McCullen v. Coakley

844 F.Supp.2d 206

Eleanor McCULLEN, et. al., Plaintiffs,

v.Martha COAKLEY, et. al., in their official capacities only, Defendants.

Civil Action No. 08–10066–JLT.

United States District Court, D. Massachusetts.

Feb. 22, 2012.

Benjamin W. Bull, Alliance Defense Fund, Scottsdale, AZ, Kevin H. Theriot, Alliance Defense Fund, Leawood, KS, Mark L. Rienzi, Catholic University of America, Columbus Law School, Washington, DC, Michael J. Deprimo, Hamden, CT, Philip D. Moran, Salem, MA, for Plaintiffs.

Kenneth W. Salinger, Gabrielle Viator, Massachusetts Attorney General's Office, Boston, MA, Dwight G. Duncan, Southern New England School of Law, North Dartmouth, MA, for Defendants.

MEMORANDUM

JOSEPH L. TAURO, District Judge.

I. Introduction

This case concerns a recently revised Massachusetts statute, Massachusetts General Laws Chapter 266, § 120E1/2 (“Act”), which establishes a thirty-five-foot fixed buffer zone around driveways and entrances of reproductive health care facilities (“RHCFs”). Presently at issue is Plaintiffs' challenge to the Act as applied to their speech activities at three RHCFs in Boston, Worcester, and Springfield. For the reasons given below, this court finds that the Act as applied is a valid regulation of the time, place, and manner of Plaintiffs' speech. For that reason, Judgment shall be entered in favor of Defendants on all counts.

II. Background¹A. The Parties

Plaintiffs Eleanor McCullen, Jean Blackburn Zarella, Gregory A. Smith, Eric Cadin, Mark Bashour, Nancy Clark, and Cyril Shea are Massachusetts residents who regularly engage in pro-life counseling outside RHCFs. Defendant Attorney General Martha Coakley is the chief lawyer and law enforcement officer of the Commonwealth of Massachusetts. Defendants Conley, Early, and Mastroianni are the District Attorneys for Suffolk, Worcester, and Hampden Counties where the clinics at issue in this action are located. As such, Defendants bear responsibility for enforcing the Act. They are sued in their official capacities only.²

B. Procedural History

On January 16, 2008, Plaintiffs filed the Complaint, which advanced eight counts under 42 U.S.C. § 1983: (1) Free Speech—Time, Place, and Manner; (2) Free Speech—Substantial Overbreadth; (3) Free Speech—Prior Restraint; (4) “Free Speech—Free Association—Free Exercise Hybrid”; (5) Free Speech—Viewpoint Discrimination; (6) Due Process—Vagueness; (7) Due Process—Liberty Interest; and (8) Equal Protection.³

After a Status Conference held on April 23, 2008, and without objection from the Parties, this court ordered that the matter proceed on the merits in two stages: (1) a Bench Trial on Plaintiffs' facial challenge; and (2) a bench trial on Plaintiffs' as-applied challenge.⁴

On May 28, 2008, this court held the first bench trial, on Plaintiffs' facial challenge.⁵ In an August 22, 2008 decision, this court held that the Act survived all three facial challenge standards.⁶ The Court of Appeals for the First Circuit held a de novo review and affirmed this court's decision,⁷ and the Supreme Court denied Plaintiffs' petition for certiorari at this stage of the case.⁸

On September 17, 2010, Plaintiffs filed a Motion for Leave to File Amended Complaint and a Motion to Permit Arguments as to Facial Invalidity. On October 7, 2010, Defendants filed a Motion for Judgment on the Pleadings on the As–Applied Claims in Counts Two Through Eight. On December 2, 2010, this court heard oral arguments on all three Motions and took them under advisement. On December 29, 2010, this court issued a Memorandum denying Plaintiff's Motion to Permit Arguments as to Facial Invalidity, and allowing Defendant's Motion for Judgment on the Pleadings. Plaintiffs were allowed to amend the complaint to include claims regarding RHCFs in Springfield and Worcester and to include new plaintiffs who would make allegations regarding speech activities at those clinics. Plaintiffs were also permitted to amend the complaint to include four District Attorneys in their official capacities, consistent with the expansion of the geographic scope of the complaint.

On February 25, 2011, Plaintiffs filed the Amended Complaint, and on March 11, 2011, the Commonwealth filed its Answer. On May 11, 2011, the parties entered a Stipulation of Dismissal Covering the Claims by Carmel Farrell Regarding the Brookline Clinic. The effect of the Amended Complaint and the Stipulation is that Plaintiffs now challenge the constitutionality of the Act as applied at the RHCFs in Boston, Worcester, and Springfield. On August 24, 2011, a bench trial was held on Plaintiffs' as applied claims, and the court took the matter under advisement.

