In the Supreme Court of the United States

Transcription

1 NO In the Supreme Court of the United States ELEANOR MCCULLEN, JEAN ZARRELLA, GREGORY A. SMITH, ERIC CADIN, CYRIL SHEA, MARK BASHOUR, AND NANCY CLARK, Petitioners, v. MARTHA COAKLEY, ATTORNEY GENERAL FOR THE COMMONWEALTH OF MASSACHUSETTS, et al., Respondents. On Writ of Certiorari to the United States Court of Appeals for the First Circuit BRIEF OF JUSTICE AND FREEDOM FUND AS AMICUS CURIAE IN SUPPORT OF PETITIONERS Deborah J. Dewart 620 E. Sabiston Drive Swansboro, NC (910) James L. Hirsen Counsel of Record 505 S. Villa Real Drive Suite 208 Anaheim Hills, CA (714) Counsel for Amicus Curiae Becker Gallagher Cincinnati, OH Washington, D.C

2 i TABLE OF CONTENTS TABLE OF CONTENTS... TABLE OF AUTHORITIES... i iii INTEREST OF AMICUS CURIAE... 1 INTRODUCTION AND SUMMARY OF THE ARGUMENT... 1 ARGUMENT... 2 I. THE STATUTE IS A QUINTESSENTIAL CONTENT-BASED REGULATION THAT SHOULD NOT BE FRAMED AS A TIME-PLACE-MANNER RESTRICTION A. The Statute Restricts Content At The Core Of The First Amendment Speech About A Matter Of Public Concern B. The Statute Shuts Down Consensual Communication On One Side Of A Heated Public Debate Serving An Improper Government Purpose C. The Statute Is Narrowly Tailored To Eliminate The Content On One Side Of A Hotly Contested Public Matter

3 ii D. The Statute Cuts Off Access To The Speakers Intended Audience Leaving Only Inadequate, Ineffective Alternatives II. THE STATUTE IS AN UNREASONABLE TIME-PLACE- MANNER RESTRICTION THAT CUTS OFF ACCESS TO THE SPEAKERS INTENDED AUDIENCE A. The Statute Is An Unreasonable Time Restriction Silencing Speakers At The Only Time They Can Reach Their Intended Audience B. The Statute Is An Unreasonable Place Restriction Silencing Speakers At The Only Place They Can Reach Their Intended Audience C. The Statute Is An Unreasonable Manner Restriction Rendering It Impossible For The Speakers To Reach Their Intended Audience In An Effective Manner III. THE FIRST CIRCUIT S STATE ACTION ARGUMENT IS A RED HERRING THAT MASKS THE STATUTE S CONSTITUTIONAL FLAWS CONCLUSION... 29

4 iii TABLE OF AUTHORITIES Ashcroft v. American Civil Liberties Union, 535 U.S. 564 (2002)... 2 Board of Airport Comm rs v. Jews for Jesus, Inc., 482 U.S. 569 (1987) Boos v. Barry, 485 U.S. 312 (1988)... 3 Brown v. Louisiana, 383 U.S. 131 (1966) Carlson v. California, 310 U.S. 106 (1940)... 3, 11 City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984) City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410 (1993)... 4, 10 City of Ladue v. Gilleo, 512 U.S. 43 (1994)... 6, 11 Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288 (1984)... 4, 8, 9, 10, 26 Cohen v. California, 403 U.S. 15 (1971)... 12, 24, 26 Connick v. Myers, 461 U.S. 138 (1983)... 5

5 iv Cons. Edison Co. v. Public Serv. Comm n, 447 U.S. 530 (1980)... 2, 5, 6, 17, 26 Cox v. Louisiana, 379 U.S. 559 (1965) Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985)... 5 Edenfield v. Fane, 507 U.S. 761 (1993) Edwards v. South Carolina, 372 U.S. 229 (1963) Erznoznik v. Jacksonville, 422 U.S. 205 (1975) First Nat l Bank of Boston v. Bellotti, 435 U.S. 765 (1978)... 5, 11 Foti v. City of Menlo Park, 146 F.3d 629 (9th Cir. 1998) Frisby v. Schultz, 487 U.S. 474 (1988)... 13, 14, 24 Galvin v. Hay, 374 F.3d 739 (9th Cir. 2004)... 22, 23, 24 Garrison v. Louisiana, 379 U.S. 64 (1964)... 4 Glendale Assocs., Ltd. v. NLRB, 347 F.3d 1145 (9th Cir. 2003)... 23

6 v Heffron v. International Soc. for Krishna Consciousness, Inc., 452 U.S. 640 (1981) Hill v. Colorado, 530 U.S. 703 (2000)... passim Hoye v. City of Oakland, 653 F.3d 835 (9th Cir. 2011)... 11, 18, 19, 28 Hurley v. Irish-Am. Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995) Knowles v. City of Waco, 462 F.3d 430 (5th Cir. 2006) Kovacs v. Cooper, 336 U.S. 77 (1949)... 13, 14 Linmark Associates, Inc. v. Willingboro, 431 U.S. 85 (1977) Loper v. New York City Police Dep t, 999 F.2d 699 (2d Cir. 1993) Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982) Madsen v. Women s Health Center, Inc., 512 U.S. 753 (1994)... passim McCullen v. Coakley, 708 F.3d 1 (1st Cir. 2013)... passim

