The thing about the First Amendment is that it doesn't always work in our favor. We trumpet freedom of speech when it allows us to voice our views and lends credence to our causes. When it works against those views and causes, however, some of us are willing to compromise the First Amendment until it serves our purposes again.
Colorado's "bubble law" is a prime example of what goes wrong when politics and free speech are mixed. The law, which is being challenged in the U.S. Supreme Court, is effective in a 100-foot radius surrounding an abortion clinic. It prohibits protesters from coming within eight feet of patients without their consent. It also bars protesters from counseling, distributing flyers or displaying signs within this eight-foot "bubble" surrounding any person. The law restricts protesters' First Amendment rights and should be struck down.
The bubble law was a response to clinic patients' complaints that protesters harassed them. The law's sponsor, Rep. Diana DeGette (D-Colo.), argued in a Denver Rocky Mountain News opinion piece that "the outrageous conduct of anti-abortion protesters created the need of the bubble bill" ("Free speech vs. 'the bubble,'" Nov. 26, 1995). She referred to protesters' attempts to obstruct clinic entrances and intimidate patients psychologically.
DeGette's first point of contention with protest behavior is moot, because it is already illegal. The 1994 Freedom of Access to Clinic Entrances Act prohibits protesters from obstructing clinic entrances. The Act, which was passed following incidences of violence at abortion clinics, prohibits the use of force, threats and obstruction of access to clinics. The bubble is not necessary to ensure free clinic access. Redundant legislation will not keep people from breaking the law.
The only new effect of the bubble law is to keep protesters from getting close enough to patients to distribute flyers or engage in peaceful, non-threatening conversation - both actions that are protected by the First Amendment. The law so clearly is unconstitutional that one wonders how it ever was passed in the first place.
The answer is politics. Although the bubble law has little to do with the act of abortion, the respective camps of abortion supporters and abortion opponents drew support and opposition for the law. Restriction of the First Amendment rights of abortion protesters is a clear victory for abortion supporters.
A Supreme Court ruling upholding the law would be construed as a victory for abortion supporters, and the law's defeat would be taken as a victory for the pro-life movement. But although the stakes are high for both sides, all must realize that the issue up for debate - and the issue before the Supreme Court - is free speech.
In her opinion piece, DeGette argued that "eight feet is ample room to convey a message while allowing free entry to clinics." But free speech does not end with the conveyance of a message. Freedom of speech also allows citizens the opportunity to persuade the listener to agree with the message. That same liberty gives Americans the freedom to debate contentious issues. It allows us to question authority and to come to popular consensus. It provides the opportunity for change. It is essential to democracy.
In theory, freedom of speech is an elegant ideal, but in practice, it sometimes becomes ugly. When opposing sides meet and emotions start to boil, heated exchanges erupt. The controversial nature of the abortion debate means that the exercise of free speech on either side tends toward the unsightly. Standard etiquette does not support posters of bloody fetuses. But Emily Post did not write the Constitution.
The government cannot legislate good manners. But it can legislate against violence. It can prosecute abortion protesters who step over the line of the law, but it cannot compromise the First Amendment, no matter how distasteful the speech may be. Fortunately, the future is looking good for the First Amendment. The Supreme Court has struck down bubble laws in two previous rulings while upholding the Freedom of Access to Clinic Entrances Act. Let's make it three for three.
(Masha Herbst's column appears Mondays in The Cavalier Daily.)