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Editorial: In Massachusetts, a reasonable balance between free speech, public safety

This week, the U.S. Supreme Court heard arguments challenging a 2007 Massachusetts law that created a 35-foot, protest-free buffer zone around the entrance to facilities where abortions are performed.

Past court decisions have upheld the right to impose modest restrictions on the exercise of free speech rights for reasons of public safety, but the court under Chief Justice John Roberts has yet to hear such a case. That has people who want to safeguard the constitutional right of women to receive health care services, including abortion, without having to run a physical and emotional gantlet of protestors to do so, worried. They should be. The new court’s majority could see the balance between First Amendment rights and the right to health care services free from harassment differently.

Striking that balance isn’t easy, particularly for those who, like us, consider First Amendment rights to be first among rights. No inhibition, let alone prohibition, of speech must be permitted for any but the worthiest reasons, and it must be as minimal as possible. The Massachusetts law meets that test.

The court’s decision will be important to the Concord Feminist Health Center and similar facilities. It’s been a few years since shouting, sign-wielding demonstrators waved rubber fetuses at women entering New Hampshire clinics, but the protests, and the national campaign to outlaw abortion, haven’t ended. At times, abortion protesters and women’s rights proponents clash. A Massachusetts-style law, should New Hampshire or its communities adopt one, would apply to all. No one, whether pro or con, could remain within the buffer zone to “counsel” patients, but anyone would be free to linger and engage in conversation outside the zone.

The law is neutral as to the content of speech within the zone and, unlike unreasonable requirements designed to keep protesters far from those they seek to address, does not prevent speech. Signs can be read and voices heard inside the buffer zone, but intimidating nose-to-nose confrontations are prevented.

Last summer, a petition signed by nearly 50 people, including volunteers who escort women past protesters and into the Concord Feminist Health Center, asked the Concord City Council to create a 35-foot buffer zone around the center’s entrance. City Attorney Jim Kennedy wisely advised the council to see how the high court ruled before acting on the request. Kennedy also suggested that, should the court uphold the Massachusetts law, it might be better for the Legislature to act. We agree. It would avoid the confusion created when different cities adopt different restrictions.

Buffer zones have passed legal muster when the restrictions are minimal, the limit on speech neutral as to content and the government’s interest – in this case the protection of public safety – legitimate. To prevent voter intimidation, for example, electioneering is prohibited within a 10-foot-wide corridor leading to the entrance to polling places. A 2007 New Hampshire law designed to protect the sanctity of funeral services bans protests within 150 feet of the funeral location during, and for one hour before or after, the services, along with noisemaking that disturbs the peace during the funeral. A federal law sponsored by then-U.S. Rep. Charlie Bass, does the same for military funerals, but sets an overly-broad 500-foot buffer that deserves to be challenged.

The Massachusetts law regulates free speech around health care facilities in a time, place and manner that is reasonable. Should the high court agree, the New Hampshire Legislature should adopt its own version of the law.

Legacy Comments3

Paragraph 2: "... the court under Chief Justice John Roberts has yet to hear such a case." NOT ENTIRELY TRUE. The court under Chief Justice Roberts has seen this case before and refused to hear it initially. Most of the changes in the Court’s membership had occurred by then: that is to say, March 2010. And there is enough difference between the Massachusetts law and the one at issue in Hill v. Colorado that that precedent does not appear to be in real jeopardy anyway. Paragraph 4: "It’s been a few years since shouting, sign-wielding demonstrators waved rubber fetuses at women entering New Hampshire clinics ..." INCORRECT. Location scan reports at the City of Concord Police Station and the City of Manchester Police Station do not support this statement.

As one who greeted patients at a health centre in Manchester, please note NH does in fact have its screaming protesters who use various props and signage to make their point. I've watched someone go onto neighbouring property, along the 6 foot high dividing fence, and shout at people sitting in a car parked on the other side. I've been called baby killer and murderer. So too the patients arriving. I've had my faith challenged. I've seen too many patients reduced to tears, and others who were so infuriated they were ready to fight. It is ironic that people who claim to be for the right of free speech wish to squelch the right of self-determination over one's own body.

I see you point but I bet that you support Obamacare. Where is the "right of self determination over one's body" come into play with Obamacare.

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