Sunday, November 22, 2009

Cert petition in Massachusetts free speech case

My good friend and classmate Mark Rienzi, now of Catholic Univ. Law School, has just filed a cert petition with the U.S. Supreme Court in a First Amendment case -- McCullen v. Coakley, No. 09-592. The Supreme Court should grant cert, given the important issues at stake.

The case involves a Massachusetts law penalizing people who engage in speech near abortion clinics -- including peaceful speech, or even holding a sign silently. (Keep in mind: Your position on abortion shouldn't affect how you think of the free speech issue here, any more than the Klan's or Greenpeace's right to free speech depends on whether their message is agreeable to everyone.)

Now many people may think immediately that such a challenge is hopeless. After all, didn't the Supreme Court uphold speech restrictions outside abortion clinics in the case of Hill v. Colorado?

There are three responses to this.

First, the Massachusetts law is worse -- far worse -- in First Amendment terms than the Colorado law at issue in Hill. Here are three stark differences:

(A) The Colorado law applied to all medical facilities. But the Massachusetts law applies only to abortion clinics (not even to hospitals where some abortions may be performed). This is more worrisome in terms of the legislature's intent to focus on abortion-related speech.

(B) The Colorado law applied to all speakers -- which is "the level of neutrality that the Constitution demands," in the Supreme Court's express words. But the Massachusetts law applies only to abortion protestors, with exemptions for all “persons entering or leaving” an abortion clinic or all “employees or agents of [a clinic] acting within the scope of their employment.” In other words, an anti-abortion protestor could go to jail for silently and peacefully offering someone a leaflet on a public sidewalk, while the clinic employee would be exempt for saying, "Ignore that leaflet."

(C) The Colorado law applied only to unwanted speech -- speech directed at an unwilling listener. But the Massachusetts law prohibits offering leaflets, displaying signs, engaging in conversation with even willing listeners, speaking with others at a “normal conversational distance,” or even merely remaining stationary and silently holding signs on public streets and sidewalks, whether or not any listeners (let alone unwilling listeners) are present.

Indeed, the Supreme Court's Hill decision expressly relied on these aspects of the Colorado law in upholding it. Yet the Massachusetts law thumbs its nose at all three.

Second -- and this is a bit of legal inside baseball -- the First Circuit's decision uses a ridiculous version of the Salerno doctrine, which has been read to suggest that in a facial challenge, a plaintiff must show that all applications of the statute are unconstitutional. As I and other legal scholars have shown, that doctrine does not and should not mean that, say, in a First Amendment or equal protection case, the plaintiff has the responsibility of affirmatively proving something about all specific applications, both real and hypothetical. Instead, the only thing the doctrine can mean is that where the plaintiff shows content or viewpoint discrimination (for example), all applications of the statute are in fact unconstitutional.

But the First Circuit, like some other courts, has been misusing Salerno such that a First Amendment content- and viewpoint-discrimination case is now being judged using a rational basis test. As long as the court can imagine just one hypothetical reason for the statute, the state wins against a facial challenge.

This is a stunning and dangerous development. Rational basis has no place in these types of cases.

Third, the Supreme Court's decision in Hill was wrong, and should be overruled. Commentators and scholars from Michael McConnell to Laurence Tribe have said that Hill was inconsistent with the First Amendment's protection of free speech ("slam-dunk simple and slam-dunk wrong," is how Tribe put it).

* * *

As of now, Massachusetts has waived its right to respond to the petition. The Supreme Court likely wouldn't grant cert without having a response. Thus, the next step is for the Court to consider whether to require Massachusetts to respond, or to reject the petition outright. Given that the law is much more egregious than Hill -- such that even the three remaining members of the Hill majority (Justices Breyer, Stevens, and Ginsburg) might oppose it because it is so much more targeted and restrictive -- a call for response by someone seems likely. Time will tell.

UPDATE: See this update on the case.


Blogger Unknown said...

Could you please provide a citation to Larry Tribe's views on Hill v. Colorado? I'm curious as to when he said or wrote that.

2:26 PM  
Blogger Stuart Buck said...

The cite I have is this: Colloquium,
Professor Michael W. McConnell’s Response, 28 Pepp. L.
Rev. 747, 750 (2001) (quoting Laurence Tribe’s description of Hill
as “slam-dunk simple and slam-dunk wrong”)

3:22 PM  

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