McGuire v. Reilly

United States Court of Appeals
For the First Circuit

No. 03-2389

MARY ANNE MCGUIRE; RUTH SCHIAVONE; JEAN B. ZARRELLA,

Plaintiffs, Appellants,

v.

THOMAS F. REILLY, Attorney General of the Commonwealth of
Massachusetts; PHILIP A. ROLLINS, District Attorney of Barnstable
County, Dukes County, and Nantucket County; GERALD D. DOWNING,
District Attorney of Berkshire County; PAUL F. WALSH, JR.,
District Attorney of Bristol County; KEVIN M. BURKE, District
Attorney of Essex County; ELIZABETH D. SCHEIBEL, District
Attorney of Franklin County and Hampshire County; WILLIAM M.
BENNETT, District Attorney of Hampden County; MARTHA COAKLEY,
District Attorney of Middlesex County; WILLIAM R. KEATING,
District Attorney of Norfolk County; MICHAEL J. SULLIVAN,
District Attorney of Plymouth County; RALPH C. MARTIN, II,
District Attorney of Suffolk County; JOHN J. CONTE, District
Attorney of Worcester County,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

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

Before

Boudin, Chief Judge,
Lynch, Circuit Judge,
Schwarzer,* Senior District Judge.

*
Of the Northern District of California, sitting by
designation.
 Mark L. Rienzi and Wilmer Cutler Pickering Hale and Dorr LLP
for appellants.
Dwight G. Duncan and Thomas M. Harvey on brief for appellants.
William W. Porter, Assistant Attorney General of
Massachusetts, with whom Thomas F. Reilly, Attorney General of
Massachusetts, was on brief, for appellees.

October 12, 2004
 LYNCH, Circuit Judge. This appeal is the second appearance

here of a case challenging a state law regulating speech and

activities within a buffer zone around health care facilities which

perform abortions. Three plaintiffs, women who are regular pro-

life "sidewalk counselors," appeal from an entry of summary

judgment against their First Amendment attacks, both facial and as-

applied, on the Massachusetts statute. We address whether the

prior opinion of this court precludes plaintiffs' facial attack,

the effect of several exemptions under the statute as interpreted

by the Attorney General, and the showing needed to make out an as-

applied attack.

The Massachusetts legislature, concerned about a history of

violence outside abortion clinics and the harassment and

intimidation of women attempting to use such facilities, enacted in

2000 the Massachusetts Reproductive Health Care Facilities Act,

Mass. Gen. Laws ch. 266, § 120E1/2. The Act creates a fixed buffer

zone within an 18-foot radius around the facilities (Reproductive

Health Care Facilities or "RHCFs"). The Act creates a floating

six-foot buffer zone around any person in that 18-foot area.

Within that six-foot floating buffer zone, it is impermissible for

a person to "knowingly approach another person . . . " without

consent "for the purpose of passing a leaflet or handbill to,

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

counseling." Id. The Act was largely modeled on the Colorado law

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found constitutional in Hill v. Colorado, 530 U.S. 703 (2000),

although there are some differences.

Mary McGuire, Ruth Schiavone, and Jean Zarella brought suit in

U.S. District Court after the Act became effective to preliminarily

enjoin enforcement of the statute as unconstitutional, both

facially and as-applied, under the First Amendment. Their success

at the district court level in obtaining a preliminary injunction,

McGuire v. Reilly, 122 F. Supp. 2d 97 (D. Mass. 2000), was short-

lived.

In McGuire v. Reilly, 260 F.3d 36 (1st Cir. 2001) (McGuire I),

this court reversed the grant of the preliminary injunction,

holding that plaintiffs had shown no probability of success on

their claim that the statute was facially unconstitutional and had

not produced evidence to demonstrate any unconstitutionality on an

as-applied basis. This court also recognized that plaintiffs,

should they adduce sufficient facts, might be able to make out a

claim that the statute, as applied, was unconstitutional:

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.

McGuire I, 260 F.3d at 47. McGuire I found the plaintiffs had not

to date produced any evidence that clinic employees or agents had

in fact engaged in the sort of speech proscribed by the statute,

and thus could not even begin to make an as-applied attack.

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 The case was remanded. Plaintiffs pursued claims of both

facial and as-applied unconstitutionality. Defendants were granted

summary judgment on the plaintiffs' claim of facial

unconstitutionality based on McGuire I. McGuire v. Reilly, 230 F.

Supp. 2d 189, 193 n.10 (D. Mass. 2002). After ample time for

discovery, the defendants moved for summary judgment on the as-

applied challenge. Plaintiffs opposed on grounds there were at

least genuine disputes of material fact entitling them to trial.

The district court granted summary judgment on the as-applied

claim. McGuire v. Reilly, 271 F. Supp. 2d 335, 345 (D. Mass.

2003).

Plaintiffs appeal from the judgment embodying both grants of

summary judgment: on the facial claim and on the as-applied claim.

I.

We recount the evidence submitted on summary judgment,

resolving all factual disputes in plaintiffs' favor.

The Act's requirements are triggered only within two areas

defined as fixed buffer zones. The first type of fixed zone is a

semicircle including all space within a radius of 18 feet from any

entrance, door, or driveway to a reproductive health care facility.

See Mass. Gen. Laws ch. 266, § 120E1/2(b). It is marked by painted

lines. The second type of fixed zone is a rectangle or corridor

extending from the two outside boundaries of any entrance door or

driveway to a reproductive health care facility out to the street

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in front of that door or driveway. Id. The width of this

rectangle is thus the distance between the two sides of the door or

driveway, capped at a maximum of six feet, while the length is the

distance between the door or driveway and the street. This second

type of fixed zone apparently is not redundant with the first type

only where the length between the door or driveway and the street

exceeds roughly 18 feet. Anyone can enter these two types of fixed

buffer zones. However, within the fixed buffer zones, the law

creates a six-foot "floating" buffer zone around persons or

occupied motor vehicles: it bans approaches into this floating

zone, without the consent of the person approached, for purposes of

oral protest, education, or counseling. Id. The Act contains

several exemptions from its coverage: most relevant here, it

exempts "employees or agents" of an RHCF who are "acting within the

scope of their employment," Mass. Gen. Laws ch. 266, §

120E1/2(b)(2), and it exempts "persons entering or leaving" an

RHCF, Mass. Gen. Laws ch. 266, § 120E1/2(b)(1).

The challenged statute permits speech or conduct within the

six-foot zone so long as it is consented to by the person

approached (we will use the term "patient"). It also places no

restrictions in speech or conduct outside of the six-foot zone.

