McGuire v. Reilly

United States Court of Appeals
For the First Circuit

No. 00-2492

MARY ANNE MCGUIRE ET AL.,

Plaintiffs, Appellees,

v.

THOMAS F. REILLY, ETC., ET AL.,

Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Edward F. Harrington, U.S. District Judge]

Before

Selya, Circuit Judge,

Coffin, Senior Circuit Judge,

and Lynch, Circuit Judge.

Patricia Correa, Assistant Attorney General, with whom
Thomas F. Reilly, Attorney General of Massachusetts, Adam Simms
and Elizabeth Frumkin, Assistant Attorneys General, were on
brief, for appellants.
Jennifer C. Jaff, Killian, Donohue & Shipman, LLC, and
Lucinda M. Finley on consolidated brief for Conn. Women's
Education and Legal Fund, National Abortion Federation, NOW
Legal Defense and Education Fund, Feminist Majority Foundation,
Voters for Choice, American Jewish Congress, Conn. NARAL, Conn.
Chapter of NOW, National Center for the Pro-Choice Majority, and
Women's Law Project, amici curiae.
Carter G. Phillips, Paul E. Kalb, Jennifer M. Rubin, and
Sidley & Austin on brief for American College of Obstetricians
and Gynecologists, Mass. Medical Society, and American Medical
Ass'n, amici curiae.
Cynthia Stone Creem and Sean J. Kealy on brief for Senator
Cynthia Stone Creem, Co-Chair, Joint Comm. on Criminal Justice
(Mass. Senate), amicus curiae.
Richard Blumenthal, Attorney General of Connecticut, Eliot
D. Prescott and Jane R. Rosenberg, Assistant Attorneys General,
on brief for States of Connecticut, Colorado, Maryland, Nevada,
and New York, amici curiae.
Paul E. Nemser, U. Gwyn Williams, Ketanji Brown Jackson, and
Goodwin Procter LLP on brief for Women's Bar Ass'n of Mass.,
Abortion Access Project of Mass., AIDS Project of Worcester,
Alternative Medical Care of Mass., American Ass'n of Univ.
Women-Mass., Big Sister Ass'n of Greater Boston, Boston Women's
Health Book Collective, Everywoman's Center, Four Women, Inc.,
League of Women Voters of Mass., Mass. NARAL, Mass. Chapter of
NOW, Mass. Public Health Ass'n, National Council of Jewish
Women-Mass., Religious Coalition for Reproductive Choice,
Tapestry Health Systems, Union of American Hebrew Congregations-
Northeast Council, Womancare/Repro Associates, and YWCA of
Cambridge, amici curiae.
Mark L. Rienzi, with whom Thomas M. Harvey and Dwight G.
Duncan were on brief, for appellees.
Maryclare Flynn on brief for Mass. Citizens for Life, Inc.,
amicus curiae.
Vincent P. McCarthy, American Center for Law and Justice
Northeast, Inc., on brief for Family Research Council and Focus
on the Family, amici curiae.

August 13, 2001
 SELYA, Circuit Judge. This appeal — in which we have

the benefit of exemplary briefing by the parties and the various

amici — requires us to reconcile a triad of state interests

(protecting public health, maintaining public safety, and

preserving access to medical facilities) with the First

Amendment interests of those who challenge restrictions on how

they may debate issues of public concern. We act in the context

of a Massachusetts statute, Mass. Gen. Laws ch. 266, § 120E½

(the Act), which creates a floating six-foot buffer zone around

pedestrians and motor vehicles as they approach reproductive

health care facilities (RHCFs). We view that statute through

the prism of Hill v. Colorado, 530 U.S. 703 (2000), in which the

United States Supreme Court upheld an analogous statute despite

the fact that it incidentally restricted some speech.

The district court found meaningful distinctions

between the Act and the Colorado statute at issue in Hill,

determined that these distinctions undermined the

constitutionality of the Act, and preliminarily enjoined the

Act's enforcement. See McGuire v. Reilly, 122 F. Supp. 2d 97,

101-03 (D. Mass. 2000). But the distinctions noted by the

district court do not make a dispositive difference. Hill

controls, and the Act, on its face, lawfully regulates the time,

place, and manner of speech without discriminating based on

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content or viewpoint. Accordingly, we reverse the district

court's ukase.

I. BACKGROUND

In order to frame the issues on appeal, we think it is

useful to trace the developments leading to the Act's passage,

survey its text, and place it in the context suggested by the

Hill Court's decision. With that foundation in place, we then

recount the proceedings below.

A. The Act's History.

By the late 1990s, Massachusetts had experienced

repeated incidents of violence and aggressive behavior outside

RHCFs. Concerned legislators responded to these disturbances by

introducing Senate Bill No. 148, see S.B. 148, 181st Gen. Ct.,

Reg. Sess. (Mass. Jan. 6, 1999), reprinted in Appendix B hereto.

The bill purposed to create a fixed twenty-five foot buffer zone

from RHCFs' entrances, exits, and driveways, and with limited

exceptions, to prohibit all persons from entering, or remaining

within, that buffer zone regardless of the person's intent or

the willingness of others to listen. The state senate held a

hearing in April of 1999. The received testimony chronicled the

harassment and intimidation that typically occurred outside

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RHCFs. In addition, numerous witnesses addressed the emotional

and physical vulnerability of women seeking to avail themselves

of abortion services, and gave accounts of the deleterious

effects of overly aggressive demonstrations on patients and

providers alike. Based in part on this testimony, the senate

concluded that existing laws did not adequately protect public

safety in areas surrounding RHCFs. To remedy this situation,

the senate favored the creation of fixed buffer zones. The

sponsors of the bill left no doubt that they intended the

proposed law to "increase public safety in and around [RHCFs]"

while "maintain[ing] the flow of traffic and prevent[ing]

congestion" there. S.B. 148, supra, § 1. In the bargain, the

sponsors expected the law to provide "reasonable time, place and

manner restrictions to reconcile and protect both the First

Amendment rights of persons to express their views near

reproductive health care facilities and the rights of persons

seeking access to those facilities to be free from hindrance,

harassment, intimidation and harm." It thereby would "create an

environment in and around reproductive health care facilities

which is conducive towards the provision of safe and effective

medical services . . . to its patients." Id.

