Update on Cert. Petition in Massachusetts Free Speech Case

In an earlier post, I discussed a cert petition filed with the U.S. Supreme Court in a First Amendment case -- McCullen v. Coakley, No. 09-592.

A few developments in that case:

First, a group of distinguished law professors, including Lillian BeVier (UVA), Rick Garnett (ND), Michael Stokes Paulsen (St. Thomas), Lee Strang (Toledo), Kevin Walsh (Richmond), and Eugene Volokh (UCLA) (disclosure: three personal friends in the above list) filed an amicus brief in support of the free speech claim in the case. The brief argued that:

The First Circuit’s decision below stretched Hill to uphold a Massachusetts law that creates a public-forum no-speech zone with a 35-foot radius that (i) applies only at free-standing clinics that perform abortions, (ii) does not apply to employees and agents of these clinics, and (iii) prohibits speech directed toward willing and unwilling listeners alike in a wide swath of the public forum, rather than remaining limited to a prohibition of close, unwanted physical approaches. . . . This expansion of Hill threatens to multiply the damage to First Amendment jurisprudence that results when free-speech decisions track ideological divides over the subject-matter of the underlying speech.

Second, lead counsel Mark Rienzi of Catholic Univ. Law School (disclosure: a close personal friend of mine) has filed a reply brief. As it turns out, the state of Massachusetts' response to the cert. petition essentially switched arguments, and claimed that the buffer zone law was supported by injunction cases like Madsen v. Women’s Health Center, Inc., 512 U.S. 753 (1994), and Schenck v. Pro-Choice Network of Western New York, Inc., 519 U.S. 357 (1997). In so doing, the state apparently realized the futility of claiming that its expansive buffer zone law was supported by Hill v. Colorado -- despite having made that very argument for about a decade.

But the new "injunction" argument is, if anything, worse. The state now argues something like this: 1) in a few cases, injunctions against abortion protestors were upheld, along with language noting that injunctions are more dangerous to the First Amendment than general statutes; 2) any general statute less onerous than the injunctions in those cases must therefore be upheld as consistent with free speech.

The reply brief makes short work of that argument:

Simply because courts are particularly cautious about speech-restrictive injunctions does not mean that any restriction a court could constitutionally tailor to an individual is, ipso facto, a permissible statutory restriction against all citizens. Indeed, if Respondent’s analysis were correct, statutes requiring all speakers to remain at least 100 feet away from actress Halle Berry, and at least ten feet from all Church of Scientology buildings, would also be a fortiori constitutional because injunctions against particular individuals have issued with those terms.

. . . Similarly, Hill would have been an open-and-shut case unworthy of certiorari review because its 8-foot separation zone is far less than the 36 feet approved in Madsen.

The cert. petition has been re-distributed to the Supreme Court for consideration at their March 5 conference.