc-

tion, intimidation, or violence at abortion clinics in Mas-

sachusetts, and although the State has never proven

even a single violation of the no-approach law, the legis-

lature heard testimony from pro-choice advocates and

law enforcement officers that existing law had not

solved the problem of confrontational protesters at

abortion clinics, that enforcement of the no-approach

zone was difficult, and that a 35-foot zone “where no

protesters can go ... would be great ... [and] would

make our job so much easier.” App. 57a. The legisla-

' Notably, when regulating activity outside all medical facili-

ties, Massachusetts carefully focuses on outlawing only actual in-

terference with access, expressly preserving “rights to engage in

peaceful picketing which does not obstruct entry or departure.”

G.L. c. 266 § 120E.

2In response to a petition for certiorari, the State argued,

among other things, that the 2000 law “restrict{[ed] only conduct”

and that “whether a narrowly tailored floating buffer zone stat-

ute—restricting no speech but only non-consensual ‘approaches’—

violates the First Amendment” had been resolved in Hill. 04-939

Br. in Opp. 13-14. The State also argued that review was “particu-

larly unwarranted” because there was no evidence that the

“unique facts” concerning the 2000 Act were “replicated in other

settings across the country.” Jd. at 13. This Court denied review.

544 U.S. 974 (2005).

ture adopted the amendments over the opposition of,

among others, the American Civil Liberties Union of

Massachusetts, which opposed the law “mainly on

overbreadth grounds.” App. 58a.

The new legislation. changed the no-unconsented-

approach zone around abortion clinics into a no-entry-

to-speak zone. Now the Act establishes a zone on the

public streets and sidewalks extending 35 feet in all di-

rections from “any portion of an entrance, exit or

driveway of a reproductive health care facility.” Act

§ 120F1/2(b) (App. 125a). The Act makes it illegal to

“enter or remain” in this part of public streets and side-

walks, and provides for prison terms of up to 30

months, criminal fines of up to $5,000, and equitable re-

lief. Act § 120E1/2(d) and (f) (App. 125a-127a).

Unlike the statute sustained by this Court in Hili,

the revised Act does not apply to all health care facili-

ties. Indeed, it does not apply to hospitals at all.

Rather, the Act defines a protected “reproductive

health care facility” as “a place, other than within or

upon the grounds of a hospital, where abortions are of-

fered or performed.” Act § 120E1/2(a) (emphasis

added) (App. 125a).

Also unlike the statute in Hill, the Act does not ap-

ply to all speakers. In addition to passersby and “mu-

nicipal agents” (such as police and firefighters), the Act

specifically exempts from its prohibitions all “persons

entering or leaving” an abortion clinic and, separately,

all “employees or agents of [a clinic] acting within the

scope of their employment.” Act § 120E1/2(b)(1}{(2)

(App. 125a).

Finally, unlike the statute in Hill, which focused

exclusively on close, unwanted approaches toward un-

willing listeners, the Act prohibits non-exempt persons

from entering and remaining in the zone for any pur-

pose. Act § 120E1/2(b) (App. 125a). Non-exempt

s ers are prohibited from offering leaflets, display-

ing signs, engaging in conversation with even willing

listeners, speaking with others at a “normal conversa-

tional distance,” or even merely remaining stationary

and silently holding signs on public streets and side-

walks anywhere inside the zone. Compare Hill, 530

US. at 726-727. Indeed, the Act prohibits all such ac-

tivity even if there are no listeners in the zone at all.

Act § 120E1/2(b) (App. 125a).

3. Petitioners regularly station themselves on pub-

lic sidewalks near abortion clinics to offer women in-

formation about, and assistance in pursuing, alterna-

tives to abortion. On January 16, 2008, petitioners sued

to enjoin enforcement of the Act, arguing that it vio-

lates the First and Fourteenth Amendments. Jurisdic-

tion was invoked under 28 U.S.C. § 1331.

4. On May 14, 2008, the district court held a bench

trial on a stipulated record relating to petitioners’ facial

challenges.’ In an opinion issued on August 22, 2008, it

upheld the Act as a content-neutral time, place, and

manner regulation. App. 29a-122a.

5. The court of appeals affirmed. App. la-28a. It

began by stating that petitioners’ arguments about the

Act’s exclusive focus on abortion clinics “were ad-

>The Court severed and stayed the Petitioners’ “as-applied”

challenge. None of the plaintiffs has violated or been arrested or

threatened with arrest for violating the Act. The “as-applied”

challenge, therefore, focuses simply on the impact of the Act on

particular clinics in light of, for example, the width of certain side-

walks, the usual placement of snow piles during inclement

weather, and other clinic-specific issues.

dressed in our earlier decisions ... [which] render su-

perfluous any exegetic discussion.” App. 13a (citing

McGuire I, 260 F.3d at 44-47 and McGuire II, 386 F.3d

at 56-59). Thus, although it recognized that the legisla-

ture “was plainly moved to enact the statute by the sec-

ondary effects of anti-abortion protests,” App. 21a (em-

phasis added), the court found any disparate impact on

abortion speech did not result from “a content-based

preference.” App. 13a.

The court likewise concluded it is not discrimina-

tory to permit speakers associated with the abortion

clinics free use of the sidewalks, stating that argument

“was squarely raised and squarely repulsed” in

McGuire I. App. 13a (citing McGuztre I, 260 F.3d at 45-

47), see also App. 14a (“The decisive question in a facial

challenge is not whether a regulation is necessary to

achieve the legislature’s stated goal, but, rather,

whether a court can glean legitimate reasons for its ex-

istence.”). Finding the employee exception “reasonably

related” to legitimate government public safety objec-

tives, the court rejected claims that it renders the stat-

ute content- or viewpoint-based or raises any Equal

Protection concern. App. 14a.

The court found that the Act is narrowly tailored

and leaves open ample alternative channels of commu-

nication. App. 15a-20a. The court dismissed as “je-

june” petitioners’ claims that the expanded reach of the

statute outlaws peaceful leafletting on public sidewalks

and restricts petitioners from speaking to listeners

from the “conversational distance” discussed in Hill.

App. 18a. It held that “the Constitution neither recog-

nizes nor gives special protection to any particular con-

versational distance,” and that even “handbilling is not

specially protected.” Id. It relied on Hill for the propo-

sition that time, place, and manner restrictions “rou-

tinely make particular forms of expression impractica-

ble without raising constitutional concerns.” /d. (citing

Hill, 530 U.S. at 726-728).

As to alternative channels of communication, the

court stated that, in a facial challenge, “as long as we

can envision circumstances in which a 35-foot buffer

zone allows adequate alternative means of expression,

the challenge must fail.” App. 19a. Observing that pe-

titioners retain their rights outside the zone to “speak,

gesticulate, wear screen-printed T-shirts, display signs,

use loudspeakers, and engage in the whole gamut of

lawful expressive activities,” and that “{aJny willing lis-

tener is at liberty to leave the zone [and] approach

those outside it,” the court found ample alternative

channels. /d.

As to overbreadth, the court found the legislature’s

change from a ban on close physical approaches toward

unwilling listeners to a total ban on all First Amend-

ment activity to be “not a matter of constitutional sig-

nificance.” App. 2la. The court found the case “readily

distinguishable” from the exclusion of First Amend-

ment activity on airport premises struck down in Board

of Airport Commissioners v. Jews for Jesus, 482 U.S.

569 (1987), because “this case involves a time, place,

and manner restriction” and the Supreme Court in Hill

“left no doubt but that time-place-manner restrictions

should not be analyzed in the same way as direct bans

on speech.” App. 21a.

REASONS FOR GRANTING THE PETITION

First, review is appropriate to correct the First

Circuit’s misapplication of Hill, which raises important

questions requiring resolution by this Court. The First

Circuit mistakenly read Hill to permit abortion-

specific, speaker-specific restrictions on peaceful

speech that does not involve physical approaches to

unwilling listeners. Massachusetts has simply aban-

doned all of the safeguards on which Hill critically re-

lied—applicability at all medical facilities, applicability

to all speakers, and preservation of the right to engage

in all speech while avoiding close physical approaches

to unwilling listeners. Nothing in Hill permits the gov-

ernment to create this type of permanent no-speech

zone on public streets and sidewalks, nor to do so only

when and where abortions are performed.

Hill is frequently cited and has been used by courts

to analyze speech restrictions at a wide range of loca-

tions. The First Circuit’s misreading of Hill—

beginning with the McGuire cases and continuing with

the decision below—has led other courts to permit

much more targeted and restrictive laws than Hill ac-

tually allows. The Court should grant the petition to

make clear that Hill was a narrow decision pronounc-

ing an outer boundary of permissible regulation, not a

license to ban peaceful speech to willing listeners on

public sidewalks. Alternatively, if it permits such re-

strictions, Hill should be overturned.

Second, the decision below directly conflicts with

decisions of other circuit courts on at least two First

Amendment issues. The First Circuit’s decision below

(together with a decision from the Third Circuit) con-

flicts with decisions from the Eighth and Ninth Circuits

that have rejected speech-restriction zones that go be-

yond merely protecting listeners from unwanted, har-

assing speech. The First Circuit’s decision (again, to-

gether with a decision from the Third Circuit) also con-

flicts with decisions from the Second, Sixth, Ninth, and

Tenth Circuits, which have held that this Court’s deci-

sion in Jews for Jesus, 482 U.S. 569, applies to complete

bans on speech in public forums, even after this Court’s

decision in Hill. The Court should grant the petition to

resolve these conflicts widened by the decision below.

L THE DECISION UPHOLDING A NO-SPEECH ZONE ON

PUBLIC STREETS AND SIDEWALKS NEAR ABORTION

CLINICS CONFLICTS WITH HILL

A. The First Circuit’s Approval Of A Law That

Bans All First Amendment Activity In A Pub-

lic Forum Conflicts With Hill

The decision below purported to rely on Hill to au-

thorize a complete prohibition on public forum speech

within 35 feet of each door and driveway of an abortion

clinic.

In Hill, however, the Court relied heavily on the

fact that the Colorado law barred only physical ap-

proaches and left open other means of communication.

For example, the Court noted that the law “does not

affect demonstrators with signs who remain in place.”

530 U.S. at 726. The Court also stressed that Colo-

rado’s ban on close physical approaches did not prevent

a leafletter from “simply standing [inside the zone] near

the path of oncoming pedestrians and proffering his or

her material ... which the pedestrians can easily ac-

cept.” Id. at 727. In short, the Court recognized that

the “First Amendment protects the right of every citi-

zen to ‘reach the minds of willing listeners and to do so

there must be opportunity to win their attention.’” Jd.

at 728 (quoting Kovacs v. Cooper, 336 U.S. 77, 87

(1949)). The Court held that the Colorado statute

“adequately protected those rights because, even

though the law’s 8-foot distance “certainly can make it

more difficult for a speaker to be heard,” the law still

allowed a speaker to communicate with an unwilling

listener from a “normal conversational distance.” Jd. at

726-727 (contrasting the 8-foot zone with the 15-foot

zone rejected in Schenck v. Pro-Choice Network, 519

U.S. 357, 377 (1997); “Once again it is worth reiterating

that only attempts to address unwilling listeners are

affected.”). The Court found Colorado’s no-approach

law narrowly tailored to the State’s interest in protect-

ing incoming patients “from unwanted encounters.” Jd.

at 729. The court below ignored this aspect of Hill and

upheld a statute that effectively criminalizes all speech

on a public sidewalk—regardless of whether the speech

involves any physical approach or unwilling listeners.

Indeed, the First Circuit was able to reach this conclu-

sion only by ignoring multiple precedents of this Court.

The First Circuit, for example, did not even at-

tempt to explain how peaceful conversations with will-

ing listeners on a public sidewalk could ever be an “ap-

propriately targeted evil,” Frisby v. Schultz, 487 U.S.

474, 485 (1988), nor how consensual conversations could

plausibly implicate the public safety concerns asserted

by the State. Nor did the court discuss how the Act’s

prohibition on stationary sign-holding, silent prayer, or

peaceful offers of assistance and information could ever

be “appropriately targeted evils” that raise the state’s

legitimate concerns under Hill. Nor did it explain how

Hill could govern speech restrictions when no listeners

are in the zone.

To the contrary, the First Circuit dismissed con-

cerns that the Act outlaws peaceful handbilling and

speech with willing listeners from a conversational dis-

tance on public sidewalks as “jejune.” App. 18a. In-

. According to Webster’s Third New International Dictionary

1213 (2002), “jejune” means: “devoid of interest or significance ...

giving evidence of lack of experience or information ... immature,

juvenile, puerile.”

stead of considering this Court’s express holdings in

Hill, the court treated Hill as holding broadly that

time-place-manner regulations “routinely make par-

ticular forms of expression impracticable without rais-

ing constitutional concerns.” App. 18a. Based upon

this misreading of Hill, the court found that Massachu-

setts’ significant expansion of the Act—from a no-

approach zone to a no-entry-to-speak zone—was simply

“not a matter of constitutional significance.” App. 21a.

The First Circuit also inexplicably found that

“handbilling is not specially protected.”” App. 18a.

This is simply wrong. Handbilling in the public forum

is a core First Amendment activity protected by the

First Amendment’s speech and press provisions. See,

e.g., Lovell v. City of Griffin, 303 U.S. 444, 452 (1938).

Indeed, this Court’s opinion in Hill provided detailed

analysis of the “more serious” burden on handbilling

imposed by Colorado, and upheld the law only because

even unwilling recipients could be offered and easily

accept handbills by a stationary leafletter. 530 U.S. at

727; see also United States v. Grace, 461 U.S. 171, 180

(1983) (“The inclusion of the public sidewalks within the

scope of [the] prohibition [on signs and leafleting] re-

sults in the destruction of public forum status that is at

> "The court’s only citation for this pronouncement was Hef-

fron v. International Soc'y for Krishna Consciousness, 452 U.S.

640 (1981). But Heffron is not a traditional public forum case, see

id. at 655, and therefore does nothing to reduce the protections

afforded by the Constitution and this Court’s cases to peaceful

handbilling in the public forum. See Good News Club v. Milford

Central School, 533 U.S. 98, 106 (2001) (“If the forum is a tradi-

tional or open public forum, the State’s restrictions on speech are

subject to stricter scrutiny than are restrictions in a limited public

forum.”).

least presumptively impermissible.”). In fact, this

Court explained in Ward v. Rock Against Racism, why

a ban on leafleting would not be permissible: “A ban on

handbilling, of course, would suppress a great quantity

of speech that does not cause the evils that it seeks to

eliminate, whether they be fraud, crime, litter, traffic

congestion, or noise. For that reason, a complete ban

on handbilling would be substantially broader than nec-

essary to achieve the interests justifying it.” 491 U.S.

781, 799 n.7 (1989).

Likewise, the First Circuit dismissed petitioners’

charge that the Act prohibited them from addressing

their intended audience from a “normal conversational

distance,” declaring that “the Constitution neither rec-

ognizes nor gives special protection to any particular

conversational distance.” App. 18a. This Court held to

the contrary in Hill: “More significantly, this statute

does not suffer from the failings that compelled us to

reject the ‘floating buffer zone’ in Schenck. Unlike the

15-foot zone in Schenck, this 8-foot zone allows the

speaker to communicate at a ‘normal conversational

distance.’” 530 U.S. at 726-727; see also New York ex

rel. Spitzer v. Operation Rescue National, 273 F.3d 184,

204 (2d Cir. 2001) (“The zone imposes a severe burden

on First Amendment rights by effectively preventing

protestors from picketing and communicating from a

normal conversational distance”). In contrast, the

Massachusetts Act precludes much normal conversa-

5700261, at *21, 24 (S.D. Fla. Apr. 12, 2006) (unpublished) (striking

down 20-foot fixed buffer zone at medical facilities because this

Court “found in Schenk [sic] and reaffirmed in Hill that a fifteen

foot zone did not allow the speaker to communicate at a ‘normal

conversational distance.’ ”).

tion by forcing speakers to remain beyond a 35-foot ra-

dius from clinic entrances, exits, and driveways.

