ReligiousLeftLaw.com

The Supreme Court's Coming Attack on Public Employee Unions

Released the same day as Hobby Lobby -to no public fanfare - Harris v. Quinn decided a case of little national importance on outrageous grounds purportedly rooted in the First Amendment while setting the stage for a decision of major national importance. The case raised the question whether home health workers could be forced to financially support a public union to which they were ideologically opposed. A forty year old precedent, Abood v. Detroit Board of Education, ruled that the First Amendment did not preclude the imposition of a fee to support a public employees union if they were members of the bargaining unit that the union served. In Quinn, the Court ruled that one of the interests at stake such as peace in the workplace was not implicated when the workers were spread out in many workplaces. Not unreasonable though the interest in not permitting free riders was obviously present. Undeterred by this, the Court insisted that Abood, a case that has served as the foundation of union contracts for many decades rested on questionable foundations, questionable because it did not take the First Amendment seriously enough.

In questioning Abood, the Court set the stage to impair the financial stability of public employee unions – this in a country in which the power of corporate-controlled states sadly needs a pluralistic base of dissenters. Abood is in fact a questionable decision, but not for the Court’s reasons. The case is problematic because it takes the First Amendment too seriously. It supposes that forced financial support of collective bargaining implicates the First Amendment. I do not now and never have gotten why forced taxation of this sort is speech. We are forced to pay for many things we do not like. Speech this is not.

But, you may say Buckley v. Valeo said that money was speech. Well it wasn’t. But First Amendment interests are affected by campaign finance regulations. Preventing contributions or expenditures for speech limits speech. The problem with Buckley was the failure to recognize the crucial interests in democracy and equality that outweighed the first Amendment interests in independent expenditures. Well, what about Hobby Lobby? Hobby Lobby said that forced contributions for insurance violated freedom of religion under a federal statute. True, but religious freedom extends beyond speech even to indefensible religious views of what counts as moral complicity. But what about the part of Abood I have not mentioned. Forced financial support for union political expenses violates the First Amendment. That is a correct result for the wrong reasons. The problem is not financial liberty; the problem is that government cannot through compelled financing support the political expenses of an institution that predictably will support one political party over another. But compelled financial support of collective bargaining is obviously distinguishable from supporting political speech.

Republicans have been attacking unions for many years and in recent years, public employee unions with even greater ferocity. I guess it should come as no surprise that a Republican court that has reached out to help corporations in many different contexts, would use a twisted version of the First Amendment to undermine public employee unions and strike another blow at a democracy it has done so much to dismantle.

 

A Pope and an Atheist Sit Down for a Chat

Eugenio Scalfari, aged 90, is truly one of the grand old men of Italian politics and journalism. Trained as a lawyer, he has been active in Italian Socialist causes since World War II and edited and/or founded two of Italy's most influential newspapers --L'Espresso and La Repubblica.

He has also clearly become one of Pope Francis' good friends. In late September 2013, the two men sat down for a conversation. Scalfari later published a summary of their exchange. Working from memory, trying to capture the "essence" of what the Pope had said, Scalfari published a summary that rocked the closed and cloistered world of inside-the-Vatican politics. The two men spoke about the need for social justice. The mass unemployment of the young was a tragedy and a consummate waste of human talent and promise. The Pope looked to Scalfari to make common cause on this issue.

Scalfari and the Pope reflected together on the nature of the divine -- "God is Love," the two men agreed, with the Pope connecting that point to the Incarnation. The two men went on. Believers and non-believers are alike called to work for the common good. Pope Francis assured Scalfari that it was not his intention to proselytize -- "proselytism is solemn nonsense," the pontiff announced. Instead he hoped in some small modest way to love others as Jesus had loved.

They even talked about the Vatican court, the infamous "curia." It was a place full of intrigue. The curia, Pope Francis told his friend, is "the leprosy of the papacy."

Published in La Repubblica, for almost two months the interview also stood on the Vatican website where it attracted many complaints, especially by conservative Catholics. The Vatican itself finally removed the article from the website in November, 2013. The Pope, a Vatican spokesman said, did not really mean to compare his own curia to leprosy.

