McCullen v. Coakley , 708 F.3d 1 ( 2013 )

United States Court of Appeals
For the First Circuit
No. 12-1334
ELEANOR McCULLEN ET AL.,
Plaintiffs, Appellants,
v.
MARTHA COAKLEY ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
Before
Boudin,* Selya and Stahl,
Circuit Judges.
Mark L. Rienzi, with whom Edward C. DuMont, Todd C. Zubler,
Wilmer Cutler Pickering Hale and Dorr LLP, Philip D. Moran and
Michael J. DePrimo, were on brief, for appellants.
William W. Porter, Assistant Attorney General, with whom
Martha Coakley, Attorney General of Massachusetts, Kenneth W.
Salinger and Gabrielle Viator, Assistant Attorneys General, were on
brief, for appellees.
January 9, 2013
*
Judge Boudin heard oral argument in this matter and
participated in the semble, but he did not participate in the
issuance of the panel's opinion. The remaining two panelists have
issued the opinion pursuant to 28 U.S.C. § 46(d).
SELYA, Circuit Judge. This case does not come to us as
a stranger. At the turn of the century, the Massachusetts
legislature passed a law that created fixed and floating buffer
zones around abortion clinics. We rejected serial challenges to
the constitutionality of that law. See McGuire v. Reilly (McGuire
I), 260 F.3d 36 (1st Cir. 2001) (rejecting facial challenge);
McGuire v. Reilly (McGuire II), 386 F.3d 45 (1st Cir. 2004)
(rejecting as-applied challenge). The Supreme Court denied
certiorari. 544 U.S. 974 (2005).
One might have thought that the matter would end there,
but it did not. In 2007, the legislature revisited the statute and
amended it to create a fixed thirty-five-foot buffer zone around
the entrances, exits, and driveways of abortion clinics. The
revised statute drew renewed fire and, in 2009, we upheld it
against a facial challenge. See McCullen v. Coakley (McCullen I),
571 F.3d 167 (1st Cir. 2009), cert. denied, 130 S. Ct. 1881 (2010).
This decision left open the plaintiffs' as-applied challenge, and
they unsuccessfully pursued that initiative in the district court.
See McCullen v. Coakley (McCullen II), 759 F. Supp. 2d 133 (D.
Mass. 2010) (granting judgment on the pleadings on certain issues);
McCullen v. Coakley (McCullen III), 844 F. Supp. 2d 206 (D. Mass.
2012) (resolving remaining issues after trial).
-2-
The plaintiffs again appeal. They advance a salmagundi
of arguments, old and new, some of which are couched in a creative
recalibration of First Amendment principles.
Few subjects have proven more controversial in modern
times than the issue of abortion. The nation is sharply divided
about the morality of the practice and its place in a caring
society. But the right of the state to take reasonable steps to
ensure the safe passage of persons wishing to enter healthcare
facilities cannot seriously be questioned. The Massachusetts
statute at issue here is a content-neutral, narrowly tailored time-
place-manner regulation that protects the rights of prospective
patients and clinic employees without offending the First Amendment
rights of others. We therefore affirm the judgment below.
I. BACKGROUND
We briefly recount the historical background and travel
of the case and then describe the particular circumstances
concerning the three clinic locations that lie at the epicenter of
the plaintiffs' as-applied challenge.
A. Travel of the Case.
The centerpiece of this saga is Mass. Gen. Laws ch. 266,
§ 120E 1/2 (2007) (the Act). The provenance and pertinent
provisions of the Act are set out in some detail in McCullen I, 571
F.3d at 172-74, and we assume the reader's familiarity with that
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account. We rehearse here only what is necessary to place into
perspective the issues on appeal.
The Act states in pertinent part that "[n]o person shall
knowingly enter or remain on a public way or sidewalk adjacent to
a reproductive health care facility" (RHCF) within a designated and
clearly marked buffer zone. Mass. Gen. Laws ch. 266, § 120E
1/2(b), (c). The buffer zone spans
a radius of 35 feet of any portion of an
entrance, exit or driveway of a[n RHCF] or
within the area within a rectangle created by
extending the outside boundaries of any
entrance, exit or driveway of a[n RHCF] in
straight lines to the point where such lines
intersect the sideline of the street in front
of such entrance, exit or driveway.
Id. § 120E 1/2(b). Four categories of persons identical to those
enumerated in the 2000 version of the law are exempted:
(1) persons entering or leaving such facility;
(2) employees or agents of such facility
acting within the scope of their employment;
(3) law enforcement, ambulance, firefighting,
construction, utilities, public works and
other municipal agents acting within the scope
of their employment; and
(4) persons using the public sidewalk or
street right-of-way adjacent to such facility
solely for the purpose of reaching a
destination other than such facility.
Id.
On January 25, 2008, the Massachusetts Attorney General
sent a letter to a wide audience, including RHCF personnel and law
enforcement agencies. The text of the letter is reproduced as an
appendix to our opinion in McCullen I, 571 F.3d at 184. Its stated
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purpose is to summarize the provisions of the Act and offer
"guidance to assist [] in applying the four exemptions."
