John G. Roberts, Jr.: We will hear argument first this morning in Case 12-1168, McCullen v. Coakley. Mr. Rienzi.
Mark L Rienzi: Mr. Chief Justice, and may it 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 leafletting, 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 in preventing obstruction and congestion. But the law is not narrowly tailored 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. McCullen generally does her counseling early in the morning on Tuesdays and Wednesdays beginning at 7:00 o'clock in the morning. She testified that she is sometimes alone when she does this counseling. Nancy Clark testified that 90 percent of the time that she is at the clinic in Worcester, she is all alone. A statute that makes it illegal for Mrs. McCullen or Mrs. Clark to engage in peaceful, consensual conversation on a public sidewalk for fear of obstruction and congestion is not narrowly tailored.
Ruth Bader Ginsburg: Mr. Rienzi, the problem that the State faced is it doesn't know -- and it has a history, there was a considerable history of disturbances and blocking the entrance, and it doesn't know in advance who are the well-behaved people and who are the people who won't behave well. So -- and after the disturbance occurs, it's too late. So the State is trying to say, We want to make sure that the entrance is not blocked, and the only way we can do that is to have a rule that applies to everyone. We can't -- we can't screen people to know who will be well behaved and who will be disruptive.
Mark L Rienzi: 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 toolbox 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 interests that the State asserts when it makes that argument, Justice Ginsburg. First, they say that there are actual deliberate bad actors. All right. There are some people whom the State claims have deliberately violated the law and blocked the door and interfered with access. And then secondly, the State says there is also some circumstances where there are enough people on the sidewalk that even lawful, consensual conversation might accidentally block the 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 E of this statute makes it illegal to impede, block, obstruct or even hinder somebody's access to the clinics. And that section of the statute is not challenged here and never has been.
Antonin Scalia: 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 clinic?
Mark L Rienzi: So I believe the last cite in the record that I'm aware of is, as of 1997, there was a decision in a previous injunction case against people who had been adjudicated to have broken rules. There is a 1997 case on that. To my knowledge, they've never brought a case, for example, under the Federal FACE law, which has been in existence for 20 years.
Antonin Scalia: So there have been laws against obstruction during this entire period, right?
Mark L Rienzi: There have been laws against obstruction the entire time.
Antonin Scalia: And you say that only once, in 1997, that was the last time a prosecution was brought.
Mark L Rienzi: And that was an injunction against prior bad actors. That was not a FACE prosecution or a Section E prosecution.
Sonia Sotomayor: You are not taking the position that 1997 was the last time an entrance was obstructed or that the police were called to open access to a clinic? Are you taking that position that the last time it happened was 1997?
Mark L Rienzi: I frankly don't -- I couldn't say that I know the last time it happened.
Sonia Sotomayor: But you do know that in the record there were more examples?
Mark L Rienzi: 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--
Elena Kagan: Mr. Rienzi, the State says, of that particular tool, that it's a hard thing to prosecute because you have to show intent, and there is a lot of obstruction and interference that goes on naturally just because there are a lot of people around. So that is an insufficient tool is what the State argues.
Mark L Rienzi: --Yes. And so to the extent, what the State is saying -- to the extent the State is claiming that 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 there is not a problem anymore, or they don't, in which case, intent is pretty clear. Amicus United States has prosecuted, I think more than 45 cases and gotten more than 70 convictions under that statute.
Elena Kagan: 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.
Mark L Rienzi: And so I agree that's the second part of the State's argument. 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 happened 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 is no reason to believe the police can't simply say, Move out of the doorway. And if someone is in front of the doorway, they certainly should do that.
Samuel A. Alito, Jr.: Does the record show how many clinics in the State are covered by the law?
Mark L Rienzi: I believe there are 11 or 12 clinics in the State. So long as they are freestanding abortion clinics they fall within statutory definitions.
Stephen G. Breyer: How far do you want to go in your concession? Would you want to concede this point that imagine the State has two groups of people and one group feels what 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, at 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. And we are not saying which group is which; the analogy is obvious, but 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 35-foot boundary? You want to concede that and say, okay, but the evidence here didn't doesn't justify it, or do you want to fight that, too?
Mark L Rienzi: So, no, I do not mean to concede that. I don't think -- I think a solution that is done with painted lines on the sidewalk that says--
Stephen G. Breyer: But now you are into the details. I want to know about the principle. I mean, I can imagine the principle applying special care and need must be taken outside of hospitals for veterans, even though there are some who are very much opposed to the war, because these people will be coming out, they'll be in wheelchairs, it will be terrible. And others thinking -- you know, we can think of many, many situations, irrespective subject matter, where there is a need for such refereeing. And I just want to know if the -- if the concept is okay with you or if not.
Mark L Rienzi: --Generally--
Stephen G. Breyer: With the details.
Mark L Rienzi: --Generally speaking, no. I don't think the concept that--
Sonia Sotomayor: So protestors like the one we had in the Schneider case at a funeral of a veteran can go right up to the public sidewalk outside the church and put up the signs that they did and give out the leaflets that they did, talking about that veteran in the ways that they did? That's okay by you.
Mark L Rienzi: --So -- so, a couple points about that. One--
Sonia Sotomayor: There was no evidence there that they were -- that they were disruptive. They were just expressing their First Amendment rights.
Mark L Rienzi: --So I think that that--
Sonia Sotomayor: But there is the potential for disruption because of the strong sentiments around that.
Mark L Rienzi: --Agreed. I think a statute that worked the way the 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.
Antonin Scalia: In Schneider, they were held not so far back that their shouts and protests couldn't be heard. Isn't that the case? They could still be heard--
Mark L Rienzi: I think it made--
Antonin Scalia: --out of--
Mark L Rienzi: --perhaps were part of the funeral procession that passed by. I don't think they--
Stephen G. Breyer: Do you see now why I am trying to narrow it? Because in my case, in Schneider, I thought it was pretty important that the demonstrators were behind a hill somewhere and the police restricted where they could go. Many states have enacted similar laws, and I thought that's important, because maybe it would have come out differently. I mean, you could argue about it, and I could. So I'm trying to narrow it. I'm trying to see to what extent do I have to look at this particular set of facts, in which case we are into the hearings, et cetera; 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.