7 vi McGuire v. Reilly, 386 F.3d 45 (1st Cir. 2007) ( McGuire II ).. 8, 29 McGuire v. Reilly, 260 F.3d 36 (1st Cir. 2001) ( McGuire I )... 6 Members of City Council v. Taxpayers for Vincent, 466 U.S. 789 (1984) Meyer v. Grant, 486 U.S. 414 (1988) Minneapolis Star & Tribune Co. v. Minnesota Comm r of Revenue, 460 U.S. 575 (1983)... 9 NAACP v. Button, 371 U.S. 415 (1963) New Alliance Party v. Dinkins, 743 F. Supp (S.D.N.Y. 1990) New York Times Co. v. Sullivan, 376 U.S. 254 (1964)... 4, 9 NLRB v. Baptist Hospital, Inc., 442 U.S. 773 (1979)... 7 Police Department of Chicago v. Mosley, 408 U.S. 92 (1972)... 2 R. A. V. v. St. Paul, 505 U.S. 377 (1992)... 8

8 vii Rankin v. McPherson, 483 U.S. 378 (1987)... 5 Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986)... 8 Riley v. National Federation of Blind of N. C., Inc., 487 U.S. 781 (1988) Rowan v. Post Office Dept., 397 U.S. 728 (1970) Schenck v. Pro-Choice Network, 519 U.S. 357 (1997)... 5, 12, 13, 15, 22 Schneider v. State, 308 U.S. 147 (1939) Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U.S. 105 (1991)... 8, 9, 10 Snyder v. Phelps, 131 S.Ct (2011)... 4, 5, 20, 24 Solantic, LLC v. City of Neptune Beach, 410 F.3d 1250 (11th Cir. 2005) Thornhill v. Alabama, 310 U.S. 88 (1940)... 5 Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994)... 2

9 viii United States v. Albertini, 472 U.S. 675 (1985) United States v. Grace, 461 U.S. 171 (1983)... 15, 20, 21 United States v. Playboy Entm t Group, Inc., 529 U.S. 803 (2000)... passim United States v. Stevens, 130 S. Ct (2010)... 2, 4 Ward v. Rock Against Racism, 491 U.S. 781 (1989)... 8, 14, 15, 18 Watseka v. Ill. Public Action Council, 796 F.2d 1547 (7th Cir. 1986) Wisconsin Action Coalition v. Kenosha, 767 F.2d 1248 (7th Cir. 1985) Wolin v. Port of New York Authority, 392 F.2d 83 (2d Cir. 1968) STATUTES Mass. Gen. Laws ch. 266, 120E 1/ , 21

10 1 INTEREST OF AMICUS CURIAE 1 Justice and Freedom Fund, as amicus curiae, respectfully submits that the decision of the First Circuit Court of Appeals should be reversed. Justice and Freedom Fund is a California nonprofit, tax-exempt corporation formed on September 24, 1998 to preserve and defend the constitutional liberties guaranteed to American citizens, through education, legal advocacy, and other means. JFF s founder is James L. Hirsen, professor of law at Trinity Law School and Biola University in Southern California and author of New York Times bestseller, Tales from the Left Coast, and Hollywood Nation. Mr. Hirsen is a frequent media commentator who has taught law school courses on constitutional law. Co-counsel Deborah J. Dewart is the author of Death of a Christian Nation (2010) and holds a degree in theology (M.A.R., Westminster Seminary, Escondido, CA). JFF has made numerous appearances in this Court as amicus curiae. INTRODUCTION AND SUMMARY OF THE ARGUMENT The Massachusetts statute at issue in this case is a constitutional catastrophe. Far from being a reasonable time-place-manner restriction, it is an 1 The parties have consented to the filing of this brief. Amicus curiae certifies that no counsel for a party authored this brief in whole or in part and no person or entity, other than amicus, its members, or its counsel, has made a monetary contribution to its preparation or submission.

11 2 unreasonable content-based regulation that fails at every critical legal juncture. ARGUMENT I. THE STATUTE IS A QUINTESSENTIAL CONTENT-BASED REGULATION THAT SHOULD NOT BE FRAMED AS A TIME- PLACE-MANNER RESTRICTION. Massachusetts has no power to shut down speech opposing abortion because of its message, its ideas, its subject matter, or its content. Cons. Edison Co. v. Public Serv. Comm n, 447 U.S. 530, 537 (1980), quoting Police Department of Chicago v. Mosley, 408 U.S. 92, 95 (1972); see also United States v. Stevens, 130 S. Ct. 1577, 1584 (2010); Ashcroft v. American Civil Liberties Union, 535 U.S. 564, 573 (2002). The statute by [its] terms distinguish[es] favored speech from disfavored speech on the basis of the ideas or views expressed. Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 643 (1994). In some legal contexts, examination of content is appropriate in order to apply a rule of law for example, to determine whether a particular statement constitutes a threat, blackmail, an agreement to fix prices, [or] a copyright violation. Hill v. Colorado, 530 U.S. 703, 721 (2000). But the statute at issue here is a textbook example of a law which is content based. Id. at 766 (Kennedy, J., dissenting). This Court has declined to carve out from the First Amendment any novel exception for expression many would find distasteful: United States v. Stevens, 130 S. Ct. at 1586 (depictions of animal cruelty); United States v. Playboy

12 3 Entm t Group, Inc., 529 U.S. 803, 826 (2000) (sexually oriented programming). In the same way, there should be no novel exception for peaceful, consensual conversations near an abortion clinic on a public street a quintessential traditional public forum. On the surface, the statute may appear to regulate action standing within 36 feet of an abortion clinic during business hours rather than speech. But [t]here comes a point...at which the regulation of action intimately and unavoidably connected with traditional speech is a regulation of speech itself. Hill v. Colorado, 530 U.S. at 745 (Scalia, J., dissenting). This statute passes that point. Its framing as a timeplace-manner restriction deceptively conceals its inherent bias. [T]he fact that a restriction is framed as a regulation of the places where some speech may occur has nothing whatever to do with whether the restriction is content-neutral which is why Boos held to be content-based the ban on displaying, within 500 feet of foreign embassies, banners designed to bring into public odium any foreign government. Id. at 748 n.2 (Scalia, J., dissenting), citing Boos v. Barry, 485 U.S. 312, 316 (1988). There is an ominous similarity between Boos and the ban Massachusetts has enacted. Even more than in Hill where the statute applied to all medical facilities this statute s place restriction is a convenient yet obvious mask for the legislature s true purpose and for the prohibition s true effect. Hill v. Colorado, 530 U.S. at 767 (Kennedy, J., dissenting). In effect, the statute proscribes speech only if by persons directly interested who approach the vicinity of [an abortion clinic] to convey information about [abortion]. Carlson v. California, 310 U.S. 106, 112 (1940). It does not deal with secondary effects or