Skeptics worried that the proposed law might offend the

Constitution. To stave off these gloom-and-doom predictions,

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the senate, on November 3, 1999, asked the Massachusetts Supreme

Judicial Court (SJC) for an advisory opinion on the bill's

constitutionality. On January 24, 2000, the SJC concluded that

the Constitution presented no obstacle to enactment. Opinion of

the Justices to the Senate, 430 Mass. 1205, 1211-12 (2000). The

SJC advised that the bill, as framed, was unrelated to the

content of protected expression. Id. at 1209. Moreover, the

restrictions imposed had a rational basis in view of the

heightened governmental interest that arises when "advocates of

both sides of one of the nation's most divisive issues

frequently meet within close proximity of each other in the

areas immediately surrounding the State's clinics, in what can

and often do become congested areas charged with anger." Id. at

1210.

After receiving this favorable review, the senate

engrossed Senate Bill No. 148 on February 29, 2000. That

version of the law never came to a vote in the house of

representatives, mainly because the United States Supreme Court

decided Hill on June 28, 2000. In that opinion, the Court

upheld, as a content-neutral time, place, and manner

restriction, a Colorado statute designed to ameliorate the same

evils. 530 U.S. at 719-21. The Court's conclusion rested on

three pillars:

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 First, [the statute] is not a regulation of
speech. Rather, it is a regulation of the
places where some speech may occur. Second,
it was not adopted because of disagreement
with the message it conveys. . . . Third,
the State's interests in protecting access
and privacy, and providing the police with
clear guidelines, are unrelated to the
content of the demonstrators' speech.

Id. at 719-20 (internal quotation marks omitted).

Massachusetts decided to follow the trail that Colorado

had blazed. Consequently, the house of representatives struck

the text of Senate Bill No. 148 and reformulated its language.

The amended version — ultimately enacted and codified as section

120E½ — recast the proposed statute and, most notably, replaced

the fixed buffer zones originally envisioned by the state senate

with floating buffer zones of the type upheld in Hill. The

house engrossed the bill on July 28, 2000, and the senate

concurred the next day. On August 10, 2000, Governor Cellucci

signed the Act into law.

B. The Act's Text.

The Act, formally known as the Massachusetts

Reproductive Health Care Facilities Act, is reprinted in

Appendix A hereto. The Act makes it unlawful, absent consent,

"knowingly to approach [within six feet of a person or occupied

motor vehicle] for the purpose of passing a leaflet or handbill

to, displaying a sign to, or engaging in oral protest, education

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or counseling with such other person in the public way or

sidewalk area within a radius of 18 feet from any entrance door

or driveway to a reproductive health care facility." Mass. Gen.

Laws ch. 266, § 120E½(b).

The statutory prohibition is not absolute. In the

first place, the architecture of this floating buffer zone

precludes speakers from approaching unconsenting listeners, but

it neither prevents speakers from holding their ground nor

requires them to retreat from passersby. In the second place,

the Act's prophylaxis does not attach unless and until an RHCF

opens for business and clearly demarcates the protected

eighteen-foot zone. Id. § 120E½(c). Finally, the Act exempts

persons entering or leaving an RHCF; persons using the streets

to reach a destination other than the RHCF; and, while acting

within the scope of their employment, (i) the RHCF's employees

and agents, and (ii) certain government officials (e.g., police

officers). Id. § 120E½(b).

C. The Influence of Hill.

In rejecting a challenge to a similar Colorado statute,

the Hill Court made a number of pronouncements that inform our

resolution of this appeal. Perhaps most important, the Court

held that the Colorado law was content-neutral even though it

singled out "oral protest, education, [and] counseling," because

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this denoted a broad category of speech rather than specifying

a particular subject matter or viewpoint. 530 U.S. at 720. In

reaching this conclusion, the Court gave short shrift to the

argument that, by targeting health care facilities, the Colorado

statute impermissibly discriminated against abortion protesters.

Id. at 724.

Three other points deserve mention. First, the Court

emphasized the significance of the state's interest in

preserving access to health care facilities. Id. at 715.

Second, the Court noted that the Colorado legislature had

tailored the law narrowly to serve this end. Id. at 728-29.

Third, the Court determined that a floating buffer zone of

modest proportions left ample alternative channels for

communication. Id. at 723.

Hill bears on this case in another way as well.

Although the Act was conceived in the albedo of Hill, it is not

a carbon copy of the statute at issue there. There are five key

differences:

C The protections of the Colorado law apply to
all health care facilities, Colo. Rev. Stat. §
18-9-122, whereas the Act applies only to free-
standing clinics that provide abortions, Mass.
Gen. Laws ch. 266, § 120E½.

C The Colorado statute specifies an 100-foot
radius around all covered facilities, Colo.
Rev. Stat. § 18-9-122(3), whereas the Act

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 specifies an eighteen-foot radius, Mass. Gen.
Laws ch. 266, § 120E½(b).

C The Colorado statute pretermits unwanted
approaches within eight feet of anyone inside
the specified area, Colo. Rev. Stat. § 18-9-
122(3), while the Act constructs only a six-
foot buffer zone, Mass. Gen. Laws ch. 266, §
120E½(b).

C The directive that the Act apply only when an
RHCF is open for business and has clearly
demarcated the protected area, Mass. Gen. Laws
ch. 266, § 120E½(c), is not part of the
Colorado scheme.

C The Act, unlike the Colorado law, exempts
various groups of persons from its reach. Id.
§ 120E½(b).

In most of these respects, the Act arguably restricts less

speech than its Colorado counterpart.

D. Proceedings Below.

The plaintiffs — Mary Anne McGuire, Ruth Schiavone, and

Jean B. Zarrella — are Massachusetts residents who regularly

protest, demonstrate, and provide sidewalk counseling outside

RHCFs. Shortly after the passage of the Act, they sued a number

of state hierarchs in the United States District Court for the

District of Massachusetts. They argued that the Act violated

their rights to freedom of speech, freedom of association, equal

protection, and due process of law. To remedy these

deprivations, they sought both a declaration of the Act's

unconstitutionality and an injunction against its enforcement.

