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Misunderstanding McCullen



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Judging by the contents of my inbox, many of those who are vexed by my piece on the Supreme Court’s McCullen v Coakley case are either confused by what the Supreme Court assembled to investigate yesterday, or they are flatly unwilling to engage with the substance of the plaintiff’s complaint. Sadly, the vast majority of the pushback I have got has had precisely nothing to do with the case at hand — which, remember, is whether the state can make it a crime for pro-life activists to “enter or remain on a public way or sidewalk” within 35 feet of the entrance to an abortion clinic based solely upon their opposition to abortion — and everything to do with separate, irrelevant questions, such as whether one is allowed to be violent or intimidating toward the would-be patients of abortion clinics, what authorities may do to prevent shootings, whether I have ever personally experienced fear, and why Massachusetts passed the law in the first instance.

As was made abundantly clear during oral arguments, the basic question in McCullen v. Coakley is whether the state of Massachusetts can a) establish a particular area in which even “quiet,” “counseling” speech is restricted (the ACLU, which sided with the state, concedes that this is what is happening but thinks it is worth it), and b) whether it may set rules that discriminate against people based on the content of that speech (abortion may be discussed within the zones, but only by those in favor). This is important. The court did not consider itself to be judging the constitutionality of an anti-intimidation or anti-protest law. Instead, it believed that it was determining the question of how far wholly non-violent speech — including silent prayer and the holding of signs — may be restricted. This is a reasonable question.

What is not reasonable is the claim that blanket limits on free speech are necessary in order to prevent intimidation, murder, violence, and the physical blocking of entrances. Why? Because all of those activities are already illegal, both under Massachusetts law and, in some cases, under federal law. Because there are no areas in which intimidation, murder, violence, or physical restraint are permissible, there is no need for “zones” in which they are not. Speech, by contrast, works the other way around. Because speaking is legal pretty much everywhere, if one wants to silence Americans one has to do it selectively. This is what Massachusetts’s law does, creating a zone in which the usual rules do not apply. Is that allowed?

Ostensibly, the state of Massachusetts was inspired to write the law because it wished to prevent activists from blocking access to clinics. Fair enough. But good intentions do not guarantee constitutionality any more than a law’s containing some legal provisions makes the whole thing kosher. Whatever set them off, lawmakers in Massachusetts passed a measure that ranges into something else entirely, potentially violating the First and Fourteenth Amendments in the process. That — not whatever fuzzy feeling they may have had while voting — is why the state has found itself in court.

It is interesting to me that nobody, in public or private, has yet explicitly defended the extreme consequences of the law — which are the reason that McCullen brought the case in the first place. Instead, they have gone straight to other, extraneous issues,. Providing that they are being honest, this is fine. I’m anti-intimidation and anti-murder, too. Still, the reluctance to engage with the substance of the case would seem to suggest that what the friends of the defense want is less for the court to uphold the law completely and more for it to strike it down narrowly, forcing a rewrite that protects the rights of those who are hoping only to talk while making it easy for anyone who is engaged in more nefarious purposes to be removed forcibly from the area.



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