There has probably been no more an ardent fighter in Berkshire County for the First Amendment’s freedom of speech provision than myself. I lead the fight to not allow the government to put impossible price restraints on free speech when they tried to impose the cost of police details on a free summer music festival to promote political speech; I fought for the right to allow signature gathering for public office at the post office (which made it to the Federal First Circuit Court of Appeals (Del Gallo v. Parent). I also fought for the right of local journalist and blogger Dan Valenti when the local Pittsfield District Court issued a temporary order putting major restraints on his blog regarding a story he was covering through a criminal harassment protection order. All of these restraints on free speech had their putative justifications but added a dangerous limitation on our right to free public discourse.
The free speech buffer zone targeted against those that wanted to protest abortion near abortion clinics is no different. That’s why I support the U.S. Supreme Court decision to strike down a Massachusetts law that banned protesters within 35 feet of abortion clinics, ruling that the law infringed upon the First Amendment rights of anti-abortion activists. A unanimous Court, from the most liberal to the most conservative, struck down the law, and reversed both the First Circuit and the Massachusetts District Court, both of which have at best a dicey history of protecting the First Amendment.
The First Circuit had ruled in the same case (way back in 2009), "To recapitulate, the 2007 Act [permitting free speech buffer zones] represents a permissible response by the Massachusetts Legislature to what it reasonably perceived as a significant threat to public safety. It is content-neutral, narrowly tailored, and leaves open ample alternative channels of communication. It is, therefore, a valid time-place-manner regulation, and constitutional on its face." Come on; it is impossible to try to talk someone out of an abortion from five blocks away.
My only criticism of the Supreme Court opinion is with the majority ruling that, "the Act is neither content nor viewpoint based and therefore need not be analyzed under strict scrutiny." Speech regulation is content-based if you have to examine the content of the speech to see if it the regulation is applicable. This is to be contrasted with "time, place, and manner restrictions" which apply to any type of speech, but only regulate the time, place and manner in which the speech is being made regardless of its content. The false argument is that since the free speech buffer zone applied on its face to any speech, it was genuinely not content-based, let alone viewpoint-based.
But everyone should know that the law was aimed at anti-abortion speech even though it was designed to appear content-neutral. It’s a safe bet that that the Massachusetts Legislature knew and intended that the law would not affect those advocating for dolphin-safe tuna fishing or even those that described themselves as "pro choice." Content-based regulations require the least restrictive means of furthering a compelling government interest; this means in plain English that law must be narrowly written to affect only speech such as threats, fighting words, obscenity or the like that have traditionally fall into an unprotected category of speech. Viewpoint restrictions are almost always unconstitutional because the government is taking the role of censor of "incorrect" speech.
But even taking Massachusetts’ free speech buffer zone ban as a time, place, and manner restriction not based on content or viewpoint, the Massachusetts statute failed this far more forgiving test because it overburdened completely permissible speech that did not fall into an "unprotected category" such as threats or harassment. The law could have been narrowly tailored to simply stop people from physically impeding others from getting an abortion, or threatening them if they did. But the law also improperly stopped people from simply trying to talk others out of abortions, or protesting clinics, which is protected free speech.
The Supreme Court correctly ruled that sidewalks and public ways "have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions." As importantly, the fact that the listeners may disagree with the speaker or did not want to hear the speech or considered it offensive, unwanted, or harassing did not change the outcome. Benjamin Franklin said, "They who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety." The U.S. Supreme Court understands this: the First Circuit and the Massachusetts District Court do not.
Rinaldo Del Gallo is a local attorney who has been involved in a number of First Amendment issues.