I haven't read it yet, so I'm talking out of my ass here but I'll try to guess based on how I would reason.
1. It matters because it's not about whether someone is electing their right to speak, but rather, whether people have an equal opportunity to speak. Even if the workers don't typically do it, they still have a right to speak. They could, and I imagine at least one of them has exercised a right at some point or another, or will find a reason to need to do so. Because of that, it's unconstitutional to give one group a right to speak on public grounds, require another group to be silent, and the deciding factor for that is their speech.
If the law said that only Republicans can broadcast political ads on NPR, and they chose not to broadcast on NPR, would that law be OK simply because they decided their money would be better spent elsewhere?
2. The problem there is two-fold. It requires the government to analyze what speech is necessary to do the job, and what speech is not. It is not only administratively unfeasible, but would create a nightmare and a litigation breeding ground. Second, it's public property, not private. The government doesn't have to give private businesses exclusive right of use of its property.
Thank you so much. I need to process this all a bit. The bolded was especially helpful to me.
MA set back the movement here with their badly constructed, well-intentioned law. I'm starting to see what Cicero meant in her earlier comment about its poor writing.
Because it's still speech, even if part of your job. If they are saying, hypothetically, "abortion is awesome and you'll totally go to heaven just for getting one" and someone else is in that same space saying "abortion is evil and you're going to hell" the government would be saying its OK to tell someone abortions are awesome but not that abortions are evil. Thus saying its only OK to speak one viewpoint.
lol, I am probably frustrating you, and I swear I don't mean to be difficult and I'm not trying to argue with you, only the position. Just, this is exactly what I mean by pre-supposing their speech.
My saying it doesn't presuppose is because the Court held that the law was content neutral.
EtA: I'm also on the app so typing long responses is difficult.
Okay, so just from the syllabus, I think this is one of the key quotes.
“[E]ven in a public forum,” however, “the government may impose reasonable re strictions on the time, place, or manner of protected speech, provided the restrictions ‘are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a signifi cant governmental interest, and that they leave open ample alterna tive channels for communication of the information,’ ” Ward, supra, at 791. Pp. 8–10.
So the way to write the law would be to limit ANYONE from photographing or videotaping a patient without the patient's consent while the patient was approaching or leaving a health clinic of any kind; requiring that any and all speech within 35 ft of a health clinic be conducted at a conversational volume without the use of augmentive devices such as bull horns or megaphones of any kind; that interaction with patient approaching ANY health clinic not impeded a patient's progress or prevent their entrance to or exit from the clinic...
There are a lot of ways you could do this that would allow employees to do their jobs and would shut down the protestors simply because employees aren't engaging in the same conduct.
so MA, or any state legislature, can construct new laws in the wake of this ruling to work around the setback. I asked about that earlier, so this appeases me.
Although several of us, including ESF, seem confused on whether buffer zones themselves are considered Constitutional any longer or not.
I still maintain that your right to speech does not guarantee you a fucking audience, though.
The only local story I'm seeing so far is from Boston dot com so take it for what that's worth. It just says that the protests were only happening at the Boston site, and only on Saturdays. And they (govt) can't curb speech on the public sidewalks. It states the buffet zone was enacted partially due to the 1994 killing of PP employees.
If I see anything else local I'll report.
Women's Health Services in Brookline also gets protesters as do the clinics on the north shore, though the clinics on the north shore far and away get the least protesters. WHS had issues with protesters messing up business for their neighbors when they moved a few years ago. I'm pretty sure the Globe reported on it
It seems like all of the lawmakers are on board with figuring out a way to protect it per the Herald of all places. I feel damn lucky to live in a state where lawmakers view it as a priority to figure something out rather than adding another barrier to access
I haven't read it yet, so I'm talking out of my ass here but I'll try to guess based on how I would reason.
1. It matters because it's not about whether someone is electing their right to speak, but rather, whether people have an equal opportunity to speak. Even if the workers don't typically do it, they still have a right to speak. They could, and I imagine at least one of them has exercised a right at some point or another, or will find a reason to need to do so. Because of that, it's unconstitutional to give one group a right to speak on public grounds, require another group to be silent, and the deciding factor for that is their speech.
If the law said that only Republicans can broadcast political ads on NPR, and they chose not to broadcast on NPR, would that law be OK simply because they decided their money would be better spent elsewhere?
2. The problem there is two-fold. It requires the government to analyze what speech is necessary to do the job, and what speech is not. It is not only administratively unfeasible, but would create a nightmare and a litigation breeding ground. Second, it's public property, not private. The government doesn't have to give private businesses exclusive right of use of its property.
