Today the Supreme Court unanimously struck down a Massachusetts law that required pro-life sidewalk counselors to stay at least 35 feet away from abortion clinics. They based their decision on the First Amendment, saying that the law violated the protesters’ free speech rights. However, the precise definition and application of free speech was heavily debated. This article was written in January while the case was being argued and explains the different views on free speech that were presented.
Supreme Court arguments: can free speech be suppressed outside abortion clinics?
by Ken Klukowski
How far can lawmaking go in creating a buffer zone around abortion clinics to ensure women can go to the clinic before violating the First Amendment rights of those who want to talk to women about alternatives to abortion?
On Jan. 15, the Supreme Court heard arguments in McCullen v. Coakley against a Massachusetts law under which a line is painted on the ground 35 feet from the door of abortion clinics. Anyone who enters that zone to speak against abortion to a woman can go to prison for committing a crime.
Eleanor McCullen is an elderly woman who counsels younger women who are pregnant to have their baby instead of an abortion. She is challenging the Massachusetts law, which was upheld by the First Circuit federal appeals court in Boston.
McCullen was represented by Prof. Mark Rienzi of Catholic University. Rienzi began, “This Court has held that the public sidewalks are a natural and proper place for free citizens to exchange information and ideas, and for that reason the Court has held that public sidewalks occupy a special position in First Amendment analysis.”
Justice Sonia Sotomayor compared pro-lifers’ speech outside abortion clinics to protests at military funerals. “So protesters like the one we had in the Schneider case at a funeral of a veteran can go right up to the public sidewalk outside the church and put up the signs that they did… That’s okay with you?” Sotomayor said both share one thing in common, that “there is the potential for disruption because of the strong sentiments around that.”
Rienzi responded that this law is targeting a very different type of expression. He contended that “a law that makes it illegal to even engage in consensual conversation, quiet conversation, on a public sidewalk, [a law] that makes that a criminal act for which Mrs. McCullen can go to prison… is not permissible under the First Amendment.”
Justice Elena Kagan suggested she thought government must be able to do something. “But you say… we have to let whatever interference goes on, even if there’s a record of real obstruction, of real interference with the operation of the facility… And I guess I think that’s pretty hard.”
Justice Antonin Scalia saw this case in a very different light. He asked Rienzi, “It is the case, isn’t it, that not only abortion counselors are excluded from this area. Everybody is, right? Anybody who wants to talk to anybody or who just wants to be there can’t. I mean, this is a dead speech zone, right?”