Friday, June 27, 2014
The Supreme Court's unanimous judgment yesterday in McCullen v. Coakley was correct: Massachusetts violated the First Amendment by prohibiting peaceful speech on public sidewalks outside of abortion clinics. The Chief Justice's opinion for the Court puts some real teeth into narrow tailoring and should be very speech-protective in application to a range of speech restrictions down the road. I was disappointed, however, in the Chief Justice's content-neutrality ruling.
Justice Scalia's concurrence in the judgment powerfully sets forth the case for understanding the Massachusetts law as content-based, and therefore deserving of strict scrutiny. Lest this be viewed as just another episode in the series which the Chief Justice refuses to overturn a problem precedent while Justice Scalia lambastes the Chief's faint-heartedness/moderation (readers' choice), it is worth taking note of a couple ways in which this case departs from that pattern. First, Justice Alito wrote separately from the Chief Justice to take the even stronger First Amendment position that the Massachusetts law was viewpoint-based. (Contrast that with a case like Hein v. Freedom from Religion Foundation.) Second, Professor Laurence Tribe agrees with Justices Scalia, Kennedy, Thomas, and Alito, while disagreeing with Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, and Kagan. How often does that happen?
On this last point, I can't help but add a personal perspective on the decision in McCullen. Yesterday's decision marks the culmination of the first "real" federal litigation I have been involved in. As a law student, I was there at the beginning, helping out with the earlier First Amendment challenge (McGuire v. Reilly) to the (also-unconstitutional) predecessor to the law held unconstitutional yesterday. And I've had the opportunity to help out some with the McCullen case along the way as well. It has been a professional privilege to work with excellent lawyers who never gave up on meritorious First Amendment claims over the course of well over a decade. But perhaps the most encouraging aspect of the litigation for me has been to see Professor Tribe and Justice Scalia agree on the application of core First Amendment principles in a case like this. More than once, I've received strange looks and skeptical questions from people who wonder how anyone could have worked for both of these men. Yet there are a handful of us. And though I can't speak for the others, it's fair to say that I agree with Justice Scalia more than Professor Tribe about matters of constitutional law. The occasions that they agree on constitutional substance, even while many others disagree, are occasions that give me confidence in the capacity of legal principle (often more fragile in application than it should be) to direct sound reasoning about difficult and divisive issues.