Thank you so much. I need to process this all a bit. The bolded was especially helpful to me.
MA set back the movement here with their badly constructed, well-intentioned law. I'm starting to see what Cicero meant in her earlier comment about its poor writing.
This is really what it's about. I took a feminist jurisprudence class in law school that was taught by a lawyer for the National Women's Law Center. In addition to talking about the law, one of her regular points was "Good facts make good law, bad facts make bad law." It is so true.
One of the reasons litigation advocacy groups try to coordinate is because they fear that one bad set of facts will be the one that makes it to the top and screws everyone else out of their hard work. They do this on all sides. The advocacy groups coordinate with the various state field offices and local chapters of sympathetic organizations to find the most sympathetic plaintiff with the worst law, and poor their resources into that. The goal is to get a series of small victories and just keep building and building to shift the law. There's a tremendous amount of strategy involved in how they pick and choose cases to support. All the big groups do it, from the ACLU to the Chamber of Commerce.
So the Pro-Life side no doubt saw this case as a slam dunk because of the poorly written language, and just pounced. They wouldn't have tried to take a more carefully crafted law beyond the district court (if they even challenged it at all) because it's a waste of resources and a huge risk that it could backfire with a ruling that will set you back.
so MA, or any state legislature, can construct new laws in the wake of this ruling to work around the setback. I asked about that earlier, so this appeases me.
Although several of us, including ESF, seem confused on whether buffer zones themselves are considered Constitutional any longer or not.
I still maintain that your right to speech does not guarantee you a fucking audience, though.
I think you can still have buffer zones. So, you could say, X conduct is not permitted by anyone within 35 feet of a health care facility. And then that conduct would maybe reference photography, volume of voice, or that stuff. Given the ruling, though, I think the focus on the buffer zones does become somewhat irrelevant because the thing you are trying to do now is limit specific conduct period. You're not trying to clear space, as it were. Having additional more strict or more specific conduct limitations within a specific "buffer zone", though, might actually help you meet a strict scrutiny standard because then the opposition can't say that they don't have any other way to convey their message to you. Go stand on the other side of the street with your "helpful counseling pamphlets" and if patients want to read them, they can come to you.
Hmmmmm.
I think they might have a problem getting some ideas through. The opposition could easily say it is redundant of FACE and additional legislation is therefore not necessary. Also, I think I remember reading about the introduction of FACE that the volume control thing could not be included because of 1st Amendment.
I think there needs to be a clear legal definition of "protesting" (which is also of course not covered by FACE). Because the line between protesting and harassment is completely and unfairly obscured on this topic.
I saw this pop up on SCOTUS blog this morning and was confused/concerned about the ruling, but I didn't have time to really look into it. This was super helpful information. Going off of one of SBP's post, I wonder if MA will need to (or try to) prosecute people with their current laws, in order to prove it is impossible or unfeasible, before enacting another law? Or will they just model a new buffer zone law like NY?
Post by ChillyMcFreeze on Jun 26, 2014 14:35:01 GMT -5
I'm eager to read the opinion when I'm not on my phone. I tend to favor rulings that protect speech even if the speech protected is offensive to me. So good on the Court this time.
While it seems to have been the right choice from a legal standpoint, it's still concerning from a "harassment of women" standpoint. I mean, I guess the MA legislature should have been a bit narrower in scope when they wrote the law, but now this opens up a can of worms.
I just got emails from both NARAL and PP about this "shocking disregard" for American women and their safety and ability to choose, yadda yadda.
Yep. Donating right now.
I do not understand how there is no compelling state interest here.
You guys know that Jermys and I are regularly in and out of an abortion clinic. I don't know that we're impacted, exactly, because our state doesn't have a buffer law being struck down right now. But this kind of shit energizes these people, who are terrible at best and terrifying at worst, and I am distinctly uncomfortable with this newly-unleashed access to escorts/employees.
In fact, I predict an imminent shitstorm at the clinic in question. MA locals, let us know if there's any news footage. I bet they will be violating FACE within minutes if it hasn't already happened. I also predict more violence in the next couple years, likely as a direct result of this decision.
I feel incredibly lucky that my clinic has a large, private parking lot, in which the protesters aren't allowed to step foot. And I also feel lucky that for the most part, they're all old as shit and mostly chanting the rosary. The really crazy one was chasing one of the women who works at the clinic and stepped in a hole and broke her ankle, and hasn't been back since. It's been nice.