McCullen v. Coakley , 134 S. Ct. 2518 ( 2014 )

(Slip Opinion) OCTOBER TERM, 2013 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
MCCULLEN ET AL. v. COAKLEY, ATTORNEY GENERAL
OF MASSACHUSETTS, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIRST CIRCUIT
No. 12–1168. Argued January 15, 2014—Decided June 26, 2014
In 2007, Massachusetts amended its Reproductive Health Care Facili­
ties Act, which had been enacted in 2000 to address clashes between
abortion opponents and advocates of abortion rights outside clinics
where abortions were performed. The amended version of the Act
makes it a crime to knowingly stand on a “public way or sidewalk”
within 35 feet of an entrance or driveway to any “reproductive health
care facility,” defined as “a place, other than within or upon the
grounds of a hospital, where abortions are offered or performed.”
Mass. Gen. Laws, ch. 266, §§120E½(a), (b). The Act exempts from
this prohibition four classes of individuals, including “employees or
agents of such facility acting within the scope of their employment.”
§120E½(b)(2). Another provision of the Act proscribes the knowing
obstruction of access to an abortion clinic. §120E½(e).
McCullen and the other petitioners are individuals who attempt to
engage women approaching Massachusetts abortion clinics in “side­
walk counseling,” which involves offering information about alterna­
tives to abortion and help pursuing those options. They claim that
the 35-foot buffer zones have displaced them from their previous po­
sitions outside the clinics, considerably hampering their counseling
efforts. Their attempts to communicate with patients are further
thwarted, they claim, by clinic “escorts,” who accompany arriving pa­
tients through the buffer zones to the clinic entrances.
Petitioners sued Attorney General Coakley and other Common­
wealth officials, seeking to enjoin the Act’s enforcement on the
ground that it violates the First and Fourteenth Amendments, both
on its face and as applied to them. The District Court denied both
challenges, and the First Circuit affirmed. With regard to petition­
2 McCULLEN v. COAKLEY
Syllabus
ers’ facial challenge, the First Circuit held that the Act was a reason­
able “time, place, and manner” regulation under the test set forth in
Ward v. Rock Against Racism, 491 U.S. 781.
Held: The Massachusetts Act violates the First Amendment. Pp. 8–30.
(a) By its very terms, the Act restricts access to “public way[s]” and
“sidewalk[s],” places that have traditionally been open for speech ac­
tivities and that the Court has accordingly labeled “traditional public
fora,” Pleasant Grove City v. Summum, 555 U.S. 460, 469. The gov­
ernment’s ability to regulate speech in such locations is “very lim­
ited.” United States v. Grace, 461 U.S. 171, 177. “[E]ven in a public
forum,” however, “the government may impose reasonable re­
strictions 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 signifi­
cant governmental interest, and that they leave open ample alterna­
tive channels for communication of the information,’ ” Ward, supra,
at 791. Pp. 8–10.
(b) Because the Act is neither content nor viewpoint based, it need
not be analyzed under strict scrutiny. Pp. 10–18.
(1) The Act is not content based simply because it establishes
buffer zones only at abortion clinics, as opposed to other kinds of fa­
cilities. First, the Act does not draw content-based distinctions on its
face. Whether petitioners violate the Act “depends” not “on what
they say,” Holder v. Humanitarian Law Project, 561 U.S. 1, 27, but
on where they say it. Second, even if a facially neutral law dispropor­
tionately affects speech on certain topics, it remains content neutral
so long as it is “ ‘justified without reference to the content of the regu­
lated speech.’ ” Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48.
The Act’s purposes include protecting public safety, patient access to
healthcare, and unobstructed use of public sidewalks and streets.
The Court has previously deemed all these concerns to be content
neutral. See Boos v. Barry, 485 U.S. 312, 321. An intent to single
out for regulation speech about abortion cannot be inferred from the
Act’s limited scope. “States adopt laws to address the problems that
confront them.” Burson v. Freeman, 504 U.S. 191, 207. There was a
record of crowding, obstruction, and even violence outside Massachu­
setts abortion clinics but not at other kinds of facilities in the Com­
monwealth. Pp. 11–15.
(2) The Act’s exemption for clinic employees and agents acting
within the scope of their employment does not appear to be an at­
tempt to favor one viewpoint about abortion over the other. City of
Ladue v. Gilleo, 512 U.S. 43, 51, distinguished. Given that some
kind of exemption was necessary to allow individuals who work at
the clinics to enter or remain within the buffer zones, the “scope of
Cite as: 573 U. S. ____ (2014) 3
Syllabus
employment” qualification simply ensures that the exemption is lim­
ited to its purpose of allowing the employees to do their jobs. Even
assuming that some clinic escorts have expressed their views on
abortion inside the zones, the record does not suggest that such
speech was within the scope of the escorts’ employment. If it turned
out that a particular clinic authorized its employees to speak about
abortion in the buffer zones, that would support an as-applied chal­
lenge to the zones at that clinic. Pp. 15–18.
(c) Although the Act is content neutral, it is not “narrowly tailored”
because it “burden[s] substantially more speech than is necessary to
further the government’s legitimate interests.” Ward, 491 U.S., at
799. Pp. 18–29.
(1) The buffer zones serve the Commonwealth’s legitimate inter­
ests in maintaining public safety on streets and sidewalks and in
preserving access to adjacent reproductive healthcare facilities. See
Schenck v. Pro-Choice Network of Western N. Y., 519 U.S. 357, 376.
At the same time, however, they impose serious burdens on petition­
ers’ speech, depriving them of their two primary methods of com­
municating with arriving patients: close, personal conversations and
distribution of literature. Those forms of expression have historically
been closely associated with the transmission of ideas. While the Act
may allow petitioners to “protest” outside the buffer zones, petition­
ers are not protestors; they seek not merely to express their opposi­
tion to abortion, but to engage in personal, caring, consensual conver­
sations with women about various alternatives. It is thus no answer
to say that petitioners can still be seen and heard by women within
the buffer zones. If all that the women can see and hear are vocifer­
ous opponents of abortion, then the buffer zones have effectively sti­
fled petitioners’ message. Pp. 19–23.
(2) The buffer zones burden substantially more speech than nec­
essary to achieve the Commonwealth’s asserted interests. Subsection
(e) of the Act already prohibits deliberate obstruction of clinic en­
trances. Massachusetts could also enact legislation similar to the
federal Freedom of Access to Clinic Entrances Act of 1994, 18 U.S. C.
§248(a)(1), which imposes criminal and civil sanctions for obstruct­
ing, intimidating, or interfering with persons obtaining or providing
reproductive health services. Obstruction of clinic driveways can
readily be addressed through existing local traffic ordinances. While
the Commonwealth contends that individuals can inadvertently ob­
struct access to clinics simply by gathering in large numbers, that
problem could be addressed through a law requiring crowds blocking
a clinic entrance to disperse for a limited period when ordered to do
so by the police. In any event, crowding appears to be a problem only
at the Boston clinic, and even there, only on Saturday mornings.
4 McCULLEN v. COAKLEY
Syllabus
The Commonwealth has not shown that it seriously undertook to
address these various problems with the less intrusive tools readily
available to it. It identifies not a single prosecution or injunction
against individuals outside abortion clinics since the 1990s. The
Commonwealth responds that the problems are too widespread for
individual prosecutions and injunctions to be effective. But again,
the record indicates that the problems are limited principally to the
Boston clinic on Saturday mornings, and the police there appear per­
fectly capable of singling out lawbreakers. The Commonwealth also
claims that it would be difficult to prove intentional or deliberate ob­
struction or intimidation and that the buffer zones accordingly make
the police’s job easier. To meet the narrow tailoring requirement,
however, the government must demonstrate that alternative
measures that burden substantially less speech would fail to achieve
the government’s interests, not simply that the chosen route is easier.
In any event, to determine whether someone intends to block access
to a clinic, a police officer need only order him to move; if he refuses,
then there is no question that his continued conduct is knowing or in­
tentional. For similar reasons, the Commonwealth’s reliance on Bur-
son v. Freeman, 504 U.S. 191, is misplaced. There, the Court upheld
a law establishing buffer zones outside polling places on the ground
that less restrictive measures were inadequate. But whereas “[v]oter
intimidation and election fraud” are “difficult to detect,” id., at 208,
obstruction and harassment at abortion clinics are anything but sub­
tle. And while the police “generally are barred from the vicinity of
the polls to avoid any appearance of coercion in the electoral process,”
id., at 207, they maintain a significant presence outside Massachu­
setts abortion clinics. In short, given the vital First Amendment in­
terests at stake, it is not enough for Massachusetts simply to say that
other approaches have not worked. Pp. 23–29.
708 F.3d 1, reversed and remanded.
ROBERTS, C. J., delivered the opinion of the Court, in which GINS-
BURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. SCALIA, J., filed an
opinion concurring in the judgment, in which KENNEDY and THOMAS,
JJ., joined. ALITO, J., filed an opinion concurring in the judgment.
Cite as: 573 U. S. ____ (2014) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash­
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 12–1168
_________________
ELEANOR McCULLEN, ET AL., PETITIONERS v.
MARTHA COAKLEY, ATTORNEY GEN-
ERAL OF MASSACHUSETTS, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIRST CIRCUIT
[June 26, 2014]
CHIEF JUSTICE ROBERTS delivered the opinion of the
Court.
A Massachusetts statute makes it a crime to knowingly
stand on a “public way or sidewalk” within 35 feet of an
entrance or driveway to any place, other than a hospital,
where abortions are performed. Mass. Gen. Laws, ch. 266,
§§120E½(a), (b) (West 2012). Petitioners are individuals
who approach and talk to women outside such facilities,
attempting to dissuade them from having abortions. The
statute prevents petitioners from doing so near the facili­
ties’ entrances. The question presented is whether the
statute violates the First Amendment.
I
A
In 2000, the Massachusetts Legislature enacted the
Massachusetts Reproductive Health Care Facilities Act,
Mass. Gen. Laws, ch. 266, §120E½ (West 2000). The law
was designed to address clashes between abortion oppo­
nents and advocates of abortion rights that were occurring
outside clinics where abortions were performed. The Act
2 McCULLEN v. COAKLEY
Opinion of the Court
established a defined area with an 18-foot radius around
the entrances and driveways of such facilities. §120E½(b).
Anyone could enter that area, but once within it, no one
(other than certain exempt individuals) could knowingly
approach within six feet of another person—unless that
person consented—“for the purpose of passing a leaflet or
handbill to, displaying a sign to, or engaging in oral pro­
test, education, or counseling with such other person.”
Ibid. A separate provision subjected to criminal punish­
ment anyone who “knowingly obstructs, detains, hinders,
impedes or blocks another person’s entry to or exit from a
reproductive health care facility.” §120E½(e).
The statute was modeled on a similar Colorado law that
this Court had upheld in Hill v. Colorado, 530 U.S. 703
(2000). Relying on Hill, the United States Court of Ap­
peals for the First Circuit sustained the Massachusetts
statute against a First Amendment challenge. McGuire v.
Reilly, 386 F.3d 45 (2004) (McGuire II), cert. denied, 544
U.S. 974 (2005); McGuire v. Reilly, 260 F.3d 36 (2001)
(McGuire I).
By 2007, some Massachusetts legislators and law en­
forcement officials had come to regard the 2000 statute as
inadequate. At legislative hearings, multiple witnesses
recounted apparent violations of the law. Massachusetts
Attorney General Martha Coakley, for example, testified
that protestors violated the statute “on a routine basis.”