On January 16, 2008, the plaintiffs brought this action
against the Massachusetts Attorney General in the federal district
court.1 Invoking 42 U.S.C. § 1983, they alleged a plethora of
constitutional claims.
The district court bifurcated the case, separating the
plaintiffs' facial challenge from their as-applied challenge. In
due season, the court addressed the facial challenge and upheld the
Act.
On appeal, we affirmed, holding the Act to be content-
neutral, viewpoint-neutral, and a valid time-place-manner
regulation. McCullen I, 571 F.3d at 176-81 & n.2. At the same
time, we rebuffed the plaintiffs' overbreadth claim, citing Hill v.
Colorado, 530 U.S. 703 (2000), in which the Supreme Court upheld a
Colorado statute regulating communicative activities within 100
feet of healthcare facility entrances. See McCullen I, 571 F.3d at
181-82. We likewise rejected the plaintiffs' vagueness claim
(which focused on the Attorney General's letter), explaining that
such an attempt at interpretive guidance cannot alter the meaning
1
The plaintiffs who remain in the case — others have come and
gone — are Eleanor McCullen, Jean Blackburn Zarrella, Gregory A.
Smith, Eric Cadin, Cyril Shea, Nancy Clark, and Mark Bashour.
There has also been some movement on the defense side of the
ledger: the plaintiffs have now added as defendants three district
attorneys, each of whom has jurisdiction over a county in which one
of the three specified clinics, see infra Part I(B), is located.
-5-
of a law that is clear on its face. Id. at 182-83. Finally, we
ruled that the Act did not constitute an unlawful prior restraint
on protected speech. Id. at 183-84.
When the dust had settled, the district court took up the
plaintiffs' as-applied challenge. As a threshold matter, it
invoked the law of the case doctrine and resisted the plaintiffs'
attempt to reargue the facial constitutionality of the Act.
McCullen II, 759 F. Supp. 2d at 136-41. Next, it granted the
defendants' motion for judgment on the pleadings with respect to
seven as-applied counts. Id. at 141-45. Turning to whether the
Act, as applied, constituted a valid time-place-manner regulation,
the court concluded that the only trialworthy issue concerned the
adequacy of alternative channels of communication at the challenged
facilities. Id. at 145. Following a bench trial, the court upheld
the Act as applied. McCullen III, 844 F. Supp. 2d at 213-25.
B. The Three Sites.
We rehearse the evidence anent the relevant clinic
locations. As a prelude, we note that each of the plaintiffs
engages in communicative activities outside one of these three
RHCFs.
1. Boston. The Boston clinic is situated in a free-
standing building at 1055 Commonwealth Avenue (a main thoroughfare
in the Brighton section of Boston). Its front door faces
Commonwealth Avenue; its rear garage entrance faces Gardner Street.
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All clinic patients enter through the front door and must use the
twenty-five-foot-wide public sidewalk along Commonwealth Avenue.
Buffer zones, marked with yellow arcs and posted signs, are
appurtenant to each entrance.
Three of the plaintiffs (McCullen, Cadin, and Zarrella)
regularly engage in "sidewalk counseling" at the Boston clinic.
McCullen parks her car on Commonwealth Avenue and festoons it with
pro-life signage; Zarrella sometimes prays aloud; and Cadin from
time to time holds aloft a large pro-life sign.
A fourth plaintiff, Smith, has demonstrated outside the
Boston clinic for many years. He has displayed a crucifix, sung
religious hymns, and prayed aloud. His prayers are meant to be
heard by passersby in hopes of persuading them to opt against
abortion. He sometimes brings a loudspeaker to amplify group
prayers that occur outside the clinic on the second Saturday of
every month and on Good Friday.
The plaintiffs insist that they have achieved success in
their counseling efforts: they speak with prospective patients,
elicit responses, and hand out literature. In some instances, they
have persuaded women to decide against terminating pregnancies.
McCullen estimates that, during the period between November 2007
and May 2011, her sidewalk counseling convinced approximately
eighty women to refrain from seeking abortions.
-7-
Despite their accomplishments, the plaintiffs argue that
the buffer zones prevent close personal contact with their intended
audience and, thus, impede their ability to communicate
effectively. By way of illustration, Zarrella asserts that,
although women "always" respond to her offers of enlightenment and
assistance, she has not been able to convince any of them to opt
out of an abortion since the 2007 buffer zones were put in place.
2. Worcester. The Worcester clinic is situated in a
stand-alone building at 470 Pleasant Street. Its main entrance is
accessible from Pleasant Street and also from a private parking lot
behind the building. The public sidewalk on Pleasant Street is
nearly fifty-four feet from the main door and staggered metal
fences shield the front of the building and the private pedestrian
walkway that runs between these points. Neither the fencing nor
the walkway is on public property. The entrance to the parking lot
is on Dewey Street and all vehicular traffic must use that
entrance.
There are buffer zones marked with painted white arcs and
posted signs on both Pleasant Street and Dewey Street. More than
eighty-five percent of all patients arrive by car, park in the
clinic's lot, and walk directly to the main door (without setting
foot on any public way).
