While recent media coverage of the Supreme Court’s conclusion of its 2013 term centered on the Hobby Lobby religious freedom decision, the most meaningful First Amendment case has received much less mention. Though underexposed, the rejection of Massachusetts’s restriction on abortion clinic protest in McCullen v. Coakley is perhaps this term’s single greatest contribution to the reaffirmation of freedom in the United States.
Whereas Hobby Lobby upheld the religious freedom of corporations in rejecting enforcement of a single Obamacare provision, the McCullen decision reestablished the right of every natural person to express actual views.
In the case, the Court unanimously decided Massachusetts could not enforce a 2007 amendment to the state’s Reproductive Health Care Facilities Act, which disallowed public protest within 35 feet of “reproductive health facilities.” The state’s intent was to prevent anti-abortion activists from standing outside abortion clinics to present their points of view to potential clinic patients.
Surprisingly, in concurrence with the majority, Justice Samuel Alito argued the Massachusetts statute discriminated based on viewpoint since it specifically targeted those wanting to express anti-abortion views. This is a sharp change from Alito’s lone dissent in the 2011 decision Snyder v. Phelps. In that case, Alito felt obliged to punish Westboro Baptist Church founder Fred Phelps based on a viewpoint that led Phelps to protest the funeral of soldier Matthew Snyder, who died in Iraq. Maybe Alito believes anti-abortion protests are more valid than the strongly held views of the Westboro Baptist Church members. Such a subjective pronouncement is not appropriate for blind justice. On the other hand, perhaps McCullen marks a shift for Alito’s free speech jurisprudence.
Fortunately, the Court’s current majority do not see fit to decide free speech based on their personal opinion of the validity of views. All views are valid, including both sides of the abortion issue. The McCullen decision protects natural people against an overreaching government wanting to dictate how the people may express themselves. It is a win for all who exercise freedom of speech in public, even those who support abortion rights.
Right now, the majority of the Supreme Court values the necessity of free speech in free society. Hopefully the other branches, particularly the executive, soon catch on and stop attempting to restrict freedom of speech in the United States.