The Act’s complete ban on all First Amendment ac-

tivity within the zone also does not leave open ample

alternative avenues of communication. As set forth

above, all of the avenues preserved in Hill are illegal

here. Gone is the right to address willing listeners.

Gone is the right to stand still on the sidewalk holding a

sign. Gone is the right to distribute leaflets. Gone is

the right to offer help at a normal conversational dis-

tance. Instead, the court below simply suggested that

petitioners may go elsewhere if they wish to “speak, ...

wear screen-printed T-shirts, display signs, ... [or] en-

gage in ... lawful expressive activities.” App. 19a. But

petitioners have the right to engage in such “lawful ex-

pressive activities” on public sidewalks; offering them

the privilege to speak elsewhere is insufficient. “[O}ne

is not to have the exercise of his liberty of expression in

appropriate places abridged on the plea that it may be

exercised in some other place.” Hill, 530 U.S. at 781-82

(Kennedy, J., dissenting) (quoting Schneider v. State,

308 U.S. 147, 163 (1939)).

Indeed, the scope of criminal liability under the

Massachusetts statute extends even beyond activists

working against abortion. Both the lower courts and

the Attorney General have been quite candid in ac-

knowledging that the Act makes it illegal for passersby

to discuss abortion, talk about “partisan” issues, wear

political t-shirts or buttons, or even wear clothing with

a Cleveland Indians logo. See, e.g., App. 116a (inter-

preting the Act to prohibit even passersby from wear-

ing shirts “with abortion-related or partisan messages”

in the zone); see Oral Arg. Tr., May 5, 2009, available at

2009 WL 1346643, at *9 (State concession that a person

wearing a Cleveland Indians shirt while passing

through the zone could be in violation of the Act); id. at

*10 (State concession that passersby singing “We Shall

Overcome” would “have to suspend” their singing as

they passed through the zone). The statute likewise

prohibits a wide range of speech having nothing to do

with the State’s asserted interests including: newspa-

per sales, charitable solicitations, labor organizing, peti-

tion circulation, or even just speaking on a cell phone.

This chill on speech of third parties not before the

Court is unacceptable. Neither Hill nor any other deci-

sion of this Court countenances these broad restrictions

on peaceful expressive activity on public streets and

sidewalks. Thus, the illegitimate sweep of the statute

renders it unconstitutionally overbroad. See, e.g., City

of Chicago v. Morales, 527 U.S. 41, 52 (1999) (The over-

breadth doctrine “permits the facial invalidation of laws

that inhibit the exercise of First Amendment rights if

the impermissible applications of the law are substan-

tial when ‘judged in relation to the statute’s plainly le-

gitimate sweep.’ ” (quoting Broadrick v. Oklahoma, 413

US. 601, 615 (1973))).

B. By Focusing Solely On Abortion Clinics, The

Massachusetts Act Conflicts With Hill’s Con-

tent-Neutrality Analysis

Even if such a complete ban on peaceful speech in

the public forum were constitutionally permissible, the

Act is not neutral because its speech restrictions are

solely dependent on the presence or absence of a single,

often-protested activity—abortion. Unlike the statute

at issue in Hill—which applied broadly at all health

care facilities—the Massachusetts speech restrictions

apply only to locations “where abortions are offered or

performed.” Act § 120E1/2(a}-(b) (App. 125a).

This singling-out of abortion is hardly accidental:

the legislature was deliberately targeting abortion pro-

testers. See App. 76a (noting legislature’s desire to ad-

dress “deleterious” effects “of anti-abortion protests”

while otherwise “restrict[ing] as little speech as possi-

ble”). Indeed, when considering how the statute ap-

plied to speech on issues other than abortion, the First

Circuit found that “anti-abortion protest[] ... falls squa-

rely within the hard core of the proscriptions.” App.

26a.

The courts below excused this targeting by relying

on Hill—*“ ‘Just as targeting medical centers did not

render Colorado’s counterpart statute content based, so

too the Act’s targeting of [only abortion clinics] fails to

undermine its status as a content neutral regulation.’ ”

App. 76a (quoting McGuire I, 260 F.3d at 44). In so

holding, the lower courts disregarded this Court’s rea-

soning that all patients at all health care facilities share

interests in avoiding confrontational speech. Hill fur-

ther explained that a speech-restrictive statute “lends

itself to invidious use if there is a significant number of

communications, raising the same problem that the

statute was enacted to solve, that fall outside the stat-

ute’s scope, while others fall inside.” 530 U.S. at 723.

Colorado’s no-approach statute, the Court stressed, did

not “distinguish among speech instances that are simi-

larly likely to raise the legitimate concerns to which it

responds.” Jd. at 724. To the contrary, the “constitu-

tional{ly] significan{t?’ point was that “all persons en-

tering or leaving [all] health care facilities share[d] the

interests served by the statute.” Jd. at 731. In assess-

ing content-neutrality, “the comprehensiveness of the

statute [was] a virtue, not a vice, because it [was] evi-

dence against there being a discriminatory governmen-

tal motive.” Jd. Indeed, the Court explained that it

was “precisely because the Colorado Legislature made

a general policy choice that the statute [was properly]

assessed under the constitutional standard” for time,

place and manner restrictions, rather than a stricter

standard. Jd. (emphasis added).

Massachusetts’ decision to create speech restric-

tions that apply only when and where abortions are

performed is the exact opposite of the “general policy

choice” that the Court found justified intermediate

scrutiny in Hill. See 530 U.S. at 731. As the lower

courts candidly acknowledged, the Act was designed to

target anti-abortion protests while regulating as little

other speech as possible. App. 21a, 76a. At all other

medical facilities, the State has expressly preserved the

activities criminalized here, namely peaceful non-

obstructive speech. See G.L. c. 266, § 120E (outlawing

obstruction of access and impeding medical services,

but expressly preserving the “right{] to engage in

peaceful picketing which does not obstruct entry or de-

parture”). Thus, at general service facilities where

speakers might be expected to speak about any number

of issues (labor disputes, animal testing, etc.), the State

has focused solely on obstruction and has preserved

peaceful speech; where speakers are only likely to be

protesting abortion, the State has criminalized even

peaceful, consensual speech, even if no incoming pa-

tients are in the zone.

Massachusetts is not free to create special criminal

speech restrictions surrounding abortion. Under Hill,

a regulation tied so narrowly and directly to a single

controversial issue, while failing to protect the same

asserted state interests at thousands of other locations

where those interests are implicated separately from

abortion, cannot fairly be called content-neutral.

C. The Statutory Preference For Clinic Speakers

Conflicts With Hill's Requirement Of View-

point Neutrality

The First Circuit also failed to follow Hill by per-

mitting the State to grant special speech rights to

speakers from abortion clinics, even while denying

those same rights to speakers opposed to abortion. The

First Circuit expressly held that it was “legitimate” for

the state to privilege these speakers over others in the

public forum. App. 13a-14a.

The government may not “discriminate against

speech on the basis of its viewpoint.” Rosenberger v.

Rector, 515 U.S. 819, 829 (1995). Nor may the govern-

ment “grant the use of a forum to people whose views it

finds acceptable, but deny use to those wishing to ex-

press less favored or more controversial views.” Police

Dep't of Chicago v. Mosley, 408 U.S. 92, 96 (1972).’

The Hill Court emphasized that Colorado’s no-

approach law passed this threshold test:

[Tyhe relevant First Amendment point is that

the statute would prevent both [pro-abortion

and anti-abortion] speakers, unless welcome,

from entering the 8-foot zone. The statute is

not limited to those who oppose abortion.... It

applies to all “protest,” to all “counseling,” and

to all demonstrators [,] ... whether they oppose

or support ... [the] abortion decision. That is

: Creating different classifications that discrimimate on the

basis of viewpoint, as the State has done here, violates the Equal

Protection Clause of the Fourteenth Amendment as well as the

First Amendment. See Mosley, 408 U.S. at 96.

the level of neutrality that the Constitution

demands.

530 U.S. at 725 (emphasis added); see also, id. at 731

(“As Justice Jackson observed, ‘there is no more effec-

tive practical guaranty against arbitrary and unreason-

able government than to require that the principles of

law which officials would impose upon a minority must

be imposed generally.’” (quoting Railway Express

Agency, Inc. v. New York, 336 U.S. 106, 112 (1949)

(concurring opinion)).

In stark contrast, the decision below upheld as neu-

tral an Act that clearly does not apply equally to both

sides of the abortion debate. On its face, the Act spe-

cifically exempts all “employees or agents of [the clinic]

acting within the scope of their employment.” Act

§ 120F1/2(b)(2) (App. 125a). This Court has recognized

that “an exemption from an otherwise permissible

regulation of speech may represent a governmental ‘at-

tempt to give one side of a debatable public question an

advantage in expressing its views to the people.’” City

of Ladue v. Gilleo, 512 U.S. 43, 51 (1994) (quoting First

Nat Bank of Boston v. Bellotti, 435 U.S. 765, 785-786

(1978)); see also R.A.V. v. City of St. Paul, 505 U.S. 377,

392 (1992) (government may not “license one side of a

debate to fight freestyle, while requiring the other to

follow Marquis of Queensberry rules.”). Here, the ex-

emption for clinic speakers, with its “scope of their em-

ployment” limitation, is viewpoint-based on its face:

Any privileged speech will necessarily express the

clinic’s view. See McGuire II, 386 F.3d 45, 51-52 (citing

evidence that clinic speakers engage in pro-choice

speech); see also Hoye v. City of Oakland, 2009 WL

2392133, at *8 (N.D. Cal. 2009) (relying on the First

Circuit’s decisions in this case, McGuire I, and McGuire

IT in upholding a similar ordinance, despite “view[ing]

with great displeasure video clips ... in which escorts

can be seen intermittently walking alongside Plaintiff

and blocking Plaintiffs sign with their own, all-white

signs”).

The lower courts were convinced that all of this is

permissible under Hill and this Court’s other cases.

First, they concluded that the Act was facially valid be-

cause they could “envision” one potential legitimate

reason for including the “employees or agents” exemp-

tion: “to make crystal clear ... that those who work to

secure peaceful access to [abortion clinics] need not fear

prosecution.” App. 82a (quoting McGuire I, 260 F.3d at

47 and McGuire II, 386 F.3d at 58); App. 13a-14a.’ Sec-

® The Attorney General’s attempt to “interpret” away this fa-

cial discrimination in favor of clinic speakers cannot save the stat-

ute. First, the interpretation itself is expressiy content-based— it

would criminalize public forum speech by clinic speakers if it con-

cerns abortion or “partisan” issues but not other issues—and is

therefore presumptively unconstitutional. See, e.g., Consolidated

Edison Co. v. Public Serv. Comm’n, 447 U.S. 530, 533 (1980). In

this regard, the interpretation itself is a clear admission that the

statute is content-based—otherwise, why would the Attorney

General attempt to “interpret” the Act to create special rules for

clinie speech about abortion? Also, if prosecuted, such employees

have been provided with an absolute defense on the face of the

statute itself. Respondent cannot broaden the reach of a criminal

statute to criminalize exempted speech in an effort to preserve its

constitutionality. In any case, even as interpreted, clinic speakers

can still say “Follow me, I can help you” while petitioners and oth-

ers could go to jail for saying identical words on the same sidewalk.

* The First Circuit’s approach to facial challenges in this re-

gard—and, indeed, throughout the decision—is wholly inappropri-

ate for the First Amendment context. As this Court’s decision

with respect to the facial challenge at issue in Hill demonstrates,

there is nothing about the content-neutrality inquiry that changes

at the facial challenge stage. Nor does the facial context somehow

ond, the lower courts relied on McGuire I, where the

court of appeals speculated that the legislature “could

have concluded that clinic employees are less likely to

engage in directing of unwanted speech toward captive

listeners.” See McGuire I, 260 F.3d at 46; App. 13a (re-

lying on its McGuire I analysis); App. 81a-82a (quoting

McGuire I, 260 F.3d at 46); see also App. 80a (“The em-

ployee exemption ... is neutral on its face”) (quoting

McGuire I, 260 F.3d at 48).

None of this is remotely satisfactory. First, when a

statute impinges on First Amendment rights, a court

raise the bar for showing that a statute is or is not content-based

or overbroad. “After all, whether a statute is content neutral or

content based is something that can be determined on the face of

it{.[’ City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425,

448 (2002) (Kennedy, J., concurring im the judgment). Indeed,

overbreadth challenges are almost always facial challenges. See,

e.g., Dombrowski v. Pfister, 380 U.S. 479, 487 (1965) (“By permit-

ting determination of the invalidity of [overbroad] statutes with-

out regard to the permissibility of some regulation on the facts of

particular cases, we have, in effect, avoided making vindication of

freedom of expression await _the outcome of protracted litiga-

tion.”). The First Circuit’s approach would permit the government

to chill speech with broad laws and then avoid review unless and

until the government chooses to apply them, forcing speakers to

risk criminal sanctions in order to test the legitimacy of the re-

strictions. This the Constitution forbids. See Dombrowski, 380

U.S.at 486-487. In any event, this case proceeded with a bench

trial on a stipulated trial record (not the mere summary judgment

record upon which the Court decided Hill), and the Attorney Gen-

eral has already expressly announced how the State will enforce

the law. Therefore, the two principal reasons courts sometimes

wait for as-applied challenges—to have a factual record and to see

how the law will be enforced—simply are not implicated here. Cf.

Gonzales v. Carhart, 550 U.S. 124, 167 (2007) (contrasting the cir-

cumstances at issue in that case with the “latitude given facial

challenges in the First Amendment context”).

may not simply postulate legislative aims that might

support it and require the challenger to show that a fa-

cially biased provision “admits of no constitutionally

permissible application,” as the court opined in

McGuire I. 260 F.3d at 47. To the contrary, in the

First Amendment context it is the State’s burden to es-

tablish the necessity for and propriety of regulation.

See, e.g., Ashcroft v. American Civil Liberties Union,

542 U.S. 656, 661 (2004); United States v. Playboy

Entm’t Group, Inc., 529 U.S. 803, 817 (2000). Here, the

First Circuit applied what amounts to a rational basis

test. That approach has no place in First Amendment

cases.'°

Second, the alleged “legitimate” reasons the courts

below suggested for the facially discriminatory em-

ployee exemption are themselves viewpoint-based and

thus not legitimate. A State may not include a special

statutory exemption to make “crystal clear” that those

'° The court of appeals apparently believed that one conceiv-

able legitimate purpose for a facially discriminatory exemption

insulates it from facial attack. App. 12a (citing McGutre I, 260

F.3d at 44). That is incorrect. Where a law discriminates on its

face on the basis of content or viewpoint, it is subject to strict

scrutiny and presumptively invalid. See, e.g., Playboy Entm't

Group, Inc., 529 U.S. at 817; R.A.V., 5065 U.S. at 382. Such a law

has no permissible applications unless its terms are narrowly tai-

lored to serve compelling governmental interests. See Playboy

Entm'’t Group, Inc., 529 U.S. at 813 (“Ifa statute regulates speech

based on its content, it must be narrowly tailored to promote a

compelling Government interest”); Turner Broad. Sys., Inc. v.

FCC, 512 US. 622, 642-643 (1994) (“But while a content-based

purpose may be sufficient in certain circumstances to show that a

regulation is content based, it is not necessary to such a showing in

all cases.... Nor will the mere assertion of a content-neutral pur-

pose be enough to save a law which, on its face, discriminates

based on content.” (emphasis added)).

who “work to secure peaceful access” to abortion clinics

“need not fear prosecution” for their speech while de-

nying the same clear protection to those who work to

offer the same listener peaceful access to abortion al-

ternatives, such as adoption. See App. 80a. The First

Circuit’s approval of this course as neutral violates the

constitutional “demand” that such speech restrictions

apply equally to all speakers “whether they oppose or

support” the abortion decision. Hill, 530 U.S. at 725;

see also Mosley, 408 U.S. at 96; Thomas v. Chicago

Park Dist., 534 U.S. 316, 325 (2002) (“Granting waivers

to favored speakers (or, more precisely, denying them

to disfavored speakers) would of course be unconstitu-

tional”). Nor may the government regulate public fo-

rum speech based on predictions like the one the lower

court made here in reliance on the McGuire cases—that

speakers of a particular viewpoint (those from the

clinic) are less likely to engage in “unwanted” speech

than those with a different view. See Mosley, 408 U.S.

at 100-101.

