Massachusetts Law Limiting Pro-Life Free Speech Should Go to Supreme Court

State   |   Steven Ertelt   |   Jan 1, 2009   |   9:00AM   |   WASHINGTON, DC

Massachusetts Law Limiting Pro-Life Free Speech Should Go to Supreme Court

by Steven Ertelt Editor
December 2
, 2009

Boston, MA ( — A Massachusetts law that limits the free speech rights of pro-life advocates should go to the Supreme Court, a pro-life law firm says. The Life Legal Defense Foundation filed an amicus brief Tuesday urging the U.S. Supreme Court to take up the case of a Massachusetts law severely restricting pro-life speech activity.

In McCullen v. Coakley, the pro-life law firm is challenging the constitutionality of a 2007 law making it a crime to "enter or remain" on public sidewalks within 35 feet of abortion facilities.

The law contains exceptions for abortion center patients , law enforcement, persons passing through the zone, and abortion center employees "acting in the scope of their employment."

Last July, the First Circuit Court of Appeals ruled that the law is constitutional, and the pro-life plaintiffs filed a petition in the Supreme Court.

LLDF filed the amicus ("friend of the court") brief on behalf of itself and Pastor Walter Hoye, who earlier this year was convicted of violating an Oakland ordinance limiting speech around abortion centers.

The brief first takes issue with the law’s focus solely on abortion centers.

The First Circuit’s justification for this narrow focus, namely that "abortion protesters are particularly aggressive and patients particularly vulnerable" at abortion clinics, is itself an unconstitutional content and viewpoint based distinction.

"As long as cities and states can single out abortion clinic locales for special speech restrictions, the brief warns, they will impose more stringent restrictions than they would dare to do if the law were more generally applied," the group told today.

The brief also addresses the First Circuit’s "staggeringly counterintuitive" conclusion that the law’s exception for abortion center workers is neutral and does not distinguish between different ideologies.

"Drawing on LLDF’s and Hoye’s experience with the Oakland law, the brief shows that clinic employees and escorts invariably use their privileged position under the law to get across their ideological message of urging women to ignore sidewalk counselors offering alternatives and instead enter the clinic for their abortions," the group added.

"Ten years has passed since the Supreme Court’s disastrous decision in Hill v. Colorado, upholding Colorado’s ‘Mother May I’ law," says LLDF Legal Director Katie Short. "It is time for the Court to face up to the damage that Hill wrought and restore the full protection of the First Amendment to pro-life advocates."

Attorneys with the Alliance Defense Fund filed a lawsuit in federal court in January 2008 saying the law essentially eliminates free speech rights within the zone by restricting pro-life advocates from sharing their message with people entering.

The law updated a 2000 statute that established a floating buffer zone, which police and abortion centers said was difficult to enforce.

U.S. District Judge Joseph Tauro rejected the pro-life lawsuit in August 2008 that the law did not regulate speech but only the location where the speech could occur — and the appeals court upheld that decision last week.

Massachusetts Gov. Deval Patrick signed the measure creating the zone into law on November 13, 2007.

Anyone charged with violating the ordinance would face a fine of up to $500 and three months in jail. Repeat offenders face fines of up to $5,000 and 2 1/2 years in prison.

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