The Supreme Court faced the challenging task of weighing one person’s right to free speech against another’s right to be protected from harassment when it reviewed a Massachusetts law requiring 35-foot buffer zones around abortion clinics. Unfortunately, the court got the balance wrong when it voted Thursday to strike down the law.
As important as the First Amendment is, courts have long recognized that it may be restricted, within limits. Americans may protest, plead, hector and even offend, but they have no inalienable right to falsely shout “fire” in a crowded theater, play obscene movies on Main Street or intimidate or bully others going about their lawful business.
The Massachusetts buffer zones were established by the state legislature after years of violence and intimidation by abortion opponents outside clinics. The fatal shooting of two clinic workers in Brookline, Mass., in 1994 by an abortion opponent spurred the original 2000 buffer zone law, which was eventually found by Massachusetts officials to be inadequate to the task of stopping opponents from intimidating clinic visitors — which is why they put a stricter law in place in 2007.
The new law established 35-foot buffer zones around reproductive health clinics that can be entered only by people who are on their way in or out of the facilities or simply passing by. Among those who may not enter are protesters who want to wave signs or shout slogans or engage with those visiting the clinics.
There’s no question that this law restricted 1st Amendment rights by curtailing the movement of abortion opponents on public streets and sidewalks. In our view, that was justified by the need to protect women exercising their constitutionally guaranteed right to an abortion. The court, however, concluded that the buffer zones “burden substantially more speech than necessary” to achieve their goal and that the state failed to try “less intrusive” means to achieve its ends.
The court went out of its way to observe that the plaintiffs were not really protesters, describing them rather as “calm” and “non-confrontational.” As a result of the law, the court said, the plaintiffs were unable to conduct “personal, caring, consensual” conversations about alternatives to abortion with women entering the clinics.
Well, sure, there may be plenty of calm, soft-spoken opponents of abortion. But there are also violent and confrontational ones. The 1994 shootings may have been the impetus for Massachusetts to write its first law on the subject, but the Guttmacher Institute, a research organization that supports the right to abortion, notes that clinics across the country continue to report bombings, vandalism, blockades, arson and violent protests. Just because some opponents of abortion are peaceful doesn’t mean women don’t need protection from others.
You’ll hear no argument from us about how vital the right to free speech is. But that does not mean that all other rights must yield to it at all times.