Open Buffer Zone “Free Speech” SCOTUS Decision Thread

The case was brought by seven Massachusetts petitioners, including Eleanor McCullen, 77, who have demonstrated for years outside the state’s three abortion facilities in Boston, Springfield and Worcester.

They argued they are not anti-abortion protesters but peaceful “sidewalk counsellors” who want the freedom to talk to women entering the clinic. The buffer zone violates their right to free speech, they said, and the supreme court agreed.
Source: Abortion clinic ‘buffer zones’ violate first amendment – supreme court | The Guardian

They want to counsel women who are entering Planned Parenthood clinics for Pap smears and pregnancy wellness checks against abortions they’re not planning to have, too.


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tigtog blogs a lot elsewhere, but here on Feministe she mostly does the tech support and feeds the giraffe. tigtog tweets in irregular flurries @vivsmythe.
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21 Responses to Open Buffer Zone “Free Speech” SCOTUS Decision Thread

  1. Drahill says:

    I will admit, I was surprised that this decision was so unanimous. I was also slightly surprised that none of the 4 liberal justices did not file a concurrence that pushed back some against Roberts’ rationale of “gentle counseling.”

    I could understand the huge amount of anger that happened when the decision first came down. However, coming at it from a legal perspective, I have sort of struggled to think of how this case could have resolved in some other way. And I’m not sure if it could. I believe that the liberal justices were probably not thrilled to have to vote this way and probably did try to conceive of alternative arguments. But no dice. I’m still trying to figure out in my head how an alternative resolution really could have been achieved, but so far, I’m really not coming up with one. And that’s a really nasty feeling to have.

    • tigtog says:

      I’m still trying to figure out in my head how an alternative resolution really could have been achieved, but so far, I’m really not coming up with one. And that’s a really nasty feeling to have.

      It’s a particular nasty feeling when one suspects that this interpretation of the law would not be equally applied were atheist activists to engage in sidewalk counselling against Christian worship outside Eleanor McCullen’s church.

      • lisaw says:

        I’d take that bet, TigTog, given that Westboro Baptist Church routinely does just that and won Snyder v. Phelps. I realize it might be more satisfying to treat this ruling (or any ruling one dislikes) as being all about anti-choice and misogyny and bias, but that’s not really what’s going on (as seen by the fact that four extremely pro-choice individuals affirmed the ruling).

        The reality is that under American law, it’s nearly impossible for the government to prevent people from speaking their beliefs where and when they want. And that’s generally as it should be. A different ruling here would also have allowed a city to prevent any political group from protesting something they wanted to protect.

        This ruling sucks from the perspective of women going to get an abortion (of which I’ve been one, for what it’s worth) but it’s almost certainly the only ruling that could have been made without opening the door to widespread, viewpoint-based political censorship.

      • tigtog says:

        lisaw, I don’t think Snyder vs Phelps really applies, because that was whether the exercise of free speech could be held liable for a tort of inflicting emotional distress, and laws to keep the WBC protests at a certain distance from funerals have been upheld on grounds of public safety. The argument in this case was that those laws could not apply to a person who was not protesting, which is what these “counsellors” claim they are not doing.

        ETA: I’m just wondering whether SCOTUS would be so willing to accept that atheists “counselling” believers were not engaging in a form of protest and thus subject to laws about distance.

      • Drahill says:

        lisaw, I don’t think Snyder vs Phelps really applies, because that was whether the exercise of free speech could be held liable for a tort of inflicting emotional distress, and laws to keep the WBC protests at a certain distance from funerals have been upheld on grounds of public safety. The argument in this case was that those laws could not apply to a person who was not protesting, which is what these “counsellors” claim they are not doing.

        I’m not sure. If you read the transcripts of the McCullen arguments, the justices actually routinely kept going back to the Phelps decision. That’s because one of Massachusetts’ major arguments was that the buffer was needed because abortion clinic protesting is generally “highly charged” and would create “a great potential for disruption.” Much like the Phelps situation – an emotionally charged funeral would be similar. Alito also likened it to union labor protests at work sites when scabs are working or commuting. Both of which I thought were valid points. If the other situations cannot form the basis of speech restrictions, how could this logically be an exception? While you are correct that the Phelps holding was different, they didn’t rely on it for that, they relied upon its factual similarities.

      • lisaw says:

        Everything Drahill said. As they said, viewpoint-neutrality is a pretty critical feature in the law and I don’t see how you could uphold the Mass. law and not empower local governments to prohibit protesting churches, construction sites, Chick-Filets, or whatever else comes to mind (Drahill- do you have a preferred pronoun? Sorry if I missed it).

        And I think people who expect the government to use new powers to limit speech, to only limit speech that progressives dislike, are remarkably naive about the history and nature of government (this isn’t aimed at you, TigTog, or anyone else here- just a general statement).

      • EG says:

        I think it’s incredibly naive about history to think that government and corporations won’t limit progressive/left speech and protests regardless of this ruling.

      • lisaw says:

        I think it’s incredibly naive about history to think that government and corporations won’t limit progressive/left speech and protests regardless of this ruling.

        What’s your argument, sometimes the government attempts to censor progressives, therefore we might as well enshrine that censorship into law? You really don’t understand what the point is of prohibiting the government from doing something even if sometimes that prohibition is violated (and then the violation is the subject of a lawsuit which leads to the protesters being frequently vindicated)? I suppose you also agree with the NRA that gun control is pointless, since criminals will buy guns one way or another…

        I’m not sure what you’re talking about re: corporations, which are not empowered to censor people and aren’t the subject of the 1st Amendment.

      • lisaw says:

        I think it takes a remarkably limited knowledge of modern American jurisprudence to think that laws aren’t routinely overturned due to infringing on both left- and right- wing political expression.

