McCutcheon in non-election law litigation

In McCullen v. Coakley (PDF), the Supreme Court found that a Massachusetts law prohibiting congregating within 35 feet of abortion clinics to be in violation of the First Amendment's guarantee of the freedom of speech. The Court referred to its recent opinion in McCutcheon v. Federal Election Commission (PDF).

The basis? One of process. Chief Justice Roberts wrote the plurality in McCutcheon, in which he refused to decide which level of scrutiny to use, concluding that the campaign finance restriction at issue failed either proposed test. He also wrote the majority in McCullen, in which there was a question about which test should apply:


The Court does sometimes assume, without deciding, that a law is subject to a less stringent level of scrutiny, as we did earlier this Term in McCutcheon v. Federal Election Commission. But the distinction between that one and this one seems clear: Applying any standard of review other than intermediate scrutiny in McCutcheon--the standard that was assumed to apply--would have required overruling a precedent. There is no similar reason to forgo the ordinary order of operations in this case.

Justice Scalia, who joined the plurality in McCutcheon, was not convinced in his opinion concurring in the judgment in McCullen:


Just a few months past, the Court found it unnecessary to "parse the differences . . . between two [available] standards" where a statute challenged on First Amendment grounds "fail[s] even under the [less demanding] test." McCutcheon. What has changed since then? Quite simple: This is an abortion case, and McCutcheon was not.[fn.2] By engaging in constitutional dictum here (and reaching the wrong result), the majority can preserve the ability of jurisdictions across the country to restrict antiabortion speech without fear of rigorous constitutional review. With a dart here and a pleat there, such regulations are sure to satisfy the tailoring standards applied in . . . the majority's opinion.
[fn.2]: The Court claims that McCutcheon declined to consider the more rigorous standard of review because applying it "would have required overruling a precedent." That hardly distinguishes the present case, since, as discussed later in text, the conclusion that this legislation escapes strict scrutiny does violence to a great swath of our First Amendment jurisprudence.