Freedom of speech has long been important to progressive movements in this country, protecting their right to political voice. I believe a robust freedom of speech plays a key role in our society. But speech also comes up against other rights. In particular, what happens when speech becomes harassment, intimidation, or a threat? How we conceptualize the underlying values behind freedom of speech plays a key role in how we think about this balance. I address this as it comes up in the current case of McCullen v. Coakley and then consider how this matters to LGBT rights.
On January 15, 2014, the Supreme Court heard oral arguments in McCullen v. Coakley. While it is always difficult to predict outcomes based on oral arguments, it seems likely that they will narrow or overturn the Massachusetts law requiring a 35 foot buffer zone around abortion clinics.
The case was brought by Eleanor McCullen, a 77 year old women who spends a substantial amount of her own money traveling to counsel women who seek then decide not to get abortions. McCullen explains that she wants to approach women who are entering Planned Parenthood clinics to provide them with literature and speak with them about abortion. She describes this as engaging with the women directly and compassionately, rather than protesting. McCullen argues that the Massachusetts law inhibits her ability to speak calmly with women entering the abortion clinics. She could only be heard from 35 feet away if she yelled and held signs. According to McCullen, the Massachusetts law thus violates her freedom of speech because it prevents her from speaking with these women in the way that she wants.
Massachusetts passed the law after reviewing extensive evidence of violence and intimidation aimed at women seeking to enter abortion clinics. Massachusetts originally passed a law creating a smaller buffer zone, but amended the law to its current form after complaints from in-state abortion providers that the smaller buffer zone did not provide adequate protection. In particular, providers complained that women seeking clinic access still faced excessive crowds and traffic that blocked clinic entrances. The amended Massachusetts law prevents anyone from remaining within 35 feet of a driveway or entrance to an abortion clinic with exceptions for clinic staff, patients, and anyone using the public sidewalk who just passes through the 35 foot zone. Massachusetts argues that this law protects anti-abortion protesters’ right to protest while also ensuring patient safety.
In oral arguments, lawyers for Massachusetts faced several skeptical questions from the Justices. Justice Scalia’s comments were particularly revealing. Scalia described McCullen’s actions as “counseling” not “protest.” According to Scalia, the 35 foot zone might be justified as applied to typical protestors who hold signs and chant. These protestors can still be readily heard and seen from the 35 foot line and the statute, as applied to these typical protestors, acts to ensure access to abortion clinics. But, Scalia was concerned, the 35 foot line prevents someone like McCullen from engaging in the sort of intimate counseling she wants to engage in. It limits here ability to speak to those who enter the clinics.
Anti-abortion speech is at the heart of freedom of speech. Freedom of speech protects speech even, and especially, when it is controversial and others want to shut the speech out. If Massachusetts tried to completely restrict the speech of anti-abortion activists, that would clearly violate the First Amendment. But does restricting the ability of protestors to speak to particular individuals in a particular place also violate the First Amendment?
Answering this requires thinking about what values we seek to protect through freedom of speech. I argue that freedom of speech (1) protects a robust public dialogue, and (2) protects individual autonomy and self-expression against undue government interference. Starting from these values, I believe freedom of speech means being skeptical of government regulation of speech. Any regulations must meet a high bar. However, these values do not mean that freedom of speech is an absolute. Government regulations might be appropriate when they promote these underlying values. This approach means taking a hard look at how speech is embedded in power relations on the ground.
In upholding the Massachusetts law, the First Circuit addressed these values: “First Amendment rights do not guarantee to the plaintiffs (or anyone else, for that matter) an interested, attentive, and receptive audience, available at close-range.” The Massachusetts law does not limit the public dialogue on abortion and does not infringe on McCullen’s, or anyone else’s, ability to express their beliefs. Scalia was concerned that the law might allow McCullen to protest but prevented her ability to “counsel.” To me, it’s not clear that “counseling” falls within these values of the First Amendment the same way that protest does. Confronting individuals seeking an abortion with pamphlets and “counseling” does not contribute to public dialogue the same way as protest and other speech does. Even if it takes place on a public sidewalk, the type of counseling that McCullen wants to engage in is private communication with individuals seeking an abortion.
In general, we should be highly skeptical of any regulations of speech on public sidewalks. The government should not be able to freely limit where protest can take place. The location of protest is often critical to whether that protest can be heard. If the purpose of the First Amendment is protecting public dialogue, than dissenting speech must be allowed where the relevant public will hear it. However, in this case, Massachusetts had clear evidence that protesters in front of abortion clinics were restricting the ability of clients to reach the clinics. Further, the 35 foot buffer zone does not restrict the ability of protestors to reach the public (the ACLU supports the law in general but recommends remanding to the trial court to consider whether there is sufficient space to protest outside specific clinics in Massachusetts). The purpose of the First Amendment is not to protect all forms of private speech. It is to promote robust public dialogue.
How does this apply to LGBT rights? As states increasingly pass laws on bullying of LGBT students in public schools, we see some freedom of speech challenges to these laws. In addition to physical bullying, these laws often also address verbal and other forms of harassment and threats to LGBT students. Challengers to these laws claim that they unduly restrict their ability to share their anti-LGBT beliefs. As with anti-abortion speech, these beliefs are surely at the core of what freedom of speech should protect. But as with anti-abortion speech, this speech can also be targeted at public dialogue or at individual harassment. Prohibiting a narrow range of speech to protect LGBT students is consistent with the broader values of freedom of speech.
Freedom of speech means protecting the value of public dialogue. It does not mean protecting the ability to speak to an individual. When the state has a compelling interest (in protecting the right of women to an abortion or protecting the safety of LGBT students) it should be able to adopt appropriately narrow restrictions on private speech that are consistent with the broader value of robust public dialogue. This compelling interest test is critical. Labor unions raise the concern in McCullen that a ruling in support of the Massachusetts law could also be used to support a law restricting the right of unions to protest in front of businesses and retail stores. But as the ACLU makes clear, Massachusetts had more than enough evidence of the state’s compelling interest in protecting women seeking abortions. Such evidence might also be found in protecting LGBT students but would not be found in restricting the ability of unions to picket. I argue that this sort of inquiry into how speech fits in broader power dynamics on the ground is entirely consistent with the purpose of the First Amendment and is a proper way to balance the needs of robust freedom of speech with protecting individuals against harassment.