I am very pleased to be able to welcome my first “guest blogger” in the person of Professor Michael Quinlan, Dean of the University of Notre Dame’s Sydney-based Law School. Michael’s note on this important issue, which is now becoming more relevant in Australia in recent years, was originally published in “On the Case”, a series of notes on legal issues produced by the UND Sydney Law School. He has kindly agreed to me re-publishing it here.
Issue 9 of On the Case discussed the recent decision of the Supreme Court of the United States (the US Supreme Court) in relation to same sex marriage in Obergefell  and the implications for Australia of that decision. The Obergefell decision received substantial media attention in Australia  although the legal position in the two countries is quite different. 
In this edition of On the Case Professor Michael Quinlan, the Dean of The University of Notre Dame Australia, School of Law, Sydney, discusses another recent decision of the US Supreme Court, McCullen.  In this decision the US Supreme Court considered the legality of exclusion zones around abortion clinics. Whilst this decision did not attract media attention in Australia, as Tasmania introduced exclusion zones around abortion clinics last year  and other Australian States and Territories are considering doing so,  the approach of the US Supreme Court to this issue warrants attention.
This decision considered the validity of a Massachusetts law which made it a crime to knowingly stand on a “public way or sidewalk” within 35 feet of any place where abortions are performed or offered other than a hospital.  The US Supreme Court found that law to be unconstitutional.
The Massachusetts law was introduced in 2007  following clashes between advocates for and opponents of abortion outside abortion clinics.
This case was brought by a number of people who engaged in “sidewalk counselling” of women approaching abortion clinics (the Counsellors). Whilst it might be appropriate to describe some people who stand outside Massachusetts abortion clinics as protestors because they use signs or chants or face-to-face confrontation to express their religious, moral or conscientious objection to abortion, this was not the approach of the Counsellors. The Counsellors provided women with information about alternatives to abortion and help in taking any of those alternatives if they wished to do so. In order to provide this counselling, the Counsellors considered that it was essential for them to maintain a caring demeanour, a calm tone and direct eye contact with women entering abortion clinics. The Counsellors claimed that because the exclusion zone included the public footpaths adjacent to the clinics they were not able to approach the clinics’ entrances and driveways and that this frustrated their counselling efforts.
The Counsellors argued that standing outside the exclusion zone meant that they could not distinguish patients from other passers-by and that this made it difficult for them to distribute literature to arriving patients. It also meant that where they had engaged a patient in conversation they had to stop their discussions at the border of the exclusion zone. This resulted in the Counsellors often having to raise their voices to be heard by patients within the exclusion zone which was completely contrary to the message of compassion that they wished to convey.  The evidence was that the result of the imposition of the exclusion zone was that the Counsellors had been far less successful in informing women of alternatives to abortion and that, as a result, far fewer women had chosen those alternatives as a result of their counselling.  The Counsellors argued that the Massachusetts law violated the First  and Fourteenth  Amendments to the Constitution of the United States of America (the US Constitution).
While there were three separate judgments, the Court unanimously found that the Massachusetts law violated the First Amendment. The Court referred to previous decisions which had found that the First Amendment considered that public ways and footpaths were entitled to “First Amendment protection” because they had historically been important sites for debate and discussion and leafletting. The Court noted that the guiding principle of the First Amendment was that the “government has no power to restrict expression because of its message, its ideas, its subject matter, or its content” and that that principle applied “with full force” to footpaths and public streets. This meant that the government could not prevent or prefer speech because of its content. This approach did not prevent the government from imposing reasonable restrictions “on the time, place, or manner of protected speech, provided the restrictions are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant government interest and that they leave open ample alternative channels for communication of the information.”  In other words, so long as the restrictions on free speech were not content based, reasonable restrictions might not be unconstitutional. If the laws were not content based they could be constitutional but in that case, only if they did not “burden substantially more speech than is necessary to further the government’s legitimate interests.”  On the other hand, if the restrictions on free speech were not content neutral they could only be constitutionally valid if they could withstand “strict scrutiny.” This is a much more rigid test and requires such laws to use the “least restrictive means of achieving a compelling state interest.” 
