United States Court of Appeals
For the First Circuit
No. 08-2310
ELEANOR MCCULLEN ET AL.,
Plaintiffs, Appellants,
v.
MARTHA COAKLEY, ATTORNEY GENERAL FOR THE COMMONWEALTH
OF MASSACHUSETTS,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
Before
Howard, Selya and Hansen,*
Circuit Judges.
Michael J. DePrimo, with whom Philip D. Moran, Philip D. Moran
P.C., Benjamin W. Bull, and Alliance Defense Fund were on brief,
for appellants.
Dwight G. Duncan and Colbe Mazzarella on brief for Marlynda
Augelli, Susanna Brennan, Cynthia Brown, Magdalena Castro, Alveda
King, Anita Manninen, Esther Ripplinger, and Molly White, amici
curiae.
Kenneth W. Salinger, Assistant Attorney General, with whom
Martha Coakley, Attorney General, and Anna-Marie Tabor, Assistant
Attorney General, were on brief, for appellee.
*
Of the Eighth Circuit, sitting by designation.
Robert E. McDonnell, Laura K. Langley, Josephine Deang, and
Bingham McCutchen LLP on brief for American Civil Liberties Union
of Mass., amicus curiae.
July 8, 2009
SELYA, Circuit Judge. For more than three decades, those
who advocate for a woman's right to choose and those who advocate
for the right to life (based on a belief that life begins at the
moment of conception) have struggled for advantage in the
marketplace of ideas. A series of pitched battles, forming a part
of this struggle, has been waged at free-standing abortion clinics,
where protestors and anti-abortion counselors seek to dissuade
prospective patients, shame clinic workers, and call attention to
what they perceive as the evils of voluntary terminations of
pregnancies. In this campaign Massachusetts has been a
battleground state.
This appeal arises out of yet another skirmish in this
chronicle of discord. In a very real sense, genesis of the appeal
dates back to the dawning of the millennium. At that time, the
Massachusetts legislature enacted a statute that created a floating
buffer zone around the entrances, exits, and driveways of abortion
clinics throughout the state.1
Given the benefit of hindsight, the legislature revised
the law seven years later. The modified version of the statute
replaced the floating buffer zone with a 35-foot fixed buffer zone.
1
The mechanics of the 2000 Act and the dimensions of the
then-current buffer zone are described in earlier opinions of this
court. See McGuire v. Reilly, 386 F.3d 45, 49 (1st Cir. 2004);
McGuire v. Reilly, 260 F.3d 36, 40 (1st Cir. 2001).
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This appeal involves a multi-pronged facial challenge to the
constitutionality of the modified statute.
In a thoughtful and comprehensive opinion, the district
court rejected the facial challenge in all its iterations and
refused to enjoin enforcement of the new law. McCullen v. Coakley,
573 F. Supp. 2d 382 (D. Mass. 2008). After careful consideration
of the record, the parties' briefs, some helpful friend-of-the-
court briefs, and the arguments made orally, we affirm.
I. BACKGROUND
In this case, as in so many cases, the past informs the
present. We start there.
By the end of the twentieth century, Massachusetts had
experienced repeated incidents involving violence and other unduly
aggressive behaviors in the vicinity of reproductive health care
facilities (RHCFs). Choosing among a host of possible preventive
measures, the legislature took up a bill that proposed creating a
fixed 25-foot buffer zone around the entrances, exits, and
driveways of RHCFs.
The state senate held a hearing on the bill in April 1999
and received evidence of widespread harassment and intimidation
outside RHCFs. Numerous witnesses addressed not only the peculiar
vulnerability of women seeking abortion services but also the
deleterious effects of overly aggressive demonstrations on both
patient and provider safety. The senate concluded that existing
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laws did not adequately safeguard clinic staff, prospective
patients, or members of the public.
As part of its due diligence, the senate asked the
Massachusetts Supreme Judicial Court (SJC) for an advisory opinion
on the constitutionality of the proposed law. The SJC discerned no
constitutional impediment. Opinion of the Justices to the Senate,
723 N.E.2d 1, 6 (Mass. 2000).
The senate subsequently engrossed a bill intended to
enhance public safety in and around RHCFs while maintaining the
relatively free flow of traffic. See Mass. S. Jour., Feb. 29,
2000. That bill resembled the original senate bill.
Before the house of representatives could act on the
senate bill, the United States Supreme Court decided Hill v.
Colorado, in which the Justices upheld, as a content-neutral time,
place, and manner restriction, a Colorado statute designed to
ameliorate the same panoply of evils through the use of a floating
buffer zone. 530 U.S. 703, 707-08 (2000). The Colorado statute
synthesized the fixed and floating buffer zone concepts, making it
unlawful within a 100-foot fixed zone for any person, in the
absence of consent, to "knowingly approach" within eight feet of
another person "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." Id. at 707 (quoting Colo.
Rev. Stat. § 18-9-122(3)).
