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1IN THE SUPREME COURT OF THE UNITED STATES

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ELEANOR MCCULLEN, ET AL.,

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Petitioners

: No. 12-1168

v.

:

MARTHA COAKLEY, ATTORNEY GENERAL

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OF MASSACHUSETTS, ET AL.

:

- - - - - - - - - - - - - - - - - x Washington, D.C.

Wednesday, January 15, 2014

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The above-entitled matter came on for oral

13argument before the Supreme Court of the United States

14at 10:04 a.m.

15APPEARANCES:

16MARK L. RIENZI, ESQ., Washington, D.C.; on behalf of

17Petitioners.

18JENNIFER GRACE MILLER, ESQ., Assistant Attorney General,

19Boston, Massachusetts; on behalf of Respondents.

20IAN H. GERSHENGORN, ESQ., Deputy Solicitor General,

21Department of Justice, Washington, D.C.; for

22United States, as amicus curiae, supporting

23Respondents.

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C O N T E N T S

 

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ORAL ARGUMENT OF

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MARK L. RIENZI, ESQ.

 

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On behalf of the Petitioners

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5ORAL ARGUMENT OF

6JENNIFER GRACE MILLER, ESQ.

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On behalf of the Respondents

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8ORAL ARGUMENT OF

9IAN H. GERSHENGORN, ESQ.,

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For United States, as amicus curiae,

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11supporting the Respondents

12REBUTTAL ARGUMENT OF

13MARK L. RIENZI, ESQ.

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On behalf of the Petitioners

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P R O C E E D I N G S

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(10:04 a.m.)

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CHIEF JUSTICE ROBERTS: We will hear

4argument first this morning in Case 12-1168,

5McCullen v. Coakley.

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Mr. Rienzi.

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ORAL ARGUMENT OF MARK L. RIENZI

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ON BEHALF OF THE PETITIONERS

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MR. RIENZI: Mr. Chief Justice, and may it

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please the Court:

11

This Court has held that the public

12sidewalks are a natural and proper place for free

13citizens to exchange information and ideas, and for that

14reason the Court has held that public sidewalks occupy a

15special position in First Amendment analysis. If the

16Massachusetts law at issue here makes it a crime to

17enter onto certain public sidewalks, even for the

18purpose of peaceful conversation, or leafletting, the

19law applies at abortion clinics throughout the State on

20every hour of every day that they are open, regardless

21of the circumstances.

22

Massachusetts asked this Court to uphold

23that statute under the time, place, and manner test, but

24the law fails each aspect of that test.

25

I would like to begin with narrow tailoring.

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1The State says the law is necessary to protect its

2interests in preventing obstruction and congestion. But

3the law is not narrowly tailored to those interests for

4three reasons: First, the law applies regardless of

5whether there's any threat of obstruction or congestion

6at all, even when the sidewalks are entirely open and

7empty. For example, Mrs. McCullen generally does her

8counseling early in the morning on Tuesdays and

9Wednesdays beginning at 7:00 o'clock in the morning.

10She testified that she is sometimes alone when she does

11this counseling. Nancy Clark testified that 90 percent

12of the time that she is at the clinic in Worcester, she

13is all alone.

14

A statute that makes it illegal for

15Mrs. McCullen or Mrs. Clark to engage in peaceful,

16consensual conversation on a public sidewalk for fear of

17obstruction and congestion is not narrowly tailored.

18

JUSTICE GINSBURG: Mr. Rienzi, the problem

19that the State faced is it doesn't know -- and it has a

20history, there was a considerable history of

21disturbances and blocking the entrance, and it doesn't

22know in advance who are the well-behaved people and who

23are the people who won't behave well. So -- and after

24the disturbance occurs, it's too late. So the State is

25trying to say, We want to make sure that the entrance is

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1not blocked, and the only way we can do that is to have

2a rule that applies to everyone. We can't -- we can't

3screen people to know who will be well behaved and who

4will be disruptive.

5

MR. RIENZI: So I think the State is simply

6wrong about that fact for several reasons. There are

7many tools that the State either has in its current

8toolbox or could enact that would deal with that

9concern.

10

And if I may back up for a second, I think

11there are really two different interests that the State

12asserts when it makes that argument, Justice Ginsburg.

13First, they say that there are actual deliberate bad

14actors. All right. There are some people whom the

15State claims have deliberately violated the law and

16blocked the door and interfered with access.

17

And then secondly, the State says there is

18also some circumstances where there are enough people on

19the sidewalk that even lawful, consensual conversation

20might accidentally block the door. I think those are

21actually two quite different interests, but there are

22tools in the toolbox to deal with both of them.

23

For example, Section E of this statute makes

24it illegal to impede, block, obstruct or even hinder

25somebody's access to the clinics. And that section of

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the statute is not challenged here and never has been.

2

JUSTICE SCALIA: You know, I should probably

3ask this of the other side, and I will, but do you

4happen to know when was the last time that Massachusetts

5prosecuted somebody for obstructing entrance to an

6abortion clinic?

7

MR. RIENZI: So I believe the last cite in

8the record that I'm aware of is, as of 1997, there was a

9decision in a previous injunction case against people

10who had been adjudicated to have broken rules. There is

11a 1997 case on that.

12

To my knowledge, they've never brought a

13case, for example, under the Federal FACE law, which has

14been in existence for 20 years.

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JUSTICE

SCALIA:

So there have been laws

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against obstruction during this entire period, right?

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MR. RIENZI: There have been laws against

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obstruction the entire time.

 

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JUSTICE SCALIA:

And you say that only once,

20in 1997, that was the last time a prosecution was

21brought.

22

MR. RIENZI: And that was an injunction

23against prior bad actors. That was not a FACE

24prosecution or a Section E prosecution.

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JUSTICE SOTOMAYOR: You are not taking the

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1position that 1997 was the last time an entrance was

2obstructed or that the police were called to open access

3to a clinic? Are you taking that position that the last

4time it happened was 1997?

5

MR. RIENZI:

I frankly don't -- I couldn't

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say that I know the last time it happened.

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JUSTICE SOTOMAYOR: But you do know that in

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the record there were more examples?

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MR. RIENZI:

I know that in the record there

10was testimony claiming that that happened. My argument

11is simply that the State has tools that are deliberately

12designed to deal with that. And so the United States -­

13

JUSTICE KAGAN: Mr. Rienzi, the State says,

14of that particular tool, that it's a hard thing to

15prosecute because you have to show intent, and there is

16a lot of obstruction and interference that goes on

17naturally just because there are a lot of people around.

18So that is an insufficient tool is what the State

19argues.

20

MR. RIENZI: Yes. And so to the extent,

21what the State is saying -- to the extent the State is

22claiming that there are deliberate bad actors

23deliberately blocking the door, I don't think that's a

24very persuasive argument. There are police on the

25scene, and if the police say, Get out of the doorway,

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1either the person moves in which case there is not a

2problem anymore, or they don't, in which case, intent is

3pretty clear.

4

Amicus United States has prosecuted, I think

5more than 45 cases and gotten more than 70 convictions

6under that statute.

7

JUSTICE KAGAN: And sometimes there are

8those bad actors, but probably more often it's just a

9function of there are just lots of people, and they,

10your clients and all of -- all of them want to be as

11close as possible to the site, and that that naturally

12leads to an interference with normal access.

13

MR. RIENZI: And so I agree that's the

14second part of the State's argument. I don't think this

15law is narrowly tailored to that concern, in two

16respects. One, the law applies -- you know, the

17evidence in the case is that the crowds that the State

18is concerned about happened essentially at one clinic,

19one day, one time -- Saturday mornings in Boston -- and

20when they happen, there are video cameras rolling and

21police officers present. And there is no reason to

22believe the police can't simply say, Move out of the

23doorway. And if someone is in front of the doorway,

24they certainly should do that.

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JUSTICE ALITO: Does the record show how

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many clinics in the State are covered by the law?

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MR. RIENZI: I believe there are 11 or 12

3clinics in the State. So long as they are freestanding

4abortion clinics they fall within statutory definitions.

5

JUSTICE BREYER: How far do you want to go

6in your concession? Would you want to concede this

7point that imagine the State has two groups of people

8and one group feels what the other is doing is terribly

9wrong. And the second group feels, We absolutely want

10to do it. And everyone is in a fragile state of mind,

11and they want to, if possible, at least one group wants

12to sort of shout as loud as you could at the other,

13Please don't do this. And the other says, Please leave

14me alone. And we are not saying which group is which;

15the analogy is obvious, but I keep all the titles out.

16

Does the State have the right, in your

17opinion, to say, It's tough to referee this, we see the

18potential for real harm on one side or the other, so

19we're going to have this kind of 35-foot boundary? You

20want to concede that and say, okay, but the evidence

21here didn't doesn't justify it, or do you want to fight

22that, too?

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MR. RIENZI: So, no, I do not mean to

24concede that. I don't think -- I think a solution that

25is done with painted lines on the sidewalk that says --

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JUSTICE BREYER: But now you are into the

2details. I want to know about the principle. I mean, I

3can imagine the principle applying special care and need

4must be taken outside of hospitals for veterans, even

5though there are some who are very much opposed to the

6war, because these people will be coming out, they'll be

7in wheelchairs, it will be terrible. And others

8thinking -- you know, we can think of many, many

9situations, irrespective subject matter, where there is

10a need for such refereeing. And I just want to know if

11the -- if the concept is okay with you or if not.

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MR. RIENZI:

Generally

-­

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JUSTICE BREYER: With the details.

14

MR. RIENZI:

Generally speaking, no. I

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don't think the concept that -­

 

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JUSTICE SOTOMAYOR: So protestors like the

17one we had in the Schneider case at a funeral of a

18veteran can go right up to the public sidewalk outside

19the church and put up the signs that they did and give

20out the leaflets that they did, talking about that

21veteran in the ways that they did? That's okay by you.

22

MR. RIENZI: So -- so, a couple points about

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that. One -­

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JUSTICE SOTOMAYOR: There was no evidence

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there that they were -- that they were disruptive. They

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were just expressing their First Amendment rights.

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MR. RIENZI: So I think that that -­

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JUSTICE SOTOMAYOR: But there is the

4potential for disruption because of the strong

5sentiments around that.

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MR. RIENZI: Agreed. I think a statute that

7worked the way the one -- this one does here, that would

8make it illegal to even engage in peaceful conversation

9on sidewalks near a church or near a funeral or near

10just about anything else, I think clearly is not

11permitted by the First Amendment.

12

JUSTICE SCALIA: In Schneider, they were

13held not so far back that their shouts and protests

14couldn't be heard. Isn't that the case? They could

15still be heard -­

16

MR. RIENZI:

I think it

made -­

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JUSTICE SCALIA:

-- out

of -­

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MR. RIENZI:

--

perhaps

were part of the

19funeral procession that passed by. I don't think

20they -­

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JUSTICE BREYER: Do you see now why I am

22trying to narrow it? Because in my case, in Schneider,

23I thought it was pretty important that the demonstrators

24were behind a hill somewhere and the police restricted

25where they could go. Many states have enacted similar

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1laws, and I thought that's important, because maybe it

2would have come out differently. I mean, you could

3argue about it, and I could.

4

So I'm trying to narrow it. I'm trying to

5see to what extent do I have to look at this particular

6set of facts, in which case we are into the hearings,

7et cetera; and to what extent is there a matter of very

8broad principle here, and any help you can give me on

9that would be appreciated.

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MR. RIENZI: So the matter of very broad

11principle is that a law that makes it illegal to even

12engage in consensual conversation, quiet conversation,

13on a public sidewalk, an act that makes that a criminal

14act for which Mrs. McCullen can go to prison, I think,

15is not permissible under the First Amendment.

16

If you compare it to, for example, the

17Federal military funeral protest law, that law is

18specifically drawn to acts that disrupt the peace and

19good order of the funeral, and I think that is

20different.

21

JUSTICE KAGAN: But are you saying that you

22could not do an act that instead just says, look, it's a

23little bit too hard to figure out what and what does not

24disrupt peace and order, so we're just going to say

2525 feet around a funeral, or 25 feet around any

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facility, that that's never permissible?

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MR. RIENZI: So, generally speaking, I think

3any law like that runs into a big First Amendment

4problem of even eliminating peaceful, consensual

5conversation that doesn't disrupt anything. And this

6Court's past First Amendment decisions have said that

7precision of regulation is required.

8

One difference, if it's a rule around any

9facility or a rule around all funerals, for example, is

10that -- that there isn't nearly as much distortion of

11the marketplace of ideas as happens when you do what

12Massachusetts did here, which is pick -­

13

JUSTICE KAGAN: Well, for example, I was

14intrigued by one of the examples that you gave in your

15own brief, which you said slaughterhouses. So, let's

16say, that there are animal rights activists, and this is

17easy to imagine, who try to interfere with access in and

18out of slaughterhouses. And a State passes a regulation

19that says there's a ton of interference, it's preventing

20the operation of these facilities, employees can't get

21in, suppliers can't get in, slaughterhouses are leaving

22the State because of this problem, and so we're just

23going to set up a zone and let's call it 30 feet,

24because it's very hard to enforce anything else.

25

I guess my reaction to that hypothetical --

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1you -- you must have used it for me to say, oh, that's

2terrible. But my reaction, my intuition was kind of

3what's wrong with that? Just have everybody take a step

4back.

5

So what is wrong with that?

6

MR. RIENZI: So what's wrong with that is a

7couple of things. One, again, this Court's decisions

8require precision of regulation. So an injunction, for

9example, against groups and individuals like Madsen and

10Schenck, for example, an injunction against groups and

11individuals who have interfered with access, keeping

12them back, I think that's perfectly permissible. We

13take no issue with that type of solution.

14

It's the generally applicable statute,

15right, that's tied to just one particular

16often-protested event that gives the State enormous

17power to interfere with the marketplace of ideas.

18

JUSTICE ALITO: In one of the examples that

19is given in one of the amicus briefs in this case, and

20they -- they provide a lot of background, is a State law

21that creates a buffer zone around every fraternal lodge.

22What would you say about that?

23

MR. RIENZI: I think it is difficult to

24imagine the government interest to -- well, first, I

25guess, I don't know the particulars of that law and what

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1it -- what it restricts. If it restricts peaceful

2conversation on public sidewalks anyplace there's a

3fraternal lodge, I would say that -- that should not be

4permissible under the First Amendment. I think,

5generally speaking, the idea of the government picking

6one particular item and saying, well, around this,

7suddenly the character of the public forum changes from

8a place where people can have peaceful, consensual

9conversations to a place where we will imprison them for

10doing that, I think that's a dramatic restriction of

11First Amendment rights.

12

I think if there is a particular group or

13individual who keeps interfering with the fraternal

14order, of course, you can get an injunction against that

15type of behavior, but I don't think the State can say

16even peaceful discussion and leafletting -­

17

JUSTICE KAGAN: But let's go back to the

18slaughterhouse case. I mean, there might be people who

19say it's really important to us to actually be able to

20face-to-face talk with the employees and tell them why

21they should get different jobs or why they should change

22their practices in various kinds of ways. And, you

23know, there are some people who think signs and chants

24are great, but there are people who really want to make

25one-to-one contact with the truck drivers, with the

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1 employees, whoever.

