People can shovel snow. If they work for the for the clinic, they can sweep the sidewalk, they can do maintenance, they can go in and they and out, but they cant utter a word. Well, that would be a different statute. But thats not this statute. This statute says that there is an exemption for employees of the facility if they are operating within the scope of their employment. And surely coming out and saying this is a safe facility is within the scope of their employment. Right. So how do you justify that . Forget about the conduct now. The speech thats allowed. One can speak and say its safe. The other cannot speak and say it is not safe. What i would argue, your honor, is that speech in that particular circumstance of the employee actually doing her job and not unnecessarily cluttering the buffer zone, what then that speech is simply incidental to the permissible conduct. And it doesnt make the statute on its face it doesnt make it viewpointdiscriminatory. Because as i said you think its incidental . What if theres a real question about whether this is a safe facility . Thats incidental speech . Its incidental to her performing her job. And, your honor, it if there were a circumstance where that kind of speech were habitual or widespread or touched on advocacy in any way, shape or form, then obviously, petitioners would have an opportunity to challenge the statute as applied. But, of course, they havent even begun to make the case that theres viewpoint discrimination actually happening in the buffer zone. Its very hard for me to credit the statement or the implication that for an employee to say, were glad youre here. Youre going to be well taken care of. This is a safe facility. Its important for you to be here, its very hard for me to credit your statement that thats incidental to their function. Its incidental to the permissible purpose for which they are allowed in the buffer zone. And i should point out, actually, that pplm and again, this is in the Walter Dillinger brief at page 2a they actually train their escorts not to engage in that kind of speech. So thats first of all. And second of all, escorts really only exist and only operate in boston on saturday mornings for a couple of hours. They dont work at all in worcester or springfield. Well, that raises another question, ms. Miller, because i assume that thats true because the crowds and the obstruction really are with respect to one facility at certain periods of time. So mr. Rienzi says, look, if its at one facility, not all ten of them or whatever it is, and its only for certain periods of time, not all day every day, you know, why not narrow it that way . Right. So why not . Because the experience has shown that you do have problems at worcester and springfield, and those problems do center around the driveways. 85 to 90 percent of patients who approach those facilities do so by car. And the only public sidewalk theres a small slice of public sidewalk between the road and the private driveway, and thats the only opportunity that youd that individuals would have in order to protest. And whats happened in the past in worcester and springfield is that you would have pacing across these driveways. Thats at joint appendix 41. Youd have individuals stopping and standing and refusing to move in worcester. Youd have literature thrown into cars. Youd have hands and heads thrust into open windows. And there was at least one accident in worcester. Thats at j. A. 19. So there definitely was conduct that was a problem, and it wasnt even that there are a couple of lone protestors in worcester or springfield. There are 13 events in worcester and springfield. There are regular protestors there every week, first of all. And second of all, the crowds get much larger at the semiannual i i object to you calling these people protestors, which youve been doing here during the whole presentation. That is not how they present themselves. They do not say they want to make protests. They say they want to talk quietly to the women who are going into these facilities. Now how does that make them protestors . Your honor, the problem, of course, that the statute was looking to address was not with protestors, per se. It was with people who had a desire to be as close to the facility doors and driveways as possible to communicate their message. But the result of that was congestion around these doors and driveways. So it wasnt a concern about the protest, it was a concern about people actually being able to use and i would think, ms. Miller, that if you tried to do a statute that distinguished between protestors and counselors, that would be contentbased much more than this statute is. I would agree. I mean, but you know, which is not to say that this statute doesnt have its problems, in my view. I mean, so i guess im a little bit hung up on why you need so much space. Again, the experience. Weve had quite a long experience in massachusetts, a long history of crowds around these doors or of even violence at the clinics. And weve had Law Enforcement and others who have viewed that crowd on a regular basis and have described it, the activity around the doors and driveways, as being so frenetic. You have so many people there, the bad actors and the good actors. You have so many people congested in the same space from all points of view that it effectively blocks the door. Well, before you sit down, can i ask you this question thats suggested by the aflcio briefs. Suppose the state legislature has hearings, and they say theres a long history of violence and obstruction at sites where there is a strike and replacement workers have been called in. Could the could a state pass a statute that says there is a 35foot zone like this around every location in the state whenever there is a strike and there are replacement workers . Could they do that . Right. Well, of course labor actions are protected by federal law, so any state law couldnt directly conflict with the all right. Could federal law do that . Well, this court has repeatedly upheld restrictions on labor activity, if given the right record. So there is so the answer is yes, the First Amendment would permit regulation on the record in every case, in every case there could just be a flat rule. Doesnt matter whether there is any history at that place, any indication theres going