Abortion Rights as a Free-Speech Flashpoint

According to the state, the 2007 legislation was enacted in response to antiabortion protesters blocking entrances to abortion clinics, harassing women who were seeking abortions, and otherwise impeding their efforts to do so. Both federal and state legislatures had previously sought to deal with such misbehavior. Federal law punishes as a crime those who “by physical obstruction” attempt to “intimidate or interfere” with any person “obtaining or providing reproductive health services.” A pre-existing Massachusetts law, passed in 2000, makes it criminal to “knowingly obstruct, detain, hinder, impede, or block another person’s entry to or exit from a reproductive health facility.” These statutes are narrowly drafted and do not raise any plausible First Amendment objections.

In contrast, the 2007 Massachusetts law, with its 35-foot exclusion zone, is anything but narrow in its impact. It effectively prevents Eleanor McCullen and her colleagues from engaging in entirely peaceful, nondisruptive antiabortion advocacy via the distribution of leaflets and oral advocacy at the very places it is most likely to be effective. This is what First Amendment law refers to as “overbreadth”—laws that in the course of criminalizing constitutionally unprotected speech or activities limit or impair speech that is fully protected.

Nonetheless, the Supreme Court decision in Hill v. Colorado (2000) provides support for just such a First Amendment limiting approach. That opinion, written by Justice John Paul Stevens, concluded that a Colorado statute that made it criminal for anyone engaged in “oral protest, education or counseling” to approach within eight feet of another person and within 100 feet of the entrance or exit of a health facility without that person’s consent did not violate the First Amendment.

To reach that conclusion, the court was obliged to deal with the overbreadth problem. It did so by concluding that a “prophylactic approach” to the regulation of speech—one that permitted constitutionally protected speech to be regulated together with unprotected speech in order to facilitate the suppression of the latter—was constitutional. This seismic shift in First Amendment law was denounced by Justice Anthony Kennedy, in his dissent, as “contradict[ing] more than half a century of well-established principles.” “Overbreadth,” wrote Justice Kennedy, “is a constitutional flaw, not a saving feature.”

Justice Stevens’ opinion in Hill went even further. Extracting from its context a historic phrase from a dissenting opinion of Justice Louis Brandeis relating to the wiretapping of telephone calls, the opinion concluded that an “unwilling listener’s interest in avoiding unwanted communication” was one aspect of a broader “right to be let alone.” Much of the decision is based on that notion.

But, as Justice Antonin Scalia‘s dissent pointed out, the Brandeis “bon mot” related to being let alone by the government—not empowering the government to suppress speech that might cause some level of discomfort. “[I]f protecting people from unwelcome communications,” Justice Scalia wrote, “is a compelling state interest, the First Amendment is a dead letter.”

For some supporters (and I am one) of Roe v. Wade and later cases affording constitutional protection to a woman’s right to choose to have an abortion, McCullen is simply one of many cases in which the First Amendment should be read to protect speech with which we happen to disagree. But others who pride themselves on defending First Amendment rights have resisted that conclusion in this case. The jurisprudential zigzag over the years in the position of the ACLU is illustrative.

In a friend-of-the-court brief in Hill, the ACLU argued that because the Colorado statute “burdens substantially more speech than is necessary to accomplish the state’s goal,” the statute was facially unconstitutional. When the 2007 statute was proposed in Massachusetts, the Massachusetts ACLU opposed it, stating that “[i]f the message is unwelcome, as it often will be outside abortion clinics, the constitutionally appropriate response in a public forum is for the listener to walk away.”

But now that McCullen has reached the Supreme Court, both ACLU groups have switched sides. Their position, their brief states, has “evolved over time” and the Massachusetts law is, after all, constitutional on its face. Of course, the First Amendment has not changed in the 14 years between the filing of the ACLU briefs in Hill and McCullen; the ACLU has.

The old ACLU got it right. Looking back on Hill v. Colorado, Harvard Prof. Laurence Tribe observed that the case was “slam-dunk simple” and the decision “slam-dunk wrong.” It is time for the Supreme Court to right that wrong.

Mr. Abrams is the author of “Friend of the Court: In the Front Lines with the First Amendment” (Yale, 2013) and a senior partner in the firm of Cahill Gordon & Reindel LLP.