1. Massachusetts has a law that makes it a crime for speakers other than clinic employees or agents acting within the scope of employment to “enter or remain on a public way or sidewalk” within 35 feet of an entrance, exit, or driveway of “a reproductive health care facility.” Did the First Circuit err in upholding this law under the First and Fourteenth Amendments, on its face and as applied to petitioners?
2. If Hill v. Colorado, 530 U.S. 703 (2000), permits enforcement of this law, should Hill be limited or overruled?
Lower court opinion: McCullen v. Coakley, 7o8 F.3d 1 (1st Cir. 2013).
Wisconsin’s counterpart statute is § 943.145. Like the Massachusetts law, it was enacted to create a buffer zone around medical facilities that perform abortions. But that may be about the only thing they have in common. Our law is not limited specifically to reproductive health care facilities, but any medical facility; it has no specified buffer zone, but instead proscribes entry without consent under circumstances that tend to create or provoke a breach of the peace; and it doesn’t exempt a clinic’s agents or employees, a feature of the Massachusetts law that petitioners say violates the First Amendment because it isn’t content-neutral, as clinic personnel on the job can speak (presumably from the clinic’s point of view) where others can’t. (Our statute was held to be content-neutral (and not unconstitutionally vague) in State v. Migliorino, 150 Wis. 2d 513, 524-30, 442 N.W.2d 36 (1989).) Given the differences between the two statutes, it seems unlikely the decision in this case will affect the validity of Wisconsin’s law.
As the First Circuit’s opinion explains in its opening paragraphs, there have been serial facial and as-applied challenges to the Massachusetts law, all of which have been rejected, and the latest of which the First Circuit describes as “a salmagundi of arguments, old and new, some of which are couched in a creative recalibration of First Amendment principles.” This case just might recalibrate First Amendment principles if the Court uses it to limit or overrule Hill. That case upheld a Colorado buffer zone law similar in many ways to the Massachusetts law, although the statute in Hill is perhaps more content neutral than the Massachusetts statute. That may be enough basis for the Court to distinguish the two laws and leave Hill alone; on the other hand, the membership of the Court has changed since Hill, in which the swing-voting Justice Kennedy wrote a dissent. If this cert grant means Hill is in jeopardy, the decision in this case could be significant.