Buffer Zones & Consistency

English: United States Supreme Court building ...

(Photo credit: Wikipedia)

In the summer of 2014, the United States Supreme Court struck down the Massachusetts law that forbid protesters from approaching within 35 feet of abortion clinics. The buffer zone law was established in response to episodes of violence. Not surprisingly, the court based its ruling on the First Amendment—such a buffer zone violates the right of free expression of those wishing to protest against abortion or who desire to provide unsought counseling to those seeking abortions.

Though I am a staunch supporter of the freedom of expression, I do recognize that there can be legitimate limits on this freedom—especially when such limits provide protection to the life, liberty and property of others. To use the stock examples, freedom of expression does not permit people to engage in death threats, slander, or panicking people by screaming “fire” in a crowded, non-burning theater.

While I do recognize that the buffer zone does serve a legitimate purpose in enhancing safety, I do agree with the court. The grounds for this agreement is that the harm done to freedom of expression by banning protest in public spaces exceeds the risk of harm caused by allowing such protests. Naturally enough, I do agree that people who engage in threatening behavior can be justly removed—but this is handled by existing laws. That said, I do regard the arguments in favor of the buffer zone as having merit—weighing the freedom of expression against safety concerns is challenging and people of good conscience can disagree in this matter.

One rather interesting fact is that the Supreme Court has its own buffer zone—there is a federal law that bans protesters from the plaza of the court.  Since the plaza is a public space, it would seem analogous to the public space of the sidewalks covered by the Massachusetts law. Given the Supreme Court’s ruling, the principle seems to be that the First Amendment ensures a right to protest in public spaces—even when there is a history of violence and legitimate safety concerns exist. While the law is whatever those with the biggest guns say it is, there is the matter of the ethics of the matter and this is governed by consistent application.

A principle is consistently applied when it is applied in the same way to similar beings in similar circumstances. Inconsistent application is a problem because it violates three commonly accepted moral assumptions: equality, impartiality and relevant difference.

Equality is the assumption that people are initially morally equal and hence must be treated as such. This requires that moral principles be applied consistently.  Naturally, a person’s actions can affect the initially equality. For example, a person who commits horrible evil deeds would not be morally equal to someone who does predominantly good deeds.

Impartiality is the assumption that moral principles must not be applied with partiality. Inconsistent application would involve non-impartial application.

Relevant difference is a common moral assumption. It is the view that different treatment must be justified by relevant differences. What counts as a relevant difference in particular cases can be a matter of great controversy. For example, while many people do not think that gender is a relevant difference in terms of how people should be treated other people think it is very important. This assumption requires that principles be applied consistently.

Given that the plaza of the court is a public space analogous to a sidewalk, then if the First Amendment guarantees the right to protest in public spaces of this sort, then the law forbidding protests in the plaza is unconstitutional and must be struck down. To grant protesters access to the sidewalks outside clinics while forbidding them from the public plaza of the court would be an inconsistent application of the principle. But, of course, there is always a way to counter this.

One way to counter this in a principled way is to show that an alleged inconsistency is merely apparent.  One way to do this is by showing that there is a relevant difference in the situation. If the Supreme Court wishes to morally justify their buffer while denying others their buffers, they would need to show a relevant difference that warrants the difference in application. They could, for example, contend that a plaza is relevantly different from a sidewalk. One might point to a size difference and how this impacts protesting. They could also contend that government property is exempt from the law (much like certain state legislatures ban the public from bringing guns into the legislature building even while passing laws allowing people to bring guns into places where other people work)—but they would need to ground the exemption.

My own view, obviously enough, is that there is no relevant difference between the scenarios: if the First Amendment applies to the public spaces around private property, it also applies to the public spaces around state property (which is the most public of public property).

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  1. Doris Wrench Eisler

    The exemption of a court plaza does seem arbitrary, and inconsistent. But striking down a law against approaching within 35 feet of an abortion clinic for the purposes of protesting and exerting moral suasion against a legal service seems arbitrary as well. There is a religion that inveighs against the use of blood in operations or other procedures: they sincerely believe it a great moral evil explicitly forbidden by the Christian bible: would it be alright, then, for them to protest at hospital doors and perhaps telling people they are relegating themselves or their children to hell? It is one thing to have personal beliefs and express them, at appropriate times and places. But the site of a legal procedure is not one of them. It takes unfair advantage of a person in a vulnerable position to the extent of undue influence, therefore it is compromising and exploitative. Should the law promote such motives and actions?
    Not so long ago protesters who believe homosexuality and same sex marriage are evil congregated close to a church funeral service to denounce in the most caustic terms the lifestyle of the deceased. What have such actions to do with freedom of expression?
    Freedoms have different priorities, as has expression itself. It would seem that politicians and former public political figures are better protected from public expressions of disapproval than clients at abortion clinics. And some of the former have, in the opinion of some, committed war crimes. So, does equality, impartiality and relevant differences really all boil down to power and influence?

  2. “While I do recognize that the buffer zone does serve a legitimate purpose in enhancing safety, I do agree with the court. The grounds for this agreement is that the harm done to freedom of expression by banning protest in public spaces exceeds the risk of harm caused by allowing such protests.”

    Mike;
    I completely disagree with that statement.
    What is the harm done to freedom of expression? Does 35 yards significantly impair freