tv Key Capitol Hill Hearings CSPAN January 23, 2014 2:00am-4:01am EST
>> coming up on c-span, oral argue nument mccullen v. coakley challenging the massachusetts law creating buffer zones around abortion clinics. obama announces an initiative to prevent sexual assaults on college campuses. later, a senate commerce hearing on regulating domestic drones. the next "washington journal," a look at challenges facing cities. mayor stephanie baltimore, then a discussion on the future of the republican party, and a n. c. wintere r. meetings. bill kristol will be here. later, horace williams brown of the government accountability office talks about the history national flood insurance program, and changes brought andt by hurricanes katrina
sandy. "washington journal" is live every morning at 7:00 a.m. eastern on c-span. conversation on twitter.and >> thursday a discussion on the recent spike in violence in and potential iraqi government plans to create three provinces in contested parts of the country. the speaker of iraq's council of theesentatives speaks at brookings institution, live at 9:00 a.m. eastern on c-span 2. and at 11:00 a.m. a panel from the prookings institution discusses recommendations for the administration on foreign ahead.issues in the year live coverage of that event also c-span 2. >> day feel prepared, yes, i did.y first of all i wasn't elected, so it didn't make that much difference. i did notice, though, the difference between being the the president's wife and
president's wife. it's huge, because the vice sayident's wife can anything, nobody cares. the minute you say one thing as you've madewife, the news, so thats with a lesson i had to learn. quickly. >> watch our program on first lady barbara bush at our website, c-span.org, or see it at 7:00 p.m. eastern. live monday our series continues clinton.t lady hillary >> the supreme court heard oral arguments last week in a case testing the constitutionality a creatingetts law buffer zones around abortion clinics. challengers in the case mccullen v. coakley argue that the zones limit free speech rights of anti-abortion activists. this is an hour. >> first this morning in case
in mccullen versus coakley. mr. ramsey? >> mr. chief justice and may it please the court, this court has the public sidewalks are a natural and proper place to exchangeizens information and ideas. and for that reason the court public sidewalks occupy a special position in first amendment analysis. if the massachusetts law at issue here makes it a crime to enter onto certain public sidewalks, even for the purpose of peaceful conversation or leafletting, the law applies at abortion clinics throughout the hour of every day that they are open regardless of circumstances. massachusetts asks this court to uphold that statute under the time, place and manner test. the law fails each aspect of that test. i would like to begin with tayloring. the state says the law is necessary to protect its interests in
obstruction and congestion. but the law is not narrowly tailored to that for three reasons. first the law applies regardless of whether there is any threat of obstruction or congestion at all, even when the sidewalks are entirely open and empty. for example, mrs. mccullen counselingoes her early in the morning on tuesdays and wednesdays beginning a7:00 in the morning. she testified that she is sometimes alone when she does this counseling. clack testified that 90% of the time that she's at the she is allorcester, alone. a statute that makes it illegal or mrs. mccullen mrs. clark to engage in peaceful, cons sensual conversation on a public sidewalk, for fear of obstruction and congestion, is narrowly tailored. problem thei, the state faced is it doesn't know, considerable
history of disturbances of and itg the entrance, doesn't -- well behaviored people and the people who don't behave well. occursr a disturbance it's too late. so the state is trying to say we want to make sure that the entrance is not blocked, and the only way we can the rule that applies to everyone. we cab screen people to know who will be well behaved and who will be disruptive. >> so i think the state is simply wrong about that fact for several reasons. there are many tools that the state either has in its current tool box or could enact that would deal with that concern. if i may back up for a second, i there are two different interests that the state asserts when it makes that argument, ginsburg. first they say that are actual
deliberate, there are some people who the state claims have deliberately violated the law and blocked the door and interfered with access. secondly the state says there's also some circumstances where are enough people on the sidewalk that even lawful consensual conversation might accidentally block a door. i think those are actually two interests, but they are tools in the tool box to deal with both of them, section e of this statute makes it illegal to impede, block, or hinder somebody's access to the clinics, and that section is not challenged here, has been. >> i should probably ask this of the other side, and i will. you happen to know when thathe last time massachusetts prosecuted somebody for obstructing abortion clinic? >> so i believe the last cite in the record that i'm aware of is as of 1997 theres with a decision in a previous
case against people who had been adjudicated, on that to.97 case my nl they've never brought a case, for example, under the face law which has been in existence for 0 laws years. laws there have been against obstruct the entire period? time. entire >> you say only once in '97 that was the last time a prosecution was brought? an injunction against prior bad -- theou're not taking position that 1997 was the last obstructed?ance was or that the police were called clinic.access to a are you taking that position, happenedlast time it was 1997? >> i cone say that i know the last time it happened. know that in the record there were more examples? >> i know that in the record there was testimony claiming that that happened. my argument is simply that the state has tools that are designed to deal with that.
