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
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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
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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-
McGuire v. Reilly
Court: Court of Appeals for the First Circuit
Date filed: 2004-10-12
Citations: 386 F.3d 45
Copy Citations