McCullen v. Coakley buffer zone commentary roundup

Argument transcript is here.

Mark Sherman, AP: “A 35-foot protest-free zone outside Massachusetts abortion clinics appeared unlikely to survive Supreme Court review after liberal and conservative justices alike expressed misgivings about the law in arguments Wednesday.”

Adam Liptak, New York Times: “Chief Justice John G. Roberts Jr., who almost certainly holds the crucial vote, asked no questions. His earlier opinions suggest, however, that he is likely to provide the fifth vote to strike down the law.”

Lyle Denniston, SCOTUSblog: “Justice Antonin Scalia (one of the dissenters when the Court upheld a different kind of buffer zone in 2000) led the verbal attack on the Massachusetts law on Wednesday, repeatedly insisting that what the anti-abortion challengers want to do is not to protest at all, but just ‘to talk to the people.’ If they actually were staging protests, he said, it might be permissible to require them to stand back for thirty-five feet. Justice Alito also said explicitly that ‘what these people want to do is speak quietly.’ If that perspective forms the basis for a decision on the power to insulate abortion clinics, it would create a considerable degree of freedom to engage in what anti-abortion organizations call ‘sidewalk counseling.’”

Amy Howe, SCOTUSblog: “Although the Chief Justice failed to tip his hand, it’s hard to imagine a scenario in which he would vote to uphold the law, and nothing that Justice Samuel Alito said today would have provided any hope to the state. So the five conservative Justices may well be ready to strike down the law because it prohibits too much speech, such as the peaceful speech in which Eleanor McCullen wants to engage.”

Emily Bazelon, Slate: “I am very sympathetic to Phelps’ situation, and to the women who have to deal with this entering any clinic. But what’s truly crucial is protecting patients and clinic staff from physical harassment and violence, not dissuasion and name-calling. The right to be left alone isn’t actually much a part of American tradition when it comes to public spaces. That’s our First Amendment, especially in the hands of this Supreme Court.”

Charles C. W. Cooke, National Review: “Cases such as this often become confused by the question of what the state is allowed to do when speaking becomes something else — intimidation, say, or browbeating. But there is no such complication here. Despite his repeated entreaties, the defendants singularly failed to provide Justice Breyer with an example of the violence that they say made the law necessary in the first place. Indeed, even if they had found one, it wouldn’t have done much to justify the rule.”