Full opinion text
MEMORANDUM TAURO, District Judge. Introduction Plaintiffs challenge the facial constitutionality of a recently revised Massachusetts statute, Mass. Gen. Laws ch. 266, § 120E 1/2 (“Act”), which establishes a 35-foot fixed buffer zone around driveways and entrances of reproductive health care facilities (“RHCFs”). Following a Bench Trial held on May 28, 2008, this court finds that the Act survives First Amendment, Equal Protection and Due Process challenges. Background A. The Parties Plaintiffs Eleanor McCullen, Jean Blackburn Zarrella, Gregory A. Smith, Carmel Farrell and Eric Cadin are Massachusetts residents who regularly engage in pro-life counseling outside RHCFs. Defendant Attorney General Martha Coakley is the chief lawyer and law enforcement officer of the Commonwealth of Massachusetts. As such, Attorney General Coakley bears responsibility for enforcing the Act. She is sued in her official capacity only. B. Procedural History On January 16, 2008, Plaintiffs filed the Complaint, advancing eight counts under 42 U.S.C. § 1983: (1) Free Speech — Time, Place and Manner; (2) Free Speech — Substantial Overbreadth; (3) Free Speech— Prior Restraint; (4) “Free Speech — Free Association — Free Exercise Hybrid;” (5) Free Speech — Viewpoint Discrimination; (6) Due Process — Vagueness; (7) Due Process — Liberty Interest; and (8) Equal Protection. Plaintiffs seek that this court: (1) declare that the Act is unconstitutional on its face; (2) declare that the Act is unconstitutional as applied at the Allston-Brighton Planned Parenthood and Women’s Health Service; (3) preliminarily and permanently enjoin Defendant from enforcing the Act; (4) award costs and attorneys fees; and (5) grant any other relief that this court deems necessary and proper. Following Defendant’s Answer, and briefing on Plaintiffs’ preliminary injunction motion, this court held a Case Management Conference on April 23, 2008. Without objection from the Parties, this court ordered that the matter proceed on the merits in two stages: (1) a Bench Trial on Plaintiffs’ facial challenge; and (2) a Bench Trial on Plaintiffs’ as-applied challenge. In early May 2008, the Parties stipulated to the content of the Trial Record for the facial challenge, and filed a Joint Trial Record with this court. On May 14, 2008, the Parties filed Proposed Findings of Fact and Conclusions of Law. Also on May 14, 2008, four individuals filed an Amicus Brief in support of Plaintiffs’ facial and as-applied challenges. On May 28, 2008, this court held a Bench Trial on Plaintiffs’ facial challenge. The Parties presented extensive oral argument, and this court took the matter under advisement. Factual Findings A. Notes on Factual Findings 1. Source The following findings of fact derive from the Joint Trial Record submitted by the Parties. Additionally, this court takes notice of the findings of the First Circuit with respect to the legislative justification for the original statute enacted in 2000 (“2000 Act”). 2. Focus on Facial Challenge Plaintiffs urge this court to adopt various findings of fact relating to, among other things, the following: Plaintiffs’ activities at certain RHCFs; specific incidents at certain RHCFs; and the operation of the buffer zone at certain RHCFs. Additionally, Defendant asks this court to adopt certain findings of fact relating to the effects of the Act, to date, at certain RHCFs. While this information may be important to Plaintiffs’ as-applied challenge, it is largely irrelevant to the facial challenge. Moreover, because the as-applied challenge will be tried separately, this court does not have a complete record from which to make such findings. B. History of the 2000 Act As noted by the First Circuit, “[b]y the late 1990s, Massachusetts had experienced repeated incidents of violence and aggressive behavior outside RHCFs.” These included a shooting that occurred on December 30, 1994, in which two people were killed and several others injured. Massachusetts courts also issued numerous injunctions prohibiting certain individuals from engaging in violent, harassing or intimidating activity at RHCFs. Responding to these concerns, “the Massachusetts legislature, confronted with an apparently serious public safety problem, investigated the matter thoroughly.” “That investigation yielded solid evidence that abortion protesters are particularly aggressive and patients particularly vulnerable as they enter or leave RHCFs.” Part of the investigation included a state senate hearing on the matter in April of 1999. At the hearing, the “received testimony chronicled the harassment and intimidation that typically occurred outside RHCFs.” In addition, “numerous witnesses addressed the emotional and physical vulnerability of women seeking to avail themselves of abortion services, and gave accounts of the deleterious effects of overly aggressive demonstrations on patients and providers alike.” The senate, “[bjased in part on this testimony, ... concluded that existing laws did not adequately protect public safety in areas surrounding RHCFs,” and the Legislature began considering new laws to address the problem. Initially, in Senate Bill 148, the senate considered a 25-foot fixed buffer zone around RHCF entrances and driveways. The First Circuit explained: To remedy this situation, the senate favored the creation of fixed buffer zones. The sponsors of the bill left no doubt that they intended the proposed law to “increase public safety in and around [RHCFs]” while “maintaining the flow of traffic and preventing congestion” there. S.B. 148 ... § 1. In the bargain, the sponsors expected the law to provide “reasonable time, place and manner restrictions to reconcile and protect both the First Amendment rights of persons to express their views near reproductive health care facilities and the rights of persons seeking access to those facilities to be free from hindrance, harassment, intimidation and harm.” It thereby would “create an environment in and around reproductive health care facilities which is conducive towards the provision of safe and effective medical services ... to its patients.” Id. Skeptics worried that the proposed law might offend the Constitution. To stave off these gloom-and-doom predictions, the senate, on November 3, 1999, asked the Massachusetts Supreme Judicial Court (SJC) for an advisory opinion on the bill’s constitutionality. On January 24, 2000, the SJC concluded that the Constitution presented no obstacle to enactment. Opinion of the Justices to the Senate, 430 Mass. 1205, 1211-12, 723 N.E.2d 1 (2000). The SJC advised that the bill, as framed, was unrelated to the content of protected expression. Id. at 1209, 723 N.E.2d IMoreover, the restrictions imposed had a rational basis in view of the heightened governmental interest that arises when “advocates of both sides of one of the nation’s most divisive issues frequently meet within close proximity of each other in the areas immediately surrounding the State’s clinics, in what can and often do become congested areas charged with anger.” Id. at 1210, 723 N.E.2d 1. Following the SJC’s opinion, the state senate adopted the bill on February 29, 2000. On June 28, 2000, however, the Supreme Court decided Hill v. Colorado, There, the Court considered the constitutionality of a Colorado statute that regulated speech-related conduct around RHCFs. The statute created a “floating” buffer zone within