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 The district court determined that the Act offended the

First Amendment in two ways. First, the court regarded the Act

as an impermissible content-based restriction because it

"pertain[s] exclusively to speech that communicates a message of

protest, education, or counseling spoken at the entrances of

abortion clinics." McGuire, 122 F. Supp. 2d at 102. Second,

the court determined that the Act discriminated on the basis of

viewpoint. Id. at 103. The court reasoned that the Act's

exemption of agents and employees of RHCFs gives rise to this

infirmity because, by virtue of their "personal relationship

with the abortion clinic, [employees] have a strong financial

interest or philosophic incentive to counsel the listener to

undergo an abortion and they constitute very zealous advocates

for this controversial procedure." Id. For these reasons, the

court concluded that the plaintiffs had shown a substantial

likelihood of success on the merits and enjoined the defendants

from enforcing the Act pending a trial. Id. at 104.

This interlocutory appeal ensued. On motion duly

filed, see Fed. R. App. P. 8(a), we stayed the injunction

pending appeal. We now reverse.

II. THE PRELIMINARY INJUNCTION STANDARD

A party who seeks a preliminary injunction must show:

(1) that she has a substantial likelihood of success on the

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merits; (2) that she faces a significant potential for

irreparable harm in the absence of immediate relief; (3) that

the ebb and flow of possible hardships are in favorable

juxtaposition (i.e., that the issuance of an injunction will not

impose more of a burden on the nonmovant than its absence will

impose on the movant); and (4) that the granting of prompt

injunctive relief will promote (or, at least, not denigrate) the

public interest. Ross-Simons of Warwick, Inc. v. Baccarat,

Inc., 102 F.3d 12, 15 (1st Cir. 1996); Narragansett Ind. Tribe

v. Guilbert, 934 F.2d 4, 5 (1st Cir. 1991). Appellate review of

rulings granting or denying preliminary injunctions is quite

deferential. The court of appeals will set aside such a ruling

only if it is persuaded that the lower court mistook the law,

clearly erred in its factual assessments, or otherwise abused

its discretion in granting the interim relief. Ross-Simons, 102

F.3d at 15; Narragansett Ind. Tribe, 934 F.2d at 5.

III. THE FIRST AMENDMENT CHALLENGE

To place the appellants' First Amendment challenge into

workable perspective, we begin with an overview of the

constitutional doctrine governing restrictions on speech. We

then consider whether the Act qualifies as content-neutral

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legislation for First Amendment purposes. After answering this

question, we then subject the Act to the appropriate level of

judicial scrutiny. Throughout, we bear in mind that the

plaintiffs have mounted a facial challenge to the Act as a

whole, not an as-applied challenge to some particular

application of it.

A. The Doctrinal Underpinnings.

Freedom of speech "is the matrix, the indispensable

condition, of nearly every other form of freedom." Palko v.

Connecticut, 302 U.S. 319, 327 (1937) (Cardozo, J.).

Notwithstanding its exalted position in the pantheon of

fundamental freedoms, free speech always must be balanced

against the state's responsibility to preserve and protect other

important rights. This balance may be weighted differently,

however, depending upon the nature of the restriction that the

government seeks to foster. We elaborate below.

Governmental restrictions on the content of particular

speech pose a high risk that the sovereign is, in reality,

seeking to stifle unwelcome ideas rather than to achieve

legitimate regulatory objectives. Turner Broad. Sys., Inc. v.

FCC, 512 U.S. 622, 641 (1994). As a general rule, therefore,

the government cannot inhibit, suppress, or impose differential

content-based burdens on speech. Id. at 641-42. To provide

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maximum assurance that the government will not throw its weight

on the scales of free expression, thereby "manipulat[ing] . . .

public debate through coercion rather than persuasion," id. at

641, courts presume content-based regulations to be

unconstitutional. R. A. V. v. City of St. Paul, 505 U.S. 377,

382 (1992); Nat'l Amusements, Inc. v. Town of Dedham, 43 F.3d

731, 736 (1st Cir. 1995). While courts theoretically will

uphold such a regulation if it is absolutely necessary to serve

a compelling state interest and is narrowly tailored to the

achievement of that end, see, e.g., Boos v. Barry, 485 U.S. 312,

321-29 (1988); Ark. Writers' Project, Inc. v. Ragland, 481 U.S.

221, 231-32 (1987), such regulations rarely survive

constitutional scrutiny.

Courts grow even more chary when the government

attempts to differentiate between disparate views espoused by

those speaking on a singular subject. That chariness — some

might say hostility — is not surprising, for viewpoint-based

discrimination is a particularly offensive type of content-based

discrimination. Rosenberger v. Rector & Visitors of Univ. of

Va., 515 U.S. 819, 829 (1995).

Judicial review takes on a different cast when a

statute does not regulate speech per se, but, rather, restricts

the time, place, and manner in which expression may occur. Such

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laws are less threatening to freedom of speech because they tend

to burden speech only incidentally, that is, for reasons

unrelated to the speech's content or the speaker's viewpoint.

Where that description applies, courts employ a less exacting

level of scrutiny, upholding limitations on the time, place, and

manner of protected expression as long as "they are justified

without reference to the content of the regulated speech, . . .

are narrowly tailored to serve a significant governmental

interest, and . . . leave open ample alternative channels for

communication of the information." Clark v. Cmty. for Creative

Non-Violence, 468 U.S. 288, 293 (1984). This less taxing level

of analysis — commonly called "intermediate scrutiny" — makes

sense because the very fact of content neutrality offers a

meaningful assurance that the government is not striving in a

clandestine manner to steer public discourse or brainwash its

citizens. Turner Broad. Sys., 512 U.S. at 642. We start, then,

by analyzing whether the Act is content-neutral.

B. Classifying the Act.

The Supreme Court has explained that "the principal

inquiry in determining content neutrality, in speech cases

generally and in time, place, or manner cases in particular, is

whether the government has adopted a regulation of speech

because of disagreement with the message it conveys." Ward v.

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Rock Against Racism, 491 U.S. 781, 791 (1989). Thus, a law

designed to serve purposes unrelated to the content of protected

speech is deemed content-neutral even if, incidentally, it has

an adverse effect on certain messages while leaving others

untouched. See Hill, 530 U.S. at 736; City of Renton v.

Playtime Theatres, Inc., 475 U.S. 41, 47-48 (1986).

