John Roberts Jr.
John Roberts Jr. (Photo: Diego M. Radzinschi / NLJ)

A 35-foot, no-protest zone around abortion clinics in Massachusetts violates the First Amendment speech rights of those seeking to speak to the women who enter, the U.S. Supreme Court ruled on Thursday.

Writing for the court, Chief Justice John Robert Jr. said the state has “undeniably significant interests in maintaining public safety” on streets and sidewalks near clinics. “But here the commonwealth has pursued those interests by the extreme step of closing a substantial portion of a traditional public forum to all speakers,” the chief justice said. “It has done so without seriously addressing the problem through alternatives that leave the forum open for its time-honored purposes. The commonwealth may not do that consistent with the First Amendment.”

The decision in McCullen v. Coakley was the first time that the high court had revisited the speech ramifications of states’ attempts to prevent violence or disturbances around abortion-clinic entrances since upholding an eight-foot buffer zone in its 2000 ruling in Hill v. Colorado. The Hill decision was 6-3, with justices Antonin Scalia, Anthony Kennedy and Clarence Thomas dissenting.

The Massachusetts case was closely watched not just because of its potential impact on abortion clinics but because of its possible significance for the constitutionality of a host of other types of buffer zones, such as those around public buildings and military facilities, among others.

Municipalities in California, Colorado, Florida, Montana and elsewhere reportedly have enacted similar “fixed” and “floating” buffer zone laws for clinics.

Reacting to years of violence, threats to public safety and chaos at clinic entrances, the Massachusetts Legislature, with support from law enforcement, in 2007 expanded a 2000 law that prevented protestors from approaching within six feet of a person who was within 18 feet of an abortion clinic.

The 2007 law prohibits all persons from remaining within the 35-foot buffer zones with four exceptions: people entering or exiting the facility, clinic staff acting within the scope of their employment, law enforcement and other public service officials acting within the scope of their employment, and people using the area solely to reach another destination.

In 2008, Eleanor McCullen and other Massachusetts antiabortion activists challenged the law, arguing it violated the First and 14th amendments on its face and as applied to them. A district court upheld the law, finding that it was a content-neutral time, place and manner regulation. The U.S. Court of Appeals for the First Circuit, affirmed and held that the law was narrowly tailored, not overbroad, and left ample alternative ways of communication.

The high court agreed that the buffer zone was content-neutral, but still found it unconstitutional because it interfered with free speech on public sidewalks, which are traditionally viewed as public fora where demonstrations can occur.

The court invoked a 1983 ruling that involved demonstrations on the sidewalk in front of the Supreme Court itself, which found that such areas “immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.”

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