McGuire v. Reilly (386 F.3d 45, 2004)

LYNCH, Circuit Judge.

This appeal is the second appearance here of a case challenging a state law regulating speech and activities within a buffer zone around health care facilities which perform abortions. Three plaintiffs, women who are regular pro-life “sidewalk counselors,” appeal from an entry of summary judgment against their First Amendment attacks, both facial and as-applied, on the Massachusetts statute. We address whether the prior opinion of this court precludes plaintiffs’ facial attack, the effect of several exemptions under the statute as interpreted by the Attorney General, and the showing needed to make out an as-applied attack.

The Massachusetts legislature, concerned about a history of violence outside abortion clinics and the harassment and intimidation of women attempting to use such facilities, enacted in 2000 the Massachusetts Reproductive Health Care Facilities Act, Mass. Gen. Laws ch. 266, § 120E1/2. The Act creates a fixed buffer zone within an 18-foot radius around the facilities (Reproductive Health Care Facilities or “RHCFs”). The Act creates a floating six-foot buffer zone around any person in that 18-foot area. Within that six-foot floating buffer zone, it is impermissible for a person to “knowingly approach another person ...” without consent “for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education or counseling.” Id. The Act was largely modeled on the Colorado law found constitutional in Hill v. Colorado, 530 U.S. 703, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000), although there are some differences.

Mary McGuire, Ruth Schiavone, and Jean Zarella brought suit in U.S. District Court after the Act became effective to preliminarily enjoin enforcement of the statute as unconstitutional, both facially and as-applied, under the First Amendment. Their success at the district court level in obtaining a preliminary injunction, McGuire v. Reilly, 122 F.Supp.2d 97 (D.Mass.2000), was short-lived.

In McGuire v. Reilly, 260 F.3d 36 (1st Cir.2001) (McGuire I), this court reversed the grant of the preliminary injunction, holding that plaintiffs had shown no probability of success on their claim that the statute was facially unconstitutional and had not produced evidence to demonstrate any unconstitutionality on an as-applied basis. This court also recognized that plaintiffs, should they adduce sufficient facts, might be able to make out a claim that the statute, as applied, was unconstitutional:

If, as the plaintiffs predict, experience shows that clinic staffers in fact are utilizing the exemption as a means either of proselytizing or of engaging in preferential pro-choice advocacy, the plaintiffs remain free to challenge the Act, as applied, in a concrete factual setting.

McGuire I, 260 F.3d at 47. McGuire I found the plaintiffs had not to date produced any evidence that clinic employees or agents had in fact engaged in the sort of speech proscribed by the statute, and thus could not even begin to make an as-applied attack.

The case was remanded. Plaintiffs pursued claims of both facial and as-applied unconstitutionality. Defendants were granted summary judgment on the plaintiffs’ claim of facial unconstitutionality based on McGuire I. McGuire v. Reilly, 230 F.Supp.2d 189, 193 n. 10 (D.Mass. 2002). After ample time for discovery, the defendants moved for summary judgment on the as-applied challenge. Plaintiffs opposed on grounds there were at least genuine disputes of material fact entitling them to trial. The district court granted summary judgment on the as-applied claim. McGuire v. Reilly, 271 F.Supp.2d 335, 345 (D.Mass.2003).

Plaintiffs appeal from the judgment embodying both grants of summary judgment: on the facial claim and on the as-applied claim.

I.

We recount the evidence submitted on summary judgment, resolving all factual disputes in plaintiffs’ favor.

The Act’s requirements are triggered only within two areas defined as fixed buffer zones. The first type of fixed zone is a semicircle including all space within a radius of 18 feet from any entrance, door, or driveway to a reproductive health care facility. See Mass. Gen. Laws ch. 266, § 120El/2(b). It is marked by painted lines. The second type of fixed zone is a rectangle or corridor extending from the two outside boundaries of any entrance door or driveway to a reproductive health care facility out to the street in front of that door or driveway. Id. The width of this rectangle is thus the distance between the two sides of the door or driveway, capped at a maximum of six feet, while the length is the distance between the door or driveway and the street. This second type of fixed zone apparently is not redundant with the first type only where the length between the door or driveway and the street exceeds roughly 18 feet. Anyone can enter these two types of fixed buffer zones. However, within the fixed buffer zones, the law creates a six-foot “floating” buffer zone around persons or occupied motor vehicles: it bans approaches into this floating zone, without the consent of the person approached, for purposes of oral protest, education, or counseling. Id. The Act contains several exemptions from its coverage: most relevant here, it exempts “employees or agents” of an RHCF who are “acting within the scope of their employment,” Mass. Gen. Laws ch. 266, § 120El/2(b)(2), and it exempts “persons entering or leaving” an RHCF, Mass. Gen. Laws ch. 266, § 120El/2(b)(l).

The challenged statute permits speech or conduct within the six-foot zone so long as it is consented to by the person approached (we will use the term “patient”). It also places no restrictions in speech or conduct outside of the six-foot zone.

