I’m going to premise this outright, by saying that I’m not a lawyer. I’m someone who is very interested in the law, and thus I try to know a lot about it, but I am by no means an expert, or even close to one. That said, I’m going to shock a few people and say that I am actually only half-convinced that SCOTUS made the wrong decision in McCullen v. Coakley.
If you haven’t been following the news, or otherwise have your head under a rock, McCullen v. Coakley was a decision handed down by the Supreme Court yesterday, which struck down a Massachusetts law creating a 35 foot “buffer zone” around the entrance to abortion clinics. The law stated that unless you were employed by, or otherwise had business inside any healthcare facility (excepting hospitals) that performs abortions, you could not be inside that buffer zone. A group of women, headed by McCullen, sued, claiming that they are not protesters, but rather “sidewalk counselors” who wished to speak with the women going in and out about the alternatives to abortion. They claimed that the inability to enter the buffer zone prevented them from actually speaking quietly to the women and giving them literature. The court agreed with them, and ruled that this is a violation of their First Amendment rights.
In the day since, I have seen a lot of people, mostly pro-choice people, making a lot of claims about this ruling. I have also seen a lot of people suggesting that indecent or abusive speech should not be allowed under the First Amendment. Both of these things raise the hair on my neck, for different reasons.
Let me make this absolutely clear: the Supreme Court did not rule that buffer zones are unconstitutional. Indeed, they’re not likely to do so, since they themselves enjoy a rather large one around their own building (and for obvious reasons). What this decision did was tell the state of Massachusetts, “You were too broad in drawing your restrictions, and you must attempt to draw these restrictions more narrowly.” In no way does this mean that other buffer zones will be immediately illegal as well. One particular discussion of this issue that I participated in on Facebook was grounded in the idea that Westboro Baptist Church may try to use this ruling to challenge other buffer zone laws. They may do so, but the reality is that the court has ruled in favor of laws that enacted buffer zones in the past, if they found the buffer zone not to be too broad of a restriction on free speech rights. Now, this is where I take issue with the Court’s ruling. I think the Court disregarded the clear safety risk that is posed to those entering and exiting the clinic, and the need to have a way to stop protesters from approaching patients and staff. The buffer zone allowed law enforcement to prevent violence, instead of rushing to react once it’s already too late. If a protester enters the buffer zone with the intent of harming someone, under the old law, he/she could be stopped before they were able to do any harm. After this decision, protesters with the intent to do harm will be able to get substantially closer to their targets, and law enforcement may not be able to stop them in time. I also believe that the state of Massachusetts did indeed try other remedies, and found that none of them were effective. In my opinion, the right of people to enter the clinic safely supersedes the right of protesters or sidewalk counselors to speak with them, and if the only way to protect them is to create a buffer zone, then that should be allowed.
What should not be allowed, is an open-ended restriction on where things can be said. As has already happened, the Westboro Baptist Church often gets brought up in discussions about buffer zones. People often point out that buffer zones keep grieving families from having to deal with the screaming WBC protesters. That argument really makes me mad, because frankly, there’s nothing in the Constitution that says you have the right not to be offended at a funeral (or anywhere, for that matter). Yes, there are reasonable restrictions on harassing speech, but the Westboro Baptist Church is subject to those restrictions, and the Supreme Court has said that within those restrictions they are free to say whatever they want. We may find it unsavory, or even downright offensive, but the fact remains that we have freedom to speak in offensive manners in this country. And this is a good thing! We want this right to continue existing, because it gives us the ability to say things that are unpopular, but still need to be said. People frequently argue that abusive speech should be limited, and to an extent it is (if you were to follow someone around threatening to hurt them, for instance, you would have a restraining order placed against you). However the danger in saying that this kind of speech needs to be limited, is that the definition of abusive varies from person to person. Earlier today, when discussing this with a friend, she said that we should restrict speech that is “abusive or not decent.” I immediately balked at that and reminded her that 50 years ago, a black man marrying a white woman was ‘indecent.’ 50 years ago, a man loving another man was ‘indecent.’ The result of restricting indecent speech is that the general public gets to decide what ‘indecent’ means. She turned around and proved my point by telling me that I must have a different understanding of the word ‘indecent.’
