McCullen v. Coakley

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.

-27-
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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