Thursday, January 16, 2014

Why Are Sidewalks A Public Forum For Speech?

By Mike Dorf

Yesterday the Supreme Court heard oral argument in McCullen v. Coakley, which presents the question of whether the Massachusetts law requiring a 35-foot buffer zone around the entrance to reproductive health services providers violates the First Amendment rights of anti-abortion activists who seek to approach women seeking abortions to attempt to dissuade them from carrying out their plans.

As one might expect, the Court is ideologically divided roughly along the lines that divide the Court on abortion.  Justice Kennedy, who is the swing vote on abortion but the closest Justice on this Court to a free speech absolutist, pretty clearly is going to join Justices Scalia and Thomas to strike down the law.  That's hardly news.  All three of them dissented in Hill v. Colorado, which sustained "floating" buffer zones.  And all three (essentially) dissented in Madsen v. Women's Health Center, which sustained a 36-foot buffer zone as part of an injunction.

Meanwhile, Justice Kagan may vote to invalidate this particular law as establishing too large a buffer zone but it's pretty clear that the liberals will by and large vote to sustain at least some buffer zones.  The Justice whose views seem most susceptible to criticism as result-oriented here is Justice Alito--the lone dissenter in Snyder v. Phelps.  There, Justice Alito thought that the interest of funeral-goers in avoiding unwanted speech sufficed to limit speech in a public forum but here, judging by the oral argument, Justice Alito is likely to swing to protect anti-abortion protesters.  Lyle Denniston, writing on SCOTUSblog, thinks that CJ Roberts is the likely swing vote on the sutainability of any buffer zones around abortion providers, but it's hard to know what he thinks, as he didn't ask any questions.  If I were betting, I'd bet that the Court rules against Massachusetts.  As for the broader question, I think buffer zones won't survive for much longer.  That is, even if the Court officially distinguishes Hill rather than overrules it, the writing will be on the . . . sidewalk.

And that brings me to my chosen topic for today.  A crucial element of the challengers' case here is the fact that the Massachusetts law restricts speech on public sidewalks, because public sidewalks are, in the Court's doctrine, a traditional "public forum" for speech, in which the government may only enact narrowly-tailored, content-neutral time, place and manner regulations that leave open ample means of alternative communication.  That all sounds fine, until one thinks about how weakly the competing interests (speech on the one hand; security on the other) are linked to the exact character of the physical space.

To enter Planned Parenthood's Greater Boston Health Center, patients must first walk along the public sidewalk--and that fact appears to be crucial to the plaintiffs' case.  As the lawyer for the government argued, in Worcester and Springfield, where most patients arrive by car, there is a small area of public sidewalk connecting the parking lot to the building, and the buffer zone operates there.  But suppose instead that patrons entered the health center along a privately owned sidewalk that connected to the center's parking lot.  Then, following the holding of United States v. Kokinda, the private sidewalk would not be a public forum, and so the plaintiffs would have a substantially weaker case.  Indeed, in Kokinda, the relevant patch of sidewalk was owned by the government (the Post Office to be precise) but was not deemed a traditional sidewalk, so for that reason it wasn't a public forum. Likewise, the plaintiffs would have a substantially weaker case if the health center were located in a privately owned shopping mall or in a tower office building--for then too the area immediately outside of the health center would not be a public forum.

Clear thinking about a case like McCullen and about public forum doctrine more generally requires that we ask why it is that sidewalks are considered traditional public fora.  The Court's cases do not exactly say, lumping them in with streets and parks, but to my mind, streets and parks are different: Those are public fora because they provide the sort of space needed as a staging ground for large demonstrations and protests.  But the speech interest in sidewalks is different.  You can't really have a parade or a march on a sidewalk.  What you get on a sidewalk--as the Court recognized in Hill--is the right to approach people, including people who presumably disagree with you, in order to try to persuade them to your viewpoint (absent a sufficiently strong state interest in overriding that right).

To what extent should the right to approach people on sidewalks encompass a right to take advantage of where those people happen to be?  A person campaigning for a boycott of products from Norway and Japan on the ground that those countries support whaling will meet with more success if she targets people leaving a showing of the movie Blackfish than if she is relegated to approaching random passersby on a random patch of sidewalk.  So the anti-whaling activist effectively has a First Amendment right to approach a likely sympathetic audience in front of an urban movie theater but not at a suburban multiplex, where the cinema empties into the private mall or the private parking lot.