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The Massachusetts legislature recognized that Hill had
shed new light on the legal landscape. Thus, the house tabled the
senate bill and repaired to the drawing board. The legislature
eventually enacted a law that was loosely patterned on the Colorado
statute. See An Act Relative to Reproductive Health Care
Facilities (2000 Act), S.B. 148, 181st Gen. Ct. (Mass. Aug. 10,
2000). The key component of the 2000 Act was a prohibition against
knowingly approaching within six feet of another without consent
for certain defined protest-related purposes. Because the
prohibition only operated within an 18-foot fixed buffer zone
around RHCF entrances, exits, and driveways, it mimicked the
Colorado law in combining floating and fixed buffer zone concepts.
A group of Massachusetts residents who wished to protest
in front of RHCFs mounted both facial and as-applied challenges to
the constitutionality of the new enactment. In successive
decisions, we rejected those challenges. See McGuire v. Reilly
(McGuire I), 260 F.3d 36, 51 (1st Cir. 2001) (rejecting facial
challenges); McGuire v. Reilly (McGuire II), 386 F.3d 45, 65-66 (1st
Cir. 2004) (rejecting renewed facial challenges as well as as-
applied challenges).
Over time, legislators became concerned that the statute
had failed to achieve its desired goals. In 2007, the legislature
held public hearings devoted to the need for rewriting the statute.
Testimony (including statements from law enforcement officials and
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clinic workers) revealed unanticipated difficulties in enforcing the
2000 Act and called into question that Act's efficacy. The upshot
was a decision to reshape the law by, among other things,
repudiating the floating buffer zone concept and relying instead on
a 35-foot fixed buffer zone.
On November 8, 2007, the legislature enacted the revised
law. See An Act Relative to Public Safety at Reproductive Health
Care Facilities (2007 Act), S.B. 1353, 185th Gen. Ct. (Mass. Nov.
13, 2007). It declares that "[n]o person shall knowingly enter or
remain on a public way or sidewalk adjacent to [an RHCF]" within a
designated buffer zone. Mass. Gen. Laws ch. 266, § 120E 1/2(b)
(2007). The Act describes the new buffer zone as comprising
a radius of 35 feet of any portion of an
entrance, exit or driveway of a reproductive
health care facility or within the area within
a rectangle created by extending the outside
boundaries of any entrance, exit or driveway of
a reproductive health care facility in straight
lines to the point where such lines intersect
the sidelines of the street in front of such
entrance, exit or driveway.
Id. Moreover, the law prohibits all persons from entering or
remaining within the buffer zone during ordinary business hours,
subject to exceptions for four classes of persons, namely:
(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
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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.
Id. Each of these exceptions derives from the 2000 Act. And the
2007 Act, like the 2000 Act, also requires that the buffer zone be
clearly marked. See id.
On January 25, 2008, the Attorney General sent a letter
to an audience that included law enforcement and RHCF personnel.
The letter purports to summarize the provisions of the 2007 Act and
to furnish "guidance to assist . . . in applying the four
exemptions." This guidance comprises four paragraphs, set forth
verbatim in an appendix to this opinion.
II. TRAVEL OF THE CASE
On January 16, 2008, plaintiffs-appellants Eleanor
McCullen, Jean Blackburn Zarrella, Gregory A. Smith, Carmel Farrell,
and Eric Caden, all Massachusetts residents who regularly engage in
pro-life counseling outside RHCFs, sued the Attorney General of
Massachusetts, in her representative capacity, in the federal
district court. Their complaint invoked 42 U.S.C. § 1983, limned
a constellation of constitutional claims, and prayed for declaratory
and injunctive relief aimed at derailing the 2007 Act. Without
objection, the district court bifurcated the case into facial and
as-applied challenges. As to the former, the court consolidated the
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preliminary injunction hearing with the hearing on the merits, see
Fed. R. Civ. P. 65(a)(2), and began a bench trial on May 28, 2008.
In due season, the court issued a decision denying relief.
McCullen, 573 F. Supp. 2d at 425. This interlocutory appeal
followed. We have jurisdiction under 28 U.S.C. § 1292(a)(1).
III. ANALYSIS
We begin our odyssey by outlining the legal standards that
apply generally to facial challenges and then proceed to the myriad
prongs of the plaintiffs' facial challenge. Because the issues
raised on appeal implicate the First Amendment, they engender de
novo review. See Bose Corp. v. Consumers Union, 466 U.S. 485, 508
(1984).
A. General Standards.
Around the edges, the standards that apply in evaluating
facial challenges to the constitutionality of statutes are not
entirely clear. See Richard H. Fallon, Jr., Commentary, As-applied
and Facial Challenges and Third-Party Standing, 113 Harv. L. Rev.
1321, 1322-23 (2000). For present purposes, though, the path is
reasonably well-lighted.
The Supreme Court recently has stated that a facial
challenge will fail if a statute "has a plainly legitimate sweep."
Wash. State Grange v. Wash. State Repub. Party, 128 S. Ct. 1184,
1190 (2008) (citation and internal quotation marks omitted). This
is a refinement of its earlier statement that a party mounting a
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facial challenge "must establish that no set of circumstances exists
under which the Act would be valid." United States v. Salerno, 481
U.S. 739, 745 (1987). Howsoever worded, this standard imposes a
very heavy burden on a party who mounts a facial challenge to a
state statute.
