"From Stettin in the Baltic to Trieste in the Adriatic, an iron curtain has descended across the Continent. ... I repulse the idea that a new war is inevitable; still more that it is imminent. It is because I am sure that our fortunes are still in our own hands and that we hold the power to save the future, that I feel the duty to speak out now that I have the occasion and the opportunity to do so." (1)
CONTENTS Introduction I. The Clash Between Public Necessity and Free Speech II. Heightened Scrutiny: Striking the Balance III. Buffer Zones: Implementing the Balance by Factoring in History A. Labor-Protest Laws B. Polling-Place Buffer Zones C. Political Protest and Security Measures Buffer Zones D. Buffer Zones Targeting an "Evil" that Necessarily Impedes Governmental Interests E. Funeral-Protest Buffer Zones F. Abortion-Clinic Buffer Zones G. In Summary IV. Why "Generality vs. Specificity" Does Not Quite Cut It A. The Court Contradicts Precedential Emphasis on Histories of Disruption B. The Specificity Requirement Undercuts the Necessity Inquiry V. Assessing Necessity by Weighing Histories of Disruption A. The Extent of the Law's History B. The Degree to Which the Disruption Impedes upon a Right or Interest Conclusion Introduction
Not unlike military buffer zones, free-speech buffer zones "create an area of separation" (2) to alleviate tension between conflicting rights. Many argue that buffer zones act as a sort of "Iron Curtain" (3) through which government interests wrongfully prevail over a constitutional command that is "the matrix, the indispensable condition" of United States democracy. (4) But because the Constitution also reflects the principles of privacy, human dignity, and public order, others argue that something has got to give. (5)
The Supreme Court had occasion to elaborate on this breaking point in McCullen v. Coakley. (6) For decades, Massachusetts has been a "battleground state" (7) in which antiabortion protestors have wielded obstruction, harassment, intimidation, and sometimes even violence to purposefully prevent women from obtaining access to medical care. (8) Massachusetts' battle began in the early 1980s when Problem Pregnancy, Inc., an antiabortion group, moved into the same building as Planned Parenthood, adopted the same logo, and attempted to lure clinic patients into their office. (9) Later that same decade, the fight picked up pace when "Operation Rescue" (10) first targeted Massachusetts clinics. (11) Its members threatened, intimidated, and coerced clinic patients and employees. (12) They obstructed access to clinics by standing or lying in front of entrances and often chained themselves to doors, one another, or, in at least one case, a toilet. (13) They even set up decoys to trick the police and clinic workers. (14) As a result, women frequently sacrificed medical treatment, (15) police were often overburdened, (16) and courts constantly imposed and enforced injunctions to prevent such disruption. (17) One incident, in particular, grabbed the nation's attention. (18) On December 30, 1994, a gunman "dressed in black" calmly walked into two abortion clinics in Greater Boston, asked each of the receptionists whether he was in the right place, pulled a rifle out of a duffel bag, and sprayed the clinics with gunfire, leaving two dead and five wounded. (19)
The problems confronting Massachusetts were part of a greater "history of violence around abortion clinics" nationwide. (20) To respond to this problem, the Massachusetts legislature implemented and revised buffer zones around its reproductive health care facilities. (21) In November of 2007, the legislature determined that the Massachusetts Reproductive Health Care Facilities Act (22) struck the proper balance between ensuring public safety and protecting free speech. (23) The Act's buffer zone prohibited any person from "knowingly entering] or remaining] on a public way or sidewalk" within a thirty-five-foot semicircle around entrances, exits, and driveways at reproductive health care facilities. (24) The legislature determined that this more stringent buffer zone was "necessary to address" the continuing disruption. (25) But this buffer was "truly exceptional," in that it was the only statutorily imposed fixed buffer zone around abortion clinics. (26)
Led by a five-foot tall, seventy-seven-year-old grandmother, a group of "sidewalk counselors" brought the fight to federal court. (27) Both the district court and the First Circuit held that the Act was not an unconstitutional infringement on free speech. (28) Regarding the history of disruption (29) that prefaced the Act, the courts explained that Massachusetts "faced significant public safety problems" and that "a 35-foot fixed buffer zone was immediately necessary to protect public safety and ensure patient access to clinics." (30) The Supreme Court, however, unanimously reversed. (31) Applying intermediate scrutiny, (32) the Court held that the Act was not narrowly tailored, (33) emphasized the serious burden on the sidewalk counselor's speech, (34) and admonished the breadth of the buffer zone. (35) This conclusion was neither unsound nor surprising. (36)
What is unsettling, however, is the Court's analysis of the history of disruption that faced Massachusetts abortion clinics. The Court stated that "far from being 'widespread,' the problem appears from the record to be limited principally to the Boston clinic on Saturday mornings"; that the record supports Massachusetts' interest for only "one place at one time"; and that the broad statute failed to "focus on the precise individuals and the precise conduct causing a particular problem." (37) In doing so, the Court suggested that only history specific to the conduct, places, and persons restricted can inform legislative action. To state the inverse, broader problems that confront the nation as a whole cannot warrant restrictions on speech. This Note argues that the Court's subtle suggestion that a broader history of disruption cannot justify buffer zones contradicts precedent, departs from the concept of necessity, and misleads courts and legislators.
