The Supreme Court heard oral arguments Wednesday for McCullen v. Coakley, a case in which anti-abortion activists argue that their First Amendment rights have been violated by a 2007 Massachusetts law that bars any person from entering or staying in fixed 35-foot-buffer zones around entrances to abortion clinics.
By “any person” they mean “any person who says something negative about abortion,” because there are exceptions for people going into or coming out of the building, people using the sidewalk to get somewhere else, law enforcement officials, and clinic employees. If you fall into one of the categories of exception, you are allowed to speak in the zone. If you don’t, the government says you are not allowed to speak.
Justice Alito tried to explain the absurdity of this law to Jennifer Grace Miller, the lawyer representing the government, with the example of two women entering the zone. One is an employee, one is not. The employee says, “Good morning. This is a safe facility.” The other woman says, “Good morning. This is an unsafe facility.” Only one of these women has committed a crime under the Massachusetts statute. (Guess which one).
Mark Rienzi, who argued the case against the buffer zones, told the Court that the zone is, “a place where the government claims it can essentially turn off the First Amendment” for some people but not others. Justice Scalia described it as a “dead speech zone.”
What is perhaps most disturbing is that the Massachusetts law was created by people who call themselves liberal. It is also being defended by an assortment of liberals from the ACLU to Planned Parenthood. Which raises an obvious question: Is it now liberal to oppose free speech?
In an interview Rienz, told me, “The shocking thing…is the embrace of the government as able to make this choice that….wherever abortion goes…the sidewalks become a place where you can walk, but [you must] shut your mouth. This would have been like saying, ‘Wherever there is a segregated lunch counter we will put a zone outside,’” where you can’t speak about segregation because it’s too upsetting to customers.
The state has argued that this law is necessary to prevent obstruction and congestion going into the abortion clinics. But obstructing an entrance is already a crime. Abortion rights supporters have also argued that women need to be protected from violent acts of anti-abortion rights protestors. But violent acts are already illegal and anyway, it’s hard to imagine that a painted line around an entrance is actually going to stop a violent maniac. What about someone screaming in the face of a woman entering the clinic, causing her to feel fear? That’s already illegal under anti-harassment statutes.
The state is required to use the least restrictive means to accomplish its goals. Instead of enforcing the many laws already on the books, they have concocted the kind of overreaching law that should send chills up the spine of every American.
Now, if you are an abortion-rights supporter you may still be thinking, “I don’t want anti-abortion advocates bothering women going into abortion clinics, so I’m okay with this.” That’s an understandable sentiment. But even if this law was constitutional—and it isn’t—one has to consider the implications of accepting the government exercising such a broad power that infringes on constitutionally protected free speech.
Ironically, a law championed by liberals could end up having dire implications for many liberal causes. Will Potter is a journalist and author of Green is the New Red: An Insider’s Account of a Social Movement Under Siege, which chronicles the political, legal, and public relations strategies that threaten even acts of nonviolent civil disobedience. He told me that the Massachusetts bill, “is setting the precedent of applying this approach to the animal rights and environmental movements.” Despite being pro-abortion rights, Potter says of the abortion clinic buffer zone, “I would oppose these kinds laws [because] it’s about restricting speech.” He points out that, “Oregon passed a law to allow loggers to sue protestors who disrupt business using the same kind of language…it’s identical…to [the Massachusetts law].”
If the Supreme Court were to uphold the Massachusetts law, it’s not hard to imagine businesses lobbying to create zones where union members are not allowed to speak, but workers for the business are. Businesses could use the same logic used in McCullen: the picketers are disrupting business and upsetting customers. So, government, please silence them—even though they are standing on a public sidewalk.
Potter described how liberal activists have made this mistake before. He said, “Back in the late 1990s…Planned Parenthood was using RICO statutes against anti-abortion protestors. A lot of civil rights people were saying this is going to come back around to us and sure enough RICO has been used against animal-rights protestors. The [lawsuits] have failed, but it costs mountains of cash to defend against.”
In an interview, the First Amendment lawyer Floyd Abrams—who is a supporter of abortion rights—described the Massachusetts law as being “as bad as first amendment cases have gotten in a while.” He said of the liberal groups supporting the law, “They undervalue the First Amendment…and substitute political liberalism” as their guiding principle instead.
What goes around, comes around. Which is why it’s always best to stick to first principles and avoid “ends justifies the means” reasoning. The first principle here is that the government does not have the right to control the content of speech, no matter how uncomfortable that speech may make certain people. Abandon that principle and your free speech may be next.