a 100-foot “fixed” buffer zone. Plaintiffs challenged the “floating” zone, which “ma[de] it unlawful within the regulated areas for any person to ‘knowingly approach’ within eight feet of another person, without that person’s consent, ‘for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling with such other person....’” The Court upheld the Colorado statute as a valid time, place and manner regulation, finding that the law was “narrowly tailored” and “serve[d] governmental interests that are significant and legitimate and that the restrictions are content neutral.” This court will address Hill in more detail below. C. The 2000 Act Subsequently, the Massachusetts Legislature decided to follow the Court-approved Colorado model of a “floating” buffer zone within a “fixed” buffer zone. The state house redrafted Senate Bill 148 accordingly, and on July 28, 2000, adopted an Act Relative to Reproductive Health Care Facilities, Chapter 217 of the Acts of 2000 (“2000 Act”). The senate approved on July 29, 2000, and Governor Celluci signed the bill on August 10, 2000. The 2000 Act created an 18-foot fixed buffer zone around RHCFs, within which a 6-foot floating buffer zone existed around any person or occupied motor vehicle: (b) No person shall knowingly approach another person or occupied motor vehicle within six feet of such person or vehicle, unless such other person or occupant of the vehicle consents, for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education or counseling with such other person in the public way or sidewalk area within a radius of 18 feet from any entrance door or driveway to a reproductive health care facility or within the area within a rectangle not greater than six feet in width created by extending the outside boundaries of any entrance door or driveway to a reproductive health care facility at a right angle and in straight lines to the point where such lines intersect the sideline of the street in front of such entrance door or driveway. The 2000 Act, however, exempted certain groups from its coverage: (1) persons entering or leaving such facility; (2) employees or agents of such facility acting within the scope of their employment; (3) law enforcement, ambulance, firefighting, construction, utilities, public works and other municipal agents acting within the scope of their employment; and (4)persons using the public sidewalk or street right-of-way adjacent to such facility solely for the purpose of reaching a destination other than such facility. Additionally, the provisions of the 2000 Act were only in “effect during a facility’s business hours and [only] if the area contained within the radius and rectangle described in said subsection (b) is clearly marked and posted.” D. Attorney General’s Guidance on the 2000 Act On November 10, 2000, the Massachusetts Attorney General’s office sent a letter to the Brookline and Boston police departments regarding the 2000 Act. The letter explained the Attorney General’s interpretation of the exemption for “employees or agents of such facility acting within the scope of their employment,” and “noted that if escorts were to approach within six feet of a woman within the fixed buffer zone in order to ‘hurl[ ] epithets at demonstrators,’ then their actions would not be within the scope of their employment and they would not be protected by the exemption.” On May 23, 2001, members of the Attorney General’s office met with staff from the Planned Parenthood League of Massachusetts, “to communicate the Attorney General’s interpretation that the Act’s exemption for clinic employees and agents acting within the scope of their employment would not protect such persons if they were to use the exemption to engage in counter-protests, counter-education, or counter-counseling against anti-abortion views, rather than simply assisting the patients into the clinic and protecting clinic access.” On February 14, 2003, an assistant attorney general issued a letter to the police departments with RHCFs affected by the 2000 Act. The letter reiterated that “ ‘all persons in the restricted area, including clinic employees and agents, are subject to the restrictions in Section 120E l/2(b) of the Act, including the restriction on oral protest, education, or counselingf,]’ and that clinic employees and agents may not use the exemption to ‘express their views about abortion[.]’ ” As noted by the First Circuit, this letter “did not signify a new interpretation; it was merely a restatement of an old position. In this most recent clarification of the interpretation, the Attorney General has clearly construed the exemption to exclude pro-abortion or partisan speech from the term ‘scope of their employment.’ ” E. McGuire I and McGuire II Three pro-life “sidewalk counselors” challenged the facial and as-applied constitutionality of the 2000 Act in a federal lawsuit in this District. Judge Harrington found that the statute — on its face — violated the First Amendment, and preliminarily enjoined its enforcement pending a hearing on the merits. In McGuire v. Reilly (“McGuire /”), the First Circuit reversed, holding that the statute lawfully regulated the time, place and manner of speech without discriminating based on content or viewpoint, and remanded the case to the district court for further proceedings. On remand, the plaintiffs pressed facial and as-applied challenges on the merits. Based on the First Circuit’s decision in McGuire I, Judge Harrington granted Defendants summary judgment on Plaintiffs’ facial challenge, but denied summary judgment on the as-applied challenge pending additional discovery and the filing of a renewed motion for summary judgment. After additional discovery, Judge Harrington granted Defendants summary judgment on the as-applied challenge. On the issue of enforcement following McGuire I, Judge Harrington found that “the Act has since been interpreted by the Attorney General so as to require evenhanded enforcement of its prohibitions, even against clinic employees and agents, and the Attorney General’s interpretation has been adopted by the law enforcement authorities.” In McGuire v. Reilly (“McGuire II”), the First Circuit affirmed summary judgment on both the facial and as-applied challenges. McGuire I controlled the facial challenge, and the plaintiffs “offered no reason why the conclusion reached in McGuire I ... is flawed.” Additionally, the court concurred with Judge Harrington’s assessment of the Commonwealth’s enforcement position, holding that “[t]he Attorney General’s interpretation ... is important for our purposes ... because it is clearly a proper, content-neutral way of interpreting the exemption.” With respect to the as-applied challenge, the court concluded that “there is no evidence that the police have enforced this statute in anything other than an evenhanded way... ,” F. The Legislature Determines that the Statute Needs to be Revised 1. Proposed Senate Bill 1353 Following the passage and operation of the 2000 Act, members of the Legislature became aware of continued and serious public safety problems in the areas adjacent to RHCF entrances and driveways, including significant concerns regarding safe patient access to medical services. In 2007, responding to these concerns, several members of the Legislature introduced Senate Bill 1353, “An Act Relative to Public Safety.” The proposed preamble read: Whereas preservation of public safety