D. This Court Should Grant The Petition To Ar-

ticulate Clear Limits On Hill, Or, Alterna-

tively, To Overrule Hill

This Court granted review in Hill “[bJecause of the

importance of the case.” 530 U.S. at 714. In resolving

the sensitive question that case presented, the Court

noted the “legitimate and important concerns” on each

side, including the “clear and undisputed” First

Amendment interests weighing against a law that “un-

questionably lessened” the ability of pro-life speakers

“to communicate [their message] effectively” in “ ‘quin-

tessential’ public forums.” Jd. at 714-715.

Review here is important because, as explained

further below in Section II, courts around the nation

have relied on the First Circuit’s misreading of Hill to

reach a variety of conclusions about important First

Amendment issues.'' Indeed, these issues are impor-

tant far beyond the context of abortion clinics, and Hill

has been used to uphold speech restrictions in a wide

variety of locations. For example, the Ninth Circuit

applied Hill to approve speech restrictions at a trade

organization meeting. See Menotti v. City of Seattle,

409 F.3d 1113, 1124-1125, 1141 n.52 (9th Cir. 2005)

(deeming neutral restrictions designed to cover the ex-

act time and exact perimeter of meeting). And other

courts have applied Hill to uphold speech restrictions

specially protecting hunters and funerals. See Shuger

v. State, 859 N.E.2d 1226, 1232-1233 (Ind. App. 2007),

transfer denied, 869 N.E.2d 454 (Ind. 2007) (Indiana

Hunter Harassment Act); Phelps-Roper v. Strickland,

539 F.3d 356, 361 (6th Cir. 2008) (funerals). This broad

use of the Hill precedent was feared at the time of Hill,

and prompted a wide variety of groups from across the

political spectrum—including the AFL-CIO, PETA,

and the ACLU—to file amicus briefs asking the Court

to strike down Colorado’s law. PETA Amicus Br., 1999

|! See, e.g., Hoye, 642 F. Supp. 2d at 1039 (relying on McGuire

I, McGuire II, and this case to uphold no-approach buffer zone that

applies only at abortion clinics and exempts clinic speakers);

Brown v. City of Pittsburgh, 2009 WL 3489838, at *5, 8, 13 n.22 (3d

Cir. Oct. 30, 2009) (relying on McGuire I, McGuire II, and this case

to deem facially valid a 15 foot no-entry zone on public streets and

sidewalks near Pittsburgh medical facilities with exceptions for

clinic employees), Spingola v. Village of Granville, 39 Fed. Appx.

978, 984 (6th Cir. 2002) (relying on McGuire I and Hill to uphold

ordinance outlawing public speaking at permitted events unless

speech occurs in “designated speaking areas,” deeming law facially

constitutional because “there is at least one legitimate reason for

the Ordinance, crowd control”).

WL 1082802; AFL-CIO Amicus Br., 1999 WL 1034471;

ACLU Amicus Br., 1999 WL 1045141.

The Court should grant review at least to reaffirm

that Hill approves only a narrowly tailored accommo-

dation of interests at the outer edge of what the First

Amendment allows. Hill cannot be a license for legisla-

tures to enact targeted, speaker-specific, total bans on

speech in large parts of the public forum.

The First Circuit’s wrenching of Hill to criminalize

public-forum speech to willing listeners also strongly

implicates the constitutional rights of women to hear

and receive information and offers of alternative assis-

tance. Although Hill emphasized protecting wnwilling

listeners from close approaches, many women entering

clinics appreciate and take advantage of offers of help

and information at a difficult time. They have a consti-

tutional right to listen to these speakers. See Board of

Educ., Island Trees Union Free Sch. Dist. No. 26 v.

Pico, 457 U.S. 853, 866-867 (1982) (“{Tyhe Constitution

protects the right to receive information and ideas.”).

The government has no power to make decisions about

which peaceful public forum speech it does or does not

wish women to hear. See, e.g., Mosley, 408 U.S. at 96

(government “may not select which issues are worth

discussing or debating in public facilities.”)

The Court should grant review to make clear that

Hill does not countenance the broad speech restrictions

in public forums that the Massachusetts law estab-

lishes. Alternatively, if Hill does permit such restric-

tions, Hill itself is now demonstrably unsound and

should be reconsidered as being in conflict with United

States v. Grace, 461 U.S. 171 (1983), Police Dep't of

Chicago v. Mosley, 408 U.S. 92 (1972), and countless

other First Amendment decisions, as legal commenta-

tors from across the political spectrum have con-

cluded.”

IL THe DECISION BELOW CONFLICTS WiTrH Courts OF

APPEALS DECISIONS CONCERNING PUBLIC FORUM

SPEECH RESTRICTIONS

A. The Decision Below Conflicts With Other

Circuits Concerning Whether And How Gov-

ernments May Establish Speech-Free Buffer

Zones

The First Circuit’s decision conflicts directly with

the en banc Ninth Circuit’s application of the First

Amendment in Berger v. City of Seattle, 569 F.3d 1029

(9th Cir. 2009) (en banc). Berger invalidated as over-

broad a rule that prohibited all visitors to the Seattle

Center, “other than Center employees and licensed

concessionaires, from engaging in ‘speech activities’

within thirty feet of a ‘captive audience.’” Jd. at 1035.

'? See, e.g., Alan K. Chen, Statutory Speech Bubbles, First

Amendment Overbreadth, and Improper Legislative Purpose, 38

Harv. C.R.-C.L. L. Rev. 31, 31 (2003) (Hill has been “condemned

by progressive and conservative legal scholars alike”); Kathleen

M. Sullivan, Sex, Money, and Groups: Free Speech and Associa-

tion Decisions in the October 1999 Term, 28 Pepp. L. Rev. 723, 734-

738 (2001) (critiquing Hill’s First Amendment analysis); Collo-

quium, Professor Michael W. McConnell’s Response, 28 Pepp. L.

Rev. 747, 750 (2001) (quoting Laurence Tribe’s description of Hill

as “slam-dunk simple and slam-dunk wrong”); id. at 747-750 (quot-

ing Prof. McConnell’s critique of Hill); Jamin B. Raskin & Clark L.

LeBlanc, Disfavored Speech About Favored Rights: Hill v. Colo-

rado, the Vanishing Public Forum and the Need for an Objective

Speech Discrimination Test, 51 Am. U.L. Rev. 179, 182 (2001)

(“Disturbingly, the Court made it substantially easier for govern-

ment entities to discriminate against disfavored viewpoints in the

public forum provided that their enactments maintain the thinnest

facade of neutrality.”).

Like the Massachusetts law upheld by the First Cir-

cuit, the Seattle rule prohibited “both welcome and un-

welcome communications, both verbal tirades and silent

protests;” forbade offering a handbill to consenting in-

dividuals “in an entirely benign—even _silent—

manner,” and prevented even the “passive and un-

threatening” display of a sign. Jd. The court reasoned

that such flat prohibitions in a 30-foot zone were fatally

overbroad because they regulated much more than the

specific sorts of expressive activity that might create

alleged problems. /d.

Here, in contrast, the First Circuit upheld Massa-

chusetts’ flat prohibition on speech outside abortion

clinics on the ground that it “places no burden at all on

the plaintiffs’ activities outside the 35-foot buffer zone.”

App. 19a (emphasis added). Had the Ninth Circuit ap-

plied that understanding of the First Amendment, it

could not have invalidated the speech-free zone at issue

in Berger. It would have been a complete answer to

“Magic Mike” Berger, the street performer who

brought the challenge in that case, that he could work

his magic outside the buffer zone."

The Eighth Circuit reached a similar result in

Phelps-Roper v. Nixon, 545 F.3d 685 (8th Cir. 2008) (en

banc), cert. denied, 129 S. Ct. 2865 (2009). Phelps-

Roper held that a plaintiff was likely to succeed on the

merits of a First Amendment challenge against a

Bin fact, the First Circuit’s “ample alternative avenues”

analysis below resembles the Ninth Circuit panel decision, uphold-

ing the challenged restrictions, that was vacated by the grant of en

banc review. See Berger v. City of Seattle, 512 F.3d 582, 597 n.24

(9th Cir. 2008), vacated by grant of reh’g, 533 F.3d 1080 (9th Cir.

2008).

speech-restrictive buffer zone near funerals. The

Eighth Circuit reached that conclusion because the

statute, like the Massachusetts law here, did “not limit

itself to activity that targets, disrupts, or is otherwise

related to the funeral, memorial service or procession.”

Id. at 693.

Even the Third Circuit’s recent decision in Brown

v. City of Pittsburgh—which upheld a 15-foot no-entry

zone outside all health care facilities, 2009 WL 3489838,

at *6-8 (8d Cir. Oct. 30, 2009)—is in tension with the

First Circuit’s unprecedented approach. The zone ap-

proved in Brown was both more neutral (applying at all

health care facilities) and less restrictive (15 feet in-

stead of 35) than the law at issue here. The Third Cir-

cuit concluded that additional speech restrictions be-

yond that 15-foot zone (namely, a no-approach zone)

were impermissible. /d. at *10-11. The Third Circuit

was focused particularly on protecting the right to leaf-

let, id. at *10, a right the First Circuit dismissed as not

“specially protected.” App. 18a.

The decision below likewise conflicts with the way

federal district courts have evaluated buffer zones that

impose broad speech bans. See, ¢.9., Halfpap v. City of

West Palm Beach, 2006 WL 5700261, at *24 (S.D. Fla.

Apr. 12, 2006) (unpublished) (rejecting 20-foot buffer

zone outside medical facilities because it was “not nar-

rowly tailored to remedy the ‘evil’ of confrontational or

‘in your face’ protesting{ | ... [and ujnlike the restriction

approved in Hill, it fails to accommodate the ‘willing

listener’ ”); McQueary v. Stumbo, 453 F. Supp. 2d 975,

995-996 (E.D. Ky. 2006) (rejecting funeral speech re-

striction because it did not focus on unwanted speech,

but instead “prohibits activity that would not interfere

with a funeral and prohibits communications that are

neither necessarily unwanted nor so obtrusive that

they cannot be avoided by the funeral attendees.”). But

see Hoye, 642 F. Supp. 2d at 1039 (relying on McGuire I

and J/7 and this case to uphold buffer zone targeting

abortion clinics).

B. The Decision Below Conflicts With Other

Circuits Concerning Whether Complete Bans

On Speech In A Particular Location Are Gov-

erned By Hill Or Jews For Jesus

The decision below also conflicts with other circuit

court decisions that have addressed whether this

Court’s holding in Jews for Jesus, 482 U.S. 569, governs

cases involving complete bans on speech in particular

locations. Other circuits have held that the over-

breadth analysis from Jews for Jesus does apply in such

cases. The First Circuit held here that—at least after

Hill—Jews for Jesus did not apply.

A law is unconstitutionally overbroad where “a

‘substantial number’ of its applications are unconstitu-

tional, ‘judged in relation to the statute’s plainly legiti-

mate sweep.’” Washington State Grange v. Washing-

ton State Republican Party, 128 S. Ct. 1184, 1191 (2008)

(quoting New York v. Ferber, 458 U.S. 747, 769-771

(1982)). In Jews for Jesus, for example, this Court re-

jected a “First Amendment Free Zone” in the Los An-

geles International Airport because, even though the

airport was not a traditional public forum, the chal-

lenged speech restriction did “not merely regulate ex-

pressive activity ... that might create problems” but

also “prohibit{ed] even talking and reading, or the

wearing of campaign buttons or symbolic clothing.” 482

U.S. at 574-75. The Court rejected the ban because,

even in a nonpublic forum, no “conceivable governmen-

tal interest would justify such an absolute prohibition

of speech.” Id. at 575.

Other circuits therefore have recognized, when

confronted with speech regulations that eliminate all

speech in a particular zone, that Jews for Jesus is the

governing precedent for such time-place-manner re-

strictions. See, e.g., Berger, 569 F.3d at 1056 (applying

Jews for Jesus to 30-foot buffer zone); Huminski v.

Corsones, 396 F.3d 53, 92-93 (2d Cir. 2004) (applying

Jews for Jesus to trespass order prohibiting subject

from speaking in and around courthouse); Parks v. F'-

nan, 385 F.3d 694, 702-703 (6th Cir. 2004) (applying

Jews for Jesus to permit requirement governing even

casual conversation and debate on state capitol

grounds); First Unitarian Church of Salt Lake City v.

Salt Lake City Corp., 308 F.3d 1114, 1131-1133 (10th

Cir. 2002), cert. denied sub nom., Corp. of the Presiding

Bishop of the Church of Jesus Christ of Latter-Day

Saints v. First Unitarian Church, 5389 U.S. 941 (2003)

(applying Jews for Jesus to public easement retained

after sale of portion of street to private entity). But see

Brown, 2009 WL 3489838 (making no mention of Jews

for Jesus and instead relying primarily on Hill in ana-

lyzing a no-entry zone at health care facilities).

Here, by contrast, the First Circuit declined to ap-

ply Jews for Jesus to a “First Amendment Free Zone,”

482 U.S. at 574, on the streets and sidewalks around

Massachusetts abortion clinics. The First Circuit held,

in contrast to the other circuits cited above, that Jews

for Jesus did not apply because, according to the First

Circuit, this Court’s decision in Hill “left no doubt” that

time-place-manner restrictions should not be analyzed

in the same way as bans on speech. App. 2la. The

First Circuit’s misreading of Hill in this regard is di-

rectly contrary to Jews for Jesus and the way most

other circuit courts have applied that case, even after

Hill.

CONCLUSION

Properly understood, Hill is a narrow decision re-

flecting a balance between the rights of speakers and

unwilling listeners. Massachusetts has taken Hill, ig-

nored all of its safeguards—applicability at a broad

class of locations, equal applicability to all speakers, and

applicability only to unwanted physical approaches—

and used it to justify a law that is far more selective

and far more restrictive of public forum speech than

what the Court permitted in Hill. Not surprisingly, the

decisions upholding Massachusetts’ approach have

brought the First Circuit into conflict with numerous

decisions of this Court and other circuits, and have led

other courts and jurisdictions to view Hill as similarly

permissive.

The principles at stake are too important, and the

ongoing chill on core protected speech too great, to

leave that misreading of this Court’s First Amendment

precedent unreviewed and the conflicts unresolved.

The Court should grant review to make clear that Hill,

at most, marked an outer boundary, not an invitation to

unequal government regulation of private speech with

even consenting listeners in the public forum.

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

TODD C. ZUBLER MARK L. RIENZI

WILMER CUTLERPICKERING Counsel of Record

HALE AND DORRLLP CATHOLIC UNIVERSITY

1875 Pennsylvania Ave, NW OF AMERICA

Washington, DC 20006 COLUMBUS SCHOOL OF LAW

(202) 663-6000 3600 John McCormack RdL, NE

Washington, DC 20064

MICHAEL J. DEPRIMO (202) 319-5140

778 Choate Avenue

Hamden, CT 06518 KEVIN H. THERIOT

(203) 281-1496 ALLIANCE DEFENSE FUND

15192 Rosewood

PHILIP D. MORAN Leawood, KS 66224

PHILIP D. MORAN P.C. (913) 685-8000

265 Essex Street, Suite 202

Salem, MA 01970

(978) 745-6085

NOVEMBER 2009

APPENDIX

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 08-2310

ELEANOR MCCULLEN ET AL.,

Plainitffs, Appellants,

Vv.

MARTHA COAKLEY, ATTORNEY GENERAL FOR THE

COMMONWEALTH OF MASSACHUSETTS,

Defendant, Appellee.

Appeal from the United States District Court

for the District of Massachusetts

[Hon. Joseph L. Tauro, U.S. District Judge]

[571 F.3d 167]

July 8, 2009

Before Howard, Selya and Hansen, Circuit

Judges.

