The McCullen Case and the Craft of John Roberts

by Hadley Arkes
Conservative justices need to think again about their formulas for restricting speech.

At this time of the year, we’re often invoking Mark Twain’s line on Wagner’s music: that it wasn’t “as bad as it sounds.” The outcome, announced today, in McCullen v. Coakley may not be as bad as Justice Scalia thinks it sounds.

For my own part, I think that Justice Scalia is inescapably right in seeing the statute in Massachusetts as part of a scheme to close down, in the public forum, speech that is critical of abortion. But that critique may distract us from seeing what has been accomplished in this case. John Roberts, in his opinion for the majority, has picked up on some of the critical points that Scalia himself made during the oral argument in McCullen v. Coakley — most notably, that it was quite wrong to describe the speech of Eleanor McCullen as a “protest.” For Roberts it was as critical here, as it has been for Scalia, to put the accent on the fact that Eleanor McCullen works by quietly offering information to women entering an abortion clinic. She typically says, “Good morning, may I give you my literature? Is there anything I can do for you?”

“There is no doubt,” said Roberts, that the statute in Massachusetts “restricts access to traditional public fora [i.e., sidewalk] and is therefore subject to First Amendment scrutiny.” With that premise planted, Roberts puts the burden on Massachusetts and any other governments in this country to tailor their restrictions far more narrowly. As Roberts writes, “It is . . . no answer to say that petitioners can still be ‘seen and heard’ by women within the buffer zones. If all that the women can see and hear are vociferous opponents of abortion, then the buffer zones have effectively stifled petitioner’s message.”

Scalia has invested his arguments over the years in the proposition that the law should not make discriminations based on the “content” of speech. To that argument his colleagues have often quibbled on the side that, of course, we make discriminations on content all the time. But John Roberts has taken matters back to the root of the old distinctions that the law used to recognize: viz., that we can tell the distinction between the speech that constitutes an assault or a conversation. In this case, one can tell the difference between the speech of Eleanor McCullen, quietly inviting women into a conversation, and the “speech” of people shouting outside a clinic and calling names. There is a difference between making an argument, say, over the homosexual life, and calling people “fags.” Scalia has been reluctant to have the law make the discriminations that the law used to make, and so he’s been willing to strike down a law barring the burning of crosses, or a judgment against the Reverend Phelps and his gang, harassing the funeral of a dead marine with a sign saying “Semper fi fags.”

I would prefer myself a ruling, in the McCullen case, far broader, far closer to Scalia’s sense: namely, a ruling that does not create a separate class, for the opponents of abortion, outside the protections that are accorded to everyone else under the First Amendment. But what John Roberts managed to establish today is that, whatever local governments try to do in silencing the critics of abortion, they may not pass measures that bar someone like Eleanor McCullen, quietly speaking to women on the way to a clinic, earnestly trying to draw them away from killing the babies forming in their wombs. That is not all that some of us may wish, but neither is it a trifling matter. And so it is a decision that certainly warranted the concurrence of Justices Scalia and Alito, who wrote in separate opinions.

From the perspective of those of us interested in federalism, John Roberts wrote in a manner that used to command our approbation:  As he sought to show, the law in Massachusetts, casting a buffer zone of 35 feet from clinics, could be understood and justified for purposes quite unconnected with silencing the opponents of abortion.  We used to commend judges who could operate with a finer scalpel: They could concentrate their wit in countering only the abuses in a local law without impairing the capacity of the local government to preserve that law for its rightful purposes. So much could be said in that vein for what John Roberts has done in the McCullen case. But Scalia too has seen rightly here — that these laws cannot be explained by anything other than the passion to silence the critics of abortion. And so Roberts might as aptly drawn on the wisdom of Justice Mathews in the old Yick Wo case and said that “the law itself [may] be fair on its face and impartial in appearance,” and yet it may be “applied and administered by public authority with an evil eye and an unequal hand.”

But beyond the arguments over “viewpoint discrimination,” something else is at work that sweeps well past the formulas that the conservative judges have been willing to use. Lincoln famously said that “if slavery is right, all words, acts, laws, and constitutions against it, are themselves wrong, and should be silenced, and swept away.” If he conceded that slavery was “rightful,” he would concede the rightness of censoring the mails to screen out the abolitionist literature.

For the conservative judges in our time, the speech that favors abortion and the speech that opposes abortion are simply two forms of speech standing on the same moral plane in their claim to the tolerance of the law. What the conservatives do not take seriously enough is that partisans of “abortion rights” regard the right to abortion as truly rightful: And therefore all speech that is aimed at discouraging women from having abortions, even speech aimed at diverting women from clinics, can be seen simply as speech designed to divert people from the honoring of their deep “rights.” The liberal justices do not see these forms of speech on the same moral plane. The law, for them, must be tilted against those who vocally oppose abortion near the clinics, and all of the talk about discriminations based on the “content” of speech will be seen simply as an empty formalism, devoid of substance. The lesson by now should be clear: Behind all of the formulas of “strict scrutiny” or viewpoint discrimination, the driving point in these cases will ever be the matter of substance — the understandings that divide us on the rightness or wrongness of abortion.

— Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College and the Founder and Director of the James Wilson Institute on Natural Rights & the American Founding.