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First Amendment scholars are coming down on both sides of the controversial question of whether abortion clinic buffer zones are constitutional.
The U.S. Supreme Court will hear arguments Wednesday in a case that challenges the 35-foot buffer zone around the entrances and driveways of abortion clinics in Massachusetts. The law — which prohibits anyone from entering those zones except clinic employees, patients using the facility or people just passing through — is meant to protect clinic patients from being blocked or intimidated by anti-abortion protesters.
But the seven protesters who've petitioned the high court say the buffer zones violate their right to free speech.
"I'm curtailed," said the lead petitioner, Eleanor McCullen, 77, of Newton. "I'm limited as far as my message of caring can go. And it is America, and as long as I'm gentle and caring, I should be able to walk with them a little bit further, 35 more feet, to where they're going in."
WBUR's All Things Considered host Sacha Pfeiffer spoke with one constitutional law professor who opposes the law, Professor Eugene Volokh of UCLA, and another who supports it, Renee Landers of Suffolk University, and asked them to make their cases. First, Volokh:
Sacha Pfeiffer: First, we should point out that you and the other professors who filed this brief have differing views on abortion rights, but you all agree on what you say are the First Amendment principles at stake. Would you summarize why you believe the buffer zones are a violation of free speech?
Eugene Volokh: Imagine that there's a law that says union protesters can't go within 35 feet of the entrance to a building. Or let's say somebody wants to protest outside a gun store [and] you can't go within 35 feet of the entrance. Or imagine someone wants to protect outside a place that they think is holding, say, a racist rally or something like that [and] you can't go within 35 feet of an entrance. I think that would be pretty broadly recognized as a very substantial speech restriction.
But there are buffer zones around polling places that prevent people from handing out political literature, so how are abortion clinic buffer zones different than that?
Eugene Volokh: So the Supreme Court, in the polling place case, recognized that those kinds of restrictions are subject to very serious constitutional scrutiny. They're presumptively unconstitutional. But it said that, as to those particular kinds of restrictions, both the breadth of them around the country — that is to say, virtually all states have them — and the long-, long-standing history behind these restrictions — basically 100 years or more — is enough to justify a limited exception to the general rule, which is that people can be within 100 feet of a factory, 100 feet of a church, 100 feet of a newspaper and the like, in order to protest. The court recognized there was a content-based restriction, unlike the one here where the lower court said, "Oh, no, it's just a content-neutral one."
We should explain when you talk about "content-neutral" the idea is that the law says that no matter what you're saying, you can't say it within 35 feet — so whether you're protesting or supporting abortion rights. But you and other opponents of the law say it's not content-neutral, because you say the law basically says the main speech that's prohibited is speech against abortion.
Eugene Volokh: So, first of all, the law is limited to abortion clinics, but beyond that the law has a specific exception for, basically, employees of the clinics and others working with the clinics. So we're talking here about a law that favors one side of the debate.
And this is the portion of the law that says that abortion clinic employees are able to be in that zone. They can accompany and escort patients into the building, so they're allowed in there.
Eugene Volokh: Exactly.
Now, the speech isn't entirely restricted, as you pointed out; it just has to happen outside the 35-foot buffer zone, and there are actually lines painted on pavement to indicate where the zones are. So protesters can speak. Tell us why you think that's still legally problematic.
Eugene Volokh: The protesters here — I mean, depends on the protester — but many of the protesters don't want to be out at a distance as part of some mob across the street. They want to be there, standing there, saying, "Look, you're about to make a decision that we think is the wrong decision for you. Do you want to talk to us about it?" And it's that kind of person-to-person conversation that is protected by the First Amendment, and yet that this law prohibits.
In places like Boston, of course, we know what can happen when angry protesting becomes violent — you know, the John Salvi shootings — so how do you balance the free speech rights of protesters against the right of those patients to not be harassed or physically harmed?
Eugene Volokh: The general rule is you can't restrict peaceful speech simply because of the fear that it might turn violent. You certainly can and should station police officers, security guards and others to arrest those who are violent; there's no First Amendment right to be violent or to threaten violence. But the mere fact that some kind of advocacy has at times led to violence, or that some movement has an extreme fringe that is violent, doesn't justify restricting the speech — whether it's anti-abortion speech, whether it is pro-civil rights speech, whether it is pro-labor speech, whether it's anti-civil rights speech or what have you.
And, now, Renee Landers explains her position on the law:
Sacha Pfeiffer: Why do you believe that this buffer zone is constitutional?
Renee Landers: Because I think that there's nothing in the Constitution that's an absolute. There are many provisions of the Constitution that are seemingly written in absolute terms, but the court has never really interpreted them that way. And I think that the buffer zone law strives to strike a balance between two competing constitutional interests: one is this very important interest in free speech and the First Amendment rights to try to persuade people of other views, and the competing right to have access to health care services — reproductive health care services, specifically. And I think the buffer zone law strikes an appropriate balance.
Supporters of the buffer zone, like you, say the restrictions apply to anyone, no matter what they have to say about the issue of abortion. But opponents argue that the zones are clearly targeted at abortion protesters since clinic employees are allowed to approach and escort patients. So they say the law is not neutral. What's your response to that?
Renee Landers: Well, the clinic employees are just doing their jobs. Part of their job is to help people find the clinic. But the clinics have very clear rules that the employees are not to engage in any kind of persuasive or counseling activity; they are merely escorts.
The lead petitioner in the case, Eleanor McCullen, is an elderly abortion protester from Newton, and she says that she and the people who she protests with have never crossed the line into intimidation or violence. Here's how she explained her actions to us:
I say, "Could I just talk to you for a couple of minutes?" I try to offer hope and help and love. And I tell her, I say, "If you don't like the help we can give, certainly come back this afternoon." And where the buffer zone comes in is I'm 35 feet back, and it's very difficult.
So, Renee, what about that argument that some protesters just want to have a quiet, civilized, heartfelt conversation to try to change the mind of patients who might be considering an abortion?
Renee Landers: There's nothing in the buffer zone law that prohibits that, because the people have to walk through the protest zones to get into the buffer zone to get into the clinic entrance.
But protesters do say once patients get in the buffer zone they basically have to yell at them to be heard, and then they look sort of extreme, and they can't make their case as reasonably.
Renee Landers: Right. But there's also a long history here. This law is not the first attempt by Massachusetts to regulate in this area. There were more modest approaches with smaller buffer zones, a floating zone, and those were not manageable because it may be that this particular plaintiff has not engaged in any kind of intimidating or harassive behavior that tried to prevent people from actually getting to the entrance, but other people were not so well-behaved.
And, therefore, after having tried those less intrusive approaches, this was the law that seems to have worked.
Would you, as a constitutional law expert, be supportive of a law that eliminated the buffer zone but allowed protesters in as long as they were stationary or didn't accost anyone and were very quiet and moderate in their conversations?
Renee Landers: That was what the prior law required, and the law also had an exception for people who invited the conversation with the protester.
The patients were willing to have that conversation?
Renee Landers: [Yes,] were willing to have that conversation. And that's fine. Those people can still step outside the buffer zone and have that conversation with the protesters. And the problem was that it became impossible for the police or anyone else trying to enforce the statute to determine whether someone had invited the protester in. That was a very hard line to manage. We actually don't have the right to screen out all the speech that we don't want to hear or that we find offensive or inappropriate. But we also have a right not to have people screaming in our faces and pushing us and touching our bodies, trying to get us to listen to their message.
This segment aired on January 14, 2014.