Title

The Unavoidable Implication of McCullen v. Coakley: Protection against Unwelcome Speech is Not a Sufficient Justification for Restricting Speech in Traditional Public Fora Note

Document Type

Article

Abstract

The First Amendment rights of speakers and the government's power to restrict speech to protect unwilling listeners come together in the Supreme Court's buffer-zone jurisprudence. Litigation brought by sidewalk counselors to eliminate buffer zones around reproductive healthcare facilities has reached the Supreme Court several times. Before Hill v. Colorado, the Court was reluctant to hold that a state's interest in protecting unwilling listeners from unwanted communication was a sufficient justification for speech restrictions in traditional public fora. In Hill, however, the Court upheld a floating-buffer-zone statute based primarily on this interest. In McCullen v. Coakley, a recent challenge to a Massachusetts buffer-zone statute, sidewalk counselors specifically asked the Supreme Court to overrule or limit its decision in Hill. Although this time the Court struck down the buffer zone, the majority did not discuss Hill and the decision has left many wondering to what extent Hill remains intact. This Note explains how the majority opinion in McCullen suggests that a statute concerned with protecting unwilling listeners from unwanted communication in traditional public fora is not content neutral. Therefore, this Note argues that McCullen provides a basis for overruling Hill with respect to the government's power to restrict speech to protect unwilling listeners from unwanted communication in traditional public fora.

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