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SUPREME COURT OF THE UNITED STATES
_________________
No. 12–1168
_________________
ELEANOR McCULLEN, et al., PETITIONERS v.
MARTHA COAKLEY, ATTORNEY GEN-ERAL of MASSACHUSETTS, et al.
on writ of certiorari to the united states
court of appeals for the first circuit
[June 26, 2014]
Chief Justice Roberts
delivered the opinion of the Court.
A Massachusetts statute
makes it a crime to knowingly stand on a “public way or
sidewalk” within 35 feet of an entrance or driveway to any
place, other than a hospital, where abortions are performed. Mass.
Gen. Laws, ch. 266, §§120E½(a), (b) (West 2012).
Petitioners are individuals who approach and talk to women outside
such facilities, attempting to dissuade them from having abortions.
The statute prevents petitioners from doing so near the
facilities’ entrances. The question presented is whether the
statute violates the First Amendment.
I
A
In 2000, the
Massachusetts Legislature enacted the Massachusetts Reproductive
Health Care Facilities Act, Mass. Gen. Laws, ch. 266,
§120E½ (West 2000). The law was designed to address
clashes between abortion opponents and advocates of abortion rights
that were occurring outside clinics where abortions were performed.
The Act established a defined area with an 18-foot radius around
the entrances and driveways of such facilities.
§120E½(b). Anyone could enter that area, but once
within it, no one (other than certain exempt individuals) could
knowingly approach within six feet of another person—unless
that person consented—“for the purpose of passing a
leaflet or handbill to, displaying a sign to, or engaging in oral
protest, education, or counseling with such other person.”
Ibid. A separate provision subjected to criminal punishment anyone
who “knowingly obstructs, detains, hinders, impedes or blocks
another person’s entry to or exit from a reproductive health
care facility.” §120E½(e).
The statute was modeled
on a similar Colorado law that this Court had upheld in Hill v.
Colorado, 530 U. S. 703 (2000) . Relying on Hill, the United
States Court of Appeals for the First Circuit sustained the
Massachusetts statute against a First Amendment challenge. McGuire
v. Reilly, 386 F. 3d 45 (2004) (McGuire II), cert. denied, 544
U. S. 974 (2005) ; McGuire v. Reilly, 260 F. 3d 36 (2001)
(McGuire I).
By 2007, some
Massachusetts legislators and law enforcement officials had come to
regard the 2000 statute as inadequate. At legislative hearings,
multiple witnesses recounted apparent violations of the law.
Massachusetts Attorney General Martha Coakley, for example,
testified that protestors violated the statute “on a routine
basis.” App. 78. To illustrate this claim, she played a video
depicting protestors approaching patients and clinic staff within
the buffer zones, ostensibly without the latter individuals’
consent. Clinic employees and volunteers also testified that
protestors congregated near the doors and in the driveways of the
clinics, with the result that prospective patients occasionally
retreated from the clinics rather than try to make their way to the
clinic entrances or parking lots.
Captain William B.
Evans of the Boston Police Department, however, testified that his
officers had made “no more than five or so arrests” at
the Planned Parenthood clinic in Boston and that what few
prosecutions had been brought were unsuccessful. Id., at
68–69. Witnesses attributed the dearth of enforcement to the
difficulty of policing the six-foot no-approach zones. Captain
Evans testified that the 18-foot zones were so crowded with
protestors that they resembled “a goalie’s
crease,” making it hard to determine whether a protestor had
deliberately approached a patient or, if so, whether the patient
had consented. Id., at 69–71. For similar reasons, Attorney
General Coakley concluded that the six-foot no-approach zones were
“unenforceable.” Id., at 79. What the police needed,
she said, was a fixed buffer zone around clinics that protestors
could not enter. Id., at 74, 76. Captain Evans agreed, explaining
that such a zone would “make our job so much easier.”
Id., at 68.
To address these
concerns, the Massachusetts Legislature amended the statute in
2007, replacing the six-foot no-approach zones (within the 18-foot
area) with a 35-foot fixed buffer zone from which individuals are
categorically excluded. The statute now provides:
“No person shall knowingly enter or
remain on a public way or sidewalk adjacent to a reproductive
health care facility within a radius of 35 feet of any portion of
an entrance, exit or driveway of a reproductive health care
facility or within the area within a rectangle created by extending
the outside boundaries of any entrance, exit or driveway of a
reproductive health care facility in straight lines to the point
where such lines intersect the sideline of the street in front of
such entrance, exit or driveway.” Mass. Gen. Laws, ch. 266,
§120E½(b) (West 2012).
A “reproductive health care
facility,” in turn, is defined as “a place, other than
within or upon the grounds of a hospital, where abortions are
offered or performed.” §120E½(a).
The 35-foot buffer zone
applies only “during a facility’s business
hours,” and the area must be “clearly marked and
posted.” §120E½(c). In practice, facilities
typically mark the zones with painted arcs and posted signs on
adjacent sidewalks and streets. A first violation of the statute is
punishable by a fine of up to $500, up to three months in prison,
or both, while a subsequent offense is punishable by a fine of
between $500 and $5,000, up to two and a half years in prison, or
both. §120E½(d).
The Act exempts four
classes of individuals: (1) “persons entering or leaving such
facility”; (2) “employees or agents of such facility
acting within the scope of their employment”; (3) “law
enforcement, ambulance, firefighting, construction, utilities,
public works and other municipal agents acting within the scope of
their employment”; and (4) “persons using the public
sidewalk or street right-of-way adjacent to such facility solely
for the purposeof reaching a destination other than such
facility.” §120E½(b)(1)–(4). The
legislature also retained the separate provision from the 2000
version that proscribes the knowing obstruction of access to a
facility. §120E½(e).