states --ted >> mr. rienzi, the state says of that particular tool, that it's a hard thing to prosecute, because you have to show intent and there's a lot of obstruction interference that goes on naturally just because there are a lot of people around. an insufficient tool is what the state argues. the extent the state is claiming there are deliberate bad actors blocking door, i don't think that's a argument.sive if the police say move, either they move or they don't, in intent is pretty clear. amicus united states has prosecuted more than 45 cases and gotten more than 70 convictions under that statute. >> sometimes there are those bad actors, but probably more often there are just lots of people. allthey, your clients, and of them want to be as close as possible to the site and that naturally leads to an interference with normal access.
that's the second part of the state's argument. i don't think this law is tailored concern, in two respects. the evidence in the case is that that the state is concerned about happen one clinic, one day one time, saturday mornings in boston and when they happen cameras anddeo police officers present. there's no reason to believe just saypolice cab move out of the doorway. >> does the record show how many colin knicks the state are covered by the law? >> i believe there are 11 or 12 long knicks the state, so as they are free standing abortion clinics they fall in -- >> how far do you want to go in your concession? would you want to concede this point, that imagine the state two groups of people, and one group feels what the other terribly wrong. and the second group feels we absolutely want to do it. and everyone is in a fragile state of mind, and they want to,
least one group wants to shout as loud as they could at the other, please don't and the other says please leave me alone. and we're not saying which group which, the analogy is obvious. but if i keep all the titles have the the state right, in your opinion, to say it's tough to referee this, we for real harmial on one side or the other, so ofre going to have this kind 35-foot boundary. you want to concede that and say, okay, but the evidence here doesn't justify it? or do you want to fight that too? toso, no, i do not mean concede that. i think a solution that is done with painted lines on the that says -- >> now you're into the details. i want to know about the principle. can imagine the principle applying special care and need must be taken outside of hospitals for veterans, even though there's some who are opposed to the war, because coming out, will be they'll be in wheelchairs, lit be terrible. and others thinking, you know,
can think of many, many situations, irrespective subject matter, where there's a need for refereeing. and i just want to know if the or ift is okay with you, not. no.enerally speaking i don't think the concept -- one werotesters like the had in the schneider case at a goeral of a veteran, can right up to the public sidewalk church and put up the signs that they did and give they did,aflets that talking about that veteran in did?ays that they that's okay by you? >> so, a couple points about that. one -- >> there was no evidence there that they were, that they were disruptive, they were just expressing their first amendment rights. >> so i think -- the potential for disruption because of the strong sentiment around that.
i think a statute that works the way this one does here that would make it illegal to engage in peaceful conversation on sidewalks near a church or near a funeral or near anything else, i think clearly is not permit bid amendment. >> in schneider, they were held back that their shouts and protests couldn't be case? isn't that the they could still be heard. think -- perhaps for part of the funeral procession -- >> you see now why i'm trying to narrow it. because in my case in snyder i important that the demonstrators were behind a hill somewhere and the police restricted where they can go. states have enacted similar that'snd i thought important because maybe it would have come out differently. you could argue that. trying to narrow it. i'm trying to see to what extent
do i have to look at this set of facts, in which case we're into the to what, et cetera, and extent is there a matter of very broad principle here, and any help can you give me on that would be appreciated. >> so the matter of very broad principle is that a law that engaget illegal to even in consensual conversations, quiet conversation, on a public sidewalk, an act that makes that a criminal act for which go to prison can i think is not permissible under the first amendment. if you compare to it the federal military funeral protest law, that law specifically is drawn that disrupt the peace and good order of the funeral. and i think that is -- >> but will are you saying that you could not do an act thain lookings it's a little too hard to figure out what and what does not disrupt peace and order. we're just going to say 25 feet around a funeral, or 25 feet around any facility.
that's never permissible? >> so generally speaking i think into a like that runs big first amendment problem of eliminating peaceful consensual conversation that doesn't disrupt anything. in this court's past, decisions said that the regulation is required. a rule around any facility or you'll funerals, is nearly as much a distortion of the marketplace of ideas as what massachusetts did here. was intrigued, i by one of the examples that you gave in your own brief, which houses. slaughter so let's say that there are animal rights activists, and imagine, who try to interfere with access in and houses.laughter and a state passes a regulation and said there's a ton of interference, it's preventing the operation of these facilities, employees can't get suppliers can't get in. slaughter houses are leaving the
this problem.of and so we're just going to set up a zone and let's call it it's very harde to enforce anything else. i guess my reaction to that hypothetical, you must have used to say, oh, that's terrible, but my reaction, my of what'swas kind wrong with that? just have everybody take a step back. that?t is wrong with >> so what's wrong with that is a couple things. one, again this court's precisiongs require of regulation. so an injunction, for example, against groups and individuals madsend and shank, for example, an inswrungs against groups and individuals who have with access keeping them back, i think that's permissible. we take no issue with that type much it's the generally applicable statute that's tied to just one particular often protested event gives the state enormous power to interfere with the marketplace of ideas. the examples that is given in one of the amicus
in this case, and they provide a lot of background, is astate law that creates buffer zone around every lodge.al what would you say about that? >> i think it is difficult to imagine the government interest -- first, i don't know the whatculars of that law and it restricts. if it restricts peaful conversation on public sidewalks a fraternalre's lodge, i would say that should not be permissible under the first amendment. think generally speaking the idea of the government picking saying,icular item and well, around this, suddenly the character of the public forum changes from a place where can have peaceful consensual conversations to a place where we will imprison i think doing that, that's a dramatic restriction of first amendment rights. if there's a particular group or keeps interfering with the fraternal order, of course you can get an injunction against that behavior. but i don't think the state can say even peaceful discussion --
>> let's go back to the slaughter house case. there might be people who say it's really important to us to to face be able to face talk with the employees. and tell them why day should get why they jobs or should change their practices in various ways. there are some people who think signs and chants are great, but there are people who really want to make one to one contact with truck driver, with the employees, who ever. you know, we have to let whatever interference there's aven if record of real obstruction, of real interference with the facility.of the to allow that to happen, and i guess i think that's pretty hard. >> i'm not saying the government on.to let it go i'm saying the government has tools that are better drawn to thehan eliminating even peaceful conversations. >> this is justice kagan's it were asuppose that given, assumed that those laws just did not work.