The Catholic right-wing, which had clucked in disapproval now made their discontent even clearer. This was no way for a Pope to comport himself. He might sow confusion. He should speak carefully, in the old and approved forms. When the interview came down from the Vatican website, they thought they had scored an impressive triumph.

A lesser pope might have been chastened by the experience. He might have bowed to critics and thereafter steered far away from someone like Scalfari. But this is not Pope Francis' style. And so, once again, in mid-July, 2014, Francis sat down with his friend Scalfari for another talk.

Unsurprisingly, once again Francis made news. He was said to have hinted broadly that the practice of priestly celibacy -- mandatory in the Western Church -- might be reconsidered. He told his old friend that two percent of the Catholic clergy are pedophiles. He let it be known that even some members of the hierarchy were guilty of this heinous crime -- bishops, cardinals.

Predictably, the Vatican rushed out a correction. No, the Pope did not really say that there were pedophiles among the cardinals. The remainder of the interview was allowed to occupy a kind of gray area -- neither officially confirmed as accurate nor officially denied as false. Scalfari freely admitted that he took no notes and reconstructed the conversation afterwards, trying to capture its essence if not the precise words that were used.

To dwell overly much on the content of the two conversations, to ask whether this or that phrase is transcribed exactly as it was pronounced is to miss I think what is truly most important about these interviews. For it is not so much the words and the content of the interviews, but the fact that they are happening at all that is meaningful.

If we consider that there were two interviews, that the second one occurred even against the backdrop of a great deal of criticism directed at the first interview, then several features are worth noting:

First, Pope Francis and Eugenio Scalfari are plainly friends. They like each other. And in their friendship they might be said to reflect the way in which the secular and the religious spheres might find common ground. The secular world and the realm of faith are not irreconcilable. So, how might these two worlds come to know each other better?

Again, I think a focus on the fact that these conversations occurred suggests ways in which the spiritual and the secular might cooperate, and that is through sincere and respectful dialogue. Women and men of faith must not take as their default position hostility towards all things secular. They must instead recognize the humanity of their conversation partners. They must show their emotions and share their vulnerabilities. They must in other words bare their souls. Such earnestness, Scalfari's response illustrates, will be met more than halfway. Both sides in this conversation must appreciate their shared priorities -- they must work for a world of justice and mercy, a world of love that crosses boundaries and worldviews. They must, in other words, show respect. They have more in common than they realize.

If friendship, dialogue, and respect are among the lessons to be drawn from these conversations, a final feature is also worth noting. Here, as in so much else he has undertaken, Pope Francis is rewriting the rules on how to be a pope for the modern world. Popes of the last two centuries have watched their words carefully. Their speech follows certain prescribed rules -- encyclicals are solemn, apostolic exhortations a little less so, allocutions and sermons just slightly more relaxed. What Pope Francis is doing fits none of these rules. What he is doing, rather, is what his namesake, St. Francis instructed his followers to do: teach first by example and use words only when necessary. He is doing nothing less than modeling the relationship of Church and the world.

Cross-posted at: http://www.huffingtonpost.com/charles-j-reid-jr/a-pope-and-an-atheist-pope-francis_b_5614052.html 

Expel Palestinians, populate Gaza with Jews, says Knesset deputy speaker

From Ali Abunimah’s blog at The Electronic Intifada:

“Israel must attack Gaza even more mercilessly, expel the population and resettle the territory with Jews, the deputy speaker of Israel’s parliament, the Knesset, has said. Moshe Feiglin, a member of Prime Minister Benjamin Netanyahu’s ruling Likud Party, makes the call in an article for the Israeli news website Arutz Sheva. Feiglin demands that Israel launch attacks ‘throughout Gaza with the IDF’s [Israeli army’s] maximum force (and not a tiny fraction of it) with all the conventional means at its disposal.’

Force Gaza population out

‘After the IDF completes the “softening” of the targets with its firepower, the IDF will conquer the entire Gaza, using all the means necessary to minimize any harm to our soldiers, with no other considerations,’ Feiglin writes in one of several calls for outright war crimes.