B
Some of the
individuals who stand outside Massachusetts abortion clinics are
fairly described as protestors, who express their moral or
religious opposition to abortion through signs and chants or, in
some cases, more aggressive methods such as face-to-face
confrontation. Petitioners take a different tack. They attempt to
engage women approaching the clinics in what they call
“sidewalk counseling,” which involves offering
information about alternatives to abortion and help pursuing those
options. Petitioner Eleanor McCullen, for instance, will typically
initiate a conversation this way: “Good morning, may I give
you my literature? Is there anything I can do for you? I’m
available if you have any questions.” App. 138. If the woman
seems receptive, McCullen will provide additional information.
McCullen and the other petitioners consider it essential to
maintain a caring demeanor, a calm tone of voice, and direct eye
contact during these exchanges. Such interactions, petitioners
believe, are a much more effective means of dissuading women from
having abortions than confrontational methods such as shouting or
brandishing signs, which in petitioners’ view tend only to
antagonize their intended audience. In unrefuted testimony,
petitioners say they have collectively persuaded hundreds of women
to forgo abortions.
The buffer zones have
displaced petitioners from their previous positions outside the
clinics. McCullen offers counseling outside a Planned Parenthood
clinic in Boston, as do petitioners Jean Zarrella and Eric Cadin.
Petitioner Gregory Smith prays the rosary there. The clinic
occupies its own building on a street corner. Its main door is
recessed into an open foyer, approximately 12 feet back from the
public sidewalk. Before the Act was amended to create the buffer
zones, petitioners stood near the entryway to the foyer. Now a
buffer zone—marked by a painted arc and a
sign—surrounds the entrance. This zone extends 23 feet down
the sidewalk in one direction, 26 feet in the other, and outward
just one foot short of the curb. The clinic’s entrance adds
another seven feet to the width of the zone. Id., at 293–295.
The upshot is that petitioners are effectively excluded from a
56-foot-wide expanse of the public sidewalk in front of the
clinic.[
1]
Petitioners Mark
Bashour and Nancy Clark offer counseling and information outside a
Planned Parenthood clinic in Worcester. Unlike the Boston clinic,
the Worcester clinic sits well back from the public street and
sidewalks. Patients enter the clinic in one of two ways. Those
arriving on foot turn off the public sidewalk and walk down a
nearly 54-foot-long private walkway to the main entrance. More than
85% of patients, however, arrive by car, turning onto the
clinic’s driveway from the street, parking in a private lot,
and walking to the main entrance on a private walkway.
Bashour and Clark would
like to stand where the private walkway or driveway intersects the
sidewalk and offer leaflets to patients as they walk or drive by.
But a painted arc extends from the private walkway 35 feet down the
sidewalk in either direction and outward nearly to the curb on the
opposite side of the street. Another arc surrounds the
driveway’s entrance, covering more than 93 feet of the
sidewalk (including the width of the driveway) and extending across
the street and nearly six feet onto the sidewalk on the opposite
side. Id., at 295–297. Bashour and Clark must now stand
either some distance down the sidewalk from the private walkway and
driveway or across the street.
Petitioner Cyril Shea
stands outside a Planned Parenthood clinic in Springfield, which,
like the Worcester clinic, is set back from the public streets.
Approximately 90% of patients arrive by car and park in the private
lots surrounding the clinic. Shea used to position himself at an
entrance to one of the five driveways leading to the parking lots.
Painted arcs now surround the entrances, each spanning
approximately 100 feet of the sidewalk parallel to the street
(again, including the width of the driveways) and extending outward
well into the street. Id., at 297–299. Like petitioners at
the Worcester clinic, Shea now stands far down the sidewalk from
the driveway entrances.
Petitioners at all
three clinics claim that the buffer zones have considerably
hampered their counseling efforts. Although they have managed to
conduct some counseling and to distribute some literature outside
the buffer zones—particularly at the Boston clinic—they
say they have had many fewer conversations and distributed many
fewer leaflets since the zones went into effect. Id., at
136–137, 180, 200.
The second statutory
exemption allows clinic employees and agents acting within the
scope of their employment to enter the buffer zones. Relying on
this exemption, the Boston clinic uses “escorts” to
greet women as they approach the clinic, accompanying them through
the zones to the clinic entrance. Petitioners claim that the
escorts sometimes thwart petitioners’ attempts to communicate
with patients by blocking petitioners from handing literature to
patients, telling patients not to “pay any attention”
or “listen to” petitioners, and disparaging petitioners
as “crazy.” Id., at 165, 178.
C
In January 2008,
petitioners sued Attorney General Coakley and other Commonwealth
officials. They sought to enjoin enforcement of the Act, alleging
that it violates the First and Fourteenth Amendments, both on its
face and as applied to them. The District Court denied
petitioners’ facial challenge after a bench trial based on a
stipulated record. 573 F. Supp. 2d 382 (Mass. 2008).
The Court of Appeals
for the First Circuit affirmed. 571 F. 3d 167 (2009). Relying
extensively on its previous decisions upholding the 2000 version of
the Act, see McGuire II, 386 F. 3d 45; McGuire I, 260
F. 3d 36, the court upheld the 2007 version as a reasonable
“time, place, and manner” regulation under the test set
forth in Ward v. Rock Against Racism, 491 U. S. 781 (1989) .
571 F. 3d, at 174–181. It also rejected
petitioners’ arguments that the Act was substantially
overbroad, void for vagueness, and an impermissible prior
restraint. Id., at 181–184.
The case then returned
to the District Court, which held that the First Circuit’s
decision foreclosed all but one of petitioners’ as-applied
challenges. 759 F. Supp. 2d 133 (2010). After another bench
trial, it denied the remain-ing as-applied challenge, finding that
the Act left petitioners ample alternative channels of
communication. 844 F. Supp. 2d 206 (2012). The Court of
Appeals once again affirmed. 708 F. 3d 1 (2013).
