mr chief justice and made please the court this court has held that the public sidewalks are a natural and proper place for free citizens to exchange information and ideas and for that reason the court has held that public sidewalks occupy a special position in first amendment analysis if the massachusetts law at issue here makes it a crime to enter onto certain public sidewalks even for the purpose of peaceful conversation or leafleting the law applies at abortion clinics throughout the state on every hour of every day that they are open regardless of the circumstances massachusetts asked this court to uphold that statute under the time place and manner test but the law fails each aspect of that test i would like to begin with narrow tailoring the state says the law is necessary to protect its interests and preserve preventing obstruction and congestion but the law is not narrowly tailored to that to those interests for three reasons first the law applies regardless of whether there's any threat of obstruction or congestion at all even when the sidewalks are entirely open and empty for example mrs mcmullen generally does her counseling early in the morning on tuesdays and wednesdays beginning at seven o'clock in the morning she testified that she is sometimes alone when she does this counseling nancy clarke testified that ninety percent of the time that she is at the clinic in worcester she is all alone a statute that makes it illegal for mrs mcallen or mrs clarke to engage in peaceful consensual conversation on a public sidewalk for fear of obstruction and congestion is not narrowly tailored and so i think the state is simply wrong about that fact for several reasons there are many tools that the state either has in its current tool box or could enact that would deal with that concern and if i may back up for a second i think there are really two different interest that the state asserts when it makes that argument justice ginsburg first they say that there are actual deliberate bad actors there are some people who the state claims have deliberately violated the law and blocked the door and interfered with access and then secondly the state says there's also some circumstances where there are enough people on the sidewalk that even lawful consensual conversation might accidentally block a door i think those are actually two quite different interests but there are tools in the toolbox to deal with both of them for example section b of this statute makes it illegal to impede block obstruct or even hinder somebodies access to the clinics and that section the statute is not challenged here never has been what do you know i should probably ask this of the other side and i will but do you happen to know when was the last time that massachusetts prosecuted somebody for obstructing entrance to an abortion brought a case for example under the federal face law which has been in existence for twenty or so there have been laws against obstruction during this entire period right there have been laws against obstruction the entire time and you say that only once in  seventy that was the last time a prosecution and that was an injunction against prior bad actors that was not a face prosecution or section the prosecutor not taking the position that one thousand nine hundred seven was the last time an entrance was obstructed i would think the police were called to open access to a clinic i think seeking that position that the last time it happened it was one thousand nine hundred seven i frankly don't i couldn't say that i know the last time it had to do know that in the record there were more  examples i know that in the record there was testimony claiming that that happened my argument is simply that the state has tools that are deliberately designed to deal with that and so the united states the state says of that of that particular tool that it's a hard thing to prosecute because you have to show intent and there's a lot of obstruction and interference that goes on naturally just because there are a lot of people around so that that is an insufficient tool is what the state is yes and so to the extent what the state is saying to center sta claiming there are deliberate bad actors deliberately blocking the door i don't think that's a very persuasive argument there are police on the scene and if the police say get out of the doorway either the person moves in which case is not a problem anymore or they don't in which case intent is pretty clear  states has prosecuted i think more than forty five cases and gotten more than seventy convictions under that statute and sometimes there are those bad actors but probably more often it's just a function of there are just lots of people and they your clients and all of all of them want to be as close as possible to the site and that that naturally leads to an interference with normal access and so i agree that's the second part of the state's argument that i don't think this law is narrowly tailored to that concern  in two respects one the law applies you know the evidence in the case is that the crowds that the state is concerned about have been essentially at one clinic one day one time saturday mornings in boston and when they happen there are video cameras rolling and police officers  present and there's no reason to believe the police can simply say move out of the doorway and if someone's in front of the doorway they certainly should do that there's a record show how many clinics in the state are covered by the law i believe they're a letter eleven or twelve clinics in the state and so long as they are free standing abortion clinics they fall within statutory definition how far do you want to go in your in your concession would you want to concede this point that imagine the state has two groups of people and one group deals with the other is doing is terribly wrong and the second group feels we absolutely want to do it and everyone is in a fragile state of mind and they want to if possible least one group wants to sort of shout as loud as you could at the other please don't do this and the other says please leave me alone we're not saying which group is richie analogies obvious