Whatever you think about abortion, said Jonathan Keim in NationalReview.com, last week saw a clear “victory for free speech.” In a case many thought would divide the justices, the Supreme Court voted unanimously to overturn a Massachusetts law that barred anti-abortion activists from entering a 35-foot “buffer zone” around the door of any abortion clinic. In particular, the justices found, the exclusion zone placed an undue burden on the free-speech rights of peaceful abortion opponents such as the plaintiff, Eleanor McCullen, a 77-year-old grandmother who politely offers leaflets to clinic visitors and asks them for a chance to explain her views. I’m a “committed supporter of a woman’s—increasingly imperiled—right to choose,” said Laurence H. Tribe in The New York Times, but even I think the court got this one right. It may sometimes make us uncomfortable, but the presence of “diverse views in our public spaces” is what this nation’s all about.
What an adorably quaint vision of America, said Richard Posner in Slate.com. Maybe once upon a time the nation’s streets thronged with intellectuals exchanging pamphlets and debating the weighty issues of the day. In the 21st century, however, “lecturing strangers on a sidewalk” is neither an effective nor a necessary means of communication. The soft-spoken McCullen is hardly your typical anti-abortion activist, said The New York Times in an editorial. “In the real world,” many come equipped with megaphones, gruesome placards of aborted fetuses, or worse. The Massachusetts buffer zone law, after all, was passed after two clinic workers were shot to death in 1994 and has proved, according to state police, “by far the most effective way of keeping the peace, maintaining public safety, and still respecting freedom of speech.”
That may be true, said The Wall Street Journal, but the point of the First Amendment is not to make the work of law enforcement easier. It is, rather, a guarantee of the right to speak one’s mind, particularly “in a public place where the message is most likely to reach its intended listener,” and in the case of abortion, yes, that means the sidewalks outside abortion clinics. That’s why last week’s ruling was actually a disappointment to free-speech absolutists. Although all nine justices voted to overturn the Massachusetts law, only four—Alito, Kennedy, Scalia, and Thomas—wanted to strike down buffer zones adopted by other states and cities, including Colorado and Montana. The majority, comprising the four liberal justices and Chief Justice John Roberts Jr., confined its ruling to Massachusetts’s buffer zone regulations and suggested that with a few adjustments—making the zone a little smaller, moving clinic entrances farther from public sidewalks—the law might pass muster.
This ruling wasn’t as “monumentally awful” as one might have gathered from the reaction of some progressives, said Dahlia Lithwick in Slate.com. But I dread to think what might be coming. Clearly, the court’s conservative majority is “obsessively concerned” with the rights of anti-abortion activists in a way that it isn’t about other political protesters. Neither Roberts’s ruling nor Scalia’s dissenting opinion (albeit technically a concurrence) said a word about buffer zones at polling stations or political events, or about the fact that protesters are required to stay at least 250 feet from the Supreme Court Building itself. The most cherished constitutional right among the court’s conservative majority still seems to be “free speech for people who think like me.”