Two of the plaintiffs (Bashour and Clark) engage in
sidewalk counseling at the Worcester clinic. They try to divert
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women to Problem Pregnancy, a "pro-life pregnancy crisis center"
located across the street. Bashour prays quietly outside the
clinic, sometimes alone and sometimes with others. For her part,
Clark often displays a large pro-life sign.
Here, too, the plaintiffs claim to have achieved some
success in their counseling efforts. They speak with patients,
distribute literature, and persuade women to refrain from seeking
abortions. Notwithstanding these successes, the plaintiffs aver
that the physical set-up renders their attempts to communicate
"ineffective" by impeding their ability to view and approach
individuals entering the front door, to make eye contact with
patients, and to "demonstrate a caring demeanor." As they recall
it, virtually no patients who park in the clinic's private lot
respond to their overtures or "make the effort" to venture outside
the clinic's premises. The buffer zones preclude them from
speaking at "a normal conversational distance" with, or placing
literature near, the vast majority of patients entering the clinic.
3. Springfield. The Springfield clinic is situated in
a multi-tenant medical complex at the corner of Main Street and
Wason Avenue. The building contains at least eight separate
medical offices. It is bordered on two sides by private parking
lots; a third side abuts another building; and the fourth side
neighbors an open expanse that contains railroad trackage.
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Approximately ninety percent of individuals patronizing the complex
arrive by car and park in one of the lots.
There are five driveways leading to and from the complex,
two of which have been painted with white arcs and posted to
establish buffer zones: one on Main Street and one on Wason Avenue.
The remaining three driveways have painted white arcs but no signs.
They are not, therefore, buffer zones authorized by the Act. See
Mass. Gen. Laws ch. 266, § 120E 1/2(c) (requiring signage to
demarcate buffer zones). Consequently, they have no legal effect.
A plaintiff (Shea) prays aloud and engages in sidewalk
counseling outside the clinic. He habitually displays a large sign
that reads "They're Killing Babies Here." He laments that, from
and after the creation of the buffer zones, he has not seen
literature provided to anyone in a vehicle. He estimates that only
five percent of those who arrive by car leave the clinic's parking
lots either to accept pro-life literature or to investigate the
possibility of counseling.
II. THE LAW OF THE CASE
We start our appraisal of the merits with the plaintiffs'
exhortation that we revisit McCullen I, in which we held that the
Act, on its face, is a constitutionally valid time-place-manner
regulation. See McCullen I, 571 F.3d at 176-81. The district court
found that the law of the case doctrine barred relitigation of this
issue. McCullen II, 759 F. Supp. 2d at 136-41. We agree.
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The law of the case doctrine has two branches. The
first, which embodies the so-called mandate rule, "prevents
relitigation in the trial court of matters that were explicitly or
implicitly decided by an earlier appellate decision in the same
case." United States v. Matthews, 643 F.3d 9, 13 (1st Cir. 2011)
(internal quotation marks omitted). The second "binds a successor
appellate panel in a second appeal in the same case to honor fully
the original decision." Id. (internal quotation marks omitted).
Both branches of the doctrine apply here.
To be sure, the law of the case doctrine admits of
certain exceptions. But the circumstances giving rise to those
exceptions are narrowly circumscribed:
A party may avoid the application of the law
of the case doctrine only by showing that, in
the relevant time frame, controlling legal
authority has changed dramatically; or by
showing that significant new evidence, not
earlier obtainable in the exercise of due
diligence, has come to light; or by showing
that the earlier decision is blatantly
erroneous and, if uncorrected, will work a
miscarriage of justice.
Id. at 14 (internal quotation marks omitted). Although the
plaintiffs allude in desultory fashion to the third exception,2
2
For example, the plaintiffs use the phrase "serious
injustice" twice in their opening brief. This ipse dixit does not
suffice, however, to put in play the third exception to the law of
the case doctrine. See Ahmed v. Holder, 611 F.3d 90, 98 (1st Cir.
2010) (explaining that "appellate arguments advanced in a
perfunctory manner, unaccompanied by citations to relevant
authority, are deemed waived"); United States v. Zannino, 895 F.2d
1, 17 (1st Cir. 1990) (similar).
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they make no reference to the second exception and their only
colorable claim concerns the first exception.
The plaintiffs base their claim on recent decisions of
the Supreme Court standing for the wholly unremarkable proposition
that content-based and speaker-based speech restrictions are
disfavored. See, e.g., Sorrell v. IMS Health Inc., 131 S. Ct. 2653
(2011); Snyder v. Phelps, 131 S. Ct. 1207 (2011); Citizens United
v. FEC, 130 S. Ct. 876 (2010). In their view, these neoteric
decisions have so reconfigured the First Amendment landscape as to
justify a departure from the law of the case. This impressionistic
argument, though ingenious, elevates hope over reason. The
propositions for which the plaintiffs cite those cases are no more
than conventional First Amendment principles recited by the Supreme
Court in the context of factual scenarios far different than the
scenario at issue here.
The decision on which the plaintiffs rely most heavily —
Citizens United — is emblematic of this point. Citizens United
overruled Austin v. Michigan Chamber of Commerce, 494 U.S. 652
(1990), which had held that corporate entities, as opposed to other
speakers, could be prohibited from engaging in political speech.