By addressing political speech on public streets and

sidewalks, the Act plainly operates at the core of the First

Amendment. See Hague v. CIO, 307 U.S. 496, 515 (1939) (noting

that public streets and sidewalks are traditional public fora

which "time out of mind, have been used for purposes of

assembly, communicating thoughts between citizens, and

discussing public questions"). First Amendment interests

nonetheless must be harmonized with the state's need to exercise

its traditional police powers. Hill, 530 U.S. at 714-15. The

district court resolved this balance against the appellants. It

opined that the state legislature enacted section 120E½ because

it disagreed with both the content of, and the viewpoint

inherent in, anti-abortion protests. See McGuire, 122 F. Supp.

2d at 102-03. The court thus concluded that the Act, on its

face, discriminates against abortion-related speech, id. at 102,

and that the employee exemption compounds this evil by

facilitating the airing of pro-choice sentiments while

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simultaneously restricting the expressive activities of pro-life

partisans, id. at 103. We do not agree.

In holding that the Act constitutes invidious content-

based discrimination against abortion-related speech, the lower

court emphasized that "the Massachusetts statute applies

exclusively to speech communicated at abortion clinics and not

. . . to all health care facilities." Id. at 102. We believe

that the court, in reaching this conclusion, misconstrued

applicable First Amendment doctrine by focusing exclusively on

the effects of the Act rather than on its underlying purpose.

The critical question in determining content neutrality

is not whether certain speakers are disproportionately burdened,

but, rather, whether the reason for the differential treatment

is — or is not — content-based. See Hill, 530 U.S. at 719

(positing that a statute is content-neutral when it does not

directly regulate speech, has its origins in a legislative

purpose unrelated to disagreement with the underlying message of

particular speech, and advances interests unconnected to

expressive content). As long as a regulation serves a

legitimate purpose unrelated to expressive content, it is deemed

content-neutral even if it has an incidental effect on some

speakers and not others. Ward, 491 U.S. at 791; Nat'l

Amusements, 43 F.3d at 740. In that event, all that remains is

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for the government to show that accomplishment of the legitimate

purpose that prompted the law also rationally explains its

differential impact. See City of Renton, 475 U.S. at 47-48;

Nat'l Amusements, 43 F.3d at 738.

We conclude, without much question, that the Act's

stated goals justify its specific application to RHCFs. The

Massachusetts legislature, confronted with an apparently serious

public safety problem, investigated the matter thoroughly. That

investigation yielded solid evidence that abortion protesters

are particularly aggressive and patients particularly vulnerable

as they enter or leave RHCFs. Thus, targeting these sites

furthers conventional objectives of the state's police power —

promoting public health, preserving personal security, and

affording safe access to medical services. Although the Act

clearly affects anti-abortion protesters more than other groups,

there is no principled basis for assuming that this differential

treatment results from a fundamental disagreement with the

content of their expression. Rather, the finding required on

these facts is that the legislature was making every effort to

restrict as little speech as possible while combating the

deleterious secondary effects of anti-abortion protests. Just

as targeting medical centers did not render Colorado's

counterpart statute content-based, Hill, 530 U.S. at 722-23, so

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too the Act's targeting of RHCFs fails to undermine its status

as a content-neutral regulation.1

To be sure, the plaintiffs insist that the state's

professed concerns about public safety, personal security, and

access to medical facilities are mere pretexts for its desire to

censor anti-abortion speech. This insistence gets them nowhere.

For one thing, their insinuations are unsupported by any record

evidence. For another thing, where differential treatment is

justified, on an objective basis, by the government's content-

neutral effort to combat secondary effects, it is insufficient

that a regulation may have been adopted in direct response to

1The plaintiffs see this targeting as a smoking gun. In
this regard, they cite Carey v. Brown, 447 U.S. 455 (1980), and
Police Dep't of Chicago v. Mosley, 408 U.S. 92 (1972), for the
proposition that singling out a certain form of protest is
tantamount to content-based discrimination. These authorities
are unhelpful. In Carey, the Court struck down a statute that
prohibited residential protests other than peaceful labor
picketing. 447 U.S. at 471. In Mosley, the Court overturned a
statute that prohibited all protests except labor picketing near
a school. 408 U.S. at 101-02. In each instance, the Court
declared the statute unconstitutional because the legislative
purpose — protecting residential privacy and preserving safe
access to schools, respectively — could not logically account
for the special treatment accorded to labor protests. Here,
however, as in Hill, 530 U.S. at 724, the targeting is closely
confined to the legitimate legislative purpose that underlies
the Act: combating violence at RHCFs. See also City of Renton
475 U.S. at 47 (upholding a zoning ordinance that sought to
prevent crime, protect residential neighborhoods, and maintain
property values by singling out adult theaters).

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the negative impact of a particular form of speech. See Hill,

530 U.S. at 723; Madsen v. Women's Health Ctr., 512 U.S. 753,

762-64 (1994); see also Nat'l Amusements, 43 F.3d at 740

("Secondary effects can comprise a special characteristic of a

particular speaker or group of speakers."). This is such a

case: considered as a whole, the Act provides a neutral

justification — unrelated to the content of speech — for

differential treatment.

In an effort to parry this thrust, the plaintiffs point

conspicuously to the district court's holding that the statutory

exemption for clinic agents and employees constitutes

impermissible viewpoint-based discrimination (and, therefore,

taints the entire Act). The court premised this holding on its

determination that, by allowing clinic employees to enter the

floating buffer zone without constraint, the Act permits free-

ranging expression of pro-choice views while suppressing pro-

life messages. McGuire, 122 F. Supp. 2d at 103-04. Because

this determination rests on an unsubstantiated factual

foundation, we reject it.

A court's findings of fact must be anchored in

probative evidence. See United States v. Frankhauser, 80 F.3d

641, 654-55 (1st Cir. 1996); Blohm v. Commissioner, 994 F.2d

1542, 1548 (11th Cir. 1993); United States v. Williams, 891 F.2d

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962, 964-67 (1st Cir. 1989). This bedrock principle applies to

findings made on a motion for a preliminary injunction. See,

e.g., Cohen v. Brown Univ., 991 F.2d 888, 906 (1st Cir. 1993).

Here, however, the district court lumped together all agents and

employees of RHCFs and characterized them, without a shred of

record support, as "very zealous advocates for this

controversial procedure [abortion]." McGuire, 122 F. Supp. 2d

at 103. The court then stated, again without any evidentiary

predicate, that these "[e]mployees and agents of abortion

clinics escort potential abortion clinic clients and counsel and

exhort them to undergo an abortion within the restricted areas."