13 4 conduct that might be right proscribed, such as actual harassment or obstruction of traffic, but speech itself. A. The Statute Restricts Content At The Core Of The First Amendment Speech About A Matter Of Public Concern. Invalid content restrictions include even the seemingly innocuous distinction between commercial handbills and conventional newspapers. City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 429 (1993). This Court has struck down content-based regulations on depictions of animal cruelty (United States v. Stevens, 130 S. Ct. at 1586) and even sexuallyoriented entertainment that many find shabby, offensive, or even ugly (United States v. Playboy Entm t Group, Inc., 529 U.S. at 826). But where speech involves a matter of public concern, this Court has an even greater duty in light of our profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open. New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). [S]peech concerning public affairs is more than self-expression; it is the essence of selfgovernment. Snyder v. Phelps, 131 S.Ct. 1207, 1215 (2011), quoting Garrison v. Louisiana, 379 U.S. 64, (1964). Time-place-manner restrictions are subject to a more relaxed level of scrutiny and are generally valid as long as they are justified without reference to the content of the regulated speech,... are narrowly tailored to serve a significant governmental interest, and... leave open ample alternative channels for communication of the information. Clark v. Cmty. for

14 5 Creative Non-Violence, 468 U.S. 288, 293 (1984). But this case warrants much more exacting scrutiny because it features content at the core of the First Amendment speech about a matter of public concern. Abortion has generated a heated public debate that has raged over four decades. As the First Circuit admits, [f]ew subjects have proven more controversial in modern times than the issue of abortion. McCullen v. Coakley, 708 F.3d 1, 3 (1st Cir. 2013). By restricting speech on this topic, the statute strikes the heart of the First Amendment. Schenck v. Pro-Choice Network, 519 U.S. 357, 377 (1997); Snyder v. Phelps, 131 S.Ct. at 1215, citing Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, (1985) (opinion of Powell, J.) (quoting First Nat l Bank of Boston v. Bellotti, 435 U.S. 765, 776 (1978)). A myriad of legal precedent confirms the nation s commitment to protecting this highest rung of the hierarchy of First Amendment values. Connick v. Myers, 461 U.S. 138, 145 (1983). The First Amendment embraces at the least the liberty to discuss publicly and truthfully all matters of public concern. Thornhill v. Alabama, 310 U.S. 88, (1940). Cons. Edison Co. v. Public Serv. Comm n, 447 U.S. at And as a nation, we protect even hurtful speech on public issues to ensure that we do not stifle public debate. Snyder v. Phelps, 131 S.Ct. at The inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern. Id. at 1216, quoting Rankin v. McPherson, 483 U.S. 378, 387 (1987). The speech-chilling restrictions of the statute are not among the reasonable steps a state may lawfully take to ensure the safe passage of persons wishing to

15 6 enter healthcare facilities. McCullen v. Coakley, 708 F.3d at 3. Petitioners seek to engage in peaceful, consensual conversations on public streets not obstruction, harassment, or raucous protest. The statute is a thinly veiled effort to silence one side of the abortion debate to suppress Petitioners speech precisely because they address a particular matter of public concern. Cons. Edison Co. v. Public Serv. Comm n, 447 U.S. at 536. In spite of Massachusetts attempt to camouflage its law as a content-neutral time-place-manner restriction, Petitioners are silenced because of the content of their speech content entitled to the very highest level of First Amendment protection because it touches a matter of public concern. B. The Statute Shuts Down Consensual Communication On One Side Of A Heated Public Debate Serving An Improper Government Purpose. Government purpose is a threshold consideration in evaluating content neutrality and its impact on the constitutionality of a statute. The First Circuit cites public safety as the rationale for the Massachusetts statute concluding that the regulation is therefore both speaker-neutral and content-neutral. McCullen v. Coakley, 708 F.3d at 8. The same motive was cited for the predecessor statute, along with concerns about traffic flow and congestion. McGuire v. Reilly, 260 F.3d 36, 39 (1st Cir. 2001) ( McGuire I ). But the Court hints that the First Amendment may operate differently in the context of abortion: It would make no sense to wrest Gilleo from its contextual moorings and use it as a wedge to

16 7 subvert the Court s later decisions addressed to the much different problem of how the First Amendment operates when the special concerns of public-sidewalk protests around abortion clinics are at stake. McCullen v. Coakley, 708 F.3d at 14 (emphasis added). This comment is deeply disturbing. Cases are often distinguished on their particular facts, but the First Circuit suggests that abortion-related speech is subject to a different standard under the First Amendment. Content neutrality or rather the lack thereof demands closer examination to determine whether the public safety rationale squares with the actual operation of the statute. Legitimate Purposes. Some purposes would ordinarily not reveal an illicit government intent to suppress speech. The government may take reasonable steps to ensure public safety and facilitate the free flow of traffic on public streets and sidewalks. Madsen v. Women s Health Center, Inc., 512 U.S. 753, 768 (1994). The state has a valid interest in not disrupting patient care inside a medical facility. NLRB v. Baptist Hospital, Inc., 442 U.S. 773 (1979). Secondary effects of speech may be proscribed including physical threats or physically threatening approaches (Hill v. Colorado, 530 U.S. at 747 (Scalia, J., dissenting)) and actual crime. United States v. Playboy Entm t Group, Inc., 529 U.S. at 815. But [l]aws designed or intended to suppress or restrict the expression of specific speakers contradict basic U.S. Const. amend. I principles. Id. at 812. Courts view a content-based

