They yell "baby killer" and thrust pictures of aborted fetuses at clinic patients. Abortion protesters are perhaps the most tenacious group of activists since those in the abolition movement. When protesters show up outside of clinics, chaos often follows as they use every means at their disposal to get clinic patients to change their minds and walk away.
Running that gantlet may be deeply disturbing and uncomfortable for those trying to utilize abortion clinic services. Nonetheless, that is the price we pay for living in a free society. The Constitution intentionally chooses freedom of speech over freedom from offense.
But because abortion protesters have made such royal pests of themselves, the pro-choice community has used the political process to try to bypass some free speech protections. In some places, pro-choice activists have successfully lobbied for laws and ordinances that mandate specific distances between protesters and clinic patients. One of those laws is before the U.S. Supreme Court this term.
In 1993, Colorado lawmakers passed a statute that placed an 8-foot floating buffer zone around anyone within 100 feet of any health care facility. Under the law, no one may "knowingly approach" within 8 feet of someone outside a health care facility without consent, for the purposes of "oral protest, education or counseling."
Almost immediately after the law went into effect, a group of "sidewalk counselors" challenged it, claiming the buffer zone violates their First Amendment right to engage in peaceful protest on public sidewalks. While 8 feet might not sound like much distance, it is far enough away to prevent these counselors from handing clinic patients pamphlets or other information on abortion.
The state defends the law, saying it is necessary to protect the health and safety of women seeking heath care services. They say the law keeps patients from being assaulted or blocked by overzealous protesters. But the state went much further than needed and burdened peaceful protests along with violent ones.
The flaw in Colorado's law is that it gives the intended receiver of a message the ability to decide whether the message should be delivered. For expressive freedom to exist, speakers must be given the license to discomfort a listener. Otherwise environmentalists wouldn't be allowed to picket outside polluting power plants, gay rights activists wouldn't be allowed to confront homophobic legislators, and citizens concerned with public morals wouldn't be allowed to directly pressure television and movie producers. As the American Civil Liberties Union said in its brief before the court: "The protections of the First Amendment . . . are not limited to speech between like-minded people."
While abortion protesters can make life miserable for clinic workers and their patients, the law must act with precision. Any state is free to prohibit violent and physically disruptive acts, such as blocking clinic entrances, trespassing or jostling those entering the clinic. But states may not take prophylactic measures to prevent a melee at the expense of allowing protesters the ability to move close enough to get their message across.
Whatever one's personal view of abortion, it is important to remember that social change often comes about when people are so exercised they take to the streets to make their point. In reviewing Colorado's 8-foot buffer zone, the court is really deciding whether states, in the interest of some broad public safety rationale, may enact laws that limit protesters when they're too vociferous. In the name of freedom, the answer from the court should be a resounding "No."
Robyn E. Blumner is a Times columnist and editorial writer.