The statute at issue here implicates freedom of speech.
Justice Cardozo long ago observed that freedom of speech is "the
indispensable condition . . . of nearly every other form of
freedom." Palko v. Connecticut, 302 U.S. 319, 327 (1937). But even
so precious a freedom must, in particular iterations, be balanced
against the government's legitimate interests in protecting public
health and safety. See, e.g., Schenck v. United States, 249 U.S.
47, 52 (1919) ("The most stringent protection of free speech would
not protect a man in falsely shouting fire in a theatre.") (Holmes,
J.).
In striking this delicate balance, a court must calibrate
the scales differently depending on the nature of the governmental
action. McGuire I, 260 F.3d at 42. That calibration takes place
along a continuum. See Berner v. Delahanty, 129 F.3d 20, 28 (1st
Cir. 1997). At one end of the continuum are laws in which the
government attempts to differentiate between divergent views on a
singular subject; that is, laws in which the government attempts to
"pick and choose among similarly situated speakers in order to
advance or suppress a particular ideology or outlook." Id. Such
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viewpoint-based discrimination is highly offensive to the core
values of the First Amendment, and courts are wary of such
encroachments. See, e.g., Rosenberger v. Rector & Visitors of Univ.
of Va., 515 U.S. 819, 829 (1995).
Even when a law does not favor one particular viewpoint
over another, governmental restrictions on the content of speech may
be impermissible. See Turner Broad. Sys., Inc. v. FCC, 512 U.S.
622, 641-42 (1994). At this stage of the continuum, a reviewing
court must start with a presumption that such a content-based
regulation is constitutionally suspect. R.A.V. v. City of St. Paul,
505 U.S. 377, 383 (1992); Nat'l Amusements, Inc. v. Town of Dedham,
43 F.3d 731, 736 (1st Cir. 1995). That presumption can be rebutted
by a showing that the regulation is both necessary to the
furtherance of a compelling state interest and narrowly tailored to
the achievement of that interest. See, e.g., Boos v. Barry, 485
U.S. 312, 321 (1988).
Further along the continuum are laws that do not regulate
speech per se but, rather, regulate the time, place, and manner in
which speech may occur. Because such time-place-manner restrictions
are by definition content-neutral, they tend to burden speech only
incidentally; that is, they burden speech for reasons unrelated to
either the speaker's viewpoint or the speech's content. See Turner
Broad., 512 U.S. at 642. Regulations of this type will be upheld
as long as "they are justified without reference to the content of
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the regulated speech, . . . are narrowly tailored to serve a
significant governmental interest, and . . . leave open ample
alternative channels for communication of the information." Ward
v. Rock Against Racism, 491 U.S. 781, 791 (1989) (quoting Clark v.
Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984)). This
more relaxed standard, familiarly known as "intermediate scrutiny,"
is justified because the fact that a regulation is both content-
neutral and viewpoint-neutral helps to ensure that government is not
using the regulation as a sub rosa means of interfering in areas to
which First Amendment protections pertain. See Turner Broad., 512
U.S. at 642.
B. Content Neutrality.
What we have said to this point leads naturally to the
threshold question in this case. The district court found the 2007
Act to be content-neutral. McCullen, 573 F. Supp. 2d at 403. The
plaintiffs demur. Because the resolution of this dispute will
determine the contours of our subsequent analysis (including the
appropriate level of scrutiny), we tackle this question first.
Our principal inquiry in this regard, both in speech cases
generally and in time-place-manner cases specifically, "is whether
the government has adopted a regulation of speech because of
disagreement with the message it conveys." Ward, 491 U.S. at 781.
"Thus, a law designed to serve purposes unrelated to the content of
protected speech is deemed content-neutral even if, incidentally,
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it has an adverse effect on certain messages while leaving others
untouched." McGuire I, 260 F.3d at 43; accord McGuire II, 386 F.3d
at 57.
The lower court, relying mainly on Hill, 530 U.S. at 719-
20, determined that the 2007 Act was content-neutral because it did
not regulate speech — merely the places in which speech might occur.
McCullen, 573 F. Supp. 2d at 403. Moreover, the law was enacted in
response to legitimate safety and law enforcement concerns, and was
justified by those objectives without reference to the content of
any speech. Id.
The plaintiffs resist this characterization. They
acknowledge that the statute has a content-neutral patina, but they
insist that this patina masks a more sinister reality. They point
to several "facts" which, in their estimation, collectively indicate
that the legislature's abiding motive was to curb anti-abortion
speech. Specifically, the plaintiffs assert that the expanded size
of the buffer zone is suspicious; that the zone itself, as
reconfigured, contradicts its stated "public safety" goal in that
it causes more safety hazards than it abates; that the legislature
deliberately drew its evidence from biased sources, in effect
listening to only one side of the story; that this court's
characterizations of the 2000 Act, McGuire I, 260 F.3d at 49, belie
the legislators' professed concerns about enforcement of that law;
and that the nonexistent "emergency" referenced in the preamble to
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the 2007 Act is a figment of the legislators' collective imagination
(and thus, a cover-up for the legislature's real agenda).
