The Supreme Court of the United States has struck down a Massachusetts law barring pro-life protesters from being within 35-feet of an abortion clinic. The unanimous ruling found that the law violated the first amendment protections of freedom of speech. While the ruling was unanimous, there were three opinions (Chief Justice John Roberts was joined by the Court’s four liberals, Justice Antonin Scalia was joined by Justice Clarence Thomas and Anthony Kennedy, and Justice Samuel Alito). Justice Roberts said that “the buffer zones burden substantially more speech than necessary” to achieve the public safety the State Commonwealth of Massachusetts claims is the desired goal of the law — that is is inadequately “tailored.” Justice Scalia says that the Roberts opinion buys too much into the idea that the silencing of pro-life voices near abortion facilities and that it is too much a “Something for Everyone” opinion. He chastises the Roberts opinion for carrying “forward this Court’s practice of giving abortion-rights advocates a pass when it comes to suppressing the free-speech rights of their opponents” and for perpetuating “an entirely separate, abridged edition of the First Amendment applicable to speech against abortion.”
Scalia says that free speech restrictions that “disproportionately” affect certain topics or certain sides, even when the restriction is ostensibly content-neutral, may be unconstitutional if the effect falls primarily on a certain group. Scalia says, “Every objective indication shows that the provision’s primary purpose is to restrict speech that opposes abortion.” But he also says that there is almost no way to tailor free speech restrictions without discriminating against pro-lifer protesters and counsellors and in favour of abortuary staff. Justice Alito also condemns the law’s “blatant viewpoint discrimination.”
If the Massachusetts legislature wants to take another kick at the can banning pro-lifers from exercising their free speech rights, the Court has indicated they can, but it is not clear how they could write a law that does not single out pro-lifers in a way that is viewpoint discrimination and thus face a higher constitutional hurdle. One hopes that Bay State legislators do not even try.