App. 78. To illustrate this claim, she played a video de­
picting protestors approaching patients and clinic staff
within the buffer zones, ostensibly without the latter
individuals’ consent. Clinic employees and volunteers also
testified that protestors congregated near the doors and in
the driveways of the clinics, with the result that prospec­
tive patients occasionally retreated from the clinics rather
than try to make their way to the clinic entrances or park­
ing lots.
Captain William B. Evans of the Boston Police Depart­
Cite as: 573 U. S. ____ (2014) 3
Opinion of the Court
ment, however, testified that his officers had made “no
more than five or so arrests” at the Planned Parenthood
clinic in Boston and that what few prosecutions had been
brought were unsuccessful. Id., at 68–69. Witnesses
attributed the dearth of enforcement to the difficulty of
policing the six-foot no-approach zones. Captain Evans
testified that the 18-foot zones were so crowded with
protestors that they resembled “a goalie’s crease,” making
it hard to determine whether a protestor had deliberately
approached a patient or, if so, whether the patient had
consented. Id., at 69–71. For similar reasons, Attorney
General Coakley concluded that the six-foot no-approach
zones were “unenforceable.” Id., at 79. What the police
needed, she said, was a fixed buffer zone around clinics
that protestors could not enter. Id., at 74, 76. Captain
Evans agreed, explaining that such a zone would “make
our job so much easier.” Id., at 68.
To address these concerns, the Massachusetts Legisla­
ture amended the statute in 2007, replacing the six-foot
no-approach zones (within the 18-foot area) with a 35-foot
fixed buffer zone from which individuals are categorically
excluded. The statute now provides:
“No person shall knowingly enter or remain on a pub­
lic way or sidewalk adjacent to a reproductive health
care facility within a radius of 35 feet of any portion of
an entrance, exit or driveway of a reproductive health
care facility or within the area within a rectangle cre­
ated by extending the outside boundaries of any en­
trance, exit or driveway of a reproductive health care
facility in straight lines to the point where such lines
intersect the sideline of the street in front of such en­
trance, exit or driveway.” Mass. Gen. Laws, ch. 266,
§120E½(b) (West 2012).
A “reproductive health care facility,” in turn, is defined as
“a place, other than within or upon the grounds of a hospi­
4 McCULLEN v. COAKLEY
Opinion of the Court
tal, where abortions are offered or performed.” §120E½(a).
The 35-foot buffer zone applies only “during a facility’s
business hours,” and the area must be “clearly marked
and posted.” §120E½(c). In practice, facilities typically
mark the zones with painted arcs and posted signs on
adjacent sidewalks and streets. A first violation of the
statute is punishable by a fine of up to $500, up to three
months in prison, or both, while a subsequent offense is
punishable by a fine of between $500 and $5,000, up to
two and a half years in prison, or both. §120E½(d).
The Act exempts four classes of individuals: (1) “persons
entering or leaving such facility”; (2) “employees or agents
of such facility acting within the scope of their employ­
ment”; (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.”
§120E½(b)(1)–(4). The legislature also retained the sepa­
rate provision from the 2000 version that proscribes the
knowing obstruction of access to a facility. §120E½(e).
B
Some of the individuals who stand outside Massachu­
setts abortion clinics are fairly described as protestors,
who express their moral or religious opposition to abortion
through signs and chants or, in some cases, more aggres­
sive methods such as face-to-face confrontation. Petition­
ers take a different tack. They attempt to engage women
approaching the clinics in what they call “sidewalk coun­
seling,” which involves offering information about alterna­
tives to abortion and help pursuing those options. Peti­
tioner Eleanor McCullen, for instance, will typically
initiate a conversation this way: “Good morning, may I
give you my literature? Is there anything I can do for you?
Cite as: 573 U. S. ____ (2014) 5
Opinion of the Court
I’m available if you have any questions.” App. 138. If the
woman seems receptive, McCullen will provide additional
information. McCullen and the other petitioners consider
it essential to maintain a caring demeanor, a calm tone of
voice, and direct eye contact during these exchanges.
Such interactions, petitioners believe, are a much more
effective means of dissuading women from having abor­
tions than confrontational methods such as shouting or
brandishing signs, which in petitioners’ view tend only to
antagonize their intended audience. In unrefuted testi­
mony, petitioners say they have collectively persuaded
hundreds of women to forgo abortions.
The buffer zones have displaced petitioners from their
previous positions outside the clinics. McCullen offers
counseling outside a Planned Parenthood clinic in Boston,
as do petitioners Jean Zarrella and Eric Cadin. Petitioner
Gregory Smith prays the rosary there. The clinic occupies
its own building on a street corner. Its main door is re­
cessed into an open foyer, approximately 12 feet back from
the public sidewalk. Before the Act was amended to cre­
ate the buffer zones, petitioners stood near the entryway
to the foyer. Now a buffer zone—marked by a painted arc
and a sign—surrounds the entrance. This zone extends 23
feet down the sidewalk in one direction, 26 feet in the
other, and outward just one foot short of the curb. The
clinic’s entrance adds another seven feet to the width of
the zone. Id., at 293–295. The upshot is that petitioners
are effectively excluded from a 56-foot-wide expanse of the
public sidewalk in front of the clinic.1
Petitioners Mark Bashour and Nancy Clark offer coun­
seling and information outside a Planned Parenthood
clinic in Worcester. Unlike the Boston clinic, the Worces­
——————
1 The zone could have extended an additional 21 feet in width under
the Act. Only the smaller area was marked off, however, so only that
area has legal effect. See Mass. Gen. Laws, ch. 266, §120E½(c).
6 McCULLEN v. COAKLEY
Opinion of the Court
ter clinic sits well back from the public street and side­
walks. Patients enter the clinic in one of two ways. Those
arriving on foot turn off the public sidewalk and walk
down a nearly 54-foot-long private walkway to the main
entrance. More than 85% of patients, however, arrive by
car, turning onto the clinic’s driveway from the street,
parking in a private lot, and walking to the main entrance
on a private walkway.
Bashour and Clark would like to stand where the pri­
vate walkway or driveway intersects the sidewalk and
offer leaflets to patients as they walk or drive by. But a
painted arc extends from the private walkway 35 feet
down the sidewalk in either direction and outward nearly
to the curb on the opposite side of the street. Another arc
surrounds the driveway’s entrance, covering more than 93
feet of the sidewalk (including the width of the driveway)
and extending across the street and nearly six feet onto
the sidewalk on the opposite side. Id., at 295–297. Bash­
our and Clark must now stand either some distance down
the sidewalk from the private walkway and driveway or
across the street.
Petitioner Cyril Shea stands outside a Planned
Parenthood clinic in Springfield, which, like the Worcester
clinic, is set back from the public streets. Approximately
90% of patients arrive by car and park in the private lots
surrounding the clinic. Shea used to position himself at
an entrance to one of the five driveways leading to the
parking lots. Painted arcs now surround the entrances,
each spanning approximately 100 feet of the sidewalk
parallel to the street (again, including the width of the
driveways) and extending outward well into the street.
Id., at 297–299. Like petitioners at the Worcester clinic,
Shea now stands far down the sidewalk from the driveway
entrances.
Petitioners at all three clinics claim that the buffer
zones have considerably hampered their counseling ef­
Cite as: 573 U. S. ____ (2014) 7
Opinion of the Court
forts. Although they have managed to conduct some coun­
seling and to distribute some literature outside the buffer
zones—particularly at the Boston clinic—they say they
have had many fewer conversations and distributed many
fewer leaflets since the zones went into effect. Id., at 136–
137, 180, 200.
The second statutory exemption allows clinic employees
and agents acting within the scope of their employment to
enter the buffer zones. Relying on this exemption, the
Boston clinic uses “escorts” to greet women as they ap­
proach the clinic, accompanying them through the zones to
the clinic entrance. Petitioners claim that the escorts
sometimes thwart petitioners’ attempts to communicate
with patients by blocking petitioners from handing litera­
ture to patients, telling patients not to “pay any attention”
or “listen to” petitioners, and disparaging petitioners as
“crazy.” Id., at 165, 178.
C
In January 2008, petitioners sued Attorney General
Coakley and other Commonwealth officials. They sought
to enjoin enforcement of the Act, alleging that it violates
the First and Fourteenth Amendments, both on its face
and as applied to them. The District Court denied peti­
tioners’ facial challenge after a bench trial based on a
stipulated record. 573 F. Supp. 2d 382 (Mass. 2008).
The Court of Appeals for the First Circuit affirmed. 571
F.3d 167 (2009). Relying extensively on its previous
decisions upholding the 2000 version of the Act, see
McGuire II, 386 F.3d 45; McGuire I, 260 F.3d 36, the
court upheld the 2007 version as a reasonable “time, place,
and manner” regulation under the test set forth in Ward v.
Rock Against Racism, 491 U.S. 781 (1989). 571 F.3d, at
174–181. It also rejected petitioners’ arguments that the
Act was substantially overbroad, void for vagueness, and
an impermissible prior restraint. Id., at 181–184.
8 McCULLEN v. COAKLEY
Opinion of the Court
The case then returned to the District Court, which held
that the First Circuit’s decision foreclosed all but one of
petitioners’ as-applied challenges. 759 F. Supp. 2d 133
(2010). After another bench trial, it denied the remain-
ing as-applied challenge, finding that the Act left petition­
ers ample alternative channels of communication. 844
F. Supp. 2d 206 (2012). The Court of Appeals once again
affirmed. 708 F.3d 1 (2013).
We granted certiorari. 570 U. S. ___ (2013).
II
By its very terms, the Massachusetts Act regulates
access to “public way[s]” and “sidewalk[s].” Mass. Gen.
Laws, ch. 266, §120E½(b) (Supp. 2007). Such areas occupy
a “special position in terms of First Amendment protec­
tion” because of their historic role as sites for discussion
and debate. United States v. Grace, 461 U.S. 171, 180
(1983). These places—which we have labeled “traditional
public fora”—“ ‘have 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 be­
tween citizens, and discussing public questions.’ ” Pleas-
ant Grove City v. Summum, 555 U.S. 460, 469 (2009)
(quoting Perry Ed. Assn. v. Perry Local Educators’ Assn.,
460 U.S. 37, 45 (1983)).
It is no accident that public streets and sidewalks have
developed as venues for the exchange of ideas. Even
today, they remain one of the few places where a speaker
can be confident that he is not simply preaching to the
choir. With respect to other means of communication, an
individual confronted with an uncomfortable message can
always turn the page, change the channel, or leave the
Web site. Not so on public streets and sidewalks. There, a
listener often encounters speech he might otherwise tune
out. In light of the First Amendment’s purpose “to pre­
serve an uninhibited marketplace of ideas in which truth
Cite as: 573 U. S. ____ (2014) 9
Opinion of the Court
will ultimately prevail,” FCC v. League of Women Voters of
Cal., 468 U.S. 364, 377 (1984) (internal quotation marks
omitted), this aspect of traditional public fora is a virtue,
not a vice.
In short, traditional public fora are areas that have
historically been open to the public for speech activities.
Thus, even though the Act says nothing about speech on
its face, there is no doubt—and respondents do not dis­
pute—that it restricts access to traditional public fora and
is therefore subject to First Amendment scrutiny. See
Brief for Respondents 26 (although “[b]y its terms, the Act
regulates only conduct,” it “incidentally regulates the
place and time of protected speech”).