SELYA, Circuit Judge. For more than three dec-

ades, those who advocate for a woman’s right to choose

and those who advocate for the right to life (based on a

belief that life begins at the moment of conception)

have struggled for advantage in the marketplace of

ideas. A series of pitched battles, forming a part of this

* Of the Eighth Circuit, sitting by designation.

struggle, has been waged at freestanding abortion clin-

ics, where protestors and anti-abortion counselors seek

to dissuade prospective patients, shame clinic workers,

and call attention to what they perceive as the evils of

voluntary terminations of pregnancies. In this cam-

paign Massachusetts has been a battleground state.

This appeal arises out of yet another skirmish in

this chronicle of discord. In a very real sense, genesis

of the appeal dates back to the dawning of the millen-

nium. At that time, the Massachusetts legislature en-

acted a statute that created a floating buffer zone

around the entrances, exits, and driveways of abortion

clinics throughout the state. '

Given the benefit of hindsight, the legislature re-

vised the law seven years later. The modified version

of the statute replaced the floating buffer zone with a

35-foot fixed buffer zone. This appeal involves a multi-

pronged facial challenge to the constitutionality of the

modified statute.

In a thoughtful and comprehensive opinion, the dis-

trict court rejected the facial challenge in all its itera-

tions and refused to enjoin enforcement of the new law.

McCullen v. Coakley, 573 F. Supp. 2d 382 (D. Mass.

2008). After careful consideration of the record, the

parties’ briefs, some helpful friend-of-the-court briefs,

and the arguments made orally, we affirm.

‘The mechanics of the 2000 Act and the dimensions of the

then-current buffer zone are described in earlier opinions of this

court. See McGuire v. Reilly, 386 F.3d 45, 49 (ist Cir. 2004);

McGutre v. Reilly, 260 F.3d 36, 40 (1st Cir. 2001).

L BACKGROUND

In this case, as in sO many cases, the past informs

the present. We start there.

By the end of the twentieth century, Massachusetts

had experienced repeated incidents involving violence

and other unduly aggressive behaviors in the vicinity of

reproductive health care facilities (RHCF's). Choosing

among a host of possible preventive measures, the leg-

islature took up a bill that proposed creating a fixed 25-

foot buffer zone around the entrances, exits, and

driveways of RHCFs.

The state senate held a hearing on the bill in April

1999 and received evidence of widespread harassment

and intimidation outside RHCF's. Numerous witnesses

addressed not only the peculiar vulnerability of women

seeking abortion services but also the deleterious ef-

fects of overly aggressive demonstrations on both pa-

tient and provider safety. The senate concluded that

existing laws did not adequately safeguard clinic staff,

prospective patients, or members of the public.

As part of its due diligence, the senate asked the

Massachusetts Supreme Judicial Court (SJC) for an ad-

visory opinion on the constitutionality of the proposed

law. The SJC discerned no constitutional impediment.

Opinion of the Justices to the Senate, 723 N.E.2d 1, 6

(Mass. 2000).

The senate subsequently engrossed a bill intended

to enhance public safety in and around RHCFs while

maintaining the relatively free flow of traffic. See

Mass. S. Jour., Feb. 29, 2000. That bill resembled the

original senate bill.

Before the house of representatives could act on

the senate bill, the United States Supreme Court de-

cided Hill v. Colorado, in which the Justices upheld, as

a content-neutral time, place, and manner restriction, a

Colorado statute designed to ameliorate the same

panoply of evils through the use of a floating buffer

zone. 530 U.S. 708, 707-08 (2000). The Colorado statute

synthesized the fixed and floating buffer zone concepts,

making it unlawful within a 100-foot fixed zone for any

person, in the absence of consent, to “knowingly ap-

proach” within eight feet of another person “for the

purpose of passing a leaflet or handbill to, displaying a

sign to, or engaging in oral protest, education, or coun-

seling with such other person.” Jd. at 707 (quoting

Colo. Rev. Stat. § 18-9-122(38)).

The Massachusetts legislature recognized that Hill

had shed new light on the legal landscape. Thus, the

house tabled the senate bill and repaired to the drawing

board. The legislature eventually enacted a law that

was loosely patterned on the Colorado statute. See An

Act Relative to Reproductive Health Care Facilities

(2000 Act), S.B. 148, 18lst Gen. Ct. (Mass. Aug. 10,

2000). The key component of the 2000 Act was a prohi-

bition against knowingly approaching within six feet of

another without consent for certain defined protest-

related purposes. Because the prohibition only oper-

ated within an 18-foot fixed buffer zone around RHCF

entrances, exits, and driveways, it mimicked the Colo-

rado law in combining floating and fixed buffer zone

concepts.

A group of Massachusetts residents who wished to

protest in front of RHCF's mounted both facial and as-

applied challenges to the constitutionality of the new

enactment. In successive decisions, we rejected those

challenges. See McGuire v. Reilly (McGuire I, 260

F.3d 36, 51 (ist Cir. 2001) (rejecting facial challenges);

McGuire v. Reilly (McGuire IT), 386 F.3d 45, 65-66 (ist

Cir. 2004) (rejecting renewed facial challenges as well

as as-applied challenges).

Over time, legislators became concerned that the

statute had failed to achieve its desired goals. In 2007,

the legislature held public hearings devoted to the need

for rewriting the statute. Testimony (including state-

ments from law enforcement officials and clinic work-

ers) revealed unanticipated difficulties in enforcing the

2000 Act and called into question that Act’s efficacy. T

The upshot was a decision to reshape the law by, among

other things, repudiating the floating buffer zone con-

cept and relying instead on a 35-foot fixed buffer zone.

On November 8, 2007, the legislature enacted the

revised law. See An Act Relative to Public Safety at

Reproductive Health Care Facilities (2007 Act), S.B.

1353, 185th Gen. Ct. (Mass. Nov. 13, 2007). It declares

that “[nJo person shall knowingly enter or remain on a

public way or sidewalk adjacent to [an RHCF]’ within

a designated buffer zone. Mass. Gen. Laws ch. 266,

§ 120E 1/2(b) (2007). The Act describes the new buffer

zone as comprising

a radius of 35 feet of any portion of an entrance,

exit or driveway of a reproductive health care

facility or within the area within a rectangle

created by extending the outside boundaries of

any entrance, exit or driveway of a reproduc-

tive health care facility in straight lines to the

point where such lines intersect the sidelines of

the street in front of such entrance, exit or

driveway.

Id. Moreover, the law prohibits all persons from enter-

ing or remaining within the buffer zone during ordinary

business hours, subject to exceptions for four classes of

persons, namely:

(1) persons entering or leaving such facility;

(2) employees or agents of such facility acting

within the scope of their employment;

(3) law enforcement, ambulance, firefighting,

construction, utilities, public works and other

municipal agents acting within the scope of

their employment; and

(4) persons using the public sidewalk or street

right-of-way adjacent to such facility solely for

the purpose of reaching a destination other

than such facility.

Id. Each of these exceptions derives from the 2000 Act.

And the 2007 Act, like the 2000 Act, also requires that

the buffer zone be clearly marked. See id.

On January 25, 2008, the Attorney General sent a

letter to an audience that included law enforcement and

RHCF personnel. The letter purports to summarize

the provisions of the 2007 Act and to furnish “guidance

to assist ... in applying the four exemptions.” This

guidance comprises four paragraphs, set forth verbatim

in an appendix to this opinion.

I. TRAVEL OF THE CASE

On January 16, 2008, plaintiffs-appellants Eleanor

McCullen, Jean Blackburn Zarrella, Gregory A. Smith,

Carmel Farrell, and Eric Caden, all Massachusetts

residents who regularly engage in pro-life counseling

outside RHCF's, sued the Attorney General of Massa-

chusetts, in her representative capacity, in the federal

district court. Their complaint invoked 42 U.S.C.

§ 1983, limned a constellation of constitutional claims,

and prayed for declaratory and injunctive relief aimed

at derailing the 2007 Act. Without objection, the dis-

trict court bifurcated the case into facial and as-applied

challenges. As to the former, the court consolidated the

preliminary injunction hearing with the hearing on the

merits, see Fed. R. Civ. P. 65(a)(2), and began a bench

trial on May 28, 2008.

In due season, the court issued a decision denying

relief. McCullen, 573 F. Supp. 2d at 425. This inter-

locutory appeal followed. We have jurisdiction under

28 U.S.C. § 1292(a)(1).

It ANALYSIS

We begin our odyssey by outlining the legal stan-

dards that apply generally to facial challenges and then

proceed to the myriad prongs of the plaintiffs’ facial

challenge. Because the issues raised on appeal impli-

cate the First Amendment, they engender de novo re-

view. See Bose Corp. v. Consumers Union, 466 US.

485, 508 (1984).

A. General Standards.

Around the edges, the standards that apply in

evaluating facial challenges to the constitutionality of

statutes are not entirely clear. See Richard H. Fallon,

Jr., Commentary, As-applied and Facial Challenges

and Third-Party Standing, 113 Harv. L. Rev. 1321,

1322-23 (2000). For present purposes, though, the path

is reasonably well-lighted.

The Supreme Court recently has stated that a fa-

cial challenge will fail if a statute “has a plainly legiti-

mate sweep.” Wash. State Grange v. Wash. State Re-

pub. Party, 128 S. Ct. 1184, 1190 (2008) (citation and in-

ternal quotation marks omitted). This is a refinement

of its earlier statement that a party mounting a facial

challenge “must establish that no set of circumstances

exists under which the Act would be valid.” United

States v. Salerno, 481 U.S. 739, 745 (1987). Howsoever

worded, this standard imposes a very heavy burden on

a party who mounts a facial challenge to a state statute.

The statute at issue here implicates freedom of

speech. Justice Cardozo long ago observed that free-

dom of speech is “the indispensable condition ... of

nearly every other form of freedom.” Palko v. Con-

necticut, 302 U.S. 319, 327 (1937). But even so precious

a freedom must, in particular iterations, be balanced

against the government's legitimate interests in pro-

tecting public health and safety. See, e.g., Schenck v.

United States, 2A9 U.S. 47, 52 (1919) (“The most strin-

gent protection of free speech would not protect a man

in falsely shouting fire in a theatre.”) (Holmes,J.).

In striking this delicate balance, a court must cali-

brate the scales differently depending on the nature of

the governmental action. McGuire I, 260 F.3d at 42.

That calibration takes place along a ontinuum. See

Berner v. Delahanty, 129 F.3d 20, 28 (ist Cir. 1997). At

one end of the continuum are laws in which the gov-

ernment attempts to differentiate between divergent

views on a singular subject; that is, laws in which the

government attempts to “pick and choose among simi-

larly situated speakers in order to advance or suppress

a particular ideology or outlook.” Jd. Such viewpoint-

based discrimination is highly offensive to the core val-

ues of the First Amendment, and courts are wary of

such encroachments. See, e.g., Rosenberger v. Rector &

Visitors of Univ. of Va., 515 U.S. 819, 829 (1995).

Even when a law does not favor one particular

viewpoint over another, governmental restrictions on

the content of speech may be impermissible. See

Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 641-42

(1994). At this stage of the continuum, a reviewing

court must start with a presumption that such a con-

tent-based regulation is constitutionally suspect.

R.A.V. v. City of St. Paul, 505 U.S. 377, 383 (1992);

Nat'l Amusements, Inc. v. Town of Dedham, 43 F.3d

731, 736 (ist Cir. 1995). That presumption can be re-

butted by a showing that the regulation is both neces-

sary to the furtherance of a compelling state interest

and narrowly tailored to the achievement of that inter-

est. See, e.g., Boos v. Barry, 485 U.S. 312, 321 (1988).

Further along the continuum are laws that do not

regulate speech per se but, rather, regulate the time,

place, and manner in which speech may occur. Because

such time-place-manner restrictions are by definition

content-neutral, they tend to burden speech only inci-

dentally; that is, they burden speech for reasons unre-

lated to either the speaker’s viewpoint or the speech’s

content. See Turner Broad., 512 U.S. at 642. Regula-

tions of this type will be upheld as long as “they are jus-

tified without reference to the content of the regulated

speech, ... are narrowly tailored to serve a significant

governmental interest, and ... leave open ample alter-

native channels for communication of the information.”

Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)

(quoting Clark v. Cmty. for Creative Non-Violence, 468

U.S. 288, 298 (1984)). This more relaxed standard, fa-

miliarly known as “intermediate scrutiny,” is justified

because the fact that a regulation is both content-

neutral and viewpoint-neutral helps to ensure that gov-

ernment is not using the regulation as a sub rosa means

of interfering in areas to which First Amendment pro-

tections pertain. See Turner Broad., 512 U.S. at 642.

10a

B. Content Neutrality.

What we have said to this point leads naturally to

the threshold question in this case. The district court

found the 2007 Act to be content-neutral. McCullen,

573 F. Supp. 2d at 403. The plaintiffs demur. Because

the resolution of this dispute will determine the con-

tours of our subsequent analysis (including the appro-

priate level of scrutiny), we tackle this question first.

Our principal inquiry in this regard, both in speech

cases generally and in time-place-manner cases specifi-

cally, “is whether the government has adopted a regu-

lation of speech because of disagreement with the mes-

sage it conveys.” Ward, 491 U.S. at 781. “Thus, a law

designed to serve purposes unrelated to the content of

protected speech is deemed content-neutral even if, in-

cidentally, it has an adverse effect on certain messages

while leaving others untouched.” McGuire I, 260 F.3d

at 43; accord McGutre II, 386 F.3d at 57.

The lower court, relying mainly on All, 530 U.S. at

719-20, determined that the 2007 Act was content-

neutral because it did not regulate speech—merely the

places in which speech might occur. McCullen, 573 F.

Supp. 2d at 408. Moreover, the law was enacted in re-

sponse to legitimate safety and law enforcement con-

cerns, and was justified by those objectives without

reference to the content of any speech. Id.

The plaintiffs resist this characterization. They ac-

knowledge that the statute has a content-neutral pat-

ina, but they insist that this patina masks a more sinis-

ter reality. They point to several “facts” which, in their

estimation, collectively indicate that the legislature’s

abiding motive was to curb anti-abortion speech. Spe-

cifically, the plaintiffs assert that the expanded size of

the buffer zone is suspicious; that the zone itself, as re-

lla

configured, contradicts its stated “public safety” goal in

that it causes more safety hazards than it abates; that

the legislature deliberately drew its evidence from bi-

ased sources, in effect listening to only one side of the

story; that this court’s characterizations of the 2000

Act, McGuire I, 260 F.3d at 49, belie the legislators’

professed concerns about enforcement of that law; and

that the nonexistent “emergency” referenced in the

preamble to the 2007 Act is a figment of the legislators’

collective imagination (and thus, a cover-up for the leg-

islature’s real agenda).

Although a few of the factual components of this

broadside are new and others have been refurbished or

reworked, the broadside itself is on the order of one

that was leveled against the 2000 Act and soundly re-

buffed in McGuire I. There, we wrote:

To be sure, the plaintiffs insist that the state’s

professed concerns about public safety, per-

sonal security, and access to medical facilities

are mere pretexts for its desire to censor anti-

abortion speech. This insistence gets them no-

where. For one thing, their insinuations are

unsupported by any record evidence. For an-

other thing, where differential treatment is

justified, on an objective basis, by the govern-

ment’s content-neutral effort to combat secon-

dary effects, it is insufficient that a regulation

may have been adopted in direct response to

the negative impact of a particular form of

speech.

Id. at 45. So it is here.

As in McGuire I, the plaintiffs’ basic complaint is

that alleged deficiencies in the factual record compiled

by the legislature—gaps, distortions, mischaracteriza-

12a

tions, and the like—compel an inference of pretext. But

as in McGuire I, our independent review of the record

confirms that the legislative factfinding adequately un-

derpins what the legislature wrought. We need not cite

book and verse. Although the plaintiffs, ably repre-

sented, have done a thorough job of fly-specking the

legislative record, their claim of pretext is no more ef-

fective than was the counterpart claim advanced in

McGuire I. Consequently, it is enough to note our

wholehearted agreement with the district court that

the record is “replete with factual references to specific

incidents and patterns of problematic behavior around

RHCFs.” McCullen, 573 F. Supp. 2d at 405. In the fi-

nal analysis, the claim of factual inadequacy amounts to

little more than wishful thinking.