The facts of this case involve two abortion clinics, one in

Boston and one in Brookline. On Saturday mornings only, Planned

Parenthood League of Massachusetts ("PPLM") utilizes patient

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escorts in front of and near its Boston facility. These escorts

are volunteers; PPLM has, nonetheless, established their duties and

responsibilities and has engaged in training and supervision of the

escorts. The Boston escorts wear blue vests and are easily

identifiable. By contrast, the Repro Associates clinic in

Brookline, Massachusetts, uses a more informal system of volunteers

to provide escort services on the days when abortions are

performed.

The plaintiffs Mary Anne McGuire, Ruth Schiavone, and Jean

Zarella regularly sidewalk counsel at the Boston PPLM clinic and/or

at the second facility, Repro Associates in Brookline. They

attempt to dissuade women from having abortions by engaging in

conversation, passing out leaflets, and offering their assistance.

None of the plaintiffs has ever been arrested for violation of the

Act; some have been warned or threatened with arrest for their

actions in front of the facilities.

McGuire

McGuire goes to the Boston PPLM clinic every Thursday morning

(in the past, she went on Wednesday mornings) and occasionally

other mornings and had been doing so for more than four years as of

2002. She also protests at the Brookline Repro clinic when others

regularly scheduled to be there are not there. One of McGuire's

jobs since she has been working at Operation Rescue (a pro-life

protest group) has been to coordinate the persons who do such

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sidewalk counseling. McGuire arranges to have sidewalk counselors

at the facilities on all days abortions are performed: Tuesday

through Saturday at PPLM in Boston; Monday, Tuesday, Friday, and

Saturday at Repro in Brookline.

McGuire tries to engage with patients coming toward the

entrance as far away from the clinic as she can, in order to

maximize the opportunity to engage in conversation. Most of the

time when she approaches women she is well outside the 18-foot

protected area. When McGuire approaches women outside of the fixed

buffer zone she tries to get very close to the women. She also

approaches women within the fixed buffer zone and tries to stay at

least six feet away. There are women who become upset when she

approaches.

McGuire has had several encounters with the police which are

not related to the buffer zone statute, such as when she was asked

to remove a stool and a television from the sidewalk and asked to

place signs elsewhere. Many of McGuire's encounters with the

police have been friendly, as when the police say hello to her.

McGuire testified that she was threatened with arrest once in 2002

at the Boston PPLM clinic due to the buffer zone statute. An

officer threatened to arrest her if she did not "stay outside the

white line" (the 18-foot fixed buffer zone, marked with paint).

However, no criminal complaint was taken out. McGuire did not

express her disagreement to the Boston Police Department.

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 McGuire testified that escorts sometimes tell patients that

they do not need to listen to her. She stated that one guard

inside the Brookline Repro clinic made women turn in any pro-life

leaflets before they could enter, even after women have argued with

him. An employee of the firm that manages the medical practice at

the Brookline facility could not speak directly to the truth of

this allegation but has seen patients hand pamphlets to security

people to throw them out as they are entering the building.

Schiavone

Schiavone, who protests on Saturdays at the Boston PPLM

clinic, testified at deposition that she too tries to encounter

patients as far outside the fixed buffer zone area as she can.

Even so, at times she cannot get near the patient because the

clinic escorts are already with the patient. She also enters the

fixed, 18-foot protected area. Schiavone has sometimes been able

to counsel a woman from some distance away from the door all the

way up to the door, although she remains 6 feet away once the 18-

foot protected area is reached.

On three separate occasions, two different police officers and

a police captain spoke to Schiavone and told her that she was

violating law. On all three occasions, a patient had just entered

the facility and Schiavone was trying to maintain a "presence" by

continuing to look at or speak to the patient through the PPLM

facility's glass doors. On the first occasion, Schiavone was

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within the 18-foot protected area but probably three feet from the

PPLM private property line; on the second and third occasions, she

was also within the protected area and was very close to the PPLM

property line. In the first and third cases, unknown officers

stated that they thought Schiavone was violating the buffer zone

law; in the second case, it is unclear whether the police captain

thought Schiavone was violating the buffer zone law or falling

afoul of preexisting trespass laws because she was over the

property line. Schiavone told the officers involved in the first

two incidents that she was not in violation of the law. Neither

officer pursued the issue; both merely walked away. The officers

involved in the first two incidents told Schiavone that she was

violating law; the officer in the third, most recent case told

Schiavone she was violating the law and also asked her how she

would "like to be arrested." No criminal complaint was taken out

in any of the three cases. Schiavone has had three encounters with

the police captain involved in the second incident and has found

him to be respectful, approachable and not hostile.

In one incident observed by Schiavone, when a pro-life

sidewalk counselor was knocked down by a stranger who had come

along and told him to mind his own business, the police arrested

the man who committed the assault. Schiavone also testified that

the police cannot see everything that goes on in front of the

facilities, and usually when a policeman approaches her it is

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because a facility escort has seen her activity, gone over to the

police and pointed it out.

Schiavone also testified that escorts sometimes will tell

patients things like "You don't have to listen to her [Schiavone].

Don't pay any attention to her," and patients will then sometimes

tell her to go away. But she did not report these statements

either to PPLM or to the police. She also testified that she has

seen escorts take leaflets that she has given to patients and their

companions out of these people's hands; on a couple of occasions,

an escort took a leaflet from a patient's hands without asking for

consent and tore it up. Sometimes the patients are accompanied by

companions, such as boyfriends, who will sometimes, in various

forms, tell Schiavone to go away. When the escorts escort a woman

into the clinic, Schiavone has no knowledge about whether the woman

had spoken with PPLM (to request escorts) before coming to the

clinic that day or whether the woman had consented to the escorts'

approach.

Zarella

Zarella engages in sidewalk counseling most often on Fridays

at the Brookline Repro facility, although she protested at the PPLM

facility once. She, too, tries to reach patients who she thinks

are going in for an abortion as far away from the doorway as

possible. When she approaches women, some of them stop but those

who stop, stop only briefly. Zarella has never been threatened

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with arrest by the police. Zarella testified that her activities

take place almost entirely outside the white line that designates

the buffer zone.

Zarella testified that sometimes companions of patients become

upset with her and tell her to go away. She stated that escorts

often try to surround patients and chatter loudly to drown her out,

or have told patients not to listen to Zarella. Sometimes escorts

have repeated "[p]ro-abortion rhetoric," such as "We have help.

We'll help you get inside." Further, Zarella testified that in May

2002, a man accompanying a patient walked into her and made

threatening statements, the police responded to complaints about

him, and she filed a criminal complaint against him. Zarella has

never complained to the police about anything the escorts were

doing.

Enforcement Policy

Even before this court's McGuire I opinion in August of 2001,

the state Attorney General's office provided advice by letter dated

November 10, 2000, to local police departments in Brookline and

Boston. The letter set forth the Attorney General's interpretation

of the language of the Act providing that the exemption for clinic

employees and agents applied only when such persons were "acting

within the scope of their employment." This interpretation has

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remained essentially consistent from the beginning.1 In this first

letter, the Attorney General noted that if escorts were to approach

within six feet of a woman within the fixed buffer zone in order to

"hurl[] epithets at demonstrators," then their actions would not be

within the scope of their employment and they would not be

protected by the exemption.

