The Supreme Court heard oral arguments today on a Massachusetts law that creates a so-called “buffer zone” of 35 feet between legal abortion clinics and pro-life protestors outside that extends onto public streets and sidewalks.
At issue, POLITICO reports, is that the law gives an exemption to employees speech outside but punitively restricts the activists from their famous “sidewalk counseling” where they try to persuade, very passionately at times, potential mothers and parents that they are making a very big mistake in seeking an abortion.
A key issue in the case, McCullen v. Coakley, is whether Massachusetts can differentiate between people who want to peaceably protest or consult people outside of the facility and those who intend to be violent or disruptive. Miller, as well as the Obama administration, argued that it is “enormously difficult” to make that distinction, so everything from loud protests to quiet conversations must be restricted.
The problem with this kind of reasoning being put forth by Massachusetts and the Obama administration, who is backing the law in the court, is that it is impermissible for the federal or state governments to restrict core political speech–or any peaceful speech–during reasonable hours on public property that is neither violent nor threatening.
Even more galling is that the law doesn’t even allow for conversational “quiet” speech. That is patently ridiculous on its face and demonstrably so when Justice Kennedy asked, “Do you want me to write an opinion and say there’s no free speech right to quietly converse on an issue of public importance?”
This is the first major case that this writer knows of to come before the Court since the 2000 case Hill v. Colorado that created an eight foot “floating” barrier in that state between protesters and clinics, which a majority of the justices upheld.
But the composition of justices has changed since then. Neither Justice Roberts, Alito, Sotomayor, nor Kagan were on the court at that time. And with Kennedy likely going with the conservatives on this ruling, it appears that those Republican-appointed justices will strike down the law.
But this is really not a case about abortion or abortion rights. It’s more about free speech. And this court, to the pleasure of this writer, is a very pro-free speech court relative to the Rehnquist court or others that have come before.
This is the court that has struck down laws banning the watching of animal cruelty videos, the picketing of soldiers’ funerals, and the funding of independent political advertising by by corporations and unions.
In this case, McCullen v. Coakley, the court should do the right and constitutional thing and strike another blow for First Amendment political speech.