Concurring in the McCullen decision last Thursday, Justice Scalia joined by Justices Kennedy and Thomas and Justice Alito, concurring in a separate opinion, argued that the Massachusetts law prohibiting persons except employees, patients, police and the like from entering a 35-foot buffer zone to the streets and sidewalks around the entrances to abortion facilities was a form of content discrimination. See Dorf On Law. He gave two arguments: one is difficult for me to take seriously; the other seems dead on. Nonetheless, the conclusion Scalia draws from the existence of content discrimination strikes me as inhumane – bereft of human feeling - and is symptomatic of a disease which afflicts First Amendment jurisprudence which in this case takes a gendered form.
Justice Alito give most of his attention to Justice Scalia’s second argument. The idea is that by permitting hospital employees into the buffer zones while preventing anti-abortion advocates in the zones, the statute permits those who favor abortion into the zones while keeping out those who oppose abortion. This, so the argument goes, is content discrimination. Chief Justice Roberts answer to this argument is entirely unsatisfactory. Out of whole cloth he produces the argument that employees acting within the scope of their duties are not permitted to speak favorably about abortion when they are in the buffer zone. Really? I would have thought it was the job of employees to help the patient in this traumatic time, and that one of the ways to do so might be to address the abortion issue in a favorable way from the perspective of the employer. It comes as a surprise that the statute silently set about to regulate the speech of the employees.
Assuming the Chief Justice is speaking out of his hat, it is doubtful that this differential effect is content discrimination. The reason is that the employees are permitted to be there, not because of the content of their communication, but their status as employees of the hospital. Consider the Perry case. A union had access to the mailboxes of teachers who it represented. A rival union sought access to the boxes. The Court rejected the claim of the rival union and argued that the union with access had the status of bargaining representative and was therefore rightly given exclusive union access to the boxes. No doubt the exclusion of the rival union had differential content effects, but those different effects did not amount to content discrimination.
The other argument made by Scalia and Alito was far better. This argument at its best focuses on the purpose of the Massachusetts legislature. No doubt a part of the purpose was to prevent obstruction and physical harassment. But is it not likely that a strong part of the legislative purpose was to protect women from officious strangers who would seek to talk with them about abortion in unwanted ways at a stressful time. Justified or not, this latter purpose clearly is a regulation of content. Chief Justice Roberts response to this strikes a false note. Beyond the obvious point that the statute on its face does not discriminate on the basis of content, he supposes that the statute is confined to stopping abuses that do not flow from content such as obstruction and physical harassment, but that strikes me as a deliberate oversimplification.
So let’s assume Roberts is wrong. Why is he so obtuse? And what follows from the argument if Scalia and Alito are right. Roberts wants to avoid the content discrimination label because regulations involving content discrimination require almost-always-fatal-strict-scrutiny. It might come as a surprise that the concept of strict scrutiny was unknown to the Framers and did not appear in the First Amendment cases for most of our history. It does not appear, for example, in the cases involving advocacy of illegal action, defamation, or obscenity. Those cases wisely understood that the interest in free speech may or may not outweigh other interests when they come into conflict. So if the 35-foot buffer zone is content discrimination, it is unconstitutional; but so then would be the floating 8 foot buffer zone upheld in Hill v. Colorado, and that is what the skirmish over content discrimination is really about. That is what Scalia is bound and determined to overturn.
The Colorado regulation upheld in Hill tried to protect women entering health facilities by prohibiting advocates and the like from approaching them within an 8 foot buffer zone without permission. Scalia regards this as a First Amendment horror story. From his perspective there is no right in a public street or sidewalk to be left alone. Indeed Scalia claims that protecting people from speech they do not wish to hear is not a function the First Amendment allows the government to undertake on streets and sidewalks. He states that explicitly and when faced with the question of harassment turns the rhetoric up even higher: “Is it harassment, one wonders, for Eleanor McCullen to ask a woman, quietly and politely, two times, whether she will take literature or whether she has any questions? Three times? Four times? It seems to me far from certain that First Amendment rights can be imperiled by threatening jail time (only at ‘reproductive health care facilit[ies],’ of course) for so vague an offense as ‘follow[ing] and harass[ing].’"
So here is my answer. If Ms. McCullen approaches Justice Scalia as he approaches a fertilizer factory after being told not to, that is rude. If she does so a third or fourth time, that is harassment. But a reproductive health facility is not a fertilizer factory. And the person approaching the facility is not a swaggering bully, but a vulnerable pregnant woman at a particularly traumatic point in her life.
Colorado was well within its rights to protect such women by stating that you may not come close to them without permission (I have no stake in whether 8 feet is the right amount of space). To suggest that you have a First Amendment right to come near them when they have specifically denied permission even once, let alone two, three, or four times means that harassment is a First Amendment right (even if your are too blind to know harassment when you see it) and to suppose that our Constitution enshrines this principle is to adopt a form of First Amendment idolatry which converts that principle into a Religious principle instead of a principle of government. And it must be said that religion sacrifices women on an altar of insensitivity.