McCullen et al v. Coakley

Filing 153

Judge Joseph L. Tauro: ORDER entered. MEMORANDUM AND ORDER.(Geraldino-Karasek, Clarilde)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
ELEANOR MCCULLEN, et. al.,

*
*
*
*
*
*
*
*
*
*

Plaintiffs,
v.
MARTHA COAKLEY, et. al., in their official
capacities only,
Defendants.

Civil Action No. 08-10066-JLT

MEMORANDUM
February 22, 2012
TAURO, J.
I.

Introduction
This case concerns a recently revised Massachusetts statute, Massachusetts General Laws

Chapter 266, § 120E1/2 (“Act”), which establishes a thirty-five-foot fixed buffer zone around
driveways and entrances of reproductive health care facilities (“RHCFs”). Presently at issue is
Plaintiffs’ challenge to the Act as applied to their speech activities at three RHCFs in Boston,
Worcester, and Springfield. For the reasons given below, this court finds that the Act as applied
is a valid regulation of the time, place, and manner of Plaintiffs’ speech. For that reason,
Judgment shall be entered in favor of Defendants on all counts.
II.

Background1
A.

The Parties

1

This court assumes familiarity with its previous decision in this case, McCullen v.
Coakley (“McCullen I”), 573 F. Supp. 2d 382 (D. Mass. 2008) but, nonetheless, presents a
condensed background.
1

Plaintiffs Eleanor McCullen, Jean Blackburn Zarrella, Gregory A. Smith, Eric Cadin, Mark
Bashour, Nancy Clark, and Cyril Shea are Massachusetts residents who regularly engage in prolife counseling outside RHCFs. Defendant Attorney General Martha Coakley is the chief lawyer
and law enforcement officer of the Commonwealth of Massachusetts. Defendants Conley, Early,
and Mastroianni are the District Attorneys for Suffolk, Worcester, and Hampden Counties where
the clinics at issue in this action are located. As such, Defendants bear responsibility for enforcing
the Act. They are sued in their official capacities only.2
B.

Procedural History

On January 16, 2008, Plaintiffs filed the Complaint, which advanced 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.3
After a Status Conference held on April 23, 2008, and 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.4
On May 28, 2008, this court held the first bench trial, on Plaintiffs’ facial challenge.5 In an
August 22, 2008 decision, this court held that the Act survived all three facial challenge

2

See Am. Compl. 3-4 [#112].

3

Compl. ¶¶ 13-22 [#1].

4

Order [#34].

5

McCullen I, 573 F. Supp. 2d at 386.
2

standards.6 The Court of Appeals for the First Circuit held a de novo review and affirmed this
court’s decision,7 and the Supreme Court denied Plaintiffs’ petition for certiorari at this stage of
the case.8
On September 17, 2010, Plaintiffs filed a Motion for Leave to File Amended Complaint
and a Motion to Permit Arguments as to Facial Invalidity. On October 7, 2010, Defendants filed
a Motion for Judgment on the Pleadings on the As-Applied Claims in Counts Two Through Eight.
On December 2, 2010, this court heard oral arguments on all three Motions and took them under
advisement. On December 29, 2010, this court issued a Memorandum denying Plaintiff’s Motion
to Permit Arguments as to Facial Invalidity, and allowing Defendant’s Motion for Judgment on
the Pleadings. Plaintiffs were allowed to amend the complaint to include claims regarding RHCFs
in Springfield and Worcester and to include new plaintiffs who would make allegations regarding
speech activities at those clinics. Plaintiffs were also permitted to amend the complaint to include
four District Attorneys in their official capacities, consistent with the expansion of the geographic
scope of the complaint.
On February 25, 2011, Plaintiffs filed the Amended Complaint, and on March 11, 2011,
the Commonwealth filed its Answer. On May 11, 2011, the parties entered a Stipulation of
Dismissal Covering the Claims by Carmel Farrell Regarding the Brookline Clinic. The effect of
the Amended Complaint and the Stipulation is that Plaintiffs now challenge the constitutionality of

6

Id. at 425. This court held that the Act was constitutional under the First Amendment,
the Equal Protection Clause of the Fourteenth Amendment, and the Due Process Clause of the
Fourteenth Amendment. Id.
7

McCullen v. Coakley (“McCullen II”), 571 F.3d 167 (1st Cir. 2009).

8

McCullen v. Coakley (“McCullen III”), 130 S. Ct. 1881 (2010).
3

the Act as applied at the RHCFs in Boston, Worcester, and Springfield. On August 24, 2011, a
bench trial was held on Plaintiffs’ as applied claims, and the court took the matter under
advisement.
III.

Discussion
A.

Legal Standard

This court has already found the Act to be a content neutral time, place and manner
restriction, and upheld it as facially valid. In so doing, the court found that the Act survived
intermediate scrutiny because it is (1) justified without reference to the content of the regulated
speech; (2) narrowly tailored to serve a significant governmental interest; and (3) leaves open
ample alternative means of communication.9 It has already been established that the
Commonwealth of Massachusetts has a “substantial and legitimate content-neutral interest in
protecting public safety at RHCF entrances and driveways, because ‘[i]t is a traditional exercise of
the States’ police powers to protect the health and safety of their citizens.’”10 In light of this
court’s December 29, 2010 opinion, the only issue that remains to be decided is “whether the
statute as applied at the clinics specified in the complaint leaves open adequate alternative
channels of communication.”11
A valid time, place, and manner restriction, by its nature must burden some First
Amendment activity for the purpose of advancing the State interest at stake. As Justice Souter,
emphasized, in his concurring opinion in Hill v. Colorado, however, prior cases ‘“quite clearly

9

McCullen I, 573 F. Supp. 2d at 402 (setting out the standard for intermediate scrutiny).
Id. at 410 (quoting Hill v. Colorado, 530 U.S. 703, 715; 120 S.Ct. 2480, 2489 (2000)).