Consistent with the traditionally open character of
public streets and sidewalks, we have held that the gov­
ernment’s ability to restrict speech in such locations is
“very limited.” Grace, supra, at 177. In particular, the
guiding First Amendment principle that the “government
has no power to restrict expression because of its message,
its ideas, its subject matter, or its content” applies with
full force in a traditional public forum. Police Dept. of
Chicago v. Mosley, 408 U.S. 92, 95 (1972). As a general
rule, in such a forum the government may not “selectively
. . . shield the public from some kinds of speech on the
ground that they are more offensive than others.”
Erznoznik v. Jacksonville, 422 U.S. 205, 209 (1975).
We have, however, afforded the government somewhat
wider leeway to regulate features of speech unrelated to
its content. “[E]ven in a public forum the government may
impose reasonable restrictions on the time, place, or man­
ner 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 signifi­
cant governmental interest, and that they leave open
ample alternative channels for communication of the
information.’ ” Ward, 491 U.S., at 791 (quoting Clark v.
10 McCULLEN v. COAKLEY
Opinion of the Court
Community for Creative Non-Violence, 468 U.S. 288, 293
(1984)).2
While the parties agree that this test supplies the
proper framework for assessing the constitutionality of the
Massachusetts Act, they disagree about whether the Act
satisfies the test’s three requirements.
III
Petitioners contend that the Act is not content neutral
for two independent reasons: First, they argue that it
discriminates against abortion-related speech because it
establishes buffer zones only at clinics that perform abor­
tions. Second, petitioners contend that the Act, by ex­
empting clinic employees and agents, favors one viewpoint
about abortion over the other. If either of these argu­
ments is correct, then the Act must satisfy strict scruti­
ny—that is, it must be the least restrictive means of
achieving a compelling state interest. See United States v.
Playboy Entertainment Group, Inc., 529 U.S. 803, 813
(2000). Respondents do not argue that the Act can survive
this exacting standard.
JUSTICE SCALIA objects to our decision to consider
whether the statute is content based and thus subject to
strict scrutiny, given that we ultimately conclude that it is
not narrowly tailored. Post, at 2 (opinion concurring in
judgment). But we think it unexceptional to perform the
first part of a multipart constitutional analysis first. The
content-neutrality prong of the Ward test is logically
antecedent to the narrow-tailoring prong, because it de­
termines the appropriate level of scrutiny. It is not unu­
sual for the Court to proceed sequentially in applying a
——————
2 A different analysis would of course be required if the government
property at issue were not a traditional public forum but instead “a
forum that is limited to use by certain groups or dedicated solely to the
discussion of certain subjects.” Pleasant Grove City v. Summum, 555
U.S. 460, 470 (2009).
Cite as: 573 U. S. ____ (2014) 11
Opinion of the Court
constitutional test, even when the preliminary steps turn
out not to be dispositive. See, e.g., Bartnicki v. Vopper,
532 U.S. 514, 526–527 (2001); Holder v. Humanitarian
Law Project, 561 U.S. 1, 25–28 (2010) (concluding that a
law was content based even though it ultimately survived
strict scrutiny).
The Court does sometimes assume, without deciding,
that a law is subject to a less stringent level of scrutiny, as
we did earlier this Term in McCutcheon v. Federal Elec-
tion Commission, 572 U. S. ___, ___ (2014) (plurality opin­
ion) (slip op., at 10). But the distinction between that case
and this one seems clear: Applying any standard of review
other than intermediate scrutiny in McCutcheon—the
standard that was assumed to apply—would have re­
quired overruling a precedent. There is no similar reason
to forgo the ordinary order of operations in this case.
At the same time, there is good reason to address con­
tent neutrality. In discussing whether the Act is narrowly
tailored, see Part IV, infra, we identify a number of less­
restrictive alternative measures that the Massachusetts
Legislature might have adopted. Some apply only at
abortion clinics, which raises the question whether those
provisions are content neutral. See infra, at 12–15. While
we need not (and do not) endorse any of those measures, it
would be odd to consider them as possible alternatives if
they were presumptively unconstitutional because they
were content based and thus subject to strict scrutiny.
A
The Act applies only at a “reproductive health care
facility,” defined as “a place, other than within or upon the
grounds of a hospital, where abortions are offered or per­
formed.” Mass. Gen. Laws, ch. 266, §120E½(a). Given
this definition, petitioners argue, “virtually all speech
affected by the Act is speech concerning abortion,” thus
rendering the Act content based. Brief for Petitioners 23.
12 McCULLEN v. COAKLEY
Opinion of the Court
We disagree. To begin, the Act does not draw content­
based distinctions on its face. Contrast Boos v. Barry, 485
U.S. 312, 315 (1988) (ordinance prohibiting the display
within 500 feet of a foreign embassy of any sign that tends
to bring the foreign government into “ ‘public odium’ ” or
“ ‘public disrepute’ ”); Carey v. Brown, 447 U.S. 455, 465
(1980) (statute prohibiting all residential picketing except
“peaceful labor picketing”). The Act would be content
based if it required “enforcement authorities” to “examine
the content of the message that is conveyed to determine
whether” a violation has occurred. League of Women
Voters of Cal., supra, at 383. But it does not. Whether
petitioners violate the Act “depends” not “on what they
say,” Humanitarian Law Project, supra, at 27, but simply
on where they say it. Indeed, petitioners can violate the
Act merely by standing in a buffer zone, without display­
ing a sign or uttering a word.
It is true, of course, that by limiting the buffer zones to
abortion clinics, the Act has the “inevitable effect” of re­
stricting abortion-related speech more than speech on
other subjects. Brief for Petitioners 24 (quoting United
States v. O’Brien, 391 U.S. 367, 384 (1968)). But a facially
neutral law does not become content based simply be-
cause it may disproportionately affect speech on certain
topics. On the contrary, “[a] regulation that serves pur­
poses unrelated to the content of expression is deemed
neutral, even if it has an incidental effect on some speak­
ers or messages but not others.” Ward, supra, at 791. The
question in such a case is whether the law is “ ‘justified
without reference to the content of the regulated speech.’ ”
Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48 (1986)
(quoting Virginia Pharmacy Board v. Virginia Citizens
Consumer Council, Inc., 425 U.S. 748, 771 (1976); empha­
sis deleted).
The Massachusetts Act is. Its stated purpose is to “in­
crease forthwith public safety at reproductive health care
Cite as: 573 U. S. ____ (2014) 13
Opinion of the Court
facilities.” 2007 Mass. Acts p. 660. Respondents have
articulated similar purposes before this Court—namely,
“public safety, patient access to healthcare, and the unob­
structed use of public sidewalks and roadways.” Brief for
Respondents 27; see, e.g., App. 51 (testimony of Attorney
General Coakley); id., at 67–70 (testimony of Captain
William B. Evans of the Boston Police); id., at 79–80 (tes­
timony of Mary Beth Heffernan, Undersecretary for Crim­
inal Justice); id., at 122–124 (affidavit of Captain Evans).
It is not the case that “[e]very objective indication shows
that the provision’s primary purpose is to restrict speech
that opposes abortion.” Post, at 7.
We have previously deemed the foregoing concerns to be
content neutral. See Boos, 485 U.S., at 321 (identifying
“congestion,” “interference with ingress or egress,” and
“the need to protect . . . security” as content-neutral con­
cerns). Obstructed access and congested sidewalks are
problems no matter what caused them. A group of indi­
viduals can obstruct clinic access and clog sidewalks just
as much when they loiter as when they protest abortion or
counsel patients.
To be clear, the Act would not be content neutral if it
were concerned with undesirable effects that arise from
“the direct impact of speech on its audience” or “[l]isteners’
reactions to speech.” Ibid. If, for example, the speech
outside Massachusetts abortion clinics caused offense or
made listeners uncomfortable, such offense or discomfort
would not give the Commonwealth a content-neutral
justification to restrict the speech. All of the problems
identified by the Commonwealth here, however, arise
irrespective of any listener’s reactions. Whether or not a
single person reacts to abortion protestors’ chants or peti­
tioners’ counseling, large crowds outside abortion clinics
can still compromise public safety, impede access, and
obstruct sidewalks.
Petitioners do not really dispute that the Common­
14 McCULLEN v. COAKLEY
Opinion of the Court
wealth’s interests in ensuring safety and preventing ob­
struction are, as a general matter, content neutral. But
petitioners note that these interests “apply outside every
building in the State that hosts any activity that might
occasion protest or comment,” not just abortion clinics.
Brief for Petitioners 24. By choosing to pursue these
interests only at abortion clinics, petitioners argue, the
Massachusetts Legislature evinced a purpose to “single[ ]
out for regulation speech about one particular topic: abor­
tion.” Reply Brief 9.
We cannot infer such a purpose from the Act’s limited
scope. The broad reach of a statute can help confirm that
it was not enacted to burden a narrower category of disfa­
vored speech. See Kagan, Private Speech, Public Purpose:
The Role of Governmental Motive in First Amendment
Doctrine, 63 U. Chi. L. Rev. 413, 451–452 (1996). At the
same time, however, “States adopt laws to address the
problems that confront them. The First Amendment does
not require States to regulate for problems that do not
exist.” Burson v. Freeman, 504 U.S. 191, 207 (1992)
(plurality opinion). The Massachusetts Legislature
amended the Act in 2007 in response to a problem that
was, in its experience, limited to abortion clinics. There
was a record of crowding, obstruction, and even violence
outside such clinics. There were apparently no similar
recurring problems associated with other kinds of
healthcare facilities, let alone with “every building in the
State that hosts any activity that might occasion protest
or comment.” Brief for Petitioners 24. In light of the
limited nature of the problem, it was reasonable for the
Massachusetts Legislature to enact a limited solution.
When selecting among various options for combating a
particular problem, legislatures should be encouraged to
choose the one that restricts less speech, not more.
JUSTICE SCALIA objects that the statute does restrict
more speech than necessary, because “only one [Massa­
Cite as: 573 U. S. ____ (2014) 15
Opinion of the Court
chusetts abortion clinic] is known to have been beset by
the problems that the statute supposedly addresses.”
Post, at 7. But there are no grounds for inferring content­
based discrimination here simply because the legislature
acted with respect to abortion facilities generally rather
than proceeding on a facility-by-facility basis. On these
facts, the poor fit noted by JUSTICE SCALIA goes to the
question of narrow tailoring, which we consider below.
See infra, at 26–28.
B
Petitioners also argue that the Act is content based
because it exempts four classes of individuals, Mass. Gen.
Laws, ch. 266, §§120E½(b)(1)–(4), one of which comprises
“employees or agents of [a reproductive healthcare] facil-
ity acting within the scope of their employment.”
§120E½(b)(2). This exemption, petitioners say, favors one
side in the abortion debate and thus constitutes viewpoint
discrimination—an “egregious form of content discrimina­
tion,” Rosenberger v. Rector and Visitors of Univ. of Va.,
515 U.S. 819, 829 (1995). In particular, petitioners argue
that the exemption allows clinic employees and agents—
including the volunteers who “escort” patients arriving at
the Boston clinic—to speak inside the buffer zones.
