At least two aspects of the Supreme Court’s majority opinion in McCullen v. Coakley seem (at least to me, at least so far) to have gone under-reported in the news media. The first of these is that the case hinged largely on access to traditionally public areas:
It is no accident that public streets and sidewalks have developed as venues for the exchange of ideas. Even today, they remain one of the few places where a speaker can be confident that he is not simply preaching to the choir. With respect to other means of communication, an individual confronted with an uncomfortable message can always turn the page, change the channel, or leave the Web site. Not so on public streets and sidewalks. There, a listener often encounters speech he might otherwise tune out. In light of the First Amendment’s purpose “to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail,” FCC v. League of Women Voters of Cal., 468 U. S. 364, 377 (1984) (internal quotation marks omitted), this aspect of traditional public fora is a virtue, not a vice.
In short, traditional public fora are areas that have historically been open to the public for speech activities. Thus, even though the Act says nothing about speech on its face, there is no doubt—and respondents do not dispute—that it restricts access to traditional public fora and is therefore subject to First Amendment scrutiny.
That part shouldn’t be at all surprising to students of First Amendment jurisprudence, but it bears emphasis nonetheless. The clinics which are most impacted by laws like this one are those which do not have ample tracts of privately-owned land (e.g. parking lots) acting as a buffer around the main entrance.
The second aspect worth highlighting is that the decision centered on individuals who did not consider themselves protestors at all, and that the court accepted their self-characterization as “sidewalk counselors” rather than protestors:
Petitioners are not protestors. They seek not merely to express their opposition to abortion, but to inform women of various alternatives and to provide help in pursuing them. Petitioners believe that they can accomplish this objective only through personal, caring, consensual conversations. And for good reason: It is easier to ignore a strained voice or a waving hand than a direct greeting or an outstretched arm. While the record indicates that petitioners have been able to have a number of quiet conversations outside the buffer zones, respondents have not refuted petitioners’ testimony that the conversations have been far less frequent and far less successful since the buffer zones were instituted.
This is just fascinating to me, I had no idea that there were pro-life people who try to get their message out in a calm and conversational manner. I’m much more used to dealing with this sort of thing:
