SCOTUS Justice Roberts Warps Facts to Prevail in Abortion Free Speech Decision

The Supreme Court’s Chief Justice, John Roberts, raised my hackles by quoting several decisions that harken back to ancient Greece to glorify the value of free speech on streets and sidewalks. He brought in these precedents to justify the outcome in McCullen v. Coakley, what’s called the abortion buffer case.

He wrote the decision for a unanimous Supreme Court striking down the 35-foot-diameter zone that banned protestors around Planned Parenthood clinic entrances. The State of Massachusetts enacted the buffer zone to protect women from harassment while they entered, presumably to obtain abortions.

In the decision, and in oral arguments, you would think debate undertaken in public places to be rich and robust, and therefore that every square inch of public space must be deemed sacred for this purpose. Mark L. Rienzi, the lawyer for McCullen, characterized the few hundred square feet at issue to be “a dramatic restriction of First Amendment rights.” In reality — evident in the arguments and decisions, but never admitted — America’s public, streets, sidewalks, plazas and parks offer only the most impoverished venues for public debate.

Though the case was deemed important going in (I raised some concerns in NextCity ), attention quickly dissipated after the decision was delivered June 26. Though the law was passed to prevent unrelenting physical and verbal harassment of women entering clinics as well as invasions that have produced two deaths in Massachusetts alone, the decision struck down the law on the nitpicking criterion that it was not “narrowly tailored” enough. For the convenience of policing, it said, the law burdened “substantially more speech than is necessary to further the government’s legitimate interests.”

The Massachusetts law intends to protect clinic clients while assuring the rights of protesters to engage them. The harmless-looking, elderly lead plaintiff, Eleanor McCullen, claimed that the buffer kept her from engaging in what she deemed “friendly conversation” with women entering the clinic.

Protecting Genteel Speech

Justice Roberts accepted this distinction between noisy, sign-waving protesters, whose behavior can be policed, and “counselors,” who deem their unconfrontational, conversational approach to be successful in dissuading women from seeking abortions.

And yet such micromanaging of the rights applying to different kinds of speakers is novel, and certainly not in evidence in the court’s game-changing Citizens United decision, which deferred to the speech interests of corporate entities, deeming their speech rights equal to those applying to individuals, even as it has become predictably and abundantly evident that large, wealthy corporate interests are capable of smothering speech by opponents through the sheer application of money.

Public space would seem to be the venue where those who cannot afford to fill the airways with point-of-view advertising and anonymous lies should be able to even the playing field.

How willfully ignorant. The suburbanization and privatization of American space has just about obliterated any significant opportunity to change peoples’ minds on sidewalks and squares. Though older cities often contain places of free public assembly — like Times Square, or the Washington Mall — people wanting to press their view person-to-person can’t find a useful venue in our suburbanized urbanism when the streets don’t have sidewalks and speech in malls — the places people gather most frequently — can be rigidly controlled because they are privately owned spaces.

To make your point you must wave signs from highway overpasses and the leftover space at busy intersections. In the seconds between traffic-signal changes you may try to engage a passenger or hand her a brochure, but you will find most drivers resolutely keep their windows closed.

Resorting to Distortion

Roberts had to resort to distortion and misstatement to make the case that the buffer zone substantially impeded “conversational” speech. He claimed that anti-abortion activists were “effectively prohibited from a 56-foot-wide expanse of the public sidewalk” in front of the Boston clinic, when no one would slither along the building wall, where that distance exists.

People entering the clinic would instead cross a mere 23 feet (a smaller zone than the law allows). A person speaking in a conversational tone could reach someone within most of the zone.

Counselors, of course, could engage women approaching the clinic along the sidewalk outside the zone, but Roberts wrote that they had no way of knowing which pedestrians intended to enter the clinic. That contradicts unrefuted testimony offered in the case. And the record established that abortion protests peak on saturdays precisely because it is known to be the busiest day for abortion seekers.

Roberts decried the size of the buffer zone in Worcester, where the building is set back from a narrow sidewalk. Striking down the buffer will little improve the “counselors’ ” success rate in such a location, though, because their opportunity for a conversational encounter is at best the one to two seconds during which a vehicle turns into the driveway. It is not the buffer that substantially limits free speech, it is the privatized landscape of suburbia.

No Unscripted Speech Allowed

Suburban development patterns are explicitly designed to allow people to shield themselves from unscripted encounters with their fellow humans. Suburbs were conceived as refuges from the polluted, messy, diverse, and contentious city, and that includes minimizing the public space where one might encounter unsanctioned activity, whether that is an unwanted come-on, begging, busking, or political speech.

(“Open to the Public: Civic Space Now,” at New York’s Center for Architecture is a timely look at diverse urban public spaces. If you can’t make it, Anthony Flint offers a nice  précis in CityLab.)

Roberts accepted a distinction Justice Samuel Alito offered in oral arguments that distinguished “conversation” from “protest,” even though Jennifer Grace Miller, defending the Massachusetts law, reminded the court that the Constitution guarantees no one “any specific form of communication.”

Roberts goes further, seeming to privilege speech likely to be successful, making note of the “counselors’ ” unsupported contention that their success at changing womens’ minds declined dramatically after the buffer law was passed. Later he writes, “some forms — such as normal conversation and leafletting on a public sidewalk — have historically been more closely associated with the transmission of ideas than others.” Since when do free-speech rights depend on the persuasiveness of the speaker?

It that’s the litmus test for freedom, the Supreme Court could conceivably require the construction of cities and towns to include a modicum of public space where robust debate could flourish. I’m not saying they should; I’m saying that  it is the logical extension of his reasoning.

Polite Neo Nazis

The idea that speakers get to choose how to engage their audience is actually novel, and could lead to far uglier confrontations in public spaces. How intimately may ostensibly polite neo-Nazi Holocaust deniers engage with worshippers approaching a Jewish temple? Can Occupy Wall Street protesters be kept from politely conversing with executives in public limo lanes that front the Goldman Sachs headquarters? Can the Supreme Court itself continue to place its classical temple’s grand stair and expansive plaza off-limits to well-behaved citizen advocates?

McCullen v. Coakley could be a victory for free speech if advocates of all kinds of points of view gain more power to reach their intended targets. “If I can’t be in your face then a lot of the power of free speech is eroded,” Jerold Kayden, a Harvard urban planner and lawyer, told me. The decision didn’t define the difference between conversational persuasion and the kind of aggressive speech that can be more forcefully regulated, so further court entanglements of free speech in public places await.

Women who must now run a more aggressive protester gauntlet because they seek (or are perceived to seek) abortions will find their freedom to obtain legal medical services yet more difficult.