It is of course true that “an exemption from an other­
wise permissible regulation of speech may represent a
governmental ‘attempt to give one side of a debatable
public question an advantage in expressing its views to
the people.’ ” City of Ladue v. Gilleo, 512 U.S. 43, 51
(1994) (quoting First Nat. Bank of Boston v. Bellotti, 435
U.S. 765, 785–786 (1978)). At least on the record before
us, however, the statutory exemption for clinic employees
and agents acting within the scope of their employment
does not appear to be such an attempt.
There is nothing inherently suspect about providing
some kind of exemption to allow individuals who work at
16 McCULLEN v. COAKLEY
Opinion of the Court
the clinics to enter or remain within the buffer zones. In
particular, the exemption cannot be regarded as simply a
carve-out for the clinic escorts; it also covers employees
such as the maintenance worker shoveling a snowy side­
walk or the security guard patrolling a clinic entrance, see
App. 95 (affidavit of Michael T. Baniukiewicz).
Given the need for an exemption for clinic employees,
the “scope of their employment” qualification simply en­
sures that the exemption is limited to its purpose of allow­
ing the employees to do their jobs. It performs the same
function as the identical “scope of their employment”
restriction on the exemption for “law enforcement, ambu­
lance, fire-fighting, construction, utilities, public works
and other municipal agents.” §120E½(b)(3). Contrary to
the suggestion of JUSTICE SCALIA, post, at 11–12, there is
little reason to suppose that the Massachusetts Legisla­
ture intended to incorporate a common law doctrine devel­
oped for determining vicarious liability in tort when it
used the phrase “scope of their employment” for the wholly
different purpose of defining the scope of an exemption to
a criminal statute. The limitation instead makes clear—
with respect to both clinic employees and municipal
agents—that exempted individuals are allowed inside the
zones only to perform those acts authorized by their em­
ployers. There is no suggestion in the record that any of
the clinics authorize their employees to speak about abor­
tion in the buffer zones. The “scope of their employment”
limitation thus seems designed to protect against exactly
the sort of conduct that petitioners and JUSTICE SCALIA
fear.
Petitioners did testify in this litigation about instances
in which escorts at the Boston clinic had expressed views
about abortion to the women they were accompanying,
thwarted petitioners’ attempts to speak and hand litera­
ture to the women, and disparaged petitioners in various
ways. See App. 165, 168–169, 177–178, 189–190. It is
Cite as: 573 U. S. ____ (2014) 17
Opinion of the Court
unclear from petitioners’ testimony whether these alleged
incidents occurred within the buffer zones. There is no
viewpoint discrimination problem if the incidents occurred
outside the zones because petitioners are equally free to
say whatever they would like in that area.
Even assuming the incidents occurred inside the zones,
the record does not suggest that they involved speech
within the scope of the escorts’ employment. If the speech
was beyond the scope of their employment, then each of
the alleged incidents would violate the Act’s express
terms. Petitioners’ complaint would then be that the
police were failing to enforce the Act equally against clinic
escorts. Cf. Hoye v. City of Oakland, 653 F.3d 835, 849–
852 (CA9 2011) (finding selective enforcement of a similar
ordinance in Oakland, California). While such allegations
might state a claim of official viewpoint discrimination,
that would not go to the validity of the Act. In any event,
petitioners nowhere allege selective enforcement.
It would be a very different question if it turned out that
a clinic authorized escorts to speak about abortion inside
the buffer zones. See post, at 1–2 (ALITO, J., concurring in
judgment). In that case, the escorts would not seem to be
violating the Act because the speech would be within the
scope of their employment.3 The Act’s exemption for clinic
——————
3 Less than two weeks after the instant litigation was initiated, the
Massachusetts Attorney General’s Office issued a guidance letter
clarifying the application of the four exemptions. The letter interpreted
the exemptions as not permitting clinic employees or agents, municipal
employees or agents, or individuals passing by clinics “to express their
views about abortion or to engage in any other partisan speech within
the buffer zone.” App. 93, 93–94. While this interpretation supports
our conclusion that the employee exemption does not render the Act
viewpoint based, we do not consider it in our analysis because it ap­
pears to broaden the scope of the Act—a criminal statute—rather than
to adopt a “ ‘limiting construction.’ ” Ward v. Rock Against Racism, 491
U.S. 781, 796 (1989) (quoting Hoffman Estates v. Flipside, Hoffman
Estates, Inc., 455 U.S. 489, 494, n. 5 (1982)).
18 McCULLEN v. COAKLEY
Opinion of the Court
employees would then facilitate speech on only one side of
the abortion debate—a clear form of viewpoint discrimina­
tion that would support an as-applied challenge to the
buffer zone at that clinic. But the record before us con­
tains insufficient evidence to show that the exemption
operates in this way at any of the clinics, perhaps because
the clinics do not want to doom the Act by allowing their
employees to speak about abortion within the buffer
zones.4
We thus conclude that the Act is neither content nor
viewpoint based and therefore need not be analyzed under
strict scrutiny.
IV
Even though the Act is content neutral, it still must be
“narrowly tailored to serve a significant governmental
interest.” Ward, 491 U.S., at 796 (internal quotation
marks omitted). The tailoring requirement does not sim­
ply guard against an impermissible desire to censor. The
government may attempt to suppress speech not only
because it disagrees with the message being expressed,
but also for mere convenience. Where certain speech is
associated with particular problems, silencing the speech
is sometimes the path of least resistance. But by demand­
——————
4 Of course we do not hold that “[s]peech restrictions favoring one
viewpoint over another are not content based unless it can be shown
that the favored viewpoint has actually been expressed.” Post, at 13.
We instead apply an uncontroversial principle of constitutional adjudi­
cation: that a plaintiff generally cannot prevail on an as-applied chal­
lenge without showing that the law has in fact been (or is sufficiently
likely to be) unconstitutionally applied to him. Specifically, when
someone challenges a law as viewpoint discriminatory but it is not clear
from the face of the law which speakers will be allowed to speak, he
must show that he was prevented from speaking while someone espous­
ing another viewpoint was permitted to do so. JUSTICE SCALIA can
decry this analysis as “astonishing” only by quoting a sentence that is
explicitly limited to as-applied challenges and treating it as relevant to
facial challenges. Ibid.
Cite as: 573 U. S. ____ (2014) 19
Opinion of the Court
ing a close fit between ends and means, the tailoring
requirement prevents the government from too readily
“sacrific[ing] speech for efficiency.” Riley v. National
Federation of Blind of N. C., Inc., 487 U.S. 781, 795
(1988).
For a content-neutral time, place, or manner regulation
to be narrowly tailored, it must not “burden substantially
more speech than is necessary to further the government’s
legitimate interests.” Ward, 491 U.S., at 799. Such a
regulation, unlike a content-based restriction of speech,
“need not be the least restrictive or least intrusive means
of ” serving the government’s interests. Id., at 798. But
the government still “may not regulate expression in such
a manner that a substantial portion of the burden on
speech does not serve to advance its goals.” Id., at 799.
A
As noted, respondents claim that the Act promotes
“public safety, patient access to healthcare, and the unob­
structed use of public sidewalks and roadways.” Brief for
Respondents 27. Petitioners do not dispute the signifi­
cance of these interests. We have, moreover, previously
recognized the legitimacy of the government’s interests in
“ensuring public safety and order, promoting the free flow
of traffic on streets and sidewalks, protecting property
rights, and protecting a woman’s freedom to seek pregnancy­
related services.” Schenck v. Pro-Choice Network of
Western N. Y., 519 U.S. 357, 376 (1997). See also Madsen
v. Women’s Health Center, Inc., 512 U.S. 753, 767–768
(1994). The buffer zones clearly serve these interests.
At the same time, the buffer zones impose serious bur­
dens on petitioners’ speech. At each of the three Planned
Parenthood clinics where petitioners attempt to counsel
patients, the zones carve out a significant portion of the
adjacent public sidewalks, pushing petitioners well back
from the clinics’ entrances and driveways. The zones
20 McCULLEN v. COAKLEY
Opinion of the Court
thereby compromise petitioners’ ability to initiate the
close, personal conversations that they view as essential to
“sidewalk counseling.”
For example, in uncontradicted testimony, McCullen
explained that she often cannot distinguish patients from
passersby outside the Boston clinic in time to initiate a
conversation before they enter the buffer zone. App. 135.
And even when she does manage to begin a discussion
outside the zone, she must stop abruptly at its painted
border, which she believes causes her to appear “untrust­
worthy” or “suspicious.” Id., at 135, 152. Given these
limitations, McCullen is often reduced to raising her voice
at patients from outside the zone—a mode of communica­
tion sharply at odds with the compassionate message she
wishes to convey. Id., at 133, 152–153. Clark gave similar
testimony about her experience at the Worcester clinic.
Id., at 243–244.
These burdens on petitioners’ speech have clearly taken
their toll. Although McCullen claims that she has per­
suaded about 80 women not to terminate their pregnan­
cies since the 2007 amendment, App. to Pet. for Cert. 42a,
she also says that she reaches “far fewer people” than she
did before the amendment, App. 137. Zarrella reports an
even more precipitous decline in her success rate: She
estimated having about 100 successful interactions over
the years before the 2007 amendment, but not a single one
since. Id., at 180. And as for the Worcester clinic, Clark
testified that “only one woman out of 100 will make the
effort to walk across [the street] to speak with [her].” Id.,
at 217.
The buffer zones have also made it substantially more
difficult for petitioners to distribute literature to arriving
patients. As explained, because petitioners in Boston
cannot readily identify patients before they enter the zone,
they often cannot approach them in time to place litera­
ture near their hands—the most effective means of getting
Cite as: 573 U. S. ____ (2014) 21
Opinion of the Court
the patients to accept it. Id., at 179. In Worcester and
Springfield, the zones have pushed petitioners so far back
from the clinics’ driveways that they can no longer even
attempt to offer literature as drivers turn into the parking
lots. Id., at 213, 218, 252–253. In short, the Act operates
to deprive petitioners of their two primary methods of
communicating with patients.
The Court of Appeals and respondents are wrong to
downplay these burdens on petitioners’ speech. As the
Court of Appeals saw it, the Constitution does not accord
“special protection” to close conversations or “handbilling.”
571 F.3d, at 180. But while the First Amendment does
not guarantee a speaker the right to any particular form of
expression, some forms—such as normal conversation and
leafletting on a public sidewalk—have historically been
more closely associated with the transmission of ideas
than others.
In the context of petition campaigns, we have observed
that “one-on-one communication” is “the most effective,
fundamental, and perhaps economical avenue of political
discourse.” Meyer v. Grant, 486 U.S. 414, 424 (1988). See
also Schenck, supra, at 377 (invalidating a “floating”
buffer zone around people entering an abortion clinic
partly on the ground that it prevented protestors “from
communicating a message from a normal conversational
distance or handing leaflets to people entering or leaving
the clinics who are walking on the public sidewalks”). And
“handing out leaflets in the advocacy of a politically con­
troversial viewpoint . . . is the essence of First Amendment
expression”; “[n]o form of speech is entitled to greater
constitutional protection.” McIntyre v. Ohio Elections
Comm’n, 514 U.S. 334, 347 (1995). See also Schenck,
supra, at 377 (“Leafletting and commenting on matters of
public concern are classic forms of speech that lie at the
heart of the First Amendment”). When the government
makes it more difficult to engage in these modes of com­
22 McCULLEN v. COAKLEY
Opinion of the Court
munication, it imposes an especially significant First
Amendment burden.5
Respondents also emphasize that the Act does not pre­
vent petitioners from engaging in various forms of “pro­
test”—such as chanting slogans and displaying signs—
outside the buffer zones. Brief for Respondents 50–54.