could there then be consideration of a buffer zone? is a hypothetical that i'm sure that you wouldn't accept in the context of your case. but suppose. >> suppose it were a given that there's no way to keep the abortion clinic open -- withe laws simply do not, reference to obstruction and blocking entrance, simply do not work. >> if the laws simply do not work, i think perhaps the government could come in and has a case that it compelling interest and that this is the least restrictive means of doing it. now at this point, that was a better way are getting at to get at.trying let's look at the narrow part of the case, and let's assume that case is right. and this particular restriction more a restrictive than colorado in two important respects, which you've gone into. now, the reason that they did that is they had hearings in
massachusetts and they discovered that the colorado law well. really work very so what are we supposed to do? are we supposed to now go look -- long as those hearings are legitimate hearings and they explanation on something like whether the zone consensual or whether it's 35 feet and different amounts of sidewalk of theng on the nearness facility, when does it become them?p to we're not legislators, we don't know the situation in insistusetts, we can upon a reasonable record. but how can we do more than that? >> so on this detail, what i fork the court should look is, for example, the state said convict aot even single person of one -- >> you understand that, we all understand that. it's one thing to try to prove an intent on such matters,
are inlarly when people good faith, they're trying tryio explain it. and it's another thing to the congestion and to protect the interest of the woman who wants to have the in a fragilebe state of mind, and this kind of herg could interfere with health, et cetera. so there are two interests, one on each side. we know 8 feet with the bubble is okay. 35 feet. sure about and they have an evidentiary record. >> so a few things. one, the reasons this court gave 8-foot for allowing the no approach zone was precisely that it was only about unwilling listeners and did not stop discussions with willing listeners. the recordccept that here shows that it did not work well in the sense that justice breyer -- >> no -- thell it says is that police found it difficult to they havebble, that
to measure 8 feet or whatever it is. they didn't say that massive obstruction and protests are people,g, preventing that wasn't the finding, was it? >> no, i agree. asked youwhy i just that question. it just happens that the police testified with some evidence and the 8-foot bubble doesn't work. and also they have some evidence thinking that if you want to have a conversation, you have to convince the woman to walk 10 feet. mean the difference is about half, you know, if you were near we'd haveas near, colorado. if we were over where the first is, we'd have massachusetts. and they have some evidence that we can't enforce this colorado well, it doesn't help. go ahead. sent meee but if you 35 feet fufort back and asked me to make my argument from there -- >> i'd hear you. >> i would suggest you'd receive differently.