to be violence. Maybe there will, maybe there wont. Across the board, a zone around every place where theres a strike. Right. Well, certainly it would be an easier case to defend if there was a history, as we have here. And youd have to prove that 7 the solution you dont think theres a history you dont think theres a history of violence at places where there are strikes and replacement workers . Well, i dont think there has been the kind of history and sustained violence that weve had this almost unique record in massachusetts with respect to facilities. But your honor, i would say thats not my understanding of the labor history. Is there any Abortion Clinic that has not had is there any Abortion Clinic that has not had a problem in massachusetts . In there was, when the legislature was considering the statute, there was a survey submitted by naral that reviewed the experience of the ten facilities that were then in existence in massachusetts. And six of them said that they had significant problems outside of their facilities. Eight of them said, at the very least, they had regular protestors. There were two who did not report that there was a significant problem. This is testimony by the by the clinics themselves, right . Correct. Thank you, your honors. Thank you, counsel. Mr. Gershengorn. Mr. Chief justice, and may it please the court the massachusetts statute here is simply a place regulation that does not ban speech, but instead effectively moves it from one part of a public forum to another, in this case away from the small areas which of our which of our precedents do you think governs this case . So, your honor, i think that there are a number of precedents that are helpful. Madsen, of course, upheld the 36foot buffer zone that had a nospeech zone very much like this. That was an injunction. It was an injunction, your honor, but it was upheld under an even stricter standard that that is applies here. But even aside from that, i think a number of the pillars of petitioners arguments here are directly contradicted by this courts precedents. So, for example, the idea that that unrestricted that you have the right to choose the best mechanism of communication is contradicted by hefernon and by frisby. In hefernon, there was the petitioner said, i need to be able to talk quietly to people to ask for money, and thats the only way i can get it. And this court said you have ample Communication Channels alternative channels over in that booth. In frisby, what the protestor wanted to do was target a house, and what this court said in frisby was you have alternative channels of communication. You can go door to door. You can mail things. You can make calls. So i think that that pillar of the of the argument whats the alternative here . Yelling . Is that the alternative . No, your honor. The alternative in this case is the entire length of the sidewalk, quiet counseling, leafletting, and conversation is permitted. It is the last four to five seconds before the petition before the counselors enter the clinic that they dont know whos going into the clinic. Until you get to the area close to the clinic, you dont know whether passersby are going there or not. Your honor, the testimony is actually to the contrary, that they get that ms. Mccullen and others get quite good at identifying who is going and is not going into the clinic. And actually so what were talking about is the last four to five seconds before they go in. Is your concern that, absent this statute, there will be physical obstruction to the entrance . Is that a major concern . So, your honor, let me address that. The answer is the answer is yes, but thats not all. What the legislature had before it, and Justice Breyer let me ask, if thats your concern, how many federal prosecutions were brought in massachusetts for physical obstruction under the federal statute . Your honor, im not aware of the number. There are 45 face prosecutions nationwide. But face is a very different statute. The criminal prosecutions in face are for are for murder, arson, and for chaining yourselves to doorways. They are not for the kind of quiet counseling and and picketing thats at issue here. But the federal interest that youre the defending is you dont want this physical obstruction statute to be misinterpreted. Thats right. But whats wrong with the physical obstruction statute as an answer to many of the problems that massachusetts is facing . Your honor, i dont think its at all an answer to the problems massachusetts is facing because, as Justice Scalia has repeatedly pointed out, these are not the type of defendants who are at issue in the face act. What face act is talking about is murder, arson, and chaining to doorways. What this statute is getting at is something quite different. It is congestion in front of doorways. It is people individuals handing out thats obstruction under the federal statute. It is not, your honor, because those are specific intent crimes in both massachusetts and in the federal statute. Justice holmes said even a dog knows the difference in being stumbled over and being kicked. Youre saying federal prosecutions cant tell when people are deliberately obstructing . This is beyond this is beyond the realm of the law . Im saying whats at issue here, your honor, is not that kind of of deliberative obstruction. What the testimony before the legislature was, was that there was a congregation of people and the massing of people. That indeed, there were pro choice protestors in the zone who have certainly are not intending to obstruct. And it was so what they were dealing with was quiet counseling leading to countercounseling leading to congestion in front of the doorways. There also was testimony that there were people handing literature to moving cars, accidents and near accidents, which are not intentional obstruction in the least. The kinds of statutes that this court that that are at issue in the specific intent crime in massachusetts and the face act do not get at the kind of peaceful, quiet, yet congesting and disrupting conduct that is at issue here. And, Justice Breyer, i would urge you to look at the evans testimony at joint appendix 67 to 71. The hefernon testimony at 79 to 80. The coakley testimony of ja51, and the capone testimony at ja19. There are specific arguments as to why these did not