We nonetheless consider it wise to embellish two

points. First, the fact that we spoke approvingly of the

2000 Act did not serve to freeze the statute in place.

The legislature had a right (some might say an obliga-

tion) to monitor the statute’s operation and to revisit

the matter if experience revealed unexpected prob-

lems. See Ward, 491 U.S. at 800; Nat’l Amusements, 43

F.3d at 742.

Second, the test for content neutrality does not re-

quire proof that the legislature's response to a per-

ceived problem be the only solution or even the best

solution; it simply requires that the evidence support a

conclusion that the regulation is in service to a legiti-

mate governmental interest unrelated to expressive

content. McGuire IT, 386 F.3d at 58; McGuire I, 260

F.3d at 44. In grading a regulation’s efficacy under this

test, a reviewing court must grant a significant degree

of respect to the legislature’s judgment. See Turner

Broad., 520 U.S. at 195. Viewed through this deferen-

13a

tial prism, the factfinding that undergirds the 2007 Act

easily attains a passing grade.

In a related vein, the plaintiffs maintain that sev-

eral features of the 2007 Act themselves constitute ei-

ther content-based or viewpoint-based discrimination.

These features include the exception for clinic employ-

ees and agents, the statute’s alleged under-

inclusiveness (i.e., the fact that the legislature did not

extend it to other types of free-standing medical clin-

ics), and the Attorney General’s guidance letter.

This three-faceted structural argument is not

original. Without exception, claims analogous to those

that comprise it were addressed in our earlier decisions

anent the 2000 Act. See McGutre II, 386 F.3d at 56-59;

McGuire I, 260 F.3d at 44-47. Those decisions render

superfluous any exegetic discussion of the current ver-

sion of the structural argument. For now, it suffices to

say that the mere fact that a content-neutral law has a

disparate impact on particular kinds of speech is insuf-

ficient, without more, to ground an inference that the

disparity results from a content-based preference. See

McGuire II, 386 F.3d at 57; McGuire I, 260 F.3d at 44.

Here, there is no “more.”

To be sure, the plaintiffs strive to distinguish our

earlier decisions and add the missing integers to the

equation. Only two of these efforts deserve comment.

The argument that the law is content-based due to

the exception permitting those persons associated with

RHCFs (e.g., clinic workers and patients) but not oth-

ers to enter the buffer zone was squarely raised and

squarely repulsed in McGuire I, 260 F.3d at 45-47. The

present plaintiffs try to give that argument a new

twist. They posit that the very size and nature of a 35-

foot fixed buffer zone somehow changes the constitu-

l4a

tional calculus and makes this exception less defensible.

This is whistling past the graveyard.

The decisive question in a facial challenge is not

-whether a regulation is necessary to achieve the legis-

lature’s stated goal but, rather, whether a court can

glean legitimate reasons for its existence. See id. at 47.

This principle applies to the configuration of the buffer

zone selected by the legislature. The size of that zone

need only be reasonably related to the attainment of

the legislature’s goal. That some might think a 25-foot

or 30-foot buffer zone sufficient is not the issue.

Here, moreover, differences in the buffer zone’s

dimensions and other characteristics do not tip the con-

stitutional balance. Regardless of those differences, the

exception for persons associated with RHCF's remains

reasonably related to the legislature’s legitimate public

safety objectives. No more is exigible to reject this as-

pect of the plaintiffs’ facial challenge.”

Second, the plaintiffs maintain that the Attorney

General’s interpretive guidance (reprinted in the ap-

pendix) demonstrates that the 2007 Act is not content-

neutral. In particular, they highlight the passage in the

guidance letter in which the Attorney General uses the

phrase “abortion and partisan speech.” The force of

this attack is dissipated by our decision in McGuire II,

386 F.3d at 58, in which we explained that a state offi-

cial’s interpretation of a statute, even if generally au-

? ‘This same reasoning also serves to defeat the plaintiffs’

equal protection and viewpoint discrimination claims, each of

which focuses on the legislature’s decision to limit the reach of the

relevant exception to persons associated with RHCFs.

15a

thoritative, cannot render an otherwise constitutional!

statute vulnerable to a facial challenge.

In sum, we find nothing in either the text or the

legislative history of the 2007 Act that deprives that

statute of content-neutral status. We proceed, there-

fore, with intermediate scrutiny, recognizing that the

constitutionality of the 2007 Act turns on whether it is

narrowly tailored and allows sufficient alternative

means of communication. See, e.g., Clark, 468 U.S. at

293.

C. Narrow Tailoring/Channels of Communication.

A regulation is narrowly tailored if it (i) facilitates a

substantial governmental interest that would be less

effectively served without the regulation and (ii) ac-

complishes this end without burdening substantially

more speech than necessary. Ward, 491 U.S. at 799.

The first element of this two-part definition is not

seriously disputed here. The interests ascribed by the

legislature to the 2007 Act (enhancing public safety

around RHCFs, improving traffic flow, and the like)

are the same as those that we deemed both proper and

substantial in McGuire I, 260 F.3d at 48 (describing

those interests as “precisely the sort of interests that

justify some incidental burdening of First Amendment

rights”).

It is the second part of the definition that diaws the

plaintiffs’ fire: they argue that the 2007 Act regulates

too much speech. But this argument rests on a miscon-

ception; it assumes that, in order to survive intermedi-

ate scrutiny, a law (and within a law, a buffer zone)

must burden no more speech than is absolutely neces-

sary to accomplish the law’s legitimate purpose.

16a

Perscrutation of the plaintiffs’ briefs makes it ap-

parent that this misconception arises out of a misread-

ing of the Court’s decisions in Schenck v. Pro-Choice

Network, Inc., 519 U.S. 357 (1997), and Madsen v.

Women’s Health Center, 512 U.S. 753 (1994). In each

instance, the Court applied a “no greater restriction

than necessary” standard to determine the validity of

an injunction. See Schenck, 519 U.S. at 374; Madsen,

512 U.S. at 765. But injunctions (which bind only the

parties in a particular case and those in privity with

them) are more targeted than statutes (which apply

broadly to all concerned). This is a critically important

distinction; the Court has made it pellucid that the ab-

sence of general applicability subjects injunctions to a

stricter standard than legislative enactments. See

Madsen, 512 U.S. at 764-65; cf. Ry. Exp. Agency, Inc. v.

New York, 336 U.S. 106, 112 (1949) (“{Tyhere is no more

effective practical guaranty against arbitrary and un-

reasonable government than to require that the princi-

ples of law which officials would impose upon a minority

must be imposed generally.”) (Jackson, J., concurring).

A law of general application passes muster under nar-

row tailoring principles as long as it is not substantially

broader than necessary to accomplish the legislature’s

legitimate goal. See Ward, 491 U.S. at 799; see also

Madsen, 512 U.S. at 764.

Ward supplies the measuring stick that we must

wield. The 2007 Act is a law of general application.

Given that it promotes a substantial public interest,

McGuire I, 260 F.3d at 48, the decisive question is

whether it burdens substantially more speech than

necessary to serve that purpose. If the answer to that

query is in the negative, the law does not offend the

First Amendment “simply because a court concludes

that the government’s interest could be adequately

17a

served by some less-speech-restrictive alternative.”

Ward, 491 U.S. at 800. This means, of course, that “a

judge’s agreement with the responsible decisionmaker

concerning the most appropriate method for promoting

significant government interests or the degree to which

those interests should be promoted” are not conditions

precedent to upholding a time-place-manner restric-

tion. Id.

That conclusion effectively ends this aspect of the

matter. Testimony from law enforcement officers and

clinic workers attested to the ineffectiveness of the

preexisting law. Against that backdrop, the legislature

determined, after considerable study, that the state’s

declared interests would be better served by reconfig-

uring the buffer zone around RHCF's. The legislature

labored to balance First Amendment concerns with

public safety concerns, see McCullen, 573 F. Supp. 2d

at 397-98 (recounting evidence), mulled the advantages

and disadvantages of variously configured buffer zones,

and decided (reasonably, we think) that a 35-foot fixed

buffer zone made sense. Given the deference that is

owed to such legislative judgments, see Turner Broad.,

520 U.S. at 195, we cannot say that the 2007 Act is sub-

stantially broader than necessary.

The fact that the legislature reached a different

conclusion seven years earlier (when it preferred a

smaller buffer zone that had both floating and fixed

components) does not undercut this conclusion. After

all, legislative choice is a dynamic process. Simply be-

cause a legislature previously has attempted to address

a particular problem in one way does not disable it from

taking a different approach at a later time. See, e¢.g.,

Ward, 491 U.S. at 800 (justifying increased regulation

based on evidence of inadequacy of municipality’s prior

attempts to combat noise); Nat'l Amusements, 43 F.3d

18a

at 742 n.9 (similar); cf. Rust v. Sullivan, 500 U.S. 173,

187 (1991) (affirming agency’s reversal of position while

noting that in exercising legislatively delegated author-

ity agency is free to consider “the wisdom of its policy

on a continuing basis”). Experience is often the best

teacher, and the incremental nature of the legislature’s

actions seems more a virtue than a vice. On these facts,

the legislature’s judgment must be respected. See

Turner Broad., 520 U.S. at. 195.

Relatedly, the plaintiffs suggest that the 2007 Act

is constitutionally infirm because it amounts to a ban on

handbilling and interferes with the provision of an

eight-to-fifteen-foot “constitutional conversational dis-

tance.” That suggestion is jejune.

Contrary to the plaintiffs’ importunings, the Con-

stitution neither recognizes nor gives special protection

to any particular conversational distance. See, ¢.g.,

Schenck, 519 U.S. at 380 (upholding a fixed 15-foot

buffer zone). By the same token, handbilling is not spe-

cially protected. See Heffron v. Int'l Soc'y for Krishna

Consciousness, Inc., 452 U.S. 640, 654 (1981). Time-

place-manner regulations routinely make particular

forms of expression impracticable without raising con-

stitutional concerns. See, e.g., Hill, 530 U.S. at 726-28.

As we explained in Bl(a)ck Tea Society v. City of Bos-

ton, 378 F.3d 8, 14 (1st Cir. 2004), there is no constitu-

tional guarantee of any particular form or mode of ex-

pression. The correct inquiry is whether, in light of the

totality of the circumstances, a time-place-manner

regulation burdens substantially more speech than nec-

essary and, concomitantly, whether such a regulation

leaves open adequate alternative channels of communi-

cation. See Clark, 468 U.S. at 293.

19a

This brings us to the question of whether the 2007

Act satisfies the last half of this prescription—the half

that deals with alternative channels of communication.

To begin, the 2007 Act places no burden at all on the

plaintiffs’ activities outside the 35-foot buffer zone.

They can speak, gesticulate, wear screen-printed T-

shirts, display signs, use loudspeakers, and engage in

the whole gamut of lawful expressive activities. Those

messages may be seen and heard by individuals enter-

ing, departing, or within the buffer zone.

Additionally, the plaintiffs may stand on the side-

walk and offer either literature or spoken advice to pe-

destrians, including those headed into or out of the

buffer zone. Any willing listener is at liberty to leave

the zone, approach those outside it, and request more

information.

To cinch matters, the size of the zone is not unrea-

sonable. It bears repeating at this point that we are

dealing exclusively with a facial challenge to the 2007

Act. Thus, as long as we can envision circumstances in

which a 35-foot buffer zone allows adequate alternative

means of expression, the challenge must fail. See Wash.

State Grange, 128 S. Ct. at 1190.

It is easy to envision such a scenario. Indeed, the

zone at issue here is slightly smaller than that upheld in

Madsen, 512 U.S. at 768-70 (validating a 36-foot buffer

zone under a standard stricter than that which is appli-

cable here). By like token, the zone at issue here is

substantially smaller than the fixed portion of the

buffer zone approved in Hill, 530 U.S. at 703 (upholding

a floating buffer zone within a 100-foot fixed buffer

zone). Also instructive is Burson v. Freeman, 504 U.S.

191 (1992), in which the Court, applying strict scrutiny

to a content-based regulation, approved a 100-foot

20a

buffer zone for polling places. Jd. at 211. While there is

no particular buffer zone radius that is per se permissi-

ble or impermissible—everything depends on context—

the radius here is not, on its face, constitutionally defi-

cient.

To say more on the binary question of narrow tai-

loring and alternative channels of communication would

be supererogatory. In the circumstances revealed by

the record, the 2007 Act, on its face, is a valid time-

place-manner regulation that advances a significant

governmental interest without burdening substantially

more speech than necessary and leaves open adequate

alternative channels of communication. Accordingly,

the statute survives intermediate scrutiny.

D. Overbreadth.

First Amendment challenges based on a statute’s

alleged overbreadth are more readily accommodated

than other types of facial challenges. The main differ-

ence is that courts will consider overbreadth challenges

even though the challenger’s own free speech rights are

not implicated. See Broadrick v. Oklahoma, 413 U.S.

601, 612 (1973). This leniency results from a judicial

“assumption that the statute’s very existence may

cause others not before the court to refrain from consti-

tutionally protected speech or expression.” Jd. The

plaintiffs mount such a challenge. They argue that the

2007 Act cannot constitutionally be applied to the wide

universe of people who might want to linger in the

buffer zone and express their views. They liken this

case to Board of Airport Commissioners v. Jews For

Jesus, in which the Supreme Court struck down as

overbroad an outright ban on all First Amendment ac-

tivity within a major international airport. 482 U.S.

569, 577 (1987).

Z2la

The matter at hand is readily distinguishable from

Jews for Jesus. That case involved a direct ban on

First Amendment activity, whereas this case involves a

time, place, and manner restriction. The Court has left

no doubt but that time-place-manner restrictions

should not be analyzed in the same way as direct bans

on speech. See Hill, 530 U.S. at 731.

In all events, the plaintiffs’ overbreadth argument

is eerily reminiscent of one considered and rejected in

Hill. There, the challengers asserted that the Colorado

statute was overbroad because it applied to all medical

clinics, not just to abortion providers. The Court de-

bunked that assertion, stating that “[tJhe fact that the

coverage of a statute is broader than the specific con-

cern that led to its enactment is of no constitutional

significance.” Jd. at 730-31; see id. at 723 (approvingly

noting that the statute applies “equally to used car

salesmen, animal rights activists, fundraisers, environ-

mentalists, and missionaries”).

That logic is persuasive here. Although the Massa-

chusetts legislature was plainly moved to enact the

statute by the secondary effects of anti-abortion pro-

tests, it opted to address the secondary effects of a

broader range of activities in the interest of effective

enforcement. This decision to widen the statute’s cov-

erage is a matter of degree, not a matter of kind. Leg-

islatures are not held to standards of mathematical pre-

cision where policy judgments are concerned. See, ¢.g.,

Burson, 504 U.S. at 210 (describing the question of

whether a 100-foot buffer zone could be reduced by 25

feet as not of “constitutional dimension”). Here, the in-

creased degree of the expansion is reasonable, so the

expansion is not a matter of constitutional significance.

See Hill, 5380 U.S. at 730-31; Burson, 504 U.S. at 210;

see also City Council of Los Angeles v. Taxpayers for

224

Vincent, 466 U.S. 789, 802 (1984) (explaining that “if the

ordinance may be validly applied to [the plaintiffs], it

can be validly applied to [a broader range of persons]”).

There is, moreover, a paradox that taints the plain-

tiffs’ overbreadth argument. The plaintiffs say, in ef-

fect, that the 2007 Act should have been limited to

abortion-related speech. Yet the absence of any refer-

ence to any particular kind of speech (and, thus, to any

particular content or viewpoint) is what makes the

statute content-neutral. See Hill, 530 U.S. at 723; Bur-

son, 504 U.S. at 207. If a failure to distinguish among

speakers in itself gave rise to overbreadth problems,

legislatures would be forced to choose between passing

laws that were not content-neutral or laws that were

overbroad. Hill pretermits the contention that the

First Amendment forces state legislatures to face this

sort of Morton’s Fork.