Citizens United, 130 S. Ct. at 886. The plaintiffs contend that
Citizens United announced, for the first time, a blanket ban on all
speaker distinctions, whatever the setting. This categorical ban,
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they say, should serve to invalidate the Act as a speaker-specific
restriction.
This is an imprecise reading of Citizens United. The
Citizens United Court held that government cannot entirely prohibit
corporate political speech. Id. In support, it invoked the
"central principle" laid out in First National Bank of Boston v.
Bellotti, 435 U.S. 765 (1978), to the effect "that the First
Amendment does not allow political speech restrictions based on a
speaker's corporate identity." Citizens United, 130 S. Ct. at 903.
The Act, of course, makes no such distinction.
The plaintiffs, however, are undaunted. They seize upon
an isolated statement in Citizens United: "Prohibited, too, are
restrictions distinguishing among different speakers, allowing
speech by some but not others." See id. at 898. But they yank
this statement from its context and they neglect to mention that
the Court cites Bellotti — a case that substantially predates
McCullen I — for this proposition. See id. at 898-99. The Court's
reliance on Bellotti is not a mere fortuity. After all, the
Citizens United Court described its decision as a return to classic
First Amendment jurisprudence rather than a departure therefrom.
See id. at 912. The Court did not retreat from its well-settled
abortion clinic/buffer zone jurisprudence. See, e.g., Hill, 530
U.S. 703; Madsen v. Women's Health Ctr., Inc., 512 U.S. 753 (1994).
Seen in this light, we cannot read Citizens United as undermining
-13-
the First Amendment foundation on which our rejection of the
plaintiffs' facial challenge rested.
So, too, Snyder, in which the Court held that the First
Amendment precludes tort liability against persons who had
peacefully protested, on public property, at the funeral of a
Marine. Snyder, 131 S. Ct. at 1213-14, 1220-21. Once again, the
Court did no more than apply long-recognized First Amendment
principles. And while it reiterated the special status of public
streets as the "archetype of a traditional public forum," it
proceeded to confirm that even public fora are subject to
reasonable time-place-manner regulations.3 Id. at 1218 (internal
quotation marks omitted). It is especially telling that, in making
this point, the Court referred specifically to the abortion clinic
buffer zone that it had upheld in Madsen. See id.
The plaintiffs' reliance on Sorrell is equally mislaid.
The Sorrell Court invalidated a Vermont law that restricted the
sale, disclosure, and use of pharmacy records for marketing
purposes. Sorrell, 131 S. Ct. at 2659. The law, on its face, was
content-based and speaker-based, and had been enacted with the
avowed purpose of "diminsh[ing] the effectiveness of marketing by
manufacturers of brand-name drugs." Id. at 2662-63.
3
This formulation is reminiscent of Hill, 530 U.S. at 715, in
which the Court recognized sidewalks and areas outside healthcare
clinics as "'quintessential' public forums" while upholding a
buffer zone that limited communicative activities within those
areas.
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The case before us could not be more different. As we
explained in McCullen I, 571 F.3d at 175-78, the Act is both
content-neutral and speaker-neutral. Moreover, the legislature
enacted it to serve a valid, non-speech-related purpose: public
safety. See id. at 176.
In a Rumpelstiltskin-like effort to turn straw into gold,
the plaintiffs dismiss these important differences and focus
instead on the Sorrell Court's statement that "the inevitable
effect of a statute on its face may render it unconstitutional."
Sorrell, 131 S. Ct. at 2663 (internal quotation marks omitted).
But this hoary legal precept (with which we agree) is not novel.
The "inevitable effect" language derives from the Court's decision
in United States v. O'Brien, 391 U.S. 367, 384 (1968), which
comfortably predates both our decision in McCullen I and the
Supreme Court's abortion clinic/buffer zone jurisprudence.
More to the point, the Sorrell precept is in no way
inconsistent with our holding in McCullen I. The "inevitable
effect" of the Act is to limit the communicative activities of all
demonstrators (whether pro-choice or pro-life) to exactly the same
extent.
The plaintiffs have also marshaled other recent Supreme
Court cases in their ambitious effort to reinvent First Amendment
doctrine. See, e.g., United States v. Stevens, 130 S. Ct. 1577
(2010). It would serve no useful purpose to canvass these cases.
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For present purposes, it suffices that these decisions, by no
stretch of even the most fertile imagination, sully either the
reasoning or the doctrinal infrastructure of McCullen I.
The short of it is that the First Amendment principles
underpinning our core holdings in McCullen I have not been
materially altered, let alone abrogated, by any subsequent Supreme
Court precedent. Accordingly, the district court did not err in
declining the plaintiffs' invitation to set the law of the case
doctrine to one side and revisit the plaintiffs' facial challenge
to the Act.
III. JUDGMENT ON THE PLEADINGS
The plaintiffs challenge the district court's entry of
judgment on the pleadings on several fronts. We review de novo an
order granting or denying judgment on the pleadings. Mass. Nurses
Ass'n v. N. Adams Reg'l Hosp., 467 F.3d 27, 31 (1st Cir. 2006). To
withstand a motion for judgment on the pleadings, a "complaint must
contain sufficient factual matter to state a claim to relief that
is plausible on its face." Grajales v. P.R. Ports Auth., 682 F.3d
40, 44 (1st Cir. 2012) (internal quotation marks omitted).
