45 Words and the Sidewalk

Last summer “Blowin’ in the Wind” went on a road trip around the US.  This summer we intend to spend some weeks traveling on the “road map” of US civil liberties, the First Amendment to the Constitution. It’s only 45 words long, but its “Five Freedoms” determine very many key and contentious Supreme Court decisions.  This past week the court ruled on free speech and abortion protestors.  By next week we should have heard their decision on the infamous “Hobby Lobby” case on religious freedom and contraception.  (So many of our court rulings are about women’s reproductive choices.)  So hop on board this summer’s First Amendment express!

Can you name the “five freedoms” that are asserted and protected in the First Amendment to the US Constitution?  Almost 1/3 (29%) of all Americans cannot name even one.

That sad statistic and lots of other info about the First Amendment I learned from The First Amendment Center, based at Vanderbilt University. Interesting time lines, lesson plans for all ages, reviews of famous cases.  And an annual State of the First Amendment Survey. 

The Center was all excited this year because in their survey the largest number of Americans ever (68%) could actually remember one freedom protected in the First Amendment – freedom of speech!  And another highest number of the surveyed ever (29%!) could name another freedom – religion.  But only 14% remembered our cherished freedom of the press.

And putting aside my cynical superiority for a moment, I too had trouble remembering the last two. With a few hints from my daughter the high school American history teacher I remembered the right to assembly.  But like 99% of Americans, I had no memory of the freedom to petition the government.

Congress shall make no law respecting an establishment of religion, or prohibiting the free expression thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

That’s it. It was the first of ten amendments, called the Bill of Rights, which James Madison wrote in 1791, two years after the US Constitution had been ratified.  He hoped to reduce the fears some people had, that the new government had too much power, by spelling out more explicitly the rights of individual citizens in this new land.

223 years later we are still debating the meaning of freedom of speech, to take just one of the five freedoms, albeit the one most Americans can remember.  This past week the Supreme Court issued a rare unanimous decision, ruling that a Massachusetts law, setting up at 35-foot buffer zone around the entrance to abortion clinics, violated the First Amendment free speech rights of abortion opponents.

I am no constitutional law expert, but I do know that headlines can be too simplistically deceiving; “Abortion protest buffer zones unanimously rejected by court.”   

The real juice is in the full text, how each justice argues and sometimes dissents.  I am relying on the analysis of the New York Times and Emily Bazelon, the legal correspondent for Slate Magazine, for my few comments.

At first it was surprising to read that proud liberals like Sonya Sotomayor and staunch conservatives like Clarence Thomas agreed on a ruling about abortion.  But it was actually a ruling about free speech.  They all said abortion opponents should be able to stand on a public sidewalk and exercise their free speech rights. 

There gave two reasons against the buffer zones.  One, because some of the abortion opponents, including the plaintiff in this case, are there on public space not to yell at the clinic clients or berate them, but, they say, to walk and speak with them about alternatives to abortion.

And two, the justices said, there are other laws against intimidation and harassment and obstruction that clinics can still use to control unruly protestors.  They also hinted that they might accept a smaller buffer zone, like the 10 foot one in California, which does not extend out to the public space of the sidewalk.

Remember last year when Chief Justice Roberts surprised us all by siding with the liberals and upheld Obamacare?  He did a similar surprise switch from type this time, siding with the three women justices and the other liberal Stephen Breyer.  Those five wrote a nuanced and not absolute ruling, with the hint they would accept smaller zones, and suggesting other ways to limit protestors.  The other four justices, on the other hand, were more extreme, ruling out any buffer zones: "Protecting people from speech they do not want to hear is not a function that the First Amendment allows the government to undertake in the public streets and sidewalks," wrote Justice Scalia. Together the nine rejecting the Massachusetts law, but Roberts siding with the liberals made it a more narrow ruling.

Progressives like MSNBC host Rachel Maddow predictably condemned the ruling and pointed out the hypocrisy that the Supreme Court itself has a large buffer zone against protests around its own building, as if their private entrance and armed guards weren't enough protection.

"Free speech isn't free," is a commonly seen protest sign outside the court, usually held by conservatives. Meaning, I think, that the right free speech comes with a cost. Like hearing things you don't want to hear.

In our increasingly polarized and nasty nation, I expect we'll be hearing a lot we don't want to hear, most freely.

Copyright © 2014 Deborah Streeter