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On The Front Lines

Rutherford Institute Asks U.S. Supreme Court to Protect Free Speech, Strike Down Massachusetts Law Restricting Expression Outside Abortion Clinics

WASHINGTON, D.C.—Citing the need to protect the First Amendment rights of those who engage in expressive activities involving controversial issues of national importance, The Rutherford Institute has asked the U.S. Supreme Court to declare unconstitutional a Massachusetts law which restricts protests on public sidewalks near the entrances, exits, and driveways of abortion clinics in the state. In filing an amicus curiae brief in McCullen v. Coakley, attorneys for The Rutherford Institute argue that the restrictions imposed by the Massachusetts law impose an undue burden on protestors of a certain viewpoint, as clinic workers are not bound by the restrictions contained in the law. Furthermore, Institute attorneys argue that the law does not comport with a reasonable time, place, and manner restriction, as public thoroughfares such as sidewalks have always been considered public fora, and thus proper spaces for First Amendment activity.

“Robust free speech in the open marketplace of ideas is one of the few hopes we have as citizens to push back against an increasingly overbearing government, and it is something we must protect,” said John W. Whitehead, president of The Rutherford Institute. “Any law which places an undue burden on people of a particular viewpoint, or which prevents people from discussing issues of national significance—no matter how controversial the viewpoint may be, is repugnant to the principles established upon the founding of this country, that speech, however unpopular, must always be protected from government interference.”

In 2007, Massachusetts passed a statute preventing a person from entering or staying on a public way or sidewalk within 35 feet of the entrance or exit of an abortion clinic. The law creates an exception for clinic workers. Prior to the enactment of this law, Eleanor McCullen had spent many years counseling and providing information to women entering clinics, in some cases using her own money to provide for women who she counseled out of obtaining an abortion. McCullen believes that through her actions she has prevented around 100 abortions. Since the enactment of the law, McCullen has not been able to provide information to women entering the clinic, and has not to her knowledge had any impact on a woman’s decision to obtain an abortion. In challenging the Massachusetts law, McCullen contends that the law places an undue burden on those with an anti-abortion viewpoint, in part because the law does not apply to clinic workers who obviously have a different view on the matter.

In filing a brief in support of McCullen’s free speech rights, Institute attorneys note that the law prohibits speech on public sidewalks, an area traditionally preserved for First Amendment activity. As noted in the brief, “Not only is the expression at issue here on a subject of national significance at the heart of the First Amendment’s special protection, Petitioners are prohibited from engaging in this expression on public sidewalks – the quintessential public forum.” Affiliate attorney Christopher F. Moriarty assisted The Rutherford Institute with the amicus curiae brief.

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