A Massachusetts law barring pro-life speech within 35 feet of an abortion clinic reached the Supreme Court on Wednesday. Most court observers seem to think the anti-speech law had a pretty bad day.
The case, McCullen v. Coakley, has been grinding along since 2008. The plaintiff, Eleanor McCullen, is by all accounts a kindly, soft-spoken woman who ran a pro-life sidewalk ministry. She would station herself outside abortion clinics and try to change the minds of women who came to terminate their pregnancies. She went to court against a Massachusetts law which established a 35-foot “buffer zone” to keep people like her away from clinics. Stiff cash penalties, and even jail time, await violators.
It’s difficult to square this prohibition with the freedom of speech, or to insist that it should be uniquely practiced against only one set of ideas, as noted by the Alliance Defending Freedom when they filed the suit almost exactly six years ago:
“Pro-life advocates shouldn’t be penalized for expressing their beliefs,” said ADF-allied attorney and lead counsel Michael DePrimo. “The buffer law is breathtaking in its scope. It obviously was designed and intended to squelch pro-life speech, but it prohibits much more, such as labor picketing and charitable solicitations. The First Amendment simply does not permit such outlandish restrictions on peaceful speech.”
“It’s ironic that Massachusetts, the ‘cradle of liberty,’ would pass a law that effectively creates a First Amendment-free zone that silences those who seek to share the truth about abortion,” said ADF Legal Counsel Tim Chandler. “Those with pro-life views have the same First Amendment rights as anyone else in America.”
This line of argument popped up in an exchange between Supreme Court Justice Elena Kagan and plaintiff’s lawyer Mark Rienzi, in which Kagan picked up a rather uncomfortable example to illustrate the buffer zone concept. “I was intrigued by one of the examples that you gave you own brief, in which you said ‘slaughterhouses,’” Kagan said. “So, let’s say, that there are animal rights activists, and this is easy to imagine, who try to interfere with access in and out of slaughterhouses. And a state passes a regulation that says there’s a ton of interference, it’s preventing the operation of these facilities, employees can’t get in, suppliers can’t get in, slaughterhouses are leaving the state becuase of this problem, and so we’re just going to set up a zone and let’s call it 30 feet, because it’s very hard to enforce anything else.”
Kagan said this idea sounded reasonable, but Rienzi countered that there were better regulatory options for preventing actual physical interference with the operation of a legal slaughterhouse, of either the animal or human varieties. Speech within the buffer zone is not the same thing as destruction of property, or blocking off the entrance. The discussion then turned to whether it was possible to imagine a situation where other regulations could fail to protect physical access to a lawful business operation, which seems like a rather fantastic argument, because Eleanor McCullen certainly wasn’t barricading any clinic entrances or tackling the staffers on their way into work. She was saying something the pro-abortion crowd doesn’t want potential customers to hear.
There was some discussion of pro-life demonstrators who have not been so well-behaved, but there are ways to make it clear that physical contact is unacceptable without restricting freedom of speech. A key point made by the defending layers (including representatives of the federal government, which stepped in to support the Massachusetts buffer zone law) was that intent can be difficult to prove when using other legal tools to prevent the outright blockading of abortion clinics. In other words, a large crowd of protesters could assemble, and their numbers might inadvertently prevent access to the clinic doors, even if there was no way to prove they deliberately intended to become such an obstruction.
On the other hand, those critical of the law – notably including Justice Antonin Scalia, who referred to the 35-foot buffer as a “dead speech zone” – maintain that it’s impossible to have the sort of quiet, persuasive conversation elderly Mrs. McCullen specializes in, when forced to remain at shouting distance from the clinic. “The evidence in this record is that the inability to speak with people close to the clinic has a dramatic effect on the [pro-life] petitioners’ ability to reach their audience,” Rienzi argued. He mentioned that in some cases, the buffer zone made it effectively impossible for the pro-life counselors to speak with incoming patients at all – they were able to do nothing but wave leaflets as people drove past.
Rienzi described the absurd conditions that exist on sidewalks that fall within the buffer zones by saying “the clinic is allowed to use that sidewalk, even just to say ‘Good morning, may I help you into the clinic,” and the government says that’s a valid use of our public sidewalks, but the state says Mrs. McCullen will go to prison if she goes on that sidewalk and says, ‘Good morning, may I offer you an alternative?’”
Justice Scalia tried an even more pointedly absurd reduction of the same example: “A woman is approaching the door of a clinic, and she enters the zone. Two other women approach her. One is an employee of the facility, the other is not. The first, who is an employee of the facility, says ‘Good morning, this is a safe facility.’ The other one, who’s not an employee, says ‘Good morning, this is not a safe facility.’ Now, under this statute, the first one has not committed a crime, but the second one has committed a crime.”
The ensuing debate about whether people could get arrested for exchanging pleasantries while strolling within 35 feet of a clinic illustrates how tortured the logic behind government restriction of speech can become. As Justice Scalia pointed out, it’s much easier to have laws that prevent screaming or shoving near a clinic, because that way the government is not put in the chilling position of passing judgment on the content of speech, forbidding specific words and ideas.
Justice Anthony Kennedy sounded dubious about the government’s compelling need to restrict speech in this case too, sarcastically asking Massachusetts Assistant Attorney General Jennifer Miller, “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?”
There’s a broad and troubling tendency for the essential rights of American citizens to be set aside in the name of expediency. The First Amendment guarantee of free speech is straightforward, and should not be sacrificed because a particular industry has good political connections, or because the government finds it too difficult to write laws that satisfy other concerns while also respecting speech rights. Mrs. McCullen needs to win her suit against the Massachusetts law, because of what it has already done, and because of the dark places this concept of “dead speech zones” might someday be taken. How many other quiet conversations will our steadily growing government find it convenient to silence in the future?