A. Viewpoint Discrimination.
The plaintiffs' principal challenge to the entry of
judgment on the pleadings relates to their claim of viewpoint
discrimination. They argue that Planned Parenthood employees and
agents have abused the buffer zones and that this activity
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constitutes viewpoint discrimination under the First Amendment.
The district court rejected this argument on the pleadings, holding
that the plaintiffs had not alleged sufficient facts to support the
claim. See McCullen II, 759 F. Supp. 2d at 143-44.
In their complaint, the plaintiffs aver that "pro-choice
advocates [] surround, cluster, yell, make noise, mumble, and/or
talk loudly to clinic clients for the purpose of disrupting or
drowning out pro-life speech and thwart Plaintiffs' efforts to
distribute literature." They further aver that clinic "employees
and/or agents stand idly on the public sidewalks and streets inside
the [buffer] zone" — sometimes smoking, speaking with each other or
on mobile phones, or drinking coffee — "even when clinic clients
are not present."
Because this issue was resolved at the pleading stage, we
assume arguendo that the raw facts are as the plaintiffs have
alleged. The question remains, however, whether the depicted
conduct can fairly be characterized as viewpoint discrimination
attributable to the state. The plaintiffs say that it can. The
Attorney General demurs.
We begin with the basics. The Act, on its face, is
viewpoint-neutral. See McCullen I, 571 F.3d at 178 & n.2.
Although it contains a "clinic employee" exemption, that exemption
does not purport to allow either advocacy by an exempt person or
interference by an exempt person with the advocacy of others.
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The plaintiffs strive mightily to overcome this obstacle.
They call our attention to the decision in Hoye v. City of Oakland,
653 F.3d 835 (9th Cir. 2011). There, a municipal ordinance
prohibited, within a 100-foot zone around entrances to RHCFs, any
knowing or willful "approach within eight feet of an individual
seeking entry to the clinic if one's purpose in approaching that
person is to engage in conversation, protest, counseling, or
various other forms of speech." Id. at 839. The Ninth Circuit
concluded that the ordinance was constitutional on its face but
unconstitutional as applied. Id. at 849, 856. It predicated this
conclusion on a determination that the city did not evenly enforce
the ordinance; rather, the city's actions manifested "a firm policy
of enforcing the Ordinance . . . only [against] efforts to persuade
women approaching [RHCFs] . . . not to receive abortions or other
reproductive health services, and not [against] communications
seeking to encourage entry into the clinic for the purpose of
undergoing treatment." Id. at 849-50 (emphasis in original).
This case is at a considerable remove from Hoye. The
Hoye court's finding of uneven enforcement was inevitable in light
of the city's frank admission that it consciously "enforces the
Ordinance in a content-discriminatory manner." Id. at 850. In
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contrast, the plaintiffs here have not pleaded any facts that might
suffice to ground a claim of uneven enforcement.4
The conduct described, without more, has nothing to do
with the First Amendment. While loitering in a buffer zone by an
exempt person is not expressive in nature and arguably does not
serve the purposes of the Act, such conduct, simpliciter, does not
prefer one viewpoint over another.5
What is more, the employees and agents about whom the
plaintiffs complain are not state actors but — unlike the municipal
police officers in Hoye — are agents of a private entity (Planned
Parenthood). The Act allows these individuals to be in buffer
zones under the clinic employee exemption. But to the extent that
they have tried to use their exempt status either to advocate a
particular point of view or to drown out the plaintiffs' message,
there is no allegation that such behavior has been sanctioned by
the state.
4
The plaintiffs attempt to rely upon declarations and
deposition testimony amplifying these allegations. We add,
however, that even if we were free to consider these extraneous
materials, they would not suffice to make out a claim of viewpoint
discrimination. Such extraneous materials are beyond the scope of
appellate review of a judgment on the pleadings. See NEPSK, Inc.
v. Town of Houlton, 283 F.3d 1, 8 (1st Cir. 2002); Int'l Paper Co.
v. Town of Jay, 928 F.2d 480, 482 (1st Cir. 1991).
5
We say "arguably" because it may be necessary for escorts to
spend idle time in the buffer zones in order to keep themselves
available to assist incoming patients — a task consistent with the
purpose of the exemption.
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Another point is worth making. If the plaintiffs
believed themselves to be aggrieved by the employee/agent behavior
that they describe, the commonsense remedy would have been to
complain to police officers or other state authorities. The
pleadings are barren of any allegation that such a complaint was
ever made.
The bottom line is that, to be cognizable, a claim of
uneven enforcement requires state action. See McGuire II, 386 F.3d
at 60 ("The First Amendment is concerned with government
interference, not private jousting in the speech marketplace.").
Whatever actions the clinic employees and agents may have taken,
this record reveals no basis for a plausible claim that those
actions reflect a viewpoint preference of the state. See id. at
59-60.