is a fundamental obligation of state government; Whereas pedestrians have a right to travel peacefully on Massachusetts streets and sidewalks; and Whereas clearly defined boundaries improve the ability of safety officials to protect the public; The bill modified the size and nature of the buffer zone: (b) No person shall knowingly enter or remain on a public way or sidewalk adjacent to a reproductive health care facility within a radius of thirty-five feet of any portion of an entrance, exit or driveway of a reproductive health care facility or within the area within a rectangle created by extending the outside boundaries of any entrance to, exit from or driveway of, a reproductive health care facility in straight lines to the point where such lines intersect the sideline of the street in front of such entrance, exit or driveway. The Legislature’s Joint Committee on Public Safety and Homeland Security (“Committee”) held a public Hearing on the bill on May 16, 2007, and received written and oral testimony from law enforcement officials; RHCF staff, volunteers and representatives; and representatives of various advocacy organizations. At the Hearing, the Committee also viewed video footage and photographs of protest activity at certain RHCFs. Additionally, the Committee received written correspondence supporting and opposing the bill. 2. Public Safety and Access to Medical Services The Committee received testimony that, despite the 2000 Act’s floating and fixed buffer zones, significant public safety concerns continued to exist at RHCFs in the Commonwealth, including major concerns regarding safe patient access to medical services. Attorney General Martha Coak-ley (“Coakley”) explained that the fixed buffer zone was necessary to address the situation: This is an important public safety issue. Over the years, reproductive healthcare facilities have been the scene of mass demonstrations, congestion, blockages, disturbances, and even murders. SB 1353 will help ensure greater safety along our public ways and sidewalks and prevent violence, harassment and intimidation of women who are attempting to exercise their fundamental right to access health care. I support the bill’s recognition that “clearly defined boundaries improve the ability of safety officials to protect the public.” Facility employees, volunteers, patients and prospective patients are routinely harassed as they try to enter and exit facilities for medical counseling and treatment. For example, at the Boston location, which has a recessed door, protesters are able to stand close to the entrance, with some protesters standing right at the entrance. Demonstrators regularly crowd facility entrances and surround women, facility employees and volunteers with graphic and discomfiting pictures of aborted fetuses, and shout at and taunt them calling them “baby killers” and “murderers.” [Pjatients and employees are forced to step around or through the protestors as they make their way into the building. We have heard of some cases where women arrive at the facilities and then leave because they are too upset to pass through the gauntlet of protestors. Protestors also stand and block cars as patients and employees attempt to enter the driveway or garage entrance to these facilities. Other times, protestors circle cars and put their faces against, or in close proximity to, the car windows to scream at and sometimes videotape people in their cars. In some cases, protestors throw anti-abortion literature and leaflets into people’s cars as they enter or exit the facilities. Even more egregious are the protestors who dress as Boston Police Department officers and approach women and their companions at close distance, pretending that they are escorting them to the clinic’s entrance, only to taunt them or force leaflets into their hands as they make their way to and from the healthcare facilities. All of these actions can and do easily spark reaction and response and create an unsafe, dangerous risk along our public ways. The actions directly impede the normal flow of traffic along the Commonwealth’s public ways and sidewalks and hinder women’s ability to access reproductive healthcare. The Legislature also heard testimony from RHCF staff, volunteers and law enforcement personnel regarding specific incidents of patient harassment and intimidation in the areas immediately outside RHCF entrances and driveways. Additionally, the Legislature learned about protesters blocking access RHCFs by physically positioning themselves very close to RHCF entrances and driveways. Examples included the following: • One clinic volunteer at a Boston RHCF reported: The protestors are moving closer and closer to the main door. They scream and block the way for the patients to get into the clinic. We fill out police reports almost every week regarding the way they encroach upon the door, but nothing has changed. They get very close to the patients and escorts inside the buffer zone.... [Fjhey’re getting so close that patients are terrified to even walk into the clinic. I’ve had people ask me, isn’t there a back way.... When it is raining, it is exceptionally bad. Many of the protestors are inside the buffer zone with very large umbrellas and have no regard for who they hit with them. I have often been swiped with the points on their umbrellas and have nearly fallen to avoid being hit. • The president of Planned Parenthood League of Massachusetts personally observed the following at the organization’s Boston facility: • Protestors screaming at patients and employees inside the current ‘buffer zone’, usually right at the doorway. ... • Protesters photographing and filming into patients and employees’ cars and taking photos of license plate numbers to post on websites • Protesters standing in front of cars and the keypad to the garage to block access, so that they can throw pamphlets and other propaganda into cars entering the garage • And, most deceptively, I’ve seen protesters dress up wearing Boston Police T-shirts and hats, trying to collect patient contact information, videotaping, and in other ways trying to intimidate those who are simply exercising their legal right to seek confidential medical services • A Planned Parenthood volunteer reported that protesters stood in front of the building’s entrance, “every Saturday morning, every week.” She explained: There are several long-time protesters who appear in front of Planned Parenthood .... When women approach the building, protesters fan out and approach them. The clear intent of the vast majority of protesters is to deter people from entering the building at all. The current buffer zone ... does not permit protesters to ‘approach’ anyone without consent in the zone, but it does not speak to standing still in front of the building’s entrance and thereby forcing patients to approach them. Physical blocking is practiced regularly by protesters. They either stand in front of the door, in the middle of the sidewalk, or in front of car doors as cars pull up to the sidewalk. Some people pull up in cars and roll down their window to ask about the clinic’s secure parking garage. If the protesters get to the car first, they have been repeatedly heard to tell people that the garage is closed, when it is not. They also shove pamphlets through the open window, regardless of the occupant’s requests. In the rear of the building, near the clinic’s garage entrance .... protesters often wait by the door and video tape the patients’ cars’ license plates. • At an Attleboro RHCF, a patient advocate reported: [Pjrotesters impede access to clinic doors, but also create safety issues for the general public trying to use sidewalks, streets or driveways. [Pjrotesters walk back and forth across the entrance of the driveway. ... Though prohibited from standing in the entrance of the driveway, they frequently stop there until threatened with police action. There have been instances of picketers either slowing or speeding up to narrowly avoid being hit by cars driven by staff. Patients have reported feeling too intimidated by the pacing protesters to enter the property, and turning back. • At one RHCF, on a weekly basis, women try to drive to the facility but turn away “because they’re afraid to enter the parking lot entranceway, [protesters] will block so as not to allow the car to come in, and then we have the other protestors dressed in paraphernalia who will come over to the window with a clipboard and ask them to please sign in before they come through the driveway.” • Likewise, at one RHCF, “You can also see people circling in the same car around and around, and every time they pull up, you can see that they want to go out and they’ll ask where is the garage and then they never stop.” • A protester followed a woman into a Boston RHCF entranceway. At the same location, another protester approached and placed her head inside a car outside the clinic. • A protester wearing a “Boston Police” shirt, standing immediately next to a car trying to enter an RHCF garage. • Protestors “wearing police hats and police uniforms” as a way to get patients and others to consent to an approach. 3. Law Enforcement’s Position The Legislature also received testimony about the difficulties of enforcing the 2000 Act. The record demonstrates that these difficulties reduced the efficacy of the statute’s intended protections, and were part of the reason that significant public safety concerns continued to exist at RHCFs. Attorney General Coakley explained: The current law provides no clearly defined boundary because it is a “floating” buffer zone within a defined radius of eighteen feet, so the buffer zone effectively moves and shifts as people pass along the public way to facility entrances or driveways. Either ignoring the law, or inadequately measuring the six-foot distance around a moving person, protestors routinely invade the existing buffer zone in violation of the law. This fact alone has made it very difficult if not impossible for police to be able to immediately or ever determine whether a violation has occurred. Another problem with the existing law is the inability to discern whether a patient, her companions, or facility employees have consented to a given protester’s approach. Some protesters have said that they believed that a patient “consented” because of the way she made eye contact or because a patient uttered a statement in response to a protestor’s comment (even if that statement was not one of consent).... Given the lack of a clearly defined buffer zone boundary, it has been very difficult, if not impossible, for police officers to monitor the distance these protestors maintain between themselves and the persons approaching the facilities and determine if there has been a violation; in other words, to enforce the law. Echoing Coakley’s remarks, Massachusetts law enforcement personnel reported significant difficulties in enforcing the 2000 Act, and urged legislators to modify the law. Captain Evans reported, “This law, the way it stands, the current buffer' zone with the 18-foot buffer zone, makes it very difficult for us to enforce the law.” Mainly, the police had trouble determining whether a protester had “approached” a person within the six feet floating buffer, without that person’s consent. Evans explained: What [the protesters] have to do is make an approach. Now what an approach is is very hard to determine; whether they stick out their hand, that’s an approach; where they take a step forward, that’s an approach. Basically, it turns us into basically something like — I like to make the reference of a basketball referee down there, where we’re watching feet, we’re watching hands. This “constant watching” proved difficult and created a public safety problem. At one of the RHCFs, for example, there have been “over 100 protestors every Saturday and a lot of them go right up in the faces of patients entering the premises.” Additionally, such surveillance was a significant “tying up of resources” that the police “had to deal with [for] seven years.” Contrary to Plaintiffs’ assertions at oral argument, the police and district attorneys tried to prosecute violations of the 2000 Act. Evans indicated his frustration with trying to prosecute violations at one of the RHCF locations: We’ve trying [sic] everything, honestly. We’ve tried violation of the buffer zone, and we’ve brought a few cases up to Brighton Court and the court has basically not supported us.... Chairman, we know all the players down there. We know the regular protesters. We back up the stay-away orders and nothing seems to work down there. Evans noted that at one of the RHCFs, police had made “no more than five or so arrests.” The low number of arrests, however, was due to the difficulty of enforcing the law, not a lack of problematic conduct. Evans explained: Again, [it is] a very difficult law to enforce, what an approach is, what isn’t. I mean, like I said, people can stand inside the buffer zone, and given the current set up of Planned Parenthood there, their door is in 10 feet of — actually, their buffer zone is really only 8 feet outside because of the setup. So it’s such close quarters as it is there that everybody is in everybody’s face, no matter what. So the buffer zone basically is no good, it really isn’t, because just the proximity. It’s almost like a goalie’s crease out there.... So given that fact, it makes it very difficult for us to say someone is violating it because they’re allowed to stand outside the door, with the sign in their hand. In response to these problems, Captain Evans urged the Legislature to implement the 35-foot fixed buffer zone: Week in and week out, we are constantly receiving calls down there [at one of the facilities], both from protestors and from Planned Parenthood on violations. I think clearly having a fixed buffer zone, where everyone knows the rules and nobody can go in that and protest, will make our job so much easier. I think you’ve seen the video; you see what we have to deal with. You know, it’s a very difficult rule to enforce. You know, there’s the misconception that it’s a fixed area where no protestors can go. That would be great. That would make our job so much easier. So I encourage the Committee and the legislators to support this bill. Not only will it safeguard the patients going in there, but it will also make the public safety official’s job a lot easier. So I welcome the 35-foot buffer zone. With respect to the problem of protesters wearing police hats and uniforms, Evans noted: [Wje’ve tried everything, and I think the only thing honestly that will keep these people out and the patients safe is to establish a fixed zone. That way there’s no watching feet, watching hands and allowing protesters right up in their face. 4. First Amendment Concerns Articulated by Advocacy Groups The Public Safety Committee also received testimony and correspondence from several organizations that voiced First Amendment concerns about the bill. For example, the American Civil Liberties Union of Massachusetts opposed the bill, mainly on overbreadth grounds. Wendy Kaminer of the Defending Dissent Foundation expressed her “dismay about the effect of this bill on free speech.” Marie Sturgis of Massachusetts Citizens for Life, Inc. testified, “To increase the size of the existing area without substantial reason would be an action that demonstrates unquestionable bias and clashes with First Amendment rights.” C. J. Doyle of the Catholic Action League of Massachusetts stated, “The proposed expansion of existing buffer zone legislation represents yet another effort to impose a content based restriction on freedom of speech, and to impair other constitutionally protected First Amendment activity such as freedom of religion and freedom of assembly.” 