By Mike Dorf
Yesterday the Supreme Court heard oral argument in McCullen v. Coakley, which presents the question of whether the Massachusetts law requiring a 35-foot buffer zone around the entrance to reproductive health services providers violates the First Amendment rights of anti-abortion activists who seek to approach women seeking abortions to attempt to dissuade them from carrying out their plans.
As one might expect, the Court is ideologically divided roughly along the lines that divide the Court on abortion. Justice Kennedy, who is the swing vote on abortion but the closest Justice on this Court to a free speech absolutist, pretty clearly is going to join Justices Scalia and Thomas to strike down the law. That's hardly news. All three of them dissented in Hill v. Colorado, which sustained "floating" buffer zones. And all three (essentially) dissented in Madsen v. Women's Health Center, which sustained a 36-foot buffer zone as part of an injunction.
Meanwhile, Justice Kagan may vote to invalidate this particular law as establishing too large a buffer zone but it's pretty clear that the liberals will by and large vote to sustain at least some buffer zones. The Justice whose views seem most susceptible to criticism as result-oriented here is Justice Alito--the lone dissenter in Snyder v. Phelps. There, Justice Alito thought that the interest of funeral-goers in avoiding unwanted speech sufficed to limit speech in a public forum but here, judging by the oral argument, Justice Alito is likely to swing to protect anti-abortion protesters. Lyle Denniston, writing on SCOTUSblog, thinks that CJ Roberts is the likely swing vote on the sutainability of any buffer zones around abortion providers, but it's hard to know what he thinks, as he didn't ask any questions. If I were betting, I'd bet that the Court rules against Massachusetts. As for the broader question, I think buffer zones won't survive for much longer. That is, even if the Court officially distinguishes Hill rather than overrules it, the writing will be on the . . . sidewalk.
And that brings me to my chosen topic for today. A crucial element of the challengers' case here is the fact that the Massachusetts law restricts speech on public sidewalks, because public sidewalks are, in the Court's doctrine, a traditional "public forum" for speech, in which the government may only enact narrowly-tailored, content-neutral time, place and manner regulations that leave open ample means of alternative communication. That all sounds fine, until one thinks about how weakly the competing interests (speech on the one hand; security on the other) are linked to the exact character of the physical space.
To enter Planned Parenthood's Greater Boston Health Center, patients must first walk along the public sidewalk--and that fact appears to be crucial to the plaintiffs' case. As the lawyer for the government argued, in Worcester and Springfield, where most patients arrive by car, there is a small area of public sidewalk connecting the parking lot to the building, and the buffer zone operates there. But suppose instead that patrons entered the health center along a privately owned sidewalk that connected to the center's parking lot. Then, following the holding of United States v. Kokinda, the private sidewalk would not be a public forum, and so the plaintiffs would have a substantially weaker case. Indeed, in Kokinda, the relevant patch of sidewalk was owned by the government (the Post Office to be precise) but was not deemed a traditional sidewalk, so for that reason it wasn't a public forum. Likewise, the plaintiffs would have a substantially weaker case if the health center were located in a privately owned shopping mall or in a tower office building--for then too the area immediately outside of the health center would not be a public forum.
Clear thinking about a case like McCullen and about public forum doctrine more generally requires that we ask why it is that sidewalks are considered traditional public fora. The Court's cases do not exactly say, lumping them in with streets and parks, but to my mind, streets and parks are different: Those are public fora because they provide the sort of space needed as a staging ground for large demonstrations and protests. But the speech interest in sidewalks is different. You can't really have a parade or a march on a sidewalk. What you get on a sidewalk--as the Court recognized in Hill--is the right to approach people, including people who presumably disagree with you, in order to try to persuade them to your viewpoint (absent a sufficiently strong state interest in overriding that right).
To what extent should the right to approach people on sidewalks encompass a right to take advantage of where those people happen to be? A person campaigning for a boycott of products from Norway and Japan on the ground that those countries support whaling will meet with more success if she targets people leaving a showing of the movie Blackfish than if she is relegated to approaching random passersby on a random patch of sidewalk. So the anti-whaling activist effectively has a First Amendment right to approach a likely sympathetic audience in front of an urban movie theater but not at a suburban multiplex, where the cinema empties into the private mall or the private parking lot.
I want to be clear that I'm not (now) taking a position on which way the tension should be resolved. Perhaps the protections that people enjoy--including the ability to take advantage of who tends to visit what sort of establishment--ought to be extended to apply to places that are not currently considered public fora. But to make the right turn on whether the particular space abuts a public sidewalk or a private parking lot does seem quite arbitrary.
Finally, I'll add a small dose of realism. In Doe v. Bolton, the companion case to Roe v. Wade, the Supreme Court invalidated a state law requirement that abortions be performed in hospitals. The result saved money for abortion providers but it also meant that freestanding abortion clinics became better targets for anti-abortion protesters. If you're trying to dissuade women from having abortions, you'll reach more women seeking abortions if you stand outside a Planned Parenthood clinic than if you stand outside a hospital (although even in front of the Planned Parenthood clinic you'll reach a lot of women who are going in for non-abortion-related medical services). Even if Doe was responsible for the initial turn to freestanding abortion clinics, their persistence--and their combination with ideologically sympathetic providers like Planned Parenthood--is now more like a necessity. You don't see many abortion clinics in shopping malls because the mall owners don't want the headache of dealing with protests. So it seems a bit like double-counting for the very anti-abortion protesters whose tactics play a role in effectively requiring Planned Parenthood to rent space that simply fronts on a public sidewalk, to then invoke that fact as a basis for a right to protest (or leaflet or engage in "sidewalk counseling") right in front of that space.