if the state were permitted to stand the front of you like a normal lawyer, i would suggest that would be a significant difference. what we have here is -- denying the difference. i am asking you, we've now heard characterizations of the record, i didn't mean to characterize it. i want you to explain what it is your point offrom view or lack there of that means constitution intervenes to prevent massachusetts from doing it. >> so the constitutional narrow tailroing test under the time, place and manner test requires that the law not restrict substantially more speech than necessary to serve the government's interest. restrictive, how long does it take? enter the buffer zone until you reach the clinic entrance. >> if you're walking nonstop, i assume 7 to 10 seconds or something like that. conversation can go on seconds.ose 7 to 10
there's not much you'll be able in 7 to persuade people 10 seconds. >> i respectfully disagree on that last point. the evidence that theecord is inability to speak with people close to the clinic has a dramatic effect on the ability to reach their audience. so if someone happens to be walking from the zone thatof the you're standing on, you may have a shot. the clinic still has the space clinic to talk to people which you don't, but you may have a shot if you're at the right spot. you can identify the audience early enough. but places like worcester and springfield, where the only chance to reach the audience is by standing on the public leaflet asd waving a they drive through the driveway standce, if you have to 35 back to do that, there's essentially zero chance to reach the audience. more of a function that they have a private parking lot, so even if this law doesn't you couldn't we've these people because they drive into the pretty parking lot and you
anywhere? to them >> no, i don't think that's a fair characterization. yes, there's a private parking there's a public sidewalk, on which before this law you had the right to engage in speech. this law pushes you 35 feet back is what makes it impossible to make the offer. people drive by and they don't want the information and that's their right. but many people do want the acted on itand are and this law makes it much harder, almost impossible -- is a buffer zone that you would concede is permissible? it were 12 feet, would that be all right? >> as the size of the zone decreases i think the imposition on the speech rights gets less and less and better and better. adequacy of the alternatives, for example, that mayim prove as you go. it would still be a problem, i to have zones on the sidewalk where even when no one is there it's a criminal act to conversation. >> but that goes back to justice ginsburg's question. to deal law supposed with that, the fluctuating conditions that may be at a
particular clinic site. >> that's precisely the point, that's why this is not something addressed with a statute like this, this is something that should an dressed with a statute drawn to like large crowds or a disperse al statute. cuss brief in support of massachusetts here talks about concord, new hampshire and with thiss deal problem. they give the police the power to disperse crowds when they become obstructive or violent, same way this court -- >> it is the case, simpson it, not only abortion fromelors are excluded this area, everybody is. tobody who wants to talk anybody or who just wants to be mean, this is a dead speech zone, right? is.n many respects it in many respectings it is no different than the speech-free jews for jesus case. where the government claims it can turn off the first
amendment. >> it's more than a speech-free zone, it's also a conduct-free there,ou can't sell hats you can't beg there. you just can't go there. has agree the government eliminated more than speech on that sidewalk, but they've eliminated speech on that sidewalk in the jews for jesus case. thoroughlyen't eliminated speech, because employees are permitted to speak within the scope much their employment. you, yes, they haven't eliminated speech for all people. quote,'s an inconsistent bought the attorney general, of employment to me means getting to my job and noting my job and does include speech activities. >> on the face of the statute, i think that that interpretation doesn't do very much. >> the legal officer of the term need to be interpreted, the term is scope of employment. scope of employment within this
statute means getting to work and leaving work. doesn't mean political speech. >> so the attorney general says it's more than just getting to work, justaving doing their job. first, i don't believe that they ive the authority to do that, don't think they could go arrest somebody who happened to speak about abortion when they work clinic, theyon have a statutory defense. but even if they could limit to their job you en up with the problem in the hoyt case which is that the clinic is use that sidewalk even just to say good morning, may i help you into the clinic, that's aovernment says valid use of our public sidewalks. but the state says mrs. mccullen will go to if she goes on that sidewalk and says good morning you an alternative? the government doesn't get to decide that the public sidewalk, for peopleaves open just walking by, if i'm going down that sidewalk to get a cup it's fine. >> am i correct that the attorney general's regulation
to employees of the clinic in a way made this even more content based because there a prohibition on discussing the abortion procedure? one of the that's reasons that the interpretation is flag rantly unconstitutional simply sayent can't to people who work for plarned yount hood, we won't arrest unless you talk about abortion. and that mirrors the state's its, of theon of exemption for people walking through the zone, where it says thisan walk through, and is ja9394, provided that the individual does not do anything else within the buffer zone such as expressing their views about abortion. so the government is saying you can walk through but you can't talk about abortion. >> says you can't talk about anything. >> i agree. >> it is not based on speech about abortion, it's that you can speak about anything. >> the interpretation as to the employees that the attorney general has proffered for six years is about speech about abortion.