On July 16, 2001, the Attorney General's office provided

training to the same effect to the Boston Police Department. The

training noted that the exemption for clinic employees was for the

purpose of permitting employees and agents to help patients into

clinics. On July 25, 2001, the same training was provided to the

Brookline Police Department. In turn, the Boston Police Department

adopted the view that if escorts act outside of the bounds of their

employment as so defined, then the clinic escorts, if engaged in

prohibited speech or conduct, would be violating the law.

Before this court's decision in McGuire I, representatives of

the Attorney General's office met with representatives of PPLM on

May 23, 2001, to communicate the Attorney General's interpretation

that the Act's exemption for clinic employees and agents acting

within the scope of their employment would not protect such persons

1
Thus, the February 14, 2003 letter from an assistant attorney
general to various police personnel across the state did not
signify a new interpretation; it was merely a restatement of an old
position. In this most recent clarification of the interpretation,
the Attorney General has clearly construed the exemption to exclude
pro-abortion or partisan speech from the term "scope of their
employment."

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if they were to use the exemption to engage in counter-protests,

counter-education, or counter-counseling against anti-abortion

views, rather than simply assisting the patients into the clinic

and protecting clinic access. And once this court issued its

decision in McGuire I, the Attorney General's office, on December

19, 2001, sent a copy of the opinion to PPLM, reiterated its view

of the exemption, and directed PPLM to the language in the First

Circuit opinion that the purpose of the clinic employee and agent

exemption was in order to permit patients to "'secure peaceful

access' to clinics." On the same date, the Attorney General

similarly informed the Brookline facility.

The policies of the Boston Police Department on the Act are

consistent as to both sides of the abortion debate. The Department

policy is to be flexible, to warn individuals first and to try to

mediate any dispute, before taking enforcement actions. Warnings

have been given by the Boston Police to both pro-life protestors

and clinic escorts. The pro-life protestors have received warnings

when they have gotten too close to people walking into the Boston

clinic and/or have gotten in their way. In turn, clinic escorts

have been warned about putting out their arms to fend off pro-life

protestors and about being overly aggressive in getting patients

into the building. The Boston Police view the term "scope of

employment" as permitting escorts to escort patients into the

clinic and to offer them assistance. In its view, the Act

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prohibits escorts from approaching patients within the buffer zone

without consent to counsel, leaflet or educate them.2 One anti-

abortion sidewalk counselor, Cheryl Fitzpatrick, was arrested on

February, 15, 2002, for repeatedly violating the buffer zone law

even after being warned. There was one arrest of a Marie Vitale

for stalking.

The Brookline Police Department has a similarly flexible

policy of first warning the person engaged in the conduct, then

video-and-audio taping the conduct. Arrests are only made if the

conduct persists. The Brookline Police also take the position that

because the escorts at the Brookline clinic are neither employed

nor supervised by the clinic, those individuals do not get the

benefit of the clinic exemption. People expressing both anti-

2
By affidavit, a Boston Police Department captain confirmed
that the Department followed the interpretation set forth by the
Attorney General and that the Department enforced the law first by
warnings, then by mediation attempts before making any arrests:

Both pro-life protestors and clinic escorts have received
warnings from Boston Police officers. Pro-life
protestors have received warnings when they have come
within extremely close proximity of people walking into
the Planned Parenthood facility and have gotten in their
way. Planned Parenthood escorts have received warnings
about putting out their arms to fend off pro-life
protestors and about being overly aggressive in getting
patients into the building. . . .
To my knowledge, there has been only one person arrested
for violating the buffer zone law at the Planned
Parenthood facility in Boston. The person arrested is a
pro-life "sidewalk counselor" (but not one of the
plaintiffs in this case) who was arrested after repeated
warnings over a period of months from me or my officers.

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abortion and pro-abortion views in front of clinics have received

warnings from the Brookline Police. The officer in charge of

enforcement of the law at the Repro facility has warned people

about 12 times. In his years of observing incidents at the Repro

clinic both before and after the enactment of the buffer zone law,

this officer had seen roughly 25 incidents of violence. There have

been no arrests for violations of the buffer zone law in Brookline.

The police testified that there are certain inherent

difficulties in enforcement of the law from the point of view of

the police. For example, the police usually do not know whether a

patient entering the clinic has consented or not consented to an

approach. Also, the Boston police captain tries to survey the

whole scene and thus is usually not close enough to hear what the

sidewalk protestors are actually saying to the patients.

Other Evidence of Activities

Shortly after the effective date of the Act, in November 2000,

a Boston police captain reported to an assistant attorney general

that plaintiff Schiavone had approached a patient within six feet

of the buffer zone at the PPLM clinic and told the patient not to

"kill her baby." She was given a warning by the police. In early

January 2001, unidentified demonstrators approached within six feet

and harassed the employees and agents of the Boston PPLM clinic

within the buffer zone. In February 2001, a number of abortion

protestors impeded access to the Boston PPLM clinic. In March

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2001, PPLM complained to the police that two sidewalk counselors

were approaching occupied cars without consent within the 18-foot

fixed buffer zone area. In April 2001 at the Boston clinic, anti-

abortion protestors reportedly prevented a patient from getting out

of her car.

The Security Director for the Brookline Repro clinic has

called the Brookline Police about anti-abortion protestors. The

director has generally called the police only when protestors have

actually stood on both sides of the front door pushing literature

and holding signs in the faces of patients entering the clinic,

with the patients telling the protestors to leave them alone. The

protestors, he testified, refused to stay six feet away as required

by the buffer zone law but instead argued with those trying to

enter the clinic and told them that they "[didn't] have to murder

[their] child." The Security Director thought that when confronted

with those types of facts, the Brookline Police might do something

"as far as warning [the protestors] to move back a few feet at that

point." The Security Director testified that he had not had much

success in getting the Brookline Police to act.

The individual plaintiffs have never complained to the police

about clinic employees or escorts, although one individual, William

Cotter, who shares their anti-abortion opinion and has acted as the

head of Operation Rescue, has complained to the Boston Police when

he believed clinic employees or escorts were violating the buffer

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zone law. Cotter stated that escorts sometimes tell patients

things to the effect that they do not need to listen to the pro-

life protestors. He also stated that escorts sometimes "ask[]" or

"suggest[]" that patients give them any anti-abortion leaflets they

have received from protestors. For example, they say things like:

"Do you want me to take that from you," or "You know, you don't

need that."