17 8 regulation with suspicion even where it can somehow be described as a burden rather than outright suppression. Id. at 826. Core Inquiry? According to Ward, [t]he government s purpose is the controlling consideration...[t]he principal inquiry in determining content neutrality. Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). If government regulation is justified without reference to the content of the regulated speech, it is presumably content neutral. Clark v. Cmty. for Creative Non-Violence, 468 U.S. at 293. See also Madsen v. Women s Health Center, Inc., 512 U.S. at 763 (government motive is the principal inquiry ); R. A. V. v. St. Paul, 505 U.S. 377, 386 (1992) ( The government may not regulate [speech] based on hostility or favoritism towards the underlying message expressed. ); McGuire v. Reilly, 386 F.3d 45, 57 (1st Cir. 2007) ( McGuire II ) ( the core inquiry is whether the legislative reason for the law is content neutral ). This principle holds even if a regulation has an incidental effect on some speakers or messages but not others. Ward, 491 U.S. at 791; see Renton v. Playtime Theatres, Inc., 475 U.S. 41, (1986). In Hill, the legislature heard testimony about various types of protests that created difficulties for persons entering medical facilities not only about abortion, but animal rights and other matters. Hill v. Colorado, 530 U.S. at 710 n. 6. But the focus on legislative motive merits this Court s reconsideration. Our cases have consistently held that illicit legislative intent is not the sine qua non of a violation of the First Amendment. Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims

18 9 Bd., 502 U.S. 105, 117 (1991) (quoting Minneapolis Star & Tribune Co. v. Minnesota Comm r of Revenue, 460 U.S. 575, 592 (1983)). Justice Marshall s dissenting opinion in Cmty. for Creative Non-Violence raised some important concerns about the potential for latent inequality, observing that content-neutral restrictions are also capable of unnecessarily restricting protected expressive activity...a contentneutral regulation does not necessarily fall with random or equal force upon different groups or different points of view. Clark v. Cmty. for Creative Non-Violence, 468 U.S. at 313 (Marshall, J., dissenting). A two-tiered approach has been created that erodes First Amendment protection for expression so long as the government s motive appears to be content-neutral: The Court...has transformed the ban against content distinctions from a floor that offers all persons at least equal liberty under the First Amendment into a ceiling that restricts persons to the protection of First Amendment equality but nothing more. The consistent imposition of silence upon all may fulfill the dictates of an evenhanded content-neutrality. But it offends our profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open. New York Times Co. v. Sullivan, 376 U.S. 254, 266, 270 (1964). Clark v. Cmty. for Creative Non-Violence, 468 U.S. at (Marshall, J., dissenting). The Court s salutary skepticism of governmental decision making in First Amendment matters suddenly dissipates once

19 10 it determines that a restriction is not content-based. Id. at This Court may have recaptured some of that salutary skepticism. In Discovery Network, this Court appears to qualify the content-based test for time-place-manner restrictions by considering the actual operation of the law, rather than a tunnel vision approach that short-circuits the analysis if the government can recite some outwardly neutral rationale. As the Eleventh Circuit observed, the Court has receded from this formulation [ [t]he government s purpose is the controlling consideration, citing Ward, 491 U.S. at 791], returning to its focus on the law s own terms, rather than its justification, in City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410 (1993). Solantic, LLC v. City of Neptune Beach, 410 F.3d 1250, 1259 n. 8 (11th Cir. 2005). In Discovery Network, a city s regulation of newsracks appeared on the surface to be justified by a content-neutral interest in safety and aesthetics, yet the very basis for the regulation [was] the difference in content between ordinary newspapers and commercial speech. Discovery Network, Inc., 507 U.S. at 429. Citing its own recent precedent, this Court observed that just last Term we expressly rejected the argument that discriminatory...treatment is suspect under the First Amendment only when the legislature intends to suppress certain ideas. Id., citing Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U.S. at 117. In Discovery Network, the city had limited (to zero) the number of newsracks distributing commercial publications. Discovery Network, Inc., 507 U.S. at 429 (emphasis in original). In this case, Massachusetts has limited (to zero) the number of

20 11 speakers who are able to advocate against abortion on public streets within the buffer zones. It is insufficient for the state to recite a seemingly content-neutral motive that masks an inherent discrimination. Even if Massachusetts did not act with animus or discriminatory intent, the statute absolutely does suppress certain ideas. Exemptions. In Hoye, the Ninth Circuit found that Oakland appears to have read into its Ordinance an exception for speech that facilitates access to reproductive health services, thus suppressing speech on the basis of content. Hoye v. City of Oakland, 653 F.3d 835, 843 (9th Cir. 2011). Massachusetts has codified what Oakland merely read into its law, carving content discrimination in statutory stone. As Petitioners have noted, the exemption for clinic workers who by definition are virtually certain not to advocate against abortion in the scope of their employment and their exclusion from the regulation may represent a governmental attempt to give one side of a debatable public question an advantage in expressing its views to the people. First Nat l Bank of Boston v. Bellotti, 435 U.S. 765, (1978). City of Ladue v. Gilleo, 512 U.S. 43, 51 (1994). Exemptions may also diminish the credibility of the government s rationale for restricting speech in the first place. Id. at 52. Here, it is not clear why peaceful, consensual conversations on a public sidewalk would endanger public safety or impede traffic. [T]he [statute] in question here abridges liberty of discussion under circumstances presenting no clear and present danger of substantive evils within the allowable area of state control. Carlson v. California, 310 U.S. at 113.

