Is it a crime to stand outside an abortion clinic and urge women to consider another option? Massachusetts says yes.
History shows that it's mostly the outliers — those who cannot accept the status quo — who establish the limits of our constitutional rights, particularly in areas of speech and political activism.
A 76-year-old Massachusetts woman, Eleanor McCullen, is one of those. She visits abortion clinics in the Bay State and seeks to persuade women considering abortions to take a different route.
Under state law, if McCullen comes within 35 feet of any clinic she is a criminal, subject to fine and, depending how many times she violates the law, incarceration.
McCullen is challenging the constitutionality of the Massachusetts law, contending that it is a classic case of viewpoint discrimination that criminalizes political speech. On Wednesday, the members of the U.S. Supreme Court heard McCullen's case and, if news reports are correct, appeared to be sympathetic to her claim.
Everyone should hope so.
If Massachusetts' assault on speech critical of abortion is upheld, legislative infringement on other types of political speech will be more likely.
Massachusetts defends its 35-foot zone of privacy as a means of keeping order, suggesting that protesters have or will physically block women from going into the clinics. But McCullen takes a far different approach, talking quietly to women in the hope that they are having second thoughts about terminating the lives of their unborn children. Physically blocking a clinic entrance already is, and should be, against the law.
What the high court was debating is the propriety of establishing a zone that targets criticism of abortion and diminishes McCullen's ability to communicate her views because the state doesn't approve of the message she is delivering.
Free speech, of course, is a two-way street. Just as McCullen is free to speak, the targets of her speech are free either to express a different view or ignore her. It's government's job, under the First Amendment, to protect each side.
In a 2000 case, the high court ruled 5-4 that a Colorado zone establishing a similar zone around health clinics was constitutional. Now-retired Justice John Paul Stevens said it was necessary to protect "an unwilling listener's interest in avoiding unwanted communications."
It's hard to think of a position more hostile to free speech than asserting a claim that if someone doesn't want to listen that another person can't speak. Under such a rule, no street-corner polemicist would be safe, and neither would one of Americans' most basic freedoms.