Furthermore, we have seen time and time again in this country that the concept of “legal creep” is alive and well. Need a few examples? Look at the Espionage Act of 1917, which was designed during WWI to help prevent state secrets from being sold to enemies. In the last decade, however, the Espionage Act has been used more frequently to go after people who have leaked information to journalists for the purpose of whistleblowing. You could also look at the entire national security apparatus, which was started with the intention of protecting Americans, but now spends more time spying on us. The reality of being governed is that you never really know who will be governing you from day to day. Sure, perhaps you might like this current president, but what happens next election cycle when someone you don’t like gets into power and uses that law you so cheered for against you? What happens when the national defense apparatus you thought was keeping you safe, is actually information sharing with the DEA and then teaching them to hide it from judges? Some may say that this is a slippery slope fallacy, but the reality is that this type of legal creep is already happening, and it is happening specifically with regards to the First Amendment. It would be childish to think that the legal creep would not also occur when it comes to limiting “offensive” opinions.
The ability to say things that are offensive, or even downright disgusting, is a good thing to have, because it keeps the edges from eroding. We may not like the things that are being said, but we should be grateful that people have the ability to say them, because it is a constant reminder that we, in our own space further from the fringes, are also still able to say the things that we want to say. It reassures us that if at any point in time we begin to espouse an uncomfortable truth, we will not find ourselves subject to the whims of ‘decency,’ which is often used as a tool for oppression. In a country where people can stand outside a soldier’s funeral and say terrible things about that soldier, people can also stand up and speak the offensive truth about the war that caused that soldier’s death in the first place. The two go hand in hand, and trying to separate them will not work.
Now, I suppose I should add some personal back story here to connect it back to McCullen v. Coakley. I grew up in a home that was very anti-choice. My mother even allowed me to skip school on occasion to go be a sidewalk counselor. I was in eighth grade at the time, and I didn’t really think about the impact of what I was doing on the women who were trying to have an abortion at the clinic in our town. I do now, though. I think specifically about how I followed two women up a sidewalk to a small area near the side of the clinic where they were smoking. I was just trying to give them some pamphlets, and maybe tell them my story as an adopted child, in hopes they would decide to give their children up for adoption instead. Neither of those things happened. Instead they asked me very angrily to leave them alone. Eighth grade me, who believed I was doing the right thing, used it as confirmation that people who have abortions are mean, uncaring people who won’t listen to reason. Looking back, I realize that these women were making one of the hardest decisions of their lives, and that my presence was so incredibly painful to them. I often wonder if much of my pro-choice activism stems from the belief that I need to make up for what I did to those two women that day.
However, I cannot bring myself to say that I think the justices did entirely the wrong thing in requiring Massachusetts to carve out restrictions on free speech with a scalpel instead of a chainsaw. I believe that, because my upbringing and subsequent exodus from that world have taught me one thing: people are convinced of their own rightness. As a sidewalk counselor, I was convinced that I did the right thing when I followed those women up that sidewalk. Those women were convinced they did the right thing when they angrily told me to go away. Who was actually right? Having the perspective of time, I would say that I was wrong, and they were right. My mother, however, has had the same amount of time to process it, and she would still say that they were the ones who were wrong. Therein lies the issue. We all have different boundaries and lines for what is okay and what isn’t. If we begin insisting that our boundaries become law, we run into a problem where someone else may have an even more restrictive boundary than we have. We may find that in our haste to protect people from offensive speech, we have left certain types of good, necessary speech open to being labeled offensive in an attempt to stop that message from getting out. We may find that what other people think is right, is not what we had in mind. We may come to a point where the people charged with determining what is and isn’t abuse are using that power to cause harm, not to prevent it.
We may also find that once we’ve reached that point, we don’t have the right to talk about going back.