Speech Buffers

The Massachusetts legislature recently passed a bill barring anyone from standing within thirty-five feet of any reproductive health center. This bill supersedes a law that created a six foot barrier from protesters around anyone going to or from a "reproductive health care facility," which the law defines as a "a place, other than within a hospital, where abortions are offered or performed." The new law (it was signed Wednesday) has no such "floating buffer." It simply outlaws anyone from being that close to an abortion clinic unless they are either going in or out of it or passing by.

Although it never mentions protest, the new law is clearly designed to limit the actions of anti-abortion protesters. Even so, Kelly O’Bryan, the political director for Naral Pro-Choice Massachusetts claims, "We’re not trying to silence [protesters] at all." Despite her assertion (or perhaps because of her denial) I think it is prudent to test the new Massachusetts law against the First Amendment, since its stated purpose is to stop certain speech (harassment), and its effect is to limit any speech.

The previous law in Massachusetts was protected by the Supreme Court's decision in Hill v. Colorado, which upheld a Colorado law that was almost identical to the old Massachusetts law. Although the new Massachusetts statute goes beyond both its predecessor and the Colorado law, Hill v. Colorado is useful, at least in that it shows the logical struggle the Court went through to find reproductive health center buffer zones constitutional.

The Supreme Court rules in Hill that the Colorado statute is not content regulation even though it is location specific. The majority writes, "A statute prohibiting solicitation in airports that was motivated by the aggressive approaches of Hari-Krishnas does not become content based solely because its application is confined to airports." However, this is a weak analogy. A statute prohibiting solicitation in airports is not content based because it bans thousands of types of content. On the other hand, the Colorado law effectively bans only one type of content - protests against abortion - because that is the vast majority of content distributed to people going in and out of reproductive health centers. The Colorado law and the airport law are similar in theory, but not in effect.

The Court notes that "the statute's restriction seeks to protect those who enter a health care facility from the harassment . . . the dogging, and the implied threat of physical touching that can accompany an unwelcome approach within eight feet of a patient by a person wishing to argue vociferously face-to-face and perhaps thrust an undesired handbill upon her." I question, then, why the statute does not make "harassment, the nuisance, the persistent importuning, the following, the dogging, and the implied threat of physical touching" the object of its ban. As it is written, the law covers these things as well as many that are not harmful to anyone. "The fact that the coverage of a statute is broader than the specific concern that led to its enactment is of no constitutional significance," writes the Supreme Court in Hill. On the contrary, when the supreme law of the land says that "Congress shall make no law . . . abridging the freedom of speech," legislatures are compelled be specific when they decide to deviate. It becomes obvious that the law is not narrowly tailored when the court admits, "special problems that may arise where clinics have particularly wide entrances or are situated within multipurpose office buildings may be worked out as the statute is applied." Narrow tailoring certainly implies that authorities will know how to apply the laws.

The court found the Colorado law to be constitutional. However, as demonstrated above, the opinion has more than one weakness. The Supreme Court's findings in the Hill case do not give the new Massachusetts law a constitutional free pass. The "floating buffer" types of legislation are constitutional, according to the Court, because, "no speaker is silenced. And no message is prohibited," since physical approach was the object of the Colorado law. The Colorado buffer zones were upheld because protesters and pamphleteers could still "communicate at a 'normal conversational distance.'" In other works, the the Court upheld the Colorado law because speech was not effected. The Massachusetts law departs from this and silences everyone within a boundary. So doing, it takes itself further from being a protection against harassment and becomes an actual limitation on speech. It stops protest, whether it is a nuisance or not.

It is important to remember that protecting people emotionally is not a constitutionally valid reason for a limitation of speech. As the court found in R.A.V. v. City of St. Paul. "The mere fact that expressive activity causes hurt feelings, offense, or resentment does not render the expression unprotected." Thus, legislatures need to be careful to make laws that only stop obstruction and physical intimidation. Anything else is beyond the powers the Constitution gives to lawmakers.

The First Amendment protects the right to speak and to publish. What better place to do these things than a public sidewalk? As the Supreme Court notes in Hill v. Colorado, "public sidewalks, streets, and ways . . . are 'quintessential' public forums for free speech." It is clear that the new Massachusetts law breaks from the court-protected pattern of "floating buffer" zone laws and is unconstitutional because of its over-broad, though well intentioned, ban on all speech.


Interesting:

An article about American justices citing other nations courts.