Skip to main content

View Diary: Reporters: Most Supreme Court justices view Massachusetts' abortion clinic buffer zones skeptically (302 comments)

Comment Preferences

  •  any more than is necessary to do what? (2+ / 0-)
    Recommended by:
    Old Sailor, lyvwyr101

    The state has two interests here.

    The first, and most obvious, is allowing the people who work and use these clinics to enter and leave unmolested. And, as you say, a 10 foot restriction would likely be sufficient in most cases.

    The second, and barely mentioned, is that protests in front of abortion clinics seem to be unique in both becoming permanent disturbances and fomenting violence. (The disturbance and violence doesn't always originate from the anti-abortion side.)

    And it would seem to me that the state has a fair argument that 35 feet is appropriate to accomplish both goals.

    •  Perhaps (1+ / 0-)
      Recommended by:
      VClib
      The second, and barely mentioned, is that protests in front of abortion clinics seem to be unique in both becoming permanent disturbances and fomenting violence.
      But if these protests are becoming as consistently violent as you say they are, then that's a question for law enforcement. If protestors are becoming violent, and the LEO's in Mass aren't doing what they need to protect their citizenry (within the constants of the Constitution), that's something for the people of Mass to take up with law enforcement.

      If some union members on a picket line harass strike breakers, make them uncomfortable, etc...even engage in violence, would you advocate a law requiring striking workers to be moved away from public sidewalks in front of a place of business? Wouldn't that defeat the purpose of the strike? A striking worker has the right to say anything they wish to someone crossing a picket line..they don't have the right physically assault them, or prevent them from crossing. If they do, that's battery and it's a matter for law enforcement. The same goes for abortion protestors.  

      Again, certainly people have a right to be able to access these clinic free from physical restraint or intimidation. But they don't have right to be protected from hurtful speech. So my suspicion is that the court would allow a buffer zone which secures the right of people to access these clinics, while only restricting the right of those wishing to protest to the minimum extent necessary.

      Dammit Jim, I'm a lawyer, not a grammarian. So sue me.

      by Pi Li on Thu Jan 16, 2014 at 06:55:31 AM PST

      [ Parent ]

      •  I wouldn't support that law (2+ / 0-)
        Recommended by:
        lyvwyr101, Old Sailor

        but I wouldn't think it violated the first amendment either.

        If protestors are becoming violent, and the LEO's in Mass aren't doing what they need to protect their citizenry (within the constants of the Constitution), that's something for the people of Mass to take up with law enforcement.
        And that same objection could be made about every other restriction on speech. Which again, is not the question, we're not debating whether the state has the right to restrict speech, that's settled law.

        We're debating whether the state can restrict speech in front of abortion clinics. And in fact, we're not even debating that. We're debating the number of feet from the entrance.

        At which point I think we're talking less about a First Amendment issue and more about a "problem" that can only be addressed in the legislature.

        •  Well (0+ / 0-)
          we're not debating whether the state has the right to restrict speech, that's settled law.
          Of course. The state can put time, matter and place restrictions on speech for a legitimate purpose to the minimum extent necessary to achieve that purpose.
          We're debating whether the state can restrict speech in front of abortion clinics. And in fact, we're not even debating that. We're debating the number of feet from the entrance.
          What "we're" debating, again, is how much the State can restrict the speech.
          At which point I think we're talking less about a First Amendment issue and more about a "problem" that can only be addressed in the legislature.
          But it's precisely the actions of the Mass legislature that is before the SCOTUS.

          Dammit Jim, I'm a lawyer, not a grammarian. So sue me.

          by Pi Li on Thu Jan 16, 2014 at 07:48:38 AM PST

          [ Parent ]

          •  very ludicrous to me (2+ / 0-)
            Recommended by:
            lyvwyr101, Old Sailor

            the Supreme Court weighing in on precisely how far away from the door of an abortion clinic the founders of this nation meant for protesters to be allowed to stand.

            I think, in this case, the court needs to find harm (or the potential for harm) to the plaintiffs in order to override the legislature. And, as I've made clear, I do not think believe "not being allowed to talk to certain women entering the abortion clinic" can be constituted as harm.

            Not that I wouldn't put overturning the law based on the number of feet past them. The Roberts court seems supremely confident in their ability to highlight technicalities to make the narrowest rulings imaginable. I think they would be fools to do that, inviting any number of court challenges based on metrics determined by the legislature, but I wouldn't put it past them.

