In the 1930s, Jersey City's notorious mayor, Frank "Boss" Hague, denied permits to union organizers, preventing them from holding meetings or distributing literature in streets and city parks. Hague blasted labor activists as unpatriotic Communists, and many residents —
And just as the First Amendment protects the speech of civil-rights marchers and labor organizers, it protects the speech of Holocaust deniers and antiwar demonstrators, of same-sex marriage advocates and flag-burners. It protects the odious Westboro Baptist Church fanatics who mock the dead at military funerals. It protects the Lyndon LaRouche cultists with their disgusting Obama-as-Hitler posters.
And with equal vigor it protects both pro-life and pro-choice speech.
Which is why the Massachusetts zone of exclusion is such an affront to the Bill of Rights.
To be sure, no constitutional liberty is absolute. It is well-established that impartial "time, place, and manner" restrictions may lawfully curb speech in a public forum. But such restrictions must be scrupulously content-neutral and the Massachusetts law plainly is not. It applies only to abortion clinics — not to all medical facilities — so the only kind of speech it effectively restricts is speech related to abortion.
Even more egregious is the law's explicit exception for all "employees or agents" of the abortion clinic while "acting within the scope of their employment." It's hard to imagine a less impartial rule. Someone wishing to talk to a pregnant woman about alternatives to abortion is forced to shout from 35 feet away; someone on the abortion-clinic's payroll can move at will within the buffer zone, with no speech restriction at all. Like any private business, abortion facilities are perfectly free to exclude protesters, critics, or anyone else from their own premises. But Massachusetts in effect has extended abortion clinics' proprietary rights over everything within a 35-foot radius, including public sidewalks and streets.
Worse yet, the law doesn't let pro-life speakers approach even pregnant women who want to hear their message.
McCullen v. Coakley isn't about abortion. It is about the denial of free speech rights for one side — and only one side — of one the most unsettled controversies in American life. Even in Massachusetts, that's unconstitutional.