Posts Tagged ‘Michael Stokes Paulsen’

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 petitionHill 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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January 22 remains a day worth remembering. On this day in 1973, the Supreme Court promulgated its profoundly wrong decision in Roe v. Wade. At Mirror of Justice, Rick Garnett has some sober but hopeful reflections on Roe at 40.

Another date worth recalling is June 29. On that day in 1992, the Supreme Court issued Planned Parenthood of Southeastern Pennsylvania v. Casey. I share the view–most forcefully expressed by Michael Stokes Paulsen–that Casey is the worst constitutional decision of all time. (For Paulsen’s explanation, see Michael Stokes Paulsen, The Worst Constitutional Decision of All Time, 78 Notre Dame L. Rev. 995 (2002); summarized more recently in two columns at Public Discourse, available here and here.)

One axiom of some academic theories of constitutional law in recent decades has been that, for a theory to be right, it cannot yield the result that Brown v. Board of Education is wrong. I hope for the broad acceptance of a different axiom: Any theory of constitutional law is wrong if it yields the result that Casey is right.

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