A Right Not To Hear Someone Else’s Free Speech?

Emily Bazelon expects the Supreme Court to rule in favor of the plaintiffs in McCullen v. Coakley, a case pitting anti-abortion activists against a Massachusetts law that prevents them from approaching abortion clinics:

In Massachusetts, abortion critics who are trying to talk women out of going through with the procedure—you can call them “protesters” or “counselors,” depending on your point of view—have to stand 35 feet from a clinic entrance or driveway. The Supreme Court heard a challenge to that law today in which the picture-perfect lead plaintiff is a regular Boston protester, Eleanor McCullen, a friendly grandmother type who stresses how “gentle” her persuasion tactics are, and odds are more than good that the buffer zone in Massachusetts is on its way out. If that happens, free-speech as well as anti-abortion advocates will claim it as a victory for the First Amendment. The clinics and the women they serve will have to deal with more hassle and heartache, and maybe more danger, abortion-rights advocates worry.

Dahlia Lithwick also doubts the law will survive:

Coakley is a tough case for free speech purists, as it certainly appears to suppress only one viewpoint on public sidewalks. The ACLU nevertheless came out in support of the Massachusetts speech bubble, arguing that it’s needed to protect another, competing right: the right to terminate a pregnancy. But the Roberts Court has proven itself far more speech-protective and significantly less choice-protective than the Rehnquist Court that decided Hill. The majority in Hill believed that the right to be left alone and free from unwelcome messages trumped the rights of the protestors to say what they wished. The Roberts Court is more solicitous of the right to be heard, regardless of the preference of the listener to be left alone.

Noah Feldman argues that the law should be upheld:

[T]wo reasons suggest that the court should uphold the law. First, there is the reality that pro-choice activists do often have a presence at clinics. Admittedly, they are generally there to escort patients who might otherwise be intimidated passing the pro-life gantlet. But the fact that the pro-choicers aren’t acting as counter-protesters doesn’t detract from the free-speech component of their actions. If the pro-lifers are moved out to 35 feet, the pro-choicers will be, too — and a fair application of the law would not let them accompany clinic patients into the buffer zone. Because both sides are speaking, the law really can plausibly be described as neutral between them.

Second, under current constitutional norms, protesters at a wide range of public events are often moved to different locations in order to allow for the free flow of traffic.

Marcotte says the law is important for the safety of these clinics’ workers and patients:

Michelle Kinsey Bruns, a Virginia-based activist who has volunteered in clinic defense in eight states, told me that she’s seen plenty of patients who come to clinics “in fight mode,” worried about being bullied by protesters. “That’s what clinic harassment and violence have done for the experience of going to a gynecologist’s office: Patients know it’s going to be a gauntlet, and they approach it like a combat zone.” And Lori Gregory-Garrott, an escort at the last abortion clinic in Mississippi, wrote on Slate about the daily battle that is just trying to get patients past a wall of hostile protesters, even if the patients are just picking up their birth control prescriptions.

Charles Cook calls this a spurious argument:

The court did not consider itself to be judging the constitutionality of an anti-intimidation or anti-protest law. Instead, it believed that it was determining the question of how far wholly non-violent speech — including silent prayer and the holding of signs — may be restricted. This is a reasonable question. What is not reasonable is the claim that blanket limits on free speech are necessary in order to prevent intimidation, murder, violence, and the physical blocking of entrances. Why? Because all of those activities are already illegal, both under Massachusetts law and, in some cases, under federal law. Because there are no areas in which intimidation, murder, violence, or physical restraint are permissible, there is no need for “zones” in which they are not.

Trevor Burrus also focuses on the free speech issue:

Despite the controversial subject matter, this case is not about abortion. It’s about the First Amendment. Both pro-lifers and pro-choicers must see past the polarizing issue of abortion and focus instead on the freedom of speech and freedom of peaceful public presence issues underneath. Pro-choicers should stand against this law in the spirit of the maxim, usually attributed to Voltaire: “I may disagree with what you say, but I will defend to the death your right to say it.” After all, the law is so broad that if a pro-choicer wanted to stand within 35 feet of a Massachusetts abortion clinic and repeat that maxim, they would be breaking the law.

Scott Lemieux points out that the law as written is content-neutral:

The challengers to the buffer zone have a superficially persuasive argument that the Massachusetts law lacks the content neutrality the First Amendment requires. Presumably, the law is most likely to affect opponents of reproductive rights—supporters of abortion rights are unlikely to try to interfere with women heading into an appointment—and in this way can be seen as targeting anti-abortion speech. This argument, however, is not terribly convincing on further inspection. Certainly, the law does not target solely anti-abortion speech on its face; as Justice Ginsburg put it, the law is “not content [based]—it’s not based on speech about abortion. It’s that you can’t speak about anything.” And, as Massachusetts assistant attorney general Jennifer Grace Miller noted, the law would not only apply to anti-abortion speakers even in practice: in one case in the record, “[y]ou had the Pink Group, which is a pro-choice organization, pushing and shoving and jockeying for position.” As debate takes place near health clinics, there may be circumstances in which groups of abortion rights supporters might impede access, and the law would apply to them.

Wendy Kaminer appreciates the emotional resonance of the case to pro-choice activists but comes down firmly against the law:

Legal arguments against the law came easily; from my perspective, its unconstitutionality was clear. But putting aside emotional support for it was hard. Violence against abortion clinics was becoming a very scary fact of life back then. Opposing a buffer zone asked too much of women, especially young women and teenagers seeking abortions in a climate of fear, supporters of the buffer zone argued. In fact, we were asking a lot of them, but no more than what civil liberty demands of us all – a certain stoicism. Besides, absent an expansive buffer zone, women would not be deprived of all legal protection. Federal and state laws prohibit protesters from impeding access to clinics, and, as Harvey Silverglate points out, Massachusetts has longstanding penal law prohibiting harassment and disturbance of the peace.