•  
  •  
 

Supreme Court Review

Article Title

Nonsense on Sidewalks: Content Discrimination in McCullen v Coakley

Abstract

What does it mean to say that the government may not “restrict expression because of its message, its ideas, its subject matter, or its content”? Whatever it means, how would one determine when it has occurred? First Amendment law has wrestled with these questions for more than forty years, and if McCullen v Coakley is a reliable indicator, the debates have only become more fractious. The Massachusetts Reproductive Health Care Facilities Act prohibited knowingly standing on a “public way or sidewalk” within thirty-five feet of the entrances or driveways of facilities, other than hospitals, where abortions were performed. The law exempted people entering or leaving a facility; facility employees “acting within the scope of their employment”; municipal agents, such as police officers, firefighters, and so forth, in the scope of their duties; and people crossing the sidewalk solely to reach a destination. The question for the Supreme Court was whether this law impermissibly discriminated against antiabortion speakers or merely maintained public safety and preserved access to health-care facilities. In this regard, the Court inquired into the purpose behind the law. A subsidiary question was, if the law served the latter goals, did it do so without treading too heavily on the expressive opportunities of antiabortion speakers. In this regard, the Court inquired into the effects of the law. These inquiries, into purpose and effects, are aspects of the standard First Amendment jurisprudence of “content discrimination,” a term that describes both the principle that targeting speech for its content is highly suspicious and the various doctrinal tools used to determine when that is happening. Ultimately, the Court, with the Chief Justice writing for a five-person majority, determined that the law had no discriminatory purpose, but its burdensome effects on speakers were not justified. In two concurrences in the judgment, Justice Scalia and Justice Alito also concluded that the law was unconstitutional but did so on the ground that it discriminated against antiabortion speech.

Full text not available in ChicagoUnbound.

Share

COinS