Mass. abortion clinic buffer zone law struck down

[Kestrel]

If a city leased the sidewalk to a clinic, would this ruling still apply?

 

[Ziggurat]

The abortion clinic buffer zone was rather modest compared to the half mile protective bubble that kept George W. Bush from hearing any objections to his policies.

Tu quoque?

It is a fraction of the size of the marble paved no free speech zone in front of the Supreme Court.

Abortion clinics can establish as large an buffer zone as they want. All they need to do is what the Supreme Court has done: own the land they want to make a buffer zone.

Or the no free speech sidewalk in front of the White House.

The only case I know of involves the prohibition against writing chalk messages on the sidewalk outside the White House. As far as I can tell, the government can in principle ban writing on any sidewalk, not simply the White House, so they could do that for abortion clinics as well. The sort of speech restrictions that the SC just overturned do not exist, as far as I can tell, outside the White House.

On a side note, can anyone explain why those now in prison for killing abortion providers are allowed to correspond with those in the movement on the outside?

Um... probably because the law doesn't allow for such limitations on communication? And why would it? Are convicts to be held incommunicado? What exactly are you suggesting?

 

[ponderingturtle]

So why do the side walks around say the RNC convention need to prevent protesters?

 

[Kestrel]

Um... probably because the law doesn't allow for such limitations on communication? And why would it? Are convicts to be held incommunicado? What exactly are you suggesting?

Terry Nichols and the Unibomber have severe limitations on communications. My suggestion is that anti abortion killers also be treated as domestic terrorists.

 

[Cylinder]

If a city leased the sidewalk to a clinic, would this ruling still apply?

Yes.

A jurisdiction can't lease exclusive use to a public right-of-way like that in the first place and certainly can't do it for content-specific enforcement. The court covered that in sub (a) of the syllabus:

By its very terms, the Act restricts access to “public way” and “sidewalk,” places that have traditionally been open for speech activities and that the Court has accordingly labeled “traditional public fora.” The government’s ability to regulate speech in such locations is “very limited.”

"Very limited" doesn't prevent the jurisdiction from restrictions subject to strict scrutiny, but leasing a sidewalk would be (at least) functionally identical to what the Commonwealth attempted in McCullen.

Kind of the subtle irony here is the fierce opposition to this decision in particular and the emotional response to the subject in general by people seemingly unrelated to this particular Boston clinic evidences the public interest in the debate and places more weight on the side of the scale of the petitioners in this case. That is, the issue has became one of general, legitimate public debate.

That's kind of opposed to, say, if my neighbor had a dispute over the condition of a lawnmower I sold to him which might have some public speech contingent but would probably be afforded less weight by virtue of its private nature. The test is a balance -- the government has (supposedly) a public interest weighed against the prohibition against using that power to infringe on individual rights.

What if the government arrested you for speaking to people on a public right-of-way about the labor practices at Walmart? What about a law criminalizing discussing tolerance based on sexual orientation in public spaces?

 

[Kestrel]

A jurisdiction can't lease exclusive use to a public right-of-way like that in the first place...

Actually, they do it all the time. Restaurants and hotels routinely lease the parking spaces on public roads in front of their buildings for the exclusive use of their valet parking service. Sidewalks are routinely closed while buildings are under construction. Public lands are rotinely leased to private concerns and limits placed on public use.

It's also interesting to note that courthouse steps have traditionally been a place for speeches and political activity. But now they are conveniently off limits for that use, at least in Washington DC.

 

[Kestrel]

What if the government arrested you for speaking to people on a public right-of-way about the labor practices at Walmart? What about a law criminalizing discussing tolerance based on sexual orientation in public spaces?

That isn't what the buffer law did. It created a minor limitation on where you could do that activity, regardless of the content of your speech. A small area near the clinic entrance conveniently marked with a yellow line. A line that made it easier for authorities to prevent the "in your face" speech practiced by anti abortion zealots that is really more about intimidation than an exchange of ideas.

The buffer zone was small enough that those entering the clinic could still hear what the protesters were saying and read the signs being carried. Compare this to the massive buffer zones around certain political conventions where protesters could not be seen or from the convention entrances.

 

[This is The End]

Serious question:

Does this mean that there is also no buffer zone for the protesters?

That is, are counter-protesters now free to stand right next to the protesters and yell at them (or whatever it is the protesters are doing at the women)?