10

11

Memorandum and Order [#111] at 9.
4

hold that restrictions on the time, place, or manner of protected speech are not invalid ‘simply
because there is some imaginable alternative that might be less burdensome on speech.’”12
Indeed,“the First Amendment does not guarantee the right to communicate one’s views at all
times and places or in any manner that may be desired.”13 As this court pointed out in the facial
challenge phase of this case, “[t]ime-place-manner regulations routinely make particular forms of
expression impracticable without raising constitutional concerns.”14 The question is not,
“‘whether a degree of curtailment’ of speech exists, but rather ‘whether the remaining
communicative avenues are adequate.’”15 Alternative methods, therefore, need not be perfect
substitutes for Plaintiffs’ desired manner of communication.
It is well established that, “only the government can violate First Amendment rights,” and
that, “every First Amendment claim thus requires state action in some sense.”16 As the First
Circuit has emphasized, “The First Amendment is concerned with government interference, not
private jousting in the speech marketplace.”17 In order for the Act to violate the First Amendment
as it is applied to Plaintiffs, the lack of adequate alternative means of communication must be
12

Hill at 736 (quoting Ward v. Rock Against Racism 491 U.S. 781, 791, 109 S. Ct. 2746
(1989); (also quoting United States v. Albertini, 472 U.S. 675, 689, 105 S.Ct. 2897
(1985)).
13
Heffron v. Int’l Soc’y for Krishna Consciousness, Inc., 452 U.S. 640, 647 (1981)
(Citing Adderley v. Florida, 385 U.S. 39, 47-48 (1996)); Poulos v. New Hampshire, 345
U.S. 395, 405 (1953); see Cox v. Louisiana, 379 U.S. 536, 554 (1965)).
14
McCullen v. Coakley, 571 F.3d 167, 180 (1st Cir. 2009).
15
Sullivan, 511 F.3d at 44 (quoting D.H.L. Assocs., Inc. v. O’Gorman, 199 F.3d 50, 59
(1st Cir. 1999), and quoting in turn Nat’l Amusements, Inc. v. Town of Deadham, 43 F.3d 731,
745 (1st Cir. 1995)).
16
McGuire v. Reilly (“McGuire II”), 386 F.3d 45, 60 (1st Cir. 2004) (citing Brentwood
Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295 (2001); Hudgens v. NLRB, 424
U.S. 507, 514-21 (1976) (First Amendment claim required state action; claim against private
shopping center for preventing peaceful labor picketing failed because shopping center was not a
state actor); Yeo v. Town of Lexington, 131 F.3d 241, 248, 255 (1st Cir. 1997)).
17
McGuire II, 571 F.3d at 60.
5

traceable to state action. As the First Circuit pointed out in McGuire II, when it upheld the
Commonwealth’s previous buffer zone law, “there is no state action if what the plaintiff is really
aiming at are the acts of private persons that are actually illegal under the statutory scheme,
because then the acts do not reflect the policy of the state.”18 To succeed here, Plaintiffs’ facial
challenge must demonstrate that the act, as applied by the state, does not leave open adequate
alternative means of communication. That other barriers to communication not attributable to the
state may exist is irrelevant to the First Amendment analysis.
Much like the Plaintiffs in the McGuire II case, the Plaintiffs in this action challenge the
Act as-applied after it has already been upheld as a facially valid time-place-manner restriction.
As in that case, “The fact situation that plaintiffs are involved in here is the core fact situation
intended to be covered by this buffer zone statute, and it is the same type of fact situation that was
envisioned by this court when the facial challenge was denied.”19 Plaintiffs are, therefore,
precluded from “argu[ing] that they are different types of actors, or that they are involved in a
different type of fact situation, from the ones on the basis of which the law was already upheld
facially.”20
In upholding the Act as facially valid, this court found that the Act left open ample
alternative means of communication. The court noted that,
as long as Plaintiffs - or anyone for that matter- remain outside the
zone, they may freely talk to individuals entering and exiting the
RHCFs, as well as people inside the zone. The Act also does nothing
to prevent patients from leaving the zone to speak with protesters or
counselors. Moreover, individuals may continue to display signs and
photographs, hand out literature, talk, pray, chant, sing or engage in
18

Id., 571 U.S. at 60 (citing Lugar v. Edmondson Oil Co., 457 U.S. 922, 940-41 (1982)).
McGuire II, 571 U.S. at 61.
20
Id.
19

6

any other form of lawful communication or protest outside of the
buffer zone. Importantly, most, if not all of this expressive activity,
can be seen and heard by people entering and exiting the buffer zone,
and also by people inside the buffer zone.21
As the Supreme Court has emphasized, “[t]he First Amendment does not demand that patients at
a medical facility undertake Herculean efforts to escape the cacophony of political protests.”22
This court has also found in McCullen I that, “[a]lthough slightly closer physical interaction may
partially enhance one’s ability to sidewalk counsel RHCF patients, there is no constitutional right
to that level of particularized access.”23
The First Circuit, “has upheld . . . alternative means of communication despite diminution
in the quantity of speech, a ban on a preferred method of communication, and a reduction in the
potential audience.”24 In analyzing alternative channels of communication, it is clear that, “‘[e]ven
protected speech is not equally permissible in all places and at all times,’”25 and “the law does not
require that alternative channels be ‘perfect substitutes.’”26 With these constraints in mind, the
court now turns to the question of how the Act is applied at the three RHCFs at the heart of
Plaintiffs’ complaint.

21

McCullen v. Coakley, 573 F. Supp. 2d 382, 413 (D. Mass. 2008).
Madsen v. Women’s Health Center, Inc., 512 U.S. 753, 772-73 (1994).
23
McCullen I, 573 F. Supp. at 415.
24
Sullivan v. City of Augusta, 511 F.3d 16, 44 (1st Cir. 2007) (citing Globe Newspaper
Co. v. Beacon Hill Architectural Comm'n, 100 F.3d 175, 192-94 (1st Cir. 1996)); see also D.H.L.
Assocs., Inc. v. O'Gorman, 199 F.3d 50, 59 (1st Cir. 1999)) (“The essence of this question is not
‘whether a degree of curtailment’ of speech exists, but rather ‘whether the remaining
communicative avenues are adequate.’” (quoting Nat'l Amusements, 43 F.3d 731, 745 (1st Cir.
1995)).
25
Snyder v. Phelps, 131 S.Ct. 1207, 1218 (2011) (quoting Frisby v. Schultz, 487 U.S. 474,
479 (1988)).
26
Int’l Action Cent. v. City of New York, 587 F.3d 521, 528 (2d Cir. 2009) (quoting
Mastrovincenzo v. City of New York, 435 F.3d 78, 101 (2d Cir. 2006)).
22

7

B.

