Only time will tell, but the freedom of speech of pro-life Americans may be restored in the very near future, perhaps as early as Monday, when the Supreme Court issues its next round of opinions.
For years, the government in Massachusetts has been treating public sidewalks as private property of the abortion clinic, with criminal penalties for anyone that offers life-affirming alternatives. But among the decisions to be issued by the U.S. Supreme Court by the end of June is a case challenging that restrictive Massachusetts law, McCullen v. Coakley. Hopefully, the Court will go further and reverse a 2000 decision, Hill v. Colorado, which has been the basis of restrictions on pro-life free speech ever since.
In 2007, Massachusetts enacted a law that prohibits anyone to “enter or remain on a public way or sidewalk adjacent” to a stand-alone abortion facility, but it does not equally apply to all persons. The “no entry zone” is actually a “no pro-life speech” zone, as the Massachusetts government explicitly exempts employees or agents of the abortion facilityacting within their scope of employment.
Americans United for Life has been actively involved opposing this anti-American, anti-speech law, twice filing an amicus brief on behalf of 40 Days for Life. In 2009, we filed an amicus brief urging the U.S. Supreme Court to hear this case (on petition for cert). This past fall, we filed again, urging the Court to overturn the law.
The AUL brief explains how the Massachusetts law violates the First Amendment freedom of speech rights of 40 Days for Life by establishing a no pro-life speech zone, where no alternatives to abortion may be offered. Contrary to the First Amendment and Supreme Court precedent, it forces pro-life speakers to either shout (from 35 feet away) or be silent, effectively foreclosing speech by those who engage in personal, direct, peaceful communication.
An abortion clinic employee, under the law, is allowed to approach women on the public sidewalk and say anything. However, our client, 40 Days for Life, cannot on that same public sidewalk offer, “I can help you” or even stand and pray without facing criminal penalties.
Even if a woman consents to listen or wants to hear what 40 Days has to say on that public sidewalk, that communication is not allowed by the draconian Massachusetts law.
Such blatant viewpoint discrimination should be held unconstitutional, even under the standards of the Supreme Court’s 2000 decision, Hill v. Colorado. Important to the Court’s finding in Hill that the “no approach” Colorado statute was “viewpoint neutral” was that it applied to “all” speakers: “That is the level of neutrality that the Constitution demands.” The Massachusetts statute clearly does not meet that test.
But the Court in McCullen has the opportunity to do more than merely correctly apply Hill; it has the opportunity to correct the strained reasoning of the majority in Hill that upheld the Colorado statute.
In Hill, Justice Kennedy poignantly opened his dissent, writing that “[t]he Court’s holding contradicts more than a half century of well-established First Amendment principles. 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.” He continued, “If from this time forward the Court repeats its grave errors of analysis, we shall have no longer the proud tradition of free and open discourse in a public forum.”
It is time to reverse Hill. Let us hope the Supreme Court will do so, thereby restoring the free speech rights of pro-life Americans not only in Massachusetts but throughout the land.