Finally, an employee of PPLM and the chief escort both

testified that at some point, a Boston police captain asked that

escorts walk patients into the vestibule of the clinic in the

course of their escorting duties. The police captain at issue

denied ever "instruct[ing] the escorts or representatives" of PPLM

"to accompany the person entering the clinic right into the

clinic," and further denied that this was ever an "issue with

[him]." At least one set of PPLM's instructions to its volunteer

escorts included the instruction that "[w]hen you bring patients to

the door of the clinic you should walk into the vestibule with them

and then turn around and come back out. The reasons for this (if

there are any) are complex. However, the police want the escorts

to walk into the building."

II.

Plaintiffs initially attacked the buffer zone law facially;

they were granted a preliminary injunction against its enforcement,

with the district court holding that the Act was not content

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neutral because it applied only to abortion clinics and seemed

targeted only at the topic of abortion speech. McGuire v. Reilly,

122 F. Supp. 2d 97, 102 (D. Mass. 2000). The court also held that

the law was viewpoint discriminatory because the statutory

exemption for clinic employees and agents showed on its face that

pro-abortion speech was being favored over pro-life speech. Id. at

103-04.

In McGuire I, this court reversed the grant of the preliminary

injunction, and in the process we essentially struck down

plaintiffs' facial challenge. McGuire v. Reilly, 260 F.3d 36 (1st

Cir. 2001). The McGuire I court held that plaintiffs had shown no

probability of success on the merits. The buffer zone law, it

held, should be classified on its face as a content-neutral time,

place, and manner restriction and thus should be upheld against a

facial challenge because it satisfied intermediate scrutiny. Id.

at 48.

We noted in McGuire I that the Massachusetts buffer zone

statute was very similar to the buffer zone statute that had been

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

Hill v. Colorado, 530 U.S. 703 (2000). The key inquiry in both

cases, the McGuire I court noted, was the statute's purpose:

specifically, whether the legislative purpose was one that was

"unrelated to disagreement with the underlying message of

particular speech, and advances interests unconnected to expressive

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content." McGuire I, 260 F.3d at 44 (citing Hill, 530 U.S. at

719). After looking at the statute and its legislative history,

the court in McGuire I found that the legislative purposes of the

enactment, as was the case with the statute in Hill, were content-

neutral ones designed to promote personal security and to

facilitate safe access to medical care. Id.

Turning to the exemption for clinic employees, we considered

in McGuire I that it perhaps could be enforced in a viewpoint

discriminatory manner but that plaintiffs' facial challenge

necessarily failed, given that there was at least one content-

neutral purpose for the exemption (and thus it could be enforced in

a content-neutral manner). Id. at 46-47. One content-neutral

purpose was the reinforcement of the idea that "those who work to

secure peaceful access to RHCFs need not fear prosecution." Id. at

47. The court then added the following: "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." Id. The court thus set out the initial, threshold

showing that plaintiffs would need to make before they could even

begin building an as-applied challenge.

On remand, the district court recognized that the facial

challenge had been foreclosed by McGuire I and granted summary

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judgment against the plaintiffs on their facial claim. McGuire v.

Reilly, 230 F. Supp. 2d 189, 193 n.10 (D. Mass. 2002). However,

the court provided a discovery period to develop a factual record

on the as-applied claim; only after an additional discovery period

of six months did it grant summary judgment against plaintiffs on

the as-applied claim as well. McGuire v. Reilly, 271 F. Supp. 2d

335 (D. Mass. 2003).

The district court gave the Attorney General's interpretation

of the Act "great weight" and noted that it was in harmony with the

content-neutral legislative purposes outlined in our decision in

McGuire I. Id. at 342. The court stressed that the Attorney

General's interpretation had been adopted by the Brookline and

Boston Police Departments. Id. at 340.

The court then stated that in order to mount an as-applied

challenge, the plaintiffs needed to show "a pattern of unlawful

favoritism, abuse, or infelicitous application" involving the

conduct of state actors. Id. at 342. The court noted the

plaintiffs' evidence of alleged violations of the buffer zone law

and pro-abortion advocacy by escorts, but also found that "the

plaintiffs' evidence focuses almost exclusively on the conduct of

clinic escorts, rather than on the conduct of law enforcement."

Id. Plaintiffs failed to raise a genuine issue of fact that the

police departments were not applying the law in an evenhanded

manner and in accordance with the Attorney General's content-

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neutral interpretation. See id. at 343. Since the escorts were

merely private actors, and since there was no evidence that state

actors were not being evenhanded, the as-applied claim foundered on

the lack of state action. See id. at 342-43.

Plaintiffs then moved at the district court level to alter or

amend the judgment, arguing that the law was not being evenhandedly

enforced by the enforcement authorities. McGuire v. Reilly, 285 F.

Supp. 2d 82 (D. Mass. 2003). From the evidence described earlier,

they argued that escorts continued to engage in pro-abortion oral

protest, education, and counseling, yet no police officer was in a

position to enforce the law against escorts because the police

stood too far away, no escort had ever been warned, arrested, or

prosecuted by the police for speech prohibited by the Act (although

they had been warned for physical aggressiveness), and police

officers had instructed escorts to enter and exit the building with

the patients they are escorting, thus circumventing the Attorney

General's limited interpretation of the employee and agent clause

in the statute. Id. at 86-87.

The district court rejected these arguments, noting that few

arrests had been made on either side given the police's flexible

enforcement policy, and that the police decisions as to where best

to position themselves deserved some deference. Id. at 87-88. The

court determined that warnings of escorts for physical

aggressiveness did help to show that the statute was being

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evenhandedly enforced, because warnings for physical aggressiveness

helped to serve the purposes behind the buffer zone act -- the

warnings removed obstacles to anti-abortion protestors' ability to

get consent to approach patients. Id. The court finally noted

that the "enter and exit" exemption should not be interpreted to

apply to the escorts because they were covered by a separate

exemption, and the allegations made that the police were using this

exemption to circumvent the Attorney General's interpretation

failed to give the reasons the police might have had for giving

escorts such an instruction. Id. at 88. Thus, the court concluded

that there was still no genuine issue of material fact that the

statute was being enforced in a non-evenhanded manner, and denied

the motion to alter or amend the judgment. Id. at 89.

After judgment issued, the plaintiffs timely appealed the

grants of summary judgment on both the facial claim and the as-

applied claim.

III.

Since the matters were resolved on summary judgment, we review

de novo the district court's conclusion that there were no genuine

issues of material fact. Joyal v. Hasbro, Inc., 380 F.3d 14, 16,

18 (1st Cir. 2004).

A. Facial Attack

Plaintiffs continue their attack on the facial validity of the

-23-
statute in this second round. They point out that the decision in

McGuire I addressed only preliminary injunctive relief; they argue

McGuire I held no more than that they lacked a probability of

success on the merits. Plaintiffs' attempt to use the limits of

preliminary injunctive relief here misunderstands both McGuire I

and the nature of a facial attack.

