McGuire v. Reilly, Civ.A. 00-12279-EFH.

• Decision Date: 20 November 2000
• Docket Number: No. Civ.A. 00-12279-EFH.,Civ.A. 00-12279-EFH.
• Citation: 122 F.Supp.2d 97
• Parties: Mary Ann MCGUIRE, Ruth Schiavone and Jean B. Zarella, Plaintiffs, v. Thomas REILLY, et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

122 F.Supp.2d 97

Mary Ann MCGUIRE, Ruth Schiavone and Jean B. Zarella, Plaintiffs, v. Thomas REILLY, et al., Defendants.

No. Civ.A. 00-12279-EFH.

United States District Court, D. Massachusetts.

November 20, 2000.

Thomas M. Harvey, Boston, MA, for Plaintiffs.

Elizabeth K. Frumkin, Asst. Atty. Gen., Crim. Bureau, Patricia Correa, Adam Simms, Asst. Atty. Generals, Boston, MA, for Defendants.

MEMORANDUM AND ORDER

HARRINGTON, District Judge.

At issue in this case is the constitutionality of the recently enacted Massachusetts statute, Mass.Gen.L. ch. 266, Section 120E ½, that regulates speech-related conduct within eighteen feet of reproductive health care facilities. The specific section of the statute that is challenged imposes both criminal and civil penalties on persons who knowingly approach another person, within six feet of such person, "for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling," unless the targeted individual consents to such approach.¹ Exempted from the statute are "persons entering or leaving such facility" and "employees or agents of such facility acting within the scope of their employment."² The question is whether the First Amendment rights of the speaker are abridged by the protection the statute provides for the unwilling listener.

Plaintiffs Mary Anne McGuire, Ruth Schiavone, and Jean B. Zarrella are three private citizens who regularly travel to the sidewalks and public ways in front of and near reproductive health care facilities, attempting to dissuade women from having abortions by engaging in counseling activities, including distributing leaflets and engaging in oral conversations. Plaintiffs allege that their fear of criminal prosecution caused them to be chilled in their exercise of fundamental constitutional rights.

Plaintiffs filed a Complaint praying for a declaration that the Massachusetts statute is facially invalid and seeking an injunction against its enforcement. They allege that Mass.Gen.L. ch. 266, Section 120E½ is facially unconstitutional because it violates their right to freedom of speech under the First and Fourteenth Amendments to the United States Constitution. Specifically, plaintiffs claim three causes of action: (1) a violation of the First Amendment's Freedom of Speech Clause; (2) a violation of the Equal Protection Clause of the Fourteenth Amendment; and (3) a violation of the Due Process Clause of the Fourteenth Amendment. The several named defendants are those state officers empowered to prosecute violators of the laws of the Commonwealth, and are represented by the Attorney General of the Commonwealth of Massachusetts.

The issue pending before this Court is whether, on its face, the statute is unconstitutional in any of the following four respects, First, whether the Act's explicit singling out of reproductive health care facilities indicates that is a content-based regulation of speech. Second, whether the exemption for certain people, particularly employees and agents of the facilities, represents impermissible governmental protection for one side of the abortion debate, while abridging fundamental free speech rights of the other. Third, whether the process for physically marking the buffer zones amounts to a discriminatory activation provision. Fourth, whether the language of the statute, aimed primarily at oral communications, reveals that its true intent is the suppression of speech rather than any of the four stated purposes.³

In order to obtain a preliminary injunction, plaintiffs must show that: (1) they will suffer irreparable harm if the injunction is not granted; (2) such injury outweighs any harm which granting injunctive relief would inflict on the defendants; (3) they have a reasonable likelihood of success on the merits; and (4) the public interest will not be adversely affected by the granting of this injunction. See Foxboro Co. v. Arabian Am. Oil Co., 805 F.2d 34, 36 (1st Cir.1986); see also Campbell Soup v. Giles, 47 F.3d 467, 470 (1st Cir.1995). Here, in dealing with the First Amendment rights of free speech, it is virtually undisputed that plaintiffs have reached at least two of those factors. The impermissible chilling of First Amendment rights is, perhaps, one of the more compelling examples of irreparable harm. Further, the right of free speech is so precious in our constitutional scheme that such injury outweighs whatever harm is inflicted on defendants. To be sure, the public interest is affected by either the implementation of the statute or an injunction against it. Whether the public interest is more adversely affected by the statute or by an injunction against it is ultimately dependent on the reasonable likelihood of plaintiffs' success on the merits in challenging the statute's constitutionality.