That misses the point. Petitioners are not protestors.
They seek not merely to express their opposition to abor­
tion, but to inform women of various alternatives and to
provide help in pursuing them. Petitioners believe that
they can accomplish this objective only through personal,
caring, consensual conversations. And for good reason: It
is easier to ignore a strained voice or a waving hand than
a direct greeting or an outstretched arm. While the record
indicates that petitioners have been able to have a number
of quiet conversations outside the buffer zones, respond­
ents have not refuted petitioners’ testimony that the con­
versations have been far less frequent and far less success­
ful since the buffer zones were instituted. It is thus no
answer to say that petitioners can still be “seen and
heard” by women within the buffer zones. Id., at 51–53. If
all that the women can see and hear are vociferous oppo­
nents of abortion, then the buffer zones have effectively
stifled petitioners’ message.
Finally, respondents suggest that, at the Worcester and
Springfield clinics, petitioners are prevented from com­
municating with patients not by the buffer zones but by
the fact that most patients arrive by car and park in the
——————
5 As a leading historian has noted:
“It was in this form—as pamphlets—that much of the most important
and characteristic writing of the American Revolution appeared. For
the Revolutionary generation, as for its predecessors back to the early
sixteenth century, the pamphlet had peculiar virtues as a medium of
communication. Then, as now, it was seen that the pamphlet allowed
one to do things that were not possible in any other form.” B. Bailyn,
The Ideological Origins of the American Revolution 2 (1967).
Cite as: 573 U. S. ____ (2014) 23
Opinion of the Court
clinics’ private lots. Id., at 52. It is true that the layout of
the two clinics would prevent petitioners from approach­
ing the clinics’ doorways, even without the buffer zones.
But petitioners do not claim a right to trespass on the
clinics’ property. They instead claim a right to stand on
the public sidewalks by the driveway as cars turn into the
parking lot. Before the buffer zones, they could do so.
Now they must stand a substantial distance away. The
Act alone is responsible for that restriction on their ability
to convey their message.
B
1
The buffer zones burden substantially more speech than
necessary to achieve the Commonwealth’s asserted inter­
ests. At the outset, we note that the Act is truly excep­
tional: Respondents and their amici identify no other
State with a law that creates fixed buffer zones around
abortion clinics.6 That of course does not mean that the
law is invalid. It does, however, raise concern that the
Commonwealth has too readily forgone options that could
serve its interests just as well, without substantially
burdening the kind of speech in which petitioners wish to
engage.
That is the case here. The Commonwealth’s interests
include ensuring public safety outside abortion clinics,
preventing harassment and intimidation of patients and
clinic staff, and combating deliberate obstruction of clinic
entrances. The Act itself contains a separate provision,
subsection (e)—unchallenged by petitioners—that prohib­
its much of this conduct. That provision subjects to crimi­
nal punishment “[a]ny person who knowingly obstructs,
detains, hinders, impedes or blocks another person’s entry
——————
6 Amici do identify five localities with laws similar to the Act here.
Brief for State of New York et al. as Amici Curiae 14, n. 7.
24 McCULLEN v. COAKLEY
Opinion of the Court
to or exit from a reproductive health care facility.” Mass.
Gen. Laws, ch. 266, §120E½(e).7 If Massachusetts deter­
mines that broader prohibitions along the same lines are
necessary, it could enact legislation similar to the federal
Freedom of Access to Clinic Entrances Act of 1994 (FACE
Act), 18 U.S. C. §248(a)(1), which subjects to both crimi­
nal and civil penalties anyone who “by force or threat of
force or by physical obstruction, intentionally injures,
intimidates or interferes with or attempts to injure, intim­
idate or interfere with any person because that person is
or has been, or in order to intimidate such person or any
other person or any class of persons from, obtaining or
providing reproductive health services.” Some dozen other
States have done so. See Brief for State of New York et al.
as Amici Curiae 13, and n. 6. If the Commonwealth is
particularly concerned about harassment, it could also
consider an ordinance such as the one adopted in New
York City that not only prohibits obstructing access to a
clinic, but also makes it a crime “to follow and harass
another person within 15 feet of the premises of a repro­
ductive health care facility.” N. Y. C. Admin. Code §8–
803(a)(3) (2014).8
The Commonwealth points to a substantial public safety
risk created when protestors obstruct driveways leading to
the clinics. See App. 18, 41, 51, 88–89, 99, 118–119. That
is, however, an example of its failure to look to less intru­
——————
7 Massachusetts also has a separate law prohibiting similar kinds of
conduct at any “medical facility,” though that law, unlike the Act,
requires explicit notice before any penalty may be imposed. Mass. Gen.
Laws, ch. 266, §120E.
8 We do not “give [our] approval” to this or any of the other alterna­
tives we discuss. Post, at 4. We merely suggest that a law like the New
York City ordinance could in principle constitute a permissible alterna­
tive. Whether such a law would pass constitutional muster would
depend on a number of other factors, such as whether the term “har­
assment” had been authoritatively construed to avoid vagueness and
overbreadth problems of the sort noted by JUSTICE SCALIA.
Cite as: 573 U. S. ____ (2014) 25
Opinion of the Court
sive means of addressing its concerns. Any such obstruc­
tion can readily be addressed through existing local ordi­
nances. See, e.g., Worcester, Mass., Revised Ordinances of
2008, ch. 12, §25(b) (“No person shall stand, or place any
obstruction of any kind, upon any street, sidewalk or
crosswalk in such a manner as to obstruct a free passage
for travelers thereon”); Boston, Mass., Municipal Code, ch.
16–41.2(d) (2013) (“No person shall solicit while walking
on, standing on or going into any street or highway used
for motor vehicle travel, or any area appurtenant thereto
(including medians, shoulder areas, bicycle lanes, ramps
and exit ramps)”).
All of the foregoing measures are, of course, in addition
to available generic criminal statutes forbidding assault,
breach of the peace, trespass, vandalism, and the like.
In addition, subsection (e) of the Act, the FACE Act, and
the New York City anti-harassment ordinance are all
enforceable not only through criminal prosecutions but
also through public and private civil actions for injunc­
tions and other equitable relief. See Mass. Gen. Laws
§120E½(f); 18 U.S. C. §248(c)(1); N. Y. C. Admin. Code
§§8–804, 8–805. We have previously noted the First
Amendment virtues of targeted injunctions as alternatives
to broad, prophylactic measures. Such an injunction
“regulates the activities, and perhaps the speech, of a
group,” but only “because of the group’s past actions in the
context of a specific dispute between real parties.” Mad-
sen, 512 U.S., at 762 (emphasis added). Moreover, given
the equitable nature of injunctive relief, courts can tailor a
remedy to ensure that it restricts no more speech than
necessary. See, e.g., id., at 770; Schenck, 519 U.S., at
380–381. In short, injunctive relief focuses on the precise
individuals and the precise conduct causing a particular
problem. The Act, by contrast, categorically excludes non­
exempt individuals from the buffer zones, unnecessarily
sweeping in innocent individuals and their speech.
26 McCULLEN v. COAKLEY
Opinion of the Court
The Commonwealth also asserts an interest in prevent­
ing congestion in front of abortion clinics. According to
respondents, even when individuals do not deliberately
obstruct access to clinics, they can inadvertently do so
simply by gathering in large numbers. But the Common­
wealth could address that problem through more targeted
means. Some localities, for example, have ordinances that
require crowds blocking a clinic entrance to disperse when
ordered to do so by the police, and that forbid the individ­
uals to reassemble within a certain distance of the clinic
for a certain period. See Brief for State of New York et al.
as Amici Curiae 14–15, and n. 10. We upheld a similar
law forbidding three or more people “ ‘to congregate within
500 feet of [a foreign embassy], and refuse to disperse
after having been ordered so to do by the police,’ ” Boos,
485 U.S., at 316 (quoting D. C. Code §22–1115 (1938))—
an order the police could give only when they “ ‘reasonably
believe[d] that a threat to the security or peace of the
embassy [was] present,’ ” 485 U.S., at 330 (quoting Finzer
v. Barry, 798 F.2d 1450, 1471 (CADC 1986)).
And to the extent the Commonwealth argues that even
these types of laws are ineffective, it has another problem.
The portions of the record that respondents cite to support
the anticongestion interest pertain mainly to one place at
one time: the Boston Planned Parenthood clinic on Satur­
day mornings. App. 69–71, 88–89, 96, 123. Respondents
point us to no evidence that individuals regularly gather
at other clinics, or at other times in Boston, in sufficiently
large groups to obstruct access. For a problem shown to
arise only once a week in one city at one clinic, creating
35-foot buffer zones at every clinic across the Common­
wealth is hardly a narrowly tailored solution.
The point is not that Massachusetts must enact all or
even any of the proposed measures discussed above. The
point is instead that the Commonwealth has available to it
a variety of approaches that appear capable of serving its
Cite as: 573 U. S. ____ (2014) 27
Opinion of the Court
interests, without excluding individuals from areas histor­
ically open for speech and debate.
2
Respondents have but one reply: “We have tried other
approaches, but they do not work.” Respondents empha­
size the history in Massachusetts of obstruction at abor­
tion clinics, and the Commonwealth’s allegedly failed
attempts to combat such obstruction with injunctions and
individual prosecutions. They also point to the Common­
wealth’s experience under the 2000 version of the Act,
during which the police found it difficult to enforce the six­
foot no-approach zones given the “frenetic” activity in front
of clinic entrances. Brief for Respondents 43. According to
respondents, this history shows that Massachusetts has
tried less restrictive alternatives to the buffer zones, to no
avail.
We cannot accept that contention. Although respond­
ents claim that Massachusetts “tried other laws already
on the books,” id., at 41, they identify not a single prosecu­
tion brought under those laws within at least the last 17
years. And while they also claim that the Commonwealth
“tried injunctions,” ibid., the last injunctions they cite date
to the 1990s, see id., at 42 (citing Planned Parenthood
League of Mass., Inc. v. Bell, 424 Mass. 573, 677 N.E.2d
204 (1997); Planned Parenthood League of Mass., Inc. v.
Operation Rescue, 406 Mass. 701, 550 N.E.2d 1361
(1990)). In short, the Commonwealth has not shown that
it seriously undertook to address the problem with less
intrusive tools readily available to it. Nor has it shown
that it considered different methods that other jurisdic­
tions have found effective.
Respondents contend that the alternatives we have
discussed suffer from two defects: First, given the “wide­
spread” nature of the problem, it is simply not “practica­
ble” to rely on individual prosecutions and injunctions.
28 McCULLEN v. COAKLEY
Opinion of the Court
Brief for Respondents 45. But far from being “wide­
spread,” the problem appears from the record to be limited
principally to the Boston clinic on Saturday mornings.
Moreover, by their own account, the police appear per-
fectly capable of singling out lawbreakers. The legislative
testimony preceding the 2007 Act revealed substantial
police and video monitoring at the clinics, especially when
large gatherings were anticipated. Captain Evans testi­
fied that his officers are so familiar with the scene outside
the Boston clinic that they “know all the players down
there.” App. 69. And Attorney General Coakley relied on
video surveillance to show legislators conduct she thought
was “clearly against the law.” Id., at 78. If Common­
wealth officials can compile an extensive record of obstruc­
tion and harassment to support their preferred legislation,
we do not see why they cannot do the same to support
injunctions and prosecutions against those who might
deliberately flout the law.
