Supreme Court Update: McCullen v. Coakley (12-1168) and United States v. Clarke (13-301)

June 30, 2014 Supreme Court Update

Greetings, Court fans!

The Court closed out the Term today with Burwell v. Hobby Lobby Stores (13-354), holding that closely-held corporations controlled by religious families cannot be required to provide contraception coverage for their employees, and Harris v. Quinn (11-681), holding that home-care aides paid with Medicaid funds are only partial public employees and cannot be required to contribute union dues. We'll be back with full summaries of those decisions shortly. This Update covers the equally hot-button McCullen v. Coakley (12-1168), striking down a Massachusetts law that created a "buffer zone" around abortion clinics; and the not-so-hot United States v. Clarke (13-301), on when a taxpayer may question the IRS on its reasons for issuing a summons.

In a decision that produced strong analytical disagreement, all nine Justices in McCullen v. Coakley (12-1168) agreed that a Massachusetts statute that created a 35-foot buffer zone around abortion clinics in the state violated the First Amendment. The statute made it a crime to knowingly enter or remain on a public way or sidewalk within 35 feet of an entrance to an abortion facility. Writing for an unusual majority that included Justices Ginsburg, Breyer, Sotomayor and Kagan, the Chief Justice recognized that these spaces are traditional public fora, in which the government has limited ability to regulate speech. The division between the majority and the minority turned on whether the statute is a content-neutral, time, place and manner restriction, which could be upheld if it is narrowly tailored to serve a significant governmental interest. If the statute were content-based, it would be subject to strict scrutiny and could be upheld only if it used the least restrictive means to achieve a compelling governmental interest.

The majority concluded that the statute was content neutral. The statute itself draws no content distinctions; a violation depends not on what a person says but where he says it. The majority acknowledged that, by focusing on abortion clinics, the statute inevitably restricts abortion-related speech more than other speech, but found that insufficient to convert a facially neutral public safety statute into one that is content-based. Nor is the statute's content neutrality undermined, in the majority's view, by an exemption allowing clinic employees to be within the buffer zone, while others are excluded.

Justice Scalia, writing for Justices Kennedy and Thomas, railed against this portion of the majority opinion as "gratuitous" dicta that reaches the wrong conclusion. The statute's sole focus on abortion clinics, in his view, means that it is intended to prohibit speech about abortion, and therefore is content-based. It "blinks reality," according to Scalia, to conclude that a blanket prohibition on the use of public space where only one controversial topic is likely to be discussed is content-neutral. Justice Scalia also found that the exemption for clinic employees effectively discriminates in favor of pro-abortion speech. That point was echoed in Justice Alito's concurrence, which emphasized that an anti-abortion "counselor" and a pro-abortion clinic employee may each speak to a woman approaching the clinic, but only one commits a crime by doing so. Four Justices, then, would have held that the statute is not content-neutral and struck it down because it does not satisfy strict scrutiny.

The majority ruled on narrower grounds. While it found the statute to be content-neutral, it held that it violated the First Amendment because it was not narrowly tailored to meet the government's substantial interest in public safety and patient access. Emphasizing that the petitioners were not protestors, but individuals who sought to counsel women about alternatives to abortion, Justice Roberts concluded that the statute effectively precludes this type of one-on-one communication. The opinion goes on to review alternatives that might meet the State's interests but would burden speech less than the complete exclusion of speakers from a buffer zone. In addition to general criminal and trespass statutes, the alternatives would include a statute that makes it a crime to threaten, intimidate or interfere with anyone seeking or providing reproductive health services, like the federal Freedom of Access to Clinic Entrances Act, and a New York City ordinance that prohibits following or harassing a person within 15 feet of an abortion facility. A fixed buffer zone may be easier to enforce than these alternatives, but "the prime objective of the First Amendment is not efficiency."

Presumably the more liberal Justices joined the majority opinion precisely because it left open alternatives for states to protect abortion clinics, which would be tested on narrow tailoring grounds rather than under strict scrutiny. Justice Scalia refused even to address the majority's narrow tailoring analysis, not wanting to "take part in the assembling of an apparent but specious unanimity" in the Court's decision. He also contended that the Court's decision effectively overruled Hill v. Colorado (2000), which upheld a state statute that prohibited anyone from coming within 8 feet of any person near an abortion facility. As a practical matter, Hill may no longer be viable. But, perhaps to retain his majority, the Chief Justice avoided the issue, even though the cert grant specifically included the question whether Hill should be limited or overruled.

Turning to our second case, right on the heels of the IRS getting grilled for losing emails sought by members of Congress looking into its examination of Tea Party groups, in United States v. Clarke (13-301) the Court held that taxpayers may question the IRS on its motives for issuing a summons, but only after putting forth some facts giving rise to a plausible inference of improper motive. Clarke arose from the IRS's examination of one Dynamo Holdings Limited Partnership. The IRS suspected that Dynamo had been a little too dynamic in reporting its interest expenses, but wasn't able to finish its investigation within the statutory limitations period. Dynamo agreed to give the IRS one extension, then another, but refused to give a third. Shortly thereafter, the IRS issued a summons to four individuals associated with Dynamo. The IRS then brought an enforcement action in district court after they refused to comply. In district court, the respondents argued that the IRS had issued the summons to punish Dynamo for refusing to grant a third extension and had brought the enforcement action to gain an unfair advantage in the parties' Tax Court proceeding. The respondents asked to question the IRS agents about their motives. The district court denied the request, finding that the respondents had made "no meaningful allegations of improper purpose." The Eleventh Circuit reversed, holding that any "allegation of improper purpose" entitled a taxpayer to question the IRS.

The Court reversed in a short unanimous opinion authored by Justice Kagan. The Eleventh Circuit had been too generous with taxpayers. Congress gave the IRS broad latitude to issue summons as an investigatory tool. Summons enforcement proceedings should be summary in nature: the IRS only has to show that the investigation is conducted pursuant to a legitimate purpose, that the IRS does not already have the information, and that the IRS has followed the appropriate administrative steps. The Court recognized a taxpayer's right to challenge the summons on grounds of "improper purpose," but was wary of imposing rules that would "thwart and defeat the [Service's] appropriate investigatory powers." The proper balance here was to allow taxpayers to examine IRS agents, but only when they could point to specific facts or circumstances plausibly raising an inference of bad faith; "naked allegations of improper purpose are not enough." The Court remanded the case for the Eleventh Circuit to try again using the proper standard.

We'll be back shortly with Hobby Lobby, Harris v. Quinn, and the last biggie from last week, NLRB v. Canning.

Kim, Jenny & Tadhg