goinguse me, if you're through the zone just to get somewhere but not to get to the withc, and you're walking a companioning can't you speak to your companion as you're walking? it doesn't ban speech by everybody who is walking through. >> the attorney general has onen multiple positions that. in the lower court their position was you can't talk about abortion or partisan issues. the first circuit that you could be arrested if you wore a cleveland indians shirt you passing through. either one is bad. either way the government the ability who gets to speak and who doesn't open public on an sidewalk. if i may reserve my time. you, counsel. miss miller? >> mr. chief justice and may it please the court, petitioners can and do protest abortion in and they can do it in the public spaces right facilities.tion >> this is not a protest case, these people don't want to protest abortion. womenant to talk to the
who are about to get abortions and try to talk them out of it. think it distorts it to say that what they want to do is protest abortion. a protest, keeping them back 35 feet might not be so bad. scream and yell and hold up signs from 35 feet. but what they can't do is try to talk the woman out of the abortion. it's a counseling case, not a case.t >> your honor, i would say it's a congestion case. certainly ms. mcpeculiar expen others can have those conversations right in front of the abortion facilities. it's just that those conversations are moved back a few feet. fact -- of >> more than a few feet. 35 feet is a ways. bench to the end of the court. and if you imagine the chief sort of where the door would be, it's most of the width of this courtroom as well. much this courtroom, kind of. space.a lot of
>> just as a factual matter i want to point out that in iston, for example, the door recessed, it's a private intans with a recessed door and the from thes measured door. so it's only about 23 feet. >> i thought it was two car lengths. >> i'm sorry? >> two car lengths. >> exactly right, your honor. >> that's a little less than courtroom. >> let's go back to justice scalia's question. saying that this case is not a protest case, it's simply about calm conversations. to know is what i want if the evidence shows that. >> certainly there's a picture conversation -- >> the evidence upon which massachusetts based its decision 35 feet instead of 8 feet. there were hearings. does the evidence show that what was calmved conversations between one person trying to counsel another, or evidence show something else? >> certainly the evidence showed something else. experience showed that there had
be a certain amount of space around the facilities. what we had, for example, were a pro-choice advocates swearing and screaming at pro-life advocates within the buffer zone, that's appendix 26 to 28. you had the pink group which is a pro-choice organization pushing and shoving and jockeying for position. lawurely you could have a against screaming and shouting within 35 feet. within 35 feet. simpson that more narrowly tailored? what these people want to do is to speak quietly. friendly manner, not in a hostile manner, because that their purposee with the people going into the clinic. >> again, experience showed that individuals who wanted to engage in quiet peaceful creatingion were congestion -- >> there's some people who are peaceful, in which case i would accept justice scalia's
suggestion that this is a counseling case. but you cited some other thatnce that suggests there were other people who were screaming, pushing and shouting which sound like in his a protest case. and the reason that massachusetts found it difficult statute that otherguishes one from the is? why do people write statutes theseometimes do not make fine distinctions, why did they in this instance? >> they didn't make a fine distinction, your honor, because it didn't matter whether people were being peaceful -- you have written such a statute that would work? >> it would have been very difficult. >> how did you pick 35 feet? >> experience showed that some amount of space around the around thes, facilities needed to be open. so then it was simply a question past experience, as a prior injunctions, for example. for example in planned v. bell which is cited at page 26 our brief there was actually a 50-foot buffer
imposed by a district court judge in massachusetts. madsend and shank that 36-foot buffer zones were acceptable, when you're being responsive to that kind of aoblem, and we knew that 15-foot buffer zone would be acceptable if responding to a similar kind of problem. so at some point or another, the legislature was aware that some amount of space needed to be created, and it shows 35 feet as a reasonable response, a reasonable amount of space allow --facility to >> let's go back for a second. i see that. the obvious reason for a legislator, i think, i did work in the legislature for a while as a staff member, that you write these fine that steult because they won't work, they have too tyne a the active is commingled. i knew you were just going to as i said that. so i'm trying to get you to say
it, if it's true. is there anything in this record that suggests that this is one of those cases where it's just to say whether they're counseling somebody or whether they're screaming at somebody, pushingthey're something or whether they're standing near them peacefully. is there any evidence in the could turn to that would suggest that? >> you should say yes. >> and i will. ( laughter ). >> she can't say yes if she isn't there. of course, your honor. the best description of that is commissioner evans' description of the space 's --ioning like a goalie >> let me ask this question. assume it to be true that an lady who was quite successful and had meaningful with over 100 women going into the clinic this law, was unable to talk to even one after this law. assume that's true.
any bearing on our analysis? and does that have any bearing breyer's question about whether or not a law can be written to protect that kind of activity but still to prevent obstruction and blocking. think, your honor, that no one is guaranteed any specific of communication. guarantee, as a doctrine al matter to close quiet conversations. is are there adequate alternatives. in this particular instance in are adequatehere alternatives. take for example -- >> you say there's no guarantee quietly.g me to write an opinion that says there's no free speech quietly converse on an issue of public important tans. >> generally on the public course thatt of right is tempered by the state's interest in making sure that the
public sidewalks function as they should and that there is peace and good order. an example,give you i'd point you -- >> i still don't know, this goes breyer's question. you cannot write an ordinance obstruction, intimidation, blocking, is allow the and still kind of conversation that i described earlier and that i you to assume to be true for the purposes of this question. >> your honor, we couldn't hear obviously because that wasn't the problem. the problem with making that kind a fine distinction is that it doesn't address owe. >> in each cases, when you one problem you have a duty to protect peach that's lawful. >> you do, as long as your narrowly tailored to your interest. >> i think what you have to say
that it'surt is impossible to write a statute of the kind that we are discussing and this is justice breyer's question. >> it would be enormously difficult to write a statute that addressed the problem and significant interest here, where you are making that kind of a fine distinction. a questionk you about a distinction that is in this statute, let me give you this example. a woman is approaching the door of a clinic and she enters the other women approach her, one is an employee of the facility, the other is not. the first, who is an employee of morning,ity, says good this is a safe facility. the other one who is not an employee says good morning, this safe facility. now, under this statute, the arst one has not committed crime, the second one has committed a crime. and the only difference between the two is that they've expressed a different viewpoint.