Defendants contend that this matter is covered and is controlled by the United States Supreme Court's recent decision in Hill v. Colorado, 530 U.S. 703, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000). In Hill, the Court found constitutional a Colorado statute nearly identical to the Massachusetts statute at issue in this case. The Colorado statute creates a 100-foot buffer zone around all medical facilities in that state, and prohibits all unwanted approaches within eight feet of anyone inside of the buffer zone. In a 6-3 decision, the Supreme Court upheld four state court opinions determining that the Colorado statute was content-neutral. As a result, the Court applied the test it articulated in Ward v. Rock Against Racism, 491 U.S. 781, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989), finding that the statute imposed "content-neutral time, place and manner restrictions narrowly tailored to serve a significant government interest" and "left open ample alternative channels of communication." Hill, 530 U.S. at ___, 120 S.Ct. at 2486 (quoting Ward, 491 U.S. at 785, 109 S.Ct. 2746). In doing so, the Court said that "the principal inquiry in determining content-neutrality, in speech cases generally and in time, place or manner cases in particular, is whether the government has adopted a regulation of speech because of disagreement with the message it conveys." Hill, 530 U.S. at ___, 120 S.Ct. at 2491 (quoting Ward, 491 U.S. at 791, 109 S.Ct. 2746). The Court found that "the Colorado statute pass[ed] that test for three independent reasons." Hill, 530 U.S. at ___, 120 S.Ct. at 2491.

First, the statute was not a regulation of speech. Rather, the Colorado statute was "a regulation of the places where some speech may occur." Second, it was not adopted "because of disagreement with the message it conveys...." Third, the State's interests in protecting access and privacy, and providing the police with clear guidelines, are unrelated to the content of the demonstrators' speech.... [G]overnment regulation of expressive activity is "content neutral" if it is justified without reference to the content of the regulated speech. Id.

Defendants urge that the Massachusetts statute is so similar to the Colorado statute that this Court is bound to reach the same result as the United States Supreme Court did in Hill.⁴ If anything, they claim the Massachusetts' statute is less burdensome to free speech. The Massachusetts buffer zone is considerably smaller than Colorado's (eighteen feet as opposed to 100 feet) and offers less protection from unwanted approaches (six feet as opposed to eight feet). Further, defendants argue, the Massachusetts legislature crafted the statute to be only as restrictive as necessary to serve its purposes. Whereas the Colorado statute applies to all medical facilities, the Massachusetts statute is more narrowly-tailored and applies only to reproductive health care facilities. In that way, speech is regulated only where its exercise has given rise to a competing government interest.

Conversely, plaintiffs urge that Hill does not apply because the Massachusetts statute is distinguishable from the Colorado statute in several fatal respects. First, because the Massachusetts statute applies only to reproductive health care facilities and not to all medical facilities, the statute is not content neutral. Both the explicit language of the statute and the legislative history make clear that only reproductive health care facilities, in fact only those where abortions are offered or performed, fall within the purview of the Act.⁵ Unlike in Colorado, where the legislature heard testimony regarding animal rights demonstrations, the Massachusetts legislature heard only testimony about the climate around abortion clinics.⁶ Plaintiffs argue, then, that the Massachusetts statute is a content-based regulation of speech and thus, should be subjected to strict scrutiny by this Court.

Plaintiffs also contend that the statutory exemption for several groups of people, particularly employees or agents of the abortion clinics, is a violation under the Equal Protection Clause of the Fourteenth Amendment. Employees and agents of the clinics are not required to gain consent before approaching anyone in the buffer zone, and may do so for any reason within the scope of their employment. Plaintiffs claim that the exemption reflects impermissible governmental preference and support for one side of the debate. Indeed, the legislative history submitted by defendants records testimony from an agent of one clinic who participates in an organized group of "pro-choice women and men" who voluntarily escort women as they enter and exit the facility. Exhibit I.⁷

Ultimately, then, the Massachusetts statute differs from its Colorado counterpart in two critical ways. One, the Massachusetts statute applies only to abortion clinics, and not to all medical facilities and, two, the regulation of speech does not apply equally to everyone involved in the abortion debate.

The initial issue before this Court is to determine whether Mass Gen.L. ch. 266, Section 120E½ restricts content-based...