McCullen v. Coakley

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In McCullen v. Coakley, the U.S. Supreme Court struck down a law in Massachusetts that imposed a large buffer zone around abortion clinics to prevent pro-life sidewalk counseling there. Three justices—Scalia, Kennedy, and Thomas—would have invalidated the law based on viewpoint discrimination, but the Court, led by Chief Justice John Roberts, rejected that an instead struck down the law as being content neutral with respect to speech, but unjustified under intermediate scrutiny:

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, 109 S. Ct. 2746, 105 L. Ed. 2d 661 (internal quotation marks omitted). The tailoring requirement does not simply 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 demanding 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, 108 S. Ct. 2667, 101 L. Ed. 2d 669 (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, 109 S. Ct. 2746, 105 L. Ed. 2d 661. 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, 109 S. Ct. 2746, 105 L. Ed. 2d 661. 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, 109 S. Ct. 2746, 105 L. Ed. 2d 661.

McCullen v. Coakley, 134 S. Ct. 2518, 2534-35 (2014).

Justice Alito concurred separately to emphasize that the Massachusetts statute "blatantly discriminates based on viewpoint":

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 ___ - ___, 189 L. Ed. 2d, at 516-518. 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 Broadcasting System, Inc. v. FCC, 512 U.S. 622, 645-646, 114 S. Ct. 2445, 129 L. Ed. 2d 497 (1994).

In this case, I do not think that it is possible to reach a judgment about the intent of the Massachusetts Legislature without taking into account the fact that the law that the legislature enacted blatantly discriminates based on viewpoint.

McCullen v. Coakley, 134 S. Ct. 2518, 2549-50 (2014) (Alito, J., concurring)