15 January 2014

McCullen v. Coakley: free-speech zones for anti-abortion activists?

You're probably familiar with the Orwellian concept of the "free speech zone." It's the space created for protesters to exercise their constitutional right to free speech without disrupting the right to assemble of those people or groups against whom the protesters want to protest. These zones are usually located far away from the people the protesters want to hear their protests, on the pretext that protests at to close a proximity disrupt the gatherings protested and violate the First Amendment rights of those gathering. The rationale of the free speech zone is that the right to speak and the right to protest do not amount to a right to confront; you can't show up at a gathering (usually a political convention or international conference) and compel those you oppose to listen to you by virtue of your mere presence. On a similar principle, the state of Massachusetts has created "buffer zones" around abortion clinics. The current law forbids anti-abortion activists from talking to those entering the clinics, or handing them anti-abortion literature, 35' of the clinics. The U.S. Supreme Court is hearing McCullen v Coakley, a challenge to the Massachusetts law by an activist who claims that the law violates her constitutional rights. After a day of oral arguments, it looks like the justices are leaning her way. The problem with the Massachusetts law, as I understand it, is twofold. First, some of the liberal justices are uncomfortable with the law's apparent failure to distinguish discourse from disruption. They don't sound thrilled with the idea that a person opposed to abortion can't even start a quiet conversation with someone within the buffer zone. Second, the law isn't "content neutral," as laws allowing free speech zones presumably are. That is, the law explicitly bans anti-abortion activity within the buffer zone without forbidding the opposite point of view. But the content-neutrality test seems inappropriate to the case, since in the context of the debate over abortion rights, the abortion clinic itself isn't content-neutral. It seems absurd to demand that clinic employees do nothing to encourage or reassure visitors in the interest of fairness, especially so long as the right to have an abortion is understood to be protected by the Constitution. It would seem that a person visiting an abortion clinic should have at least as much right to do so free from interference as a political party or international business organization has to hold a meeting free from interruption. So far, none of the justices are suggesting that the "pro-life" crowd should do as they please outside clinics; even Justice Scalia hinted that Massachusetts could make and keep a law forbidding genuinely disruptive behavior by protesters. That may not satisfy the "pro-choice" camp. Those people clearly have less sympathy than the justices for people like the plaintiff in this case who want to quietly dissuade women from having abortions. This is culture-war territory, after all, and to an extent the abortion-rights side is taking a stand similar to the gay-rights movement. The implication of the Massachusetts law, after all, is that it's wrong, at least within the buffer zone, merely to say that abortion is wrong. You can understand why that idea troubles some outside the conservative or anti-abortion camp, since the liberal tradition values people's presumed right to say that a law is wrong, even if by doing so they seem to menace someone's cherished rights. But if the justices want to say that you can't expect to exercise your current rights without having their rightfulness challenged, I wish they would begin to work toward a consistent application of whatever rule they come up with for balancing the rights of one group with those of another that disagrees with them and wants to tell them so.

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