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Elanore McCullen, et al., Petitioners, v. Martha Coakley, Attorney General for the Commonwealth of Massachusetts- Brief

September 4, 2013
ARGUMENT I.
The Massachusetts Statute and Hill v. Colorado Violate the Core of the Public Forum Doctrine That Is Rooted in the Right of Assembly.
The iconic image of a sidewalk protest epitomizes our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open. . . .” New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). That commitment is undermined by the Massachusetts statute, which indefinitely closes a public sidewalk to peaceful expressive activity in the absence of any exigent circumstances. A similar problem plagues this Court’s precedent in Hill. As Justice Kennedy explained in his dissent, Hill leaves unprotected core political expression conducted “in a peaceful manner and on a profound moral issue, to a fellow citizen on a public sidewalk.” Hill, 530 U.S. at 765 (Kennedy, J., dissenting). Hill’s analysis charts a course for government manipulation of the public forum to suppress 8 unwanted expression. It exalts form over substance. As Laurence Tribe has observed, Hill is “slam-dunk simple and slam-dunk wrong.” Laurence Tribe, quoted in Colloquium, Professor Michael W. McConnell’s Response, 28 Pepp. L. Rev. 747, 750 (2001). See also Kathleen M. Sullivan, Sex, Money, and Groups: Free Speech and Association Decisions in the October 1999 Term, 28 Pepp. L. Rev. 723, 737 (2001) (“Hill showed a striking readiness to accept the Colorado legislature’s effort to draw a facially neutral statute to achieve goals clearly targeting particular content.”). Justice Kennedy noted that Hill “contradicts more than a half century of well-established First Amendment principles.” Id. In fact, the principles that Hill contradicts extend much earlier, to the genesis of the First Amendment.