2

But -- but you say, you know, we have to let

3whatever interference goes on, even if there's a record

4of -- of real obstruction, of real interference with the

5operation of the facility, in order to allow that to

6happen. And I guess I think that that's -- that's

7pretty hard.

8

MR. RIENZI: To be clear, Your Honor, I'm

9not saying the government has to let it go on. I'm

10saying the government has tools that are better drawn to

11it than eliminating even the peaceful, consensual

12conversation.

13

JUSTICE KENNEDY: But suppose -- and this is

14still Justice Kagan's question -- suppose it were a

15given, assume that those laws just did not work. Could

16there then be consideration of a buffer zone?

17

Now, this is a hypothetical that I'm sure

18that you wouldn't accept in the context of your case,

19but suppose.

20

MR. RIENZI: Suppose it were a given

that

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there is no way to keep the abortion clinic open

-­

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JUSTICE KENNEDY: The laws simply do

not -­

23reference to obstruction and blocking entrance, simply

24do not work.

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MR. RIENZI: If the laws simply do not work,

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1I think perhaps the government could come in and make a

2case that it has a compelling interest and that this is

3the least restrictive means of doing it.

4

JUSTICE BREYER: Okay. So that -- now, at

5this point -- that was a better way of getting what I

6was trying to get at. Just assume that there is -­

7let's look at the narrow part of the case, and let's

8assume that the Colorado case is right. And this

9particular restriction is more a restrictive than

10Colorado in two important respects, which you've gone

11into.

12

Now, the reason that they did that is they

13had hearings in Massachusetts, and they discovered that

14the Colorado law didn't really work very well. And so,

15what are we supposed to do? Are we supposed to now go

16look at -- as long as those hearings are -- are

17legitimate hearings and they have good explanation on

18something like whether the zone is 8 feet and consensual

19or whether it's 35 feet and different amounts of

20sidewalk, depending on the nearness of the facility,

21when doesn't it become just up to them?

22

We can't -- we're not legislators. We don't

23know the situation in Massachusetts. We can insist upon

24a reasonable record. But how can we do more than that

25on this detail?

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MR. RIENZI: So -- so, on this detail,

2what -- what I think the Court should look for is, for

3example, had they had a -- the State said they did not

4even convict a single person of one unconsensual -­

5

JUSTICE BREYER: But you understand that.

6We all understand that. It's one thing to try to prove

7an intent on such matters, particularly when people are,

8in good faith, they're trying to explain it, and it's

9another thing to actually stop the congestion and to

10protect the interests of the woman who wants to have the

11abortion, may be in a fragile state of mind, and this

12kind of thing could interfere with her health, et

13cetera.

14

So there are two interests, one on each

15side. We know 8 feet with the bubble is okay. We're

16not sure about 35 feet, and they have an evidentiary

17record.

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MR. RIENZI: So, a few things. One, the

19reasons this Court gave in Hill for allowing the 8-foot

20no-approach zone was precisely that it only was about

21protecting unwilling listeners and it did not stop

22discussions with willing listeners. There are real

23people -­

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JUSTICE SCALIA: Counsel,

do you accept that

25

the record here shows that it did not

work well in the

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sense that Justice Breyer -­

 

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MR. RIENZI:

No, not at all.

3

JUSTICE SCALIA:

-- seems to use it?

4

MR. RIENZI:

I understood I was being asked

5

to assume that.

 

 

6

JUSTICE SCALIA:

As I recall the record,

7all -- all it says is that the police found it difficult

8to apply a bubble; that, you know, they have to measure

98 feet or whatever it is. They didn't say that massive

10obstruction and protests are occurring, preventing

11people from -- that wasn't the finding, was it?

12

MR. RIENZI: No.

I -- I agree, it was not.

13

The claim was -­

 

14

JUSTICE BREYER:

That's why I just asked you

15that question. It just happens that the police testify

16with some evidence and examples that the 8-foot bubble

17doesn't work. And it also -- they have some evidence

18and reasons for thinking that if you want to have a

19conversation, you have to convince the woman to walk 10

20feet.

21

I mean, the difference is about half -- you

22know, if you were near me, Price is near Colorado. If

23we're over to where the first row is, we'd have

24Massachusetts, and -- and they have some evidence that

25we can't enforce this Colorado thing very well; it

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doesn't help.

 

 

2

Now, go ahead.

I want your answer.

3

MR. RIENZI:

I -- I agree, but if -­

4

JUSTICE BREYER:

I'm not trying to put

5

words -­

 

 

6

MR. RIENZI:

-- if you sent me 35 feet

7further back and asked me to make my argument from

8there -­

9

JUSTICE BREYER:

I'd hear you.

10

MR. RIENZI: You

might hear me, but I would

11suggest you'd -- you'd receive it quite differently. If

12I were sent back there, but the clinic -- or the State

13were permitted to stand in front of you like a normal

14lawyer and make their argument in the normal way, I

15would suggest that would be a significant difference.

16And what we have here is -­

17

JUSTICE BREYER:

I'm not denying the

18

difference.

 

19

MR. RIENZI: Yeah.

20

JUSTICE BREYER:

I am asking you, we've now

21heard different characterizations of the record. I

22didn't mean to characterize it. I want you to explain

23what it is in the record, from your point of view or

24lack thereof, that means that the Constitution

25intervenes to prevent Massachusetts from doing it.

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MR. RIENZI: So the constitutional narrow

2tailoring test under the time, place, and manner test

3requires that the law not restrict substantially more

4speech than necessary to serve the government's

5interest. Here -­

6

JUSTICE GINSBURG: How much is -- how much

7is restricted? How -- how long does it take from when

8you enter the buffer zone until you reach the clinic

9entrance?

10

MR. RIENZI: If -- if you're walking

11nonstop, I assume 7 to 10 seconds or something like

12that.

13

JUSTICE GINSBURG:

So the conversation can

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go on before those 7 to

10 seconds.

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MR. RIENZI:

Yeah.

 

16

JUSTICE GINSBURG:

There's not much you're

17going to be able to do to have a conversation that will

18persuade people in 7 to 10 seconds.

19

MR. RIENZI: I respectfully disagree on that

20last point, Your Honor. The evidence in this record is

21that the -- the inability to speak with people close to

22the clinic has a dramatic effect on the Petitioners'

23ability to reach their audience. So if someone happens

24to be walking from the same side of the zone that you're

25standing on, you may have a shot.

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Now, the clinic still has the space in front

2of the clinic to talk to people, which you don't, but

3you may have a shot if you're on the right spot.

4

JUSTICE SCALIA: And if you know they're

5

going to the clinic.

6

MR. RIENZI: And if you can identify the

7audience early enough. But, for example, places like

8Worcester and Springfield, where essentially the only

9chance to reach the audience is by standing on the

10public sidewalk and waving a leaflet as they drive

11through the driveway entrance. If you have to stand

1235 feet back and do that, the evidence here shows

13there's essentially zero chance to reach that audience.

14So it is -­

15

JUSTICE KAGAN: But isn't that more a

16function that they just have a private parking lot? So

17even if this law didn't exist, you actually couldn't

18reach most of these people because they drive into the

19private parking lot and you can't talk to them anyway.

20

MR. RIENZI: No, Your Honor. I don't think

21that's a fair characterization of it. So yes, there's a

22private parking lot, but there's a public sidewalk on

23which, before this law, you had the right to engage in

24speech. The fact that this law pushes you 35 feet back

25is what makes it impossible to make the offer.

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1

Many people would just drive on by, they

2don't want the information, and that's fine. That's

3their right. But many people do want the information

4and have acted on the information. And this law makes

5it much harder, almost impossible in places like

6Worcester and Springfield, to offer it.

7

JUSTICE KAGAN: Is there a buffer zone that

8you would concede is permissible? In other words, if it

9were 12 feet, would that be all right?

10

MR. RIENZI: So, as the size of the zone

11decreases, I think the -- the imposition on the speech

12rights is -- you know, gets less and less and better and

13better. And so the adequacy of the alternatives, for

14example, that may improve as you go.

15

It would still be a problem, I think, to

16have zones on the sidewalk where, even when no one's

17there, it's a criminal act to have a conversation.

18

JUSTICE KAGAN: Well, but that goes back to

19Justice Ginsburg's question. I mean, how is a law

20supposed to deal with -- with that, sort of the

21fluctuating conditions that may be at a particular

22clinic site?

23

MR. RIENZI: That's -- that's precisely the

24point. That's why this is not something that should be

25addressed with a statute like this. This is something

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1that should be addressed with either a statute drawn to

2something like large crowds or a dispersal statute. The

3brief -- amicus brief for New York State in support of

4Massachusetts here talks about how Concord, New

5Hampshire and Los Angeles deal with this problem. They

6give the police the power to disperse crowds when they

7become obstructive or violent, the same way this Court

8approved in Boos v. Barry.

9

JUSTICE SCALIA: It is the case, isn't it,

10that not only abortion counselors are -- are excluded

11from this area, everybody is, right? Anybody who wants

12to talk to anybody or who just wants to be there -­

13

MR. RIENZI:

So

-­

14

JUSTICE SCALIA:

-- can't -- I mean, this is

15

a -- a dead speech zone, right?

16

MR. RIENZI:

In many respects it is. In

17many respects it is no different than the speech-free

18zone in the Jews for Jesus case. It's a place where the

19government claims it can essentially turn off the First

20Amendment.

21

But the

government says -­

22

JUSTICE

KAGAN: It's more than a speech-free

23zone. It's also a conduct-free zone, right? You can't

24sell hats there, you can't, you know, beg there. I

25mean, you just can't go there.

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1

MR. RIENZI: I agree the government has

2eliminated more than speech on that sidewalk, but

3they've eliminated speech on that sidewalk as surely as

4in the Jews for Jesus case.

5

JUSTICE KAGAN:

It's still a thoroughfare -­

6

JUSTICE ALITO:

Well, they haven't entirely

7

eliminated speech because employees are permitted -­

8

MR. RIENZI:

Yes.

9

JUSTICE ALITO:

-- to speak within the scope

10

of their employment; isn't that right?

11

MR. RIENZI:

Thank you, Justice Alito. Yes.

12So they haven't eliminated speech for all people. They

13have -­

14

JUSTICE GINSBURG: Well, that's a -- a

15contested point because the Attorney General reads

16"scope of employment" to mean getting to my job and

17leaving my job, and does not include speech activity.

18

MR. RIENZI: So on the face of the statute,

19I don't that -- that that interpretation doesn't do very

20much. That statute -­

21

JUSTICE GINSBURG: This is the -- the chief

22legal officer of the State says this is a term that

23needs to be interpreted. The term is "scope of

24employment." Scope of employment within this statute

25means getting to work and leaving work, and it doesn't

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1

mean political speech.

2

MR. RIENZI: So the Attorney General says

3it's more than just getting to work and leaving work.

4It says it's just doing their jobs.

5

First, I don't believe -- I don't believe

6that they have the authority to do that; in other words,

7I don't think they could go arrest somebody who happened

8to speak about abortion when they work for an abortion

9clinic. They have an absolute statutory defense.

10

But even if they could limit it to just

11doing their job, you end up with the problem that the

12Ninth Circuit sought in the Hoyt case, which is if the

13clinic is allowed to use that sidewalk, even just to

14say, "good morning, may I help you into the clinic," and

15the government says that's a valid use of our public

16sidewalks, but the State says Mrs. McCullen will go to

17prison if she goes on that sidewalk and says, "good

18morning, may I offer you an alternative?" As the Ninth

19Circuit panel said, that's indubitably content-based.

20

The government doesn't get to decide that

21the public sidewalk -- which it leaves open for people

22just walking by, right? If I'm going down that sidewalk

23to get a cup of coffee, it's fine.

24

JUSTICE KENNEDY: Well, am

I correct that

25

the Attorney General's regulation with

respect to

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1employees of the clinic in a way made this even more

2content-based because there was a prohibition on

3discussing the -- the abortion procedure?

4

MR. RIENZI: I -- I agree. That's one of

5the reasons that the interpretation is flagrantly

6unconstitutional. The government can't simply say to

7people who work for Planned Parenthood, we won't arrest

8you when you talk on the sidewalk unless you talk about

9abortion, right? If you talk about abortion, then we'll

10arrest you. And that mirrors -- that mirrors the

11State's interpretation of its -- of the exemption for

12people walking through the zone, where it says you can

13walk through, and this is J.A. 93-94, "provided that the

14individual does not do anything else within the buffer

15zone, such as expressing their views about abortion."

16So the government's saying you can walk through, but you

17can't talk about abortion.

18

19 "such as."

20

JUSTICE GINSBURG: But it's "such as," it's It says you can't talk about anything.

MR. RIENZI: Well, I -- I agree. I don't

21 think -­

22

JUSTICE GINSBURG: Well, it's not content -­

23it's not based on speech about abortion. It's that you

24can't speak about anything.

25

MR. RIENZI: Well, the -- the interpretation

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1as to the employees that the Attorney General has

2proffered for 6 years is about speech about abortion.

3So it's not they can't talk about abortion -­

4

JUSTICE SCALIA: Excuse me. If -- if you're

5going through the zone just to get somewhere, not to get

6to the clinic, and you're walking with a companion,

7can't you speak to your companion as you -- it doesn't

8ban speech by everybody who's walking through.

9

MR. RIENZI: The Attorney General has taken

10multiple positions on that. In the lower court, their

11position was you can't talk about abortion or partisan

12issues. They told the First Circuit that you can't even

13wear -- that you can be arrested if you wore a Cleveland

14Indians shirt while you were just passing through. At

15this Court, they say that people passing through have

16speech rights.

17

Either one is bad. Either way the

18government doesn't have the ability to say who gets to

19speak and who doesn't get to speak on an open public

20sidewalk.

21

If I may reserve my time?

22

CHIEF JUSTICE ROBERTS: Thank you, counsel.

23

Ms. Miller.

24

ORAL ARGUMENT OF JENNIFER GRACE MILLER

25

ON BEHALF OF THE RESPONDENTS

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1

MS. MILLER: Mr. Chief Justice, and may it

2

please the Court:

3

Petitioners can and do protest abortion in

4Massachusetts and they can do it in the public spaces

5right outside abortion facilities.

6

JUSTICE SCALIA: This is not a protest case.

7These people don't want to protest abortion. They want

8to talk to the women who are about to get abortions and

9try to talk them out of it. I -- I think it -- it

10distorts it to say that what they want to do is protest

11abortion.

12

If it was a protest, keeping them back

1335 feet might not be so bad. They can scream and yell

14and hold up signs from 35 feet. But what they can't do

15is try to talk the woman out of the abortion. It's a

16counseling case, not a -- not a protest case.

17

MS. MILLER: It -- Your Honor, I would say

18it's a congestion case. Certainly, Ms. McCullen and

19others can have those conversations right in front of

20the abortion facility. It's just that those

21conversations are moved back a few feet. And in point

22of fact, Ms. McCullen -­

23

JUSTICE KAGAN: Well, it's more than a few

24feet. You know, 35 feet is a ways. It's from this

25bench to the end of the court. And if you imagine the

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1Chief Justice as sort of where the door would be, it's

2most of the width of this courtroom as well. It's -­

3it's pretty much this courtroom, kind of. That's a lot

4of space.