We granted certiorari.
570 U. S. ___ (2013).
II
By its very terms,
the Massachusetts Act regulates access to “public
way[s]” and “sidewalk[s].” Mass. Gen. Laws, ch.
266, §120E½(b) (Supp. 2007). Such areas occupy a
“special position in terms of First Amendment
protection” because of their historic role as sites for
discussion and debate. United States v. Grace, 461 U. S. 171,
180 (1983) . These places—which we have labeled
“traditional public
fora”—“ ‘have immemorially been held
in trust for the use of the public and, time out of mind, have been
used for purposes of assembly, communicating thoughts between
citizens, and discussing public questions.’ ”
Pleasant Grove City v. Summum, 555 U. S. 460, 469 (2009)
(quoting Perry Ed. Assn. v. Perry Local Educators’ Assn., 460
U. S. 37, 45 (1983) ).
It is no accident that
public streets and sidewalks have developed as venues for the
exchange of ideas. Even today, they remain one of the few places
where a speaker can be confident that he is not simply preaching to
the choir. With respect to other means of communication, an
individual confronted with an uncomfortable message can always turn
the page, change the channel, or leave the Web site. Not so on
public streets and sidewalks. There, a listener often encounters
speech he might otherwise tune out. In light of the First
Amendment’s purpose “to preserve an uninhibited
marketplace of ideas in which truth will ultimately prevail,”
FCC v. League of Women Voters of Cal., 468 U. S. 364, 377
(1984) (internal quotation marks omitted), this aspect of
traditional public fora is a virtue, not a vice.
In short, traditional
public fora are areas that have historically been open to the
public for speech activities. Thus, even though the Act says
nothing about speech on its face, there is no doubt—and
respondents do not dispute—that it restricts access to
traditional public fora and is therefore subject to First Amendment
scrutiny. See Brief for Respondents 26 (although “[b]y its
terms, the Act regulates only conduct,” it
“incidentally regulates the place and time of protected
speech”).
Consistent with the
traditionally open character of public streets and sidewalks, we
have held that the government’s ability to restrict speech in
such locations is “very limited.” Grace, supra, at 177.
In particular, the guiding First Amendment principle that the
“government has no power to restrict expression because of
its message, its ideas, its subject matter, or its content”
applies with full force in a traditional public forum. Police Dept.
of Chicago v. Mosley, 408 U. S. 92, 95 (1972) . As a general
rule, in such a forum the government may not “selectively
. . . shield the public from some kinds of speech on the
ground that they are more offensive than others.” Erznoznik
v. Jacksonville, 422 U. S. 205, 209 (1975) .
We have, however,
afforded the government somewhat wider leeway to regulate features
of speech unrelated to its content. “[E]ven in a public forum
the government may impose reasonable restrictions on the time,
place, or manner of protected speech, provided the restrictions
‘are justified without reference to the content of the
regulated speech, that they are narrowly tailored to serve a
significant governmental interest, and that they leave open ample
alternative channels for communication of the
information.’ ” Ward, 491 U. S., at 791
(quoting Clark v. Community for Creative Non-Violence, 468
U. S. 288, 293 (1984) ).[
2]
While the parties agree
that this test supplies theproper framework for assessing the
constitutionality of the Massachusetts Act, they disagree about
whether the Act satisfies the test’s three requirements.
III
Petitioners contend
that the Act is not content neutral for two independent reasons:
First, they argue that it discriminates against abortion-related
speech because it establishes buffer zones only at clinics that
perform abortions. Second, petitioners contend that the Act, by
exempting clinic employees and agents, favors one viewpoint about
abortion over the other. If either of these arguments is correct,
then the Act must satisfy strict scrutiny—that is, it must be
the least restrictive means of achieving a compelling state
interest. See United States v. Playboy Entertainment Group, Inc.,
529 U. S. 803, 813 (2000) . Respondents do not argue that the
Act can survive this exacting standard.
Justice Scalia objects
to our decision to consider whether the statute is content based
and thus subject to strict scrutiny, given that we ultimately
conclude that it is not narrowly tailored. Post, at 2 (opinion
concurring in judgment). But we think it unexceptional to perform
the first part of a multipart constitutional analysis first. The
content-neutrality prong of the Ward test is logically antecedent
to the narrow-tailoring prong, because it determines the
appropriate level of scrutiny. It is not unusual for the Court to
proceed sequentially in applying a constitutional test, even when
the preliminary steps turn out not to be dispositive. See, e.g.,
Bartnicki v. Vopper, 532 U. S. 514 –527 (2001); Holder
v. Humanitarian Law Project, 561 U. S. 1 –28 (2010)
(concluding that a law was content based even though it ultimately
survived strict scrutiny).
The Court does
sometimes assume, without deciding, that a law is subject to a less
stringent level of scrutiny, as we did earlier this Term in
McCutcheon v. Federal Election Commission, 572 U. S. ___, ___
(2014) (plurality opinion) (slip op., at 10). But the distinction
between that case and this one seems clear: Applying any standard
of review other than intermediate scrutiny in McCutcheon—the
standard that was assumed to apply—would have required
overruling a precedent. There is no similar reason to forgo the
ordinary order of operations in this case.
At the same time, there
is good reason to address content neutrality. In discussing whether
the Act is narrowly tailored, see Part IV, infra, we identify a
number of less-restrictive alternative measures that the
Massachusetts Legislature might have adopted. Some apply only at
abortion clinics, which raises the question whether those
provisions are content neutral. See infra, at 12–15. While we
need not (and do not) endorse any of those measures, it would be
odd to consider them as possible alternatives if they were
presumptively unconstitutional because they were content based and
thus subject to strict scrutiny.
A
The Act applies only
at a “reproductive health care facility,” defined as
“a place, other than within or upon the grounds of a
hospital, where abortions are offered or performed.” Mass.
