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McCullen v. Coakley: How Should We
Reconcile the First Amendment with Abortion
Rights?
________________________________
Ana Choi* INTRODUCTION
This past June, the Supreme Court handed down its decision in
McCullen v. Coakley, a case involving the constitutionality of a
Massachusetts statute that created a 35 feet buffer zone around abortion
clinics.1 The petitioners in the case were a group of individuals who
claimed that the Massachusetts statute violated their First Amendment
rights by preventing them from carrying out their “sidewalk
counseling.”2 This “counseling” consisted of attempts to engage in
conversation with women approaching the abortion clinics to offer
information about alternatives to abortion.3 On the other side,
Massachusetts (and the United States, as an amicus supporting the state)
argued that the statute was necessary in order to ensure safety and
prevent obstruction around the abortion clinics.4
The Court found the statute unconstitutional in a 9-0 decision, but
the Justices were divided on the basis for finding the statute
unconstitutional. The point of contention was whether the statute was
content-neutral or not, which would determine the appropriate level of
scrutiny. Content-neutral statutes just have to be “narrowly tailored to
serve a significant government interest,”5 whereas content- or viewpoint *
JD candidate, Harvard Law School (expected graduation May 2016).
1
134 S.Ct. 2518 (2014).
2
See id. at 2527.
3
See id.
4
See id. at 2537.
5
See id. at 2534.
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based statutes must be the “least restrictive means of achieving a
compelling state interest.”6 The majority, in an opinion written by Chief
Justice Roberts and joined by Justices Ginsburg, Breyer, Sotomayor, and
Kagan, found that the statute was content-neutral, but it failed because it
was not “narrowly tailored.”7 Justice Scalia, in a concurrence joined by
Justices Kennedy and Thomas, argued that the majority’s conclusion
was wrong and that the statute was clearly content-based.8 Justice Alito
penned a separate concurrence, also arguing that the statue was not
content-neutral.9 He did not go as far as Justices Scalia, Kennedy, and
Thomas by calling for the overruling of Hill v. Colorado10—a 2000 case
where the Supreme Court upheld the constitutionality of a Colorado law
creating “bubble zones” around abortion clinics—but he did make it
clear that he thought the majority used the wrong rationale for their
decision.
McCullen is a difficult case because it involves a clash between
two values that are both considered important by progressives: the right
to freedom of speech and the right to abortion.11 Although the Court
does not balance these values against one another in its legal analysis,
the case is set up in such a way that vindication of one value can
seemingly only come about by sacrificing or limiting the other value.
The right to freedom of speech has become a less sympathetic—or at
least less urgent—cause in recent years because of the string of Supreme
Court decisions that have used this right to protect controversial
activities: making videos showing animal cruelty,12 selling violent video
games to children,13 protesting at a fallen soldier’s funeral,14 lying about
receiving the Medal of Honor,15 and political spending by
6
See id. at 2535.
7
See id. at 2525-2541. 8
See id. at 2541-2550.
9
See id. at 2549-2550.
10
See Hill v. Colorado, 530 U.S. 703 (2000).
11
I am using the phrase “right to abortion” broadly to refer to the right to have practical, unimpeded
access to abortion services, rather than referring narrowly to the legality of abortion procedures.
12
See United States v. Stevens, 559 U.S. 460 (2010).
13
See Brown v. Entertainment Merchants Ass’n, 131 S.Ct. 2729 (2011).
14
See Snyder v. Phelps, 131 S.Ct. 1207 (2011).
15
See United States v. Alvarez, 132 S.Ct. 2537 (2012).
2015]
Town of Greece v. Galloway
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corporations.16 However, the First Amendment has been invoked in the
past and will continue to be invoked in the future to protect progressive
views that are not yet widely accepted, and the only way to ensure one’s
own freedom of speech is to protect the freedom of speech of those with
opposing views. Recognizing the conundrum presented by McCullen,
the American Civil Liberties Union filed an amicus brief in which it
urged the Supreme Court to remand the case to the Court of Appeals,
rather than making a decision that would inevitably have a negative
impact on either the right to freedom of speech or the right to abortion.17
The question that I seek to answer in this Comment is: in
responding to the result in McCullen—whether critically or favorably—
is it possible for progressives to maintain their commitment to abortion
rights as well as to freedom of speech? In the following paragraphs, I
will suggest two possible ways to accomplish this. The first way is to
draw a distinction between the specific facts presented in this case and
the actual problems that led to the Massachusetts statute. There is a clear
mismatch between the sympathetic, unobjectionable petitioners who
were chosen to represent the statute’s opponents and the actual situation
that the Massachusetts legislators were trying to address when they
passed the statute. By isolating the specific facts as presented by the
petitioners, it may become easier to reconcile the two values at issue.