Sorry if I'm being dense and someone answered this or if it is obvious, but I'm still confused.

To be clear:

Are counter-protesters free to stand right where the protesters are allowed to stand??

And what about a hypothetical "indifferent" protester... that is, could someone stand there and just yell random nonsense?

 

[Kestrel]

Sorry if I'm being dense and someone answered this or if it is obvious, but I'm still confused.

To be clear:

Are counter-protesters free to stand right where the protesters are allowed to stand??

And what about a hypothetical "indifferent" protester... that is, could someone stand there and just yell random nonsense?

As I understand it, the buffer zone applied to everyone regardless of the content of their speech.

 

[yodaluver28]

As I understand it, the buffer zone applied to everyone regardless of the content of their speech.

Correct. The buffer zones applied to everyone who was not a patient, patient's personal escort, or clinic employee and existed to prevent bullying and physical intimidation that didn't quite rise to the level of assault. That is not protest or "free speech". It's rank bullying and intimidation, which is even more unconscionable when you realize that most women who go to clinics that provide abortion services don't get an abortion. Many are there for free or low cost gynecological care and birth control that aren't available elsewhere but they all get harassed as "baby killers". Women shouldn't need to summon an army to protect them from self-righteous fanatics when they need gynecological care. Yes, including those seeking an abortion.

You want to protest abortion? Protest at your state legislature or governor's office. You know, the people who actually make and change public policy. "Protesting" at clinics is nothing but bullying women at their most vulnerable in a cynical attempt to shame and intimidate them into acting according to the ideology of their bullies purely out of fear for their own safety.

 

[lionking]

"Protesting" at clinics is nothing but bullying women at their most vulnerable in a cynical attempt to shame and intimidate them into acting according to the ideology of their bullies purely out of fear for their own safety.

Spot on. This ruling enshrines the freedom to intimidate. It's breathtakingly stupid.

 

[Babbylonian]

Spot on. This ruling enshrines the freedom to intimidate. It's breathtakingly stupid.

Unfortunately (abortion protesters are among the worst), I see the court's point. Upholding the law gives states and localities license to restrict other protests they don't like. One upside to this is that the previously mentioned "Free Speech Zones" will have more trouble the next time someone sues over them. It seems like it should be hard for future judges to uphold them (in similar circumstances where protesters wish to use public areas) given the precedent.

As with the Westboro nuts, I strongly dislike the speech employed by the abortion protesters but I can't justify limiting it. As has been noted, their actions (and even some specific types of speech) are a different matter and, if they break other laws (which aren't in violation of 1st amendment principles), then issue the citations and make the arrests.

 

[Unabogie]

Unfortunately (abortion protesters are among the worst), I see the court's point. Upholding the law gives states and localities license to restrict other protests they don't like. One upside to this is that the previously mentioned "Free Speech Zones" will have more trouble the next time someone sues over them. It seems like it should be hard for future judges to uphold them (in similar circumstances where protesters wish to use public areas) given the precedent.

As with the Westboro nuts, I strongly dislike the speech employed by the abortion protesters but I can't justify limiting it. As has been noted, their actions (and even some specific types of speech) are a different matter and, if they break other laws (which aren't in violation of 1st amendment principles), then issue the citations and make the arrests.

What happens when this sort of "speech" -- moving right into people's faces and screaming at them -- collides with "open carry" and "stand your ground"? Are we setting up a situation in which the same people who would celebrate the murder of Dr. Tiller can now show up to abortion clinics armed with AR-15s, walk right up to within inches of young women walking in to get health care, and scream at them and call them murderers?

What could go wrong?

 

[Kestrel]

Unfortunately (abortion protesters are among the worst), I see the court's point. Upholding the law gives states and localities license to restrict other protests they don't like. One upside to this is that the previously mentioned "Free Speech Zones" will have more trouble the next time someone sues over them. It seems like it should be hard for future judges to uphold them (in similar circumstances where protesters wish to use public areas) given the precedent.

As with the Westboro nuts, I strongly dislike the speech employed by the abortion protesters but I can't justify limiting it. As has been noted, their actions (and even some specific types of speech) are a different matter and, if they break other laws (which aren't in violation of 1st amendment principles), then issue the citations and make the arrests.