but if i keep all the titles out does the state have the right in your opinion to say it's tough to referee this we see the potential for real harm on one side or the other so we're going to have this kind of thirty five foot foundry you want to concede that and say ok but the evidence here doesn't justify it or do you want to fight that too so no i do not mean you can see that i don't think i think a solution that is done with painted lines on the sidewalk that says at you know you're into the details i want to know about the principle i mean i can imagine the principle applying special care or need be neat need must be taken outside of hospitals for veterans even though there's some who are very much opposed to the war because these people are becoming out they'll be in wheelchairs it'll be terrible and others thinking you know we can think of many many situations irrespective of subject matter where there is a need for such refereeing and i just want to know if the if the concept is ok with you or if not then we're into the details generally speaking no i don't think the concept so protestor like the one we had in the schneider case at a funeral of veterans can go right up to the public sidewalk outside the church and put up the signs that they did give out the leaflets that they did talking about that veteran in the ways that they did that's ok so so a couple points about that one i think was no evidence there that they were  that they were disruptive they were just expressing their first amendment rights so i think i see what's the potential for disruption because of the strong sentiment around the great i think a statute that worked the way that one this one does here that would make it illegal to even engage in peaceful conversation on sidewalks near a church or near a funeral or near just about anything else i think clearly is not permitted by the first amendment and smiter they were held not but i don't see how i'm trying to now because in my case in snyder i thought it was pretty important that the demonstrators who were behind hill somewhere and the police restricted where they can go many states have enacted similar laws and i thought that's important because maybe it would have come out differently and you could argue that i could if so i'm trying to narrow it i'm trying to see are to what extent do i have to look at this particular set of facts in which case we're into the hearings separate and to what extent is there a matter of very broad principle here and any help you can give me on that would be appreciated so the matter a very broad principle is that a law that makes it illegal to even engage in consensual conversation quiet conversation on a public sidewalk and act that makes that a criminal act which mrs mccollum can go to prison i think is not permissible under the first amendment if you compare it to for example the fair federal military funeral protest law that was specifically drawn to acts that disrupt the peace and good order of the funeral and i think that is but if you saying that it you could not do an act that instead just says look it's a little bit too hard to figure out what and what does not disrupt peace and order so we're just going to say twenty five feet around a funeral or twenty five feet around any facility that that's never permissible so generally speaking i think any law like that runs into a big first amendment problem of even eliminating peaceful consensual conversation that doesn't disrupt anything and this court's past first amendment decisions have said that decision of regulation is required one difference if it's a rule around any facility or rule around all funerals for example is that there isn't nearly as much distortion of the marketplace of ideas as happens when you do what massa choose it's did here which is for example i was intrigued by one of the examples that you gave in your own brief which you said slaughterhouses so let's say that there are animal rights activists and this is easy to imagine who try to interfere with access in an out of slaughter houses and a state passes a regulation and says there's a ton of interference it's preventing the operation of these facilities employees can't get in suppliers can't get in slaughterhouses are leaving the state because of this problem and so we're just going to set up a zone in let's call it thirty feet because it's very hard to enforce anything else i guess my reaction to that hypothetical you must have used it for me to say oh that's terrible but my reaction my own intuition was kind of what's wrong with that just have everybody take a step back so what is wrong with that is and so what's wrong with that it is a couple things one again this court's decisions require precision of  regulation so an injunction for example against groups and individuals like mads and shank for example an injunction against groups and individuals who have interfered with access keeping them back i think that's perfectly permissible we take no issue with that type of solution it's the generally applicable statute right that's tied to just one particular often protested event that gives the state enormous power to interfere with the marketplace of ideas one of the examples that is given in one of the amicus briefs in this case and they are they provide a lot of background is a state law that creates a buffer zone around every fraternal watch what would you say about that i think it is difficult to imagine the government interest to first i guess i don't know the particulars of that law and what it what it restricts if it restricts peaceful conversation on public sidewalks any place there's a paternity lodge i would say that that should not be permissible under the first amendment there i think generally speaking the idea of the government picking one particular item and saying well all around this suddenly the character of the public for changes from a place where people can have peaceful consensual conversations to a place where we will imprison them for doing that i think that's a dramatic restriction of first amendment rights i think if there's a particular group or individual who keeps interfering with the fraternal