The second way is to think about freedom of speech not in terms of what
is or isn’t protected under the doctrinal test developed by the Supreme
Court, but in terms of the fundamental principles underlying the First
Amendment. Even if abortion rights and freedom of speech will
unavoidably conflict with each under the current doctrinal test, it may be
possible to reconcile them by reevaluating our understanding of the First
Amendment.
DISTINGUISHING THE FACTS OF MCCULLEN
16
See Citizens United v. Federal Election Com’n, 558 U.S. 310 (2010).
17
See Brief for the American Civil Liberties Union and the American Civil Liberties Union Foundation of
Massachusetts as Amici Curiae, McCullen v. Coakley, 134 S.Ct. 2518 (2014) (No. 12-1168).
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The petitioners in McCullen, portrayed as gentle, well-intentioned
counselors seeking to provide a helping hand, are not the ones that
Massachusetts legislators had in mind when they passed the buffer zone
statute. The statute was enacted to address the reality that abortion
clinics were serving as battlegrounds for protesters both for and against
abortion.18 The women seeking to enter the abortion clinics faced not
only physical obstruction but also emotional distress in having to walk
through these scenes. The Commonwealth’s brief describes how
“advocates on both sides of one of the nation’s most divisive issues
frequently engaged each other in the areas immediately surrounding the
State’s clinics, creating congested areas charged with anger.”19 In a
piece criticizing the McCullen decision, a former volunteer escort at one
of the Boston abortion clinics recounts her experience with particularly
aggressive protesters:
We knew the “quiet counseling” well. “Just like Auschwitz,” one
would say, “you’re delivering them right into the furnace.” . . . If
the patient was African American, the protestors said they were
“lynching” their child. If the protester was crying, they said the
tears would never stop, even in hell. If a patient was with her
mother, they thanked the mother—for not killing her own baby.20
The above description might be a compilation of only the most
extreme occurrences and not representative of the whole spectrum of
interactions, but it is probably much closer to what Massachusetts
legislators were trying to deal with when they passed the statute, when
compared to the situation presented by the petitioners. If individuals like
the petitioners were the only ones present at the abortion clinics, there
would be no problem. The buffer zone would be unnecessary, the
petitioners would be able to exercise their speech rights, and women
would be able to access abortion clinics without facing any great
18
See Brief for Respondent at 2, McCullen v. Coakley, 134 S.Ct. 2518 (2014) (No. 12-1168).
19
See id. 20
Brian Giacometti, Buffer Zones, Clinic Escorting, and the Myth of Quiet Sidewalk Counselors,
HUFFINGTON POST (July 7, 2014, 3:04 PM), http://www.huffingtonpost.com/brian-giacometti/bufferzones-clinic-escor_b_5563309.html.
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Town of Greece v. Galloway
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difficulties. In other words, if the petitioners were an accurate
representation of what was actually going on at the abortion clinics,
there would be no conflict between abortion rights and freedom of
speech; the two values would be able to coexist without infringing on
each other.
Because of the disconnect between the specific facts presented by
the petitioners and the bigger picture showing what is actually at stake, it
is not incoherent to dislike the Court’s decision even while
acknowledging that the petitioners in this case did have a valid free
speech claim. Yes, the petitioners should be allowed to carry out their
“sidewalk counseling,” but the problem is that the invalidation of the
Massachusetts statute will allow everybody to break through the
boundaries of the previous buffer zones, not just the petitioners.
Although the Court was only considering an as-applied challenge to the
statute (the facial challenge had previously been denied),21 the
consequence of deciding that the statute is unconstitutional as applied to
the petitioners is that it is struck down in its entirety.
By separating the petitioners from other types of protesters, it is
possible to reconcile support for freedom of speech with support for
abortion rights. The structure of the argument is: the petitioners do have
a valid free speech claim, but the result in McCullen is bad because it
will enable individuals other than the petitioners to impede access to
abortion clinics. This interpretation does not provide an answer as to
whether the Court’s legal conclusion was correct or not, but it at least
provides a way to come to terms with the desire to simultaneously agree
and disagree with the Court. There would have been a more difficult
dilemma if those other individuals—the ones described by the former
volunteer escort—had been the ones presenting the challenge against the
statute. In that scenario, intuitions about what is and is not allowable
under the First Amendment would have been more severely tested.
However, that debate remains beyond the scope of this Comment.
REEVALUATING OUR UNDERSTANDING OF THE FIRST AMENDMENT
21
See McCullen at 2527.
