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SCOTUS: Fixed buffer zone around abortion clinics unduly burdens free speech rights

McCullen v. Coakley, USSC No. 12-1168, 2014 WL 2882079 (June 26, 2014), reversing McCullen v. Coakley, 708 F.3d 1 (1st Cir. 2013); Scotusblog page (includes links to briefs and commentary)

In this decision the Supreme Court strikes down a Massachusetts law making it a crime to stand on a public road or sidewalk within thirty-five feet of a reproductive health care facility. While all the justices agree the law violates the First Amendment, they do not agree on the reasons for reaching that result.

A majority of the Court concludes that, contrary to the abortion foes who challenged the law, the buffer zone law does not regulate the content or viewpoint of speech, and so does not violate the First Amendment in that regard. (Slip op. at 8-18). However, the law is not narrowly tailored to advance the state’s interests of protecting patients and maintaining order outside clinics, and thus burdens substantially more speech than is necessary. (Slip op. at 18-29). The Court notes no other state uses a buffer zone like this one, and already includes a separate provision that specifically addresses misconduct outside clinics and imposes criminal penalties for violations, which is what most other states have done. (Slip op. at 23-25).

Four justices (Scalia, Kennedy, Thomas, Alito) concur in the judgment, but on the ground that the law is an improper regulation of the content of speech, as it is aimed solely at anti-abortion advocacy.

Wisconsin’s counterpart statute, § 943.145, is not affected by this ruling. Our statute has no specified buffer zone, but instead proscribes entry without consent under circumstances that tend to create or provoke a breach of the peace. That would seem to make it an example of the narrowly tailored approach the majority says is appropriate. (Slip op. at 23-24). Also, our statute was held to be content-neutral in State v. Migliorino, 150 Wis. 2d 513, 524-30, 442 N.W.2d 36 (1989).

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