order of course you can get an injunction against that type of behavior but i don't think the state can say even peaceful discussion and leafleting that's go back to the slaughterhouse case i mean there might be people who say it's really important to actually be able to face to face talk with the employees and tell them why they should get different jobs or why they should change their practices in various kinds of ways and you know there are some people who think signs and chance are great but there are people who really want to make one to one contact with the truck drivers with the employees whoever but but you say you know we have to let whatever interference goes on even if there's a  record of real obstruction of real interference with the operation of the facility in order to allow that to happen and i guess i think that that's that's pretty hard to be clear i'm not saying the government has to let it go on  that are better drawn to it than eliminating even the peaceful consensual conversation let's suppose and this is still justice kagan's question suppose that were given assume that those laws just did not work could there then be consideration of a buffer zone this is a hypothetical that i'm sure that you wouldn't accept in the text of your case but suppose suppose it were given that there is no way to keep the abortion clinic open the laws simply do not have a roof reference to obstruction and blocking entrance simply do not work if the laws simply do not work i think perhaps the government could come in and make a case that it has a compelling interest and that this is the least restrictive means of doing so that now at this point that was a better way of getting what i was trying to get just assume that there isn't let's look at the narrow part of the case and let's assume that the colorado is right and this particular risk correction is more restrictive than colorado in two important respects which you've gone into now the reason that they did that is they had hearings in massachusetts and they discovered that the colorado law didn't really work very well and so what are we supposed to do are we supposed to now go look at it's long as those hearings are legitimate hearings and they have a good explanation on something like whether the zone is eight feet in consentual or whether it's thirty five feet in different amounts of sidewalk depending on the near innes of the facility when doesn't it become just up to them we can't we're not legislators we don't know the situation in massachusetts we can insist upon a reasonable record but how can we do more than that on this detail so it's so obvious to tell what what i think the court should look for is for example have they had a cape the state said they did not even convict a single person of one considered a gun as you understand that we all understand that it's it's one thing to try to prove an intent on such matters particularly when people are in good faith trying to explain it and it's well another thing to actually stop the congestion and to protect the interest of the woman who wants to have the abortion may be in a fragile state of mind and  this kind of thing could interfere with her health etc so there are two interest one on each side we know eight feet with the bubble is ok we're not sure about thirty five feet and they have an evidentiary record so a few things one the reasons this court gave in hill for a per allowing the eight foot no approach zone was precisely that it only was about protecting unwilling listeners and it did not stop discussions with willing listeners  accept that the record here shows that it did not work well in the sense that justice briar no not at all to use it i understand i was told to record all it says is that the police found it difficult to apply a bubble that you know they have to measure eight feet or whatever it is that they didn't say that massive obstruction and protests are occurring preventing people from and that that wasn't the finding was no i agree it was not the claim was so i just ask you that question it just happens that the police testify was some evidence and examples that the eight foot bubble doesn't work well and it also they have some evidence and reasons for thinking that if you want to have a conversation you have to convince the woman to walk ten feet i mean the difference is about half you know if you were near me prices near we'd have colorado if it were the first row is we'd have massachusetts and they have some evidence that we can't  enforce this colorado thing very well it doesn't help i'll go ahead i want your and i agree but if i'm not trying to get rid of you sent me thirty five feet further back and ask me to make my argument from there i'd hear you i would think you might hear me but i would just you'd receive it quite different differently if i were sent back there but the clinic but for the state were permitted to stand in front of you like a normal lawyer and make their argument in the normal way i would suggest that would be a significant difference in what we have here is not denying the difference i am asking you now heard different characterizations of the record i didn't mean to characterize it i want you to explain what it is in the record from your point of view or lack there that means that the constitution intervenes to prevent massachusetts from doing so clinic has a dramatic effect on the petitioner's ability to reach their audience so if someone happens to be walking from the same side of the zone that you're standing on you may have a shot at the clinic still has the space in front of the clinic to talk to people which you don't but you may have a shot if you're on the right spot and you know they're going to the clinic and if you can identify the audience early enough but for example places like west or in springfield where essentially the only chance to reach the audience is by standing on the public sidewalk and waving a leaflet as they drive through the driveway entrance if you have to stand thirty five feet back and do that the evidence here shows there's essentially zero chance to reach that audience so isn't that more a function that they just have a