Aborting Speech

        Even free speech absolutists ought to sympathize with abortion providers and patients who want to prohibit anti-abortion protests in close proximity to clinics -- especially in Massachusetts.  In 1994, when John Salvi shot up two local reproductive health care clinics, killing two people and wounding five, he left more than grief and carnage in his wake; he also left behind fear and a sense of vulnerability among people who continue to provide and seek abortions today.

        That fear has not been sufficiently alleviated by the 18 foot buffer zone around clinics mandated by the Massachusetts legislature shortly after Salvi’s rampage.  The law also provides for a 6 foot “bubble” around individuals within the 18 foot buffer zone:  you may not knowingly approach within 6 feet of anyone within 18 feet of a clinic entrance without her consent.  This law has been in effect since 2000; the
Supreme Court has declined to hear an appeal from a federal appeals court decision that rejected a constitutional challenge to it.

        Pro-choice advocates and law enforcement officials complain that the buffer zone has proved difficult to enforce. 
alleges that these violations by protesters are common:
        “Dressing up as Boston Police officers and asking for patients' names and contact information?. Blocking access to the front door?. Consistent screaming at patients/employees inside the "bubble zone.” Touching arms, shoulders, or backs of patients or employees?. Standing in front of cars and/or the keypad to block patient/employee access to the garage?. Photographing and filming into patient/employee cars?. Throwing anti-choice literature and pamphlets in cars entering the garage.”

        So with the support of Governor Patrick and Attorney General Coakley, nearly 100 members of the Massachusetts legislature are co-sponsoring
a law that would prohibit anyone from protesting, or simply standing around, within 35 feet of clinic entrances.  At a hearing on the bill last month, the Attorney General and other law enforcement officials offered public policy arguments in support of the bill; survivors of the ’94 shootings, including the brother of Shannon Lowney, the Planned Parenthood receptionist killed by Salvi, made a strong emotional appeal for its passage.

        Then, I was the bad guy who testified against it, on behalf of the Defending Dissent Foundation, a civil liberties group dedicated to protecting the right to protest and dissent from government interference.  Here’s what I said:

        I appreciate the desire to alleviate harassment of patients and personnel at abortion clinics.  But the proposed 35 foot buffer zone wouldn’t simply regulate or attempt to regulate harassment; it would outlaw political speech.  The case against the bill is simple: it would impose a prior restraint on speech, prohibiting peaceful, even silent protests within 35 feet of clinic entrances and driveways – where the protests might be most effective.  It would also effectively impose different restrictions on protesters at different clinics, given their different physical configurations. 

        This is a overly simple solution to a complicated problem – the reported difficulties of enforcing the current law and the tendency of some protesters to engage not just in protests but in harassment of individual patients and providers.  But laws restricting speech should be difficult to enforce; if drawn with respect for the First Amendment and prohibitions on prior restraints, they are naturally difficult to enforce.  Obscenity laws, for example, can defy enforcement, to the dismay of some and delight of others.  It would be easier to punish obscenity if we simply created a sort of buffer zone around discussions of sex.   It’s easy to police harassment of delegates to a political convention when we create buffer zones around entrances to convention halls, corralling protesters into "free speech" zones.  But it should never be so easy to restrict political speech.

        I understand the anger at protesters who abuse their rights.  I understand the impulse to protect patients and clinicians from being intimidated or upset as well as criminally harassed.  But protecting people from intimidation or emotional turmoil is no justification for restricting speech.  We don’t have a right not to be upset, even when seeking medical care.  We do have a right to protest state sanctioned medical procedures.  Imagine how vigorously pro-choice supporters would protest outside clinics that engaged in mandatory sterilization, if it were legally permissible, as it was once, in the early 20th century.  Would you pass a law to restrict those protests, even if clinicians felt intimidated or upset by them?

        Protesters sometime abuse their rights to speak, of course; virtually all rights are bound to be abused on occasion, just as legislative power is bound to be abused – sometimes with the best intentions.  Please don’t let abuses of rights by some individuals persuade you to deny those rights to all.
        Finally, this bill is, at the very least, arguably unconstitutional.  The
U.S. Supreme Court has upheld buffer zones around clinic entrances, so long as they did not include categorical prohibitions on all protests within the zone  -- the sort of prohibition included in this bill.  In 2000, when the Court upheld a Colorado statute imposing a 100 foot buffer zone around clinic entrances, it stressed that the law “allows a protester to stand still while a person moving towards or away from a health care facility walks past her.”  The law only prohibited “knowingly approaching” within 8 feet of another person without consent.  In other words, the Court allowed significant restrictions on First Amendment rights in the Colorado buffer zone case, but it did not allow the blanket prohibition on speech included in this bill.  It would be a sad day for civil liberty if the Massachusetts legislature became less protective of individual rights than the U.S. Supreme Court.

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