Following the re-conquest, Israel’s army ‘will thoroughly eliminate all armed enemies from Gaza. The enemy population that is innocent of wrongdoing and separated itself from the armed terrorists will be treated in accordance with international law and will be allowed to leave,’ Feiglin writes.

‘Gaza is part of our land’

‘Gaza is part of our Land and we will remain there forever,’ Feiglin concludes. ‘Subsequent to the elimination of terror from Gaza, it will become part of sovereign Israel and will be populated by Jews. This will also serve to ease the housing crisis in Israel.’

Feiglin has a long history of incitement. Last week he expelled Arab members of the Knesset who dared to criticize Israel’s ongoing slaughter in Gaza and called for Israel to cut off power to dialysis patients there.

As of now, ninety percent of Gaza is without electricity, journalist Mohammed Omer reports, and most Palestinians in Gaza are getting as little as two hours of electricity per day.” [….]

Comment: Should this be construed as incitement of genocide? Incitement means “encouraging or persuading another to commit an offence.” Incitement is only prohibited in international criminal law with regard to genocide, owing to its gravity and heinous nature. Incitement is criminalized as such, as Cassese informs us, “even if it is not followed by the commission of genocide.” Incitement must be both “public” and “direct.” Feiglin’s remarks meet the first condition,* and insofar as his statements are provocative and not vague and indirect, it appears to involve this second condition as well. Yet, as Larry May explains,

“The ICTR’s (International Criminal Tribunal for Rwanda) Akayesu Trial Chamber is forthright in recognizing that the intent of two different people must be proved (emphasis added): ‘It implies a desire on the part of the perpetrator to create by his actions a particular state of mind necessary to commit such a crime in the minds of the person(s) he is so engaging.’ There is a desire to create in others a desire to commit a crime. And because of this odd type of mens rea, the crime of incitement to genocide is especially hard to prove, because in effect we must peer into the mind[s] of two different people, or infer from their behavior what the mental states for two different people are.”

May also points out that while the same Trial Chamber required proof of direct causation between propaganda or incitement and the commission of a specific offence,“the ICTR Media Case Trial Chamber concluded ‘that this cause relationship is not requisite to a finding of incitement. It is the potential of the communication to cause genocide that makes it incitement.’” This is further distinguished from mere “hate speech” in several rulings. Moreover, the break with successful instigation of genocide renders this an “inchoate crime,” a category that also includes attempt, conspiracy, and solicitation.

Addendum: See Feiglin’s comments on Arabs and Palestinians at his Wikipedia entry.

Update: Over at Opinio Juris, Kevin Jon Heller states, correctly no doubt, that “Feiglin is advocating the forcible transfer or deportation of the Palestinians — commonly referred to as ethnic cleansing — not genocide.” In other words, he is urging behavior that amounts to “a crime against humanity,” although there is not, as with genocide, the inchoate crime of incitement to ethnic cleansing. In addition, because Feiglin writes that “[a]ny place from which Israel or Israel’s forces were attacked will be immediately attacked with full force and no consideration for ‘human shields’ or ‘environmental damage,” Heller notes that he is also “urging Israel to commit war crimes against the Palestinians.”

* See Antonio Cassese, International Criminal Law (New York: Oxford University Press, 2^nd ed., 2008): 229-230, and the discussion in Larry May’s Genocide: A Normative Account (Cambridge University Press, 2010), especially pp. 180-201

A voice from “the generation that failed” speaks on ending the Israeli-Palestinian conflict

(Jack Guez/AFP/Getty Images)

Raja Shehadeh, a founder of Al-Haq,* proffers advice to the Palestinian leadership in this piece from the London Review of Books, ending with a succinct proposal on how to end the Israeli-Palestinian conflict (i.e., the ongoing historic conflict, not the recent escalation of violence). I’ve copied a good portion of the article below which, unfortunately, is available online only to subscribers.