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The second way to reconcile support for abortion rights with
support for free speech rights is to analyze McCullen in light of the
fundamental principles underlying the First Amendment, rather than
focusing exclusively on the analytical framework developed by the
Court. Again, this does not provide an answer as to whether the Court’s
legal analysis and conclusion were right or wrong. Rather, it provides an
alternate way to conceptually reconcile the two values at stake for one’s
own internal coherence of thought. The Court engages in a discussion
about content neutrality and other such doctrinal issues, but it does not
spend enough time on the question: is this the type of speech that the
First Amendment was designed to protect?
The Court’s opinion states that the First Amendment’s purpose is
“to preserve an uninhibited marketplace of ideas in which the truth will
ultimately prevail.”22 The “marketplace of ideas” rationale is wellestablished in First Amendment jurisprudence. As written by Justice
Holmes in his dissent in Abrams v. United States, “the best test of truth
is the power of the thought to get itself accepted in the competition of
the market.”23 However, it is somewhat jarring to apply this rationale to
the situation in McCullen. In McCullen, the problem is not that the
petitioners’ speech is not available in the marketplace of ideas.
Arguments against abortion and information about alternatives are
widely available through different media of communication, and in fact,
the anti-abortion movement is highly visible in the United States. In
other words, the petitioners’ speech is already present in the marketplace
of ideas, fighting against other ideas in order to prevail as the truth.
The Court addresses this problem by arguing that the petitioners’
goal of informing women about the various alternatives to abortion and
helping them pursue these alternatives can only be accomplished
through “personal, caring, consensual conversations.”24 However, the
First Amendment “does not guarantee a speaker the right to any
22
See McCullen at 2529.
23
See Abrams v. United States, 250 U.S. 616, 630 (1919).
24
See McCullen at 2536.
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particular form of expression,” as the Court itself acknowledges.25 The
mere fact that one form of expression is more effective than a different
form of expression does not mean that an individual automatically has a
constitutional right to engage in the more effective form. The essence of
the “marketplace of ideas” rationale is that society as a whole benefits
when ideas are put into the marketplace. As society is exposed to more
and more ideas, the likelihood of finding the truth increases, and it is
counterproductive to try to regulate these ideas in advance. Thus, the
focus is on the ideas themselves, rather than on the individuals who
come up with the ideas. As long as a particular idea has effectively been
delivered into the “marketplace of ideas,” the First Amendment has
served its purpose. After that, the ideas should ideally compete against
each other based on their merits, without regard to the method of
communication or the source of the ideas.
By adopting the “marketplace of ideas” conception of the First
Amendment, it is possible to overcome the conflict between support for
abortion rights and support for freedom of speech. Under this conception,
the petitioners’ speech is not the type of speech that was meant to be
protected by the First Amendment, so the Massachusetts statute does not
infringe on the right to freedom of speech.
Of course, the “marketplace of ideas” is not the only rationale that
exists in First Amendment jurisprudence. There are other rationales such
as self-governance, self-fulfillment, and autonomy.26 Also, when looking
at First Amendment cases that have come before the Supreme Court, the
Court does not actually measure the value of a particular type of speech
by considering whether it adds anything the “marketplace of ideas.”
However, given that this rationale is so commonly invoked in the
Court’s reasoning, it should play a more prominent role when the Court
is dealing with First Amendment cases. Whenever a doctrinal test is
being developed and cemented as precedent, there is an increasing
danger that the mechanics of the test will become divorced from the
principles underlying the right. Thus, it is necessary to continuously
revisit the principles underlying the First Amendment and ensure that
25
See id.
26
See GEOFFREY R. STONE ET AL., THE FIRST AMENDMENT 11-14 (4th ed. 2012).
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the doctrinal test is still serving those principles, rather than being an end
in itself. The “marketplace of ideas” is an important principle providing
a basis for the free speech right, so it should guide the substantive
analysis in free speech right cases rather than being used as an empty
refrain.
CONCLUSION
When reading the Court’s decision in McCullen v. Coakley, it can
be difficult to formulate a response that fits comfortably with the desire
to protect abortion rights as well as the desire to protect First
Amendment rights. One possible solution is to differentiate the facts
presented in McCullen from the actual situation at abortion clinics.
Another possible solution is to think about the principles underlying the
First Amendment. The First Amendment may not indiscriminately
protect all types of speech. The “marketplace of ideas” rationale has a
very specific conception of the type of speech that the First Amendment
is supposed to protect, and it is possible that the petitioners’ speech in
McCullen does not fall under this conception.