Although a few of the factual components of this broadside
are new and others have been refurbished or reworked, the broadside
itself is on the order of one that was leveled against the 2000 Act
and soundly rebuffed in McGuire I. There, we wrote:
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 the negative
impact of a particular form of speech.
Id. at 45. So it is here.
As in McGuire I, the plaintiffs' basic complaint is that
alleged deficiencies in the factual record compiled by the
legislature — gaps, distortions, mischaracterizations, and the like
— compel an inference of pretext. But as in McGuire I, our
independent review of the record confirms that the legislative
factfinding adequately underpins what the legislature wrought. We
need not cite book and verse. Although the plaintiffs, ably
represented, have done a thorough job of fly-specking the
legislative record, their claim of pretext is no more effective than
was the counterpart claim advanced in McGuire I. Consequently, it
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is enough to note our wholehearted agreement with the district court
that the record is "replete with factual references to specific
incidents and patterns of problematic behavior around RHCFs."
McCullen, 573 F. Supp. 2d at 405. In the final analysis, the claim
of factual inadequacy amounts to little more than wishful thinking.
We nonetheless consider it wise to embellish two points.
First, the fact that we spoke approvingly of the 2000 Act did not
serve to freeze the statute in place. The legislature had a right
(some might say an obligation) to monitor the statute's operation
and to revisit the matter if experience revealed unexpected
problems. See Ward, 491 U.S. at 800; Nat'l Amusements, 43 F.3d at
742.
Second, the test for content neutrality does not require
proof that the legislature's response to a perceived problem be the
only solution or even the best solution; it simply requires that the
evidence support a conclusion that the regulation is in service to
a legitimate governmental interest unrelated to expressive content.
McGuire II, 386 F.3d at 58; McGuire I, 260 F.3d at 44. In grading
a regulation's efficacy under this test, a reviewing court must
grant a significant degree of respect to the legislature's judgment.
See Turner Broad., 520 U.S. at 195. Viewed through this deferential
prism, the factfinding that undergirds the 2007 Act easily attains
a passing grade.
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In a related vein, the plaintiffs maintain that several
features of the 2007 Act themselves constitute either content-based
or viewpoint-based discrimination. These features include the
exception for clinic employees and agents, the statute's alleged
under-inclusiveness (i.e., the fact that the legislature did not
extend it to other types of free-standing medical clinics), and the
Attorney General's guidance letter.
This three-faceted structural argument is not original.
Without exception, claims analogous to those that comprise it were
addressed in our earlier decisions anent the 2000 Act. See McGuire
II, 386 F.3d at 56-59; McGuire I, 260 F.3d at 44-47. Those
decisions render superfluous any exegetic discussion of the current
version of the structural argument. For now, it suffices to say
that the mere fact that a content-neutral law has a disparate impact
on particular kinds of speech is insufficient, without more, to
ground an inference that the disparity results from a content-based
preference. See McGuire II, 386 F.3d at 57; McGuire I, 260 F.3d at
44. Here, there is no "more."
To be sure, the plaintiffs strive to distinguish our
earlier decisions and add the missing integers to the equation.
Only two of these efforts deserve comment.
The argument that the law is content-based due to the
exception permitting those persons associated with RHCFs (e.g.,
clinic workers and patients) but not others to enter the buffer zone
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was squarely raised and squarely repulsed in McGuire I, 260 F.3d at
45-47. The present plaintiffs try to give that argument a new
twist. They posit that the very size and nature of a 35-foot fixed
buffer zone somehow changes the constitutional calculus and makes
this exception less defensible. This is whistling past the
graveyard.
The decisive question in a facial challenge is not whether
a regulation is necessary to achieve the legislature's stated goal
but, rather, whether a court can glean legitimate reasons for its
existence. See id. at 47. This principle applies to the
configuration of the buffer zone selected by the legislature. The
size of that zone need only be reasonably related to the attainment
of the legislature's goal. That some might think a 25-foot or 30-
foot buffer zone sufficient is not the issue.
Here, moreover, differences in the buffer zone's
dimensions and other characteristics do not tip the constitutional
balance. Regardless of those differences, the exception for persons
associated with RHCFs remains reasonably related to the
legislature's legitimate public safety objectives. No more is
exigible to reject this aspect of the plaintiffs' facial challenge.2
2
This same reasoning also serves to defeat the plaintiffs'
equal protection and viewpoint discrimination claims, each of which
focuses on the legislature's decision to limit the reach of the
relevant exception to persons associated with RHCFs.
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Second, the plaintiffs maintain that the Attorney
General's interpretive guidance (reprinted in the appendix)
demonstrates that the 2007 Act is not content-neutral. In
particular, they highlight the passage in the guidance letter in
which the Attorney General uses the phrase "abortion and partisan
speech." The force of this attack is dissipated by our decision in
McGuire II, 386 F.3d at 58, in which we explained that a state
official's interpretation of a statute, even if generally
authoritative, cannot render an otherwise constitutional statute
vulnerable to a facial challenge.
