This column by ACRU Senior Fellow Robert Knight was published January 14, 2014 on The Washington Times website.
Members of American Civil Liberties Union like to bill themselves as the ultimate protectors of the First Amendment, defending hard-core pornography as “free speech” and even the possession of child pornography. Go ahead, ask them. They only oppose the “production” of that demonic product.
Even the ACLU has its limits beyond the usual commonly cited exceptions of crying “fire” falsely in a crowded theater or making threats of violence.
The ACLU has long been comfortable with the ultimate violence committed inside the nation’s abortion clinics on unborn children, for example. Now, it is comfortable with barring abortion protesters via a 35-foot buffer zone, which it once regarded as a government overreach.
On Wednesday, the U.S. Supreme Court will hear oral arguments in McCullen v. Coakley, as to whether a Massachusetts law criminalizing protests near abortion clinics is constitutional. When the law was passed in 2007, the ACLU of Massachusetts opposed it.
Likewise, in Colorado v. Hill (2000), the ACLU’s U.S. Supreme Court brief said that a law creating an 8-foot, moving buffer around clients and a 100-foot barrier to clinic entrances and exits was an unconstitutional overreach.
In both instances, the ACLU noted that it has long supported Roe v. Wade and unrestricted abortions, but that the statutes did not properly balance competing rights. The ACLU’s brief in Hill concluded:
“Colorado has identified its interest as access to health care facilities for patients and staff. Unfortunately, the floating buffer is not narrowly tailored to promote that interest. Instead, it focuses directly on expressive activities. It thus burdens substantially more speech than necessary to accomplish the state’s goal and cannot be sustained, even under intermediate scrutiny.”
The court disagreed, upholding the Colorado law in a 5 to 3 ruling with the majority opinion written by since-retired Justice John Paul Stevens, and two sharp dissents from Antonin Scalia (joined by Clarence Thomas) and Anthony M. Kennedy.
In 2007, the ACLU of Massachusetts opposed a law creating a 35-foot fixed buffer zone around abortion clinics from which protesters were barred from approaching clients and staff or giving them brochures.
“If the message is unwelcome, as it often will be outside abortion clinics, the constitutionally appropriate response in a public forum is for the listener to walk away,” the ACLU argued in a report submitted to the legislature.
This time around, however, the ACLU’s Supreme Court brief in McCullen calls for the court to uphold the Massachusetts law “as constitutional on its face, given a record of past harassment, intimidation, obstruction and violence.”
The law, however, would not deter a violent assailant, such as John Salvi, who fatally shot two people at two Massachusetts clinics in 1994. It is instead aimed at peaceful demonstrators who pray, recite the rosary and hand out literature. For perspective, consider that no similar law protects churches from harassment by homosexual militants, who have invaded services, used bullhorns on church property and committed other thuggish acts in the name of free speech.
Writing in The Wall Street Journal about the case, constitutional lawyer Floyd Abrams observed that “the First Amendment has not changed in the 14 years between the filing of the ACLU briefs in Hill and McCullen; the ACLU has. The old ACLU got it right. Looking back on Hill v. Colorado, Harvard [professor] Laurence Tribe observed that the case was ‘slam-dunk simple’ and the decision ‘slam-dunk wrong.'”
Mr. Abrams, who reminded readers that he supports Roe v. Wade and subsequent decisions securing “a woman’s right to choose,” concluded by writing about the Hill case that, “It is time for the Supreme Court to right that wrong.”
In his Hill dissent, Justice Scalia scathingly wrote of the majority ruling: “What is before us, after all, is a speech regulation directed against the opponents of abortion and it therefore enjoys the benefit of the ‘ad hoc nullification machine’ that the Court has set in motion to push aside whatever doctrines of constitutional law stand in the way of that highly favored practice.”
Dismissing the ruling’s claim that the restriction was not “content-based,” Justice Scalia noted: “Whether a speaker must obtain permission before approaching within eight feet — and whether he will be sent to prison for failing to do so — depends entirely on what he intends to say when he gets there. I have no doubt that this regulation would be deemed content-based in an instant if the case before us involved antiwar protesters, or union members seeking to “educate” the public about the reasons for their strike.”
Just as George Orwell’s Animal Farm taught us that “all animals are equal, but some animals are more equal than others,” it will be instructive to see if the Supreme Court, like the ACLU, continues to regard certain views as “less equal than others” and thus, beyond First Amendment protection.