5. Balancing First Amendment Concerns The Legislature specifically acknowledged these First Amendment concerns, and took them into account. Indeed, at the May 16, 2007 Hearing, several legislators discussed the importance of balancing public safety considerations with the First Amendment rights of the protesters. Representative Marty Walz explained: What we’re seeking here is to amend the existing buffer zone law around healthcare clinics to establish a fixed buffer zone of only 35 feet, so much smaller than the 150 feet that we’re accustomed to around polling places, and so for that 35 feet, we think that is an appropriate balance and one that strikes the right balance between First Amendment rights of protesters and the rights of women and other patients and family members and staff members to enter unimpeded into the healthcare clinics, so to recognize that there are competing rights and interests here, just as there are at polling places, and we think a 35-foot fixed buffer zone strikes the right balance to protect women entering and exiting the clinics. Similarly, Representative Michael Festa stated that the 2000 Act balanced the “First Amendment issues” with the concern “that without unfettered and reasonable access to these health services, that many women were being intimidated from having those services provided in an appropriate manner.” Addressing the 2007 Act, Representative Festa commented: I think this bill, quite frankly, strikes the balance in a way in 2007 that we can acknowledge, does give due respect for those who feel that they have need to express their objections to this whole situation, and at the same time, acknowledge that 35 feet is quite reasonable.... [T]his bill, I think, fundamentally does what needs to be done today, which is to give that protection and also afford the right to those who are concerned to express their views. The Legislature also specifically solicited and heard testimony on balancing these concerns. Senator Jarrett Barrios, the Committee’s Chairman, stated: [Sjince I’ve got three of the finest lawyers in Massachusetts in front of me, and one of the leading arguments that is made in opposition to this is infringement on First Amendment rights which the federal government, and obviously there’s a state equivalent to that. And I’m interested in your thoughts, if you have any, specifically as to why that’s not the case. Attorney General Coakley responded that the law was a constitutional time, place and manner restriction that appropriately balanced patient rights, protester rights and public safety considerations. Additionally, after recognizing the importance of First Amendment rights, Coak-ley emphasized the balancing process: “There’s always a balance involved” in First Amendment situations, “and I think it’s an appropriate question and I think the Legislature has to weigh this.” Similarly, Keating noted, “I also view this in a Constitutional sense as a contest of competing freedoms....” Heffernan agreed with Coakley and Keating, and briefly echoed their comments. G. The 2007 Act After receiving and considering this testimony, the Legislature enacted Senate Bill 1353 on November 8, 2007, titled “An Act Relative to Reproductive Health Care Facilities (“Act or 2007 Act”),” Chapter 155 of the Acts of 2007. The Act contained an emergency preamble: Whereas, The deferred operation of this act would tend to defeat its purpose, which is to increase forthwith public safety at reproductive health care facilities, therefore it is hereby declared to be an emergency law, necessary for the immediate preservation of the public safety. The Act itself read: Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same as follows: SECTION 1. Section 120E 1/2 of chapter 266 of the General Laws, as appearing in the 2006 Official Edition, is hereby amended by inserting after the word “within”, in line 2, the following words:- or upon the grounds of. SECTION 2. Subsection (b) of said section 120E1/2 of said chapter 266, as so appearing, is hereby amended by striking out the first sentence and inserting in place thereof the following sentence:No person shall knowingly enter or remain on a public way or sidewalk adjacent to a reproductive health care facility within a radius of 35 feet of any portion of an entrance, exit or driveway of a reproductive health care facility or within the area within a rectangle created by extending the outside boundaries of any entrance, exit or driveway of a reproductive health care facility in straight lines to the point where such lines intersect the sideline of the street in front of such entrance, exit or driveway. The Act did not affect the 2000 Act’s exemptions: (1) persons entering or leaving such facility; (2) employees or agents of such facility acting within the scope of their employment; (3) law enforcement, ambulance, firefighting, construction, utilities, public works and other municipal agents acting within the scope of their employment; and (4) persons using the public sidewalk or street right-of-way adjacent to such facility solely for the purpose of reaching a destination other than such facility. The Act also maintained the business hours and clearly marked restriction of the 2000 Act: “The provisions of subsection (b) shall only take effect during a facility’s business hours and if the area contained within the radius and rectangle described in said subsection (b) is clearly marked and posted.” Governor Patrick signed the bill on November 13, 2007. H. Attorney General’s Guidance on the 2007 Act On January 25, 2008, the Attorney General’s Office sent a letter to law enforcement personnel and RHCFs subject to the Act’s coverage. The letter summarized the Act, and emphasized that the Act’s provisions were in effect only during an RHCF’s business hours and only if the boundaries were “clearly marked and posted.” The letter also provided “guidance to assist you in applying the four exemptions” in the Act, which consisted of the following four paragraphs: The first exemption — for persons entering or leaving the clinic — only allows people to cross through the buffer zone on their way to or from the clinic. It does not permit companions of clinic patients, or other people not within the scope of the second or third exemptions, to stand or remain in the buffer zone, whether to smoke, talk with others, or for any other purpose. The second exemption — for employees or agents of the clinic acting within the