21 12 Protection for Unwilling Listeners. The First Circuit discloses a patently improper purpose for the statute far removed from the alleged interest in public safety: In the context of abortion-related demonstrations, the Supreme Court has specifically recognized the interest of clinic patients both in avoiding unwanted communication and pass[ing] without obstruction. See Hill, 530 U.S. at (internal quotation marks omitted). McCullen v. Coakley, 708 F.3d at 14. The Colorado statute in Hill applied solely to unwilling listeners as this Court repeatedly emphasized. Hill v. Colorado, 530 U.S. at , 727. Even that purpose grates against decades of First Amendment precedent. [I]f protecting people from unwelcome communications (the governmental interest the Court posits) is a compelling state interest, the First Amendment is a dead letter. Id. at (Scalia, J., dissenting). Listeners are generally responsible to shield themselves from speech they do not want to hear. United States v. Playboy Entm t Group, Inc., 529 U.S. at 813 ( [w]here the designed benefit of a content-based speech restriction is to shield the sensibilities of listeners, the general rule is that the right of expression prevails ); Cohen v. California, 403 U.S. 15, 21 (1971); Erznoznik v. Jacksonville, 422 U.S. 205, (1975). Even this Court s abortion jurisprudence confirms this basic principle. Schenck v. Pro-Choice

22 13 Network, 519 U.S. at 383 ( in public debate our own citizens must tolerate insulting, and even outrageous, speech ); Madsen v. Women s Health Center, Inc., 512 U.S. at 773 (clinic can pull its curtains to avoid seeing disagreeable images). Only in rare circumstances has this Court applied a captive audience doctrine to speech so intrusive that the unwilling audience cannot avoid it. Frisby v. Schultz, 487 U.S. 474, 487 (1988) (protecting the privacy and tranquility of a private residence); Kovacs v. Cooper, 336 U.S. 77 (1949) (neighborhood residents disturbed by the raucous broadcasts from a passing sound truck); Rowan v. Post Office Dept., 397 U.S. 728, (1970) (upholding statute allowing homeowners to restrict delivery of offensive mail). But contrary to fundamental First Amendment principles, there is a downward jurisprudential slide. Prior to Hill, this Court invalidated a no approach zone, affirming the rights of speakers whose words could not be independently proscribed as fighting words or threats: [I]t is difficult, indeed, to justify a prohibition on all uninvited approaches of persons seeking the services of the clinic, regardless of how peaceful the contact may be, without burdening more speech than necessary to prevent intimidation and to ensure access to the clinic. Madsen v. Women s Health Center, Inc., 512 U.S. at 774. Hill took a step further down the slope than Madsen, upholding a consent requirement and thereby plac[ing] our free speech traditions in grave jeopardy by licensing legislatures to adopt bright-line

23 14 prophylactic rules...to provide protection to unwilling listeners in a quintessential public forum. Hill v. Colorado, 530 U.S. at 778 (Kennedy, J., dissenting). But even Hill did not disturb the time-honored right to communicate peacefully with willing listeners: [T]he First Amendment protects the right of every citizen to reach the minds of willing listeners and to do so there must be opportunity to win their attention. Kovacs v. Cooper, 336 U.S. 77, 87 (1949). Heffron v. International Soc. for Krishna Consciousness, Inc., 452 U.S. 640, 655 (1981). The Colorado statute adequately protects those rights. Hill v. Colorado, 530 U.S. at 728. The Massachusetts statute breaks all ties with the First Amendment. It prohibits even peaceful, consensual communication and actually compels Petitioners to adopt louder, far more intrusive means in order to reach their intended audience. C. The Statute Is Narrowly Tailored To Eliminate The Content On One Side Of A Hotly Contested Public Matter. A statute is narrowly tailored if it targets and eliminates no more than the exact source of the evil it seeks to remedy. City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, (1984). Frisby v. Schultz, 487 U.S. at 485. Precision of regulation must be the touchstone in an area so closely touching our most precious freedoms. NAACP v. Button, 371 U.S. 415, 438 (1963). In Ward, this Court upheld guidelines that did not ban all concerts, or even

24 15 all rock concerts, but rather focuse[d] on the source of the evils the city [sought] to eliminate excessive and inadequate sound amplification. Ward v. Rock Against Racism, 491 U.S. at 800 n. 7. See also Madsen v. Women s Health Center, Inc., 512 U.S. at (upholding limited noise restrictions to ensure safety of patients in the clinic). In Schenck, this Court struck down floating buffer zones that prevented communicating a message from a normal conversational distance an extraordinarily broad prohibition of protected speech in a traditional public forum. Schenck v. Pro-Choice Network, 519 U.S. at 377. The same is true here. The Massachusetts statute is misdirected. The state has brazenly assume[d] that all those who wish to speak outside health care facilities across the State will...abuse their rights if permitted to exercise them. Hill v. Colorado, 530 U.S. at 761 (Scalia, J., dissenting). The restriction precisely targets and eliminates the evil of consensual pro-life communication in the vicinity of abortion clinics shutting off speech on only one side of a heated public debate. Even the statute in Hill applied at all medical clinics. Moreover, it is difficult to see how the government s stated interest in public safety is furthered at all by the broad ban on peaceful conversations let alone achieved less effectively absent the regulation. Ward v. Rock Against Racism, 491 U.S. at 799, quoting United States v. Albertini, 472 U.S. 675, 689 (1985). See United States v. Grace, 461 U.S. 171, 182 (1983) ( There is no suggestion...that appellees activities in any way obstructed the sidewalks or access to the

