On Commonwealth Avenue in Boston, the casual passerby may not notice a big yellow circle painted on the sidewalk in front of a nondescript building. It only takes a few seconds to cross the circle, but the fate of those few hundred square feet — now in the hands of the Supreme Court — may transform the use of public space.
The yellow line encircles a buffer zone mandated by Massachusetts state law in 2007 to prevent protesters from harassing women who are entering abortion clinics, physically preventing them from going in, and worse — in 1994, an abortion opponent shot and killed two clinic workers in the Boston suburb of Brookline.
Last year, the Supreme Court agreed to hear a challenge (McCullen v. Coakley) to the buffer zone law, and universal consensus of court pundits is that the court will strike down the law on free-speech grounds. The decision should be announced soon.
Though arguments were attuned to the underlying agenda — making abortions harder to obtain — the case turns on how public space is used for speech. Freedom takes no more fundamental form than when citizens make their case to other citizens within our public spaces, and this case could muddle, if not seriously impair, free-speech rights in public places.
The Massachusetts law was aimed at protecting abortion clinic clients while assuring the rights of protesters to engage them. The harmless-looking, elderly lead plaintiff, Eleanor McCullen, claims that the 35-foot buffer is too large because it keeps her from engaging in what she deems “friendly conversation” with women entering the clinic.
In reality, the buffer does almost nothing to defeat McCullen’s purpose. Some of the buffer zones are smaller — only 22 feet in McCullen’s chosen location because the zone is measured from the clinic entrance not the property line, which activists can be prevented from crossing in any event. Since McCullen could be heard for several feet into such a zone, the amount of space of free-speech concern is tiny, but that didn’t stop her lawyer, Mark L. Rienzi, from characterizing the buffer as “a dramatic restriction of First Amendment rights.” Further, Justice Kennedy deflected the discussion from the obvious point that she could conversationally engage any woman approaching the clinic on the sidewalk outside the buffer zone.
Rienzi’s absolute claim fails to recognize how public space works. “Sidewalks are hybrid spaces,” said Jerold Kayden, a Harvard urban planner and lawyer, who has participated in important land-use cases, “spaces of competing interests.” People are entitled to move along sidewalks unimpeded, and entitled to avoid speakers if they choose. The Court has long recognized that officials can regulate the “time, place, and manner” of speech if it serves a public purpose, prohibiting protesters from wandering traffic lanes to get the attention of drivers, for example, or herding Occupy Wall Street protesters into a plaza readily avoided by the targets of their wrath.
Jennifer Grace Miller, defending the Massachusetts law, reminded the court that the Constitution guarantees no one “any specific form of communication.” The courts have avoided such micromanaging of free speech, though it might be justified if the street was the primary or only means by which speech on abortion was conducted. Of course, the abortion debate is robust and ubiquitous in every forum. Yet Justice Scalia seemed determined to establish a guarantee of the right to be heard for those who counsel rather than yell.
In theory, a decision to strike down the buffer zone law because it didn’t give speakers sufficient access to their targets would lead to far uglier confrontations in public spaces, since officials would have to defer to the terms of engagement speakers seek.
How intimately may ostensibly polite neo-Nazi Holocaust deniers engage with worshippers approaching a Jewish temple? Can Occupy protesters be kept from politely conversing with executives in public limo lanes that front the Goldman Sachs headquarters?
Wouldn’t the Supreme Court itself have to permit people to tastefully advocate their cause on the steps and public plaza that front the court — free speech currently prohibited?
Giving advocates more power to access intended targets on their own terms could enhance voices that are little heard. “If I can’t be in your face, then a lot of the power of free speech is eroded,” Kayden said. Justice Scalia ran away from that reading when he argued that the 35-foot buffer “might not be bad,” for protesters, but wouldn’t be acceptable if it barred “counseling.”
If “conversation” demands special deference from officials but “in your face” confrontation doesn’t, what looks like a determination to broaden access to free speech (the logic behind the widely criticized Citizens United decision), becomes an act of hair-splitting that carves out a special status for speech certain justices prefer be heard.
Don’t look for perfection on the clamorous public street, Kayden advises. “In daily life, we want to be free from having people force their views on us,” he explained, “And yet we must accommodate free speech. The two freedoms clash, and so we must continually try to balance them. It’s inescapable.”
James S. Russell is an architecture critic, journalist and author of The Agile City: Building Well Being and Wealth in an Era of Climate Change. He blogs at jamessrussell.net.