        I can list a couple dozen examples off the top of my head of progressive speech being protected by the same rules that protect the forced-birthers. I can’t think of any examples of a court upholding viewpoint-based censorship of left-wing political speech in the last sixty years or so; can you provide one?

      • EG says:

        My argument is that when the government–or corporate interests–want to clamp down on leftist speech, they do so, and find a legal rationale afterwards.

        As for an example, I’d say the “free speech zones” at the RNC in Phillie some years back would fit the bill.

        Whether or not those are explicitly viewpoint-based doesn’t matter. In reality, that’s how they function.

      • lisaw says:

        That’s actually a really good example; free speech zones are definitely constitutionally questionable (though I’ll note they’ve been used against right-leaning speech as often as left; the DNC has its own zones). Unfortunately a big part of the problem is that there haven’t been many lawsuits by people with standing to sue; ACLU v. Secret Service was a pretty discouraging precedent re: the preservation of qualified immunity. T/P/M rules are one of the big unresolved areas of 1st Amendment jurisprudence, but I’d bet- especially given this ruling- the next lawsuit brought on the subject gets a pretty favorable response.

        I guess I still don’t get the argument, though, that we shouldn’t fight for freedoms if those freedoms are ever infringed upon. Sure, the government oversteps all the time (see: NSA). That doesn’t mean the right reaction is to stop pushing; at least, that’s not what progressivism means to me.

        Legitimately not snarking, by the way (I re-read our conversation above and noted my comment came off as very disagreeable, apologies).

    • RillyKewl says:

      Here’s a few alternative arguments.

      Forget about me arguing in my own words, I’ve got Cenk from TYT here, whose already done way better than I ever could’ve. He’s a lawyer, and knows his shlt.

      • RillyKewl says:

        It looks like my link didn’t make the cut.
        Please go here:
        youtube. com/watch?v=K0FuMri8dvU&feature=share&list=PLTpcK80irdQgmm5-xCQjBYqyhpzixki_X

  2. Ruby Jiselle says:

    I don’t understand what makes these people think they have a “right” to “talk to*” patients as they enter the clinic. We’re not talking about some preacher dude standing on a corner yelling at passersby as they walk to work or the store. We’re talking about people who actively want to interfere with medical care. How is that a right?

    *Talk to my ass. Standing around holding signs, praying, yelling insults at the top of your lungs and attempting to force people to pay attention to is you is not “talking to” someone. (Sorry, I had to deal with these types when I had my abortion. It ended with me in tears and my flatmate wanting to hit one of them. I may be a bit biased.)

    • lisaw says:

      I don’t understand what makes these people think they have a “right” to “talk to*” patients as they enter the clinic. We’re not talking about some preacher dude standing on a corner yelling at passersby as they walk to work or the store. We’re talking about people who actively want to interfere with medical care. How is that a right?

      Simply put, the principle that the content of your ideas doesn’t determine whether you have a write to express them is the foundation of the First Amendment. If you’re on public property it doesn’t particularly matter if the words you’re shouting relate to religion, politics, or medical care.

      And you’re right. The forced-birthers have no interest in ‘talking to’ anyone, and they know from experience they don’t persuade many people not to have abortions. It’s just a way of feeling special/self-righteous; “doing God’s work” and protesting and being supported by donations makes them feel important, in a way going to church once a week doesn’t.

  3. Laurie Mann says:

    It’s not “gentle counseling” – it’s harassment pure and simple. Note that the Supreme Court has a huge buffer zone around it. The hypocrisy of SCOTUS on this issue is disgusting.

    • Donna L says:

      I wonder how it would work if I tried to “gently counsel” Justice Scalia on his own decisions, when he’s about to enter the Supreme Court building. I’d end up with my ass in jail, assuming I wasn’t shot first.

    • lisaw says:

      Actually, chances are pretty good that if you sued the Supreme Court over the buffer zone around it, you’d be able to get it overturned. In United States v. Grace the court decided 7-2 that a law prohibited political demonstrations on the sidewalk in front of the Supreme Court building was unconstitutional.

      Just FYI, the nine justices of the Supreme Court don’t set building security policy. But if the buffer zone there is sufficiently upsetting, you could legitimately partner with the ACLU, protest in the zone, get kicked out, and successfully sue. I’m not being facetious.

  4. Anna says:

    Here in Arizona, buffer zones are currently a moot point now that all of our abortion providers are located on private property. I live in Tucson, but I used to hear terrifying stories of the protests and harassment up in Phoenix before Planned Parenthood’s health center was moved to private property. One of our bloggers used to be a clinic escort up there, and has shared her story about the importance of buffer zones.

    I’m wondering if moving clinics to private property will just be another burden that abortion providers are forced to accept — along with the other ridiculous demands made by TRAP laws, regulating the the width of hallways, janitors’ closets, and lawn care. Having to locate your clinic on private property might not be a part of any law, but I suspect it will become more and more of a necessity in order to protect patients’ safety and privacy.

    • lisaw says:

      I’m wondering if moving clinics to private property will just be another burden that abortion providers are forced to accept — along with the other ridiculous demands made by TRAP laws, regulating the the width of hallways, janitors’ closets, and lawn care. Having to locate your clinic on private property might not be a part of any law, but I suspect it will become more and more of a necessity in order to protect patients’ safety and privacy.

      I think that’s probably likely, unfortunately.

      I wish there were people protesting at the homes of the forced-birthers.

  5. trans_commie says:

    Freedom of speech doesn’t entail a right to an audience. Reactionaries tend to ignore that important detail because they aren’t concerned about securing rights – they’re just invested in not losing their ability to silence oppressed people. They’re in a very fortunate situation, though – the world will listen to them no matter what.

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