Mark L Rienzi: --So the matter of very broad principle is that a law that makes it illegal to even engage in consensual conversation, quiet conversation, on a public sidewalk, an act that makes that a criminal act for which Mrs. McCullen can go to prison, I think, is not permissible under the First Amendment. If you compare it to, for example, the Federal military funeral protest law, that law is specifically drawn to acts that disrupt the peace and good order of the funeral, and I think that is different.
Elena Kagan: But are you saying that 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 25 feet around a funeral, or 25 feet around any facility, that that's never permissible?
Mark L Rienzi: 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 precision of regulation is required. One difference, if it's a rule around any facility or a rule around all funerals, for example, is that -- that there isn't nearly as much distortion of the marketplace of ideas as happens when you do what Massachusetts did here, which is pick--
Elena Kagan: Well, 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 and out of slaughterhouses. And a State passes a regulation that 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 and let's call it 30 feet, because it's very hard to enforce anything else. I guess my reaction to that hypothetical -- you -- you must have used it for me to say, oh, that's terrible. But my reaction, my intuition was kind of what's wrong with that? Just have everybody take a step back. So what is wrong with that?
Mark L Rienzi: --So what's wrong with that is a couple of things. One, again, this Court's decisions require precision of regulation. So an injunction, for example, against groups and individuals like Madsen and Schenck, 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.
Samuel A. Alito, Jr.: In one of the examples that is given in one of the amicus briefs in this case, and they -- they provide a lot of background, is a State law that creates a buffer zone around every fraternal lodge. What would you say about that?
Mark L Rienzi: I think it is difficult to imagine the government interest to -- well, 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 anyplace there's a fraternal lodge, I would say that -- that should not be permissible under the First Amendment. I think, generally speaking, the idea of the government picking one particular item and saying, well, around this, suddenly the character of the public forum 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 is 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 leafletting--
Elena Kagan: But let's go back to the slaughterhouse case. I mean, there might be people who say it's really important to us 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 chants 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 -- 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.
Mark L Rienzi: --To be clear, Your Honor, I'm not saying the government has to let it go on. I'm saying the government has tools that are better drawn to it than eliminating even the peaceful, consensual conversation.
Anthony M. Kennedy: But suppose -- and this is still Justice Kagan's question -- suppose it were a given, assume that those laws just did not work. Could there then be consideration of a buffer zone? Now, this is a hypothetical that I'm sure that you wouldn't accept in the context of your case, but suppose.
Mark L Rienzi: Suppose it were a given that there is no way to keep the abortion clinic open--
Anthony M. Kennedy: The laws simply do not -- reference to obstruction and blocking entrance, simply do not work.
Mark L Rienzi: --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 it.
Stephen G. Breyer: Okay. So that -- now, at this point -- that was a better way of getting what I was trying to get at. Just assume that there is -- let's look at the narrow part of the case, and let's assume that the Colorado case is right. And this particular restriction is more a 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 -- as long as those hearings are -- are legitimate hearings and they have good explanation on something like whether the zone is 8 feet and consensual or whether it's 35 feet and different amounts of sidewalk, depending on the nearness 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?
Mark L Rienzi: So -- so, on this detail, what -- what I think the Court should look for is, for example, had they had a -- the State said they did not even convict a single person of one unconsensual--
Stephen G. Breyer: But you understand that. We all understand that. It's one thing to try to prove an intent on such matters, particularly when people are, in good faith, they're trying to explain it, and it's another thing to actually stop the congestion and to protect the interests 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, et cetera. So there are two interests, one on each side. We know 8 feet with the bubble is okay. We're not sure about 35 feet, and they have an evidentiary record.
Mark L Rienzi: --So, a few things. One, the reasons this Court gave in Hill for allowing the 8-foot no-approach zone was precisely that it only was about protecting unwilling listeners and it did not stop discussions with willing listeners. There are real people--
Antonin Scalia: --Counsel, do you accept that the record here shows that it did not work well in the sense that Justice Breyer--
Mark L Rienzi: --No, not at all.
Antonin Scalia: --seems to use it?
Mark L Rienzi: I understood I was being asked to assume that.
Antonin Scalia: As I recall the record, all -- all it says is that the police found it difficult to apply a bubble; that, you know, they have to measure 8 feet or whatever it is. They didn't say that massive obstruction and protests are occurring, preventing people from -- that wasn't the finding, was it?
Mark L Rienzi: No. I -- I agree, it was not. The claim was--
Stephen G. Breyer: That's why I just asked you that question. It just happens that the police testify with some evidence and examples that the 8-foot bubble doesn't work. 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 10 feet. I mean, the difference is about half -- you know, if you were near me, Price is near Colorado. If we're over to where the first row is, we'd have Massachusetts, and -- and they have some evidence that we can't enforce this Colorado thing very well; it doesn't help. Now, go ahead. I want your answer.
Mark L Rienzi: --I -- I agree, but if--
Stephen G. Breyer: I'm not trying to put words--
Mark L Rienzi: --if you sent me 35 feet further back and asked me to make my argument from there--
Stephen G. Breyer: --I'd hear you.
Mark L Rienzi: --You might hear me, but I would suggest you'd -- you'd receive it quite differently. If I were sent back there, but the clinic -- or 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. And what we have here is--
Stephen G. Breyer: I'm not denying the difference.
Mark L Rienzi: --Yeah.
Stephen G. Breyer: I am asking you, we've 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 thereof, that means that the Constitution intervenes to prevent Massachusetts from doing it.
Mark L Rienzi: So the constitutional narrow tailoring test under the time, place, and manner test requires that the law not restrict substantially more speech than necessary to serve the government's interest. Here--
Ruth Bader Ginsburg: How much is -- how much is restricted? How -- how long does it take from when you enter the buffer zone until you reach the clinic entrance?
Mark L Rienzi: --If -- if you're walking nonstop, I assume 7 to 10 seconds or something like that.
Ruth Bader Ginsburg: So the conversation can go on before those 7 to 10 seconds.
Mark L Rienzi: Yeah.
Ruth Bader Ginsburg: There's not much you're going to be able to do to have a conversation that will persuade people in 7 to 10 seconds.
Mark L Rienzi: I respectfully disagree on that last point, Your Honor. The evidence in this record is that the -- the inability to speak with people close to the clinic has a dramatic effect on the Petitioners' 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. Now, 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.
Antonin Scalia: And if you know they're going to the clinic.
Mark L Rienzi: And if you can identify the audience early enough. But, for example, places like Worcester and 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 35 feet back and do that, the evidence here shows there's essentially zero chance to reach that audience. So it is--
Elena Kagan: But isn't that more a function that they just have a private parking lot? So even if this law 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.