one says it's safe, one says it's not safe. like thatan a statute be considered viewpoint neutral? >> i think it's based on what two different people are doing. as you say, the employee could say, if she was performing her job, which would be escorting that individual into the facility, and if she wasn't unnecessarily cluttering up the zone, which was the reason that the statute was first place, then that person could say that. you judge it on what she's not what she's saying. >> what she's doing is what she's saying, she approaches and says this is a safe facility. the other one says it's not a safe facility, they have a bad safety record. and they're the only people in the zone, if it's as big as this onlyroom, they're the three people in that zone. the difference is a viewpoint difference. doneat the legislature has is that it has created a circle around these entrances and is
permitted particular conduct within that buffer zones zone, to allow the traffic to sidewalk andn the to allow people to get in and out. so unless you have a permissible for your conduct to be in the buffer zone, then you zone and in the buffer that is what the statute is a dressing. >> i don't understand. purpose toissible say this is a safe facility, but not a permissible purpose to say an unsafe facility? >> the statute is not focused on that person's speech. statute is focused on what they're doing in the buffer zone. >> the consequence is just what is described by justice scalia, consequence of the statute. are you saying the consequences of what you write are irrelevant argument? >> certainly i wouldn't say that. >> seems to me you should answer scalia's question then much. >> with respect to viewpoint discrimination, the statute has perfectly legitimate sweep. it allows people to go in and
allowsthe building, it pedestrians to go back and forth forss the walk and allows even employees with, with snow shovel z -- could have created a completely silent zone. i don't know whether that would or not, but it would be a different question. you can say nobody can speak with shovel snow, they work for the clinic, they can sweep the sidewalk, they can can go in andthey out but they cab utter a wore. that would be a different but that's not this statute. this statute says that there's an exemption for employees of the facility if they are operating within the scope of their employment, and surely aming out and saying this is safe facility is within the scope of their employment. >> right. that?how do you justify forget about the conduct now. the speech that's allowed, one safe, theand say it's other cannot speak and say it is not safe. >> what i would argue, your is that speech in that particular circumstance of the employee doing her job and not
news let cluttering the buffer zone, then that speech is incidental to the permissible conduct. outit doesn't make the sta on its face, doesn't make it viewpoint discriminatory. >> you think it's incidence dental. insit dental. >> it's incidental to her performing her job. there were a circumstance where that kind of speech are widespread or touched on advocacy in any way, obviously palers would have an opportunity to challenge the statute as applied. but they haven't begun to make case that there's viewpoint discrimination actually happening in the buffer zone. hard for me to credit the statement or the for an employee to say we're glad you're here, you're going to be well taken
a safe, this is facility, it important for you to be here, it's very very hard to credit your statement that that is incidental to their function. >> it's incidental to the permissible pup that they're allowed in the buffer zone. a, they actually train their escorts not to engage in that kind of speech. all.at's first of second of all, escorts only exist and only operate in boston saturday mornings for a couple hours. they don't work at all in worcester or springfield -- >> but that raises another ms. miller, because i assume that that's true because obstructionnd the really are, with respect to one certain periods of time. so mr. rienzi says look if it's facility, not all 10 of them or whatever it is and it's only for certain periods of
time, not all day every day, why way.arrow it that so why not? >> because experience has shown that you do have problems at andester and springfield those problems do center around the driveways. whoo 90% of patients approach those facilities do so by car. and the only public sidewalk, small slice of public sidewalk between the road and the private driveway, and that's opportunity that individual would have in order to protest. in the pastappened in worcester and springfield is that you would have pacing across these driveways. joint appendix 41, you'd have individuals stopping, and standing and refusing to move in worcester. you'd have literature thrown into cars, you'd have hands and heads thrust into open windows and there was at least one that's atn worcester, j.a.19. so there definitely was conduct wasn'ts a problem and it
even that there were a couple of lone protesters in worcester or springfield. there are events in worcester and springfield, there are everyr protesters there week pictures of all. and second of all the crowd get much annual --the semi >> i object to you calling these people protesters, which you've your wholeduring presentation. that is not how they present themselves. they do not say they want to protests. they say they want to talk quietly to the women who are facilities.hese how does that make them protesters? >> your honor, the problem of course with, that the statute to address was not with protesters per say. it was with people who had a be as close to the facility doors and driveways as possible to communicate their message. but the result of that was congestion around these doors and driveways. so it wasn't a concern about the protest, it was a concern about
being able toy use -- >> i would think, ms. miller, that if you tried to do a distinguished between protesters and counselors, that would be con ten based much more than this statute is. >> i would agree. thatt, which is not to say this statute doesn't have its problems in my view. so i guess i'm a little bit hung why you need so much space. >> again, the experience, we've long experience in massachusetts, a long history of doors oround these even violence. enforcementd law and others who have viewed that crowd on a regular basis, and described it, the activity around the doors and driveways as being so friend itic, you have so many people there. the bad actors and the good have so many people in the same space from all points of view, that it door.ively blocks the >> before you sit down, can i ask you this question and