B. Overbreadth.
The plaintiffs assign error to the district court's entry
of judgment on the pleadings with respect to their overbreadth
claim. Although they concede that we rejected a substantially
similar overbreadth claim in McCullen I, 571 F.3d at 181-82, they
suggest that the Act may be overbroad in particular applications.
Overbreadth doctrine invalidates statutes "not because
[the plaintiffs'] own rights of free expression are violated, but
because of a judicial prediction or assumption that the statute's
very existence may cause others not before the court to refrain
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from constitutionally protected speech or expression." Hill, 530
U.S. at 731-32 (internal quotation marks omitted). But overbreadth
must be both "real" and "substantial," as assessed "in relation to
the statute's plainly legitimate sweep." Id. at 732 (internal
quotation marks omitted). "Where an overbreadth attack is
successful, the statute is obviously invalid in all its
applications, since every person to whom it is applied can defend
on the basis of the same overbreadth." Bd. of Trs. of State Univ.
of N.Y. v. Fox, 492 U.S. 469, 483 (1989) (emphasis in original).
Thus, the appropriate analysis "requires consideration of many more
applications than those immediately before the court." Id. at 485.
In the case at hand, the parties spar over whether there
is such a creature as an as-applied overbreadth challenge.
Compare, e.g., Farrell v. Burke, 449 F.3d 470, 498 (2d Cir. 2006)
(asserting that "[a]ll overbreadth challenges are facial
challenges"), with, e.g., Turchick v. United States, 561 F.2d 719,
721 n.3 (8th Cir. 1977) (suggesting the contrary). We need not
grapple with this conundrum because, even if some overbreadth
challenges may contain an as-applied component, this one does not.
In explaining the district court's supposed error, the
plaintiffs repeat their complaint, rejected on their facial
challenge, that all communicative activities (as opposed to, say,
purely violent or aggressive activities) are banned within buffer
zones. In attempting to convert this previously rejected challenge
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into a viable as-applied challenge, they posit that McCullen I
cannot control because it did not specifically conclude whether the
Act is substantially overbroad at the Boston, Worcester, and
Springfield locations. Withal, they offer no accompanying factual
allegations, other than pointing to what they identify as five
buffer zones at the Springfield location. As we already have
explained, see supra Part I(B)(3), only two enforceable buffer
zones exist around the Springfield clinic. Thus, our Springfield-
directed analysis considers only those two zones.
We need not tarry. Here, as in Hill, "the
comprehensiveness of the statute is a virtue, not a vice, because
it is evidence against there being a discriminatory governmental
motive." 530 U.S. at 731. The plaintiffs have not pleaded facts
sufficient to suggest that our earlier holding in McCullen I does
not control their present claim. Accordingly, the claim fails
under the plausibility standard. It follows that the district
court did not err in granting judgment on the pleadings on the
overbreadth claim.
C. Other Claims.
The plaintiffs attempt to resurrect a number of other
claims that the district court laid to rest in its entry of
judgment on the pleadings. See McCullen II, 759 F. Supp. 2d at
143-45. There are two principal problems.
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First, the plaintiffs have not pleaded an adequate
factual predicate. In the absence of pleaded facts sufficient to
distinguish the plaintiffs' as-applied challenge on these grounds
from their failed facial challenge, the latter controls the former.
See McGuire II, 386 F.3d at 61-62; Repub. Nat'l Comm. v. FEC, 698
F. Supp. 2d 150, 157 (D.D.C.), aff'd mem., 130 S. Ct. 3544 (2010).
Second, the plaintiffs do not pursue this battery of
claims with developed argumentation or in any other meaningful way.
We routinely have held, and today reaffirm, that theories presented
on appeal in a perfunctory fashion are deemed abandoned. See,
e.g., Ahmed v. Holder, 611 F.3d 90, 98 (1st Cir. 2010); United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). So it is here.
IV. THE AS-APPLIED CHALLENGE
We turn next to the red meat of this appeal: the
plaintiffs' as-applied challenge to the operation of the Act at the
three specific RHCFs described above. The district court spurned
this challenge; it concluded that because there are adequate
alternative channels of communication open to the plaintiffs at
each location, the Act comprises a valid time-place-manner
regulation. McCullen III, 844 F. Supp. 2d at 225. We review this
conclusion de novo. See Bose Corp. v. Consumers Union of U.S.,
Inc., 466 U.S. 485, 508 n.27 (1984); Sullivan v. City of Augusta,
511 F.3d 16, 24-25 (1st Cir. 2007).
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With respect to time-place-manner regulations, the
Supreme Court has explained:
[E]ven in a public forum the government may
impose reasonable restrictions on the time,
place, or manner of protected speech, provided
the restrictions are justified without
reference to the content of the regulated
speech, that they are narrowly tailored to
serve a significant governmental interest, and
that they leave open ample alternative
channels for communication of the information.
Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (internal
quotation marks omitted); see Bl(a)ck Tea Soc'y v. City of Boston,
378 F.3d 8, 12 (1st Cir. 2004). The district court found that the
issues of content neutrality and narrow tailoring were definitively
resolved by McCullen I. See McCullen III, 844 F. Supp. 2d at 210;
see also McCullen II, 759 F. Supp. 2d at 145. The plaintiffs
lament that this approach "improperly narrowed the required
constitutional analysis."