Mark L Rienzi: --No, Your Honor. 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 35 feet back is what makes it impossible to make the offer. Many people would just drive on by, 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 Worcester and Springfield, to offer it.
Elena Kagan: Is there a buffer zone that you would concede is permissible? In other words, if it were 12 feet, would that be all right?
Mark L Rienzi: So, as the size of the zone decreases, I think the -- 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. 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.
Elena Kagan: Well, but that goes back to Justice Ginsburg's question. I mean, how is a law supposed to deal with -- with that, sort of the fluctuating conditions that may be at a particular clinic site?
Mark L Rienzi: That's -- 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 -- amicus brief 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 in Boos v. Barry.
Antonin Scalia: It is the case, isn't it, that not only abortion counselors are -- are excluded from this area, everybody is, right? Anybody who wants to talk to anybody or who just wants to be there--
Mark L Rienzi: So--
Antonin Scalia: --can't -- I mean, this is a -- a dead speech zone, right?
Mark L Rienzi: --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 essentially turn off the First Amendment. But the government says--
Elena Kagan: It's more than a speech-free zone. It's also a conduct-free zone, right? You can't sell hats there, you can't, you know, beg there. I mean, you just can't go there.
Mark L Rienzi: --I agree the government has eliminated more than speech on that sidewalk, but they've eliminated speech on that sidewalk as surely as in the Jews for Jesus case.
Elena Kagan: It's still a thoroughfare--
Samuel A. Alito, Jr.: Well, they haven't entirely eliminated speech because employees are permitted--
Mark L Rienzi: Yes.
Samuel A. Alito, Jr.: --to speak within the scope of their employment; isn't that right?
Mark L Rienzi: Thank you, Justice Alito. Yes. So they haven't eliminated speech for all people. They have--
Ruth Bader Ginsburg: Well, that's a -- a contested point because the Attorney General reads ‶ scope of employment ″ to mean getting to my job and leaving my job, and does not include speech activity.
Mark L Rienzi: --So on the face of the statute, I don't that -- that that interpretation doesn't do very much. That statute--
Ruth Bader Ginsburg: This is the -- the chief legal officer of the State says this is a term that needs to be interpreted. The term is ‶ scope of employment ″. Scope of employment within this statute means getting to work and leaving work, and it doesn't mean political speech.
Mark L Rienzi: --So the Attorney General says it's more than just getting to work and leaving work. It 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 the problem that the Ninth Circuit sought in the Hoyt case, which is if the clinic is allowed to use that sidewalk, even just to say, "good morning, may I help you into the clinic. " and the government says that's a valid use of our public sidewalks, but the State says Mrs. McCullen 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 indubitably content-based. The government doesn't get to decide that the public sidewalk -- which it leaves open for people just walking by, right? If I'm going down that sidewalk to get a cup of coffee, it's fine.
Anthony M. Kennedy: Well, am I correct that the Attorney General's regulation with respect to employees of the clinic in a way made this even more content-based because there was a prohibition on discussing the -- the abortion procedure?
Mark L Rienzi: I -- I agree. 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 won't arrest you when you talk on the sidewalk unless you talk about abortion, right? If you talk about abortion, then we'll 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. 93-94, "provided that the individual does not do anything else within the buffer zone, such as expressing their views about abortion. " So the government's saying you can walk through, but you can't talk about abortion.
Ruth Bader Ginsburg: But it's ‶ such as ″, it's ‶ such as ″. It says you can't talk about anything.
Mark L Rienzi: Well, I -- I agree. I don't think--
Ruth Bader Ginsburg: Well, it's not content -- it's not based on speech about abortion. It's that you can't speak about anything.
Mark L Rienzi: --Well, the -- the interpretation as to the employees that the Attorney General has proffered for 6 years is about speech about abortion. So it's not they can't talk about abortion--
Antonin Scalia: Excuse me. If -- if you're going through the zone just to get somewhere, not to get to the clinic, and you're walking with a companion, can't you speak to your companion as you -- it doesn't ban speech by everybody who's walking through.
Mark L Rienzi: --The Attorney General has 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't even wear -- that you can be arrested if you wore a Cleveland Indians shirt while you were just passing through. At this Court, they say that people passing through have speech rights. Either one is bad. Either way the government doesn't have the ability to say who gets to speak and who doesn't get to speak on an open public sidewalk. If I may reserve my time?
John G. Roberts, Jr.: Thank you, counsel. Ms. Miller.
Jennifer Grace Miller: Mr. Chief Justice, and may it please the Court: Petitioners can and do protest abortion in Massachusetts and they can do it in the public spaces right outside abortion facilities.
Antonin Scalia: This is not a protest case. These people don't want to protest abortion. They want to talk to the women who are about to get abortions and try to talk them out of it. I -- I think it -- it distorts it to say that what they want to do is protest abortion. If it was a protest, keeping them back 35 feet might not be so bad. They can scream and yell and hold up signs from 35 feet. But what they can't do is try to talk the woman out of the abortion. It's a counseling case, not a -- not a protest case.
Jennifer Grace Miller: It -- Your Honor, I would say it's a congestion case. Certainly, Ms. McCullen 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. McCullen--
Elena Kagan: Well, it's more than a few feet. You know, 35 feet is a ways. It's from this bench to the end of the court. And if you imagine the Chief Justice as sort of where the door would be, it's most of the width of this courtroom as well. It's -- it's pretty much this courtroom, kind of. That's a lot of space.
Jennifer Grace Miller: --Just 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 a recessed door and the 35 feet is measured from the door. So it's actually only about 23 feet.
Sonia Sotomayor: I thought it was two car lengths.
Jennifer Grace Miller: I'm sorry?
Sonia Sotomayor: Two car lengths.
Jennifer Grace Miller: I'm sorry. I didn't hear you.
Sonia Sotomayor: Two car lengths.
Jennifer Grace Miller: Two car lengths. Exactly right, Your Honor.
Sonia Sotomayor: That's, I think, a little less than this courtroom.
Jennifer Grace Miller: We measured this courtroom.
Stephen G. Breyer: I'd just like you to go back to Justice Scalia's question for one second. I didn't hear the -- as 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.
Jennifer Grace Miller: Well, certainly, there's a picture of a calm conversation--
Stephen G. Breyer: No, the evidence upon which Massachusetts based its decision to go to 35 feet instead of 8 feet. There were hearings. Did the evidence show that what was involved was calm conversations between one person trying to counsel another or did the evidence show something else?
