I used to go to a wonderful dentist whose office, on Beacon Street in Brookline, was next door to the Planned Parenthood clinic at the center of today’s Supreme Court decision. Once, accompanied by my wife (I’m very squeamish about dental work), I was confronted by anti-abortion protesters. They were determined to dissuade my wife from having an abortion, and didn’t believe that she wasn’t planning to, wasn’t pregnant, and was just accompanying me to the dentist. The encounter was unpleasant and stressful in a high stress situation for me–going to get dental x-rays–but really a blip. The dentist explained that the protesters were somewhat more disruptive to her practice, and once tried to blockade the transport of a new dental drill, which they thought was destined for the Planned Parenthood clinic. (They said, she reported, that it was a baby-sucking machine.)
Not long afterward, a troubled anti-abortion zealot, John Salvi, entered that clinic–and another one down the road–shooting seven clinic workers, killing two. Salvi was never among the sidewalk counselors, who try to persuade women not to get abortions; he believed the situation demanded more forceful action.
The Commonwealth of Massachusetts has worked to craft laws that balance the right to free speech with the protection of women’s health clinics and their clientele. The 2007 version of this balance was a law establishing a 35 foot buffer zone in front of the clinic entrance that restricted entry by protesters–on any issue on any side. [The figure at the top of this page compares the 35 foot buffer zone to the buffer zone that protects the Supreme Court from free speech efforts. It’s from NARAL-Pro-choice Massachusetts’s Facebook page.]
Free speech rights in America have never been absolute, but are subject to reasonable restrictions on time, place, and manner. Just what’s “reasonable,” however, is always a matter of contest. Justice Holmes’s offered the famous analogy of preventing someone from crying fire in a crowded movie house to justify prosecuting protesters against World War I and the draft.
Eleanor McCullen (at right) is a regular Operation Rescue protester who is committed to helping women decide not to have abortions. She offers literature and information to those who might enter the clinic, and wants to engage people in a conversational tone, looking them in the eyes. The 35 foot boundary, she says, stops her from exercising her free speech rights.
In McCullen v. Coakley, all nine justices agreed with Ms. McMullen. Public streets and thoroughfares, the Court explained, offer a special fora for free speech, and the anti-abortion protesters reported that the 35 foot buffer limited the number of conversations they would have and reduced the amount of literature they could distribute. To engage women entering the clinic they had to yell. Justice Roberts, who wrote the majority opinion, ruled that Massachusetts could find narrower and less intrusive ways to serve its legitimate interests in public safety.
I don’t know whether 35 feet is too restrictive, or where the right to be left alone fits in here. Presumably, protesters are entitled to try to dissuade you, peacefully, from doing any number of things: riding the bus, crossing a picket line, eating fast food, grabbing a good parking space, getting a vaccine, or going to a movie. Those are all individual decisions, however, and I’d think we would want to offer protesters better access to convince people in a position to make decisions on matters of policy that affect larger numbers of people.
If 35 feet is too big a buffer for approaching a women’s health clinic, we’d think that access to the Supreme Court, the state legislature, a presidential speech, the meetings of the International Monetary Fund, or the home of a large company’s CEO, would be somewhat more limited as well. Public figures and policy makers should be more accessible to dissenters than private citizens making difficult decisions. This decision should be an important precedent for protesters frustrated with “free speech zones” located miles from their targets.