Some protests are not free speech

July 12, 1994

The Supreme Court ended its term this year with a significant victory for pro-choice women and the health care practitioners they depend on. It ruled, 6-3, that a judge could limit at least somewhat the activities of the most intimidating of anti-abortion protesters.

This almost surely means that a new federal law giving women broader protection against such protesters will withstand challenges to its constitutionality. That law was not addressed in the recent Supreme Court decision, but Chief Justice William Rehnquist, who wrote the court's opinion, made a point of saying that a court's review of an injunction in a free speech case has to be more "rigorous" than its review of a statute that has the same aim.

The state judge's injunction in this case and the new federal law are not really about "free speech" in our view. They are about protecting people from a form of violence. It has been the stated aim of the leaders of protests of this sort at clinics where abortions are performed to interfere with and prevent the safe practice of what is a legal and constitutionally-protected right. They do that by physically blocking access to clinics and by resorting to verbal protests at a noise level so high and intrusive (using sound amplification equipment) that it often raises women's blood pressure to a dangerous level and distracts their medical practitioners.

This activity, the court said, agreeing with the Supreme Court of Florida, threatens a patient's physical as well as psychological well-being. The state has an obligation to protect its citizens from such a threat in their homes and at clinics and hospitals. (The state also has an obligation to keep its streets and thoroughfares open to the public.)

The Supreme Court did not allow the Florida courts to impose truly harsh restrictions on the anti-abortionists. It upheld the local judge's imposition of a 36-foot buffer zone around clinics and the noise restrictions, but it struck down as unconstitutional a provision of the injunction banning "images" (on protest signs) that could be observed from within the clinic, a 300-foot zone in which those entering the clinics could not be "approached," and a 300-foot buffer zone around the residences of clinic personnel.

Freedom of speech is clearly protected here. Some might say over-protected. This is hardly a pro-abortion decision, either, as some seem to believe. The chief justice has been a consistent foe of a constitutional right to abortion, from his dissent in Roe vs. Wade in 1973 till his dissent two years ago when the court in a 5-4 ruling reaffirmed that right.

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