Jennifer Grace Miller: --Certainly, the evidence showed something else.
Stephen G. Breyer: What?
Jennifer Grace Miller: Experience showed that there had to be a certain amount of space around the facilities. What we had, for example, were pro choice advocates swearing and screaming at pro life advocates within the buffer zone. That's at Joint Appendix 26 through 28. You had the Pink Group, which is a pro choice organization, pushing and shoving and jockeying for position.
Antonin Scalia: Well, surely you could have a law against screaming and shouting within 35 feet or protesting within 35 feet. Isn't that more narrowly tailored? I mean, 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 clinic.
Jennifer Grace Miller: But, again, experience showed that even individuals who wanted to engage in close, quiet, peaceful conversation were creating congestion around--
Stephen G. Breyer: Rather -- I note there's some people who are peaceful, in which case I would accept Justice Scalia's suggestion this is a counseling case. But you've cited some other evidence that suggests there were other people who were 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? Why do people write statutes that sometimes do not make these fine distinctions? Why did they in this instance?
Jennifer Grace Miller: --They didn't make a fine distinction, Your Honor, because it didn't matter whether people were being peaceful or whether they were--
Stephen G. Breyer: Could you have written such a statute that would have worked?
Jennifer Grace Miller: --It would have been very difficult to write such a statute, Your Honor.
Elena Kagan: How did you pick 35 feet? Why 35?
Jennifer Grace Miller: 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 v. Bell, which is cited at page 2 of our brief, there was actually a 50-foot buffer zone imposed by a district court judge in Massachusetts. We knew from, of course, Madsen and Schenk, that 36-foot buffer zones were acceptable in -- when you were being responsive to that kind of problem; and we knew that a 15-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 35 feet as a reasonable response, a reasonable amount of space around the facility to allow--
Stephen G. Breyer: To go to -- go back for a 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 too fine a distinction. The activity is commingled. The activity -- all right. Now, I knew you were just going to nod my -- your head as soon as I said that. So I was trying to get you to say it 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 that?
Antonin Scalia: You should say yes. [Laughter]
Jennifer Grace Miller: --And I will. [Laughter]
Stephen G. Breyer: She can't say yes if it isn't there, because I'm going to ask her where because I want to read it.
Jennifer Grace Miller: I will of course, Your Honor. The best description of that is, of course, Commissioner Evans's description of the space functioning like a goalie's crease.
Anthony M. Kennedy: Well, let -- let me ask this question: Assume it to be true that an elderly lady who was quite successful and had meaningful communication with over 100 women going into the clinic, before this law, was unable to talk to even one after this law. Assume that's true. Does that have any bearing on our analysis? And does that have any bearing on Justice Breyer's question about whether or not a law can be written to protect that kind of activity but still to prevent obstruction and blocking?
Jennifer Grace Miller: I -- I think, Your Honor, that no one is guaranteed any specific form of communication. So, there is no guarantee, as a doctrinal matter, 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 example, the situation--
Anthony M. Kennedy: You say there's no -- no guarantee of talking quietly?
Jennifer Grace Miller: --There is--
Anthony M. Kennedy: Do you want me to write an opinion and say there's no free speech right to quietly converse on an issue of public importance?
Jennifer Grace Miller: --Generally on the public sidewalk. But, of course, that right is tempered by the -- the State's interest in making sure that the public sidewalks function as they should and that there is peace and good order. But I would give you an example, Your Honor. I'd -- I'd point you--
Anthony M. Kennedy: I still don't know where you're going to -- this -- this goes to Justice Breyer's question. You -- you cannot write an ordinance that says obstruction, 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.
Jennifer Grace Miller: --Your Honor, 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 the State's--
Anthony M. Kennedy: But in speech cases, when you address one problem, you have a duty to protect speech that's -- that's -- that's lawful.
Jennifer Grace Miller: --You do. As long as your protection is narrowly tailored to your interest, you--
Anthony M. Kennedy: But I -- 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 Justice Breyer's question.
Jennifer Grace Miller: --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 find--
Samuel A. Alito, Jr.: May I ask you a question about a distinction that is in this statute? Now, let me give you this -- this example. A woman is approaching the door of a clinic, and she enters the zone. Two other women approach her. 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 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. 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?
Jennifer Grace Miller: --Your Honor, I think what the 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 -- 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 doing, not what she's saying.
Samuel A. Alito, Jr.: Well, that's what she -- what she's doing is what she's saying. She approaches and she says this is a safe facility. The other one says it's not a safe facility. They have a bad safety record. And they're -- they're the only people in the zone.
Jennifer Grace Miller: Right.
Samuel A. Alito, Jr.: If it's as big as this courtroom, they're the only three people in that zone.
Jennifer Grace Miller: Right.
Samuel A. Alito, Jr.: The difference is a viewpoint difference.
Jennifer Grace Miller: The -- what the legislature has done is that it has created a circle around these entrances and has only permitted particular conduct within that buffer zone to allow the 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 respect--
Antonin Scalia: I don't understand it. It's a permissible purpose to say this is a safe facility, but not a permissible purpose to say this is an unsafe facility?
Jennifer Grace Miller: --The--
Antonin Scalia: Is that--
Jennifer Grace Miller: --The statute is not focused on that person's speech. The statute is focused on -- on what they're doing in the buffer zone.
Anthony M. Kennedy: But the consequence is just what is described by Justice Scalia; that is, the consequence of the statute. Are you saying that the consequences of what you write are irrelevant to this argument?
Jennifer Grace Miller: Certainly, I wouldn't say that, Your Honor. However, with respect to--
Anthony M. Kennedy: It seems to me that you should answer Justice Scalia's question, then.
Jennifer Grace Miller: --With respect to viewpoint discrimination, Your Honors, the statute has a perfectly legitimate sweep. It allows people to go in and out of the building. It allows pedestrians to go -- move back and forth across the sidewalk, and it allows for even employees, the snow shovelers mentioned in the Walter Dell brief.
Samuel A. Alito, Jr.: Well, you could have created a completely silent zone. 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. People can shovel snow. If they work for the -- for the clinic, they can sweep the sidewalk, they can do maintenance, they can go in and they -- and out, but they can't utter a word. Well, that would be a different statute. But that's not this 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 a safe facility is within the scope of their employment.
Jennifer Grace Miller: Right.