We have yet another bridge to cross. At oral ar-

gument in this court, the plaintiffs essayed a new and

different spin on overbreadth—a perspective that

emerged during the panel’s questioning. Seizing upon

this perspective, the plaintiffs suggested that the At-

torney General’s guidance letter might be read to

criminalize the conduct of anyone who engages in any

“partisan speech,” whether or not abortion-related,

while passing though the buffer zone. This interpreta-

tion raises the concern that an individual could be

prosecuted merely for passing through the buffer zone

en route to a destination outside the zone while, say,

wearing a lapel pin advocating the election of a political

candidate or a T-shirt exhorting a favorite baseball

team.

Though interesting, this argument is untimely. It

was not raised either in the district court or in the

23a

plaintiffs’ briefs on appeal.’ It is, therefore, waived.

See United States v. Slade, 980 F.2d 27, 30 (1st Cir.

1992) (“It is a bedrock rule that when a party has not

presented an argument to the district court, she may

not unveil it in the court of appeals.”); Anderson v. Bea-

trice Foods Co., 900 F.2d 388, 397 (1st Cir. 1990) (hold-

ing that an appellant’s briefs fix the scope of the issues

appealed and that, therefore, an appellant cannot

breathe life into an omitted theory merely by referring

to it at oral argument). That the court inquired about

the theory at oral argument does not lower this bar.

We add a coda. Were we to reach the merits of this

argument—which we do not—the proper resolution of

it is not obvious. The Supreme Court has cautioned

that “(t]he overbreadth doctrine is strong medicine that

is used sparingly and only as a last resort.” N.Y. State

Club Ass’n v. City of New York, 487 U.S. 1, 15 (1988).

Thus, a court may overturn a law as overbroad only if

“a substantial number of its applications are unconsti-

tutional, judged in relation to the statute’s plainly le-

gitimate sweep.” Wash. State Grange, 128 S. Ct. at

1191 n6. Courts must “vigorously enforce” this sub-

>To be sure, the plaintiffs' general overbreadth argument

implicitly attacks the exceptions to the 2007 Act. But avoiding

waiver requires more than a hint that a particular theory may be

lurking; it necessitates some developed argumentation addressed

to that particular theory. See United States v. Zannino, 895 F 2d

1, 17 (1st Cir. 1990).

The plaintiffs also argued below that the legislature’s use of

the word “solely” in the statutory text rendered the statute un-

constitutionally vague. See McCullen, 573 F. Supp. 2d at 421. Al-

though their newly minted argument likewise involves, in part, the

statute’s use of the word “solely,” it is a conceptually different ar-

gument.

24a

stantiality requirement. United States v. Williams, 128

S. Ct. 1830, 1838 (2008). In this case, it seems likely

that the alleged overbreadth is not sufficiently sprawl-

ing to serve as the foundation for a constitutional chal-

lenge.

E. Vagueness.

- The plaintiffs contend that the Attorney General’s

guidance letter renders the 2007 Act void for vague-

ness because it uses the term “partisan speech”—a

term that is allegedly so amorphous “that persons of

average intelligence would have no choice but to guess

at its meaning and modes of application.” United States

v. Hussein, 351 F.3d 9, 14 (ist Cir. 2003). We reject

this contention.

The Due Process Clause forbids the sovereign from

depriving an individual of liberty pursuant to an exces-

sively vague law. See id.; United States v. Arcadipane,

41 F.3d 1, 5 (1st Cir. 1994). This doctrine prevents the

enforcement of laws that fail to give persons of ordi-

nary intelligence a reasonable opportunity to know

what conduct is proscribed and what is not. Hill, 530

US. at 732; Hussein, 351 F.3d at 14. The Due Process

Clause also forbids laws that impermissibly delegate

basic policy matters to adjudicators for resolution on an

ad hoc or largely subjective basis, thus threatening ar-

bitrary and discriminatory application. Grayned v.

City of Rockford, 408 U.S. 164, 108-09 (1972).

In the district court, the plaintiffs alleged that the

2007 Act was impermissibly vague because of the un-

certainty inherent in the terms “solely” and “destina-

tion.” See McCullen, 573 F. Supp. 2d at 421. They also

argued that the term “partisan speech,” provided as a

gloss .in the Attorney General’s guidance letter (re-

25a

printed in the appendix), rendered the statute vague.

Id. In this venue, the plaintiffs address only the term

“partisan speech,” a phrase found exclusively in the

guidance letter.

When confronting a vagueness challenge to the face

of a state statute, we are obliged to accept any limiting

construction that a state agency has authoritatively

proffered. Hoffman Estates v. Flipside, Hoffman Es-

tates, Inc., 455 U.S. 489, 495 n.5 (1982). It is difficult to

understand, however, how or why a challenger can

mount a facial attack on a statute that is itself not

vague simply because an enforcement official has of-

fered an interpretation of the statute that may pose

problems down the road. See McGuire II, 386 F.3d at

58; see also Grayned, 408 U.S. at 108-09. As a matter of

logic, we do not believe that an official’s interpretation

can render clear statutory language vague so as to

make the statute vulnerable to a facial (as opposed to

an as-applied) attack.* See McGuire II, 386 F.3d at 58;

see also United States v. Protex Indus., Inc., 874 F.2d

740, 743 (10th Cir. 1989) (noting that a statute can be

void for vagueness, as applied, as a result of a retroac-.

tive expansion of precise statutory language through

interpretation).

Even were we to assume arguendo that the plain-

tiffs’ underlying point is that the statute itself is vague

and that this lack of precision is exacerbated by the At-

torney General’s guidance letter, another obstacle

would loom. Although the word “partisan” may be

vague at the margins, but see Broadrick, 413 U.S. at

* ‘The situation may well be different if the statute itself is

vague or ambiguous—but that is not the premise of the vagueness

argument that the plaintiffs are making here.

26a

608, that uncertainty would have no relevance here.

After all, the plaintiffs, by their own admission, want to

engage in anti-abortion protests; and that conduct, as

they must know, falls squarely within the hard core of

the proscriptions spelled out in the guidance letter.

We need go no further. “One to whose conduct a

statute clearly applies may not successfully challenge it

for vagueness.” Parker v. Levy, 417 U.S. 733, 756

(1974); see Broadrick, 413 U.S. at 608. That is precisely

the situation here.

F. Prior Restraint.

We need not linger long over the plaintiffs’ claim

that the 2007 Act constitutes an impermissible prior

restraint on speech. The case law makes manifest that

time-place-manner restrictions are analyzed under in-

termediate scrutiny and not under the more rigorous

standard that applies to prior restraints. See, e.g.,

Bl(a)ck Tea Soc’y, 378 F.3d at 12. Consequently, our

determination that the 2007 Act is a valid time-place-

manner restriction effectively forecloses the plaintiffs’

resort to case law involving prior restraints. See id.

(“If content-neutral prohibitions on speech at certain

places were deemed prior restraints, the intermediate

standard of review prescribed in the time-place-manner

jurisprudence would be eviscerated.”).

IV. CONCLUSION

To recapitulate, the 2007 Act represents a permis-

sible response by the Massachusetts legislature to what

it reasonably perceived as a significant threat to public

safety. It is content-neutral, narrowly tailored, and

leaves open ample alternative channels of communica-

tion. It is, therefore, a valid time-place-manner regula-

tion, and constitutional on its face.

27a

We add a caveat. This decision flows naturally

from the very heavy burden that plaintiffs must carry

in mounting a facial challenge to a state statute. Noth-

ing that we have said forecloses the possibility that, on

a better-developed record, this legislative solution may

prove problematic in particular applications.

Affirmed.

APPENDIX I: THE ATTORNEY GENERAL'S GUIDANCE.

The first exemption—for persons entering or leaving

the clinic—only allows people to cross through the

buffer zone on their way to or from the clinic. It does

not permit companions of clinic patients, or other peo-

ple not within the scope of the second or third exemp-

tions, to stand or remain in the buffer zone, whether to

smoke, talk with others, or for any other purpose.

The second exemption—for employees or agents of the

clinic acting within the scope of their employment—

allows clinic personnel to assist in protecting patients

and ensuring their safe access to clinics, but does not

allow them to express their views about abortion or to

engage in any other partisan speech within the buffer

zone.

Similarly, the third exemption—for municipal employ-

ees or agents acting within the scope of their employ-

ment—does not allow municipal agents to express their

views about abortion or to engage in any other partisan

speech within the buffer zone.

Finally, the fourth exemption—for persons using the

sidewalk or street adjacent to the clinic to reach a des-

tination other than the clinic—applies to individuals

who are crossing through the buffer zone, without

28a

stopping, to go somewhere other than a location within

the zone and other than the clinic, and who are not us-

ing the buffer zone for some other purpose while pass-

ing through. For example, an individual may cross

through the buffer zone to reach and speak with some-

one outside the zone, to reach and stand in a location

outside the zone (perhaps to engage in lawful protest,

other speech, or prayer), or to travel on to another

place altogether, provided that the individual does not

do anything else within the buffer zone (such as ex-

pressing their views about abortion or engaging in

other partisan speech).

29a

APPENDIX B

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

Civil Action No. 08-10066-J LT

ELEANOR MCCULLEN, JEAN BLACKBURN ZARRELLA,

GREGORY A. SMITH, CARMEL FARRELL,

AND ERIC CADIN,

Plaintiffs,

Vv.

MARTHA COAKLEY, in her capacity as Attorney General

for the Commonwealth of Massachusetts,

Defendant.

[573 F. Supp. 2d 382]

August 22, 2008

MEMORANDUM

TAURO, J.

Introduction

Plaintiffs challenge the facial constitutionality of a

recently revised Massachusetts statute, Mass. Gen.

Laws ch. 266, § 120E1/2 (“Act”), which establishes a 35-

foot fixed buffer zone around driveways and entrances

of reproductive health care facilities (“RHCFs”).' Fol-

' An Act Relative to Public Safety at Reproductive Health

Care Facilities, Chapter 155 of the Acts of 2007 (codified as

amended at Mass. Gen. Laws ch. 266, § 120E1/2 (2007)) (Trial Ex.

30a

lowing a Bench Trial held on May 28, 2008, this court

finds that the Act survives First Amendment, Equal

Protection and Due Process challenges.

Background

A. The Parties

Plaintiffs Eleanor McCullen, Jean Blackburn

Zarrella, Gregory A. Smith, Carmel Farrell and Eric

Cadin are Massachusetts residents who regularly en-

gage in pro-life counseling outside RHCFs.’ Defendant

Attorney General Martha Coakley is the chief lawyer

and law enforcement officer of the Commonwealth of

Massachusetts. As such, Attorney General Coakley

bears responsibility for enforcing the Act. She is sued

in her official capacity only.’

B. Procedural History

On January 16, 2008, Plaintiffs filed the Complaint,

advancing eight counts under 42 U.S.C. § 1983: (1) Free

Speech—Time, Place and Manner; (2) Free Speech—

Substantial Overbreadth; (8) Free Speech—Prior Re-

straint; (4) “Free Speech—Free Association—Free

Exercise Hybrid;” (5) Free Speech—Viewpoint Dis-

1) [#86]. The Act revised parts of Mass. Gen. Laws ch 266,

§ 120EF 1/2 (2000) (Trial Ex. 3) [#88]

? See Decl. of Eleanor McCullen (Trial Ex. 4) [#39]; Decl. of

Jean Blackburn Zarrella (Trial Ex. 5) [#40]; Decl of Carmel Farrell

(Trial Ex. 6) [#41]; Decl. of Eric Cadin (Trial Ex. 7) [#42]; Decl. of

Gregory A. Smith (Trial Ex. 8) [#43].

> See Compl. at 3 [#1].

3la

crimination; (6) Due Process—Vagueness; (7) Due

Process—Liberty Interest; and (8) Equal Protection.‘

Plaintiffs seek that this court: (1) declare that the

Act is unconstitutional on its face; (2) declare that the

Act is unconstitutional as applied at the Allston-

Brighton Planned Parenthood and Women’s Health

Service; (3) preliminarily’ and permanently enjoin De-

fendant from enforcing the Act; (4) award costs and at-

torneys fees; and (5) grant any other relief that this

court deems necessary and proper.°

Following Defendant’s Answer, and briefing on

Plaintiffs’ preliminary injunction motion, this court held

a Case Management Conference on April 23, 2008.

Without objection from the Parties, this court ordered

that the matter proceed on the merits in two stages:’

(1) a Bench Trial on Plaintiffs’ facial challenge; and (2) a

Bench Trial on Plaintiffs’ as-applied challenge.*

In early May 2008, the Parties stipulated to the

content of the Trial Record for the facial challenge,’ and

filed a Joint Trial Record with this court.'° On May 14,

* See id. at 13-22 [#1].

> Pls.’ Mot. for Prelim. Inj. [#2].

° See CompL at 22-23.

’ This court denied Plaintiffs’ Motion for Preliminary Injunc-

tion without prejudice to re-raising similar issues in a Bench Trial

on the merits. See Order [#34].

8 See id.

? See Joint Stipulation as to the Content of the Trial R. for the

Bench Trial of Pls.’ Facial Challenge [#35].

10 See Trial Exs. 1-29 [Docket Nos. 36-66].

32a

2008, the Parties filed Proposed Findings of Fact and

Conclusions of Law.'' Also on May 14, 2008, four indi-

viduals filed an Amicus Brief in support of Plaintiffs’

facial and as-applied challenges.’

On May 28, 2008, this court held a Bench Trial on

Plaintiffs’ facial challenge. The Parties presented ex-

tensive oral argument, and this court took the matter

under advisement."

Factual Findings

A. Notes on Factual Findings

1. Source

The following findings of fact derive from the Joint

Trial Record submitted by the Parties. Additionally,

this court takes notice of the findings of the First Cir-

cuit with respect to the legislative justification for the

original statute enacted in 2000 (“2000 Act”).'*

'! See Pls.’ Proposed Findings of Fact and Conclusions of Law

[#69] (“PF F”); Def.’s Proposed Findings of Fact and Conclusions of

Law [#70] (“DFF”).

12 Mem. of Amicae Curiae (#71).

'5 On June 3, 2008, Plaintiffs filed a Motion for Leave to File

Post-Argument Brief on the Trial of Facial Challenge (#72), which

Defendant opposed. See Opp’n to Pls.’ Mot. for Leave to File a

Post-Trial Brief [#73]. This court denied Plaintiffs’ motion. See

Electronic Order dated June 5, 2008. On June 16, 2008, this court

received a preliminary copy of the Bench Trial Transcript (“Pre-

lim. Bench Trial Transcript”).

'4 See McGuire v. Reilly, 260 F.3d 36, 39-41 (1st Cir. 2001)

(“McGuire I’’y, McGuire v. Reilly, 386 F.3d 45, 48-49 (1st Cir.2004)

(“McGutre IT”). See also, e.g., Daggett v. Comm’n on Governmen-

tal Ethics and Election Practices, 205 F.3d 445, 456 n. 9 (1st Cir.

2000) (“The Rules of Evidence state that the court may take judi-

33a

2. Focus on Facial Challenge

Plaintiffs urge this court to adopt various findings

of fact relating to, among other things, the following:

Plaintiffs’ activities at certain RHCF's; specific inci-

dents at certain RHCF's; and the operation. of the

buffer zone at certain RHCFs.'° Additionally, Defen-

dant asks this court to adopt certain findings of fact re-

lating to the effects of the Act, to date, at certain

RHCFs.'* While this information may be important to

Plaintiffs’ as-applied challenge, it is largely irrelevant

to the facial challenge. Moreover, because the as-

applied challenge will be tried separately, this court

does not have a complete record from which to make

such findings.

B. History of the 2000 Act

As noted by the First Circuit, “(bly the late 1990s,

Massachusetts had experienced repeated incidents of

cial notice of legislative facts whether requested or not. See Fed.