Gen. Laws, ch. 266, §120E½(a). Given this definition,
petitioners argue, “virtually all speech affected by the Act
is speech concerning abortion,” thus rendering the Act
content based. Brief for Petitioners 23.
We disagree. To begin,
the Act does not draw content-based distinctions on its face.
Contrast Boos v. Barry, 485 U. S. 312, 315 (1988) (ordinance
prohibiting the display within 500 feet of a foreign embassy of any
sign that tends to bring the foreign government into
“ ‘public odium’ ” or
“ ‘public disrepute’ ”); Carey v.
Brown, 447 U. S. 455, 465 (1980) (statute prohibiting all
residential picketing except “peaceful labor
picketing”). The Act would be content based if it required
“enforcement authorities” to “examine the content
of the message that is conveyed to determine whether” a
violation has occurred. League of Women Voters of Cal., supra, at
383. But it does not. Whether petitioners violate the Act
“depends” not “on what they say,”
Humanitarian Law Project, supra, at 27, but simply on where they
say it. Indeed, petitioners can violate the Act merely by standing
in a buffer zone, without displaying a sign or uttering a word.
It is true, of course,
that by limiting the buffer zones to abortion clinics, the Act has
the “inevitable effect” of restricting abortion-related
speech more than speech on other subjects. Brief for Petitioners 24
(quoting United States v. O’Brien, 391 U. S. 367, 384
(1968) ). But a facially neutral law does not become content based
simply be-cause it may disproportionately affect speech on certain
topics. On the contrary, “[a] regulation that serves purposes
unrelated to the content of expression is deemed neutral, even if
it has an incidental effect on some speakers or messages but not
others.” Ward, supra, at 791. The question in such a case is
whether the law is “ ‘justified without reference
to the content of the regulated speech.’ ” Renton
v. Playtime Theatres, Inc., 475 U. S. 41, 48 (1986) (quoting
Virginia Pharmacy Board v. Virginia Citizens Consumer Council,
Inc., 425 U. S. 748, 771 (1976) ; emphasis deleted).
The Massachusetts Act
is. Its stated purpose is to “increase forthwith public
safety at reproductive health care facilities.” 2007 Mass.
Acts p. 660. Respondents have articulated similar purposes before
this Court—namely, “public safety, patient access to
healthcare, and the unobstructed use of public sidewalks and
roadways.” Brief for Respondents 27; see, e.g., App. 51
(testimony of Attorney General Coakley); id., at 67–70
(testimony of Captain William B. Evans of the Boston Police); id.,
at 79–80 (testimony of Mary Beth Heffernan, Undersecretary
for Criminal Justice); id., at 122–124 (affidavit of Captain
Evans). It is not the case that “[e]very objective indication
shows that the provision’s primary purpose is to restrict
speech that opposes abortion.” Post, at 7.
We have previously
deemed the foregoing concerns to be content neutral. See Boos, 485
U. S., at 321 (identifying “congestion,”
“interference with ingress or egress,” and “the
need to protect . . . security” as content-neutral
concerns). Obstructed access and congested sidewalks are problems
no matter what caused them. A group of individuals can obstruct
clinic access and clog sidewalks just as much when they loiter as
when they protest abortion or counsel patients.
To be clear, the Act
would not be content neutral if it were concerned with undesirable
effects that arise from “the direct impact of speech on its
audience” or “[l]isteners’ reactions to
speech.” Ibid. If, for example, the speech outside
Massachusetts abortion clinics caused offense or made listeners
uncomfortable, such offense or discomfort would not give the
Commonwealth a content-neutral justification to restrict the
speech. All of the problems identified by the Commonwealth here,
however, arise irrespective of any listener’s reactions.
Whether or not a single person reacts to abortion protestors’
chants or petitioners’ counseling, large crowds outside
abortion clinics can still compromise public safety, impede access,
and obstruct sidewalks.
Petitioners do not
really dispute that the Commonwealth’s interests in ensuring
safety and preventing obstruction are, as a general matter, content
neutral. But petitioners note that these interests “apply
outside every building in the State that hosts any activity that
might occasion protest or comment,” not just abortion
clinics. Brief for Petitioners 24. By choosing to pursue these
interests only at abortion clinics, petitioners argue, the
Massachusetts Legislature evinced a purpose to “single[ ] out
for regulation speech about one particular topic: abortion.”
Reply Brief 9.
We cannot infer such a
purpose from the Act’s limited scope. The broad reach of a
statute can help confirm that it was not enacted to burden a
narrower category of disfavored speech. See Kagan, Private Speech,
Public Purpose: The Role of Governmental Motive in First Amendment
Doctrine, 63 U. Chi. L. Rev. 413, 451–452 (1996). At the
same time, however, “States adopt laws to address the
problems that confront them. The First Amendment does not require
States to regulate for problems that do not exist.” Burson v.
Freeman, 504 U. S. 191, 207 (1992) (plurality opinion). The
Massachusetts Legislature amended the Act in 2007 in response to a
problem that was, in its experience, limited to abortion clinics.
There was a record of crowding, obstruction, and even violence
outside such clinics. There were apparently no similar recurring
problems associated with other kinds of healthcare facilities, let
alone with “every building in the State that hosts any
activity that might occasion protest or comment.” Brief for
Petitioners 24. In light of the limited nature of the problem, it
was reasonable for the Massachusetts Legislature to enact a limited
solution. When selecting among various options for combating a
particular problem, legislatures should be encouraged to choose the
one that restricts less speech, not more.