Id. at 103 n.9. These findings are wholly unsupported and,

hence, clearly erroneous. A judge's intuition cannot take the

place of proof. See United States v. Ortiz, 966 F.2d 707, 717

(1st Cir. 1992) (holding that decisions must be based on more

than the judge's hunch, unsupported by facts); cf. Tuf Racing

Prods., Inc. v. Am. Suzuki Motor Corp., 223 F.3d 585, 590 (7th

Cir. 2000) (noting that judges must reason from facts rather

than settling for guesswork).

There is, moreover, another defect in the district

court's treatment of the employee exemption. The court ignored

the matter of secondary effects as they bear on that exemption.

This was an unfortunate oversight: the secondary effects that

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the Act was designed to ameliorate include securing public

safety in and around RHCFs, preventing traffic congestion, and

balancing free speech with the need to maintain a salutary

atmosphere for those seeking access to medical services. See

S.B. 148, supra, § 1. There is no evidence that agents and

employees of RHCFs cause these problems.2 Thus, excluding those

individuals does not undermine the legitimacy of the Act as a

vehicle to curb the secondary effects of particular conduct and

thereby achieve the legislature's announced purposes.

The legislative history bears witness to this

conclusion. Testimony taken before the state senate indicates

beyond cavil that the employee exemption will promote the Act's

goals because clinic employees often assist in protecting

patients and ensuring their safe passage as they approach RHCFs.

Indeed, the record contains numerous accounts of incidents in

which clinic personnel had to approach patients to protect them

from protesters and, sometimes, to prevent physical

altercations. Since it is within the scope of their employment

for clinic personnel to escort patients in this fashion, and

since a primary purpose of the law is to facilitate safe access,

2
To be sure, the record does show that, on occasion, a
clinic employee has gotten into an altercation with an anti-
abortion protester. But this sort of disturbance presumably
would be stemmed by the exemption because the exemption tends to
keep clinic employees and abortion protesters apart.

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the employee exemption serves the basic objectives of the Act.

To cinch matters, the legislature rationally could have

concluded that clinic employees are less likely to engage in

directing of unwanted speech toward captive listeners — a datum

that the Hill Court recognized as justifying the statute there.

See Hill, 530 U.S. at 715-17.

Endeavoring to counter these points, the plaintiffs

posit that the employee exemption could not possibly have been

designed to combat those undesirable secondary effects because

the Act, without the exemption, permits any person to approach

a non-consenting patient for purposes other than education,

protest, and counseling. See Mass. Gen. Laws ch. 266, §

120E½(b). The exemption only has meaning, therefore, insofar as

it allows those who work for RHCFs to approach within six feet

of non-consenting patients to engage in such activities (i.e,

education, protest, and counseling). From this plateau, the

plaintiffs suggest that if a clinic employee were to approach to

educate or counsel a prospective patient, that education or

counseling doubtless would manifest a pro-choice viewpoint. So

viewed, the sole practical purpose of the employee exemption is

to promote a particular side of the abortion debate — a feature

that renders the exemption discriminatory and ensures that any

application would violate the First Amendment.

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 While this argument has a certain logic, it ultimately

fails. After all, the plaintiffs have challenged the Act on its

face. The nature of this challenge raises the bar for their

success: a party who mounts a facial challenge to a statute

must carry a significantly heavier burden than one who seeks

merely to sidetrack a particular application of the law. See

Nat'l Endowment for the Arts v. Finley, 524 U.S. 569, 580

(1998); Pharm. Research & Mfrs. of Am. v. Concannon, 249 F.3d

66, 76 (1st Cir. 2001); Watchtower Bible & Tract Soc'y, Inc. v.

Vill. of Stratton, 240 F.3d 553, 562 (6th Cir.), petition for

cert. filed, 69 U.S.L.W. 3750 (U.S. May 18, 2001) (No. 00-1737).

In the First Amendment context, this means that a

plaintiff who challenges a statute on its face ordinarily must

show either that the law admits of no valid application or that,

even if one or more valid application exists, the law's reach

nevertheless is so elongated that it threatens to inhibit

constitutionally protected speech. Time Warner Entm't Co. v.

FCC, 93 F.3d 957, 967 (D.C. Cir. 1996). The plaintiffs do not

challenge the employee exemption on the ground that it sweeps

too broadly. Thus, they must show that the exemption admits of

no constitutionally permissible application. This is an uphill

climb, requiring the legal equivalent of an alpenstock and

carabiners — and the plaintiffs are unable to scale the heights.

-24-
 Courts owe legislative judgments substantial respect

and, as a general matter, should be reluctant "to reduce

statutory language to a merely illustrative function." Mass.

Ass'n of HMOs v. Ruthardt, 194 F.3d 176, 181 (1st Cir. 1999).

The Massachusetts legislature may or may not have intended the

employee exemption to serve the purpose envisioned by the

plaintiffs. There are other likely explanations. For example,

the legislature may have exempted clinic workers — just as it

exempted police officers — in order to make crystal clear what

already was implicit in the Act: that those who work to secure

peaceful access to RHCFs need not fear prosecution. See id.

(explaining that a legislative body "may consider a specific

point important or uncertain enough to justify a modicum of

redundancy").

The ultimate difficulty, of course, is that the

legislature's subjective intent is both unknown and unknowable.

At this juncture, we can look only to the purposes that may

rationally be said to be served by the provision in question

(here, the employee exemption). That is a large part of the

reason why one who challenges a statute on its face must carry

an appreciably heavier burden: a facial challenge, unlike an

as-applied challenge, does not allow a reviewing court to base

its judgments on actual experience or provide the court any room

-25-
to capture nuances in a statute's meaning. See United States v.

Raines, 362 U.S. 17, 20-22 (1960); Richard H. Fallon, Jr., As-

Applied and Facial Challenges and Third-Party Standing, 113

Harv. L. Rev. 1321, 1330-35 (2000).

