A few weeks ago, the Supreme Court decided to hear a major free-speech case during its next term.
The case, McCullen v. Coakley, concerns a 2007 Massachusetts law that prohibits some speakers from coming within 35 feet of free-standing abortion clinics. In effect, the law bans pro-life advocates from trying to peacefully persuade those entering the clinic to consider alternatives to abortion.
The Supreme Court has dealt with cases at the crossroads of free speech and abortion before. In 2000, the court let stand a Colorado law banning speech within eight feet of anyone near a health care facility. However, in the 13 years since Hill v. Colorado was decided, the membership of the court has changed substantially.
Justice Anthony M. Kennedy, who is typically a swing vote, vehemently dissented in Hill. He found that the law in Hill “invit[ed the] screening and censoring of individual speech,” calling it “antithetical to our entire First Amendment tradition.”
Justice Kennedy, who co-wrote the decision in Planned Parenthood v. Casey upholding a constitutional right to abortion, was particularly outraged by the impact of Hill on the private abortion debate. He concluded that “for the first time, the Court approves a law which bars a private citizen from passing a message, in a peaceful manner and on a profound moral issue, to a fellow citizen on a public sidewalk.”
Since Roe v. Wade and Planned Parenthood v. Casey, it has been unconstitutional to enact laws that fully ban abortion. The only avenue left to prevent abortion is for pro-lifers to try to personally persuade those who disagree. Justice Kennedy was so incensed in Hill because those personal, peaceful discussions can now also be banned.
While Justice Kennedy and the four conservative justices might overrule Hill, they do not have to. McCullen presents a law even more objectionable than the Colorado law and would thus require extending the impact of Hill.
The Colorado law is distinguishable from the one in Massachusetts because the latter only bans speech around abortion clinics, not all health care facilities. By banning speech near abortion clinics, Massachusetts prevents pro-life advocates from communicating their view at the place where it can most effectively be received.
The law does not censor all speech at abortion clinics, however. It primarily censors only pro-life advocates. Because the law exempts abortion clinic employees and agents from the ban, Planned Parenthood employees, for example, can permissibly urge hesitant women to come inside and abort their child. A pro-life advocate, on the other hand, must stand by silently or suffer criminal penalties. The Constitution should not force individuals to violate either their conscience or the law.
The Massachusetts law is also distinguishable because it lacks a consent provision, which means that a pro-lifer could go to jail for calmly discussing abortion with a willing listener. A law that bans a conversation between two willing participants can only have one objective: banning the subject of that conversation; namely, preventing abortions.
The case is fundamentally an issue of free speech, not abortion. The American Civil Liberties Union of Massachusetts, hardly a right-wing activist group, opposed the bill in a 2007 statement.
Pro-life advocates are politically unpopular in Massachusetts. Just because a view is disliked, however, does not mean that it can be banned. Nearly a century ago, Justice Oliver Wendell Holmes wrote that “[i]f you have no doubt of your premises or your power, and want a certain result with all your heart, you naturally express your wishes in law, and sweep away all opposition.” He continued, however, to say that this natural impulse is wrong.
The best way to discover truth is by constantly testing ideas through debate and discourse. For this reason, the Constitution secures the right to free speech. The Supreme Court should restore a century’s worth of free-speech jurisprudence and strike down the Massachusetts censorship law.
A.J. Kritikos, 24, is a second-year student at Harvard Law School and a graduate of Georgetown University.