R. Evid. 201(c). A ‘legislative fact’ is defined as ‘one not subject to

reasonable dispute in that it is either (1) generally known within

the territorial jurisdiction of the trial court or (2) capable of accu-

rate and ready determination by resort to sources whose accuracy

cannot reasonably be questioned.’ Fed. R. Evid. 201(b).”); Daggett

v. Comm'n on Governmental Ethics and Flection Practices, 172

F.3d 104, 112 (1st Cir.1999) (“(S]o-called ‘legislative facts,’ which

go to the justification for a statute, usually are not proved through

trial evidence but rather by material set forth in the briefs, the

ordinary limits on judicial notice having no application to legisla-

tive facts.”) (citing Fed. R. Evid. 201 advisory committee’s note;

Knight v. Dugger, 863-F 2d 705, 742 (11th Cir.1988)).

15 See PFF at 2-10.

'6 See DFF at 16-18.

34a

g17

violence and aggressive behavior outside RHCFs.

These included a shooting that occurred on December

30, 1994, in which two people were killed and several

others injured.'* Massachusetts courts also issued nu-

merous injunctions prohibiting certain individuals from

engaging in violent, harassing or intimidating activity

at RHCFs.””

Responding to these concerns, “the Massachusetts

legislature, confronted with an apparently serious pub-

lic safety problem, investigated the matter thor-

oughly.”” “That investigation yielded solid evidence

that abortion protesters are particularly aggressive

and patients particularly vulnerable as they enter or

leave RHCFs.””"

Part of the investigation included a state senate

hearing on the matter in April of 1999.” At the hear-

ing, the “received testimony chronicled the harassment

and intimidation that typically occurred outside

"7 McGuire I, 260 F.3d at 38.

'8 See id. at App. B.

'9 See, ¢.g., Planned Parenthood League of Mass., Inc. v. Bell,

677 N.E.2d 204 (1997); Commonwealth v. Filos, 649 N.E.2d 1085

(1995); Planned Parenthood League of Mass., Inc. v. Blake, 631

N.E.2d 985 (1994); Commonwealth v. Cotter, 612 N.E.2d 1145

(1993); Commonwealth v. Brogan, 612 N.E.2d 656 (1993); Planned

Parenthood League of Mass., Inc. v. Operation Reacue, 550 N.E.2d

1361 (1990); Commonwealth v. Manning, 673 N.E.2d 73 (1996).

20 McGuire I, 260 F.3d at 44.

22 Id. at 39.

35a

RHCFs.”~ In addition, “numerous witnesses ad-

dressed the emotional and physical vulnerability of

women seeking to avail themselves of abortion ser-

vices, and gave accounts of the deleterious effects of

overly aggressive demonstrations on patients and pro-

viders alike.”

The senate, “[bJased in part on this testimony, ...

concluded that existing laws did not adequately protect

public safety in areas surrounding RHCFs,” and the

Legislature began considering new laws to address the

problem.” Initially, in Senate Bill 148, the senate con-

sidered a 25-foot fixed buffer zone around RHCF en-

trances and driveways. The First Circuit explained:

To remedy this situation, the senate favored

the creation of fixed buffer zones. The spon-

sors of the bill left no doubt that they intended

the proposed law to “increase public safety in

and around [RHCFs]’” while “maintaining the

flow of traffic and preventing congestion”

there. S.B. 148 ... § 1. In the bargain, the

sponsors expected the law to provide “reason-

able time, place and manner restrictions to rec-

oncile and protect both the First Amendment

rights of persons to express their views near

reproductive health care facilities and the

rights of persons seeking access to those facili-

3 Id. For copies of the written testimony received by the

senate, see Exhibits A-F to the Affidavit of Richard A. Powell

(Trial Ex. 29) [#66-2-7]. The testimony includes numerous specific

observations and incidents.

24 1d.

2S gq

36a

ties to be free from hindrance, harassment, in-

timidation and harm.” It thereby would “cre-

ate an environment in and around reproductive

health care facilities which is conducive to-

wards the provision of safe and effective medi-

cal services ... to its patients.” Jd.

Skeptics worried that the proposed law might

offend the Constitution. To stave off these

gloom-and-doom predictions, the senate, on

November 3, 1999, asked the Massachusetts

Supreme Judicial Court (SJC) for an advisory

opinion on the bill’s constitutionality.

On January 24, 2000, the SJC concluded that

the Constitution presented no obstacle to en-

actment. Opinion of the Justices to the Senate,

430 Mass. 1205, 1211-12, 723 N.E.2d 1 (2000).

The SJC advised that the bill, as framed, was

unrelated to the content of protected expres-

sion. Jd. at 1209. Moreover, the restrictions

imposed had a rational basis in view of the

heightened governmental interest that arises

when “advocates of both sides of one of the na-

tion’s most divisive issues frequently meet

within close proximity of each other in the ar-

eas immediately surrounding the State’s clin-

ics, in what can and often do become congested

areas charged with anger.” Id. at 1210.”

Following the SJC’s opinion, the state senate

adopted the bill on February 29, 2000.2” On June 28,

26 Id. at 39-40 (spacing modified).

27 Td. at 40.

37a

2000, however, the Supreme Court decided. Hill v.

Colorado.” There, the Court considered the constitu-

tionality of a Colorado statute that regulated speech-

related conduct around RHCFs.” The statute created

a “floating” buffer zone within a 100-foot “fixed” buffer

zone.’ Plaintiffs challenged the “floating” zone, which

“ma[de] it unlawful within the regulated areas for any

person to ‘knowingly approach’ within eight feet of an-

other person, without that person’s consent, ‘for the

purpose of passing a leaflet or handbill to, displaying a

sign to, or engaging in oral protest, education, or coun-

seling with such other person....’”*'

The Court upheld the Colorado statute as a valid

time, place and manner regulation, finding that the law

was “narrowly tailored” and “serve[d] governmental

interests that are significant and legitimate and that

the restrictions are content neutral.” This court will

address Hill in more detail below.

C. The 2000 Act”

Subsequently, the Massachusetts Legislature de-

cided to follow the Court-approved Colorado model of a

78 530 U.S. 703 (2000).

29 See id. at 707.

%© See id.

31 Id.

% Td. at 725-26.

33 Judge Harrington, at the trial level, and the First Circuit

on appeal, have adjudicated the constitutionality of the 2000 Act,

and much of the information in this section draws from their dis-

cussions in the McGuire line of cases.

38a

“floating” buffer zone within a “fixed” buffer zone. The

state house redrafted Senate Bill 148 accordingly, and

on July 28, 2000, adopted an Act Relative to Reproduc-

tive Health Care Facilities, Chapter 217 of the Acts of

2000 (“2000 Act”).* The senate approved on July 29,

2000, and Governor Celluci signed the bill on August 10,

2000.

The 2000 Act created an 18-foot fixed buffer zone

around RHCFs, within which a 6-foot floating buffer

zone existed around any person or occupied motor ve-

hicle:

(b) No person shall knowingly approach an-

other person or occupied motor vehicle within

six feet of such person or vehicle, unless such

other person or occupant of the vehicle con-

sents, for the purpose of passing a leaflet or

handbill to, displaying a sign to, or engaging in

oral protest, education or counseling with such

other person in the public way or sidewalk area

within a radius of 18 feet from any entrance

door or driveway to a reproductive health care

facility or within the area within a rectangle

not greater than six feet in width created by

extending the outside boundaries of any en-

trance door or driveway to a reproductive

health care facility at a right angle and in

straight lines to the point where such lines in-

4 See McGuire I, 260 F.3d at 40; Mass. Gen. Laws ch. 266,

§ 120E1/2 (2000) (Trial Ex. 3).

33 See McGuire I, 260 F.3d at 40; Mass. Gen. Laws ch. 266,

8 120E 1/2 (2000) (Trial Ex. 3).

39a

tersect the sideline of the street in front of such

entrance door or driveway.”

The 2000 Act, however, exempted certain groups

from its coverage:

(1) persons entering or leaving such facility;

(2) employees or agents of such facility acting

within the scope of their employment;

(3) law enforcement, ambulance, firefighting,

construction, utilities, public works and other

municipal agents acting within the scope of

their employment; and

(4) persons using the public sidewalk or street

right-of-way adjacent to such facility solely for

the purpose of reaching a destination other

than such facility.*’

Additionally, the provisions of the 2000 Act were

only in “effect during a facility’s business hours and

[only] if the area contained within the radius and rec-

tangle described in said subsection (b) is clearly marked

and posted.”**

D. Attorney General’s Guidance on the 2000 Act

On November 10, 2000, the Massachusetts Attor-

ney General’s office sent a letter to the Brookline and

Boston police departments regarding the 2000 Act.”

36 Mass. Gen. Laws ch. 266, § 120F1/2(2)\b) (2000) (Trial Ex.

3).

37 Id.

38 Id. § 120E1/2(2Xc).

39 See McGuire II, 386 F.3d at 52.

40a

The letter explained the Attorney General’s interpreta-

tion of the exemption for “employees or agents of such

facility acting within the scope of their employment,”

and “noted that if escorts were to approach within six

feet of a woman within the fixed buffer zone in order to

‘huri[] epithets at demonstrators,’ then their actions

would not be within the scope of their employment and

they would not be protected by the exemption.”*!

On May 23, 2001, members of the Attorney Gen-

eral’s office met with staff from the Planned Parent-

hood League of Massachusetts, “to communicate the

Attorney General’s interpretation that the Act’s ex-

emption for clinic employees and agents acting within

the scope of their employment would not protect such

persons if they were to use the exemption to engage in

counter-protests, counter-education, or counter-

counseling against anti-abortion views, rather than

simply assisting the patients into the clinic and protect-

ing clinic access.

On February 14, 2003, an assistant attorney gen-

eral issued a letter to the police departments with

RHCFs affected by the 2000 Act.*? The letter reiter-

Mass. Gen. Laws ch. 266, § 120E1/2(2)(b) (2000) (Trial Ex.

3).

4! McGuire IT, 386 F.3d at 52.

“2 Td. Also during July of 2001, the Attorney General’s office

provided training consistent with its November 10, 2001 guidance

letter to the Boston and Brookline police departments. Id.

3 McGuire v. Reilly, 271 F. Supp. 2d 335, 339 (D. Mass. 2003)

(Harrington, J.), aff'd, McGuire IT, 386 F.3d 45 (1st Cir. 2004).

Hereinafter, this court will refer to the letter as the “2003 Guid-

ance Letter.”

4la

ated that “ ‘all persons in the restricted area, including

clinic employees and agents, are subject to the restric-

tions in Section 120E 1/2(b) of the Act, including the re-

striction on oral protest, education, or counseling{,}’ and

that clinic employees and agents may not use the ex-

emption to ‘express their views about abortion[.]’”“

As noted by the First Circuit, this letter “did not sig-

nify a new interpretation; it was merely a restatement

of an old position. In this most recent clarification of

the interpretation, the Attorney General has clearly

construed the exemption to exclude pro-abortion or

partisan speech from the term ‘scope of their employ-

ment.’ >

E. McGuire I and McGuire II

Three pro-life “sidewalk counselors” challenged

the facial and as-applied constitutionality of the 2000

Act in a federal lawsuit in this District. Judge Harring-

ton found that the statute—on its face—violated the

First Amendment, and preliminarily enjoined its en-

forcement pending a hearing on the merits.*’

In McGuire v. Reilly (“McGuire I’), the First Cir-

cuit reversed, holding that the statute lawfully regu-

lated the time, place and manner of speech without dis-

criminating based on content or viewpoint, and re-

“ Td. at 339-40.

S McGuire II, 386 F 3d at 52 n.1.

46 Td. at 48.

*” See McGuire v. Reilly, 122 F. Supp. 2d 97 (D. Mass. 2000)

(Harrington, J.), rev'd, McGuire I, 260 F.3d 36 (1st Cir. 2001).

42a

manded the case to the district court for further pro-

ceedings.“

On remand, the plaintiffs pressed facial and as-

applied challenges on the merits. Based on the First

Circuit’s decision in McGuire I, Judge Harrington

granted Defendants summary judgment on Plaintiffs’

facial challerige,”’ but denied summary judgment on the

as-applied challenge pending additional discovery and

the filing of a renewed motion for summary judgment.”

After additional discovery, Judge Harrington

granted Defendants summary judgment on the as-

applied challenge.*' On the issue of enforcement follow-

ing McGuire I, Judge Harrington found that “the Act

has since been interpreted by the Attorney General so

as to require evenhanded enforcement of its prohibi-

tions, even against clinic employees and agents, and the

Attorney General’s interpretation has been adopted by

the law enforcement authorities.”

In McGuire v. Reilly (“McGuire IT’), the First Cir-

cuit affirmed summary judgment on both the facial and

as-applied challenges.°> McGuire I controlled the facial

challenge, and the plaintiffs “offered no reason why the

48 See McGuire I, 260 F.3d 36.

9 See McGuire v. Reilly, 230 F. Supp. 2d 189, 193 n.10 (D.

Mass. 2002) (Harrington, J.).

5° Td. at 194.

>! See McGuire v. Reilly, 271 F. Supp. 2d 335 (D. Mass. 2003)

(Harrington, J.), aff'd, McGuire II, 386 F.3d 45 (1st Cir. 2004).

5? Td. at 341.

53 See McGuire I, 386 F 3d 45.

43a

conclusion reached in McGuire I ... is flawed.”™ Addi-

tionally, the court concurred with Judge Harrington’s

assessment of the Commonwealth’s enforcement posi-

tion, holding that “{tJhe Attorney General’s interpreta-

tion ... is important for our purposes ... because it is

clearly a proper, content-neutral way of interpreting

the exemption.” With respect to the as-applied chal-

lenge, the court concluded that “there is no evidence

that the police have enforced this statute in anything

other than an evenhanded way....”*°

F. The Legislature Determines that the Statute

Needs to be Revised

1. Proposed Senate Bill 1353

Following the passage and operation of the 2000

Act, members of the Legislature became aware of con-

tinued and serious public safety problems in the areas

adjacent to RHCF entrances and driveways, including

significant concerns regarding safe patient access to

medical services.*’

In 2007, responding to these concerns, several

members of the Legislature introduced Senate Bill

1353, “An Act Relative to Public Safety.” The pro-

posed preamble read:

” Id. at 59.

> Td. at 64.

%© Td at 65.

fs See, e.g., Hearing Transcript at 7-13 (egislators—including

some of the bill’s sponsors—discussing public safety concerns at

RHCFs, problems with the 2000 Act, and the origins of Senate Bill

1353).

44a

Whereas preservation of public safety is a fun-

damental obligation of state government;

Whereas pedestrians have a right to travel

peacefully on Massachusetts streets and side-

walks; and

Whereas clearly defined boundaries improve

the ability of safety officials to protect the pub-

lie;**

The bill modified the size and nature of the buffer zone:

(b) No person shall knowingly enter or remain

on a public way or sidewalk adjacent to a re-

productive health care facility within a radius

of thirty-five feet of any portion of an entrance,

exit or driveway of a reproductive health care

facility or within the area within a rectangle

created by extending the outside boundaries of

any entrance to, exit from or driveway of, a re-

productive health care facility in straight lines

to the point where such lines intersect the side-

line of the street in front of such entrance, exit

or driveway.””

*8 an Act Relative to Public Safety, S.B. 1353, 185th Gen.

Court (Mass.2007) (enacted), Ex. A to Aff of Adam T. Martignetti

(“Martignetti Aff.”) (Trial Ex. 24) [#61-2]. Plaintiffs argue that the

preamble constitutes “three very different facts underlying [the

bill’s] purpose.” PL Mem. in Supp. of Mot. for Prelim. Inj. at

52{#16]. This court disagrees. All three sections of the preamble

clearly relate to public safety.

39 id

45a

The Legislature’s Joint Committee™ on Public

Safety and Homeland Security (“Committee”) held a

public Hearing on the bill on May 16, 2007, and received

written and oral testimony from law enforcement offi-

cials;*' RHCF staff, volunteers and representatives;

and representatives of various advocacy organiza-

tions.” At the Hearing, the Committee also viewed

video footage and photographs of protest activity at

ceived written correspondence supporting and oppos-

ing the bill.“

2. Public Safety and Access to Medical Ser-

vices

The Committee received testimony that, despite

the 2000 Act’s floating and fixed buffer zones, signifi-

cant public safety concerns continued to exist at

RHCFs in the Commonwealth, including major con-

cerns regarding safe patient access to medical services.