In sum, we find nothing in either the text or the
legislative history of the 2007 Act that deprives that statute of
content-neutral status. We proceed, therefore, with intermediate
scrutiny, recognizing that the constitutionality of the 2007 Act
turns on whether it is narrowly tailored and allows sufficient
alternative means of communication. See, e.g., Clark, 468 U.S. at
293.
C. Narrow Tailoring/Channels of Communication.
A regulation is narrowly tailored if it (i) facilitates
a substantial governmental interest that would be less effectively
served without the regulation and (ii) accomplishes this end without
burdening substantially more speech than necessary. Ward, 491 U.S.
at 799.
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The first element of this two-part definition is not
seriously disputed here. The interests ascribed by the legislature
to the 2007 Act (enhancing public safety around RHCFs, improving
traffic flow, and the like) are the same as those that we deemed
both proper and substantial in McGuire I, 260 F.3d at 48 (describing
those interests as "precisely the sort of interests that justify
some incidental burdening of First Amendment rights").
It is the second part of the definition that draws the
plaintiffs' fire: they argue that the 2007 Act regulates too much
speech. But this argument rests on a misconception; it assumes
that, in order to survive intermediate scrutiny, a law (and within
a law, a buffer zone) must burden no more speech than is absolutely
necessary to accomplish the law's legitimate purpose.
Perscrutation of the plaintiffs' briefs makes it apparent
that this misconception arises out of a misreading of the Court's
decisions in Schenck v. Pro-Choice Network, Inc., 519 U.S. 357
(1997), and Madsen v. Women's Health Center, 512 U.S. 753 (1994).
In each instance, the Court applied a "no greater restriction than
necessary" standard to determine the validity of an injunction. See
Schenck, 519 U.S. at 374; Madsen, 512 U.S. at 765. But injunctions
(which bind only the parties in a particular case and those in
privity with them) are more targeted than statutes (which apply
broadly to all concerned). This is a critically important
distinction; the Court has made it pellucid that the absence of
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general applicability subjects injunctions to a stricter standard
than legislative enactments. See Madsen, 512 U.S. at 764-65; cf.
Ry. Exp. Agency, Inc. v. New York, 336 U.S. 106, 112 (1949)
("[T]here is no more effective practical guaranty against arbitrary
and unreasonable government than to require that the principles of
law which officials would impose upon a minority must be imposed
generally.") (Jackson, J., concurring). A law of general
application passes muster under narrow tailoring principles as long
as it is not substantially broader than necessary to accomplish the
legislature's legitimate goal. See Ward, 491 U.S. at 799; see also
Madsen, 512 U.S. at 764.
Ward supplies the measuring stick that we must wield. The
2007 Act is a law of general application. Given that it promotes
a substantial public interest, McGuire I, 260 F.3d at 48, the
decisive question is whether it burdens substantially more speech
than necessary to serve that purpose. If the answer to that query
is in the negative, the law does not offend the First Amendment
"simply because a court concludes that the government's interest
could be adequately served by some less-speech-restrictive
alternative." Ward, 491 U.S. at 800. This means, of course, that
"a judge's agreement with the responsible decisionmaker concerning
the most appropriate method for promoting significant government
interests or the degree to which those interests should be promoted"
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are not conditions precedent to upholding a time-place-manner
restriction. Id.
That conclusion effectively ends this aspect of the
matter. Testimony from law enforcement officers and clinic workers
attested to the ineffectiveness of the preexisting law. Against
that backdrop, the legislature determined, after considerable study,
that the state's declared interests would be better served by
reconfiguring the buffer zone around RHCFs. The legislature labored
to balance First Amendment concerns with public safety concerns, see
McCullen, 573 F. Supp. 2d at 397-98 (recounting evidence), mulled
the advantages and disadvantages of variously configured buffer
zones, and decided (reasonably, we think) that a 35-foot fixed
buffer zone made sense. Given the deference that is owed to such
legislative judgments, see Turner Broad., 520 U.S. at 195, we cannot
say that the 2007 Act is substantially broader than necessary.
The fact that the legislature reached a different
conclusion seven years earlier (when it preferred a smaller buffer
zone that had both floating and fixed components) does not undercut
this conclusion. After all, legislative choice is a dynamic
process. Simply because a legislature previously has attempted to
address a particular problem in one way does not disable it from
taking a different approach at a later time. See, e.g., Ward, 491
U.S. at 800 (justifying increased regulation based on evidence of
inadequacy of municipality's prior attempts to combat noise); Nat'l
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Amusements, 43 F.3d at 742 n.9 (similar); cf. Rust v. Sullivan, 500
U.S. 173, 187 (1991) (affirming agency's reversal of position while
noting that in exercising legislatively delegated authority agency
is free to consider "the wisdom of its policy on a continuing
basis"). Experience is often the best teacher, and the incremental
nature of the legislature's actions seems more a virtue than a vice.
On these facts, the legislature's judgment must be respected. See
Turner Broad., 520 U.S. at 195.
