What's in a buffer zone? It matters

By Erwin Chemerinsky

The U.S. Supreme Court's recent decision in McCullen v. Coakley, 2014 DJDAR 8317 (June 26, 2014), striking down a Massachusetts law creating a 35-foot buffer zone around reproductive health care facilities, necessitates new legislation across the country to safeguard women patients and others who are protected by many different kinds of buffer zones. The court's ruling provides a basis for challenging laws creating buffer zones around military funerals, cemeteries, places of worship, hospitals, as well as reproductive health care facilities. Legislatures need to act to repair these laws in light of the court's decision in McCullen.

Across the country, including in Massachusetts, women patients and health care providers have been targeted at reproductive health care facilities. Sometimes there have been violent assaults, including murders. Often there are verbal assaults. Patients seeking medical treatment - which may or may not include abortions - and health care professionals should not have to run a gauntlet of harassment in order to access the facilities and exercise their constitutional rights.

Many state and local governments have adopted buffer zones as a way to protect patients and those who work in clinics, while still protecting the speech rights of protestors. The Massachusetts law created a 35-foot buffer zone around reproductive health care facilities. The only individuals allowed in this area are patients using the facilities, employees who work there, law enforcement personnel, and those needing to go across the area to get to an adjacent property. Protestors, whatever their views, can express them; they just need to be outside of this area.

This was not the first Supreme Court case to deal with buffer zones. In 2000, in Hill v. Colorado, the court upheld a Colorado law that created a 100-foot buffer zone around medical care facilities. In this area, a person cannot go within eight feet of another for purposes of "counseling" or "protest." Opponents of buffer zones urged the Supreme Court in McCullen to overrule this earlier decision.

The Supreme Court did not do so, although four justices - Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito - were clear they believe that Hill should be overruled. Instead, the court's majority in McCullen said that the flaw in the Massachusetts law was that it was not sufficiently "narrowly tailored." The court, in an opinion by Chief Justice John Roberts, said that restrictions of speech on public sidewalks and other traditional public forums must be narrowly tailored. The court concluded that the Massachusetts law went too far in its restriction of speech in these places.

But this is an open invitation to arbitrary line drawing. If 35 feet is too much, would a buffer zone of 30 or 20 or 10 feet be constitutional? The court offered no criteria for determining which buffer zones will be allowed as being sufficiently narrowly tailored and which will be deemed to violate the First Amendment.

The significance of allowing buffer zones has importance outside of the reproductive health care context. In recent years, after the court found right to protest at military funerals, governments created buffer zones around cemeteries and funeral homes. For example, a federal law creates a 300-foot buffer zone around military funerals. Forty-one states adopted laws creating buffer zones around cemeteries and funeral homes. Other laws create buffer zones around places of worship, such as synagogues, churches and mosques.

In all of these instances, peaceful protests are permitted, but privacy is protected by being sure that the speech does not disrupt activities or intrude on those present. Now, however, the constitutionality of such buffer zones is in doubt because they, too, restrict speech on public sidewalks. They can and will be challenged on the grounds that they are not sufficiently narrowly tailored.

What can legislatures do? First, they can adopt stricter laws making it a crime to obstruct access to facilities, such as reproductive health care facilities. Roberts' majority expressly said that this was a constitutional alternative to buffer zones. There is a federal law, the Freedom of Access to Clinic Entrances Act, which makes it a federal crime to injure, intimidate or interfere with those seeking to obtain or provide reproductive health care services. State and local governments can adopt their own statutes like this which then be enforced by state and local police.

Second, state and local governments can adopt laws, like the Colorado statute in Hill, that prohibit approaching within eight feet of a person for purposes of "counseling" or "protest" within a designated area without the person's consent. The Supreme Court expressly did not overrule this decision, though it had been urged to do so. Although such laws are more difficult to enforce than the fixed buffer zone such as the one invalidated in McCullen, they have proven effective in protecting women from harassment while still allowing free speech.

Third, the focus in McCullen was on the right of speakers to be on a public sidewalk. Jurisdictions can create buffer zone laws so long as there is an exception for speakers on the public sidewalk. For that area, the law could follow the Hill approach and prohibit going within eight feet of a person without his or her consent.

Buffer zones have become a crucial way of balancing speech rights with other interests, such as privacy. The court in McCullen v. Coakley should not be read as invalidating all buffer zones, even in the reproductive health care context. It just said that they must be narrowly tailored when they intrude on public sidewalks. The burden now is on state and local governments to redraw these buffer zones to meet this requirement.

Erwin Chemerinsky is dean and distinguished professor of law, Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law.

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