Application27

Plaintiffs challenge the application of the Act at three RHCFs: one in Boston, one in
Worcester, and one in Springfield.28 This court has already found that the Act, on its face, leaves
open ample alternative means of communication because protestors may engage in any form of
communication with their intended audience so long as they do not do so inside a clearly marked
and posted buffer zone during clinic business hours.29 The First Circuit, in its de novo review of
this court’s ruling, similarly found that:
To begin, the 2007 Act places no burden at all on the plaintiffs’
activities outside the 35-foot buffer zone. They can speak, gesticulate,
wear screen printed T-shirts, display signs, use loudspeakers, and
engage in the whole gamut of lawful expressive activities. Those
messages may be seen and heard by individuals entering, departing, or
within the buffer zone.
Additionally, the Plaintiffs may stand on the sidewalk and offer either
literature or spoken advice to pedestrians, including those headed into
or out of the buffer zone. Any willing listener is at liberty to leave the
zone, approach those outside it, and request more information.
From the evidence contained in the Joint Trial Record, it is clear that the Act, as applied at each
of the three challenged RHCFs, leaves open ample adequate alternative means of communication.
This court will examine each clinic location in turn.30
27

The Parties stipulated to the content of the record at trial. [#128]. All citations are,
accordingly, made to that record.
28
See Am. Compl. [#112]. Plaintiffs dismissed all claims regarding the Brookline clinic.
See Stipulation of Dismissal [#126].
29
McCullen v. Coakley, 573 F. Supp. 2d 382, 413-15 (D. Mass. 2008).
30
At oral argument in this case, Plaintiffs asserted that inclement weather should be taken
into account in determining whether the Act is constitutional as applied. See e.g. Trial Tr. [#150]
at 67-69. It is clear, however, that inclement weather makes communication more difficult
regardless of whether there is a buffer zone in place. The fact that it rains and snows cannot,
therefore, make a facially valid time, place and manner restriction unconstitutional as applied. See
Carew-Reid v. Metropolitan Transith Auth., 903 F.2d 914, 919 (2d Cir. 1990) (holding that street
musician who was subject to an ordinance banning amplified music on subway platforms had
8

1.

Boston Clinic
A.

Clinic Layout and Buffer Zones:31

Planned Parenthood: Greater Boston Health Center (“Boston PP”) is a stand-alone
building located at 1055 Commonwealth Avenue in the Allston-Brighton neighborhood of
Boston.32 It sits on the corner of Commonwealth Avenue and Alcorn Street. All patients must
enter Boston PP through the Commonwealth Avenue entrance.33 The Commonwealth Avenue
entrance is set back approximately 12 feet from the sidewalk inside a recessed open foyer. Clinic
staff and patrons must cross the public sidewalk to enter Boston PP’s front door.
There is a clearly marked and posted buffer zone around Boston PP’s Commonwealth
Avenue entrance:
This buffer zone is an arc that begins to the left of the building
entranceway, as one looks out from the clinic, at a point 22 feet, 7
inches from the eastern edge of the foyer entrance; the buffer zone
then arcs to a point one foot away from the edge of Commonwealth
Avenue directly opposite that foyer edge. In accord with the act, the
buffer zone then extends for the width of the open foyer in straight
lines the extra foot to Commonwealth Avenue. The buffer zone then
jogs back to one foot away from Commonwealth Avenue, at a point
directly opposite the western edge of the foyer (to the right of the
front door as one looks out from the entranceway), arcs across the
corner of the sidewalk to a point that is even with the edge of the
building and about four feet, four inches into Alcorn Street, and finally
continues back across the Alcorn Street sidewalk until it hits the side
of the building roughly twelve feet north from the corner of the
building.34
adequate alternative channels of communication, and rejecting Plaintiff’s argument that aboveground venues were inadequate because “inclement weather often precludes performing above
ground”).
31
All clinic measurements are taken from the Parties’ Stipulation Regarding Buffer Zone
Measurements (“Stip.”) [#129].
32
Stip. [#129] at 1.
33
Baniukiewicz Tr. [#137] at 79-80, 89-90.
34
Defendants’ Proposed Findings of Fact [#147] at 9-10 (Stip. [#129] ¶¶ 3-9).
9

Plaintiffs and others who wish to communicate with clinic patrons may do so while standing: (1)
on the wide sidewalk to the east of the Commonwealth Avenue entrance; (2) in the fairly narrow
strip between the top of the buffer zone and Commonwealth Avenue; and (3) while standing on
the sidewalk across Alcorn Street.35 Boston PP places a large orange barrel in the street in order
to keep traffic away from protesters standing outside the buffer zone at the corner of Alcorn
Street and Commonwealth Avenue.36 On days when large numbers of protesters are expected at
the Boston PP, the Boston Police place barriers several feet into Commonwealth Ave, which
creates extra room for people who wish to engage in communicative activities directed at clinic
patrons.37
There is also a clearly marked and posted buffer zone around Boston PP’s rear garage
entrance, but Plaintiffs do not engage in protest or other communication in that location.38
B.

Speech Activities

Plaintiffs Eleanor McCullen, Jean Blackburn Zarella, Gregory A. Smith, and Eric Cadin all
engage in protest and counseling at Boston PP. Each plaintiff’s activities at Boston PP will be
addressed in turn.
i.

Eleanor McCullen

Plaintiff Eleanor McCullen engages in sidewalk counseling outside Boston PP on Tuesday
and Wednesday mornings between seven and eleven a.m.39 She frequently works with another

35

McCullen Tr. [#130] at 45-58, 68, 72; Metzger Tr. [#138] at 84-86; Metzger Dep. Ex.
11 [#138-11].
36
Baniukiewicz Tr. [#137] at 12-13; Zarrella Tr. [#132] at 32-33.
37
Zarella Tr. [#132] at 38-39; Baniukiewicz Tr. [#137] at 84-85.
38
[#129] ¶¶ 4&10. McCullen Decl. [#139]. ¶¶ 6 & 8; McCullen Tr. [#130] at 5-7.
39
McCullen Tr. [#130] at 5.
10

sidewalk counselor Mary O’Donnell.40 Ms. McCullen attempts to identify women or couples
going to the clinic, and offers those individuals help and alternatives to abortion.41 Ms.
McCullen’s goal is to engage women in conversations, and to convince them to come to a “Safe
Center” instead of going in to Planned Parenthood.42 She also hands out pamphlets with
information about alternatives to abortion and available services.43 Each morning that she
engages in sidewalk counseling, Ms. McCullen hands out between fifteen and twenty pamphlets.44
Ms. McCullen and Ms. O’Donnell coordinate their counseling efforts so that one of them can
reach clinic patrons entering Boston PP from either side of the buffer zone.45
Ms. McCullen estimates that about once a week she convinces a woman to come to a safe
center instead of going in to Planned Parenthood.46 Since the buffer zone law went into effect in
November of 2007, Ms. McCullen estimates that, through her sidewalk counseling, she has been
able to persuade eighty women not to have abortions.47 Ms. McCullen does not carry a sign when
she is at the clinic, but she does place three signs on her car, which she parks directly in front of
the clinic.48 Two of the signs read, “Abortion stops a beating heart,” and another offers
pregnancy help.49 On Tuesday and Wednesday mornings when Ms. McCullen goes to Boston PP,
there are no clinic escorts or police officers present.50 She has observed others outside the clinic
40

