At first glance, the Court’s formulation might appear to follow pre-cedent. The Court has explained that free speech “cannot be denied by drawing from a trivial rough incident” or from “dissociated acts of past violence,” that acts of violence should not be “episodic” or “isolated,”
and that a “legislature may deal with specific circumstances menacing the peace” and with “concrete situation[s].”250 Further, almost all of the Supreme Court’s buffer-zone cases involved injunctions, which typically address only specific conduct, precise places, and particular persons.251
247. See supra note 37 and accompanying text.
248. McCullen v. Coakley, 134 S. Ct. 2518, 2538–39 (emphasis added).
249. Phillipps, supra note 96, at 962.
250. Milk Wagon Drivers Union of Chi., Local 753 v. Meadowmoor Dairies, Inc., 312 U.S. 287, 293, 295–97 (1941).
251. McCullen, 134 S. Ct. at 2539–40. See Schenck v. Pro-choice Network, 519 U.S. 357 (1997); Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753 (1994) (upholding injunctions against protestors around abortion clinics).
However, a more broad history is not inherently “dissociated,”
“trivial,” “isolated,” or abstract.252 And nothing in any of the previous buffer-zone cases forecloses the possibility that a general history can at least inform a legislature’s decision to restrict speech.
Quite the opposite. The Court has explained that “the momentum of fear generated by past violence” may still call lawmakers to action.253 Indeed, the Court held in Burson v. Freeman254 that a general history of disruption can show a sufficiently urgent need on its own. It explicitly stated that its analysis was based upon “the history of election regu-lation in this country,” the fraud and intimidation that occurred
“[d]uring the colonial period,” and the problems faced and solutions posed by other states and “other countries.”255 None of the targeted
“evils”256 actually occurred in Tennessee, whose buffer-zone statute was at issue. And the Court did not discuss whether Tennessee had actually tried any of the possible solutions. Contrarily, each part of the Burson Court’s analysis relied only upon harms that occurred in other places, at other times, and, presumably, to other persons.
The Court distinguishes McCullen from Burson by explaining that
“voter intimidation and election fraud are . . . difficult to detect,”
whereas obstruction and harassment at abortion clinics “are anything but subtle.”257 Similar to the analysis in Frisby v. Schultz,258 the McCullen Court reasoned that the prohibited conduct in Burson, camp-aigning at polling places, and the government’s interests, preventing voter fraud and intimidation, were inherently opposed to one another.
As in Frisby, then, the Burson buffer zone “targeted” only the “evil” it sought to prevent.259
The Court’s reasoning misses the point. While the Burson Court did say that “the link between ballot secrecy and some restricted zone surrounding the voting area is . . . common sense,” it provided this
“link” by observing the “ample evidence that political candidates have used campaign workers to commit voter intimidation or electoral fraud.”260 Thus, Burson’s first premise was that there is a general but
252. Milk Wagon Drivers, 312 U.S. at 293, 295–96.
253. Id. at 294.
254. 504 U.S. 191 (1992).
255. Id. at 200, 202, 206 (emphasis added).
256. Frisby v. Schultz, 487 U.S. 474, 485–86 (1988).
257. McCullen, 134 S. Ct. at 2540 (citing Burson v. Freeman, 504 U.S. 191, 208 (1992)).
258. 487 U.S. 474 (1988).
259. Id. at 485–86.
260. Burson, 504 U.S. at 207.
extensive history of “a persistent battle against two evils.”261 And the Burson Court’s “common sense”262 link does not exist without this his-tory. The Court “fanciful[ly]”263 eluded this point in McCullen and, in doing so, ignored the possibility that another history like Burson’s could exist.
Further, the Court has suggested that a general history can play at least some role in the Court’s balance on several occasions. The statute upheld in Hill was motivated, in part, by the 1994 Massachusetts abortion-clinic shootings264—history that is not at all focused on the specific conduct, precise place, or particular persons restricted. Though the Court did not discuss this broader history, it quickly referred to the transcript of the statute’s legislative hearings.265 It explained that “there was . . . evidence” of obstruction, “confrontation[],” “abusive langu-age,” and “that emotional confrontations may adversely affect a pat-ient’s medical care.”266 The Hill Court’s willingness to accept that the legislature acted where it “most needed” to act267 implies that a general history combined with a more specific history can satisfy the necessity inquiry.
The Court also explained in Snyder v. Phelps268 that states may regulate picketing at funeral speeches.269 The Court even acknowledged that forty-four states, along with the federal government, already have funeral-picketing buffer zones in place.270 Forty-three of those states base their restrictions on WBC’s picketing, as does the federal govern-ment.271 While WBC has picketed at a tremendous number of funerals across the country,272 the small church does not present a constant,
261. Id. at 206.
262. Id. at 207.
263. McCullen, 134 S. Ct. at 2541, 2545 (Scalia, J., dissenting) (arguing that the majority “fanciful[ly]” defended the Act by wrongfully and “unnecessarily”
deciding the content-neutrality issue).
264. Pettinari, supra note 241, at 803.
265. Hill v. Colorado, 530 U.S. 703, 709–10 (2000).
266. Id.
267. Id. at 730.
268. 562 U.S. 443 (2011).
269. Id. at 456–57. The Court also qualified this statement by saying that the funeral-picketing buffer zones are “‘subject to reasonable time, place, or manner restrictions’ that are consistent with the standards announced in this Court’s precedents.” Id. at 456 (quoting Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984)).
270. Id. at 456.
271. See supra Part III.E.
272. See Westboro Baptist Church Picket Schedule, supra note 191.
“imminent” threat in every city or even every state. Moreover, WBC has hardly made a dent in the total number of United States cities.273 The Court’s formulation in McCullen—that the legislature must tailor its restrictions to precise places—would require the Court to strike down many of the funeral-picketing buffer zones for lack of specificity.
In doing so, the Court would frustrate legislative efforts to protect pri-vacy rights that people hold dear and to deal with broader problems through comprehensive legislation.
B. The Specificity Requirement Undercuts the Necessity Inquiry