25 16 building, threatened injury to any person or property, or in any way interfered with the orderly administration of the building or other parts of the grounds. ) Available alternatives sound amplification, shouting from a distance, dressing at the Grim Reaper are more intrusive and more likely to create a public disturbance than private peaceful conversation. Actual threats to public safety can be adequately addressed through application of criminal and tort law. It is beyond dispute that pinching or shoving or hitting is a battery actionable under the criminal law...[and] [s]tate courts have also found an actionable tort when there is a touching, done in an offensive manner. Hill v. Colorado, 530 U.S. at 777 (Kennedy, J., dissenting). D. The Statute Cuts Off Access To The Speakers Intended Audience Leaving Only Inadequate, Ineffective Alternatives. The statute renders it virtually impossible for Petitioners to reach their intended audience in any effective manner. The alternatives are patently ineffective and inadequate contrary to constitutional requirements: While the First Amendment does not guarantee the right to employ every conceivable method of communication at all times and in all places, a restriction on expressive activity may be invalid if the remaining modes of communication are inadequate.

26 17 Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 812 (1984) (emphasis added). The means of expression at stake here are of controlling importance. Hill v. Colorado, 530 U.S. at 899 (Kennedy, J., dissenting). Although Petitioners may shout from a distance, hold signs, and wear costumes, such insensitive tactics are futile in sharp contrast to the quiet, private conversations that may effectively reach women at this critical point. Petitioners have alternatives in theory, but not in practice women seeking abortions are not effectively persuaded by shouting, demonstrations, and signs. Linmark Associates, Inc. v. Willingboro, 431 U.S. 85, 93 (1977) (striking down prohibition on signs advertising homes for sale, because [a]lthough in theory sellers remain free to employ a number of different alternatives, in practice realty is not marketed through leaflets, sound trucks, demonstrations, or the like ). The alternatives available to Petitioners are inadequate at best and counter-productive at worst. But even if there were viable alternatives, this Court [has] consistently rejected the suggestion that a government may justify a content-based prohibition by showing that speakers have alternative means of expression. Cons. Edison Co. v. Public Serv. Comm n, 447 U.S. at 541 n.10 (collecting cases). The Massachusetts statute is transparently content-based. It targets speakers who hold a particular viewpoint about abortion and shuts down peaceful, consensual conversations on a public street about a matter of urgent public concern. This law is fatally flawed and cannot withstand constitutional scrutiny.

27 18 II. THE STATUTE IS AN UNREASONABLE TIME-PLACE-MANNER RESTRICTION THAT CUTS OFF ACCESS TO THE SPEAKERS INTENDED AUDIENCE. Even if this Court indulges the state s characterization of its law as a time-place-manner restriction, the statute cannot stand. Just as in Hill: [Petitioners] want to engage in peaceful face-toface communication with individuals the petitioners believe are about to commit a profound moral wrong. Without the ability to interact in person, however momentarily, with a clinic patron near the very place where a woman might elect to receive an abortion, the statute strips petitioners of using speech in the time, place, and manner most vital to the protected expression. Hill v. Colorado, 530 U.S. at 780 (Kennedy, J., dissenting). The facts in McCullen are even more compelling than in Hill. There is even greater reason to conclude that [t]he Ward time, place, and manner analysis is simply inapplicable to this law. Id. at 770 (Kennedy, J., dissenting). Even if it did apply the statute imposes patently unreasonable conditions on the time and the place and the manner in which Petitioners may attempt to reach their audience, virtually foreclosing the possibility of effective communication. As the Ninth Circuit recently observed, government may not favor speakers on one side of a public debate, and...government must not substantially foreclose, as a practical matter, speakers ability to communicate their message. Hoye v. City of

28 19 Oakland, 653 F.3d at 849. Massachusetts has violated both of these basic principles. A. The Statute Is An Unreasonable Time Restriction Silencing Speakers At The Only Time They Can Reach Their Intended Audience. The operation of the statute at the prescribed time will effectively foreclose [Petitioners ] ability to communicate their message. Hoye v. City of Oakland, 653 F.3d at 843. The statute provides in relevant part that: The provisions of subsection (b) shall only take effect during a facility s business hours and if the area contained within the radius and rectangle described in said subsection (b) is clearly marked and posted. Mass. Gen. Laws ch. 266, 120E 1/2(c) (emphasis added). These are exactly the hours the only hours when Petitioners intended audience can be identified and reached. Courts have considered and rejected other similarly targeted time constraints: Knowles v. City of Waco, 462 F.3d 430, 433 (5th Cir. 2006) (hours for effective protest around abortion clinic near a school coincided with school hours, precisely when the School Zone ordinance s potential ban is in effect ); Watseka v. Illinois Public Action Council, 796 F.2d 1547, (7th Cir. 1986) (striking down ordinance that limited door-to-door

29 20 solicitations to hours between 9 a.m. and 5 p.m., Monday through Saturday mail and telephone were more expensive and less effective); Wisconsin Action Coalition v. Kenosha, 767 F.2d 1248, (7th Cir. 1985) (ordinance that prohibited residential solicitations between 8:00 p.m. and 8:00 a.m. was struck down, as applied, between 8:00 p.m. and 9 p.m. the time frame when the Coalition received about one-quarter of its donations). B. The Statute Is An Unreasonable Place Restriction Silencing Speakers At The Only Place They Can Reach Their Intended Audience. This statute effectively creates a no trespassing or First Amendment Free Zone (Board of Airport Comm rs v. Jews for Jesus, Inc., 482 U.S. 569, 574 (1987)) inside a quintessential traditional public forum shutting off Petitioners access to their intended audience, distorting their message and radically altering their ability to communicate even with willing listeners. The restriction prohibits even peaceful, consensual conversations far surpassing the scheme this Court approved in Hill. Petitioners unquestionably speak in a traditional public forum space [that] occupies a special position in terms of First Amendment protection. United States v. Grace, 461 U.S. 171, 180 (1983). Snyder v. Phelps, 131 S.Ct. at 1218 (internal quotation marks omitted).