[….] “After the 1967 war, Israel spread the word that its occupation of Palestinian lands was the most benevolent in history, even if the ungrateful Palestinians refused to accept it. Those who actively resisted were called fedayeen; but Israel’s word for them was mukharebeen, which is what you call a naughty child in Arabic – anta mukhareb, ‘you are a spoiler.’ What, I wondered, were we spoiling? Then I realised that Israel was putting things in order for us and for them and we were spoiling it. Eventually, when George Bush declared the ‘war on terror,’ we graduated to being irhabyeen, ‘terrorists,’ every one of us, without exception. In Israel’s eyes we are all potential terrorists. And we are all here by permission of the Israeli state. Those who have a Palestinian passport are no different: the number on that passport is assigned to us by Israel and recorded in its security files and databases. Israel can on a whim forbid anybody to return home simply by revoking their residency. This is now the status of all Palestinians in the Territories and East Jerusalem. We are all infiltrators living where we aren’t supposed to live.

By 1987 the number of mukharebeen had greatly increased in the Occupied Territories. Most of us were spoilers. We used every non-violent method and some violent ones to show that we’d had enough of occupation: the First Intifada had begun. Our insistence on a military struggle had brought no results. It was the non-violent uprising of 1987, waged inside the Occupied Territories, that forced Israel to the negotiating table. In 1991, four years after the Intifada began, Israel was persuaded to attend an international peace conference in Madrid, which was followed by negotiations in Washington between the Israelis and a Palestinian delegation. But the leadership outside the Territories failed to recognise the role those of us living under Israeli rule had played in the civil struggle, as I was to discover when I took part in the negotiations as a legal adviser. Incidentally, I remember Edward Said coming to Washington to offer his services to the delegation only to be sent away. He could have played a crucial role, explaining to the American public what these negotiations were about. What sort of leadership refuses an offer like that?

Throughout the year I spent in Washington, and for some time afterwards, one question kept nagging at me: how did Israel succeed in using more or less the same tactics against the Palestinians and their property in 1967 as they had used in 1948? Why had the Palestinians not learned how to foil those tactics? Israeli military orders dealt with every aspect of life in the Occupied Territories as well as organising relations between the Palestinians – some but not all of them Israeli citizens – and the Jews who’d settled there. It was clear that Israel’s strategy in the negotiations was to hang on to as many of these orders – there were almost a thousand – as possible. Different orders applied to the two groups, discriminating between them in terms of allocation of land, use of natural resources and opportunities for development and growth. Marching in step with the military orders, Israeli laws were imported into the Occupied Territories and applied exclusively to the settlers. There had to be separate and unequal development – apartheid – if the Jewish settlements were to flourish. I had spent a year desperately trying to impress on the Palestinian leadership the need for a legal strategy based on a review of Israeli military orders when instructions to desist arrived from Arafat’s headquarters in Tunis: acknowledging the existence of military orders would only give them legitimacy. I packed my bags and went home.

After I left Washington I remained intrigued by the Palestinians’ and Israelis’ very different attitudes to the law. I began exploring each side’s legal narrative. A legal narrative – how people tell the story of their rights – is a construction: for it to stand it must have consistency and its own internal logic, as well as external reference points to which others can relate. And it must be communicable. In the Occupied Territories Israel has expressed its narrative mainly in terms of military orders, which it has successfully kept in force. The Palestinian leadership’s thinking on legal matters is characterised by a search for absolutes, apparent in the excessive stress they put on recognition of the PLO, believing that if the Israelis recognised the organisation they would somehow also be recognising its programme of self-determination.

The thinking is abstract: it takes no account of the shifting legal ground over which negotiations are conducted, and fails to anticipate the other side’s legal case, which makes it unable to respond adequately. At a meeting of the Palestinian National Council in Algiers on 15 November 1988, the PLO recognised the need for an international conference whose aims would include ‘the annulment of all measures of annexation and appropriation and the removal of settlements’. But it failed to devise a strategy for achieving this goal. Instead, the 1993 Declaration of Principles and the 1995 Interim Agreement between Israel and the PLO provided for the military orders to remain in force. Though it remained undeclared, what was in fact being preserved was a system of apartheid.