5

MS. MILLER: Just as a factual matter, I did

6want to point out that in Boston, for example, the door

7is recessed. It's a private entrance with a recessed

8door and the 35 feet is measured from the door. So it's

9actually only about 23 feet.

10

JUSTICE SOTOMAYOR:

I thought it was two car

11

lengths.

 

 

12

MS. MILLER:

I'm sorry?

13

JUSTICE SOTOMAYOR:

Two car lengths.

14

MS. MILLER:

I'm sorry. I didn't hear you.

15

JUSTICE SOTOMAYOR:

Two car lengths.

16

MS. MILLER:

Two car lengths. Exactly

17

right, Your Honor.

 

 

18

JUSTICE SOTOMAYOR:

That's, I think, a

19

little less than this courtroom.

 

20

MS. MILLER:

We measured this courtroom.

21

JUSTICE BREYER: I'd just like you to go

22back to Justice Scalia's question for one second. I

23didn't hear the -- as he was saying that this case is

24not a protest case, it's simply about calm

25conversations. And that is what I want to know if the

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1

evidence showed that.

2

MS. MILLER: Well, certainly, there's a

3

picture of a calm conversation -­

4

JUSTICE BREYER: No, the evidence upon which

5Massachusetts based its decision to go to 35 feet

6instead of 8 feet. There were hearings. Did the

7evidence show that what was involved was calm

8conversations between one person trying to counsel

9another or did the evidence show something else?

10

MS. MILLER:

Certainly, the evidence showed

11

something else.

 

12

JUSTICE BREYER: What?

13

MS. MILLER:

Experience showed that there

14had to be a certain amount of space around the

15facilities. What we had, for example, were pro choice

16advocates swearing and screaming at pro life advocates

17within the buffer zone. That's at Joint Appendix 26

18through 28. You had the Pink Group, which is a pro

19choice organization, pushing and shoving and jockeying

20for position.

21

JUSTICE SCALIA: Well, surely you could have

22a law against screaming and shouting within 35 feet or

23protesting within 35 feet. Isn't that more narrowly

24tailored? I mean, what this case involves, what these

25people want to do is to speak quietly and in a friendly

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1manner, not in a hostile manner, because that would -­

2that would frustrate their purpose, with the people

3going into the clinic.

4

MS. MILLER: But, again, experience showed

5that even individuals who wanted to engage in close,

6quiet, peaceful conversation were creating congestion

7around -­

8

JUSTICE BREYER: Rather -- I note there's

9some people who are peaceful, in which case I would

10accept Justice Scalia's suggestion this is a counseling

11case. But you've cited some other evidence that

12suggests there were other people who were screaming,

13pushing and shouting, which sounds like, in his

14characterization, a protest case. And the reason that

15Massachusetts found it difficult to write a statute that

16distinguishes one from the other is?

17

Why do people write statutes that sometimes

18do not make these fine distinctions? Why did they in

19this instance?

20

MS. MILLER: They didn't make a fine

21distinction, Your Honor, because it didn't matter

22whether people were being peaceful or whether they

23were -­

24

JUSTICE BREYER: Could you have written such

25

a statute that would have worked?

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1

MS. MILLER:

It would have been very

2

difficult to write such a statute, Your Honor.

3

JUSTICE KAGAN: How did you pick 35 feet?

4

Why 35?

 

5

MS. MILLER:

Well, again, experience showed

6that some amount of space around the buffer zones -­

7around the facilities needed to be open. So then it was

8simply a question of looking at past experience, at the

9prior injunctions, for example, Your Honor.

10

For example, in Planned Parenthood v. Bell,

11which is cited at page 2 of our brief, there was

12actually a 50-foot buffer zone imposed by a district

13court judge in Massachusetts. We knew from, of course,

14Madsen and Schenk, that 36-foot buffer zones were

15acceptable in -- when you were being responsive to that

16kind of problem; and we knew that a 15-foot buffer zone

17would be acceptable if responding to a similar kind of

18problem.

19

So at some point or another, the -- the

20legislature was aware that some amount of space needed

21to be created, and it chose 35 feet as a reasonable

22response, a reasonable amount of space around the

23facility to allow -­

24

JUSTICE BREYER: To go to -- go back for a

25

second. I see that. Is there anything in the record --

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1the obvious reason for a legislator, I think -- I did

2work in the legislature for a while as a staff member -­

3that you don't write these fine statutes is they won't

4work. They have too fine a distinction. The activity

5is commingled. The activity -- all right. Now, I knew

6you were just going to nod my -- your head as soon as I

7said that. So I was trying to get you to say it in

8spontaneously if it's true. Is there anything in this

9record that suggests that this is one of those cases

10where it's just too tough to say whether they're

11counseling somebody or whether they're screaming at

12somebody, whether they're pushing somebody or whether

13they're standing near them peacefully? Is there any

14evidence in the record I could turn to that would

15suggest that?

16

JUSTICE SCALIA:

You should say yes.

17

(Laughter.)

 

18

MS. MILLER: And I will.

19

(Laughter.)

 

20

JUSTICE BREYER:

She can't say yes if it

21isn't there, because I'm going to ask her where because

22I want to read it.

23

MS. MILLER: I will of course, Your Honor.

24The best description of that is, of course, Commissioner

25Evans's description of the space functioning like a

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1 goalie's crease.

2

JUSTICE KENNEDY: Well, let -- let me ask

3this question: Assume it to be true that an elderly

4lady who was quite successful and had meaningful

5communication with over 100 women going into the clinic,

6before this law, was unable to talk to even one after

7this law. Assume that's true.

8

Does that have any bearing on our analysis?

9And does that have any bearing on Justice Breyer's

10question about whether or not a law can be written to

11protect that kind of activity but still to prevent

12obstruction and blocking?

13

MS. MILLER: I -- I think, Your Honor, that

14no one is guaranteed any specific form of communication.

15So, there is no guarantee, as a doctrinal matter, to

16close, quiet conversations. The question is, are there

17adequate alternatives? And in this particular instance

18in this record, there are adequate alternatives. Take,

19for example, the situation -­

20

JUSTICE KENNEDY:

You say there's no -- no

21

guarantee of talking quietly?

 

22

MS. MILLER: There is -­

23

JUSTICE KENNEDY:

Do you want me to write an

24opinion and say there's no free speech right to quietly

25converse on an issue of public importance?

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1

MS. MILLER: Generally on the public

2sidewalk. But, of course, that right is tempered by

3the -- the State's interest in making sure that the

4public sidewalks function as they should and that there

5is peace and good order.

6

But I would give you an example, Your Honor.

7

I'd -- I'd point you -­

8

JUSTICE KENNEDY: I still don't know where

9you're going to -- this -- this goes to Justice Breyer's

10question. You -- you cannot write an ordinance that

11says obstruction, intimidation, blocking is prohibited,

12and still allow the kind of conversation that I

13described earlier and that I want you to assume to be

14true for the -- for the purposes of this question.

15

MS. MILLER: Your Honor, we -- we couldn't

16here, obviously, because that wasn't the problem. The

17problem with making that kind of a fine distinction is

18that it doesn't address what the State's -­

19

JUSTICE KENNEDY: But in speech cases, when

20you address one problem, you have a duty to protect

21speech that's -- that's -- that's lawful.

22

MS. MILLER: You do. As long as your

23

protection is narrowly tailored to your interest, you -­

24

JUSTICE KENNEDY:

But I -- I think what you

25

have to say to this Court is

that it's impossible to

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1write a statute of the kind that we are discussing now,

2and this is Justice Breyer's question.

3

MS. MILLER: It would be enormously

4difficult to write a statute that addressed the problem

5and the significant interest here where you are making

6that kind of a find -­

7

JUSTICE ALITO: May I ask you a question

8about a distinction that is in this statute? Now, let

9me give you this -- this example. A woman is

10approaching the door of a clinic, and she enters the

11zone. Two other women approach her. One is an employee

12of the facility, the other is not. The first who is an

13employee of the facility says, good morning. This is a

14safe facility. The other one who's not an employee

15says, good morning, this is not a safe facility.

16

Now, under this statute, the first one has

17not committed a crime; the second one has committed a

18crime. And the only difference between the two is that

19they've expressed a different viewpoint. One says it's

20safe; one says it's not safe. Now, how can a statute

21like that be considered viewpoint-neutral?

22

MS. MILLER: Your Honor, I think what the

23statute distinguishes is based on what those two

24different people are doing. The -- as you say, the

25employee could say, if she was performing her job, which

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1would be escorting that individual into the facility,

2and if she wasn't unnecessarily cluttering up the -- the

3buffer zone, which was the reason that the statute

4was -- was enacted in the first place, then that person

5could say that. You judge it on what she's doing, not

6what she's saying.

7

JUSTICE ALITO: Well, that's what she -­

8what she's doing is what she's saying. She approaches

9and she says this is a safe facility. The other one

10says it's not a safe facility. They have a bad safety

11record. And they're -- they're the only people in the

12zone.

13

MS. MILLER:

Right.

14

JUSTICE ALITO:

If it's as big as this

15

courtroom, they're the only three people in that zone.

16

MS. MILLER:

Right.

17

JUSTICE ALITO:

The difference is a

18

viewpoint difference.

 

 

19

MS. MILLER:

The -- what the legislature has

20done is that it has created a circle around these

21entrances and has only permitted particular conduct

22within that buffer zone to allow the traffic to keep

23moving on the sidewalk and to allow people to get in and

24out. So unless you have a permissible purpose for your

25conduct to be in the buffer zone, then you cannot be in

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1the buffer zone and that is what the statute is

2addressing. With respect -­

3

JUSTICE SCALIA: I don't understand it.

4It's a permissible purpose to say this is a safe

5facility, but not a permissible purpose to say this is

6an unsafe facility?

7

MS. MILLER:

The

-­

8

JUSTICE SCALIA:

Is that -­

9

MS. MILLER:

The

statute is not focused on

10that person's speech. The statute is focused on -- on

11what they're doing in the buffer zone.

12

JUSTICE KENNEDY: But the consequence is

13just what is described by Justice Scalia; that is, the

14consequence of the statute. Are you saying that the

15consequences of what you write are irrelevant to this

16argument?

17

MS. MILLER:

Certainly, I

wouldn't say that,

18

Your Honor. However, with respect to

-­

19

JUSTICE KENNEDY: It seems to me that you

20

should answer Justice Scalia's question, then.

21

MS. MILLER:

With respect to viewpoint

22discrimination, Your Honors, the statute has a perfectly

23legitimate sweep. It allows people to go in and out of

24the building. It allows pedestrians to go -- move back

25and forth across the sidewalk, and it allows for even

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1employees, the snow shovelers mentioned in the Walter

2Dell brief.

3

JUSTICE ALITO: Well, you could have created

4a completely silent zone. Now, I don't know whether

5that would be permissible or not, but it would be a

6different question. You could have -- you could say

7nobody can speak here. People can shovel snow. If they

8work for the -- for the clinic, they can sweep the

9sidewalk, they can do maintenance, they can go in and

10they -- and out, but they can't utter a word.

11

Well, that would be a different statute.

12But that's not this statute. This statute says that

13there is an exemption for employees of the facility if

14they are operating within the scope of their employment.

15And surely coming out and saying this is a safe facility

16is within the scope of their employment.

17

MS. MILLER: Right.

18

JUSTICE ALITO: So how do you justify that?

19Forget about the conduct now. The speech that's

20allowed. One can speak and say it's safe. The other

21cannot speak and say it is not safe.

22

MS. MILLER: What I would argue, Your Honor,

23is that speech in that particular circumstance of the

24employee actually doing her job and not unnecessarily

25cluttering the buffer zone, what -- then that speech is

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1simply incidental to the permissible conduct. And it

2doesn't make the statute on its face -- it doesn't make

3it viewpoint-discriminatory. Because as I said -­

4

JUSTICE ALITO: You think it's incidental?

5What if there's a real question about whether this is a

6safe facility? That's incidental speech?

7

MS. MILLER: It's incidental to her

8performing her job. And, Your Honor, it -- if there

9were a circumstance where that kind of speech were

10habitual or widespread or touched on advocacy in any

11way, shape or form, then obviously, Petitioners would

12have an opportunity to challenge the statute as applied.

13But, of course, they haven't even begun to make the case

14that there's viewpoint discrimination actually happening

15in the buffer zone.

16

JUSTICE KENNEDY: It's very hard for me to

17credit the statement or the implication that for an

18employee to say, "We're glad you're here. You're going

19to be well taken care of. This is a safe facility.

20It's important for you to be here," it's very hard for

21me to credit your statement that that's incidental to

22their function.

23

MS. MILLER: It's incidental to the

24permissible purpose for which they are allowed in the

25buffer zone. And I should point out, actually, that

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1PPLM -- and again, this is in the Walter Dillinger brief

2at page 2A -- they actually train their escorts not to

3engage in that kind of speech. So that's first of all.

4And second of all, escorts really only exist and only

5operate in Boston on Saturday mornings for a couple of

6hours. They don't work at all in Worcester or

7Springfield.

8

JUSTICE KAGAN: Well, that raises another

9question, Ms. Miller, because I assume that that's true

10because the crowds and the obstruction really are with

11respect to one facility at certain periods of time. So

12Mr. Rienzi says, look, if it's at one facility, not all

13ten of them or whatever it is, and it's only for certain

14periods of time, not all day every day, you know, why

15not narrow it that way?

16

MS. MILLER:

Right.

17

JUSTICE KAGAN: So why not?

18

MS. MILLER:

Because the experience has

19shown that you do have problems at Worcester and

20Springfield, and those problems do center around the

21driveways. 85 to 90 percent of patients who approach

22those facilities do so by car. And the only public

23sidewalk -- there's a small slice of public sidewalk

24between the road and the private driveway, and that's

25the only opportunity that you'd -- that individuals

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1

would have in order to protest.

2

And what's happened in the past in Worcester

3and Springfield is that you would have pacing across

4these driveways. That's at Joint Appendix 41. You'd

5have individuals stopping and standing and refusing to

6move in Worcester. You'd have literature thrown into

7cars. You'd have hands and heads thrust into open

8windows. And there was at least one accident in

9Worcester. That's at J.A. 19.

10

So there definitely was conduct that was a

11problem, and it wasn't even that there are a couple of

12lone protestors in Worcester or Springfield. There are

13events in Worcester and Springfield. There are regular

14protestors there every week, first of all. And second

15of all, the crowds get much larger at the semi-annual -­

16

JUSTICE SCALIA: I -- I object to you

17calling these people protestors, which you've been doing

18here during the whole presentation. That is not how

19they present themselves. They do not say they want to

20make protests. They say they want to talk quietly to

21the women who are going into these facilities. Now how

22does that make them protestors?

23

MS. MILLER: Your Honor, the problem, of

24course, that the statute was looking to address was not

25with protestors, per se. It was with people who had a

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1desire to be as close to the facility doors and

2driveways as possible to communicate their message. But

3the result of that was congestion around these doors and

4driveways.

5

So it wasn't a concern about the protest; it

6

was a concern about people actually being able to use -­

7

JUSTICE KAGAN: And I would think,

8Ms. Miller, that if you tried to do a statute that

9distinguished between protestors and counselors, that

10would be content-based much more than this statute is.

11

MS. MILLER: I

would agree.

