McCullen v. Coakley
The Court struck down Massachusetts's 35-foot buffer zones around abortion clinics, ruling that the law kept people off public sidewalks far more than necessary to achieve the state's safety and access goals.
While the Court agreed the buffer-zone law was not aimed at silencing any particular viewpoint, it found the state had other, less restrictive tools available and never seriously tried them before banning speech altogether from a wide stretch of public sidewalk.
How it got here: A federal trial court and the First Circuit rejected the counselors' First Amendment challenges to the buffer-zone law, and they asked the Supreme Court to review that ruling.
The Case in Depth
What happened
Massachusetts law made it a crime to stand within 35 feet of an entrance to an abortion clinic. Eleanor McCullen and other petitioners regularly stood outside clinics offering "sidewalk counseling" — quiet conversations and literature about alternatives to abortion. They said the buffer zones pushed them so far from clinic doors that they could barely reach patients, while clinic escorts could still approach patients inside the zones.
The question before the Court
Could Massachusetts keep sidewalk counselors and protesters out of a 35-foot zone around every entrance to an abortion clinic?
The Court's answer
No — the Court struck down Massachusetts's 35-foot buffer zones, though not because government can never regulate speech near abortion clinics. The Court first found the buffer-zone law content-neutral: it applied based on where someone stood, not because of what they said, and its stated safety and access goals held up regardless of how any listener reacted to the speech.
But even content-neutral rules must not burden substantially more speech than necessary. Because the buffer zones pushed sidewalk counselors so far back that they could no longer hold quiet, personal conversations or hand out literature — and because Massachusetts had not seriously tried narrower tools like anti-obstruction laws or targeted injunctions first — the Court held the zones swept up far more speech than the state's interests required.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
Sidewalk counselors like the petitioners can now stand closer to clinic entrances in Massachusetts and have the close, personal conversations they say are essential to their message. States and cities with similar fixed buffer-zone laws will likely need to show they tried narrower measures — like anti-obstruction laws or injunctions — before excluding people from public sidewalks near clinics.
What changes now
The case goes back to the lower courts, but the Massachusetts buffer-zone law itself is now unenforceable as written. Massachusetts and other jurisdictions with similar laws will need to consider narrower alternatives, such as anti-obstruction statutes, targeted injunctions, or crowd-dispersal ordinances, if they want to address clinic-access problems without excluding people entirely from public sidewalks.
What this does not decide
The Court did not hold that buffer zones around clinics are always unconstitutional, nor did it decide whether the exemption for clinic employees made the law viewpoint-based — it found insufficient evidence of that on this record. The majority also did not revisit Hill v. Colorado, the earlier case upholding a similar buffer-zone approach, despite Justice Scalia's argument that it should have.
Concurrences and dissents
Concurrence — Justice Scalia
Justice Scalia agreed the law was unconstitutional but for a different reason: he would have found it content- and viewpoint-based and struck it down under strict scrutiny. He argued the majority's content-neutrality analysis was unnecessary dicta, accused the Court of continuing a pattern of giving abortion-rights advocates lenient treatment, and argued Hill v. Colorado should be overruled.
Concurrence — Justice Alito
Justice Alito agreed the law was unconstitutional but concluded it was viewpoint discriminatory on its face: clinic employees could speak favorably about the clinic inside the buffer zone while critics could not enter to say anything at all. He argued this asymmetry could not be ignored in judging the legislature's intent, even accepting the majority's narrow-tailoring conclusion as a fallback.
How the Court got there
The legal reasoning, step by step
- The Court applied the three-part test from Ward v. Rock Against Racism for regulating speech in traditional public forums like sidewalks: a law must be content-neutral, narrowly tailored to a significant government interest, and leave open other ways for people to communicate.
- The Court first asked whether the law was content-based, which would trigger strict scrutiny — the toughest constitutional test, requiring the government to prove the law is the least restrictive way to serve a compelling interest. It found the law content-neutral because it applied based on where someone stood, not on what they said, and its stated goals of safety and clear sidewalks held up regardless of how any listener reacted to the speech.
- The Court also rejected the claim that letting clinic employees into the zones favored one side of the abortion debate, reasoning that nothing in the record showed clinics had actually authorized employees to discuss abortion inside the zones, so the exemption served only to let employees do their jobs.
- Because the law was content-neutral, the Court applied the more lenient time-place-manner standard, asking only whether the law burdened substantially more speech than necessary — not whether it was the single least restrictive option available.
- Measured against that standard, the buffer zones failed: they eliminated close conversations and leafleting from a wide strip of sidewalk even though existing obstruction laws, targeted injunctions, and other narrower tools could address the same safety and access concerns.
- Because Massachusetts had not shown it seriously tried those less-restrictive options before adopting a blanket buffer zone, the Court concluded the law was not narrowly tailored.
Doctrinal impact
Cases affected by this decision
Distinguishes Burson v. Freeman (504 U. S. 191)
The Court said polling-place buffer zones were justified differently because voter intimidation is hard to detect, unlike clinic obstruction.
Reaffirms Ward v. Rock Against Racism (491 U. S. 781)
The Court relied on Ward's time-place-manner test to evaluate and ultimately strike down the buffer-zone law.