The Supreme Court recently ruled that a Massachusetts law providing a 30-foot buffer zone around family planning clinics is unconstitutional. Chief Justice Roberts' majority opinion waxed poetic about free speech but it may have simultaneously laid the groundwork for a return to freer political speech which has been increasingly under assault by his court as well as law enforcement and the executive branch. Here is Roberts on public ways and sidewalks:
By its very terms, the Massachusetts Act regulates access to "public way(s)" and "sidewalk(s)." Such areas occupy a "special position in terms of First Amendment protection" because of their historic role as sites for discussion and debate. These places -- which we have labeled "traditional public fora" -- "'have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. It is no accident that public streets and sidewalks have developed as venues for the exchange of ideas.
"Even today, they remain one of the few places where a speaker can be confident that he is not simply preaching to the choir. With respect to other means of communication, an individual confronted with an uncomfortable message can always turn the page, change the channel, or leave the website. Not so on public streets and sidewalks. There, a listener often encounters speech he might otherwise tune out."
This is admirable but odd, as the Supreme Court upheld the use of "free-speech" pens during the Democratic National Convention in Boston in 2004. In that case, protesters were forced into wire and concrete enclosures that could not accommodate their numbers (not even enough room for the choir) and which removed them from the site of the convention by a half mile. There was no access to the sidewalks or public ways in that case, but the Court found no restriction on the free speech rights of the demonstrators. The Court also found in favor of the Secret Service when they moved anti-Bush demonstrators out of sight from the presidential motorcade, while allowing pro-Bush demonstrators to remain in full view of the president. The Supreme Court even upholds a buffer zone around its own exalted temple of justice, to keep the hoi polloi at bay. The court deserves free and encumbered access to its doors, but women seeking family planning services just don't merit the same rights.
What might the difference be? Again, from Roberts' opinion:
"Some of the individuals who stand outside Massachusetts abortion clinics are fairly described as protesters, who express their moral or religious opposition to abortion through signs and chants or, in some cases, more aggressive methods such as face-to-face confrontation. Petitioners take a different tack. They attempt to engage women approaching the clinics in what they call 'sidewalk counseling,' which involves offering information about alternatives to abortion and help pursuing those options."
Apparently, it is the kinder and gentler demonstrator that can win the affection and trust of this right-wing majority court, although the court's new protections are not just limited to those gentle petitioners in search of an friendly heart to heart, but also extend to those "fairly described as protesters." The fact that the petitioners also were exercising religious freedom while espousing their beliefs made them all the more acceptable to the court.
Maybe anti-government demonstrators have been taking the wrong tack. Raging Grannies and brave Code Pink actions are just too scary for the justices to countenance up close and personal. What would the Court do if, within the forbidden buffer zone around its building, a group of elderly folks engaged them in conversations, explaining how as Christians who believe that only God can create a person, they beg to differ with the Supremes pronouncement of corporate personhood? If the tone, methodology and moral grounding for the petitioners match the anti-abortion petitioners, how could the Court not accept their First Amendment rights to be as valid as those of the antiabortionists?
What if, at the upcoming national Democratic and Republican conventions, "petitioners" peacefully break out of the "free-speech" pens in order to find a conventioneer with whom to have a heartfelt conversation about how presidential murder by drones runs counter to our religious and moral beliefs? Using the court's own language about the sidewalks being the public flora and the sanctity of free (conversant) speech rights we could construct circumstances by which the court would be constrained by its own new precedents and would have to side against the "free"speech pens.
The sad truth is that the Supreme Court is not as neutral and opinion-free as the strict constitutionalists would have us believe. These judges are affected by biases, class distinctions and by their marbled tower insulation from the realities of everyday American life. But they have given us a sketchy roadmap to use to find a way for anti-government political speech to emerge from the shadows where police and presidents would like to keep it.
Dan DeWalt writes from Newfane.