12

JUSTICE KAGAN:

I mean, but -- you know,

13which is not to say that this statute doesn't have its

14problems, in my view. I mean, so I guess I'm a little

15bit hung up on why you need so much space.

16

MS. MILLER: Again, the experience. We've

17had quite a long experience in Massachusetts, a long

18history of crowds around these doors or of even violence

19at the clinics. And we've had law enforcement and

20others who have viewed that crowd on a regular basis and

21have described it, the activity around the doors and

22driveways, as being so frenetic. You have so many

23people there, the bad actors and the good actors. You

24have so many people congested in the same space from all

25points of view that it effectively blocks the door.

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1

JUSTICE ALITO: Well, before you sit down,

2can I ask you this question that's suggested by the

3AFL-CIO briefs. Suppose the State legislature has

4hearings, and they say there's a long history of

5violence and obstruction at sites where there is a

6strike and replacement workers have been called in.

7

Could the -- could a State pass a statute

8that says there is a 35-foot zone like this around every

9location in the State whenever there is a strike and

10there are replacement workers? Could they do that?

11

MS. MILLER: Right. Well, of course labor

12actions are protected by Federal law, so any State law

13couldn't directly conflict with the -­

14

JUSTICE ALITO: All right. Could Federal

15

law do that?

16

MS. MILLER: Well, this Court has repeatedly

17upheld restrictions on labor activity, if given the

18right record. So there is -- so the answer is yes, the

19First Amendment would permit regulation on the record -­

20

JUSTICE ALITO:

In every case, in every

21

case -­

 

22

MS. MILLER: No, no, no.

23

JUSTICE ALITO:

-- there could just be a

24flat rule. Doesn't matter whether there is any history

25at that place, any indication there's going to be

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1violence. Maybe there will, maybe there won't. Across

2the board, a zone around every place where there's a

3strike.

4

MS. MILLER: Right. Well, certainly it

5would be an easier case to defend if there was a

6history, as we have here. And you'd have to prove that

7the solution -­

8

JUSTICE ALITO: You don't think there's a

9history -- you don't think there's a history of violence

10at places where there are strikes and replacement

11workers?

12

MS. MILLER: Well, I don't think there has

13been the kind of history and sustained violence that

14we've had -- this almost unique record in Massachusetts

15with respect to facilities. But Your Honor, I would say

16-­

17

JUSTICE ALITO: That's not my understanding

18

of the labor history.

19

MS. MILLER: -- does not have is -­

20

JUSTICE SOTOMAYOR: Is there any abortion

21clinic that has not had -- is there any abortion clinic

22that has not had a problem in Massachusetts?

23

MS. MILLER: In -- there was, when the

24legislature was considering the statute, there was a

25survey submitted by NARAL that reviewed the experience

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1of the ten facilities that were then in existence in

2Massachusetts. And six of them said that they had

3significant problems outside of their facilities. Eight

4of them said, at the very least, they had regular

5protestors. There were two who did not report that

6there was a significant problem.

7

JUSTICE SCALIA:

This is testimony by the -­

8

by the clinics themselves, right?

9

MS. MILLER: Correct.

10

Thank you, Your Honors.

11

CHIEF JUSTICE ROBERTS: Thank you, counsel.

12

Mr. Gershengorn.

 

13

ORAL ARGUMENT OF IAN H. GERSHENGORN

14

FOR UNITED STATES, AS AMICUS CURIAE,

15

SUPPORTING THE RESPONDENTS.

16

MR. GERSHENGORN:

Mr. Chief Justice, and may

17

it please the Court:

 

18

The Massachusetts statute here is simply a

19place regulation that does not ban speech, but instead

20effectively moves it from one part of a public forum to

21another, in this case away from the small areas -­

22

JUSTICE SOTOMAYOR:

Which of our -- which of

23

our precedents do you think governs this case?

24

MR. GERSHENGORN:

So, Your Honor, I think

25

that there are a number of precedents that are helpful.

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1Madsen, of course, upheld the 36-foot buffer zone that

2had a no-speech zone very much like this.

3

JUSTICE GINSBURG:

That was

an injunction.

4

MR. GERSHENGORN:

It was an

injunction, Your

5Honor, but it was upheld under an even stricter standard

6that -- that is applies here. But even aside from that,

7I think a number of the pillars of Petitioners'

8arguments here are directly contradicted by this Court's

9precedents. So, for example, the idea that -- that

10unrestricted -- that you have the right to choose the

11best mechanism of communication is contradicted by

12Hefernon and by Frisby. In Hefernon, there was -- the

13Petitioner said, "I need to be able to talk quietly to

14people to ask for money, and that's the only way I can

15get it." And this Court said you have ample

16communication channels -- alternative channels over in

17that booth.

18

In Frisby, what the protestor wanted to do

19was target a house, and what this Court said in Frisby

20was you have alternative channels of communication. You

21can go door to door. You can mail things. You can make

22calls. So I think that that pillar of the -- of the

23argument -­

24

JUSTICE SCALIA: What's the alternative

25 here?

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1

MR. GERSHENGORN:

The alternative --

2

JUSTICE SCALIA:

Standing 35 feet away and

3

yelling?

 

4

MR. GERSHENGORN:

No, Your Honor.

5

JUSTICE SCALIA:

Is that the alternative?

6

MR. GERSHENGORN:

No, Your Honor.

7

JUSTICE SCALIA:

To comfort these women?

8

MR. GERSHENGORN:

No, Your Honor. The

9alternative in this case is the entire length of the

10sidewalk, quiet counseling, leafletting, and

11conversation is permitted. It is the last four to five

12seconds before the petition -- before the counselors

13enter the clinic that -­

14

JUSTICE SCALIA:

They don't know who's going

15

into the clinic.

 

16

MR. GERSHENGORN:

Your Honor, the

17

testimony -­

 

18

JUSTICE SCALIA:

Until you get to the area

19close to the clinic, you don't know whether passersby

20are going there or not.

21

MR. GERSHENGORN: Your Honor, the testimony

22is actually to the contrary, that they get -- that Ms.

23McCullen and others get quite good at identifying who is

24going and is not going into the clinic. And actually -­

25so what we're talking about is the last four to five

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1

seconds before they go in.

And Justice Kagan -­

2

JUSTICE KENNEDY:

Is your concern that,

3absent this statute, there will be physical obstruction

4to the entrance? Is that a major concern?

5

MR. GERSHENGORN: So, Your Honor, let me

6address that. The answer is -- the answer is yes, but

7that's not all. What the legislature had before it, and

8Justice Breyer -­

9

JUSTICE KENNEDY: Let me ask, if that's -­

10if that's your concern, how many Federal prosecutions

11were brought in Massachusetts for physical obstruction

12under the Federal statute?

13

MR. GERSHENGORN: Your Honor, I'm not aware

14of the number. There are 45 FACE prosecutions

15nationwide. But FACE is a very different statute. The

16criminal prosecutions in FACE are for -- are for murder,

17arson, and for chaining yourselves to doorways. They

18are not for the kind of quiet counseling and -- and

19picketing that's at issue here.

20

JUSTICE KENNEDY: But the Federal interest

21that you're the defending is you don't want this

22physical obstruction statute to be misinterpreted.

23

MR. GERSHENGORN:

That's right.

24

JUSTICE KENNEDY:

But what's wrong with the

25

physical obstruction statute as an answer to many of the

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1

problems that Massachusetts is facing?

2

MR. GERSHENGORN: Your Honor, I don't think

3it's at all an answer to the problems Massachusetts is

4facing because, as Justice Scalia has repeatedly pointed

5out, these are not the type of defendants who are at

6issue in the FACE Act. What FACE Act is talking about

7is murder, arson, and chaining to doorways.

8

What this statute is getting at is something

9quite different. It is congestion in front of doorways.

10It is people -- individuals handing out -­

11

JUSTICE KENNEDY:

That's obstruction under

12

the Federal statute.

 

13

MR. GERSHENGORN:

It is not, Your Honor,

14because those are specific intent crimes in both

15Massachusetts and in the Federal statute. The -- for

16example -­

17

JUSTICE KENNEDY: Justice Holmes said even a

18dog knows the difference in being stumbled over and

19being kicked.

20

MR. GERSHENGORN:

So, Your

Honor

-­

21

JUSTICE KENNEDY:

Can't --

can't

-- you're

22saying Federal prosecutions can't tell when people are

23deliberately obstructing -­

24

MR. GERSHENGORN:

I'm saying

-­

25

JUSTICE KENNEDY:

-- this is

beyond -- this

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1

is beyond the realm of the law?

2

MR. GERSHENGORN: I'm saying what's at issue

3here, Your Honor, is not that kind of -- of deliberative

4obstruction. What the testimony before the legislature

5was, was that there was a congregation of people and the

6massing of people. That indeed, there were Pro Choice

7protestors in the zone who have -- certainly are not

8intending to obstruct. And it was -- so what they were

9dealing with was quiet counseling leading to -­

10counter-counseling leading to congestion in front of the

11doorways.

12

There also was testimony that there were

13people handing literature to moving cars, accidents and

14near accidents, which are not intentional obstruction in

15the least. The kinds of statutes that this Court -­

16that -- that are at issue in the specific intent crime

17in Massachusetts and the FACE Act do not get at the kind

18of peaceful, quiet, yet congesting and disrupting

19conduct that is at issue here.

20

And, Justice Breyer, I would urge you to

21look at the Evans testimony at Joint Appendix 67 to 71.

22The Hefernon testimony at 79 to 80. The Coakley

23testimony of JA-51, and the Capone testimony at JA-19.

24There are specific arguments as to why these did not

25work.

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1

The argument Petitioners make here, Your

2Honors, is very, very broad. The lower courts have

3upheld buffer zones around political conventions, around

4circuses, around funerals. The idea that you could

5defeat those buffer zones by simply saying, I would like

6to have a quiet conversation with the delegates as they

7go into the political convention, would wipe out a

8number of court of appeals decisions and the kind of

9buffer zones that this Court, I submit, and that the

10lower courts have found are -- are needed. Justice -­

11

JUSTICE ALITO: Well, how far do you

12think -- what do you think a State legislature or

13Congress needs to find in order to establish a zone

14around some category of facility at which there -- they

15have some evidence that there have been some disruptions

16and some obstruction?

17

MR. GERSHENGORN:

So, Your Honor

-­

18

JUSTICE ALITO:

Take the example

of -- I

19think it's -- it's a real -- real ordinance someplace

20you can't have, there's a buffer zone around fraternal

21lodges.

22

MR. GERSHENGORN: So, Your Honor, I'm not

23aware of the history of fraternal lodges, but what's at

24issue here is really -­

25

JUSTICE ALITO: What would they have to

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1find? Or slaughterhouses. Or labor -- or sites where

2there are strikes.

3

MR. GERSHENGORN: So I think -- I think, for

4example, in the slaughterhouse or what they found in -­

5around circuses and conventions is the idea that there

6is massing of people that prevents the orderly ingress

7and egress to and from the facilities.

8

What the State was dealing with here was not

9an isolated incident, but the State had 14, 15 years of

10history of the massing. They had tried other things.

11They had tried the statutes that Justice Scalia

12identified. They had tried a narrower buffer zone, and

13the testimony was it wasn't working, and that the police

14were coming in and said, we can't enforce it. Why is

15that? Because they had a hard time measuring consent,

16evaluating what does -­

17

JUSTICE ALITO: What kind of a record do

18they need? Could -- could there be a State law that

19says no picketing around any -- you can never have a

20picket around any store to try to prevent people -- to

21tell people don't go -- don't patronize this store.

22Could they do that? Isn't that Thornhill v. Alabama?

23

MR. GERSHENGORN:

Right. And what -­

24

actually, in Thornhill, they struck that down.

25

JUSTICE ALITO:

Right.

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1

MR. GERSHENGORN: But it was very different

2from this statute. Thornhill's was you can't go

3anywhere near the facility and it was -- it was only one

4type of speech.

5

This is content neutral and it is -- it is a

6

narrow buffer zone.

7

Justice Kagan, I really urge you to -­

8

because -­

9

10 Stop.

11

12

JUSTICE ALITO: Well, I mean, I understand. I'll ask this one more time.

MR. GERSHENGORN: Yes.

JUSTICE ALITO: I think it's -- I understand

13the -- the desire to create a buffer zone around certain

14sensitive facilities. What I'm asking is: What

15requirements, if any, does Congress or a State

16legislature have to meet before they can do that? If it

17is done, do we simply say they -- they have a rational

18basis for it and that's it, so they can establish

19basically a buffer zone around any kind of a facility

20they want. If not, then what needs to be established?

21

MR. GERSHENGORN: So, Your Honor, I think in

22the evidentiary realm, it's hard to have hard-and-fast

23rules. I would say you would need a lengthy history of

24serious congestion and other problems and -- and a -­

25some sort of showing that the alternatives weren't

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1working, but that's what's here. This problem has been

2going on in Massachusetts since 1994. This is not

3something the legislature woke up one day and said in

4light of one incident, we're going to -- to deal with

5this. They tried other things. They -- and the

6evidence, therefore, supported this. What would it take

7to support a broader statute? It's hard for me to say,

8but I think this record shows.

9

Justice

Kagan,

can I -­

10

JUSTICE

ALITO:

One more thing. What about

11the example of a strike? There certainly is a long

12history of labor violence in places where there are

13replacement workers. Could that -- could it be done in

14that situation across the board?

15

MR. GERSHENGORN: So I think that would be a

16very broad statute and hard -- hard to defend. But if

17there were before the legislature, as there is in this

18case, the kind of congestion -- and the solution, I

19submit, is much narrower than the Petitioners are

20suggesting. It is to clear out an area around the

21entrance.

22

JUSTICE BREYER:

What kind of -­

23

MR. GERSHENGORN:

Justice Kagan, the

24testimony is 22 feet from the entrance in Boston,

2522 feet from the edge of the doorway to the edge of

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1the -- of the buffer zone. It is from me to the

2marshal. It is not to the back of the courtroom. It

3is -- it is an NBA 3-point zone. I don't -- it is not

4the -­

5

JUSTICE BREYER:

But I understand you're

6

saying the reasonableness of it.

7

(Laughter.)

 

8

JUSTICE BREYER:

But go back to

9Justice Alito's first question. Maybe we can make some

10progress here.

11

The regulation of labor is up to the NLRB.

12All right. Now, the NLRB does regulate picketing. It

13does say what you can do and can't do, and the courts

14have reviewed that. And you -- what standard do courts

15use when the NLRB decides, in its wisdom and expertise,

16well, the pickets can go here, but they can't go there.

17You can do this, but you can't do that. All of which

18have speech implications. What standard of review do

19the courts use?

20

MR. GERSHENGORN:

Your Honor, I am not aware

21

of the standard they use, but

it is a -­

22

JUSTICE BREYER:

Are you aware of any

23case -- I'm putting it -- loading it because -- only

24because to show my ignorance of it -- where the standard

25has differed from the ordinary APA standard?

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1

MR. GERSHENGORN:

I'm not, Your Honor. I'm

2

not aware of cases one way or

the other.

3

JUSTICE BREYER:

Should we create a new

4standard for reviewing this kind of regulation? I think

5that's actually a serious question.