scope of their employment — allows clinic personnel to assist in protecting patients and ensuring their safe access to clinics, but does not allow them to express their views about abortion or to engage in any other partisan speech within the buffer zone. Similarly, the third exemption — for municipal employees or agents acting within the scope of their employment — does not allow municipal agents to express their views about abortion or to engage in any other partisan speech within the buffer zone. Finally, the fourth exemption — for persons using the sidewalk or street adjacent to the clinic to reach a destination other than the clinic — applies to individuals who are crossing through the buffer zone, without stopping, to go somewhere other than a location within the zone and other than the clinic, and who are not using the buffer zone for some other purpose while passing through. For example, an individual may cross through the buffer zone to reach and speak with someone outside the zone, to reach and stand in a location outside the zone (perhaps to engage in lawful protest, other speech, or prayer), or to travel on to another place altogether, provided that the individual does not do anything else within the buffer zone (such as expressing their views about abortion or engaging in other partisan speech). The Attorney General’s approach with respect to the second exemption directly tracks its approach to this exemption in the 2000 Act, an approach approved by the First Circuit in McGuire II. Discussion: Legal Standard for Facial Challenge Three different standards may apply to Plaintiffs’ facial challenge. In United States v. Salerno, the Supreme Court held that “[a] facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.” Second, although “some Members of the Court have criticized the Salerno formulation, all agree that a facial challenge must fail where the statute has a ‘plainly legitimate sweep.’ ” Lastly, in the First Amendment context, there is another “type of facial challenge ... under which a law may be overturned as impermissibly overbroad because a ‘substantial number’ of its applications are unconstitutional, ‘judged in relation to the statute’s plainly legitimate sweep.’ ” For the reasons below, the Act survives under all three standards. Discussion: First Amendment Challenge A. First Amendment Doctrine The Free Speech Clause of the First Amendment states that “Congress shall make no law ... abridging the freedom of speech....” This prohibition applies to the states by virtue of the Fourteenth Amendment. As clarified by the First Circuit, “Notwithstanding its exalted position in the pantheon of fundamental freedoms, free speech always must be balanced against the state’s responsibility to preserve and protect other important rights. This balance may be weighted differently, however, depending upon the nature of the restriction that the government seeks to foster.” “The Supreme Court has articulated a framework for determining whether a particular regulation impermissibly infringes upon free speech rights. That framework dictates the level of judicial scrutiny that is due — and that choice, in turn, informs the nature of the restrictions on free speech that may be permissible in a public forum.” The appropriate level of scrutiny depends on whether a statute is content-based or content-neutral. As a general rule, the government cannot impose content-based restrictions on speech. Any such restriction is presumptively invalid, and must be evaluated under strict scrutiny. A content-based law, therefore, will be upheld only if it is “absolutely necessary to serve a compelling state interest and is narrowly tailored to the achievement of that end.” Instead of regulating the content of speech, content-neutral restrictions regulate the time, place and manner in which expression may occur. Content-neutral restrictions “are less threatening to freedom of speech because they tend to burden speech only incidentally, that is, for reasons unrelated to the speech’s content or the speaker’s viewpoint.” As a result, these restrictions are evaluated under the “intermediate” level of scrutiny, and will be upheld if (1) “they are justified without reference to the content of the regulated speech;” (2) “are narrowly tailored to serve a significant governmental interest;” and (3) “leave open ample alternative channels for communication of the information.” B. Content-Based versus Content-Neutral Plaintiffs argue that the Act constitutes an impermissible content-based restriction on speech. This argument takes two forms. First, Plaintiffs, albeit briefly, urge this court to find that the statute itself is a content-based restriction. Second, in their Complaint, Plaintiffs bring a viewpoint discrimination count, and “courts correctly regard viewpoint discrimination as a particularly pernicious form of content discrimination....” Alternatively, Plaintiffs argue that the Act is an impermissible time, place and manner regulation. Defendant argues that the act is content-neutral and validly regulates the time, place and manner of expressive activity. This court agrees. 1. No Subject Matter Restriction “The principal inquiry in determining content neutrality, in speech cases generally and in time, place, or manner cases in particular, is whether the government has adopted a regulation of speech because of disagreement with the message it conveys.” Accordingly, “a law designed to serve purposes unrelated to the content of protected speech is deemed eontent-neu-tral even if, incidentally, it has an adverse effect on certain messages while leaving others untouched.” Here, as with the 2000 Act, “[b]y addressing political speech on public streets and sidewalks, the Act plainly operates at the core of the First Amendment.” But “First Amendment interests nonetheless must be harmonized with the state’s need to exercise its traditional police powers.” As the First Circuit did in McGuire I, for the following reasons, this court “resolve[s] this balance” in favor of the Commonwealth. As noted above, in Hill v. Colorado, the Supreme Court considered a Colorado statute that also regulated conduct around reproductive health care facilities. The Court held that the statute was content-neutral for “three independent reasons.” First, it is not a “regulation of speech.” Rather, it is a regulation of the places where some speech may occur. Second, it was not adopted “because of disagreement with the message it conveys.” This conclusion is supported not just by the Colorado courts’ interpretation of legislative history, but more importantly by the State Supreme Court’s unequivocal holding that the statute’s “restrictions apply equally to all demonstrators, regardless of viewpoint, and the statutory language makes no reference to the content of the speech.” Third, the State’s interests in protecting access and privacy, and providing the police with clear guidelines, are unrelated to the content of the demonstrators’ speech. As we have repeatedly explained, government regulation of expressive activity is “content neutral” if it is justified without reference to the content of regulated speech.... Here, the 2007 Act is content-neutral for the same three reasons. First, the statute does not directly regulate speech. Indeed, it does not mention speech or expression at all, much less prohibit certain types of messages, statements, literature or