Samuel A. Alito, Jr.: So how do you justify that? Forget about the conduct now. The speech that's allowed. One can speak and say it's safe. The other cannot speak and say it is not safe.
Jennifer Grace Miller: What I would argue, Your Honor, is that speech in that particular circumstance of the employee actually doing her job and not unnecessarily cluttering the buffer zone, what -- then that speech is simply incidental to the permissible conduct. And it doesn't make the statute on its face -- it doesn't make it viewpoint-discriminatory. Because as I said--
Samuel A. Alito, Jr.: You think it's incidental? What if there's a real question about whether this is a safe facility? That's incidental speech?
Jennifer Grace Miller: --It's incidental to her performing her job. And, Your Honor, it -- if there were a circumstance where that kind of speech were 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 the case that there's viewpoint discrimination actually happening in the buffer zone.
Anthony M. Kennedy: It's very hard for me to credit the statement or the implication that for an employee to say, "We're glad you're here. " "You're going to be well taken care of. " "This is a safe facility. " "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.
Jennifer Grace Miller: It's incidental to the permissible purpose for which they are allowed in the buffer zone. And I should point out, actually, that PPLM -- and again, this is in the Walter Dillinger brief at page 2A -- 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.
Elena Kagan: Well, that raises another question, Ms. 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. Rienzi says, look, if it's at one facility, not all ten of them or whatever it is, and it's only for certain periods of time, not all day every day, you know, why not narrow it that way?
Jennifer Grace Miller: Right.
Elena Kagan: So why not?
Jennifer Grace Miller: Because the experience has shown that you do have problems at Worcester and Springfield, and those problems do center around the driveways. 85 to 90 percent of 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'd -- 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's at Joint Appendix 41. You'd have individuals stopping and standing and refusing to move in Worcester. 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. That's at J.A. 19. So there definitely was conduct that was a problem, and it wasn't even that there are a couple of lone protestors in Worcester or Springfield. There are events in Worcester and Springfield. There are regular protestors there every week, first of all. And second of all, the crowds get much larger at the semi-annual--
Antonin Scalia: --I -- I object to you calling these people protestors, which you've been doing here during the whole presentation. That is not how they present themselves. They do not say they want to make protests. They say they want to talk quietly to the women who are going into these facilities. Now how does that make them protestors?
Jennifer Grace Miller: --Your Honor, the problem, of course, that the statute was looking to address was not with protestors, per se. It was with people who had a desire to be as close to the facility doors and driveways as possible to communicate their message. But the result of that was congestion around these doors and driveways. So it wasn't a concern about the protest; it was a concern about people actually being able to use--
Elena Kagan: And I would think, Ms. Miller, that if you tried to do a statute that distinguished between protestors and counselors, that would be content-based much more than this statute is.
Jennifer Grace Miller: --I would agree.
Elena Kagan: I mean, but -- you know, which is not to say that this 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.
Jennifer Grace Miller: Again, the experience. We've had quite a long experience in Massachusetts, a long history of crowds around these doors or of even violence at the 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.
Samuel A. Alito, Jr.: Well, before you sit down, can I ask you this question that's suggested by the AFL-CIO briefs. 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 in. Could the -- could a State pass a statute that says there is a 35-foot zone like this around every location in the State whenever there is a strike and there are replacement workers? Could they do that?
Jennifer Grace Miller: Right. Well, of course labor actions are protected by Federal law, so any State law couldn't directly conflict with the--
Samuel A. Alito, Jr.: All right. Could Federal law do that?
Jennifer Grace Miller: --Well, this Court has repeatedly upheld restrictions on labor activity, if given the right record. So there is -- so the answer is yes, the First Amendment would permit regulation on the record--
Samuel A. Alito, Jr.: In every case, in every case--
Jennifer Grace Miller: --No, no, no.
Samuel A. Alito, Jr.: --there could just be a flat rule. Doesn't matter whether there is any history at that place, any indication there's going to be violence. Maybe there will, maybe there won't. Across the board, a zone around every place where there's a strike.
Jennifer Grace Miller: 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 the solution--
Samuel A. Alito, Jr.: You don't think there's a history -- you don't think there's a history of violence at places where there are strikes and replacement workers?
Jennifer Grace Miller: --Well, I don't think there has been the kind of history and sustained violence that we've had -- this almost unique record in Massachusetts with respect to facilities. But Your Honor, I would say--
Samuel A. Alito, Jr.: That's not my understanding of the labor history.
Jennifer Grace Miller: --does not have is--
Sonia Sotomayor: Is there any abortion clinic that has not had -- is there any abortion clinic that has not had a problem in Massachusetts?
Jennifer Grace Miller: --In -- there was, when the legislature was considering the statute, there was a survey submitted by NARAL 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 their facilities. Eight of them said, at the very least, they had regular protestors. There were two who did not report that there was a significant problem.
Antonin Scalia: This is testimony by the -- by the clinics themselves, right?
Jennifer Grace Miller: Correct. Thank you, Your Honors.
John G. Roberts, Jr.: Thank you, counsel. Mr. Gershengorn.
Ian H. Gershengorn: Mr. Chief Justice, and 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--
Sonia Sotomayor: Which of our -- which of our precedents do you think governs this case?
Ian H. Gershengorn: --So, Your Honor, I think that there are a number of precedents that are helpful. Madsen, of course, upheld the 36-foot buffer zone that had a no-speech zone very much like this.
Ruth Bader Ginsburg: That was an injunction.
Ian H. Gershengorn: It was an injunction, Your Honor, but it was upheld under an even stricter standard that -- that is applies here. But even aside from that, I think a number of the pillars of Petitioners' arguments here are directly contradicted by this Court's precedents. So, for example, the idea that -- that unrestricted -- that you have the right to choose the best mechanism of communication is contradicted by Hefernon and by Frisby. In Hefernon, there was -- the Petitioner 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 channels -- alternative channels over in that booth. In Frisby, what the protestor wanted to do was target a house, and what this Court said in Frisby was you have alternative channels of communication. You can go door to door. You can mail things. You can make calls. So I think that that pillar of the -- of the argument--
Antonin Scalia: What's the alternative here?
Ian H. Gershengorn: --The alternative--
Antonin Scalia: Standing 35 feet away and yelling?
Ian H. Gershengorn: --No, Your Honor.
Antonin Scalia: Is that the alternative?
Ian H. Gershengorn: No, Your Honor.