6

MR. GERSHENGORN: I don't think so, Your

7

Honor. Thank you.

8

CHIEF JUSTICE ROBERTS: Thank you, counsel.

9

Mr. Rienzi, you have three minutes

10 remaining.

11

12

13

14

REBUTTAL ARGUMENT OF MARK L. RIENZI

ON BEHALF OF THE PETITIONERS

MR. RIENZI: Thank you, Mr. Chief Justice. Several points. First, it's not impossible

15to draw a statute to deal with the problems. 49 other

16states deal with the alleged problems. The next

17prosecution Massachusetts institutes for blocking a door

18will be its first in at least two decades.

19

JUSTICE KAGAN: Is that true, Mr. Rienzi?

20

Is Massachusetts' statute the only one of this kind?

21

MR. RIENZI: It is the only State statute of

22its kind. There are a few municipal statutes of -- that

23are similar that are, frankly, based on the First

24Circuit decisions in this case.

25

Secondly, here, the police officers

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1testified that they know all the regular players at the

2clinics. That's their testimony. They know them all.

3Well, if you know them all and if they're congregating

4in the doors and they need to get out of the doors, you

5should go to court and get an injunction and say, stay

6out of the doors. Until they do that, the claim that

7they have to throw their hands up and put people in

8prison for peaceful speech is not a very persuasive

9claim.

10

Secondly, all of the evidence that the

11United States cited -- cited you to from the record, all

12of it, Boston, Saturday mornings. The claim that the

13legislature can extrapolate from that to ban peaceful

14speech in Boston at other times when the sidewalk is

15empty, and at other clinics where the sidewalk is empty

16and say, well, there's abortion there, and where there's

17abortion, we expect certain speech problems, therefore,

18we're going to make it illegal to speak there.

19

That's the State's claim here. The evidence

20is Boston specific. The First Amendment requires

21precision. They need to regulate the problem where it

22happens and if that means police officers, if that means

23dispersal laws, if that means actually bringing a FACE

24prosecution, which the United States has never done,

25they ought to do that. But they shouldn't imprison

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1

Mrs. McCullen for her speech.

 

2

Third, the United States mentions -­

3

JUSTICE SOTOMAYOR:

Are you questioning the

4

government's representation?

I haven't looked at FACE.

5

MR. RIENZI:

I don't believe the

6

government -­

 

 

7

JUSTICE SOTOMAYOR:

Is it limited to the

8

three situations, to -- to murder, arson and chaining?

9

MR. RIENZI:

Thank you, Your Honor.

10

No, it is not. The statute is not remotely

11limited to that. I direct the Court to Section C -- I'm

12sorry, Section -- it's the definitions section of the

13statute. Definition 4, physical obstruction, includes

14even making entry unreasonably difficult. It is not at

15all solely for violence. It's for physical obstruction

16even making it unreasonably difficult.

17

Counsel said that they brought 45 cases

18across the country. That's true. Zero, zero in

19Massachusetts. They shouldn't be able to restrict the

20peaceful speech.

21

Lastly, to the extent the Court feels the

22need to recognize that there are some situations that

23are so extraordinary that we should put people in prison

24for peaceful conversations on public streets, that ought

25to be the exceptional case where the statute passes

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1strict scrutiny and the State actually has tried the

2solutions that it claims don't work. That is not this

3case. The government does not claim its restriction to

4pass strict scrutiny. They didn't say it would be

5impossible. They said it would be hard. 49 other

6states do different things. The Federal government

7protects peaceful speech in the FACE law. FACE is a

8great example of something that deliberately gets at the

9problem and if somebody's in the doorway and they need

10to get out of the doorway, the answer is, sir, please

11get out of the doorway. It is not dragging

12Mrs. McCullen off to prison because she has a consensual

13conversation 25 feet away from the doorway.

14

That's an extraordinary power for the

15government to ask to selectively control speech among

16willing participants on public sidewalks.

17

Thank you very much.

18

CHIEF JUSTICE ROBERTS: Thank you, counsel.

19

The case is submitted.

20

(Whereupon, at 11:04 a.m., the case in the

21

above-entitled matter was submitted.)

22

 

23

 

24

 

25

 

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A

a.m 1:14 3:2 61:20

ability 21:23 28:18

able 15:19 21:17 44:6 48:13 60:19

abortion 3:19 6:6 9:4 16:21 18:11 24:10 26:8,8 27:3,9,9 27:15,17,23 28:2,3,11 29:3 29:5,7,11,15 29:20 46:20,21 59:16,17

abortions 29:8 above-entitled

1:12 61:21 absent 50:3 absolute 26:9 absolutely 9:9 accept 16:18 18:24 32:10

acceptable

33:15,17 access 5:16,25

7:2 8:12 13:17 14:11

accident 43:8 accidentally

5:20 accidents 52:13

52:14

act 12:13,14,22 23:17 51:6,6 52:17

acted 23:4 actions 45:12 activists 13:16 activity 25:17

34:4,5 35:11 44:21 45:17 actors 5:14 6:23 7:22 8:8 44:23

44:23

acts 12:18

23:13 35:17,18

 

approved 24:8

 

22:24 23:18

actual 5:13

55:25

 

area 24:11 49:18

 

29:12,21 30:22

address 36:18

Amendment

56:20

 

33:24 39:24

36:20 43:24

3:15 11:1,11

 

areas 47:21

 

57:2,8

50:6

12:15 13:3,6

 

argue 12:3 40:22

 

background

addressed 23:25

15:4,11 24:20

 

argues 7:19

 

14:20

24:1 37:4

45:19 59:20

 

argument 1:13

 

bad 5:13 6:23

addressing 39:2

amicus 1:22

2:2,5,8,12 3:4

 

7:22 8:8 28:17

adequacy 23:13

2:10 8:4 14:19

3:7 5:12 7:10

 

29:13 38:10

adequate 35:17

24:3 47:14

7:24 8:14 20:7

 

44:23

35:18

amount 31:14

20:14 28:24

 

ban 28:8 47:19

adjudicated

33:6,20,22

39:16 47:13

 

59:13

6:10

amounts 17:19

48:23 53:1

 

Barry 24:8

advance 4:22

ample 48:15

58:11

 

based 27:23

advocacy 41:10

analogy 9:15

arguments 48:8

 

31:5 37:23

advocates 31:16

analysis 3:15

52:24

 

58:23

31:16

35:8

arrest 26:7 27:7

 

basically 55:19

AFL-CIO 45:3

Angeles 24:5

27:10

 

basis 44:20

agree 8:13 19:12

animal 13:16

arrested 28:13

 

55:18

20:3 25:1 27:4

answer 20:2

arson 50:17 51:7

 

bearing 35:8,9

27:20 44:11

39:20 45:18

60:8

 

beg 24:24

Agreed 11:6

50:6,6,25 51:3

aside 48:6

 

beginning 4:9

ahead 20:2

61:10

 

asked 3:22 19:4

 

begun 41:13

AL 1:3,7

anybody 24:11

19:14 20:7

 

behalf 1:16,19

Alabama 54:22

24:12

asking 20:20

 

2:4,7,14 3:8

Alito 8:25 14:18

anymore 8:2

55:14

 

28:25 58:12

25:6,9,11 37:7

anyplace 15:2

 

aspect 3:24

 

behave 4:23

38:7,14,17

anyway 22:19

asserts 5:12

 

behaved 5:3

40:3,18 41:4

APA 57:25

Assistant 1:18

 

behavior 15:15

45:1,14,20,23

appeals 53:8

assume 16:15

 

believe 6:7 8:22

46:8,17 53:11

APPEARAN...

17:6,8 19:5

 

9:2 26:5,5 60:5

53:18,25 54:17

1:15

21:11 35:3,7

 

Bell 33:10

54:25 55:9,12

Appendix 31:17

36:13 42:9

 

bench 29:25

56:10

43:4 52:21

Attorney 1:6,18

 

best 34:24 48:11

Alito's 57:9

applicable 14:14

25:15 26:2,25

 

better 16:10

alleged 58:16

applied 41:12

28:1,9

 

17:5 23:12,13

allow 16:5 33:23

applies 3:19 4:4

audience 21:23

 

beyond 51:25

36:12 38:22,23

5:2 8:16 48:6

22:7,9,13

 

52:1

allowed 26:13

apply 19:8

 

authority 26:6

 

big 13:3 38:14

40:20 41:24

applying 10:3

aware 6:8 33:20

 

bit 12:23 44:15

allowing 18:19

appreciated

50:13 53:23

 

block 5:20,24

allows 39:23,24

12:9

57:20,22 58:2

 

blocked 5:1,16

39:25

approach 37:11

 

 

 

blocking 4:21

 

B

alternative

42:21

 

 

7:23 16:23

 

back 5:10 11:13

 

26:18 48:16,20

approaches 38:8

 

 

35:12 36:11

48:24 49:1,5,9

approaching

14:4,12 15:17

 

58:17

alternatives

37:10

20:7,12 22:12

 

blocks 44:25

 

 

 

 

 

 

Alderson Reporting Company

Official - Subject to Review

63

board 46:2 56:14

Boos 24:8 booth 48:17 Boston 1:19

8:19 30:6 42:5 56:24 59:12,14 59:20

boundary 9:19

Breyer 9:5 10:1 10:13 11:21 17:4 18:5 19:1 19:14 20:4,9 20:17,20 30:21 31:4,12 32:8 32:24 33:24 34:20 50:8 52:20 56:22 57:5,8,22 58:3

Breyer's 35:9 36:9 37:2

brief 13:15 24:3 24:3 33:11 40:2 42:1

briefs 14:19 45:3 bringing 59:23 broad 12:8,10

53:2 56:16 broader 56:7 broken 6:10 brought 6:12,21

50:11 60:17 bubble 18:15 19:8,16 buffer 14:21 16:16 21:8 23:7 27:14

31:17 33:6,12 33:14,16 38:3 38:22,25 39:1 39:11 40:25 41:15,25 48:1 53:3,5,9,20 54:12 55:6,13 55:19 57:1

building 39:24

C

C 2:1 3:1 60:11 call 13:23 called 7:2 45:6 calling 43:17 calls 48:22 calm 30:24 31:3

31:7 cameras 8:20 Capone 52:23 car 30:10,13,15

30:16 42:22 care 10:3 41:19 cars 43:7 52:13 case 3:4 6:9,11 6:13 8:1,2,17

10:17 11:14,22 12:6 14:19 15:18 16:18 17:2,7,8 24:9 24:18 25:4 26:12 29:6,16 29:16,18 30:23 30:24 31:24 32:9,11,14 41:13 45:20,21 46:5 47:21,23 49:9 56:18 57:23 58:24 60:25 61:3,19 61:20

cases 8:5 34:9 36:19 58:2 60:17

category 53:14 center 42:20 certain 3:17

31:14 42:11,13 55:13 59:17

certainly 8:24 29:18 31:2,10 39:17 46:4 52:7 56:11

cetera 12:7 18:13

chaining 50:17 51:7 60:8

challenge 41:12

clearly 11:10

9:24 23:8

challenged 6:1

Cleveland 28:13

concept 10:11

chance 22:9,13

clients 8:10

10:15

change 15:21

clinic 4:12 6:6

concern 5:9 8:15

changes 15:7

7:3 8:18 16:21

44:5,6 50:2,4

channels 48:16

20:12 21:8,22

50:10

48:16,20

22:1,2,5 23:22

concerned 8:18

chants 15:23

26:9,13,14

concession 9:6

character 15:7

27:1 28:6 32:3

Concord 24:4

characterizati...

35:5 37:10

conditions 23:21

22:21 32:14

40:8 46:21,21

conduct 38:21

characterizati...

49:13,15,19,24

38:25 40:19

20:21

clinics 3:19 5:25

41:1 43:10

characterize

9:1,3,4 44:19

52:19

20:22

47:8 59:2,15

conduct-free

chief 3:3,9 25:21

close 8:11 21:21

24:23

28:22 29:1

32:5 35:16

conflict 45:13

30:1 47:11,16

44:1 49:19

congested 44:24

58:8,13 61:18

cluttering 38:2

congesting

choice 31:15,19

40:25

52:18

52:6

Coakley 1:6 3:5

congestion 4:2,5

choose 48:10

52:22

4:17 18:9

chose 33:21

coffee 26:23

29:18 32:6

church 10:19

Colorado 17:8

44:3 51:9

11:9

17:10,14 19:22

52:10 55:24

circle 38:20

19:25

56:18

Circuit 26:12,19

come 12:2 17:1

congregating

28:12 58:24

comfort 49:7

59:3

circumstance

coming 10:6

congregation

40:23 41:9

40:15 54:14

52:5

circumstances

commingled

Congress 53:13

3:21 5:18

34:5

55:15

circuses 53:4

Commissioner

consensual 4:16

54:5

34:24

5:19 12:12

cite 6:7

committed

13:4 15:8

cited 32:11

37:17,17

16:11 17:18

33:11 59:11,11

communicate

61:12

citizens 3:13

44:2

consent 54:15

claim 19:13 59:6

communication

consequence

59:9,12,19

35:5,14 48:11

39:12,14

61:3

48:16,20

consequences

claiming 7:10,22

companion 28:6

39:15

claims 5:15

28:7

considerable

24:19 61:2

compare 12:16

4:20

Clark 4:11,15

compelling 17:2

consideration

clear 8:3 16:8

completely 40:4

16:16

56:20

concede 9:6,20

considered

 

 

 

Alderson Reporting Company

Official - Subject to Review

64

37:21

32:10 34:11

considering

49:10 50:18

46:24

52:9

Constitution

counselors 24:10

20:24

44:9 49:12

constitutional

counter-couns...