I want to be clear that I'm not (now) taking a position on which way the tension should be resolved.  Perhaps the protections that people enjoy--including the ability to take advantage of who tends to visit what sort of establishment--ought to be extended to apply to places that are not currently considered public fora.  But to make the right turn on whether the particular space abuts a public sidewalk or a private parking lot does seem quite arbitrary.

Finally, I'll add a small dose of realism. In Doe v. Bolton, the companion case to Roe v. Wade, the Supreme Court invalidated a state law requirement that abortions be performed in hospitals.  The result saved money for abortion providers but it also meant that freestanding abortion clinics became better targets for anti-abortion protesters.  If you're trying to dissuade women from having abortions, you'll reach more women seeking abortions if you stand outside a Planned Parenthood clinic than if you stand outside a hospital (although even in front of the Planned Parenthood clinic you'll reach a lot of women who are going in for non-abortion-related medical services).  Even if Doe was responsible for the initial turn to freestanding abortion clinics, their persistence--and their combination with ideologically sympathetic providers like Planned Parenthood--is now more like a necessity.  You don't see many abortion clinics in shopping malls because the mall owners don't want the headache of dealing with protests.  So it seems a bit like double-counting for the very anti-abortion protesters whose tactics play a role in effectively requiring Planned Parenthood to rent space that simply fronts on a public sidewalk, to then invoke that fact as a basis for a right to protest (or leaflet or engage in "sidewalk counseling") right in front of that space.

10 comments:

Joe said...

I live in a large urban city and don't recall there ever was an abortion protest here. At least, none that received much notice. As Blackmun once noted, there is another world out there many don't see.

Doe v. Bolton is a forgotten ruling. The oral argument (both advocates were women) was interesting. It's at Oyez.com for those interested.

Anyway, one of Justice Kagan's few papers that was pored over during her confirmation was her thoughts as to proper regulation of hate speech ("Regulation of Hate Speech and Pornography After R.A.V."). So here thoughts on this issue is interesting.

Paul Scott said...

The completely pro-choice, I have always had a problem with the buffer zone cases. My first problem is that they all pretend that it is not content regulation and thus avoid strict scrutiny. This is absurd to me on its face, since what other sort of speech are you expecting outside an abortion clinic? Maybe if the laws were drafted with complete neutrality - no protests within X feet of the entrance to any building... But they aren't. They always are abortion clinic specific or health facility specific.

It also bothers me that no attempt to distinguish the manner of the speech is considered. It is one thing to prohibit a sort of mass protest, where access to a clinic would actually be restricted by the presence of the mob, or even if access was available without a physical altercation, where there was a mob-protest that could make visitors reasonably fearful of assault. It is another entirely to have a blanket prohibition on things like leafleting, or petitioning or the peaceful distribution of educational material.

I will not be sad to see an end to "buffer zones." My hope is just that when they are done away with, that lower courts and legislatures do not confuse the elimination of these buffer zones with reasonable, targeted restrictions on speech designed to ensure women seeking abortions have access.

Stuart McPhail said...

Assuming the Court strikes down the Massachusetts law, would there be any limit on the State's or city's ability to transfer the sidewalk to Planned Parenthood (or the property owner, if different), so that it would become private property and they would then be free to exclude anyone they like? I recall that SCOTUS ok'ed a transfer of a cross in a national park to a private group to avoid a First Amendment challenge.

The Dismal Political Economist said...

A question for Mr. Dorf and others who post on this Forum. But first some background.

For almost two centuries litigation and confrontation involving Free Speech has centered on content, and this began almost immediately after the Constitution was ratified and the government took office. Clearly it was content that the Founding Fathers wanted to protect in drafting the Bill of Rights. And with the end of McCarthyism and the Vietnam War the battle for Free Speech against those who would use government powers to curtail speech (other than libel, defamation, shouting fire in a crowded theatre etc) was won.

But in the last several decades the issue has shifted from content to access. Citizens United and cases like this one do not concern content of speech at all. The issue is whether or not access, both money and physical, is Free Speech and if so to what extent any government may regulate access, if at all.