Id. at 6.
Id. at 6-10.
42
Id. at 10.
43
Id. at 15-19.
44
Id. at 13.
45
Id. at 13-14.
46
Id. at 10.
47
Id. at 29-31.
48
Id. at 50.
49
Id. at 50. See also McCullen Tr. [#130] Exhibit 5.
50
Id. at 32.
41

11

engage in counseling and prayer, as well as other forms of protest.51
ii.

Jean Blackburn Zarella

Plaintiff Blackburn Zarella goes to Boston PP between seven a.m. and about ten a.m. on
Saturdays, and she also occasionally goes for a short time on Wednesday mornings.52 While she is
at the clinic, Ms. Zarella aims to speak with and offer help to women who are planning to have an
abortion.53 Ms. Zarella reaches out to clinic patrons by saying, “May I help you? I have a lot of
help available.”54 Clinic patrons always respond to this offer of help, by saying either “yes” or
“no.”55 Ms. Zarella also testified that, on days she is at Boston PP, between one and four women
entering the clinic will stop and speak with her.56 When a woman does stop to speak with her,
Ms. Zarella offers the woman literature to show what help is available.57 In addition to her
counseling, Ms. Zarella also hands out literature, and about half of everyone who passes by
accepts literature from Ms. Zarella.58 She also prays near the clinic, sometimes silently, and
sometimes aloud.59 On some days, Ms. Zarella is joined by another counselor who puts up antiabortion signs around the buffer zone.60
On the second Saturday of every month, there is a rosary vigil outside Boston PP.61 At
the vigil approximately thirty people gather to say twenty decades of the rosary.62 People
51

See id. at 31-45.
Zarella Tr. [#132] at 6-7.
53
Id. at 7-8.
54
Id. at 8.
55
Id. at 8.
56
Id. at 8-9.
57
Id. at 9.
58
Id. at 11.
59
Id. at 12.
60
Id. at 28-29.
61
Id. at 38.
62
Id. at 38.
52

12

participating in the rosary vigil stand outside the buffer zone in a police barrier, and often carry
large signs.63 One regular vigil participant also carries a crucifix on a large pole.64 Annually, on
Good Friday, Ms. Zarella and other protesters also say the fourteen stations of the cross out
loud.65
iii.

Gregory A. Smith

Plaintiff Gregory Smith goes to Boston PP once a week on Saturday mornings between
eight and nine-thirty a.m. When he goes to Boston PP, there are usually about ten or more other
people engaging in protest activities outside the clinic.66 Mr. Smith carries a crucifix on an eightfoot pole outside the buffer zone while he prays the rosary out loud, and in unison with the other
people gathered at the clinic.67 Other people gathered outside the clinic on Saturday mornings
display signs.68 On the second Saturday of the month there is a larger group of people outside
Boston PP, and Mr. Smith uses a loudspeaker to amplify the prayer.69 Mr. Smith has testified that
his goal in holding the crucifix and praying outside Boston PP is to “support[] in prayer [the]
counselors so that they have success in talking the girls out of killing their babies.”70 People
entering the clinic see Mr. Smith’s crucifix and hear the prayers.71 It is not uncommon for
passerby who object to the pro-life message to shout at Mr. Smith and others engaged in prayer
or counseling outside Boston PP.72
63

Id. at 39-41.
Id. at 41.
65
Id. at 43.
66
Smith Tr. [#133] at 6-7.
67
Id. at 7-8.
68
Id. at 13.
69
Id. at 39-40.
70
Id. at 18.
71
Id. at 57.
72
Id. at 21-23.
64

13

iv.

Eric Cadin

Eric Cadin is a student at St. John’s Seminary in Brighton.73 He goes to Boston PP about
once a month when class is in session, and once a week when it is not.74 When Mr. Cadin is
outside Boston PP, he tries to speak with women going in for an abortion and their companions.
His goal is to, “let [the women entering the clinic] know that there is all sorts of help available for
them and that I and the people at these centers, and anyone else who is present at these things,
really does care about them and wants to help them, and help their child.”75 On an average
morning, Mr. Cadin will engage ten or more different women or couples in conversation.76 Mr.
Cadin also hands out literature that advises clinic patients about information and services that are
available.77 On a typical morning outside the clinic, he hands out about twenty to thirty pieces of
literature to people passing by.78 Occasionally, Mr. Cadin holds a sign, but he mostly attempts to
engage people in conversation.79 Since the Act came into force in November, 2007, he estimates
that, through his counseling activity, he has convinced more than ten women not to have
abortions.80
C.

Other Observations at Boston PP

Michael Baniukiewicz, who heads Planned Parenthood’s security operations, has observed
protesters outside Boston PP to hold prayer vigils, distribute literature, and display signs.81 The
73

Cadin Tr. [#131] at 6.
Id. at 6.
75
Id. at 21.
76
Id. at 14.
77
Id. at 18.
78
Id. at 19.
79
See id. at 14.
80
Id. at 24-25.
81
Baniukiewicz Tr. [#137] at 81-83.
74

14

protesters’ signs can be easily read from “just about anywhere on the street within the buffer zone
area.”82 On the second Saturday of each month, a large number of people gather at Boston PP,
and the Boston Police put up barriers to protect the protesters.83 Mr. Baniukiewicz testified that
he can hear protesters and counselors calling out to clinic patrons from his post inside the front
door of the clinic.84 Three or four times a day a clinic patron will walk in to Boston PP with prolife literature that they have been handed.85
Kristen Metzger is an investigator with the Massachusetts Attorney General’s Office.86
On April 2, 2010, Ms. Metzger visited Boston PP.87 That day was Good Friday, and Ms.
Metzger observed a group of about seventy-five people gathered reciting a Catholic prayer.88 She
also saw a group of three counselors engage a young Hispanic woman in conversation.89 After the
conversation the young woman got in to a car with the counselors and they drove away
together.90 While she was at the clinic, Ms. Metzger was able to hear protesters’ pro-life
statements, and she was able to read their signs.91
D.