The free speech zones employed at RNC conventions were designed to remove the protesters from where they could be seen and heard. The court didn't bother hearing any of the numerous cases resulting from that abuse. But they did crack down on a 35 foot buffer area imposed after a long history of death threats and violent action from anti abortion groups. In the ruling, the justices made a point that police officers were always present at these protest sites, but they seem never to have asked why the police were always present.

If the protesters resume the violent protests at clinic entrances, what recourse does the clinic have? Would it be possible to get restraining orders against specific members of the group?

 

[Babbylonian]

What happens when this sort of "speech" -- moving right into people's faces and screaming at them -- collides with "open carry" and "stand your ground"? Are we setting up a situation in which the same people who would celebrate the murder of Dr. Tiller can now show up to abortion clinics armed with AR-15s, walk right up to within inches of young women walking in to get health care, and scream at them and call them murderers?

What could go wrong?

I know...one of many reasons I despise the 2nd amendment and civilian gun ownership.

For better or worse, I just think there's a limit to how far we can compromise freedom of speech on the basis of risk management.

 

[Babbylonian]

If the protesters resume the violent protests at clinic entrances, what recourse does the clinic have? Would it be possible to get restraining orders against specific members of the group?

That is indeed an option, and one that apparently is utilized at least around here and I'm sure elsewhere.

 

[Kestrel]

That is indeed an option, and one that apparently is utilized at least around here and I'm sure elsewhere.

I like this comment on one of the linked articles:

"Not so on public streets and sidewalks. There, a listener often encounters speech he might otherwise tune out. In light of the First Amendment's purpose 'to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail,' this aspect of traditional public fora is a virtue, not a vice."

This is when I realize how desperately I need sidewalk counseling. I thought women seeking an abortion were wading into a private and often traumatic medical procedure, not the "uninhibited marketplace of ideas."

http://www.oregonlive.com/news/oreg...thou_shalt_not_suff.html#incart_most-comments

Patients and clinic employees do have some protection under 18 U.S. Code § 248 - Freedom of access to clinic entrances. But enforcement of that could be tricky depending on the tactics used by the protesters. Simply having a few dozen protesters milling about in the former buffer zone could make it difficult for a patient to enter a clinic, and also difficult to prove that any individual was preventing access.

 

[thaiboxerken]

What happens when this sort of "speech" -- moving right into people's faces and screaming at them -- collides with "open carry" and "stand your ground"? Are we setting up a situation in which the same people who would celebrate the murder of Dr. Tiller can now show up to abortion clinics armed with AR-15s, walk right up to within inches of young women walking in to get health care, and scream at them and call them murderers?

What could go wrong?

As long as its liberals doing the dying, who cares?

 

[ponderingturtle]

Yes.

A jurisdiction can't lease exclusive use to a public right-of-way like that in the first place and certainly can't do it for content-specific enforcement. The court covered that in sub (a) of the syllabus:



"Very limited" doesn't prevent the jurisdiction from restrictions subject to strict scrutiny, but leasing a sidewalk would be (at least) functionally identical to what the Commonwealth attempted in McCullen.

Kind of the subtle irony here is the fierce opposition to this decision in particular and the emotional response to the subject in general by people seemingly unrelated to this particular Boston clinic evidences the public interest in the debate and places more weight on the side of the scale of the petitioners in this case. That is, the issue has became one of general, legitimate public debate.

That's kind of opposed to, say, if my neighbor had a dispute over the condition of a lawnmower I sold to him which might have some public speech contingent but would probably be afforded less weight by virtue of its private nature. The test is a balance -- the government has (supposedly) a public interest weighed against the prohibition against using that power to infringe on individual rights.

What if the government arrested you for speaking to people on a public right-of-way about the labor practices at Walmart? What about a law criminalizing discussing tolerance based on sexual orientation in public spaces?

A least they are arresting people for protesting outside of free speech cages at political conventions because there are clear limits to this kind of thing.

 

[This is The End]

Abortion clinics are permitted to restrict speech on their own grounds as well, and can even deny access to anyone they choose on those grounds. Your complaint really boils down to the Supreme Court owning a large plaza that abortion clinics do not typically have.

So all the hospital has to do is build inside of a plaza, and then have the parking lot also be inside the plaza??

That would pretty much nullify the chances of the protesters being able to get into the immediate proximity of the incoming patients?