This morning, in America’s frigid and fractious capital city, a soft-spoken 77-year-old grandmother named Eleanor McCullen stood up to the machine.
At stake was a Massachusetts law that makes it illegal for any citizen to “enter or remain on a public way or sidewalk” within 35 feet of the entrance or exit to an abortion clinic — unless, that is, that citizen either works in the clinic or is in agreement with what goes on inside. This has severely restricted the ability of McCullen, a regular fixture outside the Planned Parenthoods of Boston, to hand out anti-abortion literature and to offer would-be patients financial support — both of which she has been doing pro bono for decades. The state law, she contends, is flatly illegal, violating her sacred right to free speech, depriving her of equal protection under the law, and effectively establishing speech codes on public land.
Apologists for the measure claim rather anemically that the law is necessary to prevent “harassment,” and they promise that it strikes a reasonable “balance” between respect for free expression and the need to protect visitors from being hassled. McCullen and her lawyers disagree, holding that because the law’s applicability is contingent not on one’s behavior but on one’s speech per se, it is unconstitutional. They are right.
The ACLU, which shamefully filed a brief in favor of the status quo, readily admits that expression is being restricted. They just think it’s worth it. As Mother Jones’s Molly Redden explained, lawyers at the outfit concede that “buffer zones do impinge on free speech, but they contend this is necessary to protect the competing constitutional right to obtain an abortion.”
All told, this is an odd sentence — its implication being that anti-abortion speech is so devastatingly effective at preventing would-be patients from going through with their decisions that it needs to be suppressed — and it appears to back up Justice Scalia’s scathing charge that what advocates are really interested in is limiting debate. Argument, Scalia has written, is the “forum of last resort for those who oppose abortion.” Roe v. Wade having limited the legislative options, advocates such as McCullen have “no option but to persuade women, one by one, not to make that choice. And as a general matter, the most effective place, if not the only place, where that persuasion can occur, is outside the entrances to abortion facilities.” If not to smother that persuasion, what possible interest can the state have in regulation?
Cases such as this often become confused by the question of what the state is allowed to do when speaking becomes something else — intimidation, say, or browbeating. But there is no such complication here. Despite his repeated entreaties, the defendants singularly failed to provide Justice Breyer with an example of the violence that they say made the law necessary in the first place. Indeed, even if they had found one, it wouldn’t have done much to justify the rule. Why? Well, because Massachusetts’s law discriminates against citizens not for the manner in which they express themselves but simply for holding a point of view, for praying, or for displaying a protest sign — for exercising one’s right to “walk and talk gently, lovingly, anywhere with anybody,” in the words of Eleanor McCullen. This is unacceptable.
Legally problematic, too, is that the law effectively puts citizens into two camps, banishing anyone with pro-life views while welcoming everybody else. Under the rules, anti-abortion activists are strictly prohibited from even entering the buffer zone — which is represented by a crude semicircle painted onto the sidewalk — while employees of the clinic are free to roam as they please. Likewise, while protesters are restricted from so much as referring to abortion beyond the state-imposed line, staff and others are entirely free to discuss the issue as they wish. In other words, the law is “content-based,” and its consequence is to have blocked certain citizens from a public space purely on the basis of their private convictions. Justice Alito, who is no friend to maximalist readings of the First Amendment, wondered aloud how this could possibly be kosher. Per MSNBC, Alito proposed a hypothetical:
A woman entering a clinic is approached by two other women. One says, “Good morning, this is a safe facility,” the other says, “Good morning, this is not a safe facility.” Alito said, “The only difference is that one is committing a crime. How can a statute like that be considered viewpoint neutral?”
The last time that this general issue was addressed, in Hill v. Colorado (2000), the justices sided with the government. At stake in that case was the constitutionality of a Colorado law that imposed a hundred-foot line around all health-care facilities and banned protesters from being nearer than eight feet from other individuals. Six to three, the Court rejected the First and Fourteenth Amendment claims and upheld the statute.
Lead defendant Martha Coakley is confident that the Court will uphold the Massachusetts statute too, observing cheerfully that “nothing has changed except the Court.” This is a peculiar claim. Far from the minor detail that Coakley makes it out to be, the makeup of the Court is in fact the key variable here. Since Hill was decided 6 to 3, four of the justices in the majority have retired or died; one of the two conservative justices who voted to uphold has been replaced by John Roberts, who is close to being a First Amendment absolutist; and all three of the dissenting justices are still at large. Which is to say that this is a significantly different Court. Despite his skepticism, Samuel Alito may well continue his well-established tendency toward siding with the state against the First Amendment and come through for Massachusetts. Ruth Bader Ginsburg’s line of questioning today suggested that she, too, is a vote for upholding the law. After that, though, one struggles to see a clear path to five.
Hill to one side, the long-term trend is in the plaintiff’s favor, too. Happily, since John Roberts took over the Court in 2005, it has consistently sided with free speech — striking down laws that punished citizens for lying about their military honors, that prohibited depictions of violence against animals, and that attempted to set video games outside the usual constitutional protections. This is the Court, remember, that by an 8–1 margin upheld the right of the execrable Westboro Baptist Church to protest at the funerals of killed American servicemen. It takes the First Amendment seriously, as it should.
Insofar as one can ever tell, the oral arguments appeared to go better for the challengers than they did for the government. Reporting from the gallery, the Associated Press’s Mark Sherman suggested that “the Supreme Court seems likely to strike down” the rule — recording, too, that “liberal and conservative justices alike expressed misgivings.” Meanwhile, Reuters’s Lawrence Hurley leaned toward a favorable decision for the plaintiffs, recording that “a majority of the justices at times expressed concerns” and that even Elena Kagan and Stephen Breyer seemed skeptical, leaving him to consider it “likely that there are enough votes to at least strike down the Massachusetts law on narrow grounds.”
Dissenting from Hill’s majority in 2000, Justice Scalia observed drily that the defendants were enjoying “the benefit of the ‘ad hoc nullification machine’ that the Court has set in motion to push aside whatever doctrines of constitutional law stand in the way of that highly favored practice,” abortion. Today, the Court was given a chance to redeem itself. Hopefully, it will take it — not narrowly but as broadly as possible — and, in doing so, reaffirm the age-old American principle that the state has many roles, yes, but that protecting citizens from hearing speech that they dislike is not one of them.
— Charles C. W. Cooke is a staff writer for National Review.