The facts of this case involve two abortion clinics, one in Boston and one in Brookline. On Saturday mornings only, Planned Parenthood League of Massachusetts (“PPLM”) utilizes patient escorts in front of and near its Boston facility. These escorts are volunteers; PPLM has, nonetheless, established their duties and responsibilities and has engaged in training and supervision of the escorts. The Boston escorts wear blue vests and are easily identifiable. By contrast, the Repro Associates clinic in Brookline, Massachusetts, uses a more informal system of volunteers to provide escort services on the days when abortions are performed.

The plaintiffs Mary Anne McGuire, Ruth Schiavone, and Jean Zarella regularly sidewalk counsel at the Boston PPLM clinic and/or at the second facility, Repro Associates in Brookline. They attempt to dissuade women from having abortions by engaging in conversation, passing out leaflets, and offering their assistance. None of the plaintiffs has ever been arrested for violation of the Act; some have been warned or threatened with arrest for their actions in front of the facilities.

McGuire

McGuire goes to the Boston PPLM clinic every Thursday morning (in the past, she went on Wednesday mornings) and occasionally other mornings and had been doing so for more than four years as of 2002. She also protests at the Brookline Repro clinic when others regularly scheduled to be there are not there. One of McGuire’s jobs since she has been working at Operation Rescue (a pro-life protest group) has been to coordinate the persons who do such sidewalk counseling. McGuire arranges to have sidewalk counselors at the facilities on all days abortions are performed: Tuesday through Saturday at PPLM in Boston; Monday, Tuesday, Friday, and Saturday at Repro in Brook-line.

McGuire tries to engage with patients coming toward the entrance as far away from the clinic as she can, in order to maximize the opportunity to engage in conversation. Most of the time when she approaches women she is well outside the 18-foot protected area. When McGuire approaches women outside of the fixed buffer zone she tries to get very close to the women. She also approaches women within the fixed buffer zone and tries to stay at least six feet away. There are women who become upset when she approaches.

McGuire has had several encounters with the police which are not related to the buffer zone statute, such as when she was asked to remove a stool and a television from the sidewalk and asked to place signs elsewhere. Many of McGuire’s encounters with the police have been friendly, as when the police say hello to her. McGuire testified that she was threatened with arrest once in 2002 at the Boston PPLM clinic due to the buffer zone statute. An officer threatened to arrest her if she did not “stay outside the white line” (the 18-foot fixed buffer zone, marked with paint). However, no criminal complaint was taken out. McGuire did not express her disagreement to the Boston Police Department.

McGuire testified that escorts sometimes tell patients that they do not need to listen to her. She stated that one guard inside the Brookline Repro clinic made women turn in any pro-life leaflets before they could enter, even after women have argued with him. An employee of the firm that manages the medical practice at the Brookline facility could not speak directly to the truth of this allegation but has seen patients hand pamphlets to security people to throw them out as they are entering the building.

Schiavone

Schiavone, who protests on Saturdays at the Boston PPLM clinic, testified at deposition that she too tries to encounter patients as far outside the fixed buffer zone area as she can. Even so, at times she cannot get near the patient because the clinic escorts are already with the patient. She also enters the fixed, 18-foot protected area. Schiavone has sometimes been able to counsel a woman from some distance away from the door all the way up to the door, although she remains 6 feet away once the 18-foot protected area is reached.

On three separate occasions, two different police officers and a police captain spoke to Schiavone and told her that she was violating law. On all three occasions, a patient had just entered the facility and Schiavone was trying to maintain a “presence” by continuing to look at or speak to the patient through the PPLM facility’s glass doors. On the first occasion, Schia-vone was within the 18-foot protected area but probably three feet from the PPLM private property line; on the second and third occasions, she was also within the protected area and was very close to the PPLM property line. In the first and third cases, unknown officers stated that they thought Schiavone was violating the buffer zone law; in the second case, it is unclear whether the police captain thought Schiavone was violating the buffer zone law or falling afoul of preexisting trespass laws because she was over the property line. Schiavone told the officers involved in the first two incidents that she was not in violation of the law. Neither officer pursued the issue; both merely walked away. The officers involved in the first two incidents told Schiavone that she was violating law; the officer in the third, most recent case told Schiavone she was violating the law and also asked her how she would “like to be arrested.” No criminal complaint was taken out in any of the three cases. Schiavone has had three encounters with the police captain involved in the second incident and has found him to be respectful, approachable and not hostile.

In one incident observed by Schiavone, when a pro-life sidewalk counselor was knocked down by a stranger who had come along and told him to mind his own business, the police arrested the man who committed the assault. Schiavone also testified that the police cannot see everything that goes on in front of the facilities, and usually when a policeman approaches her it is because a facility escort has seen her activity, gone over to the police and pointed it out.

Schiavone also testified that escorts sometimes will tell patients things like