The second supposed defect in the alternatives we have
identified is that laws like subsection (e) of the Act and the
federal FACE Act require a showing of intentional or
deliberate obstruction, intimidation, or harassment, which
is often difficult to prove. Brief for Respondents 45–47.
As Captain Evans predicted in his legislative testimony,
fixed buffer zones would “make our job so much easier.”
App. 68.
Of course they would. But that is not enough to satisfy
the First Amendment. To meet the requirement of narrow
tailoring, the government must demonstrate that alterna­
tive measures that burden substantially less speech would
fail to achieve the government’s interests, not simply that
the chosen route is easier. A painted line on the sidewalk
is easy to enforce, but the prime objective of the First
Amendment is not efficiency. In any case, we do not think
that showing intentional obstruction is nearly so difficult
in this context as respondents suggest. To determine
Cite as: 573 U. S. ____ (2014) 29
Opinion of the Court
whether a protestor intends to block access to a clinic, a
police officer need only order him to move. If he refuses,
then there is no question that his continued conduct is
knowing or intentional.
For similar reasons, respondents’ reliance on our deci­
sion in Burson v. Freeman is misplaced. There, we upheld
a state statute that established 100-foot buffer zones
outside polling places on election day within which no one
could display or distribute campaign materials or solicit
votes. 504 U.S., at 193–194. We approved the buffer
zones as a valid prophylactic measure, noting that existing
“[i]ntimidation and interference laws fall short of serving a
State’s compelling interests because they ‘deal with only
the most blatant and specific attempts’ to impede elec­
tions.” Id., at 206–207 (quoting Buckley v. Valeo, 424 U.S.
1, 28 (1976) (per curiam)). Such laws were insufficient
because “[v]oter intimidation and election fraud are . . .
difficult to detect.” Burson, 504 U.S., at 208. Obstruction
of abortion clinics and harassment of patients, by contrast,
are anything but subtle.
We also noted in Burson that under state law, “law
enforcement officers generally are barred from the vicinity
of the polls to avoid any appearance of coercion in the
electoral process,” with the result that “many acts of inter­
ference would go undetected.” Id., at 207. Not so here.
Again, the police maintain a significant presence outside
Massachusetts abortion clinics. The buffer zones in Bur-
son were justified because less restrictive measures were
inadequate. Respondents have not shown that to be the
case here.
Given the vital First Amendment interests at stake, it is
not enough for Massachusetts simply to say that other
approaches have not worked.9
——————
9 Because we find that the Act is not narrowly tailored, we need not
consider whether the Act leaves open ample alternative channels of
30 McCULLEN v. COAKLEY
Opinion of the Court
* * *
Petitioners wish to converse with their fellow citizens
about an important subject on the public streets and
sidewalks—sites that have hosted discussions about the
issues of the day throughout history. Respondents assert
undeniably significant interests in maintaining public
safety on those same streets and sidewalks, as well as in
preserving access to adjacent healthcare facilities. But
here the Commonwealth has pursued those interests by
the extreme step of closing a substantial portion of a tradi­
tional public forum to all speakers. 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 judgment of the Court of Appeals for the First
Circuit is reversed, and the case is remanded for further
proceedings consistent with this opinion.
It is so ordered.
——————
communication. Nor need we consider petitioners’ overbreadth chal­
lenge.
Cite as: 573 U. S. ____ (2014) 1
SCALIA, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 12–1168
_________________
ELEANOR McCULLEN, ET AL., PETITIONERS v.
MARTHA COAKLEY, ATTORNEY GEN-
ERAL OF MASSACHUSETTS, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIRST CIRCUIT
[June 26, 2014]
JUSTICE SCALIA, with whom JUSTICE KENNEDY and
JUSTICE THOMAS join, concurring in the judgment.
Today’s opinion carries forward this Court’s practice of
giving abortion-rights advocates a pass when it comes to
suppressing the free-speech rights of their opponents.
There is an entirely separate, abridged edition of the First
Amendment applicable to speech against abortion. See,
e.g., Hill v. Colorado, 530 U.S. 703 (2000); Madsen v.
Women’s Health Center, Inc., 512 U.S. 753 (1994).
The second half of the Court’s analysis today, invalidat­
ing the law at issue because of inadequate “tailoring,” is
certainly attractive to those of us who oppose an abortion­
speech edition of the First Amendment. But think again.
This is an opinion that has Something for Everyone, and
the more significant portion continues the onward march
of abortion-speech-only jurisprudence. That is the first
half of the Court’s analysis, which concludes that a statute
of this sort is not content based and hence not subject to
so-called strict scrutiny. The Court reaches out to decide
that question unnecessarily—or at least unnecessarily
insofar as legal analysis is concerned.
I disagree with the Court’s dicta (Part III) and hence see
no reason to opine on its holding (Part IV).
2 McCULLEN v. COAKLEY
SCALIA, J., concurring in judgment
I. The Court’s Content-Neutrality Discussion
Is Unnecessary
The gratuitous portion of today’s opinion is Part III,
which concludes—in seven pages of the purest dicta—that
subsection (b) of the Massachusetts Reproductive Health
Care Facilities Act is not specifically directed at speech
opposing (or even concerning) abortion and hence need not
meet the strict-scrutiny standard applicable to content­
based speech regulations.1 Inasmuch as Part IV holds
that the Act is unconstitutional because it does not survive
the lesser level of scrutiny associated with content-neutral
“time, place, and manner” regulations, there is no princi­
pled reason for the majority to decide whether the statute
is subject to strict scrutiny.
Just a few months past, the Court found it unnecessary
to “parse the differences between . . . two [available]
standards” where a statute challenged on First Amend­
ment grounds “fail[s] even under the [less demanding]
test.” McCutcheon v. Federal Election Comm’n, 572 U. S.
___, ___ (2014) (plurality opinion) (slip op., at 10). What
has changed since then? Quite simple: This is an abortion
case, and McCutcheon was not.2 By engaging in constitu­
tional dictum here (and reaching the wrong result), the
——————
1 To reiterate, the challenged provision states that “[n]o person shall
knowingly enter or remain on a public way or sidewalk adjacent to a
reproductive health care facility within a radius of 35 feet of any
portion of an entrance, exit or driveway” of such a facility or within an
alternative rectangular area. Mass. Gen. Laws, ch. 266, §120E½(b)
(West 2012). And the statute defines a “reproductive health care
facility” as “a place, other than within or upon the grounds of a hospi­
tal, where abortions are offered or performed.” §120E½(a).
2 The Court claims that McCutcheon declined to consider the more
rigorous standard of review because applying it “would have required
overruling a precedent.” Ante, at 11. That hardly distinguishes the
present case, since, as discussed later in text, the conclusion that this
legislation escapes strict scrutiny does violence to a great swath of our
First Amendment jurisprudence.
Cite as: 573 U. S. ____ (2014) 3
SCALIA, J., concurring in judgment
majority can preserve the ability of jurisdictions across the
country to restrict antiabortion speech without fear of
rigorous constitutional review. With a dart here and a
pleat there, such regulations are sure to satisfy the tailor­
ing standards applied in Part IV of the majority’s opinion.
The Court cites two cases for the proposition that “[i]t is
not unusual for the Court to proceed sequentially in apply­
ing a constitutional test, even when the preliminary steps
turn out not to be dispositive.” Ante, at 10–11 (citing
Bartnicki v. Vopper, 532 U.S. 514, 526–527 (2001); Holder
v. Humanitarian Law Project, 561 U.S. 1, 25–28 (2010)).
Those cases provide little cover. In both, there was no
disagreement among the Members of the Court about
whether the statutes in question discriminated on the
basis of content.3 There was thus little harm in answering
the constitutional question that was “logically antecedent.”
Ante, at 10. In the present case, however, content neutral­
ity is far from clear (the Court is divided 5-to-4), and the
parties vigorously dispute the point, see ibid. One would
have thought that the Court would avoid the issue by
simply assuming without deciding the logically antecedent
point. We have done that often before. See, e.g., Herrera
v. Collins, 506 U.S. 390, 417 (1993); Regents of Univ. of
Mich. v. Ewing, 474 U.S. 214, 222–223 (1985); Board of
Curators of Univ. of Mo. v. Horowitz, 435 U.S. 78, 91–92
(1978).
The Court points out that its opinion goes on to suggest
——————
3 See Bartnicki, 532 U.S., at 526 (“We agree with petitioners that
§2511(1)(c), as well as its Pennsylvania analog, is in fact a content­
neutral law of general applicability”); id., at 544 (Rehnquist, C. J.,
dissenting) (“The Court correctly observes that these are ‘content­
neutral law[s] of general applicability’ ” (brackets in original)); Humani-
tarian Law Project, 561 U.S., at 27 (“[Section] 2339B regulates speech
on the basis of its content”); id., at 45 (BREYER, J., dissenting)
(“[W]here, as here, a statute applies criminal penalties and at least
arguably does so on the basis of content-based distinctions, I should
think we would scrutinize the statute and justifications ‘strictly’ ”).
4 McCULLEN v. COAKLEY
SCALIA, J., concurring in judgment
(in Part IV) possible alternatives that apply only at abor­
tion clinics, which therefore “raises the question whether
those provisions are content neutral.” Ante, at 11. Of
course, the Court has no obligation to provide advice on
alternative speech restrictions, and appending otherwise
unnecessary constitutional pronouncements to such advice
produces nothing but an impermissible advisory opinion.
By the way, there is dictum favorable to advocates of
abortion rights even in Part IV. The Court invites Massa­
chusetts, as a means of satisfying the tailoring require­
ment, to “consider an ordinance such as the one adopted in
New York City that . . . makes it a crime ‘to follow and
harass another person within 15 feet of the premises of a
reproductive health care facility.’ ” Ante, at 24 (quoting
N. Y. C. Admin. Code §8–803(a)(3) (2014)). Is it harass­
ment, one wonders, for Eleanor McCullen to ask a woman,
quietly and politely, two times, whether she will take
literature or whether she has any questions? Three times?
Four times? It seems to me far from certain that First
Amendment rights can be imperiled by threatening jail
time (only at “reproductive health care facilit[ies],” of
course) for so vague an offense as “follow[ing] and har­
ass[ing].” It is wrong for the Court to give its approval to
such legislation without benefit of briefing and argument.
II. The Statute Is Content Based and Fails Strict Scrutiny
Having eagerly volunteered to take on the level-of­
scrutiny question, the Court provides the wrong answer.
Petitioners argue for two reasons that subsection (b) ar­
ticulates a content-based speech restriction—and that
we must therefore evaluate it through the lens of strict
scrutiny.
A. Application to Abortion Clinics Only
First, petitioners maintain that the Act targets abortion­
related—for practical purposes, abortion-opposing—speech
Cite as: 573 U. S. ____ (2014) 5
SCALIA, J., concurring in judgment
because it applies outside abortion clinics only (rather
than outside other buildings as well).
Public streets and sidewalks are traditional forums for
speech on matters of public concern. Therefore, as the
Court acknowledges, they hold a “ ‘special position in
terms of First Amendment protection.’ ” Ante, at 8 (quot­
ing United States v. Grace, 461 U.S. 171, 180 (1983)).
