Dear Representative, Senator:
Seven years ago, at the urging of the Attorney General, the Legislature passed the so-called Buffer Zone Act, and the Governor signed it into law despite warnings that it violated the First Amendment to the United States Constitution and would not withstand a challenge to its constitutionality.
Last week, the United States Supreme Court in a unanimous 9-0 decision vindicated critics of the act (which included the ACLU) and ruled that the law violated the First Amendment and, therefore, was unconstitutional. McCullen, et al v. Coakley Attorney General of Massachusetts, et al, 573 U.S. ___ (2014).
Now in a rush to judgment, the same Attorney General and Governor are asking you to support new legislation that in all likelihood will lead to more litigation due to infringement on the right of citizens to use the public sidewalk for the two primary methods of communicating their message to persons entering abortion clinics: close personal conversation and distribution of literature. As the Court noted, those forms of expression have historically been closely associated with the transmission of ideas. It stated, “[c]onsistent with the traditionally open character of public streets and sidewalks, we have held that the government’s ability to restrict speech in such locations is ‘very limited.’” McCullen, at ___. Pointing to its decision in Schenck v. Pro-Choice Network of Western N.Y., 519 U.S. 357, 377 (1997), it reminded us that “[l]eafletting [sic] and commenting on matters of public concern are classic forms of speech that lie at the heart of the First Amendment.” The Court then cautioned, “[w]hen the government makes it more difficult to engage in these modes of communication, it imposes an especially significant First Amendment burden.” McCullen, at ___.
As you consider voting on the Attorney General’s new proposal, please think carefully as to whether or not the latest version will pass constitutional muster. Remember, she convinced you before that her bill would do so, and she was dead wrong.
Thank you for any consideration you may give these matters.
Very truly yours,
Anne C. Fox Patricia D. Stewart