30 21 The Act states in pertinent part that [n]o person shall knowingly enter or remain on a public way or sidewalk adjacent to a reproductive health care facility (RHCF) within a designated and clearly marked [thirty-fivefoot] buffer zone. Mass. Gen. Laws ch. 266, 120E 1/2(b), (c). McCullen v. Coakley, 708 F.3d at 3 (emphasis added). The statutory speech-free zone exists solely around the entrances, exits, and driveways of abortion clinics (id.) nowhere else and exempts persons (clinic employees) who would risk their jobs if they dared to speak against abortion in that zone. The statue cuts a hole in the First Amendment, even if Petitioners can broadcast the same message in some other place away from the clinics: [T]he streets are natural and proper places for the dissemination of information and opinion; and one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place. United States v. Grace, 461 U.S. at 185, quoting Schneider v. State, 308 U.S. 147, 163 (1939). Massachusetts wanders far beyond Hill s contours, removing even the convenient yet obvious mask of applying restrictions to all medical facilities. Hill v. Colorado, 530 U.S. at 767 (Kennedy, J., dissenting). The Hill majority observed that the comprehensiveness of the statute was a virtue, not a vice, because it [was] evidence against there being a

31 22 discriminatory governmental motive. Id. at 731. Massachusetts rips off the mask and exposes the underlying content-based bias. Moreover, the 8-foot zone in Hill, unlike the 15-foot zone in Schenck...allow[ed] the speaker to communicate at a normal conversational distance. Id. at The 35-foot buffer zone in Massachusetts renders normal conversation impossible. The Hill majority also distinguished Schenck and Madsen in that particular speakers were at times completely banned within certain zones in those cases. Id. at Here, speakers who oppose abortion are completely banned within the statutory buffer zones. If their First Amendment activities presented any real danger to the public, the statute should apply to every building entrance in the State but [i]t does not. Id. at 767 (Kennedy, J., dissenting). The place where speech occurs may have special relevance. It may represent the object of protest, the seat of authority against which the protest is directed or as in this case it may be the place is where the relevant audience may be found. Galvin v. Hay, 374 F.3d 739, 747 (9th Cir. 2004), quoting Wolin v. Port of New York Authority, 392 F.2d 83, 89 (2d Cir. 1968) (antiwar protest was directed to the general public and to a special audience servicemen traveling to and from their bases, particularly buses arriving from Fort Dix ). Case law abounds with examples: Schenck v. Pro-Choice Network, 519 U.S. at 362 (facilities where abortions were performed) Foti v. City of Menlo Park, 146 F.3d 629, 633 (9th Cir. 1998) (leaflets handed out on public

32 23 sidewalk in front of a Planned Parenthood facility) Glendale Assocs., Ltd. v. NLRB, 347 F.3d 1145, 1147 (9th Cir. 2003) (union representatives distributed handbills to customers outside Disney Store) New Alliance Party v. Dinkins, 743 F. Supp. 1055, 1066 (S.D.N.Y. 1990) (alternative protest location was inadequate because it permitted only a glimpse of the northern corner of [Gracie] Mansion where the intended audience was located) Here, the place is critical to Petitioners ability to reach their intended audience women on the verge of undergoing an abortion. Speech may be irreparably distorted by a regulation of the place. [T]here is a strong First Amendment interest in protecting the right of citizens to gather in traditional public forum locations that are critical to the content of their message. Galvin v. Hay, 374 F.3d at 752. In Galvin the location was part of the content of the speech rather than the place where the intended audience could be found placing them in the park s First Amendment zone distorted their message. But pushing Petitioners away from the women entering abortions clinics distorts their message by forcing them to shout, hold signs or wear costumes ( dressing up as, say, the Grim Reaper ). Admittedly, the Act curtails the plaintiffs ability to carry on gentle discussions with prospective patients at a conversational distance, embellished with eye contact and smiles. McCullen v.

33 24 Coakley, 708 F.3d at 13. Such distortion of Petitioners message is constitutionally unacceptable. Some of this Court s holdings in the mid-1960's civil rights cases illustrate the link between a message and the place where it is spoken: Brown v. Louisiana, 383 U.S. 131, 139 (1966) (demonstrators quietly sat and stood in public library reading room to protest segregation) Cox v. Louisiana, 379 U.S. 559, 560, 566, 575 (1965) (pickets and parades near Louisiana courthouse where students trial would take place) Edwards v. South Carolina, 372 U.S. 229, 235 (1963) (peaceful assembly near site of State Government to express grievances about racially discriminatory laws) In these cases, this Court implicitly recognized [the] critical connection between message and public locations. Galvin v. Hay, 374 F.3d at 752 n. 9. There are a few limited locations where targeted protests can be restricted. Snyder v. Phelps, 131 S.Ct. at The immediate vicinity of a private residence is a prime example. Cohen v. California, 403 U.S. at 21-22; Frisby v. Schultz, 487 U.S. at 477. A carefully crafted injunction also differs from a generally applicable statute: [A] statute prohibiting demonstrations within 36 feet of an abortion clinic would probably violate the First Amendment, but an injunction directed

34 25 at a limited group of persons who have engaged in unlawful conduct in a similar zone might well be constitutional. Madsen v. Women s Health Center, Inc., 512 U.S. at 778 (Stevens, J., concurring in part and dissenting in part). The restriction at issue in this case is precisely the type of statute Justice Stevens predicted would probably violate the First Amendment not an injunction responding to disruptive or other unlawful conduct. Finally and most importantly [t]he public forum involved here...has become, by necessity and by virtue of this Court s decisions, a forum of last resort for those who oppose abortion. Hill v. Colorado, 530 U.S. at 763 (Scalia, J., dissenting). The public space outside abortion clinics is the most effective place, if not the only place where peaceful persuasion can occur. Id. It is the location where the Court should expend its utmost effort to vindicate free speech, not to burden or suppress it. Id. at 789 (Kennedy, J., dissenting). If Petitioners speech is to be effective, [it] must take place at the very time and place a grievous moral wrong, in their view, is about to occur. Id. at 792 (Kennedy, J., dissenting) (emphasis added). Massachusetts has placed unreasonable restrictions on both the time and the place where Petitioners may speak to their intended audience.