Justice Scalia objects
that the statute does restrict more speech than necessary, because
“only one [Massachusetts abortion clinic] is known to have
been beset by the problems that the statute supposedly
addresses.” Post, at 7. But there are no grounds for
inferring content-based discrimination here simply because the
legislature acted with respect to abortion facilities generally
rather than proceeding on a facility-by-facility basis. On these
facts, the poor fit noted by Justice Scalia goes to the question of
narrow tailoring, which we consider below. See infra, at
26–28.
B
Petitioners also
argue that the Act is content based because it exempts four classes
of individuals, Mass. Gen. Laws, ch. 266,
§§120E½(b)(1)–(4), one of which comprises
“employees or agents of [a reproductive healthcare] facil-ity
acting within the scope of their employment.”
§120E½(b)(2). This exemption, petitioners say, favors
one side in the abortion debate and thus constitutes viewpoint
discrimination—an “egregious form of content
discrimination,” Rosenberger v. Rector and Visitors of Univ.
of Va., 515 U. S. 819, 829 (1995) . In particular, petitioners
argue that the exemption allows clinic employees and
agents—including the volunteers who “escort”
patients arriving at the Boston clinic—to speak inside the
buffer zones.
It is of course true
that “an exemption from an otherwise permissible regulation
of speech may represent a governmental ‘attempt to give one
side of a debatable public question an advantage in expressing its
views to the people.’ ” City of Ladue v. Gilleo,
512 U. S. 43, 51 (1994) (quoting First Nat. Bank of Boston v.
Bellotti, 435 U. S. 765 –786 (1978)). At least on the
record before us, however, the statutory exemption for clinic
employees and agents acting within the scope of their employment
does not appear to be such an attempt.
There is nothing
inherently suspect about providing some kind of exemption to allow
individuals who work at the clinics to enter or remain within the
buffer zones. In particular, the exemption cannot be regarded as
simply a carve-out for the clinic escorts; it also covers employees
such as the maintenance worker shoveling a snowy sidewalk or the
security guard patrolling a clinic entrance, see App. 95 (affidavit
of Michael T. Baniukiewicz).
Given the need for an
exemption for clinic employees, the “scope of their
employment” qualification simply ensures that the exemption
is limited to its purpose of allowing the employees to do their
jobs. It performs the same function as the identical “scope
of their employment” restriction on the exemption for
“law enforcement, ambulance, fire-fighting, construction,
utilities, public works and other municipal agents.”
§120E½(b)(3). Contrary to the suggestion of Justice
Scalia, post, at 11–12, there is little reason to suppose
that the Massachusetts Legislature intended to incorporate a common
law doctrine developed for determining vicarious liability in tort
when it used the phrase “scope of their employment” for
the wholly different purpose of defining the scope of an exemption
to a criminal statute. The limitation instead makes
clear—with respect to both clinic employees and municipal
agents—that exempted individuals are allowed inside the zones
only to perform those acts authorized by their employers. There is
no suggestion in the record that any of the clinics authorize their
employees to speak about abortion in the buffer zones. The
“scope of their employment” limitation thus seems
designed to protect against exactly the sort of conduct that
petitioners and Justice Scalia fear.
Petitioners did testify
in this litigation about instances in which escorts at the Boston
clinic had expressed views about abortion to the women they were
accompanying, thwarted petitioners’ attempts to speak and
hand literature to the women, and disparaged petitioners in various
ways. See App. 165, 168–169, 177–178, 189–190. It
is unclear from petitioners’ testimony whether these alleged
incidents occurred within the buffer zones. There is no viewpoint
discrimination problem if the incidents occurred outside the zones
because petitioners are equally free to say whatever they would
like in that area.
Even assuming the
incidents occurred inside the zones, the record does not suggest
that they involved speech within the scope of the escorts’
employment. If the speech was beyond the scope of their employment,
then each of the alleged incidents would violate the Act’s
express terms. Petitioners’ complaint would then be that the
police were failing to enforce the Act equally against clinic
escorts. Cf. Hoye v. City of Oakland, 653 F. 3d 835,
849–852 (CA9 2011) (finding selective enforcement of a
similar ordinance in Oakland, California). While such allegations
might state a claim of official viewpoint discrimination, that
would not go to the validity of the Act. In any event, petitioners
nowhere allege selective enforcement.
It would be a very
different question if it turned out that a clinic authorized
escorts to speak about abortion inside the buffer zones. See post,
at 1–2 (Alito, J., concurring in judgment). In that case, the
escorts would not seem to be violating the Act because the speech
would be within the scope of their employment.[
3] The Act’s exemption for clinic employees
would then facilitate speech on only one side of the abortion
debate—a clear form of viewpoint discrimination that would
support an as-applied challenge to the buffer zone at that clinic.
But the record before us contains insufficient evidence to show
that the exemption operates in this way at any of the clinics,
perhaps because the clinics do not want to doom the Act by allowing
their employees to speak about abortion within the buffer
zones.[
4]
We thus conclude that
the Act is neither content nor viewpoint based and therefore need
not be analyzed under strict scrutiny.
IV
Even though the Act
is content neutral, it still must be “narrowly tailored to
serve a significant governmental interest.” Ward, 491
U. S., at 796 (internal quotation marks omitted). The
tailoring requirement does not sim-ply guard against an
impermissible desire to censor. The government may attempt to
suppress speech not only because it disagrees with the message
being expressed, but also for mere convenience. Where certain
speech is associated with particular problems, silencing the speech
is sometimes the path of least resistance. But by demanding a close
fit between ends and means, the tailoring requirement prevents the
government from too readily “sacrific[ing] speech for
efficiency.” Riley v. National Federation of Blind of
N. C., Inc., 487 U. S. 781, 795 (1988) .
For a content-neutral
time, place, or manner regulation to be narrowly tailored, it must
not “burden substantially more speech than is necessary to
further the government’s legitimate interests.” Ward,
491 U. S., at 799. Such a regulation, unlike a content-based
restriction of speech, “need not be the least restrictive or
least intrusive means of” serving the government’s
interests. Id., at 798. But the government still “may not
regulate expression in such a manner that a substantial portion of
the burden on speech does not serve to advance its goals.”
