Constitutional Buffer Zones

Long have I wondered exactly where the line is between the freedom of speech and the maintenance of public order.

As it turns out, the answer is 35 feet from the front door of Planned Parenthood.  And it’s not a line, but a semi-circle.

That’s the situation in the commonwealth of Massachusetts, which today defended itself in front of the U.S. Supreme Court against a challenge to such a policy.

As reported in the New York Times on Monday, in 2007 the Bay State passed a law that created a “buffer zone” around the entrances to reproductive health care centers, marked by a painted yellow arc on the sidewalk, in order to prevent confrontations between anti-abortion activists and patients or staff from getting out of hand.

Now, one such pro-life voice—77-year-old Eleanor McCullen of Boston—has filed suit, arguing that her right to peaceably stand outside a Planned Parenthood clinic and try to talk women out of procuring abortions, as she does regularly, is being unfairly abridged.

That’s the question before the Supreme Court, and also before all of us:  Does McCullen’s right to say what she wants about abortion take precedence over an unsuspecting young woman’s right to walk, unmolested, into a facility that offers abortions?

Fourteen years ago, the Supreme Court said no.  In the 2000 case Hill v. Colorado, the court ruled that a similar “buffer zone” law in Colorado did not violate the First Amendment to the U.S. Constitution, on the grounds that the policy did not restrict free speech, as such, but merely “one arena for speech.”

Further, the court argued, the law was “content neutral,” meaning it did not differentiate between anti-abortion and pro-abortion views.  The “buffer zones” were off-limits to everyone.

Finally, the majority opinion held that, with those two conditions met, the state had a “compelling interest […] to protect citizens entering or exiting a medical facility from unwanted communication.”

“Even though speakers have a right to persuade,” the ruling explained, “this cannot extend to unwilling listeners because people also have a right ‘to be let alone.’”

Massachusetts today, in the person of Attorney General Martha Coakley, is defending its own protest-free perimeters on many of the same grounds, with a strong emphasis on that final point.  In point of fact, several of the state’s abortion providers had been subject to aggravated and sometimes violent incidents prior to the 2007 law’s passage.  In the intervening years, such scuffles have become far more scarce, which Coakley and others attribute to the “buffer zones” now under scrutiny.

“This law is access balanced with speech balanced with public safety,” said Coakley.  “It has worked extremely well.”

Taking this to be true, the critical question is:  Does it matter?  Is the mere possibility of public safety being compromised sufficient to justify shuffling (non-violent) protesters to one side, forcing them to express their views from a distance?

On my own better days, I prefer to fashion myself a First Amendment absolutist.  That is, one who thinks the freedom of expression must be extended to everyone in nearly every circumstance, particularly when the views in question are repulsive or challenging, and that the state had better have a damned good reason to act or legislate to the contrary.

The freedom of speech is a right, not a privilege.  As with all rights that become subject to regulation, the burden of proof necessarily falls on the regulator to show why such an act is warranted.

Does not making pregnant women feel bad qualify?  Count me skeptical.

We can probably agree that no one should be made to feel physically intimidated in public.  That’s what our various assault and harassment laws are for.  Why should free speech enter into it?  Being offered a leaflet and being physically obstructed from entering a building are not equivalent, and we must be very careful not to suggest they are.

Are women entering Planned Parenthood really so fragile that they must be cordoned off from opinions that might cause them distress?

I must say I find the “right to be let alone” argument bizarre in this context.  The fact is that the moment you leave your house every morning, you subject yourself to the possibility of encountering people you would rather avoid and views you would rather not hear.  That’s what it means to live in a free and open society.

Is one person’s constitutional right to procure an abortion more important than another person’s constitutional right to advise against it?  In this case, is it even necessary to choose one over the other?


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