As the Supreme Court shut down its term last week, Justice John Paul Stevens had the better of a close argument on free speech. He and his five colleagues grasped a key point that eluded three dissenters: In this field of First Amendment jurisprudence, "place" can make a vast difference.
In Hill vs. Colorado, the high court had to decide if a Colorado law regulating anti-abortion protests violates the First Amendment.
This is the disputed provision:
"No person shall knowingly approach another person within eight feet of such person, unless such other person consents, for the purpose of passing a leaflet or handbill to, or engaging in oral protest, education or counseling with such other person in the public way or sidewalk within a radius of 100 feet from any entrance door to a health-care facility."
Three opponents of abortion challenged the law as unconstitutional on its face, but Colorado's Supreme Court upheld it as a constitutionally valid regulation of the "time, place and manner" of speech.
In that trichotomy, "place" becomes a dominant element. The statute was not aimed at the rough-and-tumble speech of coal mines or factories or football stadiums. Colorado's law was aimed at confrontational speech at hospitals or clinics.Ordinarily, we have no constitutional right to be shielded from offensive speech. If vulgarity offends us, we are free to discard a magazine or turn off the TV.
As a free society, we are committed to free and robust debate, but the First Amendment is not an absolute guarantee of a right to say anything, anywhere, anytime.
There is nothing at all novel in that elementary proposition. We may forbid sound trucks at 2 a.m.. We may regulate the placement of billboards and political posters.
We may confine pornographers to pigsties and keep airport evangelists off to one side.
Nudity on stage is protected expression. Nudity in a public park is disorderly conduct.
The Constitution says that "no law" may abridge freedom of speech or of the press, but the Constitution doesn't mean what it says.
Colorado's effort to regulate bullhorn bullies at medical facilities moved Justices Scalia and Kennedy to paroxysms of dissent. Scalia insisted that the law is a regulation of "content," which plainly it is not. Under the law, proponents and opponents of abortion are treated with equal equanimity. They have the same right to picket, to preach and to publicize their views.
Kennedy accused the court's majority of approving a law "which bars a private citizen from passing a message, in a peaceful manner and on a profound moral issue, to a fellow citizen on a public sidewalk." Nonsense! Beyond the modest limitations laid down in the statute, demonstrators may pass their messages wherever they please. It is not much of an impediment to counsel or to educate at a distance of eight feet. Schoolteachers and preachers do it all the time.
My whole professional life has been bound up in the constitutional provisions ensuring free speech and free press. For nearly 60 years, as reporter, editor and columnist, I have done my best to preserve these indispensable rights. But the years have taught me that other rights are important also. I cannot draw the boundaries of a right to privacy, but I know that boundaries are there, and I know it when I see them abused. Contrary to Scalia's dour forebodings, this is still a free country. It's likely to stay that way.
Universal Press Syndicate