Relatedly, the plaintiffs suggest that the 2007 Act is
constitutionally infirm because it amounts to a ban on handbilling
and interferes with the provision of an eight-to-fifteen-foot
"constitutional conversational distance." That suggestion is
jejune.
Contrary to the plaintiffs' importunings, the Constitution
neither recognizes nor gives special protection to any particular
conversational distance. See, e.g., Schenck, 519 U.S. at 380
(upholding a fixed 15-foot buffer zone). By the same token,
handbilling is not specially protected. See Heffron v. Int'l Soc'y
for Krishna Consciousness, Inc., 452 U.S. 640, 654 (1981). Time-
place-manner regulations routinely make particular forms of
expression impracticable without raising constitutional concerns.
See, e.g., Hill, 530 U.S. at 726-28. As we explained in Bl(a)ck Tea
Society v. City of Boston, 378 F.3d 8, 14 (1st Cir. 2004), there is
no constitutional guarantee of any particular form or mode of
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expression. The correct inquiry is whether, in light of the
totality of the circumstances, a time-place-manner regulation
burdens substantially more speech than necessary and, concomitantly,
whether such a regulation leaves open adequate alternative channels
of communication. See Clark, 468 U.S. at 293.
This brings us to the question of whether the 2007 Act
satisfies the last half of this prescription — the half that deals
with alternative channels of communication. To begin, the 2007 Act
places no burden at all on the plaintiffs' activities outside the
35-foot buffer zone. They can speak, gesticulate, wear screen-
printed T-shirts, display signs, use loudspeakers, and engage in the
whole gamut of lawful expressive activities. Those messages may be
seen and heard by individuals entering, departing, or within the
buffer zone.
Additionally, the plaintiffs may stand on the sidewalk and
offer either literature or spoken advice to pedestrians, including
those headed into or out of the buffer zone. Any willing listener
is at liberty to leave the zone, approach those outside it, and
request more information.
To cinch matters, the size of the zone is not
unreasonable. It bears repeating at this point that we are dealing
exclusively with a facial challenge to the 2007 Act. Thus, as long
as we can envision circumstances in which a 35-foot buffer zone
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allows adequate alternative means of expression, the challenge must
fail. See Wash. State Grange, 128 S. Ct. at 1190.
It is easy to envision such a scenario. Indeed, the zone
at issue here is slightly smaller than that upheld in Madsen, 512
U.S. at 768-70 (validating a 36-foot buffer zone under a standard
stricter than that which is applicable here). By like token, the
zone at issue here is substantially smaller than the fixed portion
of the buffer zone approved in Hill, 530 U.S. at 703 (upholding a
floating buffer zone within a 100-foot fixed buffer zone). Also
instructive is Burson v. Freeman, 504 U.S. 191 (1992), in which the
Court, applying strict scrutiny to a content-based regulation,
approved a 100-foot buffer zone for polling places. Id. at 211.
While there is no particular buffer zone radius that is per se
permissible or impermissible — everything depends on context — the
radius here is not, on its face, constitutionally deficient.
To say more on the binary question of narrow tailoring and
alternative channels of communication would be supererogatory. In
the circumstances revealed by the record, the 2007 Act, on its face,
is a valid time-place-manner regulation that advances a significant
governmental interest without burdening substantially more speech
than necessary and leaves open adequate alternative channels of
communication. Accordingly, the statute survives intermediate
scrutiny.
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D. Overbreadth.
First Amendment challenges based on a statute's alleged
overbreadth are more readily accommodated than other types of facial
challenges. The main difference is that courts will consider
overbreadth challenges even though the challenger's own free speech
rights are not implicated. See Broadrick v. Oklahoma, 413 U.S. 601,
612 (1973). This leniency results from a judicial "assumption that
the statute's very existence may cause others not before the court
to refrain from constitutionally protected speech or expression."
Id. The plaintiffs mount such a challenge. They argue that the
2007 Act cannot constitutionally be applied to the wide universe of
people who might want to linger in the buffer zone and express their
views. They liken this case to Board of Airport Commissioners v.
Jews For Jesus, in which the Supreme Court struck down as overbroad
an outright ban on all First Amendment activity within a major
international airport. 482 U.S. 569, 577 (1987).
The matter at hand is readily distinguishable from Jews
for Jesus. That case involved a direct ban on First Amendment
activity, whereas this case involves a time, place, and manner
restriction. The Court has left no doubt but that time-place-
manner restrictions should not be analyzed in the same way as direct
bans on speech. See Hill, 530 U.S. at 731.
In all events, the plaintiffs' overbreadth argument is
eerily reminiscent of one considered and rejected in Hill. There,
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the challengers asserted that the Colorado statute was overbroad
because it applied to all medical clinics, not just to abortion
providers. The Court debunked that assertion, stating that "[t]he
fact that the coverage of a statute is broader than the specific
concern that led to its enactment is of no constitutional
significance." Id. at 730-31; see id. at 723 (approvingly noting
that the statute applies "equally to used car salesmen, animal
rights activists, fundraisers, environmentalists, and
missionaries").
