Column: Inside the First Amendment, by Gene Policinski

Few topics in modern life have produced as much rancorous and visible public debate as abortion — and one hot point of contention today is simply how close that debate may take place to the clinics that perform them.

The U.S. Supreme Court heard arguments Wednesday over a challenge to a Massachusetts state law, in McCullen v. Coakley, that creates a fixed, 35-foot “buffer zone” around the entrance or driveways of such clinics, forbidding protesters and others from entering the zone, with the exception of women seeking medical services, workers at the clinic, police and those merely walking to somewhere else.

The law at issue is rooted, its advocates say, in years of conflicts around such clinics in which protesters battle — verbally and sometimes more — and where women are harassed or even blocked as they attempt to enter. They argue that both pro- and anti-abortion demonstrators still can state their views, just not in proximity that’s likely to intimidate anyone.

On Wednesday, Justice Elena Kagan questioned the size of the Massachusetts zone, saying she was “a little hung up on why you need so much space.” Justice Antonin Scalia remarked that rather than bar all speech in the 35-foot zone, perhaps just a ban on swearing and screaming could be used.

But those in opposition to the law being challenged say that, as applied, it illegally targets only the speech of anti-abortion forces, and creates a constitutional conundrum in which listeners’ rights are favored over those of speakers, while offering no reasonable alternative for anti-abortion groups to effectively deliver their message. On Wednesday, justices also noted that not all those at clinics to oppose abortion are protesting: Many are there to offer a calm presentation of their views.

Similar arguments were raised over a Colorado buffer zone law upheld by the court in 2000, in Hill v. Colorado — its last major ruling on the issue. The Colorado statute set out a 100-foot area around health care facilities and forbade anti-abortion protesters inside such areas from coming closer than eight feet to anyone for the purpose of counseling or protesting — a so-called “floating buffer zone.”

A 1994 federal law forbids violent actions, obstruction, interference, and intimidation outside abortion clinics — in other words, it governs conduct, not the message. Challengers to both the Colorado and Massachusetts laws say those more-restrictive state statutes have it the wrong way around, targeting just anti-abortion speech, while those supporting abortion rights are free to move within the zones and to speak to women as they enter and leave clinics.

Generally, the First Amendment precludes government from considering “content” or “viewpoint” when regulating speech. Massachusetts officials say a history at such clinics of confrontation and violence justifies overriding that general limitation, in the name of public safety.

There are other significant First Amendment issues raised in this case and in the earlier Hill decision, including a proper balancing of what some call “a right to be let alone” vs. free speech rights of speakers on sensitive or even offensive matters.

The essential point of laws banning protests near such clinics is to shelter women seeking information or abortions from the emotional distress produced by often-graphic language, signs, handouts and “in-your-face” tactics used by anti-abortion forces, who see such actions as the final opportunity to reverse a decision to end a pregnancy.

And the equally basic First Amendment question raised is whether protection of “vigorous public debate” over significant issues in our society can be muzzled because of the undeniable distress it causes some women who hear — or are challenged by — that debate.

A clue as to how the court may view McCullen may be found in a 2011 ruling in which emotional distress to the listener also was a core issue, involving protesters at a funeral service for a U.S. Marine killed in the line of duty. In that case, Snyder v. Phelps, the father of the fallen Marine sued a group known as the Westboro Baptist Church over its virulently anti-gay signs and visible picketing at his son’s funeral.

In an 8-1 decision, the court upheld the Westboro group’s right to protest and to use the most-effective place and manner of free speech, as long as it did not physically disrupt the services, and even if it caused pain to the Snyder family.

“The principle (is) that debate on public issues should be uninhibited, robust, and wide-open,” Chief Justice John Roberts said in the majority opinion. “The First Amendment protects our right to express ourselves, and the depths of our opinions and emotions, in the most strident terms,” he wrote. “Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and — as it did here — inflict great pain … (but) we cannot react to that pain by punishing the speaker. As a nation we have chosen a different course, to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”

Nothing about the national debate over abortion is simple — and that applies at times to even the words and manner we use in talking about it.

 

Gene Policinski is chief operating officer of the Newseum Institute and senior vice president of the Institute’s First Amendment Center. He can be reached at gpolicinski@newseum.org.