Antonin Scalia: To comfort these women?
Ian H. Gershengorn: No, Your Honor. The alternative in this case is the entire length of the sidewalk, quiet counseling, leafletting, and conversation is permitted. It is the last four to five seconds before the petition -- before the counselors enter the clinic that--
Antonin Scalia: They don't know who's going into the clinic.
Ian H. Gershengorn: --Your Honor, the testimony--
Antonin Scalia: Until you get to the area close to the clinic, you don't know whether passersby are going there or not.
Ian H. Gershengorn: --Your Honor, the testimony is actually to the contrary, that they get -- that Ms. McCullen and others get quite good at identifying who is going and is not going into the clinic. And actually -- so what we're talking about is the last four to five seconds before they go in. And Justice Kagan--
Anthony M. Kennedy: Is your concern that, absent this statute, there will be physical obstruction to the entrance? Is that a major concern?
Ian H. Gershengorn: --So, Your Honor, let me address that. The answer is -- the answer is yes, but that's not all. What the legislature had before it, and Justice Breyer--
Anthony M. Kennedy: Let me ask, if that's -- if that's your concern, how many Federal prosecutions were brought in Massachusetts for physical obstruction under the Federal statute?
Ian H. Gershengorn: --Your Honor, I'm not aware of the number. There are 45 FACE prosecutions nationwide. But FACE is a very different statute. The criminal prosecutions in FACE are for -- are for murder, arson, and for chaining yourselves to doorways. They are not for the kind of quiet counseling and -- and picketing that's at issue here.
Anthony M. Kennedy: But the Federal interest that you're the defending is you don't want this physical obstruction statute to be misinterpreted.
Ian H. Gershengorn: That's right.
Anthony M. Kennedy: But what's wrong with the physical obstruction statute as an answer to many of the problems that Massachusetts is facing?
Ian H. Gershengorn: Your Honor, I don't think it's at all an answer to the problems Massachusetts 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. What FACE Act is talking about is murder, arson, and chaining to doorways. What this statute is getting at is something quite different. It is congestion in front of doorways. It is people -- individuals handing out--
Anthony M. Kennedy: That's obstruction under the Federal statute.
Ian H. Gershengorn: --It is not, Your Honor, because those are specific intent crimes in both Massachusetts and in the Federal statute. The -- for example--
Anthony M. Kennedy: Justice Holmes said even a dog knows the difference in being stumbled over and being kicked.
Ian H. Gershengorn: --So, Your Honor--
Anthony M. Kennedy: Can't -- can't -- you're saying Federal prosecutions can't tell when people are deliberately obstructing--
Ian H. Gershengorn: --I'm saying--
Anthony M. Kennedy: --this is beyond -- this is beyond the realm of the law?
Ian H. Gershengorn: --I'm saying what's at issue here, Your Honor, is not that kind of -- of deliberative obstruction. What the testimony before the legislature was, was that there was a congregation of people and the massing of people. That indeed, there were Pro Choice protestors in the zone who have -- certainly are not intending to obstruct. And it was -- so what they were dealing with was quiet counseling leading to -- counter-counseling leading to congestion in front of the doorways. There 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 -- that are at issue in the specific intent crime in Massachusetts and the FACE Act do not get at the kind of peaceful, quiet, yet congesting and disrupting conduct that is at issue here. And, Justice Breyer, I would urge you to look at the Evans testimony at Joint Appendix 67 to 71. The Hefernon testimony at 79 to 80. The Coakley testimony of JA-51, and the Capone testimony at JA-19. There are specific arguments as to why these did not work. The argument Petitioners make here, Your Honors, 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 submit, and that the lower courts have found are -- are needed. Justice--
Samuel A. Alito, Jr.: Well, how far do you think -- what do you think a State legislature or Congress needs to find in order to establish a zone around some category of facility at which there -- they have some evidence that there have been some disruptions and some obstruction?
Ian H. Gershengorn: --So, Your Honor--
Samuel A. Alito, Jr.: Take the example of -- I think it's -- it's a real -- real ordinance someplace you can't have, there's a buffer zone around fraternal lodges.
Ian H. Gershengorn: --So, Your Honor, I'm not aware of the history of fraternal lodges, but what's at issue here is really--
Samuel A. Alito, Jr.: What would they have to find? Or slaughterhouses. Or labor -- or sites where there are strikes.
Ian H. Gershengorn: --So I think -- I think, for example, in the slaughterhouse or what they found in -- around circuses and conventions is the idea that there is massing of people that prevents the orderly ingress and egress to and from the facilities. What the State was dealing with here was not an isolated incident, but the State had 14, 15 years of history of the massing. They had tried other things. They had tried the statutes that Justice Scalia identified. They had tried a narrower buffer zone, and 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 measuring consent, evaluating what does--
Samuel A. Alito, Jr.: What kind of a record do they need? Could -- could there be a State law that says no picketing around any -- you can never have a picket around any store to try to prevent people -- to tell people don't go -- don't patronize this store. Could they do that? Isn't that Thornhill v. Alabama?
Ian H. Gershengorn: --Right. And what -- actually, in Thornhill, they struck that down.
Samuel A. Alito, Jr.: Right.
Ian H. Gershengorn: But it was very different from this statute. Thornhill's was you can't go anywhere near the facility and it was -- it was only one type of speech. This is content neutral and it is -- it is a narrow buffer zone. Justice Kagan, I really urge you to -- because--
Samuel A. Alito, Jr.: Well, I mean, I understand. Stop. I'll ask this one more time.
Ian H. Gershengorn: --Yes.
Samuel A. Alito, Jr.: I think it's -- I understand the -- the desire to create a buffer zone around certain sensitive facilities. What I'm asking is: What requirements, if any, does Congress or a State legislature have to meet before they can do that? If it is done, do we simply say they -- they have a rational basis for it and that's it, so they can establish basically a buffer zone around any kind of a facility they want. If not, then what needs to be established?
Ian H. Gershengorn: So, Your Honor, 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 -- 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 1994. 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 it take to support a broader statute? It's hard for me to say, but I think this record shows. Justice Kagan, can I--
Samuel A. Alito, Jr.: One more thing. What about the example of a strike? There certainly is a long history of labor violence in places where there are replacement workers. Could that -- could it be done in that situation across the board?
Ian H. Gershengorn: --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.