Now a strict constructionist view of the Constitution should result an interpretation of Free Speech being that as long as the denied access is not so great than an individual (and now corporations) could not express content in a public way, the government may control access as it sees fit so as long as there is a public interest to be served. There is no unlimited right public access for speech in the Constitution, no guarantee that a person may speak at any time and at any public place. And the idea that Free Speech means one can force listeners to hear a speech is just plain bizarre with respect to freedom. It gives one party unlimited freedom at the expense of the other party who certainly has the freedom to not listen.

How did this battle evolve from content to access? What if any is the historical basis to equate freedom of content with freedom of total access? And why don’t those Justices who espouse a narrow construction of the Constitution support government regulation of access when that regulation is only a minor reduction in total access and in no way restricts a person’s right to express any ideas that he or she seems fit to do so?

Even when all of the campaign finance rules were in place was there any real denial of access for wealthy individuals to the marketplace of ideas? Even with a 35 foot or even a 100 foot protection zone around an abortion clinic is there any significant reduction in the ability of anti-abortion rights advocates to make their case? And no one can deny that both campaign finance regulation and restriction of approaching those entering an abortion clinic does not serve a public purpose. In the situation with the clinics it can literally be a matter of life and death.

So the question is this, how is it that unlimited access became a part of Free Speech, where is the historical legal basis for this? My position is that this is the result of highly activist courts, of Justices creating a right, i.e. almost unlimited access for speech, of supporting a position because of their own personal biases and positions, but maybe there is more to it.

Joe said...

Speaking of 'unlimited access' seems like hyperbole to me.

"Even with a 35 foot or even a 100 foot protection zone around an abortion clinic is there any significant reduction in the ability of anti-abortion rights advocates to make their case?"

Yes. The idea here is they want to go up to people and talk to them about abortion, including what they call "sidewalk counseling."

What if people protesting outside a place selling veal, let's say, couldn't go up to customers and talk or perhaps hand out pamphlets? They could just stand a distance away hoping they would come to them. Would that be okay? At least, would be saying there is no "significant" reduction of them making their case?

Planned Parenthood submitted a brief arguing that experience showed that a buffer zone was needed because of past actions that burdened access to the clinics, a constitutional right. It's a balancing of interests. But, something is sacrificed, even if they win.

The Supreme Court decided various cases in the 1930s-60s protecting the right to access, including in company towns. Many movements pushed for right to access to protest for a variety of reasons. There are time, place and manner rules that are acceptable. But, from colonial times public spaces were generally open to protect.

The "right to access" is not a new thing. The right to assembly and petition should also be factored in here.

The Dismal Political Economist said...

Joe is correct, we are talking about balancing rights here and obviously determining a proper balance is an extremely difficult concept because of the subjectivity of the analysis. And yes, the restrictions on approaching clinic patients are a loss of free speech rights. But is limiting access to say one millionth of one per cent of the public space a major loss of a basic right?

And it seems that those who protest want no balancing of the rights, no recognition of the principle that people that want to be left alone, that do not want to participate in a debate, that do not want to be harangued have a right to do so. Those who protest want an unlimited right to confront those on whom they would impose their views.

The veal analogy is not appropriate. No one is engaging in violence or physical harm to those producing veal. The reason the state has an interest in establishing a zone of protection around an abortion clinic is the historical fact that violence has been a part of the protests against abortion rights. That makes the situation with an abortion clinic special. One may not agree that it is special enough to justify the law, but one cannot deny that the state does have a legitimate interest here, and that is enough to establish the validity of the law. And if the state has a legitimate rationale here, then the courts should respect the rights of the state to make such a law. Those opposed to it need to use the political process not the courts to change the policy represented by the law.

Finally the right to assembly and petition is not relevant here. Assembly and petition is a right to gather and confront government or other institutions or to organize opposition, albeit in a peaceful manner. The right that is the issue here is a right to harass and harangue and subject individual citizens to speech which they do not wish to hear, and the right of men and women to participate in a legal activity without fear of physical and verbal attack.

The right of free speech is an almost unlimited right to express one’s beliefs. But speech can threaten, speech can harm, speech can inflict damage. And no matter how strongly one believes in a cause it is not an unlimited right to verbally attack and force one’s views on those who disagree. That is not freedom, that is tyranny.