Moreover, “the public spaces outside of [abortion­
providing] facilities . . . ha[ve] become, by necessity and by
virtue of this Court’s decisions, a forum of last resort for
those who oppose abortion.” Hill, 530 U.S., at 763
(SCALIA, J., dissenting). It blinks reality to say, as the
majority does, that a blanket prohibition on the use of
streets and sidewalks where speech on only one politically
controversial topic is likely to occur—and where that
speech can most effectively be communicated—is not
content based. Would the Court exempt from strict scru­
tiny a law banning access to the streets and sidewalks
surrounding the site of the Republican National Conven­
tion? Or those used annually to commemorate the 1965
Selma-to-Montgomery civil rights marches? Or those
outside the Internal Revenue Service? Surely not.
The majority says, correctly enough, that a facially
neutral speech restriction escapes strict scrutiny, even
when it “may disproportionately affect speech on certain
topics,” so long as it is “justified without reference to the
content of the regulated speech.” Ante, at 12 (internal
quotation marks omitted). But the cases in which the
Court has previously found that standard satisfied—in
particular, Renton v. Playtime Theatres, Inc., 475 U.S. 41
(1986), and Ward v. Rock Against Racism, 491 U.S. 781
(1989), both of which the majority cites—are a far cry from
what confronts us here.
Renton upheld a zoning ordinance prohibiting adult
motion-picture theaters within 1,000 feet of residential
neighborhoods, churches, parks, and schools. The ordi­
6 McCULLEN v. COAKLEY
SCALIA, J., concurring in judgment
nance was content neutral, the Court held, because its
purpose was not to suppress pornographic speech qua
speech but, rather, to mitigate the “secondary effects” of
adult theaters—including by “prevent[ing] crime, pro­
tect[ing] the city’s retail trade, [and] maintain[ing] prop­
erty values.” 475 U.S., at 47, 48. The Court reasoned that
if the city “ ‘had been concerned with restricting the mes­
sage purveyed by adult theaters, it would have tried to
close them or restrict their number rather than circum­
scribe their choice as to location.’ ” Id., at 48 (quoting
Young v. American Mini Theatres, Inc., 427 U.S. 50, 82,
n. 4 (1976) (Powell, J., concurring in part)). Ward, in turn,
involved a New York City regulation requiring the use of
the city’s own sound equipment and technician for events
at a bandshell in Central Park. The Court held the regu­
lation content neutral because its “principal justification
[was] the city’s desire to control noise levels,” a justifica­
tion that “ ‘ha[d] nothing to do with [the] content’ ” of re­
spondent’s rock concerts or of music more generally. 491
U.S., at 792. The regulation “ha[d] no material impact on
any performer’s ability to exercise complete artistic control
over sound quality.” Id., at 802; see also id., at 792–793.
Compare these cases’ reasons for concluding that the
regulations in question were “justified without reference to
the content of the regulated speech” with the feeble rea­
sons for the majority’s adoption of that conclusion in the
present case. The majority points only to the statute’s
stated purpose of increasing “ ‘public safety’ ” at abortion
clinics, ante, at 12–13 (quoting 2007 Mass. Acts p. 660),
and to the additional aims articulated by respondents
before this Court—namely, protecting “ ‘patient access to
healthcare . . . and the unobstructed use of public side­
walks and roadways,’ ” ante, at 13 (quoting Brief for Re­
spondents 27). Really? Does a statute become “justified
without reference to the content of the regulated speech”
simply because the statute itself and those defending it in
Cite as: 573 U. S. ____ (2014) 7
SCALIA, J., concurring in judgment
court say that it is? Every objective indication shows that
the provision’s primary purpose is to restrict speech that
opposes abortion.
I begin, as suggested above, with the fact that the Act
burdens only the public spaces outside abortion clinics.
One might have expected the majority to defend the stat­
ute’s peculiar targeting by arguing that those locations
regularly face the safety and access problems that it says
the Act was designed to solve. But the majority does not
make that argument because it would be untrue. As the
Court belatedly discovers in Part IV of its opinion, al­
though the statute applies to all abortion clinics in Massa­
chusetts, only one is known to have been beset by the
problems that the statute supposedly addresses. See ante,
at 26, 28. The Court uses this striking fact (a smoking
gun, so to speak) as a basis for concluding that the law is
insufficiently “tailored” to safety and access concerns (Part
IV) rather than as a basis for concluding that it is not
directed to those concerns at all, but to the suppression of
antiabortion speech. That is rather like invoking the eight
missed human targets of a shooter who has killed one
victim to prove, not that he is guilty of attempted mass
murder, but that he has bad aim.
Whether the statute “restrict[s] more speech than
necessary” in light of the problems that it allegedly ad­
dresses, ante, at 14–15, is, to be sure, relevant to the
tailoring component of the First Amendment analysis (the
shooter doubtless did have bad aim), but it is also rele­
vant—powerfully relevant—to whether the law is really
directed to safety and access concerns or rather to the
suppression of a particular type of speech. Showing that a
law that suppresses speech on a specific subject is so far­
reaching that it applies even when the asserted non­
speech-related problems are not present is persuasive
evidence that the law is content based. In its zeal to treat
abortion-related speech as a special category, the majority
8 McCULLEN v. COAKLEY
SCALIA, J., concurring in judgment
distorts not only the First Amendment but also the ordi­
nary logic of probative inferences.
The structure of the Act also indicates that it rests on
content-based concerns. The goals of “public safety, pa­
tient access to healthcare, and the unobstructed use of
public sidewalks and roadways,” Brief for Respondents 27,
are already achieved by an earlier-enacted subsection of
the statute, which provides criminal penalties for “[a]ny
person who knowingly obstructs, detains, hinders, im­
pedes or blocks another person’s entry to or exit from a
reproductive health care facility.” §120E½(e). As the
majority recognizes, that provision is easy to enforce. See
ante, at 28–29. Thus, the speech-free zones carved out by
subsection (b) add nothing to safety and access; what they
achieve, and what they were obviously designed to
achieve, is the suppression of speech opposing abortion.
Further contradicting the Court’s fanciful defense of the
Act is the fact that subsection (b) was enacted as a more
easily enforceable substitute for a prior provision. That pro­
vision did not exclude people entirely from the restricted
areas around abortion clinics; rather, it forbade people
in those areas to approach within six feet of another per­
son without that person’s consent “for the purpose of pass­
ing a leaflet or handbill to, displaying a sign to, or engag­
ing in oral protest, education or counseling with such
other person.” §120E½(b) (West 2000). As the majority
acknowledges, that provision was “modeled on a . . . Colo­
rado law that this Court had upheld in Hill.” Ante, at 2.
And in that case, the Court recognized that the statute in
question was directed at the suppression of unwelcome
speech, vindicating what Hill called “[t]he unwilling lis­
tener’s interest in avoiding unwanted communication.”
530 U.S., at 716. The Court held that interest to be con­
tent neutral. Id., at 719–725.
The provision at issue here was indisputably meant to
serve the same interest in protecting citizens’ supposed
Cite as: 573 U. S. ____ (2014) 9
SCALIA, J., concurring in judgment
right to avoid speech that they would rather not hear. For
that reason, we granted a second question for review in
this case (though one would not know that from the
Court’s opinion, which fails to mention it): whether Hill
should be cut back or cast aside. See Pet. for Cert. i. (stat­
ing second question presented as “If Hill . . . permits en­
forcement of this law, whether Hill should be limited or
overruled”); 570 U. S. ___ (2013) (granting certiorari with­
out reservation). The majority avoids that question by
declaring the Act content neutral on other (entirely unper­
suasive) grounds. In concluding that the statute is con­
tent based and therefore subject to strict scrutiny, I neces­
sarily conclude that Hill should be overruled. Reasons for
doing so are set forth in the dissents in that case, see 530
U.S., at 741–765 (SCALIA, J.); id., at 765–790 (KENNEDY,
J.), and in the abundance of scathing academic commen­
tary describing how Hill stands in contradiction to our
First Amendment jurisprudence.4 Protecting people from
speech they do not want to hear is not a function that the
First Amendment allows the government to undertake in
the public streets and sidewalks.
One final thought regarding Hill: It can be argued, and
it should be argued in the next case, that by stating that
“the Act would not be content neutral if it were concerned
with undesirable effects that arise from . . . ‘[l]isteners’
reactions to speech,’ ” ante, at 13 (quoting Boos v. Barry,
485 U.S. 312, 321 (1988) (brackets in original)), and then
holding the Act unconstitutional for being insufficiently
tailored to safety and access concerns, the Court itself has
——————
4 “Hill . . . is inexplicable on standard free-speech grounds[,] and . . . it
is shameful the Supreme Court would have upheld this piece of legisla­
tion on the reasoning that it gave.” Constitutional Law Symposium,
Professor Michael W. McConnell’s Response, 28 Pepperdine L. Rev. 747
(2001). “I don’t think [Hill] was a difficult case. I think it was slam­
dunk simple and slam-dunk wrong.” Id., at 750 (remarks of Laurence
Tribe). The list could go on.
10 McCULLEN v. COAKLEY
SCALIA, J., concurring in judgment
sub silentio (and perhaps inadvertently) overruled Hill.
The unavoidable implication of that holding is that protec­
tion against unwelcome speech cannot justify restrictions
on the use of public streets and sidewalks.
B. Exemption for Abortion-Clinic Employees or Agents
Petitioners contend that the Act targets speech opposing
abortion (and thus constitutes a presumptively invalid
viewpoint-discriminatory restriction) for another reason
as well: It exempts “employees or agents” of an abortion
clinic “acting within the scope of their employment,”
§120E½(b)(2).
It goes without saying that “[g]ranting waivers to fa­
vored speakers (or . . . denying them to disfavored speak­
ers) would of course be unconstitutional.” Thomas v.
Chicago Park Dist., 534 U.S. 316, 325 (2002). The major­
ity opinion sets forth a two-part inquiry for assessing
whether a regulation is content based, but when it comes
to assessing the exemption for abortion-clinic employees or
agents, the Court forgets its own teaching. Its opinion
jumps right over the prong that asks whether the provi­
sion “draw[s] . . . distinctions on its face,” ante, at 12, and
instead proceeds directly to the purpose-related prong, see
ibid., asking whether the exemption “represent[s] a gov­
ernmental attempt to give one side of a debatable public
question an advantage in expressing its views to the peo­
ple,” ante, at 15 (internal quotation marks omitted). I
disagree with the majority’s negative answer to that ques­
tion, but that is beside the point if the text of the statute—
whatever its purposes might have been—“license[s] one
side of a debate to fight freestyle, while requiring the other
to follow Marquis of Queensberry rules.” R. A. V. v. St.
Paul, 505 U.S. 377, 392 (1992).
Is there any serious doubt that abortion-clinic employees
or agents “acting within the scope of their employment”
near clinic entrances may—indeed, often will—speak in
Cite as: 573 U. S. ____ (2014) 11
SCALIA, J., concurring in judgment
favor of abortion (“You are doing the right thing”)? Or
speak in opposition to the message of abortion oppo­
nents—saying, for example, that “this is a safe facility” to
rebut the statement that it is not? See Tr. of Oral Arg.