private parking lot so even if the slip didn't exist you actually couldn't reach most of these people because they drive into the private parking lot and you can't talk to them anyway no you and i don't think that's a fair characterization of it so yes there's a private parking lot but there's a public sidewalk on which before this law you had the right to engage in speech the fact that this law pushes you thirty five feet back is what makes it impossible to make the offer many people just drive on by and they don't want the information and that's fine that's their right but many people do want the information and have acted on the information and this law makes it much harder almost impossible in places like was to use their offers on that you would concede is permissible in other words if it were twelve feet would would that be all right so as the size of the zone decreases i think the imposition on the speech rights is you know gets less and less and better and better and so the adequacy of the alternatives for example that may improve as you go well it would still be a problem i think to have zones on the sidewalk where even when no one's there it's a criminal act to have a conversation well but that goes back to justice ginsburg's question i mean how is a loss supposed to deal with with with that so  fluctuating conditions that may be at a particular clinic site that's precisely the point that's why this is not something that should be addressed with a statute like this this is something that should be addressed with either a statute drawn to something like large crowds or a dispersal statute the brief the amica spree for new york state in support of massachusetts here talks about how concord new hampshire and los angeles deal with this problem they give the police the power to disperse crowds when they become obstructive or violent the same way this court approved  wants to be there so we can't i mean this is a speech a dead speech in many respects it is in many respects it is no different than the speech free zone in the jews for jesus case it's a place where the government claims it can over so the attorney general says it's more than just getting to work and leaving work says it's just doing their jobs first i don't believe i don't believe that they have the authority to do that in other words i don't think they could go arrest somebody who happened to speak about abortion when they work for an abortion clinic they have an absolute statutory defense but even if they could limit it to just doing their job you end up with a problem that the ninth circuit saw in the white case which is if the clinic is allowed to use that sidewalk even just to say good morning may help you went to the clinic and the government says that's a valid use of our public sidewalks but the state says mrs mccollum will go to prison if she goes on that sidewalk and says good morning may i offer you an alternative as the ninth circuit panel said that's undubitably content based the government doesn't get the side that the public sidewalk which it leaves open for people just walking by if i'm going down that sidewalk to get a cup of coffee it's fine but am i correct that the attorney general's regulation with respect to employees of the clinton in a way made this even more content based because there was a prohibition on discussing the abortion procedure i agree that's what that's one of the reasons that the interpretation is flagrantly unconstitutional the government can't simply say to people who work for planned parenthood we want to rescue when you talk on the sidewalk unless you talk about abortion rights if you talk about abortion then will arrest you and that mirrors that mirrors the state's interpretation of its of the exemption for people walking through the zone where it says you can walk through and this is j a ninety three ninety four provided that the individual does not do anything else within the buffer zone such as expressing their views about abortion so the government saying you can walk through if you're going through the zone just to get somewhere to not to get to the clinic and you're working with a companion can't you speak to your i mean as you speech by everybody who's walking through the attorney general's taken multiple positions on that in the lower court their position was you can't talk about abortion or partisan issues they told the first circuit that you can even where you could be arrested if you work leave an indian shirt while you were just passing through at this point they say that people passing through had speech rights either one is bad either way abortion they want to talk to the women who are about to get abortions and try to talk them out of it i think if it distorts it to say that what they want to do is protest abortion if it was a protest keeping them back thirty congestion case certainly mcmullen and others can have those conversations right in front of the abortion facility it's just that those conversations are moved back a few feet and in point of fact ms was on more than a few feet you know i  thirty five feet is away is from this bench to the end of the court and if you imagine the chief justice is sort of where the door would be it's most of the width of this court room as well it's pretty much this court room kind of that's a lot of space as a factual matter i did want to point out that in boston for example the door is recessed it's a private entrance with the recessed door and the thirty five feet is measured from the door so it's actually only about twenty second i didn't hear that because he was saying that this case is not a protest case it's simply about calm conversations and that is what i want to know if the evidence showed that certainly there's a picture of a calm conversation while the evidence upon which massachusetts based its decision to go to thirty five feet instead of eight feet they were hearing the evidence show that what was involved was calm conversations between one person trying to counsel another or did the evidence shows something else certainly the evidence showed something else experience showed that there had to be a certain amount of space around the