Sunday, July 23, 2017

Even Unanimous Decisions on the Supreme Court are Political (Part III)

Consider the 2014 case McMullen v. Coakley as another example of a politically motivated unanimous decision. A Massachusetts statute (Massachusetts Reproductive Health Care Facilities Act – MRHCFA) made it a crime to knowingly stand on sidewalk within 35 feet of the entrance of a clinic or hospital that performs abortions. The Court upheld a similar Colorado law in Hill v. Colorado in 2000 (the buffer zone was much smaller). The purpose of the law was obvious: to prevent pro-life protestors from handing out information, counsel, or to further educate persons going to have an abortion. Massachusetts argues that the law was needed for safety purposes to prevent an escalation of violence. Some Massachusetts Planned Parenthood clinics even use “escorts” who help shield patients from pro-life supporters as they walk from their car to the clinic to suppress free speech further.

However, the majority of the majority (Chief Justice Roberts and the four Liberal Justices – Kagan, Sotomayor, Breyer, and Ginsburg) decided that MFHCFA did not regulate the “content” of speech. In other words, the law was not passed to stifle one group’s free speech (anti-abortion) at the expense of another group’s free speech (abortion). However, they decided the MFHCFA law was still unconstitutional because it regulated speech of any kind by placing barriers in free speech zones such as public streets and sidewalks. Does the majority truly believes that MFHCFA was passed for safety reasons and was content neutral on speech?

According to the majority view, Massachusetts had tried many other, less evasive, safety provisions and methods that failed before enacting MFHCFA. That being said, Massachusetts could not identify a single arrest over a 17 year period of using older, less evasive laws. If this is the case, then this should have refuted the majority’s claim the law was for safety purposes and not to regulate speech content. After all, why would Massachusetts need a more protective measure when there were no previous violations of older laws?

Scalia gave the minority view with Alito, Thomas, and Kennedy concurring. The minority agreed that MFHCFA was unconstitutional, but they go further and say the law was not content neutral and the Court should have overruled the Hill decision. Scalia argues first of all, MFHCFA only “burdens public spaces outside of abortion clinics” and that is obviously discriminatory towards anti-abortion speech. The majority’s position is analogous to “invoking the eight missed human targets of a shooter who has killed one victim to prove, not that he is guilty of attempted mass murder, but that he has bad aim.” Scalia further states that “Protecting people from speech they do not want to hear is not a function that the First Amendment allows the government to undertake in the public streets and sidewalks.” Scalia further contends the majority’s claim that escorts or clinic employees do not engage in pro-abortion speech in restricted areas - the Planned Parenthood website of the Boston clinic in question states: “Become a Clinic Escort Volunteer to provide a safe space for patients by escorting them through protestors to the health center.” The website defines “protestors” as “holding signs, trying to speak to patients entering the building, and distribute literature that can be misleading.” In other words, the job of the escort is to stifle free speech. The protestors are not defined on the website as being a safety concern. Scalia concludes by saying we now have a new test for free speech and the First Amendment: “Speech restrictions favoring one viewpoint over another are not content based unless it can be shown that the favored viewpoint has been expressed.”

Once again, I can speculate with confidence that the four liberal justices were going to dissent in this case and it would have been a 5-4 ruling striking down MFHCFA. However, Chief Justice Roberts got the liberals onto the majority opinion by offering them a concession that the law was not designed to be discriminatory, but it was content neutral for political reasons (nothing is more political these days then abortion discussions). However, such compromises have serious consequences as Scalia points out in his arguments: free speech rights have been mitigated by this decision, not enhanced as one may think by seeing a 9-0 decision in favor of free speech.

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