Stephen G. Breyer: What kind of--
Ian H. Gershengorn: Justice Kagan, the testimony is 22 feet from the entrance in Boston, 22 feet from the edge of the doorway to the edge of the -- of the buffer zone. It is from me to the marshal. It is not to the back of the courtroom. It is -- it is an NBA 3-point zone. I don't -- it is not the--
Stephen G. Breyer: --But I understand you're saying the reasonableness of it. [Laughter] But go back to Justice Alito's first question. Maybe we can make some progress here. The regulation of labor is up to the NLRB. All right. Now, the NLRB does regulate picketing. It does say what you can do and can't do, and the courts have reviewed that. And you -- what standard do courts use when the NLRB decides, in its wisdom and expertise, well, the pickets can go here, but they can't go there. You can do this, but you can't do that. All of which have speech implications. What standard of review do the courts use?
Ian H. Gershengorn: --Your Honor, I am not aware of the standard they use, but it is a--
Stephen G. Breyer: Are you aware of any case -- I'm putting it -- loading it because -- only because to show my ignorance of it -- where the standard has differed from the ordinary APA standard?
Ian H. Gershengorn: --I'm not, Your Honor. I'm not aware of cases one way or the other.
Stephen G. Breyer: Should we create a new standard for reviewing this kind of regulation? I think that's actually a serious question.
Ian H. Gershengorn: I don't think so, Your Honor. Thank you.
John G. Roberts, Jr.: Thank you, counsel. Mr. Rienzi, you have three minutes remaining.
Mark L Rienzi: Thank you, Mr. Chief Justice. Several points. First, it's not impossible to draw a statute to deal with the problems. 49 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.
Elena Kagan: Is that true, Mr. Rienzi? Is Massachusetts' statute the only one of this kind?
Mark L Rienzi: It is the only State statute of its kind. There are a few municipal statutes of -- that are similar that are, frankly, based on the First Circuit decisions in this case. Secondly, here, the police officers testified 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 they need to get out of the doors, you should go to court and get an injunction and 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 abortion 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 Mrs. McCullen for her speech. Third, the United States mentions--
Sonia Sotomayor: Are you questioning the government's representation? I haven't looked at FACE.
Mark L Rienzi: --I don't believe the government--
Sonia Sotomayor: Is it limited to the three situations, to -- to murder, arson and chaining?
Mark L Rienzi: --Thank you, Your Honor. No, it is not. The statute is not remotely limited to that. I direct the Court to Section C -- I'm sorry, Section -- it's the definitions section of the statute. Definition 4, physical obstruction, includes even making entry unreasonably difficult. It is not at all solely for violence. It's for physical obstruction even making it unreasonably difficult. Counsel said that they brought 45 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 to pass strict scrutiny. They didn't say it would be impossible. They said it would be hard. 49 other states do different things. The Federal government protects peaceful speech in the FACE law. FACE is a great example of something that deliberately gets at the problem and if somebody's 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. McCullen off to prison because she has a consensual conversation 25 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.
John G. Roberts, Jr.: Thank you, counsel. The case is submitted.


Earl Warren: Mr. O'Connell, you may continue.
Felix Frankfurter: May I trouble you to tell me before you begin. How many days did this trial take?
John F. O'connell: Oh, it was the hottest -- hottest day of May and I think it took us four days. It was --
Felix Frankfurter: It was a short trial.
John F. O'connell: 13th, 14th --
Paul P. Waller, Jr.: 11th, 12th, 13th.
John F. O'connell: 11th, 12th, 13th and 14th of 1959. There's one question I would like -- one more thing on this statement, then I'd like to drop it because I think that probably the integrity of the attorney is just not quite as important as the constitutional rights of our client. But let me say, since we've been permitted to go completely outside the record that when I got the Government's brief, I was a lot more indignant than I appear to be here now and I call Cliff Ramer who is the United States Attorney. And I said, "Cliff, you know it isn't so." At first he said, "Well, John, he says that, "I think it's -- I think it's so." And I said, “Cliff, you know it isn't so. You weren't even in the courtroom.” And he said, "Well, I call all the agents together and they said it was so," and I said, "Cliff, I'm going to be before the Supreme Court. I'll make an affidavit in front of you. You'd better be here." And that was a long time ago and there's no affidavit and there's no Cliff. That's all I have to say about it. As Judge Frankfurter says, there could be certain things that may not necessarily be that you're lying but sure, he's got to be upset. Anyhow, I think that the point that the Government makes about the constitutional rights of the -- petitioners were not involved since this was addressed to a specific place, with specific property can -- is answered because in the Ford Case a long, long time ago, probably the landmark case, that same objection was made. And I -- I don't know how well I remembered it, but I've got it written down as -- best, I remember it. Property as a property cannot offend forfeit. And I remember this word, "Unlade, evade taxes or the like but only men whose goods they are." And I think that's a sufficient answer to the Government's contention because it wasn't addressed to North Sales Company. They were not involved. There had no cause to complain. The property was theirs. Mr. Friedman has given his definition of what at large means to him. Once again, I thought we were confined with the record. I'm going to adopt the definition of the Government's witness in -- in the record, which says, “At large means, you can do business anywhere." And these men weren't doing business anywhere. If you look throughout the record, I can name Plymouth, Benton, Vermont, Cucarola, Arrow all these different places. That's where they were doing business. In addition, there were telephones that they had at Lampi's, Manning's, Burns, they use those telephones. There wasn't one -- one proof that of depth was ever taken at 2300A State Street in the record or in the warrant. And that's the business that they're talking about, the business of accepting wagers. An old man's apartment is actually what it was, an old man's apartment and these fellows were there and they had their records there. There is -- Heckelbech says there's nothing wrong with doing business at large. And he is the man that we're supposed to know. And he says, "If there was -- if the -- the application was wrong, we would have sent it back." But the Government by stipulation says that we -- the stamp was issued on this application. And in our -- and the Government's accountants -- witness who was also the accountant of the petitioners stated that the application was never sent back. And I think if you look at page 13 of our appendix, you can see that there's enough time in there for an application to have been sent back if any corrections have been made. And there's -- the same exhibits since 1953, these "at Large" being crossed out. And I -- at the -- at large -- the Government is tracking itself by the regulations and everything else, but now they're operating at large -- they permitted them to operate at large for about four years and all of a sudden, they determined that they wanted -- considered this an offense. They say that -- that there is -- it's an illegal to do business without registry. There's nothing in the statute, the statute that says it's illegal to -- to do business without registering. The statute says it is a condition precedent to do -- do business, you must pay the tax. And that's all the statute says. And this Court said I think in (Inaudible), “You can't feed a statute by regulation." And that's what they've attempted to do by the regulation. Justice Frankfurter, you said you asked Mr. Waller a question and you said, “Well, you can't prove the substantive offense in the motion to suppress the evidence but this is one of the peculiar cases which occurred. There's no other case that I could think and I looked, and looked and looked. You can't find another case in the books where you can go in on a search warrant and show the judge, this crime has not been committed. Most of them, it's the same crime in the indictment. They couldn't file this crime -- put this crime in an indictment because they knew it wasn't committed. But we've proved to the judge that the crime wasn't committed. And he whistled himself out of it by saying, “Well, it's -- it's the instrumentalities for the offense of -- of violating the 10% wagering tax.” And it couldn't be the instrumentality, I mean if we're going to argue instrumentality, it's my position that these were the private books and records and they're -- they're sacred. And you can't violate the Fifth Amendment by just changing name and saying they're instrumentalities. But even if there were instrumentalities, what is an instrumentality? The Government has been playing on words in saying, “It is an instrumentality and defining it by repeating the word. An instrumentality means the means by which an offense has been committed." What is the offense of -- of falsely filing? When you filed that Form 730 and it's wrong, certainly that's the instrumentality. The offense has been committed and all of these other stuff is evidence. And the Government used this as evidence of private books and record. And to me, you can't change the Constitution by -- by words that -- or misconstruing words and that's what the Government attempted to do.
