# Petition for Writ of Certiorari — McCullen v. Coakley > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1249%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2010 - **Citation:** 559 U.S. 1005 ## Text rilew No.08- g 9 - 592 ic) 13.200 vw LEU 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, v. 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) iv 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 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. 9 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- 10 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- 1] 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 12 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 13 726-727 (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.” 14 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.”). 15 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- © See also Halfpap v. City of West Palm Beach, 2006 WL 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.’ ”). 16 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 17 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). 18 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 19 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. 20 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. 21 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] 22 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 23 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”). 24 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)). 25 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 26 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”). 27 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- 28 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.”). 29 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). 30 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 31 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. 32 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. 33 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. 34 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 la 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. 2a 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). 3a 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- 4a 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 5a 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: 6a (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- Ta 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 8a 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 Ya (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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1249%3A1. Public record. Not legal advice.