To this day Jerusalem demonstrates the inability of Palestinians to fight their cause by legal means, in stark contrast to the Israelis. After 47 years of Israeli rule Jerusalem is organised, run and designed for the sole benefit of Israeli residents, particularly settlers in and around Arab East Jerusalem, with a shrinking ghetto assigned to disenfranchised Palestinian residents. Israel never announced it was annexing the West Bank; as for its incremental control of Jerusalem, it too is discreet, sometimes brutally so. Compare the struggle in 2012 to win nominal recognition at the UN for the state of Palestine, even though the Palestinian Authority has no territorial sovereignty. Israel’s struggle takes the form of persistent, low-level administrative actions; the PLO – and now the Palestinian Authority – have lofty, abstract aims that have great resonance but are almost empty of practical meaning. The wish to entrench its virtual acquisition of a state sometimes manifests itself in physical terms: for example, the construction in Ramallah of a million-dollar presidential palace for visiting dignitaries who come to pay homage to the putative head of a state yet to be born.

This difference in approach to law and nation-building doesn’t of itself explain the defeat of the PLO in negotiations with Israel. Almost equally important is the fact that the experience of the Palestinian people under occupation meant little to Palestinians living elsewhere, including our leaders in exile. One kind of struggle, that of the glamorous, sometimes desperate fedayeen in the camps, prevailed at the expense of others, but it wasn’t because of a dearth of information from Palestinian organisations in the Occupied Territories. [….]

The negotiations that began in July last year between Israeli and Palestinian representatives under American patronage took place behind closed doors and between two hugely unequal sides. There was no prospect of international law being applied. Israel decides most aspects of Palestinian life as well as the very existence of the Palestinian Authority. Were there a powerful third party prepared to invoke the Fourth Geneva Convention and the enforcement mechanisms it provides for, Israel would be forced to withdraw and to reverse the consequences of its illegal occupation. But the third party is biased. Polling shows that most Israelis oppose withdrawal to pre-1967 ceasefire lines, even if land swaps were agreed to accommodate Jewish settlements. A number of observers on both sides have noted that the most any Israeli leader is prepared to offer is less than the minimum that any Palestinian leader could ever accept.

What can be done to end this conflict? I would argue for a two-pronged approach. Israel must be made to realise that the failure to apply international law will not last forever and that occupation will begin to exact an economic price; but it also needs to see the benefits it can derive from making peace. For the moment the Israelis show no sign of getting over the dangerous euphoria that was a result of their victory in the war of 1967 and continue to believe what Moshe Dayan, the minister of defence, declared at the time: that Israel is now an empire. Why should this empire, the sixth biggest exporter of weapons in the world, submit to international law? For the time being the Boycott, Disinvestment and Sanctions movement seems to me a necessary tactic. I can’t exaggerate the relief I’ve felt now that it’s clear that I wasn’t criminal, mad or naive when I used to call for the enforcement of international law. Recently, in response to corporate accountability rules, several European banks and the Norwegian government’s pension fund have started to withdraw investments from Israeli companies involved in the settlements while the Norwegian Council on Ethics has recommended excluding Israeli companies ‘due to … serious violations of individual rights in war or conflict through the construction of settlements in East Jerusalem.’ Yet high levels of investment in Israel have been the norm for close to half a century, despite the fact that the international law relating to occupation is fundamentally unchanged. Why has Europe only now discovered that Israel is in breach of the law?

If disinvestment continues, Benjamin Netanyahu will turn out to have been over-confident when he declared in February that world demand for Israeli high-tech goods would enable the country to outflank the boycott. But the boycott is a means, not an end. The objective is to overcome the anger and hatred that fuel exclusion, partition and separation. Once Israel begins to apply international law, the political outcome, whether one state, two states or a confederation with other states in the region, should be resolved by referendum. And once people’s rights are recognised, all kinds of possibility begin to open up.

In 1993 I realised how quickly things can change. Just before the Oslo deal was signed, young Palestinians were saying that they would fight Israel to the last day of their lives. But once the deal was signed and began to offer a glimmer of hope the tone changed. You heard them say: Yikhribbeit el hjar, ‘to hell with stone-throwing.’ Reminded of their earlier position they said in their defence that they wanted a better future and a chance to live in peace with the Israelis. Prominent among those who went through this transformation and put their faith in the peace process was the Fatah leader, Marwan Barghouti, in his early thirties at the time, who is now serving several life sentences for allegedly leading attacks against Israel. It is a mistake to hold the young to the values we were proud of during the First Intifada, the golden time of struggle. To them we are the generation that failed.”

