Amendment I to the Constitution of the United States states:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people to peaceably assemble, and to petition the government for a redress of grievances.
-1791 (emphasis added)
What it does not state is that, pursuant to Supreme Court decisions, the right to Free Speech is in fact a limited right, in that there are certain situations when the concern for safety and security overrule the freedom to speak freely.
Notably, instances of incitement, false statements of fact,obscenity, child pornography, fighting words and offensive speech, threats, speech owned by others, and commercial speech are afforded limited free speech protections. (The Government exercises certain powers over other types of speech that it produces as our governing body, but those usually aren’t the types of examples people argue about among friends.)
This issue of limited free speech is a topical one. On Wednesday, the Supreme Court will begin a review of laws that create “buffer zones” around clinics and medical facilities that provide abortions. (As an example, see Massachusetts’s institution of a 35-foot buffer zone around said facilities in the state. Image below of a particular buffer zone around a Planned Parenthood location.)
Before coming to an opinion myself, I consulted the Constitution (because who doesn’t have a few copies of that lying around?) and researched landmark Supreme Court decisions on free speech.
Chaplinsky V. New Hampshire (1942): Chaplinsky said some pretty bad stuff to a police officer and was arrested. Naturally he exclaimed “My free speech though!” The Supreme Court was unsympathetic. Justice Frank Murphy opined:
There are certain…classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include…the insulting or “fighting” words those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.
Vis-a-vis pro-lifers: Is what they are saying to clinic patients an example of “fighting words?” Do they incite a breach of the peace? Do they inflict injury? I wonder. I imagine the scene outside clinics, were the buffer zone deemed unconstitutional and thenceforth removed. Certainly there would be kind old women distributing pamphlets and cooing kind words at nervous women. But there would also (I’m almost certain) be angry protesters yelling aggressively at the “sinners” who were “damned to hell” if they went through with their abortions. Seems almost determined to incite people, that kind of talk. Is this legal?
What’s more, if a clinic patient becomes physically abusive in response to the perceived threat on behalf of the protesters, is that justifiable self-defense? Lest we forget, a pro-life proponent did once bust into a Planned Parenthood and shoot people (some fatally). So would a patient be within her right if she was physically combative when confronted by protesters?
Realistically, most clinic patients aren’t there for abortions. So what about those women going to Planned Parenthood for a mammogram or for birth control? (That is, to be clear, what the large majority of patients are doing-see the graphic below.) Do they have a right to defend themselves against inciting speech?
Ultimately the onus falls on the Supreme Court for this one. Unfortunately, the Constitution itself doesn’t provide any guidance on this—it says nothing beyond the fact that freedom of speech shall not be abridged. In that case, the Justices have to infer what the Founding Fathers would have felt about freedom of speech in this modern instance. It’s a job I don’t envy.
Whatever the Supreme Court decides will have implications for future free speech cases. If pro-life protesters are allowed back in the “buffer zone,” are pro-choice proponents also allowed in that zone? I would imagine there is also a private/public property dimension to consider. If a private company is legally allowed to use metal detectors at its entrance as a safety precaution (thus disallowing legal gun owners from carry their guns inside), can they also prohibit protest near their entrances for the same safety reasons? Is it the responsibility of a company to ensure the safety of its employees? Can an employee of Planned Parenthood sue the company for being made to work under duress? I don’t know the answers, but I think that all of these things are worth thinking about before making snap judgments about the buffer zone. Research carefully and advocate gently people!
An interesting look at what abortion means for different women- New York, November of 2013.
Dissecting what the Bible says (and doesn’t) about when life begins- Huffington Post, September 2012
View and compare abortion rights and laws across the world- World’s Abortion Law, 2014