Plaintiffs argue that the Act on its face embodies both an

impermissible content-based regulation of speech and,

alternatively, that it constitutes viewpoint discrimination. In

their facial attack, the burden on the plaintiffs is normally

expressed as a showing that the statute "admits of no valid

application." McGuire I, 260 F.3d at 47. One articulation of the

requirements of a federal court facial challenge, unless claims of

overbreadth (and possibly also vagueness) are at issue, is set

forth in United States v. Salerno, 481 U.S. 739 (1987):

A facial challenge to a legislative Act is . . . the most
difficult challenge to mount successfully, since the
challenger must establish that no set of circumstances exists
under which the Act would be valid.

Id. at 745; see also City of Chicago v. Morales, 527 U.S. 41, 55 &

n. 22 (1999) (noting, in plurality opinion, that the standard for

evaluating facial challenges is not necessarily quite as demanding

as indicated by Salerno, at least where vagueness concerns are

present: a law is sometimes subject to facial attack where

"vagueness permeates the text"); Richard H. Fallon, Jr.,

-24-
Commentary, As-Applied and Facial Challenges and Third-Party

Standing, 113 Harv. L. Rev. 1321, 1321-23 (2000) (explaining the

split on the Supreme Court over whether the Salerno formulation of

facial challenges is correct or whether some slightly less

demanding standard is appropriate).

The nature of plaintiffs' facial attack on both the content

and viewpoint theories turns not on the historical facts of how the

statute has been applied, but on the words of the statute. Both

the content and viewpoint theories focus on the Act's exemption for

"employees or agents of [an RHCF] acting within the scope of their

employment." Mass. Gen. Laws ch. 266, § 120E1/2(b)(2). Plaintiffs

argue that the statute is content-based because the application of

this exemption necessarily requires reference to the content of

speech: one cannot determine whether an agent of the clinic is

violating the Act without seeing whether she has moved outside the

scope of her employment by protesting, educating, and counseling.

This argument is foreclosed to plaintiffs as a pure matter of

law under Hill, 530 U.S. at 719-22, as explained in McGuire I, 260

F.3d at 44. Here, the statute -- based on the very limited scope

of behavior affected -- is a simple time, place, or manner

restriction. In such a case, the core inquiry for determining

content neutrality is not whether applying the statute requires

some reference to the content of speech, but whether the

legislative reason for the law is content neutral. Just like the

-25-
Colorado statute in Hill, 530 U.S. at 719-20, the statute here has

content-neutral purposes: protecting safety and access to medical

care. McGuire I, 260 F.3d at 44. The mere fact that the police

might, in some instances, need to listen to the content of speech

to determine if the law has been violated does not make the statute

content based. See Hill, 530 U.S. at 720-22.

Similarly, the facts plaintiffs have presented, based on the

new record assembled since remand from McGuire I, which they claim

prove that the statute in practice has a tendency to burden pro-

life speech more than it burdens pro-choice speech, are irrelevant

to the statute's content (or viewpoint) neutrality. As we noted in

McGuire I, this statute is content neutral if it was enacted for a

content-neutral legislative purpose, regardless of any

"incidental[] . . . adverse effect on certain messages while

leaving others untouched." McGuire I, 260 F.3d at 43. The

plaintiffs have done nothing to undermine our earlier finding of a

content-neutral legislative purpose.

Plaintiffs' facial challenge of impermissible viewpoint

discrimination is also based on the law's exemption for "employees

or agents." As we explained in McGuire I, so long as a reviewing

court can "envision at least one legitimate reason for including

the employee exemption in the Act," the law is not facially

unconstitutional. McGuire I, 260 F.3d at 47. In McGuire I this

court found there were likely explanations for the exemption other

-26-
than the desire to favor pro-abortion speech over anti-abortion

speech: "For example, the legislature may have exempted clinic

workers -- just as it exempted police officers -- in order to make

crystal clear . . . that those who work to secure peaceful access

to RHCFs need not fear prosecution." Id. at 47. For this reason

given in McGuire I, the viewpoint facial attack fails, now as

then.3

We turn to one last argument that plaintiffs urge as to facial

constitutionality. They argue that McGuire I was wrong in holding

that the various statutory exemptions did not render the statute

facially unconstitutional because of facts which developed after

McGuire I was decided. They argue that the Attorney General's

interpretation of the "employees or agents" exemption, so as to

place pro-choice advocacy by escorts outside of the exemption's

safe harbor, is a plainly incorrect interpretation of the language

of the exemption and at any rate is not binding. Moreover, they

argue that this interpretation has set up a new ground for facial

unconstitutionality. Plaintiffs point to some evidence, noted

above, showing that a Boston police captain perhaps at some point

after this interpretation was issued suggested that escorts should

enter the building with the patients that they have been escorting.

3
Had there been an intervening change in controlling Supreme
Court case law between McGuire I and now, plaintiffs could have
plausibly argued for a different outcome. There has been no such
change and their argument is foreclosed.

-27-
From this the plaintiffs deduce that the statute's exemption for

"persons entering or leaving [RHCFs]" is facially unconstitutional;

the purpose for this exemption, plaintiffs submit, is to protect

the pro-abortion counseling and education of escorts and others

that would not otherwise be allowed under the statute.

The argument turns back on itself and fails. The Supreme

Court has held that "[i]n evaluating a facial challenge to a state

law, a federal court must . . . consider any limiting construction

that a state court or enforcement agency has proffered." Ward v.

Rock Against Racism, 491 U.S. 781, 795-96 (1989) (quoting Village

of Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 494

(1982)) (alterations in original) (internal quotation marks

omitted). The usual idea, though, is that the limiting

construction put on the Act by its interpretation can save a

statute that would otherwise be facially unconstitutional.

Logically, there is no way (save perhaps when overbreadth is an

issue) that an authority's non-binding and non-authoritative4

interpretation of a facially valid statute can make it more

facially constitutionally vulnerable than it would be otherwise.

Here the statute is facially constitutional even without the

limitation; the disputes over the correctness of the Attorney

4
Since plaintiffs argue that the Attorney General's
interpretation is neither binding nor authoritative, they cannot
simultaneously make a facial attack on the law based on that
interpretation.

-28-
General's interpretation, over the binding nature of this

interpretation, and over the police department's alleged

instruction to the RHCFs are irrelevant to this facial challenge.

We discuss later the role these interpretations play in the as-

applied challenge.

To the extent that plaintiffs are arguing that the entry and

exit exemption is itself facially unconstitutional, they are wrong.

Like the employee and agent exemption looked at in McGuire I, the

entry and exit exemption has many "likely" legislative motivations

that are content neutral. See McGuire I, 260 F.3d at 47. For

example, as the district court noted below, the exemption seems

likely to have been intended merely to emphasize that "persons with

legitimate business inside the clinic, such as patients" and

companions accompanying patients with their consent, are protected

from the Act's restrictions. McGuire, 285 F. Supp. at 88. This is

fully consistent with the Act's content-neutral aim of securing

safe medical access.