Potter Stewart: Your point is that if these were a grocery business instead of a gambling business that the ledgers and books of account of the grocery --
John F. O'connell: Certainly.
Potter Stewart: -- business would not be instrumental, it's a crime.
John F. O'connell: -- (Voice Overlap) -- the same provision to keep in record applies to the grocery, it applies to the gambler. And there -- and there's no question. In my mind, that the -- these records were admitted solely and purely as evidence. And it just sought us for you to say that these were instrumentalities of committing an offense.
Felix Frankfurter: Would the roulette wheel -- will the roulette wheel in Reno or --
John F. O'connell: Sir?
Felix Frankfurter: Would a roulette wheel in Reno or (Voice Overlap) --
John F. O'connell: That's -- that's an instrumentality. What -- there's no private records there certainly. I mean, there's not a private record to me. It's an instrumentality. The only thing that's -- that's for is -- is to commit a criminal offense.
Potter Stewart: Not in Reno?
John F. O'connell: Well [Laughter] oh, I -- pardon me. Well, I mean -- what -- what would it be in Reno? Nothing.
Charles E. Whittaker: What about (Voice Overlap) --
John F. O'connell: -- (Voice Overlap) -- unless fixed.
Charles E. Whittaker: What about records, if I may ask you, in a drugstore required to be kept to record narcotic sales and barbiturates? Are they subject to seizure as fruits of illegal traffic?
John F. O'connell: Well, are the records correct? Are the records that they've got are correct?
Charles E. Whittaker: Well, let's assume they're both incorrect and correct, would that make a difference?
John F. O'connell: Why -- now, you -- you're getting me completely out of what -- I think narcotics come under a completely different section with this -- of the -- of the Code.
Charles E. Whittaker: Well, I'm just talking about --
John F. O'connell: I mean, the traffic in -- in narcotics is illegal per se. Anything connected with it, similar to the Maroon case just like in Maroon case, the whole thing -- the provision was no good. You couldn't -- you couldn't engage in provision and anything connected with it. And as I think somebody else said in this Court is still on the bench, that Maroon case that they cited has been override -- overwritten by the Go-Bart case and -- and about three or four other cases. I think this Court is concerned with the constitutional rights of these -- these petitioners. I don't think this Court is concerned with the fact that they're -- they're gamblers. I'm concerned that they can come in and grab my papers. And -- when they -- when this gentleman says that they can get up and make a false affidavit and still it's a good search, then God help America because that isn't the law. Justice Douglas said in -- in one of his concurring opinions in -- in the Jones case that the magistrate must issue a warrant on all the known facts. And these two, purity and reverence, they conceal the fact to the judge that they were issuing at large. And if what -- if what Mr. Friedman said is true that all -- all he could do is do the man of perjury, we're not in any -- we're in difficulty, gentlemen, and -- Your Honors, and I wish I have more time.
Daniel M. Friedman: Mr. Chief Justice, may I have --
Earl Warren: Yes.
Daniel M. Friedman: -- the permission to make a brief statement in response to Mr. Justice Harlan's suggestion with respect to further investigation of this notified Department of Justice?
Earl Warren: Yes, you may make an investigation.
Daniel M. Friedman: We will make an investigation and we will advise the Court of the results of our investigation and if the case should be remanded and if our investigation gives us reason to -- not to believe that the documents were turned over. We'll see to it that the case does not go to a hearing if it was (Inaudible) to remand until that investigation has been completed.
Earl Warren: Well, Mr. Friedman, I don't know how the others feel about it. But I personally feel that with the case in the posture that it's in the present time, the Government having had all these opportunity to make investigations, to make affidavits, to form conclusions, to -- to amplify the -- the record that this is hardly the time to ask for such a procedure. If -- if this Court has to make an investigation, we're -- we're asking you to make an investigation of the truth or the falsity of the affidavits of these two members of this Court had made. Personally, I don't think that's fair. I don't think it's right to -- to any counsel on the record of this kind because the Government itself is going clear without the record in order to raise this issue. And now, for us to pass the Government to -- to investigate these gentlemen to see whether they're telling the truth is -- and -- and if we conclude that they are not telling the truth, then to refer it back to the trial court. I -- I can't -- I can't agree that that's fair.
Daniel M. Friedman: I -- I may have not made myself clear, Mr. Chief. I just want to say that the Government will, on its own, undertake to do this. I'm not suggesting that we are asking this Court to do it. But we just -- I just want to advise the Court in line with Mr. Justice Harlan's suggestion that we will attempt further --
Earl Warren: Yes.
Daniel M. Friedman: -- because of the short time that we had to make this investigation after their brief.
Earl Warren: Of course, the -- the Department could make any investigation once but I would like you -- I understood that you are not making any investigation at the request of this Court.
Daniel M. Friedman: Oh, clear -- we understand clearly. Clearly. We're making it on our own.
Earl Warren: Very well.
Daniel M. Friedman: Thank you.