Availability of Adequate Alternatives92

82

Id. at 82.
Id. at 85.
84
Id. at 85-86.
85
Id. at 87-88.
86
Metzger Tr. [#138] at 6.
87
Id. at 9.
88
Id. at 9, 19.
89
Id. at 14.
90
Id. at 17.
91
Id. at 9-19.
92
At oral argument in this case, Plaintiffs addressed at length the activities of clinic escorts
at Boston PP. See Trial Tr. [#150] at 39-41.
As the First Circuit held in McGuire v. Reilly, “The First Amendment is concerned with
government interference, not private jousting in the speech marketplace.” McGuire II, 386 F.3d
45, 60 (1st Cir. 2004) (finding that “‘enforcement’ of a state statute by purely private individuals,
without some involvement by state officials, does not constitute state action.”). Plaintiffs rely on
83

15

In light of the testimony in this case, it is clear that adequate alternative means of
communication exist for Plaintiffs to communicate their pro-life message at Boston PP. While it
is beyond doubt that a “degree of curtailment” exists because of the application of the buffer zone
law at Boston PP, it is also evident that Plaintiffs are still effective in communicating their
message to their intended audience: women going to Planned Parenthood for abortion services.93
As the Supreme Court emphasized in Hill v. Colorado, ““The unwilling listener’s interest in
avoiding unwanted communication has been repeatedly identified in our cases. It is an aspect of
the broader “right to be let alone” that one of our wisest Justices characterized as ‘the most
comprehensive of rights and the most valued by civilized men.’”94
The evidence in this case demonstrates that, even though the buffer zone exists, the
plaintiffs are still successful in convincing a number of women not to have abortions.95 Individuals

the Ninth Circuit’s recent opinion in Hoye v. City of Oakland for the proposition that the activities
of clinic escorts must be taken into account in an as-applied challenge.
The Hoye case is, however, distinct from this case in several important ways. First, the
plaintiff in Hoye did allege that a facially neutral buffer zone law was being enforced against prolife advocates, but not against pro-choice clinic escorts, thus meeting the state action requirement.
Hoye 653 F.3d 835, 855 (9th Cir. 2011) (“[P]laintiffs are generally required to show the existence
of an unconstitutional policy by extrapolating from a series of enforcement actions. They must
argue, in effect, that these actions demonstrate that the municipality is enforcing against them a
rule that is distinct from the constitutionally valid enactment.”). Second, the Ninth Circuit found
that, in determining whether the attempts of escorts to drown out Plaintiff’s speech foreclosed
ample alternative channels of communication, “[Plaintiff] will bear the burden of showing that it is
the Ordinance’s requirement . . . not the activities of escorts alone, that deprives im of ample
alternative means of communication.” Id. at 859.
Because this court is bound by the First Circuit’s holding in the McGuire II case, and
because Plaintiffs have not alleged state action in the manner set out above, the activities of clinic
escorts are not relevant to Plaintiffs’ as-applied challenge and are, therefore, not addressed in this
opinion.
93
See Trial Tr. [#150] at 22.
94
Hill v. Colorado, 530 U.S. 703, 716-17 (2000)(quoting Olmstead v. United States, 277
U.S. 438, 478 (1928) (Brandeis, J., dissenting)).
95
McCullen Tr. [#130] at 29-30.
16

entering the clinic can read Plaintiffs’ signs, and clinic patients can hear Plaintiffs’ prayers.
Plaintiffs successfully hand out literature to people walking toward the clinic from either direction,
and Plaintiffs’ requests for conversation can be heard by clinic patrons both before and after they
enter the buffer zone. That more people don’t accept Plaintiffs’ offers is not an indication that
adequate alternative means of communication do not exist, but rather shows that many members
of Plaintiffs’ audience are simply unreceptive to Plaintiffs’ message.
As the depositions submitted to the court and the arguments at trial show, Plaintiffs can be
seen and heard by both willing and unwilling listeners approaching the main entrance to Boston
PP. The record does not indicate that there are any barriers that would prevent willing listeners
from stepping outside of the buffer zone to engage in a more in-depth conversation with the
Plaintiffs in this case. It is evident that while Plaintiffs may indeed suffer some curtailment in their
avenues of communication because of the buffer zone law, they are still able to effectively reach
their intended audience. It is clear from the case law that, “ restrictions on the time, place, or
manner of protected speech are not invalid ‘simply because there is some imaginable alternative
that might be less burdensome on speech.’”96 The Act as applied at Boston PP, therefore, leaves
open adequate alternative means of communication for Plaintiffs’ message.
2.

Worcester Clinic
A.

Clinic Layout and Buffer Zones

Planned Parenthood: Central Massachusetts Health Center (“Worcester PP”) is located at
470 Pleasant Street in Worcester, Massachusetts.97 The clinic is on Pleasant Street, near the
96

Hill, 530 U.S. at 736 (Souter, J. concurring) (quoting Ward 491 U.S. at 717 (quoting in
turn United States v. Albertini, 472 U.S. 675, 689 (1985))).
97
Stip. [#129] at ¶ 12.
17

intersection with Dewey Street, and it has been at this location since December 2009.98 The
entrance to the clinic’s parking area is around the corner on Dewey Street.99 The main door to
the Worcester PP building is recessed under the overhang of the building, and is accessible from
the parking lot or from a walkway that leads out to Pleasant Street.100
The walkway leads from the door through two metal fences to the
sidewalk along Pleasant Street next to the clinic building; that
sidewalk is eight and a half feet wide. The fences are staggered, with
one closer to Pleasant Street than the other. For a pedestrian to
access the Worcester clinic’s main door from Pleasant Street, she
must walk through a fairly narrow gap in the two fences, which are six
feet, one inch apart at their nearest point. The door is fifty-three feet,
nine inches from the public sidewalk on Pleasant Street, measured in
a straight line.101
Most clinic patients drive to Worcester PP and park in the lot before walking to the clinic
entrance.102
There are two marked and painted buffer zones at Worcester PP: one on Pleasant Street,
and one on Dewey Street.103 The buffer zone on Pleasant Street surrounds the entrance to the
concrete walkway leading to Worcester PP’s front door.104 It begins thirty-five feet to the left of
the walkway, and extends thirty-five feet to the right of the walkway.105 It extends in to Pleasant
Street, but does not reach the sidewalk on the other side.106 The arc on Dewey Street surrounds
the driveway entrance to the Worcester PP parking lot.107 The buffer zone arc is a total of ninety98

