The U.S. Supreme Court handed down a decision on June 26 that, while divided in its reasoning, was unanimous in its sensible bottom line: States cannot ban speech when they can just ban conduct.
The decision in McCullen v. Coakley overturned Massachusetts’ abortion clinic buffer-zone law, which created a no-speech zone on public sidewalks and roads within 35 feet of clinic entrances. The opinion for the court, written by the Chief Justice John Roberts Jr. and joined by the court’s four liberals, found the law to be content-neutral — meaning its restrictions applied without reference to the content of the speech — despite an exception allowing speech by clinic representatives. However, the court found the regulation to be invalid because it was not narrowly tailored — and thus restricted too much speech — to the government interest of maintaining clinic safety. The court insisted that Massachusetts instead should enforce the numerous state and federal criminal laws banning everything from assault and harassment to blocking clinic entrances.
In one sense, this result was broad: It decided more than was necessary to reach the result, and in the process provoked a passionate concurrence in the judgment by four justices who believed the law was not content-neutral. Roberts passed up an opportunity to write a narrow decision that was truly unanimous — all the justices could have signed a decision focusing on narrow tailoring notwithstanding their views on content neutrality.
But, in another sense, the McCullen decision was narrow: It refrained from overruling Hill v. Colorado, which upheld an eight-foot floating buffer zone around medical facilities. Hill is an anomaly in First Amendment law criticized by scholars on both the left and the right for downgrading protection for speech in a public forum and blurring the lines between content-based and content-neutral laws.
The ­majority’s analysis strikingly ignores Hill altogether, even though its constitutionality was directly challenged in one of the questions presented.
By apparently leaving Hill in place, the court limits the impact of this case. Only three other states have buffer-zone laws, and two of those are clearly permissible under Hill, while the third closely mirrors Massachusetts. Municipalities largely fall into the same two camps, so the legal analysis should be simple depending on which precedent controls.
The principle that states are free to proscribe conduct but must protect speech is a basic one familiar to any student of First Amendment law. The McCullen decision simply reaffirmed that standard as one that applies even when hot-button topics like abortion are being debated. States have a wide array of resources to ensure clinic safety without outlawing peaceful speech.
Carrie Severino is chief counsel for the Judicial Crisis Network, a nonprofit focused on limited government.