21:1

52:10

contact 15:25

country 60:18

content 27:22

couple 10:22

55:5

14:7 42:5

content-based

43:11

26:19 27:2

course 15:14

44:10

33:13 34:23,24

contested 25:15

36:2 41:13

context 16:18

43:24 45:11

contradicted

48:1

48:8,11

court 1:1,13

contrary 49:22

3:10,11,14,22

control 61:15

18:2,19 24:7

convention 53:7

28:10,15 29:2

conventions

29:25 33:13

53:3 54:5

36:25 45:16

conversation

47:17 48:15,19

3:18 4:16 5:19

52:15 53:8,9

11:8 12:12,12

59:5 60:11,21

13:5 15:2

Court's 13:6

16:12 19:19

14:7 48:8

21:13,17 23:17

courtroom 30:2

31:3 32:6

30:3,19,20

36:12 49:11

38:15 57:2

53:6 61:13

courts 53:2,10

conversations

57:13,14,19

15:9 29:19,21

covered 9:1

30:25 31:8

crease 35:1

35:16 60:24

create 55:13

converse 35:25

58:3

convict 18:4

created 33:21

convictions 8:5

38:20 40:3

convince 19:19

creates 14:21

correct 26:24

creating 32:6

47:9

credit 41:17,21

counsel 18:24

crime 3:16 37:17

28:22 31:8

37:18 52:16

47:11 58:8

crimes 51:14

60:17 61:18

criminal 12:13

counseling 4:8

23:17 50:16

4:11 29:16

crowd 44:20

 

 

crowds 8:17 24:2,6 42:10 43:15 44:18

cup 26:23 curiae 1:22 2:10

47:14 current 5:7

D

D 3:1

D.C 1:9,16,21 day 3:20 8:19

42:14,14 56:3 dead 24:15 deal 5:8,22 7:12

23:20 24:5 56:4 58:15,16

dealing 52:9 54:8

decades 58:18 decide 26:20 decides 57:15 decision 6:9

31:5 decisions 13:6

14:7 53:8 58:24

decreases 23:11 defeat 53:5 defend 46:5

56:16 defendants 51:5 defending 50:21 defense 26:9 definitely 43:10 Definition 60:13 definitions 9:4

60:12 delegates 53:6 deliberate 5:13

7:22 deliberately

5:15 7:11,23 51:23 61:8

deliberative

52:3

Dell 40:2

demonstrators

dispersal 24:2

11:23

59:23

denying 20:17

disperse 24:6

Department

disrupt 12:18,24

1:21

13:5

depending 17:20

disrupting 52:18

Deputy 1:20

disruption 11:4

described 36:13

disruptions

39:13 44:21

53:15

description

disruptive 5:4

34:24,25

10:25

designed 7:12

distinction

desire 44:1

32:21 34:4

55:13

36:17 37:8

detail 17:25 18:1

distinctions

details 10:2,13

32:18

differed 57:25

distinguished

difference 13:8

44:9

19:21 20:15,18

distinguishes

37:18 38:17,18

32:16 37:23

51:18

distortion 13:10

different 5:11,21

distorts 29:10

12:20 15:21

district 33:12

17:19 20:21

disturbance

24:17 37:19,24

4:24

40:6,11 50:15

disturbances

51:9 55:1 61:6

4:21

differently 12:2

doctrinal 35:15

20:11

dog 51:18

difficult 14:23

doing 9:8 15:10

19:7 32:15

17:3 20:25

33:2 37:4

26:4,11 37:24

60:14,16

38:5,8 39:11

Dillinger 42:1

40:24 43:17

direct 60:11

door 5:16,20

directly 45:13

7:23 30:1,6,8,8

48:8

37:10 44:25

disagree 21:19

48:21,21 58:17

discovered

doors 44:1,3,18

17:13

44:21 59:4,4,6

discrimination

doorway 7:25

39:22 41:14

8:23,23 56:25

discussing 27:3

61:9,10,11,13

37:1

doorways 50:17

discussion 15:16

51:7,9 52:11

discussions

dragging 61:11

18:22

dramatic 15:10

 

 

Alderson Reporting Company

Official - Subject to Review

65

draw 58:15 drawn 12:18 16:10 24:1 drive 22:10,18

23:1 drivers 15:25

driveway 22:11 42:24

driveways 42:21 43:4 44:2,4,22

duty 36:20

E

E 2:1 3:1,1 5:23 6:24

earlier 36:13 early 4:8 22:7 easier 46:5 easy 13:17 edge 56:25,25 effect 21:22 effectively 44:25

47:20 egress 54:7 Eight 47:3 either 5:7 8:1

24:1 28:17,17 elderly 35:3 ELEANOR 1:3 eliminated 25:2

25:3,7,12 eliminating 13:4

16:11 employee 37:11

37:13,14,25 40:24 41:18 employees 13:20 15:20 16:1

25:7 27:1 28:1 40:1,13

employment

25:10,16,24,24

40:14,16 empty 4:7 59:15

59:15 enact 5:8 enacted 11:25

38:4

31:1,4,7,9,10

enforce 13:24

32:11 34:14

19:25 54:14

53:15 56:6

enforcement

59:10,19

44:19

evidentiary

engage 4:15

18:16 55:22

11:8 12:12

Exactly 30:16

22:23 32:5

example 4:7

42:3

5:23 6:13

enormous 14:16

12:16 13:9,13

enormously 37:3

14:9,10 18:3

enter 3:17 21:8

22:7 23:14

49:13

30:6 31:15

enters 37:10

33:9,10 35:19

entire 6:16,18

36:6 37:9 48:9

49:9

51:16 53:18

entirely 4:6 25:6

54:4 56:11

entrance 4:21,25

61:8

6:5 7:1 16:23

examples 7:8

21:9 22:11

13:14 14:18

30:7 50:4

19:16

56:21,24

exceptional

entrances 38:21

60:25

entry 60:14

exchange 3:13

escorting 38:1

excluded 24:10

escorts 42:2,4

Excuse 28:4

ESQ 1:16,18,20

exemption 27:11

2:3,6,9,13

40:13

essentially 8:18

exist 22:17 42:4

22:8,13 24:19

existence 6:14

establish 53:13

47:1

55:18

expect 59:17

established

experience

55:20

31:13 32:4

et 1:3,7 12:7

33:5,8 42:18

18:12

44:16,17 46:25

evaluating 54:16

expertise 57:15

Evans 52:21

explain 18:8

Evans's 34:25

20:22

event 14:16

explanation

events 43:13

17:17

everybody 14:3

expressed 37:19

24:11 28:8

expressing 11:1

evidence 8:17

27:15

9:20 10:24

extent 7:20,21

19:16,17,24

12:5,7 60:21

21:20 22:12

extraordinary

 

 

60:23 61:14 extrapolate

59:13

F

face 6:13,23 25:18 41:2 50:14,15,16 51:6,6 52:17 59:23 60:4 61:7,7

face-to-face

15:20 faced 4:19

facilities 13:20 29:5 31:15 33:7 42:22 43:21 46:15 47:1,3 54:7 55:14

facility 13:1,9 16:5 17:20 29:20 33:23 37:12,13,14,15 38:1,9,10 39:5 39:6 40:13,15 41:6,19 42:11 42:12 44:1 53:14 55:3,19

facing 51:1,4 fact 5:6 22:24

29:22 facts 12:6 factual 30:5 fails 3:24 fair 22:21 faith 18:8 fall 9:4

far 9:5 11:13 53:11

fear 4:16 Federal 6:13

12:17 45:12,14 50:10,12,20 51:12,15,22 61:6

feels 9:8,9 60:21

feet 12:25,25 13:23 17:18,19 18:15,16 19:9 19:20 20:6 22:12,24 23:9 29:13,14,21,24 29:24 30:8,9 31:5,6,22,23 33:3,21 49:2 56:24,25 61:13

fight 9:21 figure 12:23 find 37:6 53:13

54:1 finding 19:11 fine 23:2 26:23

32:18,20 34:3 34:4 36:17

first 3:4,15 4:4 5:13 11:1,11 12:15 13:3,6 14:24 15:4,11 19:23 24:19 26:5 28:12 37:12,16 38:4 42:3 43:14 45:19 57:9 58:14,18,23 59:20

five 49:11,25 flagrantly 27:5 flat 45:24 fluctuating

23:21 focused 39:9,10 Forget 40:19 form 35:14

41:11 forth 39:25 forum 15:7 47:20 found 19:7

32:15 53:10 54:4

four 49:11,25 fragile 9:10

18:11

Alderson Reporting Company

Official - Subject to Review

66

frankly 7:5 58:23

fraternal 14:21 15:3,13 53:20 53:23

free 3:12 35:24 freestanding 9:3 frenetic 44:22 friendly 31:25

Frisby 48:12,18 48:19

front 8:23 20:13 22:1 29:19 51:9 52:10

frustrate 32:2 function 8:9 22:16 36:4

41:22 functioning

34:25 funeral 10:17

11:9,19 12:17 12:19,25

funerals 13:9 53:4

further 20:7

G

G 3:1

General 1:6,18 1:20 25:15 26:2 28:1,9

General's 26:25 generally 4:7

10:12,14 13:2 14:14 15:5 36:1

Gershengorn

1:20 2:9 47:12 47:13,16,24 48:4 49:1,4,6,8 49:16,21 50:5 50:13,23 51:2 51:13,20,24 52:2 53:17,22 54:3,23 55:1 55:11,21 56:15

56:23 57:20 58:1,6

getting 17:5 25:16,25 26:3 51:8

Ginsburg 4:18 5:12 21:6,13 21:16 25:14,21 27:18,22 48:3

Ginsburg's

23:19

give 10:19 12:8 24:6 36:6 37:9

given 14:19 16:15,20 45:17

gives 14:16 glad 41:18 go 9:5 10:18

11:25 12:14 15:17 16:9 17:15 20:2 21:14 23:14 24:25 26:7,16 30:21 31:5 33:24,24 39:23 39:24 40:9 48:21 50:1 53:7 54:21 55:2 57:8,16 57:16 59:5

goalie's 35:1 goes 7:16 16:3 23:18 26:17

36:9

going 9:19 12:24 13:23 21:17 22:5 26:22 28:5 32:3 34:6 34:21 35:5 36:9 41:18 43:21 45:25 49:14,20,24,24 56:2,4 59:18

good 12:19 17:17 18:8 26:14,17 36:5 37:13,15 44:23

49:23 gotten 8:5 government

14:24 15:5 16:9,10 17:1 24:19,21 25:1 26:15,20 27:6 28:18 60:6 61:3,6,15

government's

21:4 27:16 60:4

governs 47:23 GRACE 1:18 2:6 28:24

great 15:24 61:8 group 9:8,9,11 9:14 15:12

31:18 groups 9:7 14:9

14:10 guarantee 35:15

35:21 guaranteed

35:14 guess 13:25

14:25 16:6 44:14

H

H 1:20 2:9 47:13 habitual 41:10 half 19:21

Hampshire 24:5 handing 51:10

52:13

hands 43:7 59:7 happen 6:4 8:20

16:6 happened 7:4,6

7:10 8:18 26:7 43:2

happening

41:14 happens 13:11

19:15 21:23 59:22

hard 7:14 12:23 13:24 16:7 41:16,20 54:15 55:22 56:7,16 56:16 61:5 hard-and-fast

55:22 harder 23:5 harm 9:18 hats 24:24 head 34:6 heads 43:7 health 18:12

hear 3:3 20:9,10 30:14,23

heard 11:14,15 20:21

hearings 12:6 17:13,16,17 31:6 45:4

Hefernon 48:12 48:12 52:22

held 3:11,14 11:13

help 12:8 20:1 26:14

helpful 47:25 hill 11:24 18:19 hinder 5:24 history 4:20,20

44:18 45:4,24 46:6,9,9,13,18 53:23 54:10 55:23 56:12

hold 29:14

Holmes 51:17

Honor 16:8 21:20 22:20 29:17 30:17 32:21 33:2,9 34:23 35:13 36:6,15 37:22 39:18 40:22 41:8 43:23 46:15 47:24 48:5 49:4,6,8 49:16,21 50:5

50:13 51:2,13 51:20 52:3 53:17,22 55:21 57:20 58:1,7 60:9

Honors 39:22 47:10 53:2 hospitals 10:4 hostile 32:1

hour 3:20 hours 42:6 house 48:19

Hoyt 26:12 hung 44:15 hypothetical

13:25 16:17

I

IAN 1:20 2:9 47:13

idea 15:5 48:9 53:4 54:5

ideas 3:13 13:11 14:17

identified 54:12 identify 22:6 identifying

49:23 ignorance 57:24 illegal 4:14 5:24

11:8 12:11 59:18

imagine 9:7 10:3 13:17 14:24 29:25

impede 5:24 implication

41:17 implications

57:18 importance

35:25 important 11:23

12:1 15:19 17:10 41:20 imposed 33:12

imposition

Alderson Reporting Company

Official - Subject to Review

67

23:11

 

interests 4:2,3

 

jockeying 31:19

impossible 22:25

 

5:11,21 18:10

 

Joint 31:17 43:4

23:5 36:25

 

18:14

 

52:21

58:14 61:5

 

interfere 13:17

 

judge 33:13 38:5

imprison 15:9

 

14:17 18:12

 

Justice 1:21 3:3

59:25

 

interfered 5:16

 

3:9 4:18 5:12

improve 23:14

 

14:11

 

6:2,15,19,25

inability 21:21

 

interference

 

7:7,13 8:7,25

incident 54:9

 

7:16 8:12

 

9:5 10:1,13,16

56:4

 

13:19 16:3,4

 

10:24 11:3,12

incidental 41:1

 

interfering

 

11:17,21 12:21

41:4,6,7,21,23

 

15:13

 

13:13 14:18

include 25:17

 

interpretation

 

15:17 16:13,14

includes 60:13

 

25:19 27:5,11

 

16:22 17:4

Indians 28:14

 

27:25

 

18:5,24 19:1,3

indication 45:25

 

interpreted

 

19:6,14 20:4,9

individual 15:13

 

25:23

 

20:17,20 21:6

27:14 38:1

 

intervenes 20:25

 

21:13,16 22:4

individuals 14:9

 

intimidation

 

22:15 23:7,18

14:11 32:5

 

36:11

 

23:19 24:9,14

42:25 43:5

 

intrigued 13:14

 

24:22 25:5,6,9

51:10

 

intuition 14:2

 

25:11,14,21

indubitably

 

involved 31:7

 

26:24 27:18,22

26:19

 

involves 31:24

 

28:4,22 29:1,6

information

 

irrelevant 39:15

 

29:23 30:1,10

3:13 23:2,3,4

 

irrespective 10:9

 

30:13,15,18,21

ingress 54:6

 

isolated 54:9

 

30:22 31:4,12

injunction 6:9

 

issue 3:16 14:13

 

31:21 32:8,10

6:22 14:8,10

 

35:25 50:19

 

32:24 33:3,24

15:14 48:3,4

 

51:6 52:2,16

 

34:16,20 35:2

59:5

 

52:19 53:24

 

35:9,20,23

injunctions 33:9

 

issues 28:12

 

36:8,9,19,24

insist 17:23

 

item 15:6

 

37:2,7 38:7,14

instance 32:19

 

 

 

38:17 39:3,8

J

35:17

 

 

39:12,13,19,20

 

J.A 27:13 43:9

 

institutes 58:17

 

 

40:3,18 41:4

insufficient 7:18

 

JA-19 52:23

 

41:16 42:8,17

intending 52:8

 

JA-51 52:23

 

43:16 44:7,12

intent 7:15 8:2

 

January 1:10

 

45:1,14,20,23

18:7 51:14

 

JENNIFER 1:18

 

46:8,17,20

52:16

 

2:6 28:24

 

47:7,11,16,22

intentional

 

Jesus 24:18 25:4

 

48:3,24 49:2,5

52:14

 

Jews 24:18 25:4

 

49:7,14,18

interest 14:24

 

job 25:16,17

 

50:1,2,8,9,20

17:2 21:5 36:3

 

26:11 37:25

 

50:24 51:4,11

36:23 37:5

 

40:24 41:8

 

51:17,17,21,25

50:20

 

jobs 15:21 26:4

 

52:20 53:10,11

 

 

 

 

 

53:18,25 54:11

 

34:5

54:17,25 55:7

 

 

know 4:19,22

55:9,12 56:9

 

5:3 6:2,4 7:6,7

56:10,22,23

 

7:9 8:16 10:2,8

57:5,8,9,22

 

10:10 14:25

58:3,8,13,19

 

15:23 16:2

60:3,7 61:18

 

17:23 18:15

justify 9:21

 

19:8,22 22:4

40:18

 

23:12 24:24

 

 

29:24 30:25

K

 

36:8 40:4

Kagan 7:13 8:7

 

 

42:14 44:12

12:21 13:13

 

49:14,19 59:1

15:17 22:15

 