facilities what we had for example where pro choice advocates swearing and screaming at pro life advocates within the buffer zone that's a joint appendix twenty six to twenty eight you had the pink group which is a pro choice organization pushing and shoving and  screaming and shouting within thirty five feet or protesting within thirty five feet isn't that more narrowly tailored but really what this case involves what these people want to do is to speak quietly and in a friendly manner not in a hostile manner because that would that would frustrate their purpose with the people going into the club but again experience show that even individuals who wanted to engage in close quiet peaceful conversation  creating congestion over the rather than i know there are some people who are peaceful in which case i would accept justice scalia's suggestion this is a counseling case but you cited some other evidence that suggests there were other people who  screaming pushing and shouting which sounds like in his characterization a protest case and the reason that massachusetts found it difficult to write a statute that distinguishes one from the other is well why do people write statutes that sometimes do not make these fine distinctions why did they in this instance they didn't make a fine distinction your honor because it didn't matter whether people were being peaceful or whether they were could you have written such a statute that would have worked it would have been very difficult to write such a statute you're on how did you get thirty five feet why thirty five well again experience showed that some amount of space around the buffer zones around the facilities needed to be open so then it was simply a question of looking at past experience at the prior injunctions for example your honor for example in planned parenthood b bell which is cited to page two of our brief there was actually a fifty foot buffer zone imposed by a district court judge in massachusetts we knew from of course madison and shank that thirty six foot buffer zones were acceptable in that when you were being responsive to that kind of problem and we knew that if fifteen foot buffer zone would be acceptable if responding to a similar kind of problem so at some point or another the the legislature was aware that some amount of space needed to be created and it chose thirty five feet as a reasonable response a reasonable amount of space around the syllabi to allow the or second i see that is there anything in the record the obvious reason for a legislator i think i did work in the legislature for a while as a staff member that you don't write these fine statutes is they won't work they have to find distinction activit the activity right now i knew you were just going to nod my head as soon as i said the same in spontaneously if it's true is there anything in this record that suggests that this is one of those cases where it's just too tough to say whether they're counseling somebody or whether they're screaming at somebody whether they're pushing somebody or whether they're standing near them peacefully is there any evidence in the record i could turn to that would suggest they should say yes and i will assume it to be true that an elderly lady who was quite successful and had meaningful communication with over a hundred women going into the clinic before about whether or not a war can be written to protect that kind of activity but still to prevent obstruction and blocking i think your honor that no one is guaranteed any specific form of communication so there is no guarantee as a doctrinal manner to close quiet conversations the question is are there adequate alternatives and in this particular instance in this record there are adequate alternatives take for generally on the public sidewalk but of course that right is tempered by the state's interest in making sure that the public sidewalks function as they should and that there is peace and good but i would give you an example you're  i still don't know where you got and this goes to justice briar's question you cannot write an ordinance that says obstruction and intimidation blocking is prohibited and still allow the kind of conversation that i described earlier and that i want you to assume to be true for the for the purposes of this question your we we couldn't here obviously because that wasn't the problem the problem with making that kind of a fine distinction is that it doesn't address what each case is when you address one problem you have a duty to protect speech that's that's that's lawful you do as long as your protection is narrowly tailored to your interest but i think what you have to say to this court is that it's impossible to write a statute of the kind that we are discussing now and this is just question it would be enormously difficult to write a statute that addressed the problem and the significant interest here where you are making that kind of a fine man to skew a question about a distinction that is in this statute i don't want to give you this this example a woman is approaching the door of a clinic and she enters the zone to other women approach or one is an employee of the facility the other is not the first who is an employee of the facility says good morning this is a safe syllabi the other one who is not an employee says good morning this is not a safe solti now under this statute the first one has not committed a crime the second one has committed a crime and the only difference between the two is that they've expressed a different viewpoint one says it's safe one says it's not safe now how can a statute like that be considered viewpoint neutral your honor i think what that statute distinguishes is based on what those two different people are doing the as you say the employee could say if she was performing her job which would be escorting that individual into the facility and if she wasn't unnecessarily cluttering up the buffer zone which was the reason that the statute was was enacted in the first place then that person could say that you judge it on what she's only three people in that zone right the difference is the viewpoint difference the what the legislature has