Id. at ¶¶ 12-13; Bashour Tr. [#136] at 4.
Stip. [#129] at ¶ 12.
100
Id. at ¶ 14.
101
Defendants’ Proposed Findings of Fact [#147] at 24 (citing Stip. [#129] at ¶¶ 14, 17).
102
Bashour Decl. [#145] ¶ 29; Clark Decl. [#144] ¶ 23.
103
Stip. [#129] at ¶ 15.
104
Id. at ¶ 16.
105
Id. at ¶ 17.
106
Id.
107
Id. at ¶19.
99

18

three feet, seven inches from edge to edge along the Dewey Street sidewalk.108 At its widest
point, the buffer zone extends five feet, eight inches beyond the street curb opposite the
driveway.109
B.

Speech Activities

Plaintiffs Nancy Clark and Mark Bashour submitted deposition testimony and declarations
detailing their speech activities at Worcester PP.
i.

Nancy Clark

Plaintiff Nancy Clark has been going to the Planned Parenthood clinic in Worcester two to
three days a week since the clinic opened in December of 2009.110 She generally goes to the
clinic in the mornings between nine-thirty and eleven,111 and she usually stands by the clinic and
prays.112 She also attempts to start conversations with girls entering the clinic, and to encourage
clinic patrons to visit Problem Pregnancy, a pro-life counseling center located across the street
from Worcester PP.113 Ms. Clark successfully begins a conversation with a girl outside the clinic
about once a week.114 She also distributes pamphlets.115 On days when she isn’t engaging in
counseling, Ms. Clark prays the rosary while holding a sign that says “Face It, Abortion Kills.”116
When Ms. Clark holds the sign, clinic patrons and others seem to notice the sign and respond to it
in both positive and negative ways.117 On one occasion, a girl noticed Ms. Clark holding the sign,
108

Id.
Id.
110
Clark Tr. [#135] at 5-6.
111
Id. at 7.
112
Id. at 7.
113
Id. at 7-9.
114
Id. at 14-15.
115
Id. at 15.
116
Id. at 16.
117
Id. at 17-18.
109

19

came out of the clinic to speak with Ms. Clark, and ultimately decided not to have an abortion.118
Ms. Clark estimates that she has convinced approximately four girls not to have an abortion since
she began counseling outside Worcester PP.119 She has also spoken with four or five women
outside Worcester PP who then decided to accompany Ms. Clark to Problem Pregnancy.120
Ms. Clark testified at her deposition that many times clinic patrons don’t want to speak
with her or don’t want the pamphlets she offers.121 During Catholic Lent, protesters outside
Worcester PP engage in “40 Days of Life,” where they pray for an end to abortion.122 Participants
in the “40 Days of Life” often pray aloud and sometimes use a microphone to amplify their
prayer.123 On Thursdays, a man named Ray dresses up as the grim reaper and stands outside
Worcester PP.124 Ms. Clark has observed people react to Ray in his costume in both positive and
negative ways.125 Different protesters and counselors at the Worcester PP stand in different
locations around the clinic and are varied in their activities.126
ii.

Mark Bashour

Plaintiff Mark Bashour has gone to Worcester PP about twice a week since the clinic
moved to its current location in December 2009.127 He generally stands on Pleasant Street on the
same side of the street as the clinic.128 Although most patients drive to the Worcester PP, on
118

Id. at 18-19.
Id. at 28.
120
Id. at 42.
121
Id. at 13-16.
122
Id. at 24-25.
123
Id. at 24-26.
124
Id. at 49.
125
Id. at 50-51.
126
See id. at 49-60.
127
Bashour Tr. [#136] at 4-5.
128
Id. at 15-16.
119

20

occasion a woman or her boyfriend will leave the private parking lot to speak with Mr.
Bashour.129 He estimates that he has had a “good conversation” with a clinic patron about six or
seven times since December 2009.130 Mr. Bashour also distributes literature outside the clinic,
and successfully hands his pamphlets to someone “[a] couple of times a week.”131 Mr. Bashour
also engages in prayer outside Worcester PP, either silently or aloud, alone and with others.132
About five or six times, Mr. Bashour has participated in bringing a woman who was on her way
to Worcester PP to Problem Pregnancy instead.133 Mr. Bashour describes his goal as, “to save as
many lives as possible, because every time a child is aborted, we have a death.”134 In a typical
day, he will call out to between eight and twelve women in an attempt to start a conversation.135
In his deposition, Mr. Bashour testified that ten to fifteen percent of the time the women he calls
out to respond to his efforts in either a positive or a negative way.136 He sometimes talks to other
counselors outside Worcester PP, and has observed other counselors bring women to Problem
Pregnancy.137 He is also familiar with other protestors who go to Worcester PP to either pray or
hold signs that convey an anti-abortion message.138
C.

Other Observations at Worcester PP

At Worcester PP, Michael Baniukiewicz has observed protesters hold signs and hand out

129

Id. at 16-17.
Id. at 17.
131
Id. at 23.
132
Id. at 24-25.
133
Id. at 27-30.
134
Id. at 37.
135
Id. at 76-77.
136
Id. at 78-80.
137
Id. at 66-67.
138
See id. at 68-76.
130

21

information. He has also observed one man dressed up as the grim reaper.139 Protesters’ signs
can be read from twenty to thirty feet away, and the protesters can be heard from Worcester PP’s
parking lot.140 On days when abortions are being performed, three or four patrons, on average,
enter the clinic with pro-life literature141
Ms. Metzger visited Worcester PP in her capacity as an investigator for the Attorney
General’s office on September 10, 2010.142 When Ms. Metzger parked in a lot near the
Worcester PP facility, she and her investigative partner were approached by a counselor who
handed them pro-life literature and urged them to go across the street to Problem Pregnancy.143
While in the parking lot at the Worcester PP facility, Ms. Metzger could hear people calling to her
from behind the facility’s fence asking her to come talk to them.144
Ms. Metzger made a second visit to Worcester PP on July 7, 2011.145 On that date, she
observed about nine people standing on the sidewalk surrounding the buffer zone on Pleasant
Street in front of the clinic.146 One of the individuals was wearing a grim reaper costume, and
another held a sign that read “abortion is a bad sin.”147 On the opposite side of the sidewalk there
were two women and a man, and there was a man across from the Dewey Street entrance with a
sign that read, “God loves you mom and dad.”148 When Ms. Metzger exited the clinic and stood
outside in front of the facility, she could hear a woman from across the street say, “anything you
139

Baniukiewicz Tr. [#137] at 92.
Id. at 93-95.
141
Id. at 96.
142
Metzger Tr. [#138] at 20.
143
Id. at 23-24.
144
Id. at 26-27.
145
Id. at 42-43.
146
Id. at 43.
147
Id. at 43-44.
148
Id. at 45-46.
140

22

need, we can help you, come across the street.”149
D.

