First Circuit upholds law requiring ‘buffer zone’ for abortion clinic protesters

First Circuit upholds law requiring ‘buffer zone’ for abortion clinic protesters

[JURIST] A federal appeals court Wednesday upheld [opinion, PDF] a Massachusetts law [text] prohibiting people from protesting directly outside of abortion clinics. The US Court of Appeals for the First Circuit [official website] ruled that the law, which creates a 35-foot buffer zone around entrances and exits of reproductive health clinics, was a reasonable response to a significant threat to public safety. The challenge to the statute alleged a First Amendment [Cornell LII backgrounder] violation, but the court rejected that claim, affirming the district court's decision [opinion, PDF] and holding that the law merely regulated the time, place and manner in which speech may occur. The court reasoned:

The correct inquiry is whether, in light of the totality of the circumstances, a time-place-manner regulation burdens substantially more speech than necessary and, concomitantly, whether such a regulation leaves open adequate alternative channels of communication. … [T]he 2007 Act places no burden at all on the plaintiffs' activities outside the 35-foot buffer zone. They can speak, gesticulate, wear screen-printed T-shirts, display signs, use loudspeakers, and engage in the whole gamut of lawful expressive activities. Those messages may be seen and heard by individuals entering, departing, or within the buffer zone. … Any willing listener is at liberty to leave the zone, approach those outside it, and request more information.

The suit was brought against Massachusetts Attorney General Martha Coakley [official profile] by parties "who regularly engage in pro-life counseling" outside clinics. Among other arguments, the plaintiffs contended that, while the statute was facially content-neutral, the restrictions were enacted to curb anti-abortion speech and are based on evidence from biased sources.

Threats against abortion clinics and employees have been a longstanding concern. In the wake of the shooting of abortion doctor George Tiller [BBC report], US Attorney General Eric Holder enlisted the US Marshal Service [official websites] to offer protection [JURIST report] to other at-risk people and facilities throughout the country. Tiller's clinic, where he performed late-term abortions, was bombed in 1985 and the doctor was shot twice in 1993. Last year, the Ninth Circuit ruled [JURIST report] that the First Amendment protected an anti-abortion group's right to display graphic pictures of early-term aborted fetuses outside of a California middle school.