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Supreme Court Justice Antonin Scalia testifies before the House Judiciary Committee's Commercial and Administrative Law Subcommittee on Capitol Hill May 20, 2010 in Washington, D.C.Stephen Masker / Flickr

WASHINGTON, D.C. – Most pro-life groups had a warm response to today's Supreme Court decision in McCullen v. Coakley, finding that the state of Massachusetts had overreached when barring pro-life sidewalk advocates from exercising their free speech rights within a 35-foot zone of abortion facilities.

But three justices, led by Antonin Scalia, issued a scathing rebuke to part of the otherwise unanimous decision.

“Today’s opinion carries forward this Court’s practice of giving abortion-rights advocates a pass when it comes to suppressing the free-speech rights of their opponents” and “continues the onward march of abortion-speech-only jurisprudence,” he wrote.

The justices unanimously struck down the Massachusetts law, but Chief Justice John Roberts sided with the court's liberal bloc in saying the state had not violated sidewalk counselors' rights by prohibiting their speech while allowing abortion escorts to speak freely.

“I prefer not to take part in the assembling of an apparent but specious unanimity,” Justice Scalia wrote in a concurring opinion joined by Justices Anthony Kennedy and Clarence Thomas.

“It blinks reality to say, as the majority does, that a blanket prohibition on the use of streets and sidewalks where speech on only one politically controversial topic is likely to occur—and where that speech can most effectively be communicated—is not content based,” he wrote.

“The obvious purpose of the challenged portion of the Massachusetts Reproductive Health Care Facilities Act is to 'protect' prospective clients of abortion clinics from having to hear abortion-opposing speech on public streets and sidewalks,” the joint concurring opinion continued.

“The provision is thus unconstitutional root and branch,” he wrote.

The law, he said, clearly intended to silence all pro-life advocacy near abortion facilities.

The three criticized the majority's view that the state law was not “narrowly tailored” because the pro-life counselors had not engaged in sufficient violence to warrant the statute. “That is rather like invoking the eight missed human targets of a shooter who has killed one victim to prove, not that he is guilty of attempted mass murder, but that he has bad aim.”

Justice Scalia also rapped the court's liberal wing for telling Massachusetts lawmakers to “consider an ordinance such as the one adopted in New York City that . . . makes it a crime ‘to follow and harass another person within 15 feet of the premises of a reproductive health care facility.’”

“Is it harassment, one wonders, for Eleanor McCullen to ask a woman, quietly and politely, two times, whether she will take literature or whether she has any questions?” he asked. “Three times? Four times? It seems to me far from certain that First Amendment rights can be imperiled by threatening jail time (only at 'reproductive health care facilit[ies],' of course) for so vague an offense.”

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Justice Samuel Alito had questioned why abortion escort's free speech rights would be respected within the bubble zone but pro-lifers would have their rights denied.

Imagine if two people spoke to a woman considering an abortion, he said during oral arguments months ago. “The first, who is an employee of the facility, says, ‘Good morning. This is a safe facility.’ The other one who’s not an employee says, ‘Good morning, this is not a safe facility.’ Now, under this statute, the first one has not committed a crime; the second one has committed a crime,” he said.

Justice Alito did not join Scalia's opinion but filed his own concurrence. “It is clear on the face of the Massachusetts law that it discriminates based on viewpoint,” Justice Alito wrote. “Speech in favor of the clinic and its work by employees and agents is permitted; speech criticizing the clinic and its work is a crime. This is blatant viewpoint discrimination.”


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