37–38. The Court’s contrary assumption is simply incred­
ible. And the majority makes no attempt to establish the
further necessary proposition that abortion-clinic employ­
ees and agents do not engage in nonspeech activities
directed to the suppression of antiabortion speech by
hampering the efforts of counselors to speak to prospective
clients. Are we to believe that a clinic employee sent out
to “escort” prospective clients into the building would not
seek to prevent a counselor like Eleanor McCullen from
communicating with them? He could pull a woman away
from an approaching counselor, cover her ears, or make
loud noises to drown out the counselor’s pleas.
The Court points out that the exemption may allow into
the speech-free zones clinic employees other than escorts,
such as “the maintenance worker shoveling a snowy side­
walk or the security guard patrolling a clinic entrance.”
Ante, at 16. I doubt that Massachusetts legislators had
those people in mind, but whether they did is in any event
irrelevant. Whatever other activity is permitted, so long
as the statute permits speech favorable to abortion rights
while excluding antiabortion speech, it discriminates on
the basis of viewpoint.
The Court takes the peculiar view that, so long as the
clinics have not specifically authorized their employees to
speak in favor of abortion (or, presumably, to impede
antiabortion speech), there is no viewpoint discrimination.
See ibid. But it is axiomatic that “where words are em­
ployed in a statute which had at the time a well-known
meaning at common law or in the law of this country[,]
they are presumed to have been used in that sense unless
the context compels to the contrary.” Standard Oil Co. of
N. J. v. United States, 221 U.S. 1, 59 (1911). The phrase
12 McCULLEN v. COAKLEY
SCALIA, J., concurring in judgment
“scope of employment” is a well-known common-law con­
cept that includes “[t]he range of reasonable and foresee­
able activities that an employee engages in while carrying
out the employer’s business.” Black’s Law Dictionary 1465
(9th ed. 2009). The employer need not specifically direct
or sanction each aspect of an employee’s conduct for it to
qualify. See Restatement (Second) of Agency §229 (1957);
see also Restatement (Third) of Agency §7.07(2), and
Comment b (2005). Indeed, employee conduct can qualify
even if the employer specifically forbids it. See Restate­
ment (Second) §230. In any case, it is implausible that
clinics would bar escorts from engaging in the sort of
activity mentioned above. Moreover, a statute that forbids
one side but not the other to convey its message does not
become viewpoint neutral simply because the favored side
chooses voluntarily to abstain from activity that the stat­
ute permits.
There is not a shadow of a doubt that the assigned or
foreseeable conduct of a clinic employee or agent can
include both speaking in favor of abortion rights and
countering the speech of people like petitioners. See post,
at 1–2 (ALITO, J., concurring in judgment). Indeed, as the
majority acknowledges, the trial record includes testimony
that escorts at the Boston clinic “expressed views about
abortion to the women they were accompanying, thwarted
petitioners’ attempts to speak and hand literature to the
women, and disparaged petitioners in various ways,”
including by calling them “ ‘crazy.’ ” Ante, at 7, 16
(citing App. 165, 168–169, 177–178, 189–190). What a
surprise! The Web site for the Planned Parenthood
League of Massachusetts (which operates the three
abortion facilities where petitioners attempt to counsel
women), urges readers to “Become a Clinic Escort Vol­
unteer” in order to “provide a safe space for patients
by escorting them through protestors to the health center.”
Volunteer and Internship Opportunities, online at https://
Cite as: 573 U. S. ____ (2014) 13
SCALIA, J., concurring in judgment
plannedparenthoodvolunteer.hire.com /viewjob.html?optlink-
view=view-28592&ERFormID=newjoblist&ERFormCode=any
(as visited June 24, 2014, and available in Clerk of Court’s
case file). The dangers that the Web site attributes to
“protestors” are related entirely to speech, not to safety or
access. “Protestors,” it reports, “hold signs, try to speak to
patients entering the building, and distribute literature
that can be misleading.” Ibid. The “safe space” provided
by escorts is protection from that speech.
Going from bad to worse, the majority’s opinion con­
tends that “the record before us contains insufficient
evidence to show” that abortion-facility escorts have actu­
ally spoken in favor of abortion (or, presumably, hindered
antiabortion speech) while acting within the scope of their
employment. Ante, at 18. Here is a brave new First
Amendment test: Speech restrictions favoring one view­
point over another are not content based unless it can be
shown that the favored viewpoint has actually been ex­
pressed. A city ordinance closing a park adjoining the
Republican National Convention to all speakers except
those whose remarks have been approved by the Repub­
lican National Committee is thus not subject to strict
scrutiny unless it can be shown that someone has given
committee-endorsed remarks. For this Court to suggest
such a test is astonishing.5
——————
5 The Court states that I can make this assertion “only by quoting a
sentence that is explicitly limited to as-applied challenges and treating
it as relevant to facial challenges.” Ante, at 18, n. 4. That is not so.
The sentence in question appears in a paragraph immediately following
rejection of the facial challenge, which begins: “It would be a very
different question if it turned out that a clinic authorized escorts to
speak about abortion inside the buffer zones.” Ante, at 17. And the
prior discussion regarding the facial challenge points to the fact that
“[t]here is no suggestion in the record that any of the clinics authorize
their employees to speak about abortion in the buffer zones.” Ante, at
16. To be sure, the paragraph in question then goes on to concede only
that the statute’s constitutionality as applied would depend upon
14 McCULLEN v. COAKLEY
SCALIA, J., concurring in judgment
C. Conclusion
In sum, the Act should be reviewed under the strict­
scrutiny standard applicable to content-based legislation.
That standard requires that a regulation represent “the
least restrictive means” of furthering “a compelling Gov­
ernment interest.” United States v. Playboy Entertain-
ment Group, Inc., 529 U.S. 803, 813 (2000) (internal
quotation marks omitted). Respondents do not even at­
tempt to argue that subsection (b) survives this test. See
ante, at 10. “Suffice it to say that if protecting people from
unwelcome communications”—the actual purpose of the
provision—“is a compelling state interest, the First
Amendment is a dead letter.” Hill, 530 U.S., at 748–749
(SCALIA, J., dissenting).
III. Narrow Tailoring
Having determined that the Act is content based and
does not withstand strict scrutiny, I need not pursue the
inquiry conducted in Part IV of the Court’s opinion—
whether the statute is “ ‘narrowly tailored to serve a signif­
icant governmental interest,’ ” ante, at 18 (quoting Ward,
491 U.S., at 796 (internal quotation marks omitted)). I
suppose I could do so, taking as a given the Court’s erro­
neous content-neutrality conclusion in Part III; and if I
did, I suspect I would agree with the majority that the
legislation is not narrowly tailored to advance the inter­
ests asserted by respondents. But I prefer not to take part
in the assembling of an apparent but specious unanimity.
I leave both the plainly unnecessary and erroneous half
——————
explicit clinic authorization. Even that seems to me wrong. Saying
that voluntary action by a third party can cause an otherwise valid
statute to violate the First Amendment as applied seems to me little
better than saying it can cause such a statute to violate the First
Amendment facially. A statute that punishes me for speaking unless x
chooses to speak is unconstitutional facially and as applied, without
reference to x’s action.
Cite as: 573 U. S. ____ (2014) 15
SCALIA, J., concurring in judgment
and the arguably correct half of the Court’s analysis to the
majority.
* * *
The obvious purpose of the challenged portion of the
Massachusetts Reproductive Health Care Facilities Act is
to “protect” prospective clients of abortion clinics from
having to hear abortion-opposing speech on public streets
and sidewalks. The provision is thus unconstitutional root
and branch and cannot be saved, as the majority suggests,
by limiting its application to the single facility that has
experienced the safety and access problems to which it is
quite obviously not addressed. I concur only in the judg­
ment that the statute is unconstitutional under the First
Amendment.
Cite as: 573 U. S. ____ (2014) 1
ALITO, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 12–1168
_________________
ELEANOR McCULLEN, ET AL., PETITIONERS v.
MARTHA COAKLEY, ATTORNEY GEN-
ERAL OF MASSACHUSETTS, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIRST CIRCUIT
[June 26, 2014]
JUSTICE ALITO, concurring in the judgment.
I agree that the Massachusetts statute at issue in this
case, Mass. Gen. Laws, ch. 266, §120E½(b) (West 2012),
violates the First Amendment. As the Court recognizes, if
the Massachusetts law discriminates on the basis of view­
point, it is unconstitutional, see ante, at 10, and I believe
the law clearly discriminates on this ground.
The Massachusetts statute generally prohibits any
person from entering a buffer zone around an abortion
clinic during the clinic’s business hours, §120E½(c), but
the law contains an exemption for “employees or agents of
such facility acting within the scope of their employment.”
§120E½(b)(2). Thus, during business hours, individuals
who wish to counsel against abortion or to criticize the
particular clinic may not do so within the buffer zone. If
they engage in such conduct, they commit a crime. See
§120E½(d). By contrast, employees and agents of the
clinic may enter the zone and engage in any conduct that
falls within the scope of their employment. A clinic may
direct or authorize an employee or agent, while within the
zone, to express favorable views about abortion or the
clinic, and if the employee exercises that authority, the
employee’s conduct is perfectly lawful. In short, petition­
ers and other critics of a clinic are silenced, while the
2 McCULLEN v. COAKLEY
ALITO, J., concurring in judgment
clinic may authorize its employees to express speech in
support of the clinic and its work.
Consider this entirely realistic situation. A woman
enters a buffer zone and heads haltingly toward the en­
trance. A sidewalk counselor, such as petitioners, enters
the buffer zone, approaches the woman and says, “If you
have doubts about an abortion, let me try to answer any
questions you may have. The clinic will not give you good
information.” At the same time, a clinic employee, as
instructed by the management, approaches the same
woman and says, “Come inside and we will give you hon­
est answers to all your questions.” The sidewalk counselor
and the clinic employee expressed opposing viewpoints,
but only the first violated the statute.
Or suppose that the issue is not abortion but the safety
of a particular facility. Suppose that there was a recent
report of a botched abortion at the clinic. A nonemployee
may not enter the buffer zone to warn about the clinic’s
health record, but an employee may enter and tell pro­
spective clients that the clinic is safe.
It is clear on the face of the Massachusetts law that it
discriminates based on viewpoint. Speech in favor of the
clinic and its work by employees and agents is permitted;
speech criticizing the clinic and its work is a crime. This
is blatant viewpoint discrimination.
The Court holds not only that the Massachusetts law is
viewpoint neutral but also that it does not discriminate
based on content. See ante, at 11–15. The Court treats
the Massachusetts law like one that bans all speech
within the buffer zone. While such a law would be content
neutral on its face, there are circumstances in which a law
forbidding all speech at a particular location would not be
content neutral in fact. Suppose, for example, that a
facially content-neutral law is enacted for the purpose of
suppressing speech on a particular topic. Such a law
would not be content neutral. See, e.g., Turner Broadcast-
Cite as: 573 U. S. ____ (2014) 3
ALITO, J., concurring in judgment
ing System, Inc. v. FCC, 512 U.S. 622, 645–646 (1994).
In this case, I do not think that it is possible to reach a
judgment about the intent of the Massachusetts Legisla­
ture without taking into account the fact that the law that
the legislature enacted blatantly discriminates based on
viewpoint. In light of this feature, as well as the over­
breadth that the Court identifies, see ante, at 23–27, it
cannot be said, based on the present record, that the law
would be content neutral even if the exemption for clinic
employees and agents were excised. However, if the law
were truly content neutral, I would agree with the Court
that the law would still be unconstitutional on the ground
that it burdens more speech than is necessary to serve the
Commonwealth’s asserted interests.