Even though an Act is content neutral, it still must be narrowly tailored to serve a significant governmental interest to comply with the First Amendment. The tailoring requirement does not simply guard against an impermissible desire to censor. By demanding a close fit between ends and means, the tailoring requirement prevents the government from too readily sacrificing speech for efficiency.
In 2007, Massachusetts amended its Reproductive Health Care Facilities Act, which had been enacted in 2000 to address clashes between abortion opponents and advocates of abortion rights outside clinics where abortions were performed. The amended version of the Act made it a crime to knowingly stand on a “public way or sidewalk” within 35 feet of an entrance or driveway to any “reproductive health care facility,” defined as “a place, other than within or upon the grounds of a hospital, where abortions are offered or performed.” The Act exempted from this prohibition four classes of individuals, including “employees or agents of such facility acting within the scope of their employment.” Another provision of the Act proscribed the knowing obstruction of access to an abortion clinic. In light of these developments, McCullen and the other petitioners (collectively, the “petitioners”)- who used to attempt to engage women approaching Massachusetts abortion clinics in “sidewalk counseling” – argued that the 35-foot buffer zones have displaced them from their previous positions outside the clinics, considerably hampering their counseling efforts. Moreover, the petitioners contended that their attempts to communicate with patients were thwarted by clinic escorts who accompany arriving patients through the buffer zones to the clinic entrances. Consequently, they sued Attorney General Coakley and other Commonwealth officials, seeking to enjoin the Act's enforcement on the ground that it violated the First and Fourteenth Amendments, both on its face and as applied to them. The District Court denied both challenges, and the First Circuit affirmed. With regard to petitioners' facial challenge, the First Circuit held that the Act was a reasonable “time, place, and manner” regulation under the test set forth in Ward v. Rock Against Racism.
Did Massachusetts’ amended version of the Reproductive Health Care Facilities Act violate the rights guaranteed by the First and Fourteenth Amendments?
The Court held that The Massachusetts Act violated the First Amendment. According to the Court, by its very terms, the Act restricted access to public ways and si0dewalks - places that have traditionally been open for speech activities and that the Court has accordingly labeled “traditional public fora. The Court opined that the government's ability to regulate speech in such locations is very limited. In the case at bar, the Court ruled that the statute was not narrowly tailored to serve significant governmental interests where the zones compromised the petitioners' abilities to engage in sidewalk counseling and distribute literature to arriving patients. The Court averred that the commonwealth had a variety of approaches available that appeared capable of serving its interests without excluding the opponents from areas historically open for speech and debate. The Court concluded that it was not enough for the commonwealth to say that other approaches had not worked.