Understandable, but Wrong on Many Levels

Jeff Jacoby, asking whether our First Amendment protections "stop at 35 feet", writes about a Massachusetts law that the Supreme Court is about to review:

Early next year, the Supreme Court will take up McCullen v. Coakley, a case challenging the Massachusetts statute that requires anti-abortion protesters and "sidewalk counselors" to stay at least 35 feet away from abortion-clinic entrances. Signed by Governor Deval Patrick in 2007, it is the strictest such "buffer zone" law in the nation; violators can be punished with up to 30 months in prison and fines as high as $5,000. [links in original]

Jacoby goes on to assert that the case "isn't about abortion. It's about freedom of speech." I agree with Jacoby that the law fals to protect freedom of speech, that the law is wrong to treat individuals differently on the basis of their opinions, and that it is wrong, as he puts it, to extend "abortion clinics' proprietary rights over everything within a 35-foot radius". However, I think that laws like this are just the tip of the iceberg regarding what is wrong with our government today.

That last quote continues: "including public sidewalks and streets." Therein lies a problem much bigger the law itself. To step back for a moment, the law is clearly intended to solve a real problem: people are being made to feel unsafe going into clinics either to work or to undergo medical procedures. Yes, assault and battery are already illegal, but they do appear to "come with the territory" more with some kinds of protests than others. To a private property owner, it might make perfect sense to forbid protests in general or even just specific kinds of protests, in order to avoid the prospect. (And let me add here that no private property owner owes anyone else a platform to exercise his right to freedom of speech.)

This law is borne of that kind of thinking, but in the improper circumstance of the government owning things like streets and sidewalks, which should be privately owned (Search "qwe" on that page.). That circumstance unfortunately puts the government in the position of either infringing on the right to free speech or allowing all kinds of "protests" whose participants frequently endanger life and limb, when it  makes decisions, such as whether to allow protests. That is, by improperly owning property, the government ultimately will infringes on the rights of individuals in ways we may or may not be able to foresee.

That said, I agree with Jacoby that, so long as the government owns such property (i.e., until it is truly privatized), it has no business imposing such "buffer zones", as reasonable as such measures might be on the part of private property owners. The law should be overturned. That's the court's job. But so must our modern tolerance for a state that owns practically everything, and could not avoid (even if its officials wanted to) trampling our rights. That is a job too big for the court. That job requires cultural change spanning decades and many election cycles.

Jeff Jacoby is right to oppose this law, but he has barely scratched the surface of what is wrong with it and its larger context. Even a correct decision by the Supreme Court will leave us in a bad situation.

-- CAV