aflcio brief.he suppose the state legislature has hearings and they say history ofong violence and obstruction at sites where there is a strike replacement workers have been called in. could the state pass a statute a 35-foot zone's like this around every location the state when ever there's a strike and there are replacement workers? that?they do >> right, well, of course labor actions are protected by federal law couldn'ttate directly conflict with that law. that?ld federal law do >> well, this court has repeatedly upheld restrictions labor activities, if given the right record. so the answer amendmente first would permit regulation -- >> in every case, there could just be a flat rule, doesn't matter whether there's any history at that place, any there's going to be violence? maybe there will, maybe there
board.across the a zone around every place where there's a strike. >> certainly it would be an case to defend if there was a history, as we have here, that --d have to prove >> you don't think there's a history of violence at places where there are strikes and replacement workers? >> i don't think there's been the kind of history and violence that we've had on this almost unique record tomassachusetts with respect facilities. honor -- >> is there any abortion clinic that has not had a problem in massachusetts? >> there was, when the legislature was considering the was a surveye submitted that reviewed the the 10 facilities that were then in existence in massachusetts, and six of them said they had significant problems, outside of their facilities, eight of them said least they had regular protesters. there were two who did not was a that there
significant problem. >> this is testimony by the clinics themselves, right? >> correct. thank you, your honors. you, counsel. itmr. chief justice, and may please the court. the massachusetts statute here is simply a place regulation does not ban speech but instead moves it from one part of a public forum to another. case away from the small areas -- precedents dor you think governs this case? >> so, your honor, i think there are a number of precedents that helpful. mad send of course upheld the 36-foot buffer zone that had a speech zone very much like. this. >> that was an injunction. but it was upheld under a stricter standard than applies here.
aside from that i think a number of the pillars of petitioners arguments here are by this contradicted court's precedent. so for example the idea that unrestricted, that you have the right to choose the best communication is contradicted by heron and frisbee. hefron the petitioner said i need to be able to talk quietly people to ask for money. and this court said you have channelslternative over in that booth. in frisbee what the protester target a houses and what this court said was you have alternative channels of communication. can you go door to door, you can mail things, can you make calls. of theink that pillar argument -- >> what's the alternative here? standing 35 feet away and yelling? >> no, your honor. >> is that the alternative to comfort these women? >> no, your honor. the alternative in this case is
the entire length of the sidewalk, quiet counseling, leafletting and conversation is permitted. to fivee last four second before the counselors clinic -- that are. >> they don't know who is going into the clinic, until you get the area close to the clinic, you don't know whether passers-by are going there or not. >> the testimony is actually to the contrary, that mismcpeculiar expen others get identifying who is going and is not going into the clinic, and actually, so what we're talking about is the last four to five second before they in. >> is your concern that absent the statute they will be obstruction to the entrance, is that a major concern? >> so, let me address that. answer is yes, but that's not all. what the legislature had before it and justice breyer -- >> let me ask, if that's your concern, how many federal prosecutions were brought in physicaletts for obstruction under the federal statute? >> your honor, i'm not aware the
number. there are 45 prosecutions nationwide, but this is a statute. they're for murder, arson and for chaining yourselves to doorway. they are not for the kind of quiet counseling and picketing here. >> but the federal interest that you're defending is you don't want this physical obstruction statute to be misinterpreted. but what's wrong with the physical obstruction statute as of theer to many problems that massachusetts is facing? >> your honor, i don't think to the all an answer problems massachusetts is facing because as justice scalia has these are not the type of defendants who are at issue in the face act. face act is talk become is murder, arson and chaining to doorways. it iss different, congestion in front of doorways -- >> that's obstruction under the federal statute. >> it is not, your honor, because those are specific intent crimes in both
federalsetts and the statute. for example -- >> even a dog knows the stumblede in being over and being kicked. you're saying federal prosecutions can't tell when people are deliberately obstructing? of the yon the realm law? >> i'm saying what's at issue here, your honor, is not that deliberate obstruction. what the testimony was was that a congregation and massing of people that there were pro-choice protesters in certainly are not intending to obstruct, and it so what they were dealing with was quiet counseling leading to countercounseling shunng to con investigate in front of the doorways. there also was testimony that there were people handing moving cars, accidents and near accidents, which are not intentional obstruction in the least. statutes that this court, that are at issue in the specific intent and the face act do not get at the kind of peaceful quiet yet congesting
and disrupting conduct that is at issue here. would urge breyer, i you to look at the appendix 67 the herrer nan testimony, the coakley testimony and the capone testimony, there are specific arguments as to why these did not work. petitioners make here, is very very broad. the lower courts have upheld buffer zones around political conventions, around circuses, around funerals. idea that you could defeat those buffer zones by simply saying i would like to have a quiet conversation with the delegates as they go into the political convention, would wipe court after of piece decisionings and the kind of buffer zones that this court, the lowerand that courts have found are needed. you think what do you think a state legislature or find in order to to establish a zone around some