That logic is persuasive here. Although the Massachusetts
legislature was plainly moved to enact the statute by the secondary
effects of anti-abortion protests, it opted to address the secondary
effects of a broader range of activities in the interest of
effective enforcement. This decision to widen the statute's
coverage is a matter of degree, not a matter of kind. Legislatures
are not held to standards of mathematical precision where policy
judgments are concerned. See, e.g., Burson, 504 U.S. at 210
(describing the question of whether a 100-foot buffer zone could be
reduced by 25 feet as not of "constitutional dimension"). Here, the
increased degree of the expansion is reasonable, so the expansion
is not a matter of constitutional significance. See Hill, 530 U.S.
at 730-31; Burson, 504 U.S. at 210; see also City Council of Los
Angeles v. Taxpayers for Vincent, 466 U.S. 789, 802 (1984)
(explaining that "if the ordinance may be validly applied to [the
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plaintiffs], it can be validly applied to [a broader range of
persons]").
There is, moreover, a paradox that taints the plaintiffs'
overbreadth argument. The plaintiffs say, in effect, that the 2007
Act should have been limited to abortion-related speech. Yet the
absence of any reference to any particular kind of speech (and,
thus, to any particular content or viewpoint) is what makes the
statute content-neutral. See Hill, 530 U.S. at 723; Burson, 504
U.S. at 207. If a failure to distinguish among speakers in itself
gave rise to overbreadth problems, legislatures would be forced to
choose between passing laws that were not content-neutral or laws
that were overbroad. Hill pretermits the contention that the First
Amendment forces state legislatures to face this sort of Morton's
Fork.
We have yet another bridge to cross. At oral argument in
this court, the plaintiffs essayed a new and different spin on
overbreadth — a perspective that emerged during the panel's
questioning. Seizing upon this perspective, the plaintiffs
suggested that the Attorney General's guidance letter might be read
to criminalize the conduct of anyone who engages in any "partisan
speech," whether or not abortion-related, while passing though the
buffer zone. This interpretation raises the concern that an
individual could be prosecuted merely for passing through the buffer
zone en route to a destination outside the zone while, say, wearing
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a lapel pin advocating the election of a political candidate or a
T-shirt exhorting a favorite baseball team.
Though interesting, this argument is untimely. It was not
raised either in the district court or in the plaintiffs' briefs on
appeal.3 It is, therefore, waived. See United States v. Slade, 980
F.2d 27, 30 (1st Cir. 1992) ("It is a bedrock rule that when a party
has not presented an argument to the district court, she may not
unveil it in the court of appeals."); Anderson v. Beatrice Foods
Co., 900 F.2d 388, 397 (1st Cir. 1990) (holding that an appellant's
briefs fix the scope of the issues appealed and that, therefore, an
appellant cannot breathe life into an omitted theory merely by
referring to it at oral argument). That the court inquired about
the theory at oral argument does not lower this bar.
We add a coda. Were we to reach the merits of this
argument — which we do not — the proper resolution of it is not
obvious. The Supreme Court has cautioned that "[t]he overbreadth
doctrine is strong medicine that is used sparingly and only as a
3
To be sure, the plaintiffs' general overbreadth argument
implicitly attacks the exceptions to the 2007 Act. But avoiding
waiver requires more than a hint that a particular theory may be
lurking; it necessitates some developed argumentation addressed to
that particular theory. See United States v. Zannino, 895 F.2d 1,
17 (1st Cir. 1990).
The plaintiffs also argued below that the legislature's use of
the word "solely" in the statutory text rendered the statute
unconstitutionally vague. See McCullen, 573 F. Supp. 2d at 421.
Although their newly minted argument likewise involves, in part,
the statute's use of the word "solely," it is a conceptually
different argument.
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last resort." N.Y. State Club Ass'n v. City of New York, 487 U.S.
1, 15 (1988). Thus, a court may overturn a law as overbroad only
if "a substantial number of its applications are unconstitutional,
judged in relation to the statute's plainly legitimate sweep."
Wash. State Grange, 128 S. Ct. at 1191 n.6. Courts must "vigorously
enforce" this substantiality requirement. United States v.
Williams, 128 S. Ct. 1830, 1838 (2008). In this case, it seems
likely that the alleged overbreadth is not sufficiently sprawling
to serve as the foundation for a constitutional challenge.
E. Vagueness.
The plaintiffs contend that the Attorney General's
guidance letter renders the 2007 Act void for vagueness because it
uses the term "partisan speech" — a term that is allegedly so
amorphous "that persons of average intelligence would have no choice
but to guess at its meaning and modes of application." United
States v. Hussein, 351 F.3d 9, 14 (1st Cir. 2003). We reject this
contention.
The Due Process Clause forbids the sovereign from
depriving an individual of liberty pursuant to an excessively vague
law. See id.; United States v. Arcadipane, 41 F.3d 1, 5 (1st Cir.
1994). This doctrine prevents the enforcement of laws that fail to
give persons of ordinary intelligence a reasonable opportunity to
know what conduct is proscribed and what is not. Hill, 530 U.S. at
732; Hussein, 351 F.3d at 14. The Due Process Clause also forbids
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laws that impermissibly delegate basic policy matters to
adjudicators for resolution on an ad hoc or largely subjective
basis, thus threatening arbitrary and discriminatory application.
Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972).
In the district court, the plaintiffs alleged that the
2007 Act was impermissibly vague because of the uncertainty inherent
in the terms "solely" and "destination." See McCullen, 573 F. Supp.
2d at 421. They also argued that the term "partisan speech,"
provided as a gloss in the Attorney General's guidance letter
(reprinted in the appendix), rendered the statute vague. Id. In
this venue, the plaintiffs address only the term "partisan speech,"
a phrase found exclusively in the guidance letter.
When confronting a vagueness challenge to the face of a
state statute, we are obliged to accept any limiting construction
that a state agency has authoritatively proffered. Hoffman Estates
v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 n.5 (1982).
It is difficult to understand, however, how or why a challenger can
mount a facial attack on a statute that is itself not vague simply
because an enforcement official has offered an interpretation of the
statute that may pose problems down the road. See McGuire II, 386
F.3d at 58; see also Grayned, 408 U.S. at 108-09. As a matter of
logic, we do not believe that an official's interpretation can
render clear statutory language vague so as to make the statute
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vulnerable to a facial (as opposed to an as-applied) attack.4 See
McGuire II, 386 F.3d at 58; see also United States v. Protex Indus.,
Inc., 874 F.2d 740, 743 (10th Cir. 1989) (noting that a statute can
be void for vagueness, as applied, as a result of a retroactive
expansion of precise statutory language through interpretation).
Even were we to assume arguendo that the plaintiffs'
underlying point is that the statute itself is vague and that this
lack of precision is exacerbated by the Attorney General's guidance
letter, another obstacle would loom. Although the word "partisan"
may be vague at the margins, but see Broadrick, 413 U.S. at 608,
that uncertainty would have no relevance here. After all, the
plaintiffs, by their own admission, want to engage in anti-abortion
protests; and that conduct, as they must know, falls squarely within
the hard core of the proscriptions spelled out in the guidance
letter.
We need go no further. "One to whose conduct a statute
clearly applies may not successfully challenge it for vagueness."
Parker v. Levy, 417 U.S. 733, 756 (1974); see Broadrick, 413 U.S.
at 608. That is precisely the situation here.
F. Prior Restraint.
We need not linger long over the plaintiffs' claim that
the 2007 Act constitutes an impermissible prior restraint on speech.
4
The situation may well be different if the statute itself is
vague or ambiguous — but that is not the premise of the vagueness
argument that the plaintiffs are making here.
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The case law makes manifest that time-place-manner restrictions are
analyzed under intermediate scrutiny and not under the more rigorous
standard that applies to prior restraints. See, e.g., Bl(a)ck Tea
Soc'y, 378 F.3d at 12. Consequently, our determination that the
2007 Act is a valid time-place-manner restriction effectively
forecloses the plaintiffs' resort to case law involving prior
restraints. See id. ("If content-neutral prohibitions on speech at
certain places were deemed prior restraints, the intermediate
standard of review prescribed in the time-place-manner jurisprudence
would be eviscerated.").
IV. CONCLUSION
To recapitulate, the 2007 Act represents a permissible
response by the Massachusetts legislature to what it reasonably
perceived as a significant threat to public safety. It is content-
neutral, narrowly tailored, and leaves open ample alternative
channels of communication. It is, therefore, a valid time-place-
manner regulation, and constitutional on its face.
We add a caveat. This decision flows naturally from the
very heavy burden that plaintiffs must carry in mounting a facial
challenge to a state statute. Nothing that we have said forecloses
the possibility that, on a better-developed record, this legislative
solution may prove problematic in particular applications.
Affirmed.
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Appendix I: The Attorney General's Guidance.
The first exemption — for persons entering or
leaving the clinic — only allows people to cross
through the buffer zone on their way to or from
the clinic. It does not permit companions of
clinic patients, or other people not within the
scope of the second or third exemptions, to
stand or remain in the buffer zone, whether to
smoke, talk with others, or for any other
purpose.
The second exemption — for employees or agents
of the clinic acting within the scope of their
employment — allows clinic personnel to assist
in protecting patients and ensuring their safe
access to clinics, but does not allow them to
express their views about abortion or to engage
in any other partisan speech within the buffer
zone.
Similarly, the third exemption — for municipal
employees or agents acting within the scope of
their employment — does not allow municipal
agents to express their views about abortion or
to engage in any other partisan speech within
the buffer zone.
Finally, the fourth exemption — for persons
using the sidewalk or street adjacent to the
clinic to reach a destination other than the
clinic — applies to individuals who are crossing
through the buffer zone, without stopping, to go
somewhere other than a location within the zone
and other than the clinic, and who are not using
the buffer zone for some other purpose while
passing through. For example, an individual may
cross through the buffer zone to reach and speak
with someone outside the zone, to reach and
stand in a location outside the zone (perhaps to
engage in lawful protest, other speech, or
prayer), or to travel on to another place
altogether, provided that the individual does
not do anything else within the buffer zone
(such as expressing their views about abortion
or engaging in other partisan speech).
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