III. DiscussionA. Legal Standard

This court has already found the Act to be a content neutral time, place and manner restriction, and upheld it as facially valid. In so doing, the court found that the Act survived intermediate scrutiny because it is (1) justified without reference to the content of the regulated speech; (2) narrowly tailored to serve a significant governmental interest; and (3) leaves open ample alternative means of communication.⁹ It has already been established that the Commonwealth of Massachusetts has a “substantial and legitimate content-neutral interest in protecting public safety at RHCF entrances and driveways, because ‘[i]t is a traditional exercise of the States' police powers to protect the health and safety of their citizens.’ ” ¹⁰ In light of this court's December 29, 2010 opinion, the only issue that remains to be decided is “whether the statute as applied at the clinics specified in the complaint leaves open adequate alternative channels of communication.” ¹¹

A valid time, place, and manner restriction, by its nature must burden some First Amendment activity for the purpose of advancing the State interest at stake. As Justice Souter, emphasized, in his concurring opinion in Hill v. Colorado, however, prior cases “ ‘quite clearly hold that restrictions on the time, place, or manner of protected speech are not invalid ‘simply because there is some imaginable alternative that might be less burdensome on speech.’ ” ¹² Indeed, “the First Amendment does not guarantee the right to communicate one's views at all times and places or in any manner that may be desired.” ¹³ As this court pointed out in the facial challenge phase of this case, “[t]ime-place-manner regulations routinely make particular forms of expression impracticable without raising constitutional concerns.” ¹⁴ The question is not, “ ‘whether a degree of curtailment’ of speech exists, but rather ‘whether the remaining communicative avenues are adequate.’ ” ¹⁵ Alternative methods, therefore, need not be perfect substitutes for Plaintiffs' desired manner of communication.

It is well established that, “only the government can violate First Amendment rights,” and that, “every First Amendment claim thus requires state action in some sense.” ¹⁶ As the First Circuit has emphasized, “The First Amendment is concerned with government interference, not private jousting in the speech marketplace.” ¹⁷ In order for the Act to violate the First Amendment as it is applied to Plaintiffs, the lack of adequate alternative means of communication must be traceable to state action. As the First Circuit pointed out in McGuire II, when it upheld the Commonwealth's previous buffer zone law, “there is no state action if what the plaintiff is really aiming at are the acts of private persons that are actually illegal under the statutory scheme, because then the acts do not reflect the policy of the state.” ¹⁸ To succeed here, Plaintiffs' facial challenge must demonstrate that the act, as applied by the state, does not leave open adequate alternative means of communication. That other barriers to communication not attributable to the state may exist is irrelevant to the First Amendment analysis.

Much like the Plaintiffs in the McGuire II case, the Plaintiffs in this action challenge the Act as-applied after it has already been upheld as a facially valid time-place-manner restriction. As in that case, “The fact situation that plaintiffs are involved in here is the core fact situation intended to be covered by this buffer zone statute, and it is the same type of fact situation that was envisioned by this court when the facial challenge was denied.” ¹⁹ Plaintiffs are, therefore, precluded from “argu[ing] that they are different types of actors, or that they are involved in a different type of fact situation, from the ones on the basis of which the law was already upheld facially.” ²⁰

In upholding the Act as facially valid, this court found that the Act left open ample alternative means of communication. The court noted that,

as long as Plaintiffs—or anyone for that matter—remain outside the zone, they may freely talk to individuals entering and exiting the RHCFs, as well as people inside the zone. The Act also does nothing to prevent patients from leaving the zone to speak with protesters or counselors. Moreover, individuals may continue to display signs and photographs, hand out literature, talk, pray, chant, sing or engage in any other form of lawful communication or protest outside of the buffer zone. Importantly, most, if not all of this expressive activity, can be seen and heard by people entering and exiting the buffer zone, and also by people inside the buffer zone.²¹

As the Supreme Court has emphasized, “[t]he First Amendment does not demand that patients at a medical facility undertake Herculean efforts to escape the cacophony of political protests.” ²² This court has also found in McCullen I that, “[a]lthough slightly closer physical interaction may partially enhance one's ability to sidewalk counsel RHCF patients, there is no constitutional right to that level of particularized access.” ²³

The First Circuit, “has upheld ... alternative means of communication despite diminution in the quantity of speech, a ban on a preferred method of communication, and a reduction...