of facility, at which evidence that there have been some disruptions and some obstruction. >> so -- >> an example, i think it's a some place,ce there's a buffer zone around fraternal lodgings. not aware of the history of fraternal lodges. >> what would they have to find, or slaughter houses, or sites where there are strikes. example, innk, for the slaughter house or what they found around circuses and conventions is the idea that there is massing of people that andents the orderly ingress egress to and from the facilities. what the state was dealing with an isolated incident, but the state had 14, 15 years of history of the had tried other things, they had tried the narrower buffer zone, and the testimony was it wasn't working
comingt the police were in and see we cab enforce it. hard timeey had a measuring consent. >> what kind of a record do they need? state law thata says no picketing around any, can you never have a picket store to try to prevent people to tell people don patronize this store. that thorn hill v. alabama. >> they struck that down, but that's very different from the that was you can't go anywhere near the facility and was only one type of speech. this is content neutral and it's a narrow buffer zone. >> i understand -- stop. i'll ask this one more time. the desireunderstand to create a buffer zone around sensitive facilities. what i'm asking is what requirements, if any, does a state legislature have to meet before they can do that. simply sayne, do we
they have the rationale basis for it and that's it so they can basically a buffer zone around any kind of a facility they want. then what needs to be established? >> i think in the evidence den realm that it hard to have hard and fast rules. lengthy history of serious congestion and other problems and some sort of alternativesthe weren't working, but this problem has been going on in since 1994.s this is not something the legislature woke up one day and incidentight of one we're going to deal with this. they tried other things. evidence therefore supported this. what would take to support a broader statute, it's hard for me to say. but i think this record show z -- >> what about the example of the certainly is a long history of labor violence in places where there are workers.nt could it be done in that situation across the board? >> so i think that would be a
and hard totatute defend. but if there were before the legislature, as there physician kind of congestion and the solution i submit is narrower tonight petitioners are suggesting, it is to clear out an area around the entrance so that it's edge of the the doorway to tending of the buffer is, its no to the back of the courtroom. three-point zone. scalia'sk to justice first question. is up to then nlrb. it does regulation ultimate picketing, it and say what you can and can't do and the courts that.viewed and what standard do courts use decides in its wisdom and expertise well, the
go here but they can go there. all of which has speech implicationings. what standard of review do the courts use? >> sir, i'm not aware of the use.ard they >> are you aware of any case, putting it -- where the standard has differed from the ordinary appear p.a. standards. >> i'm not aware of cases one way or the other. >> if there should be a new standard for reviewing this kind of regulation, i think that's a serious question. >> i don't think so, your honor. >> thank you, counsel. mr. rienzi, you have three minutes remaining. >> thank you, mr. chief justice. notral points, first, it's impossible to draw a statute to deal with the problems, 49 other states deal with the alleged the next prosecution massachusetts institutes for blocking a door will be its decades.at least two >> is that true, mr. rienzi irks massachusetts statute the only one of its kind? >> it's the only state statute
of this kind, there are some municipal that are similar. secondly, here the police officers testified that they know all the regular players at the clinics, that's their testimony, they know them all. well, if you know them all and congregating in the doors, you should go to court injunction.nc. r the claim that they have to throw their hands up and put people in prison for enter swaysive speech is not a good claim. secondly all the evidence that sighted, allates of it, boston, saturday mornings, the claim that the extrapolate from that to ban peaceful speech in theon at other times when sidewalk is empty and at other clinics where the sidewalk is empty and say, well, there's there and where there's abortion we expect certain speech problems, therefore we're going to make it illegal to speak there. that's the state's claim here. the evidence is boston specific. the first amendment requires precision. they need to regular tult problem write has and if that
means police officers, if that disperse allows, if that means actually bringing a face prosecution, which the united done, theynever ought to do that. imprisonshouldn't mismccullen for her speech. >> are you questioning the government's representation? is it limited to the three weighingsings, to murder, arson and chaining? >> no, it is not, the statute is remotely limited to that. i direct the court to section c, it's the, section, definitions section, definition 4, physical obstruction includes even making entry, unreasonably difficult. fors not as all solely violence, it's for physical obstruction even making it unreasonably difficult. said they brought 45 case as cross the country, that's true, zero, zero in massachusetts. able touldn't be restrict peaceful speech. lastly to the extent the court feels the need to recognize that there are some situations that are so extraordinary that we should put people in prison for
on publiconversations streets, that ought to be the exceptional case where the statute passes strict scrutiny the state actually has tried the solutions that it claims don't work. that is not this case. does not claim its restriction scrutiny, they didn't say it would be it woulde, they said be hard 49 other states do different things. the federal government protects speech. this is a great example of something that deliberately gets at the problem and if somebody the doorway and they need to get out of the doorway, the answer is sir, please get outdoor way. it is not dragging mismccullen af to prison because she has consensual conversation 25 feet away from the doorway. that the extra power government has to selectively betrol speech among will participants on public sidewalks. >> thank you, counsel, case is submitted. recognizes the