work. The argument petitioners make here, your honors, is very, very broad. The lower courts have upheld buffer zones around political conventions, around circuses, around funerals. The idea that you could defeat those buffer zones by simply saying, i would like to have a quiet conversation with the delegates as they go into the political convention, would wipe out a number of court of appeals decisions and the kind of buffer zones that this court, i submit, and that the lower courts have found are are needed. Well, how far do you think what do you think a state legislature or Congress Needs to find in order to establish a zone around some category of facility at which there they have some evidence that there have been some disruptions and some obstruction . Take the example of i think its its a real real ordinance someplace you cant have, theres a buffer zone around fraternal lodges. So, your honor, im not aware of the history of fraternal lodges, but whats at issue here is really what would they have to find . Or slaughterhouses. Or labor or sites where there are strikes. So i think i think, for example, in the slaughterhouse or what they found in around circuses and conventions is the idea that there is massing of people that prevents the orderly ingress and egress to and from the facilities. What the state was dealing with here was not an isolated incident, but the state had 14, 15 years of history of the massing. They had tried other things. They had tried the statutes that Justice Scalia identified. They had tried a narrower buffer zone, and the testimony was it wasnt working, and that the police were coming in and said, we cant enforce it. Why is that . Because they had a hard time measuring consent, evaluating what does what kind of a record do they need . Could could there be a state law that says no picketing around any you can never have a picket around any store to try to prevent people to tell people dont go dont patronize this store. Could they do that . Isnt that thornhill v. Alabama . Right. And what actually, in thornhill, they struck that down. Right. But it was very different from this statute. Thornhills was you cant go anywhere near the facility and it was it was only one type of speech. This is content neutral and it is it is a narrow buffer zone. Justice kagan, i really urge you to because well, i mean, i understand. Stop. Ill ask this one more time. Yes. I think its i understand the the desire to create a buffer zone around certain sensitive facilities. What im asking is what requirements, if any, does congress or a state legislature have to meet before they can do that . If it is done, do we simply say they they have a rational basis for it and thats it, so they can establish basically a buffer zone around any kind of a facility they want. If not, then what needs to be established . So, your honor, i think in the evidentiary realm, its hard to have hardandfast rules. I would say you would need a lengthy history of serious congestion and other problems and and a some sort of showing that the alternatives werent working, but thats whats here. This problem has been going on in massachusetts since 1994. This is not something the legislature woke up one day and said in light of one incident, were going to to deal with this. They tried other things. They and the evidence, therefore, supported this. What would it take to support a broader statute . Its hard for me to say, but i think this record shows. One more thing. What about the example of a strike . There certainly is a long history of labor violence in places where there are replacement workers. Could that could it be done in that situation across the board . So i think that would be a very broad statute and hard hard to defend. But if there were before the legislature, as there is in this case, the kind of congestion and the solution, i submit, is much narrower than the petitioners are suggesting. It is to clear out an area around the entrance. Justice kagan, the testimony is 22 feet from the entrance in boston, 22 feet from the edge of the doorway to the edge of the of the buffer zone. It is from me to the marshal. It is not to the back of the courtroom. It is it is an nba 3point zone. But i understand youre saying the reasonableness of it. But go back to Justice Alitos first question. Maybe we can make some progress here. The regulation of labor is up to the nlrb. All right. Now, the nlrb does regulate picketing. It does say what you can do and cant do, and the courts have reviewed that. And you what standard do courts use when the nlrb decides, in its wisdom and expertise, well, the pickets can go here, but they cant go there. You can do this, but you cant do that. All of which have speech implications. What standard of review do the courts use . Your honor, i am not aware of the standard they use, but it is a are you aware of any case im putting it loading it because only because to show my ignorance of it where the standard has differed from the ordinary apa standard . Im not, your honor. Im not aware of cases one way or the other. Should we create a new standard for reviewing this kind of regulation . I think thats actually a serious question. I dont think so, your honor. Thank you. Thank you, counsel. Mr. Rienzi, you have three minutes remaining. Thank you, mr. Chief justice. Several points. First, its not impossible to draw a statute to deal with the problems. 49 other states deal with the alleged problems. The next prosecution massachusetts institutes for blocking a door will be its first in at least two decades. Is that true, mr. Rienzi . Is massachusetts statute the only one of this kind . It is the only state statute of its kind. There are a few municipal statutes of that are similar that are, frankly, based on the First Circuit decisions in this case. Secondly, here, the Police Officers testified that they know all the regular players at the clinics. Thats their testimony. They know them all. Well, if you know them all and if theyre congregating in the doors and they need to get out of the doors, you should go to court and get an injunction and say, stay out of the doors. Until they do that, the claim that they have to throw their hands up and put people in prison for peaceful speech is not a very persuasive claim. Secondly, all of the evidence that the United States cited cited