59:2,3

23:7,18 24:22

 

 

knowledge 6:12

25:5 29:23

 

 

knows 51:18

33:3 42:8,17

 

 

 

44:7,12 50:1

 

 

L

55:7 56:9,23

 

 

L 1:16 2:3,13

58:19

 

3:7 58:11

Kagan's 16:14

 

 

labor 45:11,17

keep 9:15 16:21

 

46:18 54:1

38:22

 

56:12 57:11

keeping 14:11

 

 

lack 20:24

29:12

 

 

lady 35:4

keeps 15:13

 

 

large 24:2

KENNEDY

 

 

larger 43:15

16:13,22 26:24

 

 

Lastly 60:21

35:2,20,23

 

 

late 4:24

36:8,19,24

 

 

Laughter 34:17

39:12,19 41:16

 

34:19 57:7

50:2,9,20,24

 

 

law 3:16,19,24

51:11,17,21,25

 

4:1,3,4 5:15

kicked 51:19

 

6:13 8:15,16

kind 9:19 14:2

 

9:1 12:11,17

18:12 30:3

 

12:17 13:3

33:16,17 35:11

 

14:20,25 17:14

36:12,17 37:1

 

21:3 22:17,23

37:6 41:9 42:3

 

22:24 23:4,19

46:13 50:18

 

31:22 35:6,7

52:3,17 53:8

 

35:10 44:19

54:17 55:19

 

45:12,12,15

56:18,22 58:4

 

52:1 54:18

58:20,22

 

61:7

kinds 15:22

 

 

lawful 5:19

52:15

 

36:21

knew 33:13,16

 

 

laws 6:15,17

 

 

 

 

Alderson Reporting Company

Official - Subject to Review

68

12:1 16:15,22 16:25 59:23

lawyer 20:14 leading 52:9,10 leads 8:12 leaflet 22:10 leaflets 10:20 leafletting 3:18

15:16 49:10 leave 9:13 leaves 26:21 leaving 13:21

25:17,25 26:3 legal 25:22 legislator 34:1 legislators 17:22 legislature 33:20

34:2 38:19 45:3 46:24 50:7 52:4 53:12 55:16 56:3,17 59:13 legitimate 17:17

39:23 length 49:9

lengths 30:11,13 30:15,16

lengthy 55:23 let's 13:15,23 15:17 17:7,7

life 31:16 light 56:4 limit 26:10 limited 60:7,11 lines 9:25 listeners 18:21

18:22 literature 43:6

52:13

little 12:23 30:19 44:14

loading 57:23 location 45:9 lodge 14:21 15:3 lodges 53:21,23 lone 43:12

long 9:3 17:16

21:7 36:22 44:17,17 45:4 56:11

look 12:5,22 17:7,16 18:2 42:12 52:21

looked 60:4 looking 33:8

43:24 Los 24:5

lot 7:16,17 14:20 22:16,19,22 30:3

lots 8:9 loud 9:12

lower 28:10 53:2 53:10

M

Madsen 14:9 33:14 48:1 mail 48:21 maintenance

40:9 major 50:4

making 36:3,17 37:5 60:14,16

manner 3:23 21:2 32:1,1

MARK 1:16 2:3 2:13 3:7 58:11

marketplace

13:11 14:17 marshal 57:2 MARTHA 1:6

Massachusetts

1:7,19 3:16,22 6:4 13:12 17:13,23 19:24 20:25 24:4 29:4 31:5 32:15 33:13 44:17 46:14,22 47:2,18 50:11 51:1,3,15 52:17 56:2 58:17,20 60:19

massing 52:6 54:6,10 massive 19:9

matter 1:12 10:9 12:7,10 30:5 32:21 35:15 45:24 61:21

matters 18:7 McCullen 1:3 3:5 4:7,15 12:14 26:16

29:18,22 49:23 60:1 61:12

mean 9:23 10:2 12:2 15:18 19:21 20:22 23:19 24:14,25 25:16 26:1 31:24 44:12,14 55:9

meaningful 35:4 means 17:3

20:24 25:25 59:22,22,23 measure 19:8 measured 30:8

30:20 measuring 54:15 mechanism

48:11 meet 55:16 member 34:2

mentioned 40:1 mentions 60:2 message 44:2 military 12:17

Miller 1:18 2:6 28:23,24 29:1 29:17 30:5,12 30:14,16,20 31:2,10,13 32:4,20 33:1,5 34:18,23 35:13 35:22 36:1,15 36:22 37:3,22 38:13,16,19 39:7,9,17,21

40:17,22 41:7

 

8:11

41:23 42:9,16

 

 

NBA 57:3

42:18 43:23

 

 

near 11:9,9,9

44:8,11,16

 

19:22,22 34:13

45:11,16,22

 

52:14 55:3

46:4,12,19,23

 

 

nearly 13:10

47:9

 

 

nearness 17:20

mind 9:10 18:11

 

 

necessary 4:1

minutes 58:9

 

21:4

mirrors 27:10

 

need 10:3,10

27:10

 

44:15 48:13

misinterpreted

 

54:18 55:23

50:22

 

59:4,21 60:22

money 48:14

 

61:9

morning 3:4 4:8

 

 

needed 33:7,20

4:9 26:14,18

 

53:10

37:13,15

 

 

needs 25:23

mornings 8:19

 

53:13 55:20

42:5 59:12

 

 

neutral 55:5

move 8:22 39:24

 

 

never 6:1,12

43:6

 

13:1 54:19

moved 29:21

 

59:24

moves 8:1 47:20

 

new 24:3,4 58:3

moving 38:23

 

Ninth 26:12,18

52:13

 

NLRB 57:11,12

multiple 28:10

 

57:15

municipal 58:22

 

no-approach

murder 50:16

 

18:20

51:7 60:8

 

 

no-speech 48:2

 

 

 

nod 34:6

N

 

 

 

 

nonstop 21:11

N 2:1,1 3:1

 

 

 

 

normal 8:12

Nancy 4:11

 

20:13,14

NARAL 46:25

 

 

note 32:8

narrow 3:25

 

 

number 47:25

11:22 12:4

 

48:7 50:14

17:7 21:1

 

53:8

42:15 55:6

 

 

 

narrower 54:12

 

 

O

56:19

 

 

O 2:1 3:1

narrowly 4:3,17

 

 

o'clock 4:9

8:15 31:23

 

 

object 43:16

36:23

 

 

obstruct 5:24

nationwide

 

52:8

50:15

 

 

obstructed 7:2

natural 3:12

 

 

obstructing 6:5

naturally 7:17

 

51:23

 

 

 

 

Alderson Reporting Company

Official - Subject to Review

69

obstruction 4:2 4:5,17 6:16,18 7:16 16:4,23 19:10 35:12 36:11 42:10 45:5 50:3,11 50:22,25 51:11 52:4,14 53:16 60:13,15

obstructive 24:7 obvious 9:15

34:1 obviously 36:16

41:11 occupy 3:14

occurring 19:10 occurs 4:24 offer 22:25 23:6

26:18 officer 25:22 officers 8:21

58:25 59:22 often-protested

14:16 oh 14:1

okay 9:20 10:11 10:21 17:4 18:15

once 6:19 one's 23:16 one-to-one

15:25 open 3:20 4:6

7:2 16:21 26:21 28:19 33:7 43:7

operate 42:5 operating 40:14 operation 13:20

16:5 opinion 9:17

35:24 opportunity

41:12 42:25 opposed 10:5 oral 1:12 2:2,5,8

3:7 28:24

47:13

order 12:19,24 15:14 16:5 36:5 43:1 53:13

orderly 54:6 ordinance 36:10

53:19 ordinary 57:25 organization

31:19 ought 59:25

60:24 outside 10:4,18

29:5 47:3

P

P 3:1 pacing 43:3

page 2:2 33:11 42:2

painted 9:25 panel 26:19

Parenthood

27:7 33:10 parking 22:16 22:19,22

part 8:14 11:18 17:7 47:20

participants

61:16 particular 7:14

12:5 14:15 15:6,12 17:9 23:21 35:17 38:21 40:23

particularly

18:7 particulars

14:25 partisan 28:11 pass 45:7 61:4 passed 11:19 passersby 49:19 passes 13:18

60:25

passing 28:14,15

patients 42:21

39:4,5 40:5

20:23 21:20

patronize 54:21

41:1,24

23:24 25:15

peace 12:18,24

permit 45:19

29:21 30:6

36:5

permitted 11:11

33:19 36:7

peaceful 3:18

20:13 25:7

41:25

4:15 11:8 13:4

38:21 49:11

pointed 51:4

15:1,8,16

person 8:1 18:4

points 10:22

16:11 32:6,9

31:8 38:4

44:25 58:14

32:22 52:18

person's 39:10

police 7:2,24,25

59:8,13 60:20

persuade 21:18

8:21,22 11:24

60:24 61:7

persuasive 7:24

19:7,15 24:6

peacefully 34:13

59:8

54:13 58:25

pedestrians

petition 49:12

59:22

39:24

Petitioner 48:13

political 26:1

people 4:22,23

Petitioners 1:4

53:3,7

5:3,14,18 6:9

1:17 2:4,14 3:8

position 3:15 7:1

7:17 8:9 9:7

21:22 29:3

7:3 28:11

10:6 15:8,18

41:11 48:7

31:20

15:23,24 18:7

53:1 56:19

positions 28:10

18:23 19:11

58:12

possible 8:11

21:18,21 22:2

physical 50:3,11

9:11 44:2

22:18 23:1,3

50:22,25 60:13

potential 9:18

25:12 26:21

60:15

11:4

27:7,12 28:15

pick 13:12 33:3

power 14:17

29:7 31:25

picket 54:20

24:6 61:14

32:2,9,12,17

picketing 50:19

PPLM 42:1

32:22 37:24

54:19 57:12

practices 15:22

38:11,15,23

pickets 57:16

precedents

39:23 40:7

picking 15:5

47:23,25 48:9

43:17,25 44:6

picture 31:3

precisely 18:20

44:23,24 48:14

pillar 48:22

23:23

51:10,22 52:5

pillars 48:7

precision 13:7

52:6,13 54:6

Pink 31:18

14:8 59:21

54:20,21 59:7

place 3:12,23

present 8:21

60:23

15:8,9 21:2

43:19

percent 4:11

24:18 38:4

presentation

42:21

45:25 46:2

43:18

perfectly 14:12

47:19

pretty 8:3 11:23

39:22

places 22:7 23:5

16:7 30:3

performing

46:10 56:12

prevent 20:25

37:25 41:8

Planned 27:7

35:11 54:20

period 6:16

33:10

preventing 4:2

periods 42:11,14

players 59:1

13:19 19:10

permissible

please 3:10 9:13

prevents 54:6

12:15 13:1

9:13 29:2

previous 6:9

14:12 15:4

47:17 61:10

Price 19:22

23:8 38:24

point 9:7 17:5

principle 10:2,3

 

 

 

Alderson Reporting Company

Official - Subject to Review

70

12:8,11

 

protection 36:23

prior 6:23 33:9

 

protects 61:7

prison 12:14

 

protest 12:17

26:17 59:8

 

29:3,6,7,10,12

60:23 61:12

 

29:16 30:24

private 22:16,19

 

32:14 43:1

22:22 30:7

 

44:5

42:24

 

protesting 31:23

pro 31:15,16,18

 

protestor 48:18

52:6

 

protestors 10:16

probably 6:2 8:8

 

43:12,14,17,22

problem 4:18

 

43:25 44:9

8:2 13:4,22

 

47:5 52:7

23:15 24:5

 

protests 11:13

26:11 33:16,18

 

19:10 43:20

36:16,17,20

 

prove 18:6 46:6

37:4 43:11,23

 

provide 14:20

46:22 47:6

 

provided 27:13

56:1 59:21

 

public 3:11,14

61:9

 

3:17 4:16

problems 42:19

 

10:18 12:13

42:20 44:14

 

15:2,7 22:10

47:3 51:1,3

 

22:22 26:15,21

55:24 58:15,16

 

28:19 29:4

59:17

 

35:25 36:1,4

procedure 27:3

 

42:22,23 47:20

procession 11:19

 

60:24 61:16

proffered 28:2

 

purpose 3:18

progress 57:10

 

32:2 38:24

prohibited

 

39:4,5 41:24

36:11

 

purposes 36:14

prohibition 27:2

 

pushes 22:24

proper 3:12

 

pushing 31:19

prosecute 7:15

 

32:13 34:12

prosecuted 6:5

 

put 10:19 20:4

8:4

 

59:7 60:23

prosecution

 

putting 57:23

6:20,24,24

 

 

Q

58:17 59:24

 

 

question 16:14

prosecutions

 

50:10,14,16

 

19:15 23:19

51:22

 

30:22 33:8

protect 4:1

 

35:3,10,16

18:10 35:11

 

36:10,14 37:2

36:20

 

37:7 39:20

protected 45:12

 

40:6 41:5 42:9

protecting 18:21

 

45:2 57:9 58:5

 

 

 

questioning 60:3 quiet 12:12 32:6 35:16 49:10 50:18 52:9,18

53:6 quietly 31:25

35:21,24 43:20 48:13

quite 5:21 20:11 35:4 44:17 49:23 51:9

R

R 3:1 raises 42:8

rational 55:17 reach 21:8,23 22:9,13,18 reaction 13:25

14:2 read 34:22 reads 25:15

real 9:18 16:4,4 18:22 41:5 53:19,19

really 5:11 15:19 15:24 17:14 42:4,10 53:24 55:7

realm 52:1 55:22

reason 3:14 8:21 17:12 32:14 34:1 38:3

reasonable

17:24 33:21,22 reasonableness

57:6 reasons 4:4 5:6

18:19 19:18 27:5

REBUTTAL

2:12 58:11 recall 19:6 receive 20:11 recessed 30:7,7 recognize 60:22

record 6:8 7:8,9

respects 8:16

8:25 16:3

17:10 24:16,17

17:24 18:17,25

Respondents

19:6 20:21,23

1:19,23 2:7,11

21:20 33:25

28:25 47:15

34:9,14 35:18

responding

38:11 45:18,19

33:17

46:14 54:17

response 33:22

56:8 59:11

responsive 33:15

referee 9:17

restrict 21:3

refereeing 10:10

60:19

reference 16:23

restricted 11:24

refusing 43:5

21:7

regardless 3:20

restriction 15:10

4:4

17:9 61:3

regular 43:13

restrictions

44:20 47:4

45:17

59:1

restrictive 17:3

regulate 57:12

17:9

59:21

restricts 15:1,1

regulation 13:7

result 44:3

13:18 14:8

review 57:18

26:25 45:19

reviewed 46:25

47:19 57:11

57:14

58:4

reviewing 58:4

remaining 58:10

Rienzi 1:16 2:3

remotely 60:10

2:13 3:6,7,9

repeatedly 45:16

4:18 5:5 6:7,17

51:4

6:22 7:5,9,13

replacement

7:20 8:13 9:2

45:6,10 46:10

9:23 10:12,14

56:13

10:22 11:2,6

report 47:5

11:16,18 12:10

representation

13:2 14:6,23

60:4

16:8,20,25

require 14:8

18:1,18 19:2,4

required 13:7

19:12 20:3,6

requirements

20:10,19 21:1

55:15

21:10,15,19

requires 21:3

22:6,20 23:10

59:20

23:23 24:13,16

reserve 28:21

25:1,8,11,18

respect 26:25

26:2 27:4,20

39:2,18,21

27:25 28:9

42:11 46:15

42:12 58:9,11

respectfully

58:13,19,21

21:19

60:5,9

 

