by David L. Hudson Jr., First Amendment Scholar
Updated June 2011
Freedom of speech often confronts, challenges, provokes and revolts. Speech often serves as a catalyst for social change and sometimes as a weapon to attack one’s enemies.
Sometimes government officials respond to speech by attempting to mitigate its effects on listeners and targets. A common method is to pass buffer zones separating protesters from their targets or from designated areas. Buffer zones have been used repeatedly to attempt to control anti-abortion demonstrators outside abortion clinics.
The abortion issue has been one of the most publicly and politically volatile issues in American society, especially since the Supreme Court in 1973 found a constitutional right to an abortion in Roe v. Wade. Violence has occurred at abortion clinics and several physicians who perform abortions have been killed.
To protect women and abortion-clinic doctors and staff, Congress in 1994 passed a law called F.A.C.E. — the Freedom of Access to Clinic Entrances Act (18 U.S.C., Sect. 248). The law prohibits injuring, intimidating or interfering with any person who obtains or provides reproductive health services. It provides for civil and criminal penalties against violators. The law has survived several First Amendment challenges.
Sometimes courts will pass a special injunction providing for even greater control over anti-abortion demonstrators. Many times these injunctions take the form of buffer zones.
The issue of buffer zones for anti-abortion demonstrators has reached the Supreme Court several times in recent years beginning in 1994 with Madsen v. Women’s Health Center.
A Florida state court ordered that anti-abortion demonstrators could not protest within 36 feet of an abortion clinic, make loud noises within earshot of the clinic, display images observable from the clinic, approach patients within 300 feet of the clinic, or demonstrate within 300 feet of the residence of any clinic employee. The Florida Supreme Court upheld the injunction in its entirety.
The U.S. Supreme Court upheld the restrictions against demonstrating within 36 feet of the clinic (to the extent that the 36-foot buffer did not include private property), making loud noises within earshot of the clinic, and making loud noises within 300 feet of an employee’s residence. The Court rejected the prohibitions against displaying images, approaching patients within 300 feet of the clinic, and peacefully picketing within 300 feet of an employee’s residence. In reaching its decision, the Court announced a new test for cases in which speech is prohibited by an injunction: The injunction will be upheld unless it burdens more speech than is necessary to serve a significant government interest.
The Supreme Court examined the issue of buffer zones outside abortion clinics again its 1997 decision Schenck v. Pro-Choice Network of Western New York.
In Schenck, three doctors and four medical clinics near Rochester and Buffalo filed a federal lawsuit against 50 individuals and three organizations — Operation Rescue, Project Rescue Western New York and Project Life of Rochester — who often engaged in heated anti-abortion demonstrations. The lawsuit alleged that the protesters would block access to abortion clinics by kneeling or lying in driveways and similar conduct.
Eventually, the federal district court issued an injunction against the protesters, prohibiting them, with the exception of two sidewalk counselors, from demonstrating within 15 feet of abortion-clinic entrances and driveways and within 15 feet of vehicles and patients entering or leaving a clinic. The provision prohibiting protesters within 15 feet of fixed physical locations (abortion clinics) was called a fixed buffer zone, while the provision prohibiting them within 15 feet of moving objects (cars or people) was called a floating buffer zone.
The Court applied the test it had developed in Madsen to determine whether the fixed and floating buffer zones were constitutional. The Court held that the fixed buffer zone did not burden any more speech than necessary to serve the government interests of ensuring public safety and order, promoting the free flow of traffic on streets and sidewalks, and protecting women’s freedom to seek abortions or other health-related services. The Court struck down the floating buffer zone, however, because it found the floating zone to be overly broad and difficult to enforce. The Court reasoned in part that “the 15-foot floating buffer zones would restrict the speech of those who simply line the sidewalk or curb in an effort to chant, shout or hold signs peacefully.”
In 1993, the Colorado Legislature enacted a law requiring protesters to stay eight feet from anyone entering or leaving an abortion clinic, as long as the clinic visitor is within 100 feet of the entrance. In 1995, three anti-abortion activists challenged the law, claiming it violated their free-speech rights. Both a trial court and state appeals court upheld the statute.
When the Supreme Court of Colorado refused to hear their case, the petitioners appealed to the U.S. Supreme Court. In light of its ruling against floating buffer zones in Schenck, the U.S. Supreme Court in February 1997 ordered the Court of Appeals of Colorado to re-examine the case. The state appeals court again upheld the law.
In February 1999, the Colorado Supreme Court affirmed the lower court’s ruling, stating that the law places reasonable restrictions on the time, place and manner of speech by anti-abortion demonstrators.
The case was appealed again to the U.S. Supreme Court. The issue before the Court was whether the law prohibiting demonstrators from approaching within eight feet of anyone coming to and from medical clinics violated the First Amendment.
The Court upheld the law by a 6-3 vote in its 2000 decision Hill v. Colorado.The majority reasoned that the law was not a speech regulation, but simply a “regulation of the places where some speech may occur.” The Court also emphasized that the law applied to all demonstrators regardless of viewpoint. The majority determined that the state’s interests in protecting access and privacy were unrelated to the suppression of certain types of speech. States and municipalities have special government interests in certain areas, including schools, courthouses, polling places, private homes and medical clinics, the Court said.
Justice Antonin Scalia wrote a scathing dissent in which he accused the majority of manipulating constitutional doctrine in order to provide further protection for abortions: “What is before us, after all, is a speech regulation directed against the opponents of abortion, and it therefore enjoys the benefit of the ‘ad hoc nullification machine’ that the Court has set in motion to push aside whatever doctrines of constitutional law that stand in the way of that highly favored practice.”
Justice Anthony Kennedy also dissented, writing that the decision “contradicts more than a half century of well-established First Amendment principles.” Kennedy said the Colorado statute was a content-based law that restricted a specific type of speech, anti-abortion speech.
In 2006 the U.S. Supreme Court dealt a setback to abortion clinics in its 8-0 decision in Scheidler v. National Organization for Women, Inc., ending a two-decade-old legal fight over anti-abortion protests by ruling that federal extortion and racketeering laws cannot be used to ban demonstrations. (A 2003 ruling in the case had lifted a nationwide injunction on anti-abortion groups led by Joseph Scheidler and others; the 2006 decision came after the 7th Circuit had kept the case alive.)
Amid the continuing abortion debate, First Amendment constitutional arguments will play a significant role.