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On The Front Lines

VICTORY: U.S. Supreme Court Protects Free Speech, Strikes Down Massachusetts Law Creating 35-Foot Abortion “Buffer Zone”

WASHINGTON, D.C.— In a decision strongly protective of First Amendment rights, the U.S. Supreme Court has declared unconstitutional a Massachusetts law which restricts protests on public sidewalks within 35 feet of the entrances, exits, and driveways of abortion clinics in the state. Noting that by its very terms, the law applied to “public ways and sidewalks,” spaces that have traditionally been considered open public forums for free speech activity, the Supreme Court held that the government’s ability to regulate speech in these spaces is “very limited,” and was unconstitutionally exceeded by the Massachusetts law.

In filing an amicus curiae brief in McCullen v. Coakley, attorneys for The Rutherford Institute argued that the restrictions imposed by the Massachusetts law imposed an undue burden on protestors of a certain viewpoint, as the law did not apply to clinic workers within the covered area. Furthermore, Institute attorneys argued that the law did not comport with a reasonable time, place, and manner restrictions on First Amendment activity.

“By this decision, the Supreme Court recognizes that all speech – even speech that many might find disagreeable – must be protected equally,” said John W. Whitehead, president of The Rutherford Institute and author of A Government of Wolves: The Emerging American Police State. “The Court recognizes that the Massachusetts law placing an undue burden on people of a particular viewpoint is repugnant to the principles inherent in the First Amendment, and that speech, however unpopular, must always be protected from undue 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, but created 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 noted 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.

Case History

01-15-2014: Rutherford Institute Asks U.S. Supreme Court to Protect Free Speech, Strike Down Massachusetts Law Restricting Expression Outside Abortion Clinics


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