That ends this aspect of the argument. Because we can

envision at least one legitimate reason for including the

employee exemption in the Act, it would be premature to declare

the Act unconstitutional for all purposes and in all

applications. See United States v. Hilton, 167 F.3d 61, 71 (1st

Cir.) (noting that "[i]t makes little sense to strike down an

entire statute in response to a facial attack when potential

difficulties can be remedied in future cases through fact-

specific as-applied challenges"), cert. denied, 528 U.S. 844

(1999). If, as the plaintiffs predict, experience shows that

clinic staffers in fact are utilizing the exemption as a means

either of proselytizing or of engaging in preferential pro-

choice advocacy, the plaintiffs remain free to challenge the

Act, as applied, in a concrete factual setting. See Pharm.

Research & Mfrs., 249 F.3d at 78 (rejecting facial challenge to

state statute without prejudice to plaintiff's right to launch

an as-applied challenge after implementation of the statute).

We recapitulate. The Act, on its face, is content-

neutral. Futhermore, although courts correctly regard viewpoint

-26-
discrimination as a particularly pernicious form of content

discrimination, the Act does not discriminate against speakers

based on their views. The employee exemption too is neutral on

its face, drawing no distinction between different ideologies.

And to the extent (if at all) that the exemption contributes to

the Act's disproportionate impact on anti-abortion protesters,

it can be justified by reference to the state's neutral

legislative goals. We conclude, therefore, that since neither

the Act as a whole nor the employee exemption reflects an

impermissible bias against either the content of certain speech

or the views of certain speakers, the Act's constitutionality

must be determined by reference to the intermediate level of

scrutiny that attaches to content-neutral time, place, and

manner restrictions.

C. Intermediate Scrutiny.

Under the intermediate scrutiny standard, a law is

deemed constitutional if it is narrowly tailored to serve

significant state interests while leaving open ample alternative

channels of communication. See Renton, 475 U.S. at 50; Clark,

468 U.S. at 293. The Act passes this test.

-27-
 The state legislature ascribed four purposes to the

Act:3 to increase public safety in and around RHCFs; to ensure

smooth traffic flow; to balance free speech with the rights of

persons seeking access to RHCFs to be free from hindrance; and

to create an environment conducive to safe and effective medical

services. S.B. 148, supra, § 1. The interests that underlie

these purposes are firmly rooted in the state's traditional

police powers, and these are precisely the sort of interests

that justify some incidental burdening of First Amendment

rights. See Hill 530 U.S. at 715 (noting the "enduring

importance of the right to be free from persistent importunity,

following and dogging after an offer to communicate has been

declined") (citation and internal quotation marks omitted);

Schenck v. Pro-Choice Network, 519 U.S. 357, 376 (1997)

(extolling the significance of "ensuring public safety and

order, promoting the free flow of traffic on streets and

sidewalks, protecting property rights, and protecting a woman's

freedom to seek pregnancy-related services"); see also Madsen,

512 U.S. at 772-73 ("The First Amendment does not demand that

3
Although the state senate wrote this list of purposes as a
preamble to Senate Bill No. 148, there is nothing in the
subsequent legislative history to suggest that the purposes
changed after the senate bill was amended in the house of
representatives to produce the final version. We therefore
follow the parties' lead and assume that this litany applies to
the Act.

-28-
patients at a medical facility undertake Herculean efforts to

escape the cacophony of political protests.").

On the flip side of the coin, the Act is narrowly

tailored and leaves open sufficient opportunity to communicate

in other ways. A law is narrowly tailored if it promotes a

substantial governmental interest that would be less effectively

achieved without the law and does so without burdening

substantially more speech than is necessary to further this

goal. Ward, 491 U.S. at 799. The plaintiffs argue that

Massachusetts previously had enacted a number of general

protections designed to combat the same evils as the Act, e.g.,

Mass Gen. Laws ch. 266 § 120E (knowingly obstructing entry to

health care facility); id. ch. 272 § 53 (disturbing the peace);

id. ch. 12 § 11H (impairing civil rights); id. 265 § 13A

(assault and battery), and that these non-speech-restricting

protections have not been enforced in the context of abortion

protests. They claim, moreover, that the only behavior targeted

by the Act that is not already covered by other laws is non-

threatening speech, and that the Commonwealth has offered no

content-neutral justifications for limiting such peaceful

discourse.

This argument is unconvincing. The Massachusetts

legislature reasonably concluded that existing law inadequately

-29-
addressed the public safety, personal security, traffic, and

health care concerns created by persistent demonstrations

outside RHCFs. Indeed, the state senate specifically found that

existing statutory protections did not suffice — and this

finding is plausible given the general terms used by those

statutes (e.g., "obstruction," "disturbing the peace"). While

such wider nets might catch the big fish, there is every reason

to believe that they would let the fingerlings through. We have

said enough on this subject. The short of it is that the

legislature weighed the Hill Court's conclusions and formulated

a bill to suit. As a result of this careful craftsmanship, the

Act, in its final form, affects only areas immediately adjacent

to RHCFs; prohibits only nonconsensual approaches within six

feet; and applies only within a clearly marked eighteen-foot

radius from clinic entrances and exits. This framework is more

precisely focused and gives abortion protesters more opportunity

for advocacy than does the Colorado statute upheld in Hill.

Compare Mass. Gen. Laws ch. 266, § 120E½ with Colo. Rev. Stat.

§ 18-9-122.4 Because the Supreme Court concluded that the

4To illustrate, the Act creates a six-foot bubble around
unwilling listeners, as opposed to the eight-foot bubble
sanctioned under the Colorado law; the Act covers an eighteen-
foot radius as opposed to the 100-foot radius covered by the
Colorado statute; and the Act, unlike its Colorado counterpart,
does not go into effect unless and until the covered area has
been clearly delineated.

-30-
Colorado statute was narrowly tailored, the Act too satisfies

that requirement. If, as the Hill Court stated, visual and

verbal images are able to cross an eight-foot floating buffer

zone with sufficient ease that the "restriction on an unwanted

physical approach leaves ample room to communicate a message

through speech," 530 U.S. at 729, that same conclusion perforce

must apply to the Act's less commodious six-foot floating buffer

zone.

D. The Equal Protection Challenge.

Without developing the argument in detail, the

plaintiffs, like the court below, conclusorily assert that the

Act violates the Equal Protection Clause. Because the equal

protection interests involved in the differential treatment of

speech are inextricably intertwined with First Amendment

concerns, Police Dep't of Chicago v. Mosley, 408 U.S. 92, 95

(1972), and the plaintiffs do not develop the point separately,

we treat this assertion as part of the plaintiffs' First

Amendment challenge. In all events, it need not occupy us for

long.