 

Alderson Reporting Company

Official - Subject to Review

71

right 5:14 6:16 9:16 10:18 14:15 17:8 22:3,23 23:3,9 24:11,15,23 25:10 26:22 27:9 29:5,19 30:17 34:5 35:24 36:2 38:13,16 40:17 42:16 45:11,14 45:18 46:4 47:8 48:10 50:23 54:23,25 57:12

rights 11:1 13:16 15:11 23:12 28:16

road 42:24

ROBERTS 3:3 28:22 47:11 58:8 61:18

rolling 8:20 row 19:23 rule 5:2 13:8,9

45:24

rules 6:10 55:23 runs 13:3

S

S 2:1 3:1

safe 37:14,15,20 37:20 38:9,10 39:4 40:15,20 40:21 41:6,19

safety 38:10 Saturday 8:19 42:5 59:12 saying 7:21 9:14 12:21 15:6 16:9,10 27:16 30:23 38:6,8 39:14 40:15 51:22,24 52:2

53:5 57:6 says 4:1 5:17

7:13 9:13,25

12:22 13:19

see 9:17 11:21

3:14,17 4:6

61:9

19:7 24:21

12:5 33:25

11:9 15:2

someplace 53:19

25:22 26:2,4

selectively 61:15

26:16 36:4

soon 34:6

26:15,16,17

sell 24:24

61:16

sorry 30:12,14

27:12,19 36:11

semi-annual

significant 20:15

60:12

37:13,15,19,20

43:15

37:5 47:3,6

sort 9:12 23:20

38:9,10 40:12

sense 19:1

signs 10:19

30:1 55:25

42:12 45:8

sensitive 55:14

15:23 29:14

SOTOMAYOR

54:19

sent 20:6,12

silent 40:4

6:25 7:7 10:16

Scalia 6:2,15,19

sentiments 11:5

similar 11:25

10:24 11:3

11:12,17 18:24

serious 55:24

33:17 58:23

30:10,13,15,18

19:3,6 22:4

58:5

simply 5:5 7:11

46:20 47:22

24:9,14 28:4

serve 21:4

8:22 16:22,23

60:3,7

29:6 31:21

set 12:6 13:23

16:25 27:6

sought 26:12

34:16 39:3,8

shape 41:11

30:24 33:8

sounds 32:13

39:13 43:16

shirt 28:14

41:1 47:18

space 22:1 30:4

47:7 48:24

shot 21:25 22:3

53:5 55:17

31:14 33:6,20

49:2,5,7,14,18

shout 9:12

single 18:4

33:22 34:25

51:4 54:11

shouting 31:22

sir 61:10

44:15,24

Scalia's 30:22

32:13

sit 45:1

spaces 29:4

32:10 39:20

shouts 11:13

site 8:11 23:22

speak 21:21 25:9

scene 7:25

shovel 40:7

sites 45:5 54:1

26:8 27:24

Schenck 14:10

shovelers 40:1

situation 17:23

28:7,19,19

Schenk 33:14

shoving 31:19

35:19 56:14

31:25 40:7,20

Schneider 10:17

show 7:15 8:25

situations 10:9

40:21 59:18

11:12,22

31:7,9 57:24

60:8,22

speaking 10:14

scope 25:9,16,23

showed 31:1,10

six 47:2

13:2 15:5

25:24 40:14,16

31:13 32:4

size 23:10

special 3:15 10:3

scream 29:13

33:5

slaughterhouse

specific 35:14

screaming 31:16

showing 55:25

15:18 54:4

51:14 52:16,24

31:22 32:12

shown 42:19

slaughterhouses

59:20

34:11

shows 18:25

13:15,18,21

specifically

screen 5:3

22:12 56:8

54:1

12:18

scrutiny 61:1,4

side 6:3 9:18

slice 42:23

speech 21:4

se 43:25

18:15 21:24

small 42:23

22:24 23:11

second 5:10 8:14

sidewalk 4:16

47:21

24:15 25:2,3,7

9:9 30:22

5:19 9:25

snow 40:1,7

25:12,17 26:1

33:25 37:17

10:18 12:13

solely 60:15

27:23 28:2,8

42:4 43:14

17:20 22:10,22

Solicitor 1:20

28:16 35:24

secondly 5:17

23:16 25:2,3

solution 9:24

36:19,21 39:10

58:25 59:10

26:13,17,21,22

14:13 46:7

40:19,23,25

seconds 21:11

27:8 28:20

56:18

41:6,9 42:3

21:14,18 49:12

36:2 38:23

solutions 61:2

47:19 55:4

50:1

39:25 40:9

somebody 6:5

57:18 59:8,14

section 5:23,25

42:23,23 49:10

26:7 34:11,12

59:17 60:1,20

6:24 60:11,12

59:14,15

34:12

61:7,15

60:12

sidewalks 3:12

somebody's 5:25

speech-free

 

 

 

 

Alderson Reporting Company

Official - Subject to Review

72

24:17,22

37:23 38:3

spontaneously

39:1,9,10,14

34:8

39:22 40:11,12

spot 22:3

40:12 41:2,12

Springfield 22:8

43:24 44:8,10

23:6 42:7,20

44:13 45:7

43:3,12,13

46:24 47:18

staff 34:2

50:3,12,15,22

stand 20:13

50:25 51:8,12

22:11

51:15 55:2

standard 48:5

56:7,16 58:15

57:14,18,21,24

58:20,21 60:10

57:25 58:4

60:13,25

standing 21:25

statutes 32:17

22:9 34:13

34:3 52:15

43:5 49:2

54:11 58:22

state 3:19 4:1,19

statutory 9:4

4:24 5:5,7,11

26:9

5:15,17 7:11

stay 59:5

7:13,18,21,21

step 14:3

8:17 9:1,3,7,10

stop 18:9,21

9:16 13:18,22

55:10

14:16,20 15:15

stopping 43:5

18:3,11 20:12

store 54:20,21

24:3 25:22

streets 60:24

26:16 45:3,7,9

strict 61:1,4

45:12 53:12

stricter 48:5

54:8,9,18

strike 45:6,9

55:15 58:21

46:3 56:11

61:1

strikes 46:10

State's 8:14

54:2

27:11 36:3,18

strong 11:4

59:19

struck 54:24

statement 41:17

stumbled 51:18

41:21

subject 10:9

states 1:1,13,22

submit 53:9

2:10 7:12 8:4

56:19

11:25 47:14

submitted 46:25

58:16 59:11,24

61:19,21

60:2 61:6

substantially

statute 3:23 4:14

21:3

5:23 6:1 8:6

successful 35:4

11:6 14:14

suddenly 15:7

23:25 24:1,2

suggest 20:11,15

25:18,20,24

34:15

32:15,25 33:2

suggested 45:2

37:1,4,8,16,20

suggesting 56:20

 

 

suggestion 32:10 suggests 32:12

34:9 suppliers 13:21 support 24:3

56:7 supported 56:6 supporting 1:22

2:11 47:15 suppose 16:13 16:14,19,20

45:3 supposed 17:15

17:15 23:20

Supreme 1:1,13 sure 4:25 16:17 18:16 36:3

surely 25:3 31:21 40:15

survey 46:25 sustained 46:13 swearing 31:16 sweep 39:23

40:8

T

T 2:1,1 tailored 4:3,17

8:15 31:24 36:23

tailoring 3:25 21:2

take 14:3,13 21:7 35:18 53:18 56:6

taken 10:4 28:9 41:19

talk 15:20 22:2 22:19 24:12 27:8,8,9,17,19 28:3,11 29:8,9 29:15 35:6 43:20 48:13

talking 10:20 35:21 49:25 51:6

talks 24:4

target 48:19

47:24 48:7,22

tell 15:20 51:22

51:2 53:12,12

54:21

53:19 54:3,3

tempered 36:2

55:12,21 56:8

ten 42:13 47:1

56:15 58:4,6

term 25:22,23

thinking 10:8

terrible 10:7

19:18

14:2

Third 60:2

terribly 9:8

Thornhill 54:22

test 3:23,24 21:2

54:24

21:2

Thornhill's 55:2

testified 4:10,11

thoroughfare

59:1

25:5

testify 19:15

thought 11:23

testimony 7:10

12:1 30:10

47:7 49:17,21

threat 4:5

52:4,12,21,22

three 4:4 38:15

52:23,23 54:13

58:9 60:8

56:24 59:2

throw 59:7

Thank 25:11

thrown 43:6

28:22 47:10,11

thrust 43:7

58:7,8,13 60:9

tied 14:15

61:17,18

time 3:23 4:12

thereof 20:24

6:4,18,20 7:1,4

thing 7:14 18:6

7:6 8:19 21:2

18:9,12 19:25

28:21 42:11,14

56:10

54:15 55:10

things 14:7

times 59:14

18:18 48:21

titles 9:15

54:10 56:5

told 28:12

61:6

ton 13:19

think 5:5,10,20

tool 7:14,18

7:23 8:4,14

toolbox 5:8,22

9:24,24 10:8

tools 5:7,22 7:11

10:15 11:2,6

16:10

11:10,16,19

touched 41:10

12:14,19 13:2

tough 9:17

14:12,23 15:4

34:10

15:10,12,15,23

traffic 38:22

16:6 17:1 18:2

train 42:2

22:20 23:11,15

tried 44:8 54:10

26:7 27:21

54:11,12 56:5

29:9 30:18

61:1

34:1 35:13

truck 15:25

36:24 37:22

true 34:8 35:3,7

41:4 44:7 46:8

36:14 42:9

46:9,12 47:23

58:19 60:18

 

 

Alderson Reporting Company

Official - Subject to Review

73

29:9,15 54:20 trying 4:25

11:22 12:4,4 17:6 18:8 20:4 31:8 34:7

Tuesdays 4:8 turn 24:19 34:14 two 5:11,21 8:15

9:7 17:10 18:14 30:10,13 30:15,16 37:11 37:18,23 47:5 58:18

type 14:13 15:15 51:5 55:4

U

unable 35:6 unconsensual

18:4 unconstitutio...

27:6 understand 18:5

18:6 39:3 55:9 55:12 57:5

understanding

46:17 understood 19:4 unique 46:14

United 1:1,13,22 2:10 7:12 8:4 47:14 59:11,24 60:2

unnecessarily

38:2 40:24 unreasonably

60:14,16 unrestricted

48:10 unsafe 39:6

unwilling 18:21 upheld 45:17 48:1,5 53:3

uphold 3:22 urge 52:20 55:7 use 19:3 26:13

26:15 44:6

57:15,19,21 utter 40:10

V

v 1:5 3:5 24:8 33:10 54:22 valid 26:15 various 15:22

veteran 10:18,21 veterans 10:4 video 8:20

view 20:23 44:14,25 viewed 44:20

viewpoint 37:19 38:18 39:21 41:14

viewpoint-dis...

41:3 viewpoint-neu...

37:21 views 27:15 violated 5:15 violence 44:18

45:5 46:1,9,13 56:12 60:15

violent 24:7

W

walk 19:19 27:13,16

walking 21:10 21:24 26:22 27:12 28:6,8

Walter 40:1 42:1

want 4:25 8:10 9:5,6,9,11,20 9:21 10:2,10 15:24 19:18 20:2,22 23:2,3 29:7,7,10 30:6 30:25 31:25 34:22 35:23 36:13 43:19,20 50:21 55:20

wanted 32:5

48:18

37:9

wants 9:11

women 29:8

18:10 24:11,12

35:5 37:11

war 10:6

43:21 49:7

Washington 1:9

Worcester 4:12

1:16,21

22:8 23:6 42:6

wasn't 19:11

42:19 43:2,6,9

36:16 38:2

43:12,13

43:11 44:5

word 40:10

54:13

words 20:5 23:8

waving 22:10

26:6

way 5:1 11:7

wore 28:13

16:21 17:5

work 16:15,24

20:14 24:7

16:25 17:14

27:1 28:17

18:25 19:17

41:11 42:15

25:25,25 26:3

48:14 58:2

26:3,8 27:7

ways 10:21

34:2,4 40:8

15:22 29:24

42:6 52:25

we'll 27:9

61:2

we're 9:19 12:24

 

worked 11:7

13:22 17:22

32:25

18:15 19:23

 

workers 45:6,10

41:18 49:25

46:11 56:13

56:4 59:18

 

working 54:13

we've 20:20

56:1

44:16,19 46:14

 

wouldn't 16:18

wear 28:13

39:17

Wednesday 1:10

 

write 32:15,17

Wednesdays 4:9

33:2 34:3

week 43:14

35:23 36:10

well-behaved

37:1,4 39:15

4:22

 

written 32:24

weren't 55:25

35:10

wheelchairs

 

wrong 5:6 9:9

10:7

14:3,5,6 50:24

widespread

 

 

 

X

41:10

 

 

x 1:2,8

width 30:2

 

willing 18:22

 

 

 

Y

61:16

 

 

Yeah 20:19

windows 43:8

 

21:15

wipe 53:7

 

years 6:14 28:2

wisdom 57:15

 

54:9

woke 56:3

 

yell 29:13

woman 18:10

 

 

yelling 49:3

19:19 29:15

 

 

 

 

 

 

York 24:3

Z

zero 22:13 60:18 60:18

zone 13:23 14:21 16:16 17:18 18:20 21:8,24 23:7,10 24:15 24:18,23,23 27:12,15 28:5 31:17 33:12,16 37:11 38:3,12 38:15,22,25 39:1,11 40:4 40:25 41:15,25 45:8 46:2 48:1 48:2 52:7 53:13,20 54:12 55:6,13,19 57:1,3

zones 23:16 33:6 33:14 53:3,5,9

0

1

10 19:19 21:11 21:14,18

10:04 1:14 3:2 100 35:5

119:2

11:04 61:20

129:2 23:9

12-1168 1:4 3:4

1454:9

151:10 54:9

15-foot 33:16

1943:9

1994 56:2

1997 6:8,11,20 7:1,4

2

2 33:11

20 6:14

2014 1:10

22 56:24,25

Alderson Reporting Company

Official - Subject to Review

74

23

30:9

8-foot 18:19

25

12:25,25

19:16

61:13

80

52:22

26

31:17

85

42:21

28

2:7 31:18

 

 

 

 

 

9

2A 42:2

 

 

90

4:11 42:21

 

 

 

3

93-94 27:13

3 2:4

3-point 57:3

30 13:23

35 17:19 18:16 20:6 22:12,24 29:13,14,24 30:8 31:5,22 31:23 33:3,4 33:21 49:2

35-foot 9:19 45:8

36-foot 33:14 48:1

4

4 60:13

41 43:4

45 8:5 50:14 60:17

47 2:10

49 58:15 61:5

5

50-foot 33:12

58 2:14

6

6 28:2

67 52:21

7

7 21:11,14,18

7:00 4:9

708:5

7152:21

7952:22

8

8 17:18 18:15 19:9 31:6

Alderson Reporting Company