Joe said...

The veal example is said to not be "appropriate" because of absence of appropriate justification. But, in various cases (such as labor disputes) there are instances where that can be found.

And, noting balancing is present already shows a recognition there is something being balanced. All the reply does there is show in that specific case a buffer zone might not be justified.

As to "one millionth of one per cent," what is the nominator here? Realistically, that would be inches. In protests, certain spaces are particularly important. We can tell same sex marriage advocates that being outside of churches isn't that important too since it is just a "tiny" amount of space and you can stay instead on the next block or so. How would they responds, I wonder.

As to assembly/petition, even the reply recognizes that it doesn't only apply to the government (or it would not apply to protests against businesses that discriminate [legally in various places] against gays). "Organize opposition" is included.

It says here though the "right to harass and harangue and subject individual citizens to speech which they do not wish to hear" is at stake. So, if I -- a vegetarian -- organize a protest outside a meat packing plant that they "do not wish to hear" is it not part of assembly and petition? Repeatedly, "haranguing" is involved -- it is a PROTEST against current policy and protest. Dissent repeatedly involves that.

There is no 'unlimited' right to protest demanded here. But, repeatedly, people protest on all sides in ways that others find distasteful and rather not hear. People also walk up to people in these cases and talk / hand out pamphlets. They repeatedly do so at specific locations that are of specific importance. A buffer zone doesn't just say the other people can say "go away." It is a zone where you cannot even talk to them.

Again, it is a balance, but I think you have to recognize what you are balancing.

The Dismal Political Economist said...

Joe states that there is ‘balancing’ here but I do not understand that. What is being balanced? Those opposing the Massachusetts law, as I understand their position, argue that there are no limits to approaching individuals entering an abortion clinic while they are on public property. Where is the balance if one side gets everything they want, and the other side has no protection whatsoever?

And again Joe and others who oppose this law fail to understand the unique difference between actions at an abortion clinic and other issues of demonstration and protest. While I do not know the circumstances of those who oppose the Massachusetts law, I doubt very seriously if they have been exposed to what has taken place at abortion clinics and that they think that this is just a friendly open discussion between two parties who disagree on an issue. It is not.

For much of my adult life I lived in Buffalo, New York. In the 1990’s the city became a target of massive protests against abortion rights, and protesters from all over the nation converged on the area. Because one of the clinics they were protesting against was along my commute, I observed first hand of what they did and how they acted. They frequently massed on the road, forcing cars to stop and when they did the protesters verbally assaulted the drivers and occupants. They banged on the cars for attention. They would not disperse until those in the autos had been forced to listen to their message.

Those wanting to enter the clinics, either because they were employees or because they were patients experienced the protesters getting right next to them. They waved their placards in a threatening manner. They shouted obscenities and accused those trying to lawfully enter the clinic of engaging in horrific crimes. They obtained bloody baby pigs and other dead animals, and even in one case a human fetus and thrust them at those who tried to enter the clinics. They blocked access. They called those who sought to enter the clinics the vilest names possible.

These protesters and ‘counselors’ harassed and intimidated those with whom they disagreed. Near the end of the decade Dr. Barnett Slepian, a decent and caring physician who provided abortion services as part of his medical practice returned from a synagogue and a memorial service for his late father and was fatally shot while in his kitchen with his family. The shooter initially escaped and was helped in his escape and flight from justice by some, not all but by some of the so called “pro life” supporters. When Dr. Slepian was killed he was the 7th person in the United States to have been killed for being involved in performing abortions.

Women who are seeking an abortion are in a very difficult position. An abortion is a serious emotional and physical experience and the women who have decided to have an abortion are under tremendous stress and pressure. They are not just citizens strolling in the park. Almost all are making a decision that they do so with great trepidation. To ask that these women be allowed freedom from verbal attack and some privacy for the last 35 feet on public property before they enter a clinic is not an assault on free speech, it is not a restriction of basic rights of protesters and counselors, it is a decent, caring, compassionate act that allows these women some protection under the law. It is something they deserve, it is a basic right that they have that will be taken away if this law is overturned.

Evin Terna said...
This comment has been removed by the author.
Evin Terna said...

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