Every Election Day, voters walk past a gantlet of candidates and advocates who want to influence them. Then after shaking a few hands, maybe taking a leaflet or two, the campaigning stops and voters enter the polling place to make their choice.
The candidates and advocates are exercising their constitutional right to free speech – political speech, which is the most protected form of speech that exists in our system. But in this one discrete instance, the voters’ right to enter the polls without intimidation outweighs the activists’ right to campaign.
This is the principle behind the Portland city ordinance that lets women access facilities offering reproductive services without obstruction by anti-abortion activists, like the ones who have been protesting outside the Planned Parenthood clinic on Congress Street. The ordinance, which was passed unanimously by the City Council late last year, creates a 39-foot buffer zone around the clinic’s entrance, moving the demonstrations just across the street. The ordinance is the subject of a lawsuit filed by protesters who say their free-speech rights have been violated, but the courts should not find in their favor.
CONFLICT BETWEEN COMPETING RIGHTS
Just like candidates for office, opponents of abortion have a right to make their case, but not the right to make it anywhere or anytime. Just like the voters, women seeking reproductive health care – including abortion services – have a right to access the medical facility without the threat of intimidation. The ordinance sets a fair balance and should be upheld.
This free-speech lawsuit was filed on the same day that a federal judge threw out another Portland ordinance on freedom-of-speech grounds, an ordinance that prohibited panhandling on roadway median strips. The judge in that case ruled that panhandling is free speech, that median strips are a common forum for political debate and the city’s restriction was “content-based” discrimination against panhandlers.
We opposed the panhandling ordinance and supported the decision that found it unconstitutional, but there are significant differences between the two ordinances that call for very different outcomes.
In the panhandling case, the city said it was trying to protect public safety by banning people from standing in the middle of all roadways, stopping all median-strip solicitation even in areas where there is little traffic and no realistic safety hazard. The protest buffer zone is limited to the place where there has been a documented conflict between one group’s free-speech rights and another’s right to seek medical care. The scope of the ordinance is limited to the place where competing rights come into conflict.
TWO DIFFERENT TYPES OF SPEECH
The other important difference is the type of speech involved in the two cases. The panhandlers are passively displaying signs asking for money. If they tried to stop cars and demand money, they would be violating other city laws about aggressive solicitation or interfering with traffic.
The protesters are not passive. Their goal is to stop women from getting abortions, not through political debate that changes laws but by getting individuals who are trying to access the clinic to change their minds and turn around. They want to make the last few feet of their journey to the clinic as painful and difficult as possible.
The protesters have a right to make that case, but at some point, the patient has a right to make her own choice, regardless of whether the protesters agree with her decision.
Creating a zone around the clinic door without interfering with nearby protests is a reasonable way to reconcile everyone’s rights. The court should uphold this ordinance.