The Counsellors argued that the Massachusetts law did not fit within the permissible restrictions on free speech because it went beyond what was necessary for the legitimate purposes of the State, and because it discriminated against anti-abortion speech. They argued that this discrimination was evident because the law established an exclusion zone only around abortion clinics and so would clearly primarily affect speech concerning abortion.  They also argued that the Massachusetts law was not content neutral because the law exempted the employees and agents of abortion clinics. They argued that, as a consequence, speech in favour of abortion could and would occur within the exclusion zone where the Counsellors were prohibited from speaking. 
The majority first considered whether the Massachusetts law was content based and concluded that it was not. They noted that the law did not refer to the content of any speech and so was not directed to preventing anti-abortion speech. The majority also found that the State had a legitimate interest in ensuring public safety, preventing large crowds gathering, impeding access and obstructing footpaths and that these problems would arise no matter what was said within close proximity to an abortion clinic.  The majority rejected the Counsellors’ argument that the Massachusetts law discriminated against free speech based on its content by providing for an exception for employees and agents of clinics who were permitted to pass in and out of the exclusion zone. This was because, they found that, the exception for employees and agents was necessary and there was no evidence that any speech in favour of abortion took place inside the exclusion zones was authorised by clinics.  As the majority found that the Massachusetts law was not content based it found that it was not necessary for it to be subject to strict scrutiny. 
Having found that the Massachusetts law was not content based and not subject to strict scrutiny  the majority then considered whether the law burdened substantially more speech than was necessary to further the government’s legitimate interests.  While the majority accepted that the State had a legitimate interest in attempting to prevent the deliberate obstruction of clinic entrances and the harassment and intimidation of patients and clinic staff, the majority noted that these concerns were addressed in other unchallenged provisions of the law  in addition to other criminal laws against assault, breach of the peace, trespass and vandalism.  The result for the majority was that the Massachusetts law did burden substantially more speech than was necessary to further the government’s legitimate interests. This was because by excluding all non-exempt individuals  from the buffer zones, the law unnecessarily “[swept] in innocent individuals and their speech.”  The law made it more difficult for people, like the Councillors, to engage in conversations at a normal proximity and volume or to hand out leaflets. The majority thus considered that the Massachusetts law unconstitutionally impeded free speech and was invalid. Targeted injunctive relief focussed on precise individuals and precise conduct at a particular clinic experiencing safety and access problems was preferable and would not breach the US Constitution. 
While Justices Scalia  and Alito agreed with the majority that the Massachusetts law offended the First Amendment they were critical of the majority’s approach because, in their view, the Massachusetts law was specifically targeted at supressing anti-abortion speech and should have been subject to the strict scrutiny test.  In Justice Scalia’s opinion the Massachusetts law was content based because it imposed a blanket prohibition on speech in an area where anti-abortion messages would be most effective.  He rejected the notion that, in these circumstances, the purpose of the legislation could properly be determined by reference to its stated objects.  Justice Scalia was also scathing of the majority’s approach to the exempt persons provision of the law. He had no doubt that abortion clinic employees or agents would often speak in favour of abortion and seek to counter the speech of people, like the Councillors, within the exclusion zone and that they would do so within the scope of their employment.  Justice Scalia found that:
Protecting people from speech that they do not want to hear is not a function that the First Amendment allows the government to undertake in the public streets and sidewalks.
The obvious purpose of the challenged portion of the Massachusetts Reproductive Health Care Facilities Act is to “protect” prospective clients of abortion clinics from having to hear abortion-opposing speech on public streets and sidewalks. The provision is thus unconstitutional root and branch and cannot be saved, as the majority suggests, by limiting its application to the single facility that has experienced the safety and access problems to which it is quite obviously not addressed. I concur only in the judgment that the statute is unconstitutional under the First Amendment.