Id., at 799.
A
As noted, respondents
claim that the Act promotes “public safety, patient access to
healthcare, and the unobstructed use of public sidewalks and
roadways.” Brief for Respondents 27. Petitioners do not
dispute the significance of these interests. We have, moreover,
previously recognized the legitimacy of the government’s
interests in “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.” Schenck v. Pro-Choice Network
ofWestern N. Y., 519 U. S. 357, 376 (1997) . See also Madsen
v. Women’s Health Center, Inc., 512 U. S. 753 –768
(1994). The buffer zones clearly serve these interests.
At the same time, the
buffer zones impose serious burdens on petitioners’ speech.
At each of the three Planned Parenthood clinics where petitioners
attempt to counsel patients, the zones carve out a significant
portion of the adjacent public sidewalks, pushing petitioners well
back from the clinics’ entrances and driveways. The zones
thereby compromise petitioners’ ability to initiate the
close, personal conversations that they view as essential to
“sidewalk counseling.”
For example, in
uncontradicted testimony, McCullen explained that she often cannot
distinguish patients from passersby outside the Boston clinic in
time to initiate a conversation before they enter the buffer zone.
App. 135. And even when she does manage to begin a discussion
outside the zone, she must stop abruptly at its painted border,
which she believes causes her to appear “untrustworthy”
or “suspicious.” Id., at 135, 152. Given these
limitations, McCullen is often reduced to raising her voice at
patients from outside the zone—a mode of communication
sharply at odds with the compassionate message she wishes to
convey. Id., at 133, 152–153. Clark gave similar testimony
about her experience at the Worcester clinic. Id., at
243–244.
These burdens on
petitioners’ speech have clearly taken their toll. Although
McCullen claims that she has persuaded about 80 women not to
terminate their pregnancies since the 2007 amendment, App. to Pet.
for Cert. 42a, she also says that she reaches “far fewer
people” than she did before the amendment, App. 137. Zarrella
reports an even more precipitous decline in her success rate: She
estimated having about 100 successful interactions over the years
before the 2007 amendment, but not a single one since. Id., at 180.
And as for the Worcester clinic, Clark testified that “only
one woman out of 100 will make the effort to walk across [the
street] to speak with [her].” Id., at 217.
The buffer zones have
also made it substantially more difficult for petitioners to
distribute literature to arriving patients. As explained, because
petitioners in Boston cannot readily identify patients before they
enter the zone, they often cannot approach them in time to place
literature near their hands—the most effective means of
getting the patients to accept it. Id., at 179. In Worcester and
Springfield, the zones have pushed petitioners so far back from the
clinics’ driveways that they can no longer even attempt to
offer literature as drivers turn into the parking lots. Id., at
213, 218, 252–253. In short, the Act operates to deprive
petitioners of their two primary methods of communicating with
patients.
The Court of Appeals
and respondents are wrong to downplay these burdens on
petitioners’ speech. As the Court of Appeals saw it, the
Constitution does not accord “special protection” to
close conversations or “handbilling.” 571 F. 3d,
at 180. But while the First Amendment does not guarantee a speaker
the right to any particular form of expression, some
forms—such as normal conversation and leafletting on a public
sidewalk—have historically been more closely associated with
the transmission of ideas than others.
In the context of
petition campaigns, we have observed that “one-on-one
communication” is “the most effective, fundamental, and
perhaps economical avenue of political discourse.” Meyer v.
Grant, 486 U. S. 414, 424 (1988) . See also Schenck, supra, at
377 (invalidating a “floating” buffer zone around
people entering an abortion clinic partly on the ground that it
prevented protestors “from communicating a message from a
normal conversational distance or handing leaflets to people
entering or leaving the clinics who are walking on the public
sidewalks”). And “handing out leaflets in the advocacy
of a politically controversial viewpoint . . . is the
essence of First Amendment expression”; “[n]o form of
speech is entitled to greater constitutional protection.”
McIntyre v. Ohio Elections Comm’n, 514 U. S. 334, 347
(1995) . See also Schenck, supra, at 377 (“Leafletting and
commenting on matters of public concern are classic forms of speech
that lie at the heart of the First Amendment”). When the
government makes it more difficult to engage in these modes of
communication, it imposes an especially significant First Amendment
burden.[
5]
Respondents also
emphasize that the Act does not prevent petitioners from engaging
in various forms of “protest”—such as chanting
slogans and displaying signs—outside the buffer zones. Brief
for Respondents 50–54. That misses the point. Petitioners are
not protestors. They seek not merely to express their opposition to
abortion, but to inform women of various alternatives and to
provide help in pursuing them. Petitioners believe that they can
accomplish this objective only through personal, caring, consensual
conversations. And for good reason: It is easier to ignore a
strained voice or a waving hand than a direct greeting or an
outstretched arm. While the record indicates that petitioners have
been able to have a number of quiet conversations outside the
buffer zones, respondents have not refuted petitioners’
testimony that the conversations have been far less frequent and
far less successful since the buffer zones were instituted. It is
thus no answer to say that petitioners can still be “seen and
heard” by women within the buffer zones. Id., at 51–53.
If all that the women can see and hear are vociferous opponents of
abortion, then the buffer zones have effectively stifled
petitioners’ message.
Finally, respondents
suggest that, at the Worcester and Springfield clinics, petitioners
are prevented from communicating with patients not by the buffer
zones but by the fact that most patients arrive by car and park in
the clinics’ private lots. Id., at 52. It is true that the
layout of the two clinics would prevent petitioners from
approaching the clinics’ doorways, even without the buffer
zones. But petitioners do not claim a right to trespass on the
clinics’ property. They instead claim a right to stand on the
public sidewalks by the driveway as cars turn into the parking lot.