            •  Well, that's not how it works (1+ / 0-)
              Recommended by:
              VClib
              very ludicrous to me the Supreme Court weighing in on precisely how far away from the door of an abortion clinic the founders of this nation meant for protesters to be allowed to stand.
              The Constitution doesn't say anything about radio or TV either, but I'm pretty sure the First Amendment applies there as well.

              And if you want to go down that road, the Constitution doesn't say anything about abortion at all. It does however, mention speech. It' in the first  of the First Amendment, so I think the founders kind of considered it important. ;)

              I think, in this case, the court needs to find harm (or the potential for harm) to the plaintiffs in order to override the legislature.
              In this case, "harm" is the restriction of their First Amendment rights by the State. At least, that's what they allege. Whether it's an unconstitutional restriction is up for the court to decide.

              Dammit Jim, I'm a lawyer, not a grammarian. So sue me.

              by Pi Li on Thu Jan 16, 2014 at 08:19:39 AM PST

              [ Parent ]

              •  I appreciate you engaging me on this (2+ / 0-)
                Recommended by:
                lyvwyr101, Old Sailor

                I am not making the argument that the First doesn't apply to abortion clinics. What I am saying is that making a First Amendment case out of the difference between 10 feet and 35 feet is, from my perspective, essentially legislating from the bench.

                In this case, "harm" is the restriction of their First Amendment rights by the State.
                It's clearly established that the state can restrict their First Amendment rights in this way.

                So is there an additional harm caused by restricting speech at 35 feet that would be ameliorated by restricting speech at 10 feet? Will the court determine where that harm is actually incurred, do you think? Is it at 11 feet? 15? 25? 34.5?

                Perhaps they would be so kind as to provide an equation that will allow legislators to determine the appropriate feet-to-freedom ratio.

                That's why I said it was "ludicrous".

                •  You're looking at if from the wrong perspective (1+ / 0-)
                  Recommended by:
                  VClib
                  So is there an additional harm caused by restricting speech at 35 feet that would be ameliorated by restricting speech at 10 feet? Will the court determine where that harm is actually incurred, do you think? Is it at 11 feet? 15? 25? 34.5?
                  Both 10 feet and 35 feet are restrictive in that both are placing a "restriction" on the plaintiffs rights to protest...something I assume we agree the plaintiffs have a right to do in general.

                  Now, we also all agree that there are sometimes legitimate reasons for the government to place some restrictions on our rights, and the SCOTUS has consistenly upheld that. But they idea is that when they do place limits on those rights, those limits should be the least restrictive to achieve the legitimate objective of the government (in this case, allowing patients access to the clinics).  So how can the government achieve that goal while at the same time infringing on the rights of the protestors to the minimum extent necessary.

                  In this case, to the court it might seem reasonable that 5 or 10 feet is enough room to allow people access to the clinic, while 35 feet is likely more restrictive than it needs to be. It doesn't matter that the protestors may be able exercise their rights 35 feet away as they are from 5 or 10 feet away...or 5 miles away from that matter. The point is, IF the government is going to infringe on our rights, it should not be more than is absolutely necessary to achieve their legitimate objective. The idea is that the rights are ours, guaranteed by the Constitution, and that if some legislature is going to try to infringe on them, they damn well better do it in the most limited, narrowly tailored manner possible.

                  I hear you on "legislating from the bench"..but that's not really what's going on here. If the Court invalidates the Mass law, they probably aren't going to come back and say "5 feet is good". They'll likely just come back and say "35 feet is too restrictive", or something along those line, and perhaps with some general guidance on what would acceptable. But it would be up to the legislature to come up with something that can pass Constitutional muster. The court won't rewrite the law for them.

                  It might seem ludicrous, and sometimes you do end up with ludicrous results. But if you think about it, why should we give up one more inch of our rights than is absolutely necessary?

                  Dammit Jim, I'm a lawyer, not a grammarian. So sue me.

                  by Pi Li on Thu Jan 16, 2014 at 10:28:02 AM PST

                  [ Parent ]

          •  Correction (0+ / 0-)

            Meant to say...

            Of course. The state can put time, MANNER and place restrictions on speech for a legitimate purpose to the minimum extent necessary to achieve that purpose.
            Sometimes spell check is the enemy. :)

            Dammit Jim, I'm a lawyer, not a grammarian. So sue me.

            by Pi Li on Thu Jan 16, 2014 at 08:11:50 AM PST

            [ Parent ]

Subscribe or Donate to support Daily Kos.

Click here for the mobile view of the site