We reject this lamentation. The facts proffered by the
plaintiffs in support of their as-applied challenge do not raise
new or different issues but, rather, repeat in relevant part the
same fact patterns envisioned in our adjudication of their failed
facial challenge. See, e.g., McCullen I, 571 F.3d at 179-80. It
is black-letter law that a plaintiff cannot rewardingly prosecute
an as-applied challenge to the constitutionality of a statute based
on the same legal arguments and factual predicate that underpinned
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an earlier (unsuccessful) facial challenge. See In re Cao, 619
F.3d 410, 430 (5th Cir. 2010); McGuire II, 386 F.3d at 61.
The congruence between the plaintiffs' facial and as-
applied challenges cannot be gainsaid. The plaintiffs now attempt
to raise precisely the same arguments about content neutrality and
the significance of the governmental interest involved that were
squarely raised (and squarely repulsed) in the course of their
facial challenge. See McCullen I, 571 F.3d at 175-78. The same
can be said of the narrow tailoring inquiry. See id. at 178-80.
In any event, to the extent that the as-applied challenge in this
case implicates particularities of the three clinic locations,
those particularities are swept into — and appropriately addressed
by — the inquiry into the availability of adequate alternative
means of communication. See, e.g., Hill, 530 U.S. at 725-30
(blending these two analyses).
This brings us to the pivotal question of whether the
Act, as applied, leaves open adequate alternative means of
communication. Each of the plaintiffs engages in communicative
activities outside one of the three designated RHCFs. According to
the plaintiffs, these communicative activities are intended to
influence individuals seeking or considering abortions as well as
"those who approve or perform abortions."
The plaintiffs vouchsafe that they prefer to communicate
their message through up-close, gentle conversations, accompanied
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by smiles and eye contact. They insist that the buffer zones
authorized by the Act force them to engage in shorter, louder, and
less personal exchanges. They fear that, without the ability to
"make eye contact and demonstrate a caring demeanor," their
communications are ineffectual. As they see it, the need to stop
at the edge of the buffer zone is devastating; this restriction
compels them to raise their voices, precludes them from handing
literature to prospective patients in many instances, detracts from
their message, and somehow makes them seem "untrustworthy."
Notwithstanding the plaintiffs' importunings, the court
below concluded that adequate alternative means of communication
exist at all three sites. See McCullen III, 844 F. Supp. 2d at
225. Our inquiry focuses on this set of conclusions.
The record makes plain that communicative activities
flourish at all three places. To begin, the plaintiffs and their
placards are visible to their intended audience. Through their
signs and demonstrations, the plaintiffs disseminate their message
and elicit audience reactions. Their voices are audible. They
have the option (which they sometimes have exercised) of using
sound amplification equipment. When they and their cohorts deem it
useful to do so, they congregate in groups outside a clinic, engage
in spoken prayer, employ symbols (such as crucifixes and baby
caskets), and wear evocative garments. They sometimes don costumes
(dressing up as, say, the Grim Reaper).
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To be sure, the Act curtails the plaintiffs' ability to
carry on gentle discussions with prospective patients at a
conversational distance, embellished with eye contact and smiles.
But as long as a speaker has an opportunity to reach her intended
audience, the Constitution does not ensure that she always will be
able to employ her preferred method of communication. See McCullen
I, 571 F.3d at 180 (explaining that "the Constitution neither
recognizes nor gives special protection to any particular
conversational distance"); see also Marcavage v. City of New York,
689 F.3d 98, 107 (2d Cir. 2012) (explaining that alternative
channels need not "be perfect substitutes" nor indulge a speaker's
preference for particular modes of communication). In the last
analysis, "there is no constitutional requirement that
demonstrators be granted . . . particularized access" to their
desired audience. Bl(a)ck Tea Soc'y, 378 F.3d at 14. As long as
adequate alternative means of communication exist, the First
Amendment is not infringed.
Our inquiry into the adequacy of alternative means of
communication is, of course, site-specific. See, e.g., Hill, 530
U.S. at 730. At the Boston clinic, all prospective patients must
traverse a public sidewalk to gain entry. Given this reality, many
channels of communication remain available to the plaintiffs.
Those alternative channels are adequate to offset the restrictions
inherent in the buffer zones.
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The analysis is somewhat different with respect to
Worcester and Springfield. At these sites, it is not the buffer
zones that constitute the main impediment to communicative
activity; instead, it is the prospective patients' unwillingness to
venture off the clinics' private property. Most prospective
patients arrive by car, park in private lots, and use non-public
walkways to enter the facility. The fact that these patients are
not readily accessible to the plaintiffs is more a function of the
physical characteristics of the sites than of the operation of the
Act.
This is a critically important datum. The law does not
require that a patient run a public-sidewalk gauntlet before
entering an abortion clinic. That patients choose to stay on
private property or not to stop their cars on approach is a matter
of patient volition, not an invidious effect of the Act. First
Amendment rights do not guarantee to the plaintiffs (or anyone
else, for that matter) an interested, attentive, and receptive
audience, available at close-range.