From time to time, the Supreme Court has invoked equal

protection rather than free speech, as the basis for

invalidating a content-based speech restriction. E.g., Carey v.

Brown, 447 U.S. 455, 459-63 (1980); Mosley, 408 U.S. at 94-95.

-31-
But where the state shows a satisfactory rationale for a

content-neutral time, place, and manner regulation, that

regulation necessarily passes the rational basis test employed

under the Equal Protection Clause. See Thorburn v. Austin, 231

F.3d 1114, 1122 (8th Cir. 2000); Hoover v. Morales, 164 F.3d

221, 227 n.3 (5th Cir. 1998); DLS, Inc. v. City of Chattanooga,

107 F.3d 403, 411 n.7 (6th Cir. 1997). So it is here: the Act

passes muster under the Equal Protection Clause for the same

reasons that it passes muster under the First Amendment.

IV. THE DUE PROCESS CHALLENGE

The failure of the plaintiffs' First Amendment

challenge does not end our journey. Even if the trial court's

rationale collapses, an appellee is free to defend the judgment

below on any other ground made manifest by the record. Mass.

Mut. Life Ins. Co. v. Ludwig, 426 U.S. 479, 481 (1976) (per

curiam); United States v. Craven, 239 F.3d 91, 97 (1st Cir.

2001). Embracing that tenet, the plaintiffs urge us to affirm

the issuance of the preliminary injunction on the ground that

the Act vests unbridled discretion in RHCFs (and, thus, violates

the plaintiffs' due process rights).

This exhortation hinges upon language in the Act which

provides that the six-foot floating buffer zone "shall only take

effect during a facility's business hours and if the area

-32-
contained within the radius . . . is clearly marked." Mass.

Gen. Laws ch. 266, § 120E½(c). The plaintiffs posit that this

language vests private actors — the RHCFs — with unconstrained

power to restrict speech, and they cite numerous cases for the

black-letter proposition that the Due Process Clause forbids

standardless delegations of governmental authority, especially

to private parties. E.g., Forsyth County v. Nationalist

Movement, 505 U.S. 123, 130-31 (1992); City of Lakewood v. Plain

Dealer Publ'g Co., 486 U.S. 750, 758-59 (1988); Freedman v.

Maryland, 380 U.S. 51, 57-59 (1965).

The district court rejected this asseveration,

concluding that the quoted portion of the Act "is more logically

viewed as a notice requirement serving to protect the interests

of speakers such as plaintiffs." McGuire, 122 F. Supp. 2d at

101 n.7. We agree with this assessment. While the plaintiffs

cherry-pick statements from the case law in an effort to bolster

their position, they have wrested these statements from their

contextual moorings.

Without exception, the cases on which the plaintiffs

rely involve licensing schemes that allowed public officials to

make discriminatory, content-based decisions. E.g., City of

Lakewood, 486 U.S. at 759; Heffron v. Int'l Soc'y for Krishna

Consciousness, Inc., 452 U.S. 640, 648-49 (1981). By their very

-33-
nature, licensing schemes that embody grants of standardless

discretion to public officials (or sometimes private individuals

— conceptually, it makes no difference) cannot constitute valid

time, place, and manner restrictions because they "ha[ve] the

potential for becoming a means of suppressing a particular point

of view." Heffron, 452 U.S. at 649. Since the floating buffer

zone contemplated by the Act is content-neutral, see supra Part

III(B), the activation provision cannot raise this type of

constitutional concern. And in all events, the activation

provision, to the extent that it allows clinic employees to make

decisions that have a disproportionate impact on anti-abortion

speech, is easily justified as an incidental burden.5 See Nat'l

Amusements, 43 F.3d at 740.

V. CONCLUSION

The existence of a four-part framework for granting or

denying preliminary injunctive relief does not mean that all

four components are weighted equally. In the great majority of

cases, likelihood of success constitutes the proper focal point

of the inquiry. Ross-Simons, 102 F.3d at 16. This case is no

exception. The district court premised its issuance of a

5
We note an irony: as a practical matter the activation
provision tends to favor (rather than curtail) anti-abortion
expression because it establishes conditions that RHCFs must
meet before the Act's prophylaxis takes effect.

-34-
preliminary injunction on its mistaken view that the plaintiffs

probably would succeed on their First Amendment challenge. But

this conclusion is insupportable. See supra Part III(B-C).

Moreover, the plaintiffs cannot establish a probability of

merits success on any other theory encompassed within their

facial challenge to the Act. See supra Parts III(D), IV. Since

likelihood of success is the sine qua non of preliminary

injunctive relief, Weaver v. Henderson, 984 F.2d 11, 12 (1st

Cir. 1993), we need go no further.

We reverse the order granting a preliminary injunction

and remand for further proceedings consistent with this opinion.

The stay previously issued is dissolved as moot.

-35-
 Appendix A

Mass. Gen. Laws ch. 266, § 120E½

SECTION 120E½: Reproductive Health Care Facilities

(a) For the purposes of this section, "reproductive health
care facility" means a place, other than within a hospital,
where abortions are offered or performed.

(b) No person shall knowingly approach another person or
occupied motor vehicle within six feet of such person or
vehicle, unless such other person or occupant of the
vehicle consents, for the purpose of passing a leaflet or
handbill to, displaying a sign to, or engaging in oral
protest, education or counseling with such other person in
the public way or sidewalk area within a radius of 18 feet
from any entrance door or driveway to a reproductive health
care facility or within the area within a rectangle not
greater than six feet in width created by extending the
outside boundaries of any entrance door or driveway to a
reproductive health care facility at a right angle and in
straight lines to the point where such lines intersect the
sideline of the street in front of such entrance door or
driveway. This subsection shall not apply to the
following: —

(1) persons entering or leaving such facility;

(2) employees or agents of such facility acting within the
scope of their employment;

(3) law enforcement, ambulance, firefighting, construction,
utilities, public works and other municipal agents acting
within the scope of their employment; and

(4) persons using the public sidewalk or street right-of-
way adjacent to such facility solely for the purpose of
reaching a destination other than such facility.

(c) The provisions of subsection (b) shall only take effect
during a facility's business hours and if the area
contained within the radius and rectangle described in said
subsection (b) is clearly marked and posted.

