A Victory For In-Your-Face Speech ‘Right To Be Left Alone’ Suffers In High Court’s Abortion Clinic Ruling

Free speech of the loud, aggressive, in-your-face variety won an important victory in the U.S. Supreme Court last week, one that could shape future sidewalk confrontations on matters ranging from animal rights and union picketing to street beggars and celebrity photographers.

The loser was the more genteel version of the First Amendment, the one that protects the polite exchange of ideas and only peaceful persuasion.

Everyone agrees the First Amendment protects a person’s right to speak and even to say things that are foul and offensive.

In one famous Vietnam War era case, the Supreme Court upheld a man’s right to walk into a Los Angeles courtroom with an obscenity printed on his jacket.

But does a listener have rights, too?

At some point, can the speaker’s loud, insistent preaching in your ear go too far and violate your right “to be left alone”? If he follows you and refuses to stop, when does his free speech violate your rights and become illegal harassment, intimidation or even stalking?

Surprisingly, the Supreme Court has not answered these questions with any precision, but many local judges have been forced to do so in recent years because of mass abortion protests outside women’s medical clinics.

But the free-speech issue is surely not limited to abortion. It arises when ACT-UP protesters target Catholic Church leaders, when cities try to regulate street beggars and possibly even when judges try to shield celebrities from persistent photographers.

Lurking in all these instances is the unanswered question about the meaning of the First Amendment.

Is it designed narrowly to protect civil debate and the “marketplace of ideas” or, more broadly, also to protect a speaker’s loud and intimidating demands that frighten the listener?

By a lopsided 8-1 margin, the Supreme Court came down on the side of the shouting sidewalk protesters this week and rejected the idea that pedestrians have “a right to be left alone.”

The court struck down a Buffalo, N.Y., judge’s order that required aggressive sidewalk protesters to stand 15 away away as pregnant patients and staff walked toward a clinic that performed abortions. The judge imposed the order after 18 months of escalating demonstrations outside the facility. Patients should not be “forced (to face) a gauntlet of harassment and intimidation,” the judge said.

But the Supreme Court concluded the First Amendment rights of the protesters outweigh the privacy rights of the patients.

“This is a strong affirmation of the in-your-face view of the First Amendment,” said Rodney Smolla, a free-speech expert at the College of William and Mary law school. “The court has rejected the notion that listeners have a zone of privacy, or that there is a right not to be hassled.”

Smolla pointed out that in a famous 1975 case, former first lady Jackie Kennedy Onassis got a court order requiring persistent celebrity photographer Ron Gallela to keep his distance as she moved about in public. “If that case were coming up again, this (Supreme Court ruling) would give him (photographer) a strong First Amendment argument,” he said.

University of Southern California law Professor Erwin Chemerinsky said the ruling may spell trouble for anti-panhandling laws that are being tested in the federal courts in California. “This case establishes a strong First Amendment right to speak, even when the people say they don’t want to be spoken to,” he said. “It will certainly have an application in the begging context.”

But its impact will be felt first in the abortion conflicts.

Twice, the California Supreme Court has upheld broad injunctions that forbid abortion foes from demonstrating on the sidewalk in front of a Planned Parenthood clinic in Vallejo. Lawyers for the protesters have asked the high court to throw out that injunction, and the justices may do so as soon as Monday.

Meanwhile, the cities of Santa Barbara, Calif., and Phoenix make it illegal for demonstrators to closely approach persons within 100 feet of a health care facility. Those ordinances, now being challenged in the courts, are also in doubt because of Wednesday’s ruling.

Certainly an anti-abortion protest led by Operation Rescue would not be characterized as a free exchange of ideas.

Outraged by what they see as the immorality of abortion, these demonstrators in September 1990 began crowding the sidewalks outside a women’s medical clinic in Buffalo. They were “harassing, badgering, intimidating and yelling at” patients as they tried to enter the facility, according to a federal judge there. Some women were frightened and in tears as the protesters screamed “baby killer” at them and put a video camera in their faces.

One woman described it as “like being in the middle of a lynch mob.”

After weeks of testimony, U.S. District Judge Richard Arcara issued an order designed to separate the combatants and to maintain the peace. Crowds of demonstrators were told they could not come within 15 feet of persons or vehicles moving toward the clinic. However, two “sidewalk counselors” were permitted to approach a woman for “conversation of a nonthreatening nature,” but they had to “cease and desist” if the patient requested it.

“No one is required to accept or listen to sidewalk counseling,” the judge said. While the demonstrators remain free to shout, chant and hold up signs from a short distance away, the patients also have a “right to be left alone,” he said.

The full U.S. Court of Appeals in Manhattan upheld the judge’s order on a 13-2 vote. The First Amendment protects “peaceful persuasion, not coercion or obstruction,” wrote Judge Ralph K. Winter. “There is no right to invade the personal space of individuals going about their lawful business, to dog their footsteps and chase them down the street and to scream in their faces.”

Appealing to the Supreme Court, lawyers for the Rev. Paul Schenck, a protest leader, mocked this new “right not to be hassled in public.” They called it a dangerous development that threatens to “banish all unpopular speech and expression from our public sidewalks and streets.”