SCOTUS balances free speech, public safety

The U.S. Supreme Court attempted to balance free speech and public safety issues last week when it struck down a Massachusetts law that required 35-foot buffer zones around clinics that perform abortions. Justices unanimously ruled that the law violated First Amendment free-speech rights.

Anti-abortion activists view the decision as a victory. But it remains to be seen whether it will lead to successful challenges of less-sweeping, keep-your-distance laws in other states. Our hope is that local governments will still be allowed to protect clinic clients and employees from harassment.

Chief Justice John Roberts joined the court's four liberals — and drew criticism from Justice Antonin Scalia — in striking down the law on narrower grounds than conservatives had hoped.

Based on the finding that the 35-foot zone was too large an area to limit public access because of demonstrations that occurred at one clinic in Boston, Roberts wrote:

"Here the Commonwealth has pursued [public safety] interests by the extreme step of closing a substantial portion of a traditional public forum to all speakers." He added that the size of the buffer zones "burden substantially more speech than necessary to achieve the Commonwealth's asserted interests."

In a separate opinion, Scalia criticized Roberts and the court for "giving abortion-rights advocates a pass when it comes to suppressing the free-speech rights of their opponents."

The case was brought by several abortion opponents, led by Eleanor McCullen, a self-described grandmother who says she does "gentle sidewalk counseling" outside a Boston clinic. They argued that the law unfairly restricted their speech against abortion but did not restrict those on the other side of the issue.

If not 35-foot-plus buffer zones, then clinics need smaller zones or other ways to assure that women can access services without being bullied or attacked. After all, the Supreme Court itself has a buffer zone around its building that is far larger than 35 feet, and similar perimeters are often established for political conventions and other activities where unruly protests may occur.

The McCullen decision is the first time the court has taken on the controversial issue of abortion clinic buffer zones since 2000, when it upheld a Colorado law that created an 8-foot buffer that "floated" around people entering or exiting a facility that provided abortions. Several other states have similar laws.

It's worth noting that the court did not strike down the notion of buffer zones altogether. In fact, the court seemed to go out of its way to suggest alternatives to overly broad statewide rules.

"If the Commonwealth is particularly concerned about harassment, it could also consider an ordinance such as the one adopted in New York City that not only prohibits obstructing access to a clinic, but also makes it a crime 'to follow and harass another person within 15 feet of the premises of a reproductive health care facility,' " Roberts wrote, adding that the ruling is not necessarily a stamp of approval on that municipal law.

Minnesota does not have buffer zones for abortion clinics. But a Planned Parenthood clinic in St. Paul that had difficulties with anti-abortion activists harassing clients recently moved to another location and designed an entrance to be farther from the sidewalk. The clinic also uses volunteer escorts.