done is that it is created a circle around these entrances and is only permitted up particular conduct within that  traffic to keep moving on the sidewalk and to allow people to get in and out so unless you have a permissible purpose for your conduct to be in the buffer zone then you cannot be in the buffer zone and that is what the statute is addressing with  producible purpose to say this is a safe but not a reasonable purpose to say this is an unsafe they the statute is not focused on that person's speech the statute is focused on what they're doing in and it allows for even employees the snow shovel as mentioned in the you could have created a completely silent zone but now i don't know whether that would be permissible or not but it would be a different question you could have you could say nobody can speak here but people can shovel snow they work for the for the clinic they can sweep the sidewalk they can do maintenance they can go in and they out and out they can utter a word well that would be a different statute but that's something the statute this statute says that there is an exemption for employees of the facility if they are operating within the scope of their employment and surely coming out and saying this is the safest syllabi is within the scope of their employment right so how do you justify that forget about the conduct now the speech habitual or widespread or touched on advocacy in any way shape or form then obviously petitioners would have an opportunity to challenge the statute as applied but of course they haven't even begun to make case that there's viewpoint discrimination actually happening in the buffer so it's very hard for me to credit the statement where the implication that for them for way to say we're glad you're here you're going to be well taken care of this is a safe a silly it's important for you to be here it's very hard for me to credit your statement that that's incidental to their function it's incidental to the permissible purpose for which they're allowed in the buffer zone and i should point out actually that p p l m and again this is in the w way they actually train their escorts not to engage in that kind of speech so that's first of all and second of all escorts really only exist and only operate in boston on saturday mornings for a couple of hours they don't work at all in worcester or springfield with that raises another question miss miller because i assume that that's true because the crowds and the obstruction really are with respect to one facility at certain periods of time so mr riady says look if it's it's one facility not all ten of them or whatever it is and it's only for certain periods of time not every day you know why not narrow it that way right so why not because the experience has shown that you do have problems at worcester and springfield and those problems do center around the driveways eighty five to nine percent patients who approach those facilities do so by car and the only public sidewalk there's a small slice of public sidewalk between the road and the private driveway and that's the only opportunity that you that individuals would have in order to protest and what's happened in the past in worcester and springfield is that you would have pacing across these driveways that said joint appendix forty one you'd have individuals stopping and standing and refusing to move in western you'd have literature thrown into cars you'd have hands and heads thrust into open windows and there was at least one accident in worcester and that's it j nineteen so there definitely was conduct that was a problem and it wasn't even that there are a couple of lone calling these people protesters which you've been doing to your during the whole presentation that is not how they present themselves they do not say they want to protest they want to talk to the women who are going into these facilities from protesters you know are they the problem of course with that the statute was looking to address was not with protesters per se it was with people who had a desire to be as close to the facility doors  driveways as possible to communicate to communicate their message but the result of that was congestion around these doors and driveways so it wasn't concerned about the protest it was a concern about people actually being able to use i would think that if you tried to do a statute that distinguish between protesters and counsellors that would be content based much more than this statute is i would agree i mean but but you know which is not to say that the statute doesn't have its problems in my view i mean so i guess i'm a little bit hung up on why you need so much space again the experience we've had up with quite a long experience in massachusetts a long history of crowds around the stores of even violence t clinics and we've had law enforcement and others who have viewed that crowd on a regular basis and have described it the activity around the doors and driveways as being so frenetic you have so many people  there the bad actors and the good actors you have so many people congested in the same space from all points of view that it effectively blocks the door sit down can i ask you this question and suggested by the a f l c i a o brief suppose the state legislature has hearings and they say there's a long history of violence and obstruction at sites where there is a strike and replacement workers have been called and could the stat just state has a statute that says there's a thirty five foot zone like this around every so every location in the state whenever there is a strike and there are replacement workers could they do that right well of course labor actions are protected by federal law so any state law couldn't directly conflict with could that could federal law do that well this court has repeatedly held restrictions on labor activity if given the right record so there is so the answer is yes the first amendment would permit around every place where there's a strike right well certainly it would be an easier case to defend if there was a history as we have here and you'd have to prove that you don't solution a street you don't think there's a history of