One additional observation seems appropriate. In the
context of abortion-related demonstrations, the Supreme Court has
specifically recognized the interest of clinic patients both "in
avoiding unwanted communication" and "pass[ing] without
obstruction." See Hill, 530 U.S. at 716-18 (internal quotation
marks omitted). Consistent with this interest, the First Amendment
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does not compel prospective patients seeking to enter an abortion
clinic to make any special effort to expose themselves to the
cacophony of political protests. See id. at 716. Nor does it
guarantee to the plaintiffs the same quantum of communication that
would exist in the total absence of regulation. A diminution in
the amount of speech, in and of itself, does not translate into
unconstitutionality. Sullivan, 511 F.3d at 44. So long as
adequate alternative means of communication exist, no more is
constitutionally exigible.
We add a coda. Even if the plaintiffs' audience is
diminished in some respects by the existence of the buffer zones,
that diminution is not constitutionally fatal. The fact that a
regulation "may reduce to some degree the potential audience for
[the plaintiffs'] speech is of no consequence," as long as adequate
alternative means of communication exist. Ward, 491 U.S. at 802.
In an effort to change the trajectory of the debate, the
plaintiffs tout the Supreme Court's decision in City of Ladue v.
Gilleo, 512 U.S. 43 (1994). That decision is inapposite here.
Gilleo involved a municipal ordinance that broadly banned
residential signs. Id. at 45. Analyzing the ordinance as a time-
place-manner regulation, the Court assumed the validity of the
city's content-neutral justification and acknowledged its valid
governmental interest in limiting "visual clutter." Id. at 53-54.
But the Court took account of the peculiar characteristics of home-
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lawn signs and the "special respect for individual liberty in the
home" and concluded that the ordinance failed to leave open
adequate alternative means of communication. Id. at 56-58. Of
particular pertinence for present purposes, the Court explicitly
contrasted the home-lawn sign context with "the government's need
to mediate among various competing uses, including expressive ones,
for public streets." Id. at 58. The case at hand falls solidly
within the latter context and, thus, outside Gilleo's precedential
sweep.
One further point must be made. The decision in Gilleo
predates the Court's abortion clinic/buffer zone line of cases.
See, e.g., Hill, 530 U.S. 703; Schenck v. Pro-Choice Network of W.
N.Y., 519 U.S. 357 (1997); Madsen, 512 U.S. 753. The Court's
majority in these cases never even mentions Gilleo. It would make
no sense to wrest Gilleo from its contextual moorings and use it as
a wedge to subvert the Court's later decisions addressed to the
much different problem of how the First Amendment operates when the
special concerns of public-sidewalk protests around abortion
clinics are at stake.
We summarize succinctly. On this record, it is readily
apparent that, notwithstanding the buffer zones authorized by the
Act, adequate communicative channels remain available to the
plaintiffs, including oral speech of varying degrees of volume and
amplification, distribution of literature, displays of signage and
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symbols, wearing of evocative garments and costumes, and prayer
alone and in groups. The Act is, therefore, a valid time-place-
manner regulation as applied to the Boston, Worcester, and
Springfield RHCFs.
V. LEAVE TO AMEND
In a last-ditch effort to save the day, the plaintiffs
asseverate that the district court erred in denying them leave to
amend their complaint to include a direct challenge to the Attorney
General's letter. We review for abuse of discretion a district
court's denial of a motion to amend a complaint. Hatch v. Dep't
for Children, Youth & Their Families, 274 F.3d 12, 19 (1st Cir.
2001). As a general proposition, a denial of a motion for leave to
amend "will be upheld so long as the record evinces an arguably
adequate basis for the court's decision," such as "futility, bad
faith, undue delay, or a dilatory motive on the movant's part."
Id.
The order challenged in this case falls within the rubric
of undue delay. The district court took a balanced approach. It
allowed the plaintiffs to make amendments at the margins of their
complaint (for example, the addition of the three district attorney
defendants, see supra note 1), but it refused to allow the
plaintiffs to introduce a new theme at so late a date.
The plaintiffs' original complaint focused exclusively on
the Act. The Attorney General issued the guidance letter within two
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weeks of the filing of the complaint, yet the plaintiffs chose to
ignore it.6 Not until September 17, 2010 did the plaintiffs seek
to enlarge their target to include the Attorney General's letter.
That was more than two-and-one-half years after the docketing of
their original complaint. They have offered no compelling
explanation for the delay. Given the passage of this inordinate
period of time, we cannot say that the district court abused its
discretion in drawing the line and refusing to allow the plaintiffs
to refocus their attack. See, e.g., Villanueva v. United States,
662 F.3d 124, 127 (1st Cir. 2011) (per curiam); Kay v. N.H. Dem.
Party, 821 F.2d 31, 34 (1st Cir. 1987) (per curiam). The
plaintiffs had ample time to get their ducks in a row, and the
district court was under no obligation to give them more.
VI. CONCLUSION
We need go no further. For the reasons elucidated above,
we affirm the judgment of the district court.
Affirmed.
6
This course of conduct hardly can be deemed an oversight.
After all, the McGuire family of cases contained a failed as-
applied challenge to an earlier (but similar) version of the
Attorney General's letter. See McGuire II, 386 F.3d at 48, 52, 64.
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