Before the buffer zones, they could do so. Now they must stand a
substantial distance away. The Act alone is responsible for that
restriction on their ability to convey their message.
B
1
The buffer zones
burden substantially more speech than necessary to achieve the
Commonwealth’s asserted interests. At the outset, we note
that the Act is truly exceptional: Respondents and their amici
identify no other State with a law that creates fixed buffer zones
around abortion clinics.[
6]
That of course does not mean that the law is invalid. It does,
however, raise concern that the Commonwealth has too readily
forgone options that could serve its interests just as well,
without substantially burdening the kind of speech in which
petitioners wish to engage.
That is the case here.
The Commonwealth’s interests include ensuring public safety
outside abortion clinics, preventing harassment and intimidation of
patients and clinic staff, and combating deliberate obstruction of
clinic entrances. The Act itself contains a separate provision,
subsection (e)—unchallenged by petitioners—that
prohibits much of this conduct. That provision subjects to criminal
punishment “[a]ny person who knowingly obstructs, detains,
hinders, impedes or blocks another person’s entry to or exit
from a reproductive health care facility.” Mass. Gen. Laws,
ch. 266, §120E½(e).[
7] If Massachusetts determines that broader prohibitions
along the same lines are necessary, it could enact legislation
similar to the federal Freedom of Access to Clinic Entrances Act of
1994 (FACE Act), 18 U. S. C. §248(a)(1), which
subjects to both criminal and civil penalties anyone who “by
force or threat of force or by physical obstruction, intentionally
injures, intimidates or interferes with or attempts to injure,
intimidate or interfere with any person because that person is or
has been, or in order to intimidate such person or any other person
or any class of persons from, obtaining or providing reproductive
health services.” Some dozen other States have done so. See
Brief for State of New York et al. as Amici Curiae 13, and
n. 6. If the Commonwealth is particularly concerned about
harassment, it could also consider an ordinance such as the one
adopted in New York City that not only prohibits obstructing access
to a clinic, but also makes it a crime “to follow and harass
another person within 15 feet of the premises of a reproductive
health care facility.” N. Y. C. Admin. Code
§8–803(a)(3) (2014).[
8]
The Commonwealth points
to a substantial public safety risk created when protestors
obstruct driveways leading to the clinics. See App. 18, 41, 51,
88–89, 99, 118–119. That is, however, an example of its
failure to look to less intrusive means of addressing its concerns.
Any such obstruction can readily be addressed through existing
local ordinances. See, e.g., Worcester, Mass., Revised Ordinances
of 2008, ch. 12, §25(b) (“No person shall stand, or
place any obstruction of any kind, upon any street, sidewalk or
crosswalk in such a manner as to obstruct a free passage for
travelers thereon”); Boston, Mass., Municipal Code, ch.
16–41.2(d) (2013) (“No person shall solicit while
walking on, standing on or going into any street or highway used
for motor vehicle travel, or any area appurtenant thereto
(including medians, shoulder areas, bicycle lanes, ramps and exit
ramps)”).
All of the foregoing
measures are, of course, in addition to available generic criminal
statutes forbidding assault, breach of the peace, trespass,
vandalism, and the like.
In addition, subsection
(e) of the Act, the FACE Act, and the New York City anti-harassment
ordinance are all enforceable not only through criminal
prosecutions but also through public and private civil actions for
injunctions and other equitable relief. See Mass. Gen. Laws
§120E½(f); 18 U. S. C. §248(c)(1);
N. Y. C. Admin. Code §§8–804,
8–805. We have previously noted the First Amendment virtues
of targeted injunctions as alternatives to broad, prophylactic
measures. Such an injunction “regulates the activities, and
perhaps the speech, of a group,” but only “because of
the group’s past actions in the context of a specific dispute
between real parties.” Madsen, 512 U. S., at 762
(emphasis added). Moreover, given the equitable nature of
injunctive relief, courts can tailor a remedy to ensure that it
restricts no more speech than necessary. See, e.g., id., at 770;
Schenck, 519 U. S., at 380–381. In short, injunctive
relief focuses on the precise individuals and the precise conduct
causing a particular problem. The Act, by contrast, categorically
excludes non-exempt individuals from the buffer zones,
unnecessarily sweeping in innocent individuals and their
speech.
The Commonwealth also
asserts an interest in preventing congestion in front of abortion
clinics. According to respondents, even when individuals do not
deliberately obstruct access to clinics, they can inadvertently do
so simply by gathering in large numbers. But the Commonwealth could
address that problem through more targeted means. Some localities,
for example, have ordinances that require crowds blocking a clinic
entrance to disperse when ordered to do so by the police, and that
forbid the individuals to reassemble within a certain distance of
the clinic for a certain period. See Brief for State of New York
et al. as Amici Curiae 14–15, and n. 10. We upheld
a similar law forbidding three or more people
“ ‘to congregate within 500 feet of [a foreign
embassy], and refuse to disperse after having been ordered so to do
by the police,’ ” Boos, 485 U. S., at 316
(quoting D. C. Code §22–1115 (1938))—an order
the police could give only when they “ ‘reasonably
believe[d] that a threat to the security or peace of the embassy
[was] present,’ ” 485 U. S., at 330 (quoting
Finzer v. Barry, 798 F. 2d 1450, 1471 (CADC 1986)).
And to the extent the
Commonwealth argues that even these types of laws are ineffective,
it has another problem. The portions of the record that respondents
cite to support the anticongestion interest pertain mainly to one
place at one time: the Boston Planned Parenthood clinic on Saturday
mornings. App. 69–71, 88–89, 96, 123. Respondents point
us to no evidence that individuals regularly gather at other
clinics, or at other times in Boston, in sufficiently large groups
to obstruct access. For a problem shown to arise only once a week
in one city at one clinic, creating 35-foot buffer zones at every
clinic across the Commonwealth is hardly a narrowly tailored
solution.