35 26 C. The Statute Is An Unreasonable Manner Restriction Rendering It Impossible For The Speakers To Reach Their Intended Audience In An Effective Manner. Petitioners have determined from past experience that peaceful conversations with willing listeners not loud, raucous protests from a distance are the best means to convey their message effectively. The First Amendment mandates that we presume that speakers, not the government, know best both what they want to say and how to say it. Riley v. National Federation of Blind of N. C., Inc., 487 U.S. 781, (1988). The Constitution protects [citizens ] right not only to advocate their cause but also to select what they believe to be the most effective means for so doing. Meyer v. Grant, 486 U.S. 414, 424 (1988). It is the speaker not the government who generally has the right to tailor the speech. Hurley v. Irish-Am. Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557, 573 (1995). See also Cohen v. California, 403 U.S. at 25 ( It is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual. ). Sometimes the manner is truly unreasonable: No matter what its message, a roving sound truck that blares at 2 a.m. disturbs neighborhood tranquility. Cons. Edison Co. v. Public Serv. Comm n, 447 U.S. at 536. Some restrictions implicate reasonable regulation of expressive conduct: Clark v. Cmty. for Creative Non- Violence, 468 U.S. at 294 (upholding conditions of a permit that allowed the erection of two symbolic tent

36 27 cities to demonstrate the plight of the homeless, but prohibited overnight sleeping in the tents). But the Massachusetts statute grates against the First Amendment it chills pure speech, preventing peaceful, consensual communication this Court has protected in the other contexts: Edenfield v. Fane, 507 U.S. 761, 766 (1993) (recognizing the importance of direct and spontaneous communication between CPA s and prospective clients, or other seller-buyer solicitation); Loper v. New York City Police Dep t, 999 F.2d 699, 705 (2d Cir. 1993) (invalidating ban on peaceful begging in public places). The statute actually compels Petitioners to either be silent or adopt a louder, more intrusive manner that is almost certain to cut off effective communication: [T]he Court must know that most of the counseling and educating likely to take place outside a health care facility cannot be done at a distance and at a high-decibel level. The availability of a powerful amplification system will be of little help to the woman who hopes to forge, in the last moments before another of her sex is to have an abortion, a bond of concern and intimacy that might enable her to persuade the woman to change her mind and heart. Hill v. Colorado, 530 U.S. at 757 (Scalia, J., dissenting). As in Hill, the statute fails to restrict protesters intent on bullying or frightening women...bullhorns and screaming from [thirty-five] feet away will serve their purposes well. Id. at 763 (Scalia, J., dissenting). The restriction only deters those who would accomplish their moral and religious objectives by peaceful and civil means. Id.

37 28 This Court should not uphold a statute that is even more deeply flawed than the Colorado law approved in Hill: The Court s holding contradicts more than a half century of well-established First Amendment principles. For the first time, the Court approves a law which bars a private citizen from passing a message, in a peaceful manner and on a profound moral issue, to a fellow citizen on a public sidewalk. Id. at 765 (Kennedy, J., dissenting). This Court should not make the same mistake a second time. III. THE FIRST CIRCUIT S STATE ACTION ARGUMENT IS A RED HERRING THAT MASKS THE STATUTE S CONSTITUTIONAL FLAWS. The First Circuit skirts the constitutional flaws in the statute with its claim that the employees and agents about whom the plaintiffs complain are not state actors but unlike the municipal police officers in Hoye are agents of a private entity (Planned Parenthood). McCullen v. Coakley, 708 F.3d at 10. In describing Oakland s enforcement policy as the epitome of a content-based restriction, Hoye explained that [t]he City s policy of distinguishing between speech that facilitates access to clinics and speech that discourages access is not content-neutral. Hoye v. City of Oakland, 653 F.3d at 851. In Hoye, the City s enforcement policy constituted state action. This case is not about enforcement efforts either by the state or clinic representatives but the statutory distinction

38 29 between speech that facilitates access to clinics and speech that discourages access is not content-neutral. Id. As the First Circuit acknowledged citing this Court s precedent: Lugar v. Edmondson Oil Co., 457 U.S. 922, (1982) ( While private misuse of a state statute does not describe conduct that can be attributed to the State, the procedural scheme created by the statute obviously is the product of state action, and acts done under the authority of that statute can be considered state action if the acts are done jointly by private and state actors). McGuire II, 386 F.3d at 60. Moreover, Petitioners are not complaining about private pro-choice persons [who] are engaging in acts that are illegal under the statute (id.) but rather content-based speech by such persons that is expressly lawful under the statute. The statutory scheme itself is flawed and that is obviously...the product of state action. Lugar v. Edmondson Oil Co., 457 U.S. 922, (1982). CONCLUSION Speech opposing abortion has become a constitutional stepchild subject to rules that would be patently unconstitutional in any other context. Amicus curiae urges this Court to reverse the deeply flawed First Circuit decision and apply the First Amendment consistently in all contexts.