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In 2014, the United States Supreme Court considered whether a Massachusetts statute that criminalized knowingly entering or remaining within a 35-foot radius of a health care facility that performs abortions violated the First Amendment.

Eleanor McCullen, the lead plaintiff, regularly stood outside of a Boston abortion clinic offering counseling to women who were seeking an abortion. Mrs. McCullen believed that protesting abortion with shouting or violence was counterproductive, and she believed that approaching people with an open demeanor, surrounding women with love, and offering counseling was a better method of speaking to women considering abortion.��

The Massachusetts statute made Mrs. McCullen’s counseling much more difficult, resulting in her mistaking passersby with women who were about to receive an abortion, having to raise her voice, or having to stop counseling a woman once she approached the painted buffer zone. All of this, Mrs. McCullen believed, hampered her ability to effectively counsel women about abortion alternatives.��

Mrs. McCullen and the other plaintiffs raised two arguments: (1) the Massachusetts statute violated the First Amendment because it impermissibly discriminated against speech on the basis of content by restricting only speech against abortion, and (2) the Massachusetts statute burdened more speech than necessary to further a legitimate government purpose.

The Supreme Court decided unanimously that the Massachusetts statute violated the First Amendment. The majority opinion by Chief Justice John Roberts rejected the first argument because it held that the Massachusetts buffer zone did not discriminate based on content or viewpoint. But even as a content-neutral regulation of speech, the Chief Justice noted that the statute must be “narrowly tailored to serve a significant governmental interest.” As the Chief Justice wrote:

The tailoring requirement does not simply guard against an impermissible desire to censor. The government may attempt to suppress speech not only because it disagrees with the message being expressed, but also for mere convenience. Where certain speech is associated with particular problems, silencing the speech is sometimes the path of least resistance. But by demanding a close fit between ends and means, the tailoring requirement prevents the government from too readily “sacrific[ing] speech for efficiency.”

The Court noted that one-on-one communication is the most effective form of communication for petitioning or advocating for a particular view in a public forum, such as a sidewalk. Therefore, the Court held that the statute imposed a significant burden on speech. Additionally, the Court held that the Massachusetts General Assembly had not legitimately considered other, less intrusive legislation that would still serve legitimate state concerns, such as intimidating employees and women seeking an abortion or destroying property. Because “[t]he buffer zones burden substantially more speech than necessary to achieve the Commonwealth’s asserted interests,” the statute was held unconstitutional.

In a concurring opinion, Justice Antonin Scalia (joined by Justice Anthony Kennedy and Justice Clarence Thomas) argued that the Massachusetts statute was a content-based restriction on speech and subject to strict scrutiny. Justice Samuel Alito also wrote a concurring opinion and argued that the statute imposed a viewpoint-based restriction on speech.

McCullen v. Coakley��represented a significant development in the protection of freedom of speech under the First Amendment. It holds that even content-neutral restrictions on speech must still satisfy certain limitations and that the government may not censor speech purely as a matter of convenience. The Eleanor H. McCullen Center for Law, Religion and Public Policy at ����ֱ�� University is proud to bear the name of such a hero for the cause of freedom of speech.