Similarly Justice Alito found that the effect of the law was to silence the Councillors and other critics of the relevant abortion clinic while the clinic remained able to authorise its employee and agents to speak in favour of the clinic and its work. 42 He described this as “blatant view point discrimination.”  He also found that the other features of the law meant that even if the exemption for employees and agents were excised it would not be a content neutral law. 
Implications of this Case
The Australian Constitution is very different to the US Constitution so that the legal issues considered in McCullen do not arise in the same way in Australia. That is because Australia does not afford freedom of speech the same level of Constitutional protection and has no equivalent to the First Amendment. The approach taken by the US Supreme Court in this case is, however, of particular interest in Australia in light of the exclusion zone created by The Reproductive (Acceptance to Terminations) Act 2014 (Tasmania) and the proposed exclusion zones under consideration in other Australian states and Territories  as it raises for consideration whether it is necessary and appropriate to interfere with freedom of speech around abortion clinics at all. If policy determines that State government interference with free speech is warranted near abortion clinics, this case raises the question of the appropriate breadth and scope of such interference.
During the Tasmanian State elections in March last year a lone protestor, 58-year-old Graham Preston, was arrested after holding two placards quoting from the Universal Declaration of Human Rights and handing out leaflets while standing within the mandated exclusion zone outside an abortion clinic in central Hobart.  The Tasmanian Director of Public Prosecutions dropped the charges in September last year and was ordered to pay costs. Mr Preston was not re-arrested when he protested in the same way after leaving court.  However Mr Preston and a number of other individuals have subsequently been arrested for other alleged violations of the exclusion zone. 
In Australia, the State and Federal Constitutions tend to be more concerned about issues relating to trade and good governance than human rights. Section 46 of the Tasmanian Constitution is an exception. It guarantees freedom of conscience and freedom of religion and may allow protestors to raise such issues in their defence in future prosecutions. The enforcement of such exclusion zones in Australia, particularly during election campaigns, may also raise freedom of political communication issues under ss 7 and 24 of the Commonwealth Constitution. 
1 Obergefell et al v Hodges, Director, Ohio Department of Health et al 576 US ___(2015) (Obergefell)
2 Michael Quinlan, “The Supreme Court of the United States decides that all states of the United States must permit and recognise same sex marriage” On the Case: Issue 9 The University of Notre Dame Australia http://www.nd.edu.au/sydney/schools/law/on-the-case/on-the-case-issue-9
3 See e.g. Michael Koziol, “Love Wins: World celebrates US Supreme Court decision legalising gay marriage” Sydney Morning Herald June 27, 2015: http://www.smh.com.au/world/lovewins-world-celebrates-us-supreme-court-decision-legalising-gay-marriage-20150626-ghz4tx.html#ixzz3fvplgpCm
4 Quinlan n2 above
5 McCullen et al v Coakley, Attorney General of Massachusetts et al 573 US (2014) (McCullum).
6 The Reproductive (Acceptance to Terminations) Act 2014 (Tasmania) s9(2) creates an exclusion zone with a 150 metre radius of premises where terminations are conducted .Within this zone people are prohibited from protesting and other similar behaviour.in relation to terminations.
7 e.g in NSW the Greens MLC, Mehreen Faruqi, has introduced into the NSW Legislative Council the Abortion Law Reform (Miscellaneous Acts Amendment) Bill 2015 which, among other things, seeks to “establish exclusion zones in order to prohibit certain behaviour near premises at which abortions are performed.” The Sex Party has introduced the Public Health and Wellbeing Amendment (Safe Access) Bill 2015 which seeks to establish exclusion zones in Victoria around abortion clinics and other locations providing advice, mediation and treatment in relation to reproductive health. In early September 2015 the Victorian government announced that it would support this legislation. The draft legislation makes it illegal to “interfere with” a footpath within 150 metres of an abortion clinic and to communicate in a manner which may be seen or heard by a person seeking to access abortion clinics or other reproductive health services. In this way conversations, prayers, providing leaflets or advertising which can be seen or heard from a clinic will be criminalised. See Monica Doumit “It’s OK to pray, but not in Victoria” The Catholic Weekly Vol 73 No 4792 13 September 2015, 11 and Morgan Begg “150 metre protest exclusion zones coming to Victoria” 1 September, 2015 Freedom of speech http://freedomwatch.ipa.org.au/tag/exclusion-zones/. Similar exclusion zones have also been proposed in the Australian Capital Territory. See Morgan Begg, “Exclusion zone proposals show fundamental misunderstanding of freedom” 2 April 2015 Freedom of speech http://freedomwatch.ipa.org.au/tag/exclusion-zones/