Plaintiffs have offered no reason why the conclusion reached

in McGuire I that the statute is facially constitutional is flawed.

We affirm entry of summary judgment on that claim.

B. As-Applied Attack

Plaintiffs mount two types of challenges to the entry of

judgment against their as-applied claim.

-29-
 First, they argue that the district court applied the wrong

standard to evaluate their claim. They say their burden was to

show no more than that clinic employees or others were approaching

within six feet of people in the 18-foot protected area, without

getting the consent of the people approached. They say no showing

of "state action" is necessary. Further, they argue that the

district court wrongly held them to the more stringent standards of

an equal protection selective prosecution claim, rather than to

those of an as-applied First Amendment viewpoint discrimination

claim.

Second, the plaintiffs argue that the district court erred in

concluding that their evidentiary submissions raised no genuine

dispute of material fact. We address this argument later.

Three preliminary items may be quickly dispatched. First, the

defendants argue that absent some concrete injury to plaintiffs,

such as being arrested, the as-applied challenge is neither ripe

nor do the plaintiffs have standing. Plaintiffs alleged that they

have been chilled in the exercise of their speech rights by fear of

arrest and some have been threatened with arrest. Like the

district court, we have no doubt plaintiffs have standing under the

First Amendment doctrine for equitable relief, and the controversy

is ripe. See Steffel v. Thompson, 415 U.S. 452, 475 (1974)

(declaratory relief available on as-applied challenge when no state

prosecution is pending); Mangual v. Rotger-Sabat, 317 F.3d 45, 56-

-30-
60 (1st Cir. 2003) (the First Amendment challenge of a newspaper

reporter to a criminal libel statute was ripe, and the reporter had

standing, where the law chilled the reporter's writing as there was

no indication that the state had disavowed criminal prosecutions of

violators).

Second, the plaintiffs simply misread McGuire I when they

argue that it held that all plaintiffs need to show to win an as-

applied challenge is that clinic employees engaged in nonconsensual

pro-abortion advocacy within the six-foot floating buffer zone.

McGuire I described some evidence which was a necessary but not

sufficient predicate for any as-applied claim.

Third, the plaintiffs argue that activities of private

persons, including those neither known to the police nor to which

the police have turned a blind eye, demonstrate that the statute

has been applied in a viewpoint discriminatory way. Not so.

Obviously, only the government can violate First Amendment rights:

every First Amendment claim thus requires state action in some

sense. See Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n,

531 U.S. 288, 295 (2001) (state action is a necessary component of

a constitutional claim against a state); Hudgens v. NLRB, 424 U.S.

507, 514-21 (1976) (First Amendment claim required state action;

claim against private shopping center for preventing peaceful labor

picketing failed because shopping center was not a state actor);

Yeo v. Town of Lexington, 131 F.3d 241, 248, 255 (1st Cir. 1997)

-31-
(en banc) (state action is necessary component of First Amendment

claim; student editors exercising independent editorial judgment

were not state actors). Yet much of what plaintiffs complain about

here is purely private action jousting with the ideas plaintiffs

espouse. The First Amendment is concerned with government

interference, not private jousting in the speech marketplace.

Sometimes, as plaintiffs state, the statute itself can provide

the requisite state action, at least if there is some threat that

the statute will be enforced by state personnel. See Lugar v.

Edmondson Oil Co., 457 U.S. 922, 941-42 (1982) ("While private

misuse of a state statute does not describe conduct that can be

attributed to the State, the procedural scheme created by the

statute obviously is the product of state action," and acts done

under the authority of that statute can be considered state action

if the acts are done jointly by private and state actors).

However, as the court noted in Lugar, it all depends on what is

being challenged: state action is present in this way only if what

the plaintiff is really aiming at is the constitutionality of the

statute itself. For example, there is no state action if what the

plaintiff is really aiming at are the acts of private persons that

are actually illegal under the statutory scheme, because then the

acts do not reflect the policy of the state. See id. at 940-41.

To the extent that the plaintiffs are claiming that the statute is

unconstitutional as applied merely because private pro-choice

-32-
persons are engaging in acts that are illegal under the statute,

their claim has nothing to do with the statute at all and they

cannot bring it because there is no state action.

Here, plaintiffs claim to be aiming at the statute itself:

they argue that the fact that private pro-choice individuals are

now engaging in various acts that they claim are allowed by the

statute is proof that the statute (at least as applied to the

current facts) is itself unconstitutional content and viewpoint

discrimination. Plaintiffs cannot win such an argument. The

"adverse effect[s]" of the statute are not relevant to its facial

viewpoint and content neutrality; only the legislative intent

counts. McGuire I, 260 F.3d at 43. By themselves, acts of private

parties under the statute are merely examples of how the statute is

adversely affecting one side more than another. Plaintiffs thus

cannot use private actions to challenge the statute itself. The

only challenge they have left in this case is to the way the law

has been enforced. Lugar and related cases stand for the

proposition that "enforcement" of a state statute by purely private

individuals, without some involvement by state officials, does not

constitute state action; hence plaintiffs' evidence of private

activity must be linked to the state's enforcement efforts somehow.

See, e.g., Edmonson v. Leesville Concrete Co., 500 U.S. 614, 622-24

(1991); Lugar, 457 U.S. at 941-42; Flagg Bros. v. Brooks, 436 U.S.

149, 164-66 (1978).

-33-
 We turn now to the appropriate standard against which to

measure the as-applied attack.

The Standard

McGuire I recognized that while the statute was valid on its

face, it was still possible that enforcement against a given person

in a particular situation could be invalid on an as-applied basis.

Plaintiffs were afforded the opportunity to show on remand that

they were such persons.

There are different types of as-applied attacks. The most

common situation is where the language of a statute is broad and

could potentially cover many different types of fact situations;

the as-applied challenge is then an attempt to "specify" the law by

freshly testing its constitutionality in one particular fact

situation while refusing to adjudicate the constitutionality of the

law in other fact situations.5 See United States v. Nat'l Treasury

Employees Union, 513 U.S. 454, 477-78 (1995) (act prohibiting

5
It is in reference to this sort of as-applied challenge that
the court in Foti v. City of Menlo Park, 146 F.3d 629 (9th Cir.
1998), observed that an as-applied challenge is an independent
claim from a claim that the law is being enforced in a viewpoint
discriminatory way. The Foti court observed that a claim "that the
law is unconstitutional as applied to the litigant's particular
speech activity, even though the law may be capable of valid
application to others" is a separate inquiry from whether
"discriminatory enforcement of a speech restriction amounts to
viewpoint discrimination in violation of the First Amendment." Id.
at 635. The type of as-applied challenge raised by plaintiffs,
however, is exactly the same as a claim that discriminatory
enforcement of a statute has led to viewpoint discrimination.

