By Lisa Soronen

It looks like an abortion case…but it really isn’t. It just happens to have come up in the context of an abortion clinic. It’s actually a speech case; a time, place, and manner case. And state and local governments use speech buffer zones all the time in many contexts. So a lot could be a stake in this case.

In McCullen v. Coakley, the U.S. Supreme Court will decide whether a Massachusetts statute prohibiting speech within 35-feet of a reproductive health care facility violates the First Amendment. The State and Local Legal Center (SLLC) filed an amicus brief in this case.

Massachusetts law initially allowed protesters to come within six feet of those entering a clinic within an 18-foot buffer zone around the clinic. Protesters would crowd six feet from a clinic door making entry into the clinic difficult and intimidating. So in 2007 Massachusetts adopted a 35-foot fixed buffer zone around clinics. The U.S. 1st Circuit Court of Appeals held that this statute is a constitutional time, place, and manner regulation of speech because numerous communication channels remain available to protesters.          

While only two other states regulate speech within a specific distance of reproductive health care facilities (Colorado and Montana), buffer zones are very common. The SLLC’s brief points out that how the court rules in this case could affect state and local government’s ability to regulate speech to protect public safety in many contexts. For example, lower courts have upheld buffer zones to prevent congestion at special events and places that regularly draw crowds and near funerals to protect vulnerable mourners. These buffer zones and many others may be in jeopardy if the court rules against Massachusetts.  

The National League of Cities, National Association of Counties, the United States Conference of Mayors, the International City/County Management Association, and the International Municipal Lawyers Association joined this brief.

Oral argument has been scheduled for Jan. 15. The Supreme Court will issue an opinion in this case by June 30, 2014. 

Lisa Soronen is executive director of the State and Local Legal Center. She writes frequently on Supreme Court cases for the NCSL Blog.

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