violence at places where there are strikes all placement workers well i don't think there's been the kind of history and sustained violence that we've had on this almost unique record in massachusetts with respect to facilities but you're i would say my fear any abortion any new claims not have is there any abortion clinic that has not had a problem in massachusetts in there was when the legislature was considering the statute there was a survey submitted by nero that reviewed the experience of the ten facilities that were then in existence in massachusetts and six of them said that they had significant problems outside of the facilities eight of them said at the very least they had regular protesters there were two who did not report that there was a mr chief justice in may it please the court the massachusetts statute here is simply a place regulation that does not ban speech but instead effectively moves it from one part of a public forum to another in this case away from the small areas but it was up held under an even stricter standard that is applies here but even aside from that i think a number of the pillars of petitioners argument here are directly contradicted by this court's precedent so for example the idea that  that under strict id that you have the right to choose the best mechanism of communication is contract contradicted by heffron and by frisbie and hepher and there was the print petition or said i need to be able to talk quietly to people to ask for money and that's the only way i can get it and this court said you have ample communication channel alternative channels over in that booth in frisby what the protester wanted to do was target a house and what this court said in frisbee was you have alternative channels of  on you can go door to door you can mail things you can make calls so i think that that pillar of the of the of the argument what's the alternative here see all standing thirty five feet away and yelling no your honor at the alternative no your honor to comfort these women who are no your honor the alternative in this case is the entire length of the sidewalk quiet counseling leafleting and conversation is permitted it is the last forty five seconds before the petition before the counselors enter the the the clinic know who's going into the clinic you're out of the testimony until you get to the area close to the clinic you don't know whether passers by are going near your honor the testimony is actually to the contrary that they get that mcmullen and others get quite good at identifying who is going and is not going into the clinic and actually the so what we're talking about is a is the last four to five seconds before they go in and just the snake is your concern  federal prosecutions were brought in massachusetts for physical obstruction of the federal statutes your honor i'm not aware of the number there are forty five face prosecutions nationwide but faces a very different statute the criminal prosecutions in face are for well your order ar son and for chaining yourselves to doorway they are not for the kind of quiet counseling and picketing that said it should it but the federal interest that europe defending is you don't want this physical obstruction statute to be misinterpreted that's what's wrong with the physical with the production's statute as an answer to many of the problems that massachusetts is facing your honor i don't think it's at all in the answer to the problems masterpiece is facing because as justice scalia has repeatedly pointed out these are not the type of defendants who are at issue in the face act with the face act is talking about is murder arson and chaining to door winds with this statute is getting at is something quite different it is congestion in front of doorways i people individuals that's ending in action under the federal statute it is not your honor because those are specific intent crimes in both massachusetts and in the federal statute the for example that this was inserted to even a dog knows the difference in being stumbled over and being kicked dance you're saying federal prosecutions can't tell when people are deliberately obstructing i'm saying here are you on this is beyond the realm of the law i'm saying what's at issue here your honor is not that kind of deliberate obstruction what the testimony before the legislature was was that there was the congregation of people and the massing of people that indeed there were pro choice protesters in the zone who have certainly are not intending to obstruct that and it was so what they were dealing with was quiet counseling leading to counter count swing leading to congestion in front of the doorways they also was testimony that there were people handing literature to moving cars accidents and near accidents which are not intentional obstruction in the least the kinds of statutes that this court that are at issue in the specific intent kind of masters in the face act do not get the kind of peaceful quiet yet congesting and disrupting conduct that is at issue here and justice briar i would urge you to look at the evidence testimony a joint appendix sixty seven to seventy one the heffernan testimony at seventy nine to eighty the coakley testimony of j a fifty one in the capone and testimony of jane one thousand there were specific arguments as to why these did not work the argument petitioners make here your honour's is very very broad the lower courts have upheld buffer zones around political conventions around circuses around funerals the idea that you could defeat those buffer zones by simply saying i would like to have a quiet conversation with the delegates as they go into the political convention would wipe out a number of court of appeals decisions and the kind of buffer zones that this court i suggest admit and that the lower courts have found are are needed on how far do you think i'm not aware of the history of fraternal lodges but what's at issue here is really what would they have to find war slaughterhouses or sites where there are strikes so i think i think for example in the slaughterhouse or what they found in around circuses in conventions is the idea that there is massing