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.

 

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