signage. Instead, and permissibly, “it merely regulates the places where communications may occur.” Moreover, the statute continues to apply during an RHCF’s business hours only, and only if the buffer zone is clearly delineated. Second, the record clearly demonstrates that the Legislature did not adopt the 2007 Act “because of disagreement with the message it conveys.” The Legislature amended the 2000 Act to address continued and serious public safety problems in the areas adjacent to RHCF entrances and driveways, including significant concerns regarding safe patient access to medical services. Relatedly, serious enforcement difficulties with the 2000 Act limited its intended protections and were part of the reason that major public safety concerns continued to exist at RHCFs. These reasons are entirely “unrelated to disagreement with the underlying message of particular speech.” Moreover, as with the 2000 Act, the 2007 Act’s “restrictions apply equally to all demonstrators, regardless of viewpoint, and the statutory language makes no reference to the content of the speech.” Indeed, this “comprehensiveness ... is a virtue ... because it is evidence against there being a discriminatory governmental motive.” Third, as in Hill, the statute “advances interests unconnected to expressive content.” “As [the Court has] repeatedly explained, government regulation of expressive activity is ‘content neutral’ if it is justified without reference to the content of regulated speech.” Here, as was the case with the 2000 Act, “[t]he Massachusetts legislature, confronted with an apparently serious public safety problem, investigated the matter thoroughly.” As described above, the investigation demonstrated that there was still a significant public safety and patient access problem in the areas immediately adjacent to RHCF entrances and driveways. Moreover, major enforcement difficulties with the 2000 Act allowed the problems to persist. Accordingly, as in McGuire I, the Act is justified by “conventional objectives of the state’s police power — promoting public health, preserving personal security, and affording safe access to medical services,” without any reference to content. Focusing on this third reason, the First Circuit explained: The critical question in determining content neutrality is not whether certain speakers are disproportionately burdened, but, rather, whether the reason for the differential treatment is- — or is not — content-based.... As long as a regulation serves a legitimate purpose unrelated to expressive content, it is deemed content-neutral even if it has an incidental effect on some speakers and not others.... In that event, all that remains is for the government to show that accomplishment of the legitimate purpose that prompted the law also rationally explains its differential impact. Here, as in McGuire I, the Act’s goals “justify its specific application to RHCFs.” Additionally, “[a]lthough the Act clearly affects anti-abortion protesters more than other groups, there is no principled basis for assuming that this differential treatment results from a fundamental disagreement with the content of their expression.” As in McGuire I, [T]he finding required on these facts is that the legislature was making every effort to restrict as little speech as possible while combating the deleterious secondary effects of anti-abortion protests. Just as targeting medical centers did not render Colorado’s counterpart statute content based, ... so too the Act’s targeting of RHCFs fails to undermine its status as a content neutral regulation. Plaintiffs, however, as the plaintiffs did in McGuire I, imply that the Legislature’s reasons for amending the Act were pretex-tual. Additionally, Plaintiffs argue: [I]t is only abortion providers and supporters that talk about all these problems that are around the clinics. And they don’t do it with respect to facts. They make conclusory allegations. These people would be expected to embellish their testimony because they side with the pro choice viewpoint as opposed to those who oppose abortion. But when we look at the objective unbiased evidence in the record, there is nothing that supports the zone. The police didn’t testify that there was any problem outside the abortion clinics. They didn’t say that there was any impeding, any blocking, any harassment, any trespass. Plaintiffs’ arguments fail for two reasons. First, with respect to the Legislature’s reasons for amending the statute, Plaintiffs’ “insinuations are unsupported by any record evidence.” Moreover, “where differential treatment is justified, on an objective basis, by the government’s content-neutral effort to combat secondary effects, it is insufficient that a regulation may have been adopted in direct response to the negative impact of a particular form of speech.” Second, despite Plaintiffs’ claims regarding the evidence before the Legislature, the record is replete with factual references to specific incidents and patterns of problematic behavior around RHCFs. Additionally, nothing in the record suggests that the individuals who testified — under oath — before the Legislature, embellished or were in any way untruthful. Lastly, although Plaintiffs claim abortion providers and supporters were the only individuals who identified problems, Captain Evans of the Boston Police Department testified with respect to public safety problems outside of the RHCFs and the difficulties with enforcing the 2000 Act. Attorney General Coakley testified regarding the same. 2. Count V. Viewpoint Discrimination Plaintiffs also argue that the statute constitutes unlawful viewpoint discrimination, because “[t]he fixed buffer statute unjustifiably treats the conduct of the facility employees/agents differently from all other speakers, and the different treatment of conduct results in favor toward pro-choice speakers and disfavor toward all other speakers.” Plaintiffs base this claim on the employee/agent exemption in the Act, which exempts from the Act’s coverage “employees or agents of such facility acting within the scope of their employment.” This count also fails. First, it is important to note that the Act did not modify any of the exemptions previously established by the 2000 Act, including the employee/agent exemption. Furthermore, the First Circuit specifically addressed and upheld this exemption in McGuire I and McGuire II, holding that it was content-neutral and did not constitute viewpoint discrimination. Nothing in this case warrants a departure from that analysis and holding. In McGuire I, the plaintiffs’ argument suggested that “the sole practical purpose of the employee exemption is to promote a particular side of the abortion debate.” In response, the court held, among other things, The Massachusetts legislature may or may not have intended the employee exemption to serve the purpose envisioned by the plaintiffs. There are other likely explanations. For example, the legislature may have exempted clinic workers — just as it exempted police officers — in order to make crystal clear what already was implicit in the Act: that those who work to secure peaceful access to RHCFs need not fear prosecution. Because we can envision at least one legitimate reason for including the employee exemption in the Act, it would be premature to declare the Act unconstitutional for all purposes and in all applications. The First Circuit concluded, “The employee