Availability of Adequate Alternatives

In assessing the availability of adequate alternative means of communication at Worcester
PP, it is necessary to keep in mind that a First Amendment violation necessarily requires State
action.150 As the First Circuit pointed out in the McGuire II case, “only the government can
violate First Amendment rights.”151 Although Plaintiffs’ arguments at trial drew attention to
factors like the fencing on Worcester PP’s clinic property, and the fact that most people park in a
private parking lot,152 these barriers to communication cannot be attributed to state action or the
enforcement of the buffer zone law. They are, therefore, not state action as required to state a
First Amendment violation.
As in Hill, this is a case where, “‘[the fact that [the Act]] may reduce to some degree the
potential audience for [petitioners’] speech is of no consequence, for there has been no showing
that the remaining avenues of communication are inadequate.’” The evidence in the record
demonstrates that Plaintiffs’ message can be heard by both willing and unwilling listeners as they
enter Worcester PP. Plaintiffs successfully engage in prayer, protest, counseling, and literature
distribution. That Plaintiffs experience both positive and negative reactions from passerby
indicates that their message is being heard by their intended audience. While most women may
choose to ignore Plaintiffs’ well-meaning overtures, this is not because the Commonwealth has
failed to leave open adequate alternative means of communication. Much as Plaintiffs have the
149

Id. at 47.
See McGuire v. Reilly, 386 F.3d 45, 60 (1st Cir. 2004).
151
Id. (citing Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295
(2001)); Hudgens v. NLRB, 424 U.S. 507, 514-21 (1976)).
152
See Trial Tr. [#150] at 71-73.
150

23

right to attempt to engage others in conversation outside Worcester PP, clinic patrons who do not
want to engage with Plaintiffs have a right to go about their business unmolested.153
As the Supreme Court has emphasized, “the First Amendment does not guarantee the
right to communicate one’s views at all times and places or in any manner that may be desired.”154
Here, this court has already found the Act to be a facially valid content neutral time, place, and
manner restriction. Based on the record presented, it is clear that the Act as applied at Worcester
PP leaves open adequate alternative means of communication even though it might not grant the
level of “particularized access” that Plaintiffs would prefer.155
3.

Springfield Clinic
A.

Clinic Layout and Buffer Zones

Planned Parenthood’s Western Massachusetts Health Center in Springfield (“Springfield
PP”) is located at 3550 Main Street in Springfield Massachusetts.156 It is part of a larger medical
complex, which contains three buildings, and is located at the corner of Main Street and Wason
Avenue.157 There are seven other distinct medical businesses in this medical complex that have no
affiliation with Springfield PP.158
153

See Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting).
Heffron v. Int’l Soc. for Krishna Consciousness, Inc., 452 U.S. 640, 647 (1981) (citing
Adderley v. Florida, 385 U.S. 39, 47-48 (1996); Poulos v. New Hampshire, 345 U.S. 395, 405
(1953); see Cox v. Louisiana, 379 U.S. 536, 554 (1965)).
155
See McCullen v. Coakley, 573 F. Supp. 2d 382, 415 (D. Mass. 2008) (discussing
Bl(a)ck Tea Society v. City of Boston, 378 F.3d 8, 13 (1st Cir. 2004), “The court held . . . that
‘although the opportunity to interact directly with the body of delegates by, say, moving among
them and distributing literature, would doubtless have facilitated the demonstrators’ ability to
reach their intended audience, there is no constitutional requirement that demonstrators be
granted that sort of particularized access.’”)).
156
Stip. [#129] at ¶ 22.
157
Id.
158
Id. at ¶ 23.
154

24

The building that contains Springfield PP is set back three hundred sixteen feet, two inches
from Main Street and two hundred six feet, five inches from Wason Avenue.159 There are five
driveways leading into the parking area for the medical complex, and each one has a sign saying,
“private property, no trespassing.”160 Two of the driveways are surrounded by clearly marked and
posted buffer zones.161 The remaining three driveways are surrounded by painted arcs, but
because the text of the buffer zone law is not posted at those driveways, the law has no effect in
those locations.162
The first buffer zone is located around the driveway on Wason Avenue that is nearest to
Springfield PP.163 The zone is “roughly one hundred feet wide, including the width of the
driveway itself.”164 The top of the buffer zone arc is twelve feet, five inches from the curb of
Wason Avenue.165 The second buffer zone surrounds the middle driveway on Main street.166 It is
approximately ninety-nine feet wide, including the width of the driveway itself.167 The top of the
buffer zone arc is twenty-one feet, four inches from the curb on the opposite side of Main
Street.168
B.

Speech Activities

Plaintiff Dr. Cyril Shea contests the application of the Act at Springfield PP. Dr. Shea
protests outside Springfield PP at least once a week on Fridays, and sometimes on Wednesdays
159

Id.
Id. at ¶ 24; Shea Decl. [#143] at ¶ 15.
161
Stip. [#129] at ¶ 25.
162
See id. at ¶¶ 28-32; see also Mass. G.L. c. 266 § 120E1/2, ¶ 9(c).
163
Stip. [#129] at ¶ 26.
164
Defendants’ Proposed Findings of Fact [#147] at 30 (citing Stip. [#129] at ¶ 26).
165
Stip. [#129] at ¶ 26.
166
Id. at ¶ 27.
167
Id.
168
Id.
160

