Today a unanimous Supreme Court, in MCCULLEN ET AL. v. COAKLEY, ATTORNEY GENERAL OF MASSACHUSETTS, struck down the Massachusetts “Bubble Zone” law, keeping pro-life protestors 35 feet away from abortion clinics, as a violation of the First Amendment. That is a good thing. The bad thing is that it was authored by Chief Justice John Roberts, and I will let Justice Scalia explain what a limited victory for the pro-life cause this is, and what a disappointment it is that the Chief Justice wrote it.
JUSTICE SCALIA, with whom JUSTICE KENNEDY and JUSTICE THOMAS join, concurring in the judgment.
Today’s opinion carries forward this Court’s practice of giving abortion-rights advocates a pass when it comes to suppressing the free-speech rights of their opponents. There is an entirely separate, abridged edition of the First Amendment applicable to speech against abortion. See, e.g., Hill v. Colorado, 530 U.S. 703 (2000); Madsen v. Women’s Health Center, Inc., 512 U.S. 753 (1994).
The second half of the Court’s analysis today, invalidating the law at issue because of inadequate “tailoring,” is certainly attractive to those of us who oppose an abortion-speech edition of the First Amendment . But think again. This is an opinion that has Something for Everyone, and the more significant portion continues the onward march of abortion-speech-only jurisprudence. That is the first half of the Court’s analysis, which concludes that a statute of this sort is not content based and hence not subject to so-called strict scrutiny. The Court reaches out to decide that question unnecessarily-or at least unnecessarily insofar as legal analysis is concerned.
I disagree with the Court’s dicta (Part III) and hence see no reason to opine on its holding (Part IV). Continue Reading