of people that prevents the orderly ingress and egress from to and from the facilities what this state was dealing with here was not an isolated incident but the state had fourteen fifteen years of history of the ma and they had tried other things they had were tried the statutes that justice scalia identified they had tried a narrower buffer zone in the testimony was it wasn't working and that the police were coming in and said we can't enforce it why is that because they had a hard time around certain sensitive facilities what i'm asking is what requirements if any does congress or state legislature have to meet before they can do that if they if it is done do we simply say that they have a rational basis for  that's it so they can stablished basically as a buffer zone around any kind of a facility they want if not then what needs to be established so you're i think in the evidentiary realm it's hard to have hard and fast rules i would say you would need a lengthy history of serious congestion and other problems and a and a some sort of showing that the alternatives weren't working but that's what's here this problem has been going on in massachusetts since one thousand nine hundred ninety four this is not something the legislature woke up one day and said in light of one incident we're going to to deal with this they tried other things they and the evidence therefore supported this what would take to support a broader statute it's hard for me to say but i think this record shows which ones were taken what about the example of a strike but there certainly is a long history of labor violence in places where there are replacement workers could that couldn't be done in that situation so i guess the board so i think that would be a very broad statute and hard hard to defend but if there were before the legislature as there is in this case the kind of congestion and the solution i submit is much narrower than the petitioners are suggesting it is to clear out an area around the entrance in the u s to one is twenty two back to justice alito first question maybe we can make some progress here with the regulation of labor's up to the n l r b are right now does regulate picotee it does say what you can do and can do that all of which have speech employ patients what standard of review do the courts use sir i'm not aware of the standard they use but it is if you are aware of any case i'm putting it loaded because only because my ignorance of it were the standard has from the ordinary a p a standard i'm not your honor i'm not aware of cases one way that even if there is should we create a new standard for reviewing this kind of regulation i think that's actually a serious question i don't think so your honor thank you thank you counsel  have three minutes remaining thank you mr chief justice several points first it's not impossible to draw statute to deal with the problems forty nine other states deal with the alleged problems the next prosecution massachusetts institutes for blocking a door will be its first in at least two decades is that true mr ranson has massachusetts a statute the only one of the sky and it is the only state statute of its kind there are a few minutes municipal statutes that are similar that are frankly based on the first circuit decisions in this case secondly you hear the police officers testify that they know all the regular players at the clinics that's their testimony they know them all well if you know them all and if they're congregating in the doors and need to get out of the doors you should go to court and get an injunction  say stay out of the doors until they do that the claim that they have to throw their hands up and put people in prison for peaceful speech is not a very persuasive claim secondly all of the evidence that the united states cited cited you to from the record all of it boston saturday mornings the claim that the legislature can extrapolate from that to ban peaceful speech in boston at other times when the sidewalk is empty and at other clinics where the sidewalk is empty and say well there's a portion there and where there's abortion we expect certain speech problems therefore we're going to make it illegal to speak there that's the state's claim here the evidence is boston specific the first amendment requires precision they need to regulate the problem where it happens and if that means police officers if that means dispersal laws if that means actually bringing a face prosecution which the united states has never done they ought to do that but they shouldn't imprison this is mcallen for her speech third united states mentioned questioning the government's representation i haven't  the definitions section of the statute definition for physical obstruction includes even making entry unreasonably difficult it is not at all soley for violence it's for physical obstruction even making it unreasonably difficult counsel said that they brought forty five cases across the country that's true zero zero in massachusetts they shouldn't be able to restrict the peaceful speech lastly to the extent the court feels the need to recognize that there are some situations that are so extraordinary that we should put people in prison for peaceful conversations on public streets that ought to be the exceptional case where the statute passes strict scrutiny and the state actually has tried the solutions that it claims don't work that is not this case the government does not claim its restriction capacity excrete me they didn't say it would be impossible they said it would be hard forty nine other states do different things the federal government protects peaceful speech in the face lock face is a great example of something that deliberately gets at the problem and if somebody is in the doorway and they need to get out of the doorway the answer is sir please get out of the doorway it is not dragging mrs mcallen off the president because she has a consensual conversation twenty five feet away from the doorway that's an extraordinary power for the government to ask to selectively control speech among willing participants on public sidewalks thank you very much thank you council cases submitted