Less Pissed Off … But Still!

June 29, 2014

Less pissed off I am! I understand—and will try to explain—the majority decision in McMullen v. Coakley; still, the decision troubles me.

The First Amendment provides, expressly, that “Congress shall make no law … abridging the freedom of speech … .” (Not important, here, is the means by which the First Amendment applies to a law adopted by the Commonwealth of Massachusetts.) Political speech gets special protections, for the First Amendment was designed to protect it.

Time, place and manner restrictions are permissible. Justice Oliver Wendell Holmes, in Schenck v. United States, stated what seems obvious:  “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” So, in Massachusetts, the legislature mandated a 35-foot buffer around abortion provider facilities, as a means for protecting against documented violence and problems. The law was silent about speech within the buffer, and only provided exceptions for patients and employees.

Eleanor McMullen and others sued, claiming the law interfered with their free speech rights. The Court struck down the law 9-0, although there was a definite 5-4 split.

The majority, comprised of the Chief Justice and Justices Breyer, Ginsburg, Kagan, and Sotomayor, held that the Massachusetts law was “content-neutral,” not directed at any particular speech. True … but! Justice Scalia, writing for the other justices, said no, as the buffer zone addressed concerns—not his concerns, but concerns—about abortion opponents and their speech. If abortion opponents did not show up at clinics, there would likely not be buffer laws, which validates Justice Scalia’s point; nonetheless, the law says nothing about the nature of any speech within the zone or, for that matter, whether there is or is not speech at all.

“Content-neutral” laws do not get the “strict scrutiny” level of review by the Court. Still, the majority said, the law was not “narrowly tailored” because it “burden[s] substantially more speech than is necessary to further the government’s legitimate interests.” In simple terms, the Court took Massachusetts to task for not finding less restrictive means for addressing the problem that gave rise to the law. In this regard the Chief Justice mentioned laws that criminalize obstructing a clinic entrance, traffic ordinances, the fact that the court record reflected problems at only one clinic, one day a week, and the fact that Ms. McMullen and her fellow plaintiffs were not protesters.

According to the Court and the record below, the plaintiffs “seek not merely to express their opposition to abortion, but to engage in personal, caring, consensual conversations with women about various alternatives,” and to do so using “close, personal conversations and distribution of literature.” The Court calls it “sidewalk counseling.” (Note the word “consensual” in the list of adjectives. Apparently, a woman at a clinic to obtain an abortion can say not to Ms. McMullen. OK. Can Ms. McMullen try again? How many times? When does “consensual” become “it’s easier to talk with you, so go ahead?”)

So we live in a country where your right to counsel me must be protected, without regard for my interest in being counseled. Wow! The Court record talks about the plaintiffs’ success rate in changing women’s minds, and how it has fallen since the buffer law passed, noting that “[t]hese burdens on petitioners’ speech have clearly taken their toll.” Just wow!!!

There are several lessons from McMullen. First, the right does an excellent job in selecting its plaintiffs. This case gets decided differently if angry protesters sue, claiming they have been deprived of their right to yell and scream, although the ruling gives them, too, the right to yell and scream as of June 26, 2014 at about 10:15 a.m. , Eastern Daylight Time.

Second, facts and actions matter. The court record supports the outcome, which means the state did not, necessarily, handle the basics—what a friend would call “blocking and tackling”—well. Even in a case that is “law-centric,” facts matter.

Third, the Court once again reflects how out of touch it is with reality. The Chief Justice talks about the absence of prosecutions under other laws, and injunctive actions to prevent unlawful conduct. In this regard the Court does not seemingly appreciate the costs attendant to these actions. While it’s the state that must be involved, bringing these actions takes resources away from other activities. Further, actions engender reactions—here’s the state, picking on protesters—and situations escalate. Even in my world of civil matters, we routinely pass on lawsuits because the cure is worse than the disease.

That all said, I’m still flabbergasted by the notion that someone has the right—a Constitutional right, no less—to counsel a woman when she’s about to have a medical procedure. Justice Lewis Brandeis, long before he was on the Supreme Court, wrote about a “right of privacy” and, later, wrote a famous dissent in Olmstead v. United States, in which he discussed a “right to be let alone.” Now, these rights don’t apply directly here, as privacy rights give way—partially, at least—in public, and the “right to be let alone” to which Justice Brandeis referred in a dissent was a right to have the government leave you alone, not Eleanor McMullen and her pals. Still, I find deeply disturbing the notion that someone’s right to counsel me trumps my right to be left alone.

Some brief final thoughts. I mentioned Thursday night my ambivalent feelings about abortion, and my commitment to everyone minding his or her business. I believe Ms. McMullen should have the right to her position, and if she wants to change the law, that’s her right. Abortions will become less safe and no less common, but we live in a democracy and there is a political issue on which people have a right to be heard. That said, we go down a dangerous path when Ms. McMullen’s position gets advanced not in furtherance of changing any law but, instead, to persuade someone to change her behavior. To put it bluntly, “where does Eleanor McMullen get off …,” and why do her rights trump someone else’s rights? The Court was wrong here, not because of its analysis, but because of its basic premise.


NLRB v. Canning, the recess appointment case, demonstrates just how poorly our institutions serve us. The five-member majority—Breyer, Ginsburg, Kagan, Kennedy, and Sotomayor—held that if the Senate is in a pro forma session, however much that session may constitute an attempt to avoid a recess appointment, the Senate is not at recess. The Court held that the Senate has rules, and if it follows its rules, another branch of government is stuck with that fact. (The Court does not like separation of powers cases, which is why Speaker John Boehner’s “it’s coming soon” lawsuit against the president likely goes nowhere, fast.)

The concurring justices—Alito, Kennedy, Roberts, and Thomas—do not disagree, but would add that only a vacancy that first arises during a recess can be filled. Grammarians can have fun with this issue but it does not matter, for recess won’t be coming anytime soon.

The Canning decision cannot be easily argued with. Given the poor relations between President Obama and the Republicans, however, one must wonder if our Constitution is up to modern-day challenges. I think about that issue from time to time and, lo and behold, so does Jeffrey Toobin in The Court’s Constitutional Folly in Noel Canning, from the New Yorker on June 27.

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