25

and Saturdays as well.169 Dr. Shea goes to Springfield PP “to pray and to indicate to the public
that abortions are taking place on that campus and to make that knowledge known.”170 Dr. Shea
prays aloud outside Springfield PP, sometimes alone and sometimes with others.171 He also wears
a sign around his neck that is about three-and-a-half feet by two-an- a-half feet that reads,
“they’re killing babies here.”172 Dr. Shea stands with his sign at various locations near the
entrances to the parking lot of Springfield PP.173 People often react both positively and negatively
to Dr. Shea’s sign.174 Dr. Shea has also observed other people holding signs outside Springfield
PP that convey a variety of pro-life or religious messages.175 On occasion, Dr. Shea has been
called over by another counselor who is speaking to a woman so that he can offer a medical
perspective.176 Prior to the enactment of the Act, Dr. Shea would stand on the sidewalk beside
the Springfield PP’s driveway entrance, and he would wave to people in their cars and ask if they
needed any literature or help.177 Occasionally drivers would respond to Dr. Shea’s overtures, but
more often people would keep driving in to the parking lot.178 Since the buffer zones were
painted at Springfield PP, Dr. Shea can recall one occasion on which a driver, angered by Dr.
Shea’s sign, stopped his car and spoke to him.179 About five percent of people who drive to
Springfield PP and park in the private parking lot come back out to the sidewalk to receive
169

Shea Tr. [#134] at 7-8.
Id. at 9.
171
Id. at 11-12.
172
Id. at 12.
173
Id. at 15.
174
Id. at 13-14.
175
Id. at 23-24.
176
Id. at 40-45.
177
Id. at 83.
178
Id. at 83-84.
179
Id. at 84.
170

26

literature or counseling from pro-life protesters.180
C.

Other Observations at Springfield PP

Most patients arrive at Springfield PP by car and enter the parking lot via the driveway on
Wason Avenue.181 Protesters at Springfield PP have been observed to hold signs and to try to
slow down vehicles entering the driveway.182 Protesters’ signs can be read from cars entering the
driveway, and the protesters can be heard from the clinic parking lot.183 Because Springfield PP is
part of a large medical complex, which is private property, protesters’ activities are confined to
the sidewalks surrounding the complex parking lot regardless of whether the buffer zones are in
place.184
Ms. Metzger, as an investigator for the Attorney General’s Office, visited Springfield PP
on July 8, 2011.185 On that date, she saw two men standing in the sidewalk outside the buffer
zone holding up pro-life signs.186 One of the men held up a pamphlet as Ms. Metzger drove by.187
She also saw three men on Wason Avenue waving at cars that were exiting, and another man
holding a framed picture of the Virgin Mary.188
D.

Availability of Adequate Alternatives

As was the case with Worcester PP, Springfield PP also presents barriers to
communication that are not attributable to state action. Plaintiffs are in error when they assert
180

Id. at 95-96.
Baniukiewicz Tr. [#137] at 100-101.
182
Id. at 102.
183
Id. at 104.
184
See id. at 105-106.
185
Metzger Tr. [#138] at 39.
186
Id. at 39-40.
187
Id. at 40.
188
Id. at 41-42.
181

27

that the buffer zone law is “constitutionally suspect” when applied to a multipurpose office
building.189 In Hill v. Colorado, the Supreme Court found that, “[s]pecial problems that may arise
where clinics have particularly wide entrances or are suited within multipurpose office buildings
may be worked out as the statute is applied.”190 The buffer zone at issue in Hill was a floating
buffer zone that limited the ability of protesters to approach people within a fixed radius of a
clinic’s entrances and exits.191 The Supreme Court in that case found that the buffer zone created
by the Colorado statute was a facially valid time place and manner restriction.192The Act at issue
in this case creates a fixed buffer zone akin to the one upheld by the Court in Schenck v. ProChoice Network of Western New York, which applied to a number of clinics that were “part of
larger hospital complexes.”193 As the Ninth Circuit has observed, “[t]he State does not design
clinics with wide entrances or place them in multipurpose office buildings; instead, the only
relevant state action would be the application of the statute to such factual settings.”194 The
question, therefore, remains simply whether the act as applied at this location leaves open ample
alternative means of communication.
The evidence in the record shows that the Act, as it is applied at Springfield PP, leaves
open adequate alternative means of communication. Many of the barriers to communication at
189

Trial Tr. [#150] at 81 (purporting to characterize Hill, 530 U.S. 703).
Hill v. Colorado, 530 U.S. 703, 730, 120 S.Ct. 2480 (2000).
191
Hill involved a statute making 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 . . .’” Hill, 530 U.S. at 707 (quoting Colo. Rev.
Stat. § 18-9-122(3) (1999)).
192
Hill, 530 U.S. at 730.
193
Shenck v. Pro-Choice Network of Western New York, 519 U.S. 357, 361, 117 S.Ct.
855 (1997).
194
Hoye v. City of Oakland, No. 09-16753, 2011 WL 3198233, *10 (9th Cir. July 28,
2011).
190

28

Springfield PP are due to the fact that the clinic is located in the center of a large parking lot, on
private property, and most clinic patrons drive to their appointments. These barriers would exist
regardless of whether the Act was in place or not because they are a result of Springfield PP’s
location on private property, not state action.
Nonetheless, it is apparent that Plaintiffs are able to convey their pro-life message to
people entering the clinic and people passing by on Main Street and Wason Avenue. The
testimony of Dr. Shea and Ms. Metzger demonstrates that people approaching Springfield PP are
able to see protesters’ signs and hear their prayers. Protesters are able to stand almost anywhere
along the public sidewalk surrounding the medical complex, except for the two clearly marked
and posted buffer zones. If clinic patients are receptive to Plaintiffs’ message, there is nothing to
stop them from leaving clinic property and engaging in conversation or accepting literature or
counseling. Simply because Plaintiffs are not able to stand directly next to or in the two clinic
driveways that are surrounded by buffer zones does not mean that adequate alternative means of
communication do not exist. Indeed, Plaintiffs may engage in any form of communicative activity
they desire anywhere else on the public sidewalk. It is clear, therefore, that the Act as applied at
Springfield PP leaves open adequate alternative means of communication.
IV.

Conclusion
For the foregoing reasons, this court finds that the Act as applied to Plaintiffs’ activities at

the Boston, Worcester, and Springfield Planned Parenthood locations is a constitutionally valid,
content neutral time, place, and manner restriction. Given this court and the First Circuit’s prior
rulings that found the Act to be narrowly tailored to serve a significant and legitimate
governmental interest, and with respect to the evidence presented in this case, it is clear that the
29

Act as applied is a constitutionally valid regulation of the time, place and manner of speech.
Judgment shall enter in Defendants’ favor on all counts.

IT IS SO ORDERED.

/s/ Joseph L. Tauro
United States District Judge

30