First Amendment - Freedom of Speech - Content Neutrality

Harvard Law Review, November 2014 | Go to article overview

First Amendment - Freedom of Speech - Content Neutrality


For over forty years, the distinction between content-based and content-neutral restrictions on speech has been central to the Supreme Court's First Amendment jurisprudence. With few exceptions, the Court has struck down laws that make facial distinctions between different subject matters or viewpoints, while upholding those that do not. Last Term, in McCullen v. Coakley, (1) the Supreme Court held that a law establishing a fixed buffer zone outside of Massachusetts abortion clinics was a content-neutral "time, place, or manner" restriction on speech, but that it was unconstitutional because it was not narrowly tailored. The Court instead should have recognized that a restriction on speech that applies only at abortion clinics is content based, but that because it protects women's constitutional right to seek abortions, it could, with more adequate tailoring, survive strict scrutiny.

Massachusetts has long been a focal point in the dispute over abortion rights in the United States. During the 1990s, the state "experienced repeated incidents of violence and aggressive behavior outside" abortion clinics. (2) In response, the Massachusetts legislature in 2000 enacted a statute --modeled after a provision upheld by the Supreme Court in Hill v. Colorado (3)--that limited protest activities outside of abortion clinics. (4) But by 2007, some state officials, citing difficulties in enforcement, had "come to regard the 2000 statute as inadequate," (5) and the legislature amended it in November of that year. (6) The amended statute provided that "[n]o person shall knowingly enter or remain on a public way or sidewalk adjacent to a reproductive health care facility within a radius of 35 feet." (7) It made exceptions for four classes of individuals, including "employees or agents of such facility acting within the scope of their employment." (8)

Eleanor McCullen is a Massachusetts pro-life activist who regularly engages in advocacy outside of abortion clinics. Eschewing the confrontational tactics of some protesters, McCullen conducts "sidewalk counseling," in which she offers information about alternatives to abortion while maintaining a "caring demeanor ... [and] a calm tone of voice." (9) In 2008, McCullen and several coplaintiffs sued Massachusetts Attorney General Martha Coakley in her official capacity, arguing that the 2007 Act violated the First and Fourteenth Amendments both facially and as applied to them. (10) Following a bench trial, the district court rejected the plaintiffs' facial challenge, holding that the Act was content neutral and that it satisfied intermediate scrutiny. (11)

The First Circuit affirmed. The court unanimously held that the Act was content neutral because the record amply supported Massachusetts's position that the law was enacted for permissible purposes unrelated to the content of any speech. (12) The court also rejected plaintiffs' arguments that the Act's exemption for clinic employees and the fact that it applied only at abortion clinics rendered it content based, stressing that "the mere fact that a content-neutral law has a disparate impact on particular kinds of speech is insufficient, without more, to ground an inference that the disparity results from a content-based preference." (13) Having determined the law was content neutral, the court found the Act sufficiently tailored to survive intermediate scrutiny. (14) On remand, the district court rejected the plaintiffs' as-applied challenges, (15) and the First Circuit affirmed once more. (16)

The Supreme Court reversed. Writing for the Court, Chief Justice Roberts (17) found that while the Act was content neutral, it was not narrowly tailored and thus could not satisfy intermediate scrutiny. The Chief Justice began his analysis by articulating the degree to which the government may permissibly regulate speech in a public forum. (18) These areas are among the most important "venues for the exchange of ideas," (19) and as a result, "the government's ability to restrict speech in such locations is 'very limited. …

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