exemption ... is neutral on its face, drawing no distinction between different ideologies. And to the extent (if at all) that the exemption contributes to the Act’s disproportionate impact on anti-abortion protesters, it can be justified by reference to the state’s neutral legislative goals.” Similarly, in McGuire II, the court held: As we explained in McGuire I, so long as a reviewing court can “envision at least one legitimate reason for including the employee exemption in the Act,” the law is not facially unconstitutional. McGuire 1, 260 F.3d at 47. In McGuire I this court found there were likely explanations for the exemption other than the desire to favor pro-abortion speech over anti-abortion speech: “For example, the legislature may have exempted clinic workers — just as it exempted police officers — in order to make crystal clear ... that those who work to secure peaceful access to RHCFs need not fear prosecution.” Id. at 47. For this reason given in McGuire I, the viewpoint facial attack fails, now as then. Plaintiffs try to distinguish McGuire I and McGuire II on the ground that “[t]he rationale employed to uphold the employee/agent exemption of the floating buffer statute does not apply to the fixed buffer zone statute____” Plaintiffs argue: Unlike the fixed buffer statute, the floating buffer statute permitted all persons to access any part of the zone so long as they did not make unconsented to approaches from a distance of 6 feet or less, creating a possibility that the zone could become crowded and therefore make navigation by clinic patients difficult. ... The same is not true of the fixed buffer statute. Because pro-life advocates and virtually all other persons are excluded from the zone, patients have unhindered and safe passage through the zone to the clinics. This argument fails for several reasons. First, contrary to Plaintiffs’ contention, the rationale advanced in McGuire I continues to apply. In McGuire I, the court held that the employee exemption served the goals of the 2000 Act “because clinic employees often assist in protecting patients and ensuring their safe passage as they approach RHCFs.” As the record reflects, the same is true today. Accordingly, “[s]ince it is within the scope of their employment for clinic personnel to escort patients in this fashion, and since a primary purpose of the law is to facilitate safe access, the employee exemption serves the basic objectives of the Act.” Additionally, “[t]o cinch matters, the legislature could have concluded that clinic employees are less likely to engage in directing of unwanted speech toward captive listeners — a datum that the Hill court recognized as justifying the statute there.” As with the 2000 Act, the legislature likely concluded the same thing here when deciding to maintain the exemption. Second, even assuming that the rationale applies with less weight here than with the 2000 Act — contrary to the position of this court — as long as there is “one legitimate reason for including the employee exemption in the Act,” the law is not facially unconstitutional. In addressing the identical employee/agent exemption, the McGuire I court found “other likely explanations for the exemption,” and gave the example cited twice above. The same example applies here: “the legislature may have exempted clinic workers — just as it exempted police officers — in order to make crystal clear ... that those who work to secure peaceful access to RHCFs need not fear prosecution.” Accordingly, there is “at least one legitimate reason for including the employee exemption in the Act, [and] it would be premature to declare the Act unconstitutional for all purposes and in all applications.” Plaintiffs also argue, “Whether or not by design, the fixed buffer statute allows escorts with pro-choice viewpoints to express their views in the zone while prohibiting most other persons from expressing their views in the zone.” This argument also fails, at least on this facial challenge. On its face, the statute does not permit advocacy of any kind in the zone. Moreover, the Attorney General’s enforcement position expressly and unequivocally prohibits any advocacy by employees and agents of the RHCF’s in the buffer zone: The second exemption — for employees or agents of the clinic acting within the scope of their employment — allows clinic personnel to assist in protecting patients and ensuring their safe access to clinics, but does not allow them to express their views about abortion or to engage in any other partisan speech within the buffer zone. This approach is consistent with the Attorney General’s past interpretation of the exemption, an approach the District Court and the First Circuit cited with approval in McGuire 17. As with the 2000 Act, the Attorney General’s current position “require[s] evenhanded enforcement of its prohibitions, even against clinic employees and agents....” It is “one very likely interpretation of the exemption’s language,” and “is clearly a proper, content-neutral way of interpreting the exemption.” For these reasons, the employee exemption does not discriminate based on viewpoint, and Count V of Plaintiffs’ Complaint fails. 3. Conclusion Regarding Content Neutrality On its face, the 2007 Act is a content-neutral time, place and manner restriction, and the employee exemption does not constitute viewpoint discrimination. Accordingly, this court evaluates the Act using intermediate scrutiny. C. Count I. Time, Place and Manner Restriction Time, place and manner regulations will be upheld if (1) “they are justified without reference to the content of the regulated speech;” (2) “are narrowly tailored to serve a significant governmental interest;” and (3) “leave open ample alternative channels for communication of the information.” Here, the Act meets all three prongs of the test. 1. Justified Without Reference to Content of Regulated Speech As explained above, the statute is justified without any reference to the content of regulated speech. The Act’s purpose is “to increase forthwith public safety at reproductive healthcare facilities,” by protecting public safety in the areas adjacent to RHCF entrances and driveways, and ensuring safe patient access to medical services. “The interests that underlie these purposes are firmly rooted in the state’s traditional police powers, and these are precisely the sort of interests that justify some incidental burdening of First Amendment rights.” 2. Narrowly Tailored The Supreme Court has repeatedly held that “a regulation of the time, place, or manner of protected speech must be narrowly tailored to serve the government’s legitimate, content-neutral interests but that it need not be the least restrictive or least intrusive means of doing so.” Instead, a law is narrowly tailored if it “ ‘promotes a substantial government interest that would be achieved less effectively absent the regulation,’ ” and “does so without burdening substantially more speech than is necessary to further this goal.” As long as this test is satisfied, a “regulation will not be invalid simply because a court concludes that the government’s interest could be adequately served by some less-speech-restrictive alternative.” “Put another way, the validity of time, place, or manner regulations is not subject to ‘a judge’s agreement with the responsible decisionmaker concerning the most appropriate method for promoting significant govern