“ Members of the state house and senate serve on the Com-

mittee.

®! Captain Williams Evans (“Evans”) of the Boston Police

Department testified. Evans is the police commander for the

South End, Back Bay, Lower Roxbury and Fenway sections of

Boston. See Transcription of Videotape of Hearing of the Joint

Committee on Public Safety and Homeland Security at 25 (“Hear-

ing Transcript”), Ex. C to Aff. of Vineeth Narayanan (“Narayanan

Aff.”) (Trial Ex. 26 [#63-4]. Attorney General Coakley, Mary Beth

Heffernan, Undersecretary for Criminal Justice, and William

Keating, Norfolk County District Attorney, also testified.

®2 See Martignetti Aff. at 1 (Trial Ex. 24)[#61].

63 See, e.g., Hearing Transcript at 16 (Trial Ex. 26) [#63-4].

See Compilation of Letters at 2-25 (Trial Ex. 17)[#52].

46a

Attorney General Martha Coakley (“Coakley”) ex-

plained that the fixed buffer zone was necessary to ad-

dress the situation:

This is an important public safety issue. Over

the years, reproductive healthcare facilities

have been the scene of mass demonstrations,

congestion, blockages, disturbances, and even

murders. SB 1353 will help ensure greater

safety along our public ways and sidewalks and

prevent violence, harassment and intimidation

of women who are attempting to exercise their

fundamental right to access health care.

I support the bill’s recognition that “clearly de-

fined boundaries improve the ability of safety

officials to protect the public.”

Facility employees, volunteers, patients and

prospective patients are routinely harassed as

they try to enter and exit facilities for medical

counseling and treatment. For example, at the

Boston location, which has a recessed door,

protesters are able to stand close to the en-

trance, with some protesters standing right at

the entrance. Demonstrators regularly crowd

facility entrances and surround women, facility

employees and volunteers with graphic and

discomfiting pictures of aborted fetuses, and

shout at and taunt them calling them “baby

killers” and “murderers.”

[P]atients and employees are forced to step

around or through the protestors as they make

47a

their way into the building. We have heard of

some cases where women arrive at the facilities

and then leave because they are too upset to

pass through the gauntlet of protestors.

Protestors also stand and block cars as patients

and employees attempt to enter the driveway

or garage entrance to these facilities. Other

times, protestors circle cars and put their faces

against, or in close proximity to, the car win-

dows to scream at and sometimes videotape

people in their cars. In some cases, protestors

throw anti-abortion literature and leaflets into

people’s cars as they enter or exit the facilities.

Even more egregious are the protestors who

dress as Boston Police Department officers and

approach women and their companions at close

distance, pretending that they are escorting

them to the clinic’s entrance, only to taunt

them or force leaflets into their hands as they

make their way to and from the healthcare fa-

cilities.

All of these actions can and do easily spark re-

action and response and create an unsafe, dan-

gerous risk along our public ways. The actions

directly impede the normal flow of traffic along

the Commonwealth’s public ways and side-

walks and hinder women’s ability to access re-

productive healthcare.”

The Legislature also heard testimony from RHCF

staff, volunteers and law enforcement personnel re-

65 Martha Coakley Written Testimony, Ex. D to Martignetti

Aff. (Trial Ex. 24) [#61-5] (spacing modified).

48a

garding specific incidents of patient harassment and

intimidation in the areas immediately outside RHCF

entrances and driveways. Additionally, the Legislature

learned about protesters blocking access RHCF's by

physically positioning themselves very close to RHCF

entrances and driveways.” Examples included the fol-

lowing:

e One clinic volunteer at a Boston RHCF reported:

The protestors are moving closer and

closer to the main door. They scream and

block the way for the patients to get into

the clinic. We fill out police reports almost

every week regarding the way they en-

croach upon the door, but nothing has

changed.

They get very close to the ne and es-

corts inside the buffer zone..

[Tyhey’re getting so close that patients are

terrified to even walk into the clinic. I’ve

® Indeed, Captain Evans testified:

A lot of people are under the misconception that (the

law] prevents protestors from going into that buffer

zone, which is incorrect. Protestors can stand up right in

front of the door. A lot of them hold signs right there.

As long as they stay stationary, you know, they can

stand in front of that door. William Evans Oral Testi-

mony, Hearing Transcript at 25 (Trial Ex. 26) [#63-4].

°’ Gail Kaplan Written Testimony, Ex. C to Martignetti Aff.

(paragraph number omitted) (Trial Ex. 24) (#61-4].

$8 Id. (paragraph number omitted).

49a

had people ask me, isn’t there a back

way....”

When it is raining, it is exceptionally bad.

Many of the protestors are inside the

buffer zone with very large umbrellas and

have no regard for who they hit with them.

I have often been swiped with the points on

their umbrellas and have nearly fallen to

avoid being hit.”

e The president of Planned Parenthood League of

Massachusetts personally observed the following at

the organization’s Boston facility:

Protestors screaming at patients and employ-

ees inside the current ‘buffer zone’, usually

right at the doorway....

Protesters photographing and filming into pa-

tients and employees’ cars and taking photos of

license plate numbers to post on websites

Protesters standing in front of cars and the

keypad to the garage to block access, so that

they can throw pamphlets and other propa-

ganda into cars entering the garage

And, most deceptively, I’ve seen protesters

dress up wearing Boston Police T-shirts and

hats, trying to collect patient contact informa-

tion, videotaping, and in other ways trying to

(Trial Ex. 26) [#63-4].

” Gail Kaplan Written Testimony, Ex. C to Martignetti Aff.

(paragraph number omitted) (Trial Ex. 24) [#61-4}.

50a

intimidate those who are simply exercising

their legal right to seek confidential medical

services

e A Planned Parenthood volunteer reported that

protesters stood in front of the building’s entrance,

“every Saturday morning, every week.”” She ex-

plained:

There are several long-time protesters who

appear in front of Planned Parenthood....

When women approach the building, pro-

testers fan out and approach them.

The clear intent of the vast majority of pro-

testers is to deter people from entering the

building at all. The current buffer zone ...

does not permit protesters to ‘approach’

anyone without consent in the zone, but it

does not speak to standing still in front of

the building’s entrance and thereby forcing

patients to approach them.

Physical blocking is practiced regularly by protest-

ers. They either stand in front of the door, in the mid-

dle of the sidewalk, or in front of car doors as cars pull

up to the sidewalk. Some people pull up in cars and roll

down their window to ask about the clinic’s secure

™ Diane Luby Written Testimony at 2, Ex. G to Martignetti

Aff. (Trial Ex. 24) [#61-8].

” {iz McMahon Written Testimony at 1, Ex. F to Martignetti

Aff. (Trial Ex. 24) [#61-7].

5la

parking garage. If the protesters get to the car first,

they have been repeatedly heard to tell people that the

garage is closed, when it is not. They also shove pam-

phlets through the open window, regardless of the oc-

cupant’s requests.

In the rear of the building, near the clinic’s garage

entrance ... protesters often wait by the door and video

tape the patients’ cars’ license plates.”

e At an Attleboro RHCF, a patient advocate re-

ported:

[P]rotesters impede access to clinic doors,

but also create safety issues for the general

public trying to use sidewalks, streets or

driveways.

[P}rotesters walk back and forth across the

entrance of the driveway.... Though pro-

hibited from standing in the entrance of the

driveway, they frequently stop there until

threatened with police action. There have

been instances of picketers either slowing

or speeding up to narrowly avoid being hit

by cars driven by staff. Patients have re-

ported feeling too intimidated by the pac-

ing protesters to enter the property, and

turning back.”

™ Td. at 1-2.

™ Melissa Conroy Written Testimony, Ex. B to Martignetti

Aff. (Trial Ex. 24) [#61-3].

o2a

e 1 At one RHCF, on a weekly basis, women try to

drive to the facility but turn away “because they’re

afraid to enter the parking lot entranceway, [pro-

testers] will block so as not to allow the car to come

in, and then we have the other protestors dressed

in paraphernalia who will come over to the window

with a clipboard and ask them to please sign in be-

fore they come through the driveway.””

e Likewise, at one RHCF, “You can also see people

circling in the same car around and around, and

every time they pull up, you can see that they want

to go out and they'll ask where is the garage and

then they never stop.””°

e A protester followed a woman into a Boston RHCF

entranceway. At the same location, another pro-

tester approached and placed her head inside a car

outside the clinic.”

e A protester wearing a “Boston Police” shirt, stand-

ing immediately next to a car trying to enter an

RHCF garage.”

e Protestors “wearing police hats and police uni-

forms” as a way to get patients and others to con-

sent to an approach.”

’ Michael Baniukiewicz Oral Testimony, Hearing Transcript

at 50-51 (Trial Ex. 26) [#63-4].

7€ 1 iz, McMahon Oral Testimony, Hearing Transcript at 51

(Trial Ex. 26) [#63-4].

” See Martha Coakley Oral Testimony, Hearing Transcript at

18-19 (Trial Ex. 26) [#63-4].

"8 William Evans Oral Testimony, Hearing Transcript at 36

(Trial Ex. 26) [#63-4].

dda

3. Law Enforcement’s Position

The Legislature also received testimony about the

difficulties of enforcing the 2000 Act.” The record

demonstrates that these difficulties reduced the effi-

cacy of the statute’s intended protections, and were

part of the reason that significant public safety con-

cerns continued to exist at RHCF's. Attorney General

Coakley explained:

The current law provides no clearly defined

boundary because it is a “floating” buffer zone

within a defined radius of eighteen feet, so the

buffer zone effectively moves and shifts as peo-

ple pass along the public way to facility en-

trances or driveways. Either ignoring the law,

or inadequately measuring the six-foot distance

around a moving person, protestors routinely

invade the existing buffer zone in violation of

the law. This fact alone has made it very diffi-

79 Id. at 35-37.

8 Plaintiffs argue that because a proposed amendment to

Senate Bill 1353 did not make it into the final biil, “it appears the

General Court rejected allegations that the [2000] Act was en-

forceable.” Pl. Mem. in Supp. of Mot. for Prelim. Inj. at 51. The

proposed amendment was a line that stated, “The general court

hereby finds that law enforcement officials have testified about

practical problems related to the enforcement of [the 2000 Act].”

Id. (citing Mass. Senate Journal, Oct. 23, 2007). This argument is

unpersuasive. The Legislature may not have adopted this

amendment for a number of reasons, upon which this court will not

speculate. Regardless, however, of why this line was not included,

the Legislature heard and considered testimony regarding en-

forcement difficulties with the 2000 Act. The record also demon-

strates that enforcement difficulties were related to the public

safety problems.

54a

cult if not impossible for police to be able to

immediately or ever determine whether a vio-

lation has occurred.

Another problem with the existing law is the

inability to discern whether a patient, her com-

panions, or facility employees have consented

to a given protester’s approach. Some protest-

ers have said that they believed that a patient

“consented” because of the way she made eye

contact or because a patient uttered a state

ment in response to a protestors comment

(even if that statement was not one of consent)

Given the lack of a clearly defined buffer zone

boundary, it has been very difficult, if not im-

possible, for police officers to monitor the dis-

tance these protestors maintain between them-

selves and the persons approaching the facili-

ties and determine if there has been a violation;

in other words, to enforce the law.”

Echoing Coakley’s remarks, Massachusetts law en-

forcement personnel reported significant difficulties in

enforcing the 2000 Act, and urged legislators to modify

the law. Captain Evans reported, “This law, the way it

stands, the current buffer zone with the 18-foot buffer

zone, makes it very difficult for us to enforce the law.””

Mainly, the police had trouble determining whether a

8! Martha Coakley Written Testimony at 46, Ex. D to Mar-

tignetti Aff. (emphasis in original) (spacing modified) (Trial Ex. 24)

[#61-5].

®2 William Evans Oral Testimony, Hearing Transcript at 25

(Trial Ex. 26) [#63-4].

55a

protester had “approached” a person within the six feet

floating buffer, without that person’s consent. Evans

explained:

What [the protesters] have to do is make an

approach. Now what an approach is is very

hard to determine; whether they stick out their

hand, that’s an approach; where they take a

step forward, that’s an approach. Basically, it

turns us into basically something like—I like to

make the reference of a basketball referee

down there, where we’re watching feet, we’re

watching hands.™

This “constant watching” proved difficult and cre-

ated a public safety problem. At one of the RHCFs, for

example, there have been “over 100 protestors every

Saturday and a lot of them go right up in the faces of

patients entering the premises.”” Additionally, such

surveillance was a significant “tying up of resources”

that the police “had to deal with [for] seven years.””°

Contrary to Plaintiffs’ assertions at oral argu-

ment,” the police and district attorneys tried to prose-

cute violations of the 2000 Act. Evans indicated his

frustration with trying to prosecute violations at one of

the RHCF locations:

We’ve trying [sic] everything, honestly. We’ve

tried violation of the buffer zone, and we’ve

83 Td. at 25-56.

® Td. at 26-27.

85 Td. at 26.

8 See, e.g., Prelim. Bench Trial Transcript at 73.

o6a

brought a few cases up to Brighton Court and

the court has basically not supported us....

Chairman, we know all the players down there.

We know the regular protesters. We back up

the stay-away orders and nothing seems to

work down there.*’

Evans noted that at one of the RHCFs, police had

made “no more than five or so arrests.”™ The low num-

ber of arrests, however, was due to the difficulty of en-

forcing the law, not a lack of problematic conduct. Ev-

ans explained:

Again, [it is] a very difficult law to enforce,

what an approach is, what isn’t. I mean, like I

said, people can stand inside the buffer zone,

and given the current set up of Planned Par-

enthood there, their door is in 10 feet of—

actually, their buffer zone is really only 8 feet

outside because of the setup.

So it’s such close quarters as it is there that

everybody is in everybody’s face, no matter

what. So the buffer zone basically is no good, it

really isn’t, because just the proximity. It’s

almost like a goalie’s crease out there....

So given that fact, it makes it very difficult for

us to say someone is violating it because

57 William Evans Oral Testimony, Hearing Transcript at 34-

35 (Trial Ex. 26) [(#63-4].

88 7d. at 33.

57a

they’re allowed to stand outside the door, with

the sign in their hand.”

In response to these problems, Captain Evans

urged the Legislature to implement the 35-foot fixed

buffer zone:

Week in and week out, we are constantly re-

ceiving calls down there [at one of the facili-

ties], both from protestors and from Planned

Parenthood on violations. I think clearly hav-

ing a fixed buffer zone, where everyone knows

the rules and nobody can go in that and protest,

will make our job so much easier. I think

you've seen the video; you see what we have to

deal with. You know, it’s a very difficult rule to

enforce.

You know, there’s the misconception that it’s a

fixed area where no protestors can go. That

would be great. That would make our job so

much easier.

So I encourage the Committee and the legisla-

tors to support this bill. Not only will it safe-

guard the patients going in there, but it will

also make the public safety official’s job a lot

easier. So I welcome the 35-foot buffer zone.”

With respect to the problem of protesters wearing po-

lice hats and uniforms, Evans noted:

89 Id. at 33-34.

% Id. at 26-27.

58a

[Wle’ve tried everything, and I think the only

thing honestly that will keep these people out

and the patients safe is to establish a fixed

zone. That way there’s no watching feet,

watching hands and allowing protesters right

up in their face.”!

4. First Amendment Concerns Articulated

by Advocacy Groups

The Public Safety Committee also received testi-

mony and correspondence from several organizations

that voiced First Amendment concerns about the bill.

For example, the American Civil Liberties Union of

Massachusetts opposed the bill, mainly on overbreadth

grounds.” Wendy Kaminer of the Defending Dissent

Foundation expressed her “dismay about the effect of

this bill on free speech.”” Marie Sturgis of Massachu-

setts Citizens for Life, Inc. testified, “To increase the

size of

This text is long and has been trimmed here. Open the source document for the complete record.

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