The Supreme Court, over the strong objection of Justice Antonin Scalia, on Tuesday let stand a New Jersey court order that bans virtually all peaceful picketing near the home of a doctor who performs abortions.
The justices refused to hear the claim that such a broad ban on picketing violates the free-speech rights guaranteed by the First Amendment.
Even though the abortion protesters were not accused of being loud, disruptive or violent, New Jersey’s high court said they may march for only one hour every other week and may come no closer than 100 feet of the home of Dr. Elrick Murray in Westfield, N.J., a suburb of New York City.
The outcome in the New Jersey case is consistent with a series of recent state court rulings, including one last week in California, which have barred protesters from marching or carrying signs near the homes of abortion doctors.
“This is extremely important because it provides some measure of privacy to these physicians in their own homes. They are under siege everywhere else,” said Dara Kassel, an attorney for the Planned Parenthood Federation who represented Murray.
But Scalia, who is both a strong conservative and zealous advocate of free speech, accused his colleagues of treating abortion protesters as a “currently disfavored class.”
In the past, picketing and marching by civil rights protesters, union members or political activists has been protected as a form of free expression, Scalia noted, so long as the marchers did not block the sidewalks or disturb the peace.
The high court’s willingness to uphold restraints on abortion protesters “has damaged the First Amendment more quickly and more severely than I feared,” Scalia wrote.
He referred in particular to a split decision last June in which the Supreme Court upheld a “buffer zone” around an embattled Florida abortion clinic, while also striking down a judge’s order that put a 300-foot, nopicketing zone around the homes of clinic workers.
In a seemingly offhand comment in the case of Madsen vs. Women’s Health Center, Chief Justice William H. Rehnquist added that “a smaller (no-picketing) zone” might be constitutional in residential neighborhoods.
Since then, state courts in North Carolina, Ohio and California have seized on Rehnquist’s comment and upheld broad ordinances or court orders banning picketing in residential areas, say lawyers who have followed the issue.
“There’s a double standard here,” said Richard F. Collier Jr., a New Jersey attorney representing the abortion protesters. “The First Amendment rights of pro-lifers are treated differently than the rights of any class of protesters. If this involved gay rights or animal rights or civil rights, I think they (justices) would have taken this case.”
The American Civil Liberties Union joined the New Jersey case on the side of the abortion protesters.
“We essentially agree with Justice Scalia. This was a peaceful demonstration in a residential zone, and it did not interfere with a woman’s right to choose,” said Marsha Wenk, legal director for the ACLU in Newark.
The issue of residential picketing is almost certain to return to the high court.
Seven years ago, the justices upheld a Wisconsin city law that barred picketers from gathering directly in front of a doctor’s home, but the case did not spell out how far they could be kept away.
Last week, the California Supreme Court refused to hear a free-speech challenge to a 1993 San Jose ordinance that bans picketing within 300 feet of a residence.