Another Win for Free Speech

The Supreme Court’s decision in McCullen v. Coakley affirms that content-neutral regulations can still violate the First Amendment.

San Francisco Anti-Abortion Protest: Photo by Steve Rhodes (Flickr)

At the end of its most recent term the United States Supreme Court issued its eagerly anticipated opinion to McCullen v. Coakley(PDF).  In a rare unanimous decision on a controversial topic, the Court struck down a Massachusetts law requiring thirty-five foot “buffer zones” around reproductive health clinics because it violates the fundamental First Amendment right to free speech.

Freedom of speech protects individuals’ rights to express their opinions without fear of government punishment.  However, the First Amendment’s protections are not absolute, nor are they dispositive of other fundamental rights and social values.

When the First Amendment right to free speech is at odds with other fundamental rights and governmental interests, which constitutional protection rules the day?

Abortion is legal in the United States, subject to state-specific laws.  However, reproductive clinics are frequent stages for public protest, given the sensitive and controversial nature of the services they provide.  The law at issue in McCullen v. Coakley was enacted to “protect public safety and patient access to medical care.”  It was challenged by pro-life protestors who wished to dissuade women visiting reproductive health clinics from obtaining abortions through non-harassing “sidewalk counseling.”

McCullen v. Coakley is, thus, a significant case because it illustrates the ways that the First Amendment interacts with other rights and social values.  This case answers the question, when the First Amendment right to free speech is at odds with other fundamental rights and governmental interests, which constitutional protection rules the day?

Freedom of speech is a broad and fluid concept that covers both “pure speech” as well as conduct that is intended to be expressive.

Among its five sacred guarantees, the First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech[.]”  This protection was incorporated against the states in 1926 by Gitlow v. New York.  Before reaching the merits of that case, the Supreme Court had to determine whether the First Amendment’s protection of free speech was also applicable to the States.  On this issue of first impression, the Court held that “freedom of speech and of the press . . . are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States.”

Freedom of speech is a broad and fluid concept that covers both “pure speech” as well as conduct that is intended to be expressive.  American history and case law favor protection of free speech, subjecting content-based restrictions to the stringent “strict scrutiny” test upon constitutional challenge.

The Supreme Court has held that the First Amendment’s protections extend in varying levels to: symbolic speech, such as individuals burning the American flag (Texas v. Johnson) or students wearing black armbands to a public high school in protest of the Vietnam War (Tinker v. Des Moines Independent Community School District); commercial speech, so long as it is not false or misleading (Central Hudson Gas & Electric Corp. v. Public Service Commission of New York); and corporate speech (Citizens United v. Federal Election Commission).

Although the First Amendment’s protections are expansive, there are still instances when Congress may abridge free speech.

The First Amendment even protects unpopular or offensive speech.  Indeed, as George Orwell noted, “If liberty means anything at all, it means the right to tell people what they do not want to hear.”  However, freedom of speech is not all-inclusive: obscenity (Roth v. United States); defamation (New York Times Co. v. Sullivan); and “fighting words,” those that “by their utterance inflict injury or tend to incite an immediate breach of the peace” (Chaplinsky v. New Hampshire), are not protected by the First Amendment.

Although the First Amendment’s protections are expansive, there are still instances when Congress may abridge free speech.  Congress may, for example, limit freedom of speech during times of war if doing so protects national security interests.  Additionally, Congress may also impose “time, place, and manner” restrictions on free speech in order to further a legitimate social or governmental interest.  Restrictions of this kind are valid if they: (1) are content-neutral with regards to the regulated speech; (2) are narrowly tailored to further a significant government interest; and (3) allow for other channels through which the restricted speech may be communicated.

Restrictions of this kind have faced constitutional challenge relatively frequently in recent decades.  In Clark v. Community for Creative Non-Violence, the Supreme Court held that the National Park Service’s anti-camping regulations did not violate the First Amendment because they targeted all speech equally, were tailored to advance the legitimate interest of public park maintenance, and did not prevent demonstrators from raising awareness of the homeless in other ways.  Conversely, in R.A.V. v. City of St. Paul, the Court struck down a local criminal ordinance prohibiting the display of certain symbols because it specifically targeted those that incite “anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.”

The Court held that the law was not sufficiently narrow because it seriously burdened protestors’ abilities to distribute their literature and to engage in non-harassing verbal communication.

The law struck down in McCullen v. Coakley was an obvious attempt by the Massachusetts legislature to enact a constitutional “time, place, and manner” restriction on free speech.  Admittedly passed in an effort to protect women seeking abortions from harassment and physical altercations, the law was nonetheless content-neutral because it targeted certain locales, rather than certain speech.  As a blanket restriction on all speech within abortion clinics’ most immediate vicinities, the law was not subject to strict scrutiny.

The Court acknowledged previous precedent that stated “ensuring public safety and order, promoting the free flow of traffic on streets and sidewalks, protecting property rights, and protecting a woman’s freedom to seek pregnancy­ related services” are legitimate governmental interests.  However, the Court held that the law was not sufficiently narrow because it seriously burdened protestors’ abilities to distribute their literature and to engage in non-harassing verbal communication.  The Commonwealth’s interests, said the Court, are adequately protected by an unchallenged provision of the law that criminalizes the harassment of abortion clinic visitors.  However, the Court’s decision does not mean that proponents of buffer zone laws and a woman’s right to choose are without remedy.

“The cure for bad speech is more speech, or better speech.”

A Raleigh, NC, couple found an interesting and unique way to combat pro-life protestors through protests of their own.  Just like the pro-lifers, Tina and Grayson Haver Currin visit a local abortion clinic every Saturday, protest posters in tow.  Their messages are nontraditional, however: they run the gamut from overtly political (“Anti-Harassment” and “I support women’s rights”) to satirical (“Honk if you’re horny” and “Pull out for the Lord”).

McCullen v. Coakley is a sensitive case, due to the controversy and strong opinions surrounding abortion.  Those issues aside, however, the Court has acted appropriately by continuing to protect the fundamental right to free speech.  As FIRE, an organization dedicated to protecting students’ constitutional rights on college campuses, notes, “The cure for bad speech is more speech, or better speech.”

Liles Demmink, Former Associate Editor/Ethics
About Liles Demmink, Former Associate Editor/Ethics (12 Articles)
Liles Demmink served as the Associate Editor of Ethics for the Campbell Law Observer during the 2014-2015 school year. She graduated from the University of North Carolina at Chapel Hill in May 2009 with a degree in Journalism and Mass Communication. Post-graduation, Liles moved to Boston, MA, where she worked for a marketing consulting firm until she returned to NC to attend law school. During the summer of 2013, Liles interned with the Honorable Ann Marie Calabria of the North Carolina Court of Appeals. Liles also served as a Legal Research and Writing Scholar at Campbell. She graduated from Campbell Law School in May 2015.
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