Part I poses a question that is not at all uncommon: precisely when can legislators restrict free speech in order to protect public safety and order? It explains that lawmakers and courts struggle to balance two values, each of which is cherished by the United States legal system. On the one hand, freedom of speech is "indispensable" to United States democracy. (38) On the other, it is the government's duty to provide safety, order, and security to its citizenry. Part II discusses the mechanism through which courts measure whether a law strikes the appropriate balance between these two competing values. That balancing instrument, heightened scrutiny, (39) asks whether the law has a sufficient means-end fit to the government's goal. It considers the legitimacy of the government's interest, the amount of speech burdened by the law, and how necessary the law is. At its best, heightened scrutiny prevents lawmakers from lowering an iron curtain that stifles the free flow of ideas while also giving them sufficient leeway to deal with the problems that confront them. This Note focuses exclusively on necessity because it allows courts to consider the history of disruption motivating a given buffer-zone law.
Part III defines "buffer zone," analyzes First Amendment challenges to buffer zones, and points out that results in buffer-zone cases often turn on a law's necessity. It argues that courts look to two factors when asking whether a given law is necessary: (1) the extent of the law's history of disruption; and (2) the degree to which the disruption impedes upon the government's interest. Although the Court has recently framed this issue as one of specificity, neither its cases nor the concept of necessity compels the notion that lawmakers cannot impose buffer zones as a way of combatting broader problems.
Part IV argues that the Court has unwittingly narrowed its inquiry. Precedent demonstrates that the Court often considers broader problems confronted by legislatures. Further, heightened scrutiny requires courts to consider all relevant factors to determine whether a law strikes the appropriate balance. By failing to factor in histories that confront other legislatures, the Court frustrates the goal of heightened scrutiny and its necessity element.
Echoing the factors discussed in Part III, Part V proposes that courts and lawmakers look to two factors to help determine whether a given law is necessary. First, they should evaluate the extent of the law's history of disruption. To do this, they should ask whether the history is pervasive, whether it is egregious, whether it calls for immediate action, and whether it is particular. Second, courts and lawmakers should examine the degree to which the disruption impedes upon the government's interest. If logic dictates that the government cannot advance its interest so long as the prohibited conduct persists, then the government does not need to show that its interests have historically been harmed.
The Clash Between Public Necessity and Free Speech
The clash between the value of free speech and importance of maintaining order--"a problem [that is] 'as persistent as it is perplexing'"--has long troubled the United States legal system. (40) On the one hand, the First Amendment provides that the government "shall make no law ... abridging the freedom of speech." (41) Free speech is fundamental (42) not only to individual liberty but also to the preservation and flourishing of United States democracy.  Without it, the individual's "notion of self-respect" dwindles, (44) and society cannot evolve toward a "livelier impression of truth." (45) Even "offensive or disagreeable" (46) speech holds an important place in public discourse because people can and should simply "avert their eyes" (47) and because disagreeable...