A couple of weeks ago, I was privileged to speak at a conference in Vienna concerning the role of freedom of expression in a healthy democracy. The conference, organized by the Federalist Society, sought to spark a dialogue among 50 young European lawyers from a dozen countries.
Generally speaking, expression is more greatly regulated, or restricted, in Europe than in the United States. My role – as a lawyer from a public interest pro-life group in America – was to outline current jurisprudence in the US, in order to give the Europeans something to compare to their own practices.
As a general proposition, it is hard to imagine a country where speech on public issues is freer. A key case from last year’s Supreme Court term, Snyder v. Phelps, held that so long as speech (including picketing, which is “expressive conduct”) is about “a matter of public concern”, citizens must put up with it, even if it is “repulsive”. (If it isn’t about matters of public concern but is about private matters, then citizens who are affected can recover damages for various torts, such as intentional infliction of emotion distress.) As the Supreme Court noted insistently, the First Amendment was designed to encourage robust speech about public issues; if it is significantly limited, democracy withers.
As I noted, this principle extends to picketing, which is a combination of speech and conduct – and picketing, of course, is something we seeing plenty of daily in various public parks. This was established by a case from several decades ago in Washington, DC, Clark v Community of Creative Non-violence (1982). In order to regulate or restrict picketing, the regulation must be “content neutral” (that is, not aimed at a particular kind of speech or a particular speaker). If it is content-neutral, then its legitimacy is examined under a more lenient standard (“intermediate scrutiny”). However, if it is not content (or viewpoint) neutral, then it is subjected to the most exacting review possible, i.e., “strict scrutiny” – there must be a compelling reason for the governmental restriction, and it must be the least restrictive means that can be used. This is a high standard, and, in practice, few, if any, restrictions on speech (on matters of public concern) will survive it.
So that is the general playing field when it comes to freedom of expression in the United States. But are these principles applied evenhandedly? The answer is relevant to Europeans struggling with how to design or rewrite laws on expression. But it is also of importance to those who live in the USA.
Obviously, an in-depth study is beyond my space limits here. But let me answer the question by reminding you of another Supreme Court case that I discussed in Vienna. That case is Hill v Colorado from 2000. It concerned state law designed to protect an “unwilling listener” from hearing “protest, education, or counseling” outside a “health facility”; it did so by creating an 8-foot bubble zone within 100 feet of the entrance. It applied the Clark standard…and upheld the state law! (Since it was found to be “content-neutral”, it survived “intermediate scrutiny.”)
It is an astonishing case, wholly out-of-line with prior precedents. As one dissenting Justice noted, “Suffice it to say that if protecting people from unwelcome communications is a compelling state interest, the First Amendment is a dead letter.” Under the terms of Clarke, the statute should have been found to be content-specific, not neutral, for it forbids only certain kinds of speech, i.e., “protest, education, counseling”. It only applies before “health facilities,” not all public building entrances.
One could go on and on with the critique of the decision, but what is really going on here? Why jettison “50 years of First Amendment jurisprudence”, as one dissenter notes? The answer is simple – “What is before us, after all, is speech regulation directed against the opponents of abortion, and it therefore enjoys the benefit of the ‘ad hoc nullification machine’ that the Court has set in motion to push aside whatever doctrines of constitutional law stand in the way of that highly favored practice.” (as another Supreme Court dissenter said about the case)
In other words, where abortion is concerned even the robust, vital freedom of speech so necessary to a healthy democracy can be threatened. It is an important lesson for Europeans who may wish to revise laws to ensure that all points of view are heard. It is perhaps even a more vital lesson for those who have suffered under the wrong-headed decision in Hill v Colorado. Let us hope that the straight-forward standards of Snyder v Phelps have essentially tossed Hill decision onto the scrapheap of history.