* Al-Haq is an independent Palestinian non-governmental human rights organization based in Ramallah, West Bank that was established in 1979 to protect and promote human rights and the rule of law in the Occupied Palestinian Territory (OPT). The organization has special consultative status with the United Nations Economic and Social Council.

Further reading: My bibliography for the Israeli-Palestinian conflict is here. I have related bibliographies on “the Modern and Post-Modern Arab World,” “the Bedouin,” and “Zionist ideologies.”

Secular Liberals and Hobby Lobby

I am puzzled by the selective tolerance of secular liberals. These liberals are prepared to protect speech involving depictions of animal cruelty, gruesomely violent video games sold to children, and the intentional infliction of emotional distress at military funerals. They would also agree that the state should not compel people to violate their conscience without substantial justification.

Although the Court’s decision in Hobby Lobby makes clear that none of the involved employees would be denied access to insurance coverage for contraceptives, most secular liberals would deny the freedom of religion claim. I respectfully disagree with one of their main reasons and strongly disagree with another.

I understand the argument that a corporation is not a person. A corporation has no conscience. On the other hand, religious organizations including corporations have freedom of religion rights. The question is whether a for-profit corporation (which liberals typically want to engage in some social justice work) should have freedom of religion rights when all of the owners object to an activity on the basis of conscience. I think to deny the freedom of religion right on the ground that the business is a corporation rather than a partnership elevates form over substance. Moreover, I do not see how the recognition of the possibility of rights in this context opens a door for large corporations. The need for owner unanimity (which I would impose) forecloses that possibility. I do not read the Court’s opinion as contemplating majority rule in the case of for-profit corporations.

The argument that I do not respect is the claim that the law here does not impose a substantial burden. Everyone on the Court agreed that the owners of Hobby Lobby are sincere. I am not sure whether it was part of the record that the Hobby Lobby’s 401 (k) plan has $73 million invested in mutual funds that invest in the very contraceptives to which they morally object! See here. I would like to hear an explanation of why the owners are morally precluded from offering insurance that includes certain contraceptives, but not precluded through their investments from making money off the sale of those contraceptives. I would be on a higher horse regarding this point if I were not an investor in index funds which must include however indirectly many loathsome companies and products.

I also worry that the sincerity of many on the right is politically corrupted. I think the hatred for Obama has helped fuel the religious objections which does not mean that the objectors are insincere. It does mean that many objectors got to these views by a corrupt process.

But the question whether a burden is substantial does not get started without sincerity and everyone on the Court conceded sincerity. So let us assume the owners’ sincerity.  How does one support the view that the burden on the owners is not substantial? In the end, the argument in my view ultimately rests on a simple disagreement with the owners’ views. Of course, it is easy to disagree. The owners in the end are being forced by the government to make funds available in the form of insurance for medical care including contraceptives. The contraceptives at issue would be used if, but only if, women make the choice to use the particular contraceptives to which the owners object.  Making money available for immoral purposes is a part of our daily tax life. To conclude that obeying this government regulation is foreclosed as a matter of conscience is morally precious to say the least. And the argument that notifying the insurance company of the moral objection is also morally foreclosed strikes me as what Catholics ordinarily characterize as an excessively scrupulous conscience.

My point, however, is that even if the moral claim is crazy, it is still a substantial burden to force someone to engage in conduct that violates their conscience. It is not up to government to officially declare that a religious objection is a false objection. Please understand. I am not saying that freedom of conscience should always prevail. Freedom of conscience should give way in the face of a significant interest in many cases. If women, for example, would have been denied access to contraceptives (the ones at issue would cost a month’s pay of a Hobby Lobby worker), that interest in my view should have overridden the freedom of conscience claim. But that was not the case here.

So I am left to wonder. Why protect those who traffic in depictions of the abuse of animals and the like, but not protect the conscience of conservative Christians?

Modern Iran: A Basic Bibliography

My latest compilation is Modern Iran: A Basic Bibliography.

Vulnerable Women Seeking Abortion and Scalia's Belief That Harassment is a First Amendment Right

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.