SCOTUSBlog is running a series of video interviews with the ACLU’s Steven Shapiro. Part 4, posted this morning, is on amicus curiae briefs. As Mr. Shapiro undoubtedly knows, one of the most important assets that an organization like the ACLU has in advocating in particular issue areas is credibility. Unfortunately, the ACLU lost a lot of credibility this past Term because of its amicus curiae brief in support of neither party in McCullen v. Coakley. Were such a question appropriate in the context of these videos (and it is not, I think), it would have been interesting to ask Mr. Shapiro whether he regrets filing this brief.
Mr. Shapiro was counsel of record on what has to be one of the least speech-protective briefs ever filed by the ACLU in the Supreme Court of the United States. The longest portion of this brief’s defense of the facial constitutionality of Massachusetts’ public sidewalk speech restrictions argues that the law is a narrowly tailored time, place, and manner restriction. See Section I.B. The ACLU did not pick up a single vote for this position on the facial constitutionality of the Massachusetts law–not from Justice Ginsburg, nor Justice Breyer, nor Justice Sotomayor, nor Justice Kagan, nor the Chief Justice. Indeed, the Court held unanimously that the law was facially unconstitutional.
The ACLU’s McCullen brief did leave open the possibility that the Massachusetts statute could be invalid on an as-applied basis. But this portion of the brief probably would have been taken by the Justices and their clerks as a half-hearted attempt to save face rather than a serious attempt to protect freedom of speech. If this were not apparent from the Table of Contents alone, readers might have been tipped off by footnote 5, which explains the how the ACLU’s position “evolved over time.”
McCullen now sets the standard for serious narrow-tailoring scrutiny of content-neutral speech restrictions. This unanimous decision is likely to protect significant amounts of speech that otherwise would not have been protected without it. And the ACLU was on the wrong side.
There once was a time when the ACLU defended the First Amendment even when doing so conflicted with other (politically, not classically) liberal goals. See, for example, the ACLU’s brief (with Mr. Shapiro as counsel of record) in Hill v. Colorado. But the McCullen brief suggests that those days are over.
Not all evolution is progress.
Shame on the ACLU for abandoning free speech principles in McCullen v. Coakley.
(cross-posted at Mirror of Justice)
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Posted in Law, tagged Chen, First Amendment, Garnett, Hill v. Colorado, Krotoszynski, McCullen v. Coakley, Paulsen, Volokh, William E. Lee, Zick on September 17, 2013|
Following up on Tom Berg’s post at MOJ about the Democrats for Life brief and Michael Moreland’s post about the McConnell/Inazu/CLS et al. brief, see here for another amici curiae brief in support of petitioners inMcCullen v. Coakley. This one is filed on behalf of several First Amendment scholars: Eugene Volokh, Rick Garnett, Michael Stokes Paulsen, Timothy Zick, William E. Lee, Alan Chen, and Ronald J. Krotoszynski, Jr. The brief highlights the depth and breadth of academic criticism of Hill v. Colorado. The brief’s signatories have different views on the Supreme Court’s abortion jurisprudence but agree on the importance of the First Amendment principles at stake in the case. Special thanks to Matthew Fitzgerald of McGuireWoods for taking the pen and for serving as counsel of record.
The table of contents for the brief provides a sense of the arguments:
I. EVEN STRONG SUPPORTERS OF ABORTION RIGHTS
FAVORED FREE SPEECH IN HILL v. COLORADO................... 6
A. Hill’s content-neutrality holding disagreed with the ACLU
and drew immediate criticism from leading liberal scholars.............................. 8
B. Hill’s focus on protecting the unwilling listener was also widely
doubted and criticized............................ 12
II. THE LOGIC OF HILL OPENED THE DOOR TO
THE MORE RESTRICTIVE MASSACHUSETTS LAW HERE ................... 14
A. In the wake of Hill, scholars predicted trouble such as this
ahead. ..................................................... 14
B. The courts have slid directly down
Hill to McCullen..................................... 15
CONCLUSION ........................................................ 21
[cross-posted at Mirror of Justice]
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Posted in Law, tagged buffer zone, content-neutral, Eugene Volokh, First Amendment, Hill v. Colorado, McCullen v. Coakley, Michael Stokes Paulsen, narrow tailoring, Richard Garnett on June 24, 2013|
1 Comment »
The Supreme Court’s grant of certiorari today in McCullen v. Coakley is important for First Amendment law, although likely to be overlooked in most of the reporting on today’s other important grants and opinions. One of the main items of interest from early reporting is what this grant might mean for the future of Hill v. Colorado, a terrible First Amendment decision issued by the Court in 2000. As much as I would like to see the Court overrule Hill, it does not need to do so in order for the petitioners in McCullen to prevail on their First Amendment challenge. And while I believe both that the McCullen petitioners should win and also that the Court should overrule Hill, I think it much more likely that the petitioners will win without the Court overruling Hill.
There are important differences between the Colorado law upheld in Hill and the Massachusetts law challenged in McCullen. These statutory differences could have significance for both the content neutrality and tailoring determinations, as laid out in the petition. Hill addressed the constitutionality of a floating buffer zone that prohibited close physical approaches without consent in an area surrounding health care facilities. McCullen involves the constitutionality of fixed exclusion zones at freestanding abortion clinics. The law challenged in McCullen expressly exempts agents and employees of the abortion clinics from its reach, and operates to prohibit stationary handbilling and stationary speech from a conversational distance within the exclusion zone. Another state law already prohibits obstruction to clinic entrances, but that law preserves speakers’ “rights to engage in peaceful picketing which does not obstruct entry or departure.”
As explained in an amicus brief in support of certiorari that I co-authored and filed on behalf of Professors Richard Garnett, Michael Stokes Paulsen, and Eugene Volokh in this round of McCullen (as well as an amicus brief in support of certiorari on behalf of a slightly larger group of law professors in an earlier round of McCullen), the Massachusetts law fails narrow tailoring even if it is held to be content neutral. I think it unlikely that a majority of the Court would wish to further ensconce the dubious content-neutrality reasoning of Hill, but there may nonetheless be a majority of the Court in favor of leaving it undisturbed for the time being. Both goals can be accomplished by assuming without deciding that the challenged Massachusetts law is content neutral. While that would not be the optimal First Amendment outcome, it would also be an improvement over the legal status quo.
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