8 Reproductive Health Care Facilities Act s120E1/2(a), (b) Mass.Gen Laws.
9 Amending an Act passed in 2000 10 McCullen Roberts CJ 4
11 Ibid 5
12 Ibid 19-20
13 Ibid 20
14 Eg one Counsellor’s uncontradicted evidence was that prior to 2007 about 100 women had chosen alternatives to abortion as a consequence of her counselling outside Massachusetts abortion clinics but none had done so since: ibid 20
15 “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
16 Section 1.”All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
17 Chief Justice Roberts delivered the Court’s opinion and Ginsburg, Breyer, Sotomayor and Kagan JJ joined in that opinion.This opinion will be referred to as “the majority opinion.” Justice Scalia filed an opinion concurring with the judgment of Robert CJ and Kennedy and Thomas JJ joined in Scalia J’s decision. Justice Alito filed a separate opinion concurring with the judgment of the Court.
18 McCullen Roberts CJ 8 referencing United States v Grace 461 US 171, 180 (1983) and 21; Scalia J 5
19 McCullen Roberts CJ 9 referencing Police Dept of Chicago v Mosley 408 US 92, 95 (1972).
20 McCullen Roberts CJ 9 referencing Erznoznik v Jacksonville 422 US 205,209 (1975).
21 McCullen Roberts CJ 9 referencing Ward v Rock Against Racism 491 US 781, 791 (1989) (Ward) (quoting Clark Community for Creative Non-Violence 468 US 288, 293 (1984).1975)
22 McCullen Roberts CJ 19 referencing Ward 799
23 McCullen Roberts CJ 10 referencing United States v Playboy Entertainment Group Inc 529 US 803, 813 (2000)
24 Brief for Petitioners 23 referenced in McCullen Roberts CJ 11
25 McCullen Roberts CJ 15
26 Ibid 13
27 ibid 17
28 Ibid 18
29 Ibid 18
30 See n22 above
31 McCullen Roberts CJ 23 referring to ch 266 s120E1/2 ( e) Mass.Gen Laws which creates a criminal offence for “[a]ny [person who knowingly obstructs, detains, hinders, impedes or blocks another person’s entry to or exit from a reproductive health care facility.”
32 McCullen Roberts CJ 25
33 This refers to exemptions for clinic workers etc
34 McCullen Roberts CJ 25
36 With whom Kennedy and Thomas JJ concurred
37 McCullen Scalia J 7,13 and Alito J 1-3
38 McCullen Scalia J 5
39 Ibid 6-7
40 Ibid 10-13
41 ibid 9
42 McCullen Alito J 2
43 Ibid 2
44 Ibid 3
45 See n6 above
46 “Brisbane man charged over anti-abortion protest in Hobart” http://www.abc.net.au/news/2014-03-04/brisbane-man-charged-over-anti-abortion-protest-in-hobart/5297756?section=qld
47 “Hobart abortion clinic protest charges dropped” http://www.abc.net.au/news/2014-09-04/police-drop-charges-over-abortion-clinic-protest/5719298
48 Edith Bevan, “Anti-abortion campaigner Graeme Preston arrested again for protesting outside clinic” http://www.abc.net.au/news/2015-04-14/anti-abortion-campaigner-graeme-preston-arrested/6392214
49 See Nationwide New Pty Ltd v Wills (1992)177 CLR 1 per Deane and Toohey - and Australian Capital Television Pty Ltd v Commonwealth.Electoral Commission (2004) 220 CLR 181 per Mason CJ 137-146, Dean and Toohey JJ 217, McHugh J 227-233.
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