-34-
receipt of honoraria by government employees in return for speeches

and writings was unconstitutional as applied to lower-level

executive employees, the parties to the case, but not necessarily

as to senior employees); United States v. Raines, 362 U.S. 17, 23-

25 (1960) (refusing to declare an act facially unconstitutional

where the act might be unconstitutional as applied to private

actors but is certainly not unconstitutional as applied to public

officials, and the parties challenging the law were public

officials); Fallon, supra, at 1329-35 (explaining this sort of

specification as the paradigmatic type of as-applied challenge).

The fact situation that plaintiffs are involved in here is the core

fact situation intended to be covered by this buffer zone statute,

and it is the same type of fact situation that was envisioned by

this court when the facial challenge was denied in McGuire I;

plaintiffs do not and cannot argue that they are different types of

actors, or that they are involved in a different type of fact

situation, from the ones on the basis of which the law was already

upheld facially. Plaintiffs' as-applied challenge must be of a

different sort.6

Plaintiffs' as-applied challenge must be based on the idea

6
Nor is this a situation where the text of a statute does not
give fair warning that it applies to a certain set of facts. See
Raines, 362 U.S. at 22-23 ("Perhaps cases can be put where their
application to a criminal statute would necessitate such a revision
of its text as to create a situation in which the statute no longer
gave an intelligible warning of the conduct it prohibited." (citing
United States v. Reese, 92 U.S. 214, 219-220 (1875))).

-35-
that the law itself is neutral and constitutional in all fact

situations, but that it has been enforced selectively in a

viewpoint discriminatory way. See Thomas v. Chicago Park Dist.,

534 U.S. 316, 325 (2002) (licensing scheme itself was

constitutional but, if in course of enforcing the act, the

licensing authority "[g]rant[ed] waivers to favored speakers (or,

more precisely, den[ied] them to disfavored speakers)," then the

licensing authority would be acting unconstitutionally). Such a

challenge is dependent on the factual evidence provided as to how

the statutory scheme has in fact operated vis-á-vis the plaintiffs.

The exact claim is that in practice the government has engaged

in viewpoint discrimination by failing to enforce the statute

against persons who violate the statute by expressing pro-

abortion/pro-choice views without consent in the six-foot buffer

zone, while enforcing the statutory prohibitions against those in

the same position who express anti-abortion/pro-life views. The

essence of a viewpoint discrimination claim is that the government

has preferred the message of one speaker over another. The general

principle is that "the First Amendment forbids the government to

regulate speech in ways that favor some viewpoints or ideas at the

expense of others." Members of the City Council of Los Angeles v.

Taxpayers for Vincent, 466 U.S. 789, 804 (1984); see also

Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819,

829 (1995) (viewpoint discrimination occurs when speech is

-36-
regulated where "the specific motivating ideology or the opinion or

perspective of the speaker is the rationale for the restriction.").

The viewpoint discrimination doctrine has been thought by one

commentator to have two ultimate constitutional justifications: 1)

fear of "impermissible reasons for governmental action," and 2)

fear of the "skewing effects on the system of free expression."

See Cass R. Sunstein, Half-Truths of the First Amendment, 1993 U.

Chi. Legal F. 25, 26-27.

Viewpoint discrimination claims themselves may occur in

different contexts. One such context occurs when the state decides

whether or not to impose criminal penalties based on the viewpoint

expressed by someone's words. See R.A.V. v. City of St. Paul, 505

U.S. 377, 391-92 (1992). That is not this case. Here, both pro-

abortion and anti-abortion speech is prohibited in the six-foot

floating buffer zone, so long as there is no consent. Another sort

of context involves government funding of speech, where viewpoint

discrimination is permitted in some situations, see Rust v.

Sullivan, 500 U.S. 173, 192-95 (1991), but not in all, see Legal

Servs. Corp. v. Velazquez, 531 U.S. 533, 548-49 (2001). That is

also not this case. Rather, this case involves a claim that the

government enforces the law against persons of one viewpoint who

violate the statute while not enforcing the law against similarly

situated persons of the opposing viewpoint who also violate the

statute.

-37-
 The First Amendment viewpoint discrimination claim that is

made here is, by its terms, a claim of discrimination. Plaintiffs

argue that the district court confused this doctrine with the Equal

Protection Clause's anti-discrimination doctrine concerning

selective enforcement of criminal laws. However, plaintiffs do not

address what substantive differences exist.

There are at least two differences that might be relevant

between this case and the typical case in which a claim of equal

protection discriminatory enforcement is made. First, this is a

First Amendment challenge based on viewpoint discrimination, not an

equal protection challenge based on discriminatory enforcement of

the laws. Second, here a plaintiff in a civil action is bringing

this claim to support desired injunctive relief; in the typical

equal protection discriminatory enforcement case, the challenge is

brought by a defendant offering a defense to a criminal

prosecution.

The issue of whether the two standards differ deserves brief

discussion here, but we need not resolve it, because plaintiffs

lose under even the standard most favorable to them. The primary

potential difference concerns the role of intent: in equal

protection cases, plaintiffs must show that the relevant government

actor intended to discriminate against the disfavored group. See,

e.g., Wayte v. United States, 470 U.S. 598, 608 (1985); Personnel

Adm'r of Mass. v. Feeney, 442 U.S. 256, 274 (1979). Intent, in

-38-
this context, means more than mere knowledge by the government

actor that a policy has a discriminatory effect; the government

agent must have adopted the policy because of, and not despite, its

discriminatory impact. See Wayte, 470 U.S. at 610; Feeney, 442

U.S. at 279. Impermissible intent is difficult to demonstrate in

the kind of selective enforcement claim being brought by the

plaintiffs here. When wearing its prosecutor hat, the government

has a great number of legitimate, non-discriminatory reasons for

the actions it takes to engage in or decline prosecution.

We think that some showing of intent on the part of government

officials probably is necessary to make out an as-applied First

Amendment viewpoint discrimination claim in this case. This

statute was held facially constitutional based on the fact that the

legislative motivations in passing it were content-neutral

motivations. The fact that one side of the abortion debate might

suffer some incidental adverse effects or burdens did not defeat

the statute's constitutionality. If we require invidious

legislative intent to make this kind of otherwise content-neutral

statute content or viewpoint discriminatory, then there seems no

reason why we should not require invidious intent by the enforcers

to take this statute outside of the category of content-neutrality

now. Unless government actors were to intentionally enforce the

statute unequally, then any evidence of inequality that plaintiffs

were to show would merely indicate a "disproportionate[] burden[]"

-39-
that would not signify viewpoint discrimination. McGuire I, 260

F.3d at 44.

The role that traditional pattern evidence (statistical

studies and the like) can play in a traditional equal protection

challenge is limited by the fact that courts have been loathe to

infer intent from mere effect, although the Supreme Court has

consistently noted that such an inference is possible. See Vill.

of Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252,

266 (1977) ("Sometimes a clear pattern, unexplainable on grounds

other than race, emerges from the effect of the state action even

when the governing legislation appears neutral on its face. . . .