-36-
(d) Whoever knowingly violates this section shall be
punished, for the first offense, by a fine of not more than
$500 or not more than three months in a jail or house of
correction, or by both such fine and imprisonment, and for
each subsequent offense, by a fine of not less than $500
and not more than $5,000 or not more than two and one-half
years in a jail or house of correction, or both such fine
and imprisonment. A person who knowingly violates this
section may be arrested without a warrant by a sheriff,
deputy sheriff or police officer if that sheriff, deputy
sheriff, or police officer observes that person violating
this section.

(e) Any person who knowingly obstructs, detains, hinders,
impedes or blocks another person's entry to or exit from a
reproductive health care facility shall be punished, for
the first offense, by a fine of not more than $500 or not
more than three months in a jail or house of correction, or
by both such fine and imprisonment, and for each subsequent
offense, by a fine of not less than $500 and not more than
$5,000 or not more than two and one-half years in a jail or
house of correction, or both such fine and imprisonment.
A person who knowingly violates this section may be
arrested without a warrant by a sheriff, deputy sheriff or
police officer.

(f) A reproductive health care facility or a person whose
rights to provide or obtain reproductive health care
services have been violated or interfered with by a
violation of this section or any person whose rights to
express their views, assemble or pray near a reproductive
health care facility have been violated or interfered with
may commence a civil action for equitable relief. The
civil action shall be commenced either in the superior
court for the county in which the conduct complained of
occurred, or in the superior court for the county in which
any person or entity complained of resides or has a
principal place of business.

-37-
 Appendix B

S.B. 148, 181st Gen. Ct., Reg. Sess. (Mass. Jan. 6, 1999)

An Act relative to reproductive health care facilities

Be it enacted by the Senate and House of
Representatives in General Court assembled, and by the
authority of the same as follows:

SECTION 1. It is hereby found and declared that
existing law does not adequately protect the public safety
in the areas in and around reproductive health care
facilities. Indeed, such facilities in the Commonwealth of
Massachusetts have been the focal point of many blockades,
disturbances and even violence, particularly the shootings
at two reproductive health services facilities on December
30, 1994, which, left two persons dead and many injured.

It is further found that persons attempting to enter
or depart from reproductive health care facilities have
been subject to harassing or intimidating activity by
persons approaching within extremely close proximity and
shouting or waving objects at them, which has tended to
hamper or impede access to or departure from those facilities.

It is further found that such activity near
reproductive health care facilities creates a "captive
audience" situation because persons seeking health care
services cannot avoid the area outside of reproductive
health care facilities if they are to receive the services
provided therein, and their physical and emotional ailments
or conditions can make them especially vulnerable to the
adverse physiological and emotional effects of such
harassing or intimidating activities directed at them from
extremely close proximity.

It is further found that the violence and disturbances
described above have required the deployment of police
officers at significant cost to the cities and towns of the
Commonwealth, and continue to occur despite civil
injunctions that prohibit certain persons from engaging in
such conduct.

And it is further found that studies have shown that
clinics with buffer zones experience far larger decreases

-38-
in every type of violence than clinics without buffer
zones.

Therefore, the purpose of this legislation is:

(1) to increase the public safety in and around
reproductive health care facilities;

(2) to maintain the flow of traffic and prevent
congestion around reproductive health care facilities;

(3) to enact reasonable time, place and manner
restrictions to reconcile and protect both the First
Amendment rights of persons to express their views near
reproductive health care facilities and the rights of
persons seeking access to those facilities to be free from
hindrance, harassment, intimidation and harm; and

(4) to create an environment in and around reproductive
health care facilities which is conducive towards the
provision of safe and effective medical services, including
surgical procedures, to its patients.

SECTION 2. Chapter 266 of the General Laws is hereby
amended by inserting after section 120E the following
section: —

(a) For the purposes of this section, "reproductive
health care facility" shall mean a place, other than within
a hospital, where abortions are offered or performed.

(b)(1) Except for those listed in subsection (2) below,
no person shall, during business hours of a reproductive
health care facility, knowingly enter or remain in the
following area of private property of a reproductive health
care facility or public right-of-way:

(A) the area within twenty-five (25) feet of any
portion of an entrance to, exit from, or driveway of a
reproductive health care facility; and

(B) the area within the rectangle created by
extending the outside boundaries of any entrance to, exit
from, or driveway of, a reproductive health care facility
in straight lines to the point where such lines intersect

-39-
the sideline of the street in front of such entrance, exit
or driveway.

(2) The provision of subsection (1) of this
paragraph shall not apply to the following:

(A) persons entering or leaving such facility;

(B) employees or agents of such facility acting
within the scope of their employment;

(C) law enforcement, ambulance, firefighting,
construction, utilities, public works and other municipal
agents acting within the scope of their employment; and

(D) persons using the public sidewalk or street
right-of-way adjacent to such facility solely for the
purpose of reaching a destination other than such facility.

(c) Whoever knowingly violates this section shall be
punished, for the first offense, by a fine of not more than
one thousand dollars or not more than six months in a jail
or house of correction or both, and for each subsequent
offense by a fine of not less than five hundred dollars and
not more than five thousand dollars or not more than two
and one-half years in a jail or house of correction or both.

A person who knowingly violates this section may be
arrested without a warrant by a sheriff, deputy sheriff, or
police officer.

(d) Any reproductive health care facility or any person
whose rights to provide or obtain reproductive health care
services have been interfered with by a violation of this
section may commence a civil action for damages or
injunctive and other equitable relief, including the award
of compensatory and exemplary damages. Said civil action
shall be instituted either in the superior court for the
county in which the conduct complained of occurred, or in
the superior court for the county in which any person or
entity complained of resides or has a principal place of
business. An aggrieved person or entity which prevails in
an action authorized by this paragraph, in addition to
other damages, shall be entitled to an award of the costs
of the litigation and reasonable attorney's fees in an
amount to be fixed by the court.

-40-
 (e) A criminal conviction pursuant to the provision of
this section shall not be a condition precedent to
maintaining a civil action pursuant to the provision of
this section.

SECTION 3. The provisions of this act shall be deemed
severable, and if any provision of this act is adjudged
unconstitutional or invalid, such judgment shall not affect
other valid provisions hereof.

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