The point is not that
Massachusetts must enact all or even any of the proposed measures
discussed above. The point is instead that the Commonwealth has
available to it a variety of approaches that appear capable of
serving its interests, without excluding individuals from areas
historically open for speech and debate.
2
Respondents have but
one reply: “We have tried other approaches, but they do not
work.” Respondents emphasize the history in Massachusetts of
obstruction at abortion clinics, and the Commonwealth’s
allegedly failed attempts to combat such obstruction with
injunctions and individual prosecutions. They also point to the
Commonwealth’s experience under the 2000 version of the Act,
during which the police found it difficult to enforce the six-foot
no-approach zones given the “frenetic” activity in
front of clinic entrances. Brief for Respondents 43. According to
respondents, this history shows that Massachusetts has tried less
restrictive alternatives to the buffer zones, to no avail.
We cannot accept that
contention. Although respondents claim that Massachusetts
“tried other laws already on the books,” id., at 41,
they identify not a single prosecution brought under those laws
within at least the last 17 years. And while they also claim that
the Commonwealth “tried injunctions,” ibid., the last
injunctions they cite date to the 1990s, see id., at 42 (citing
Planned Parenthood League of Mass., Inc. v. Bell, 424 Mass. 573,
677 N. E. 2d 204 (1997); Planned Parenthood League of Mass.,
Inc. v. Operation Rescue, 406 Mass. 701, 550 N. E. 2d 1361
(1990)). In short, the Commonwealth has not shown that it seriously
undertook to address the problem with less intrusive tools readily
available to it. Nor has it shown that it considered different
methods that other jurisdictions have found effective.
Respondents contend
that the alternatives we have discussed suffer from two defects:
First, given the “widespread” nature of the problem, it
is simply not “practicable” to rely on individual
prosecutions and injunctions. Brief for Respondents 45. But far
from being “widespread,” the problem appears from the
record to be limited principally to the Boston clinic on Saturday
mornings. Moreover, by their own account, the police appear
per-fectly capable of singling out lawbreakers. The legislative
testimony preceding the 2007 Act revealed substantial police and
video monitoring at the clinics, especially when large gatherings
were anticipated. Captain Evans testified that his officers are so
familiar with the scene outside the Boston clinic that they
“know all the players down there.” App. 69. And
Attorney General Coakley relied on video surveillance to show
legislators conduct she thought was “clearly against the
law.” Id., at 78. If Commonwealth officials can compile an
extensive record of obstruction and harassment to support their
preferred legislation, we do not see why they cannot do the same to
support injunctions and prosecutions against those who might
deliberately flout the law.
The second supposed
defect in the alternatives we have identified is that laws like
subsection (e) of the Act and the federal FACE Act require a
showing of intentional or deliberate obstruction, intimidation, or
harassment, which is often difficult to prove. Brief for
Respondents 45–47. As Captain Evans predicted in his
legislative testimony, fixed buffer zones would “make our job
so much easier.” App. 68.
Of course they would.
But that is not enough to satisfy the First Amendment. To meet the
requirement of narrow tailoring, the government must demonstrate
that alternative measures that burden substantially less speech
would fail to achieve the government’s interests, not simply
that the chosen route is easier. A painted line on the sidewalk is
easy to enforce, but the prime objective of the First Amendment is
not efficiency. In any case, we do not think that showing
intentional obstruction is nearly so difficult in this context as
respondents suggest. To determine whether a protestor intends to
block access to a clinic, a police officer need only order him to
move. If he refuses, then there is no question that his continued
conduct is knowing or intentional.
For similar reasons,
respondents’ reliance on our decision in Burson v. Freeman is
misplaced. There, we upheld a state statute that established
100-foot buffer zones outside polling places on election day within
which no one could display or distribute campaign materials or
solicit votes. 504 U. S., at 193–194. We approved the
buffer zones as a valid prophylactic measure, noting that existing
“[i]ntimidation and interference laws fall short of serving a
State’s compelling interests because they ‘deal with
only the most blatant and specific attempts’ to impede
elections.” Id., at 206–207 (quoting Buckley v. Valeo,
424 U. S. 1, 28 (1976) (per curiam)). Such laws were
insufficient because “[v]oter intimidation and election fraud
are . . . difficult to detect.” Burson, 504
U. S., at 208. Obstruction of abortion clinics and harassment
of patients, by contrast, are anything but subtle.
We also noted in Burson
that under state law, “law enforcement officers generally are
barred from the vicinity of the polls to avoid any appearance of
coercion in the electoral process,” with the result that
“many acts of interference would go undetected.” Id.,
at 207. Not so here. Again, the police maintain a significant
presence outside Massachusetts abortion clinics. The buffer zones
in Burson were justified because less restrictive measures were
inadequate. Respondents have not shown that to be the case
here.
Given the vital First
Amendment interests at stake, it is not enough for Massachusetts
simply to say that other approaches have not worked.[
9]
* * *
Petitioners wish to
converse with their fellow citizens about an important subject on
the public streets and sidewalks—sites that have hosted
discussions about the issues of the day throughout history.
Respondents assert undeniably significant interests in maintaining
public safety on those same streets and sidewalks, as well as in
preserving access to adjacent healthcare facilities. But here the
Commonwealth has pursued those interests by the extreme step of
closing a substantial portion of a traditional public forum to all
speakers. It has done so without seriously addressing the problem
through alternatives that leave the forum open for its time-honored
purposes. The Commonwealth may not do that consistent with the
First Amendment.
The judgment of the
Court of Appeals for the First Circuit is reversed, and the case is
remanded for further proceedings consistent with this opinion.
It is so ordered.