But such cases are rare."(citing Yick Wo v. Hopkins, 118 U.S. 356

(1886))); see also Feeney, 442 U.S. at 275 (it may be appropriate

to infer intent from disproportionate impact where the impact is

unexplainable on other grounds); Washington v. Davis, 426 U.S. 229,

241-42 (1976) (pattern evidence may be a piece of the inquiry into

finding intent from "the totality of the relevant facts"). Perhaps

the standard for allowing such an inference of intent from a

pattern of impact would be more plaintiff-friendly in the First

Amendment context, given the special place that First Amendment

rights have traditionally held in our constitutional jurisprudence.

See, e.g., Palko v. Conn., 302 U.S. 319, 327 (1937) (Freedom of

speech is "the matrix, the indispensable condition, of nearly every

other form of freedom.").

-40-
 At any rate, we need not consider this further. The Supreme

Court has stated that in order to win a viewpoint discriminatory

enforcement challenge against a law that is facially neutral, the

challenger would need to show "a pattern of unlawful favoritism."

Thomas, 534 U.S. at 325. We turn now to the issue of whether

plaintiffs have raised a genuine issue of material fact as to the

existence of such a pattern.

Genuine Issue of Material Fact

The district court held that on the facts plaintiffs had not

shown that the enforcement of the statute amounted to viewpoint

discrimination. That conclusion was based on several subsidiary

conclusions. First, the relevant police departments, Boston and

Brookline, had in fact adopted the Attorney General's construction

of the Act. As a result, the "employees or agents" exemption did

not in practice excuse unconsented speech that was pro-abortion

within the six-foot floating buffer zone. See McGuire, 271 F.

Supp. 2d at 342-43. Second, plaintiffs produced no evidence that

in enforcing the Act the state was "ignoring the speech activities

of favored speakers (or . . . prosecuting, issuing warnings, or

unduly beleaguering only disfavored speakers)." Id. at 341. In

fact, the state had enforced the Act in the same manner as to both

viewpoints, giving warnings to those of both viewpoints who

apparently violated the Act and using arrest powers only after

multiple warnings.

-41-
 We first discuss the relevance of the Attorney General's

interpretation of the "employees or agents" exemption in this as-

applied context. Plaintiffs protest mightily that we must not give

the Attorney General's interpretation any weight, given that it is

inconsistent with the plain meaning of the statute and that is not

binding in any way for the future. We do not think that the

interpretation is inconsistent with the statute's plain meaning.

In fact, as we explained in McGuire I, we find the Attorney

General's interpretation to be one very likely interpretation of

the exemption's language. See McGuire I, 260 F.3d at 47. Further,

it makes no difference that the Attorney General's interpretation

is non-binding for the future. This as-applied challenge must,

logically, be aimed at past conduct; we cannot speculate as to

future enforcement patterns. The Attorney General's

interpretation, therefore, is important for our purposes merely

because it is clearly a proper, content-neutral way of interpreting

the exemption; thus, to the extent that the police have adhered to

it in their actual enforcement practices, there are no grounds for

holding their enforcement viewpoint discriminatory.

We turn to the evidence. Plaintiffs have produced evidence

that some escorts tell patients that they do not have to listen to

the plaintiffs. Plaintiffs also produced evidence that some

escorts have tried to drown out the words of the plaintiffs. There

is further some evidence that some escorts have taken anti-abortion

-42-
leaflets out of the hands of patients. There is no evidence that

patients did not consent to almost all of the takings of these

leaflets. None of these three kinds of acts is self-evidently a

violation of the statute as interpreted by the Attorney General.

We look for other evidence that pro-choice advocates violated the

statute.

Zarella's deposition reported that she had heard escorts

repeating "[p]ro-abortion rhetoric." But the only further

specifics she gave were of escorts saying things like "We have

help. We'll help you get inside." Statements like these are not

violations of the Act under the Attorney General's interpretation.

More importantly, even if the plaintiffs have produced some

evidence that pro-abortion individuals violated the statute, they

are stymied because there is no evidence that the police turned a

blind eye toward pro-abortion speech while not turning a blind eye

to possible transgressions by plaintiffs. The evidence shows that

the police responded to all incidents involving pro-abortion

personnel to which they have been made aware.7 They cannot be

7
The plaintiffs' argument that the police station themselves
too far away from the buffer zone area for them to determine if the
Act has been violated does not properly lead to an inference that
the police are enforcing the statute in a viewpoint discriminatory
manner. There are many legitimate law-enforcement reasons for
police to station themselves further away from the clinic: they may
be able to see more of the total scene from that position, it may
be the best position from which to respond to violence, and they
may be worried about intimidating patients if they were to stand
very close to or inside the fixed buffer zone.

-43-
expected to be made aware of every incident, particularly when, as

the district court noted, "none of the plaintiffs has complained to

the police or to any other law enforcement authority about any oral

protests, education, or counseling being engaged in by employees

and agents at clinic entrances." McGuire, 271 F. Supp. 2d at 340.

Warnings have been given to both sides. The district court

was correct in concluding that even if all of the warnings given to

clinic employees and agents were for physical aggressiveness and

not for speech, those warnings still helped to show that the Act

was being applied evenhandedly because they served the purposes of

the Act. McGuire, 285 F. Supp. 2d at 87-88. Plaintiffs make much

of the fact that no pro-abortion person has been arrested for

violating the Act, but this fact does not help plaintiffs because

there is no evidence that it is anything other than a byproduct of

the police's "flexible" enforcement policy, which seeks to warn

extensively before arresting. This enforcement policy, on the

evidence, has been applied evenhandedly to both sides, and in fact

only one anti-abortion protestor has been arrested for violating

the Act.

Plaintiffs raise one final issue when they argue that their

evidence shows that the police have interpreted and used the entry

and exit exemption as a loophole for the rest of the law. Police

have instructed escorts always to enter the clinic, plaintiffs say,

because police have interpreted the exemption for people "entering

-44-
or leaving" an RHCF to protect escorts who enter the clinic even if

they protest, educate, or counsel within six feet of a patient

without that patient's consent. Essentially, they argue, the

police's use of the enter/exit exemption has eviscerated the

Attorney General's content-neutral interpretation of the "employees

or agents" exemption. The evidence does not support the

plaintiffs' claim. Even if the escorts have accompanied the

patient through the doors into the clinic, there is no evidence

they have proselytized as they did so.

Because there is no evidence that the police have enforced

this statute in anything other than an evenhanded way, the district

court correctly entered summary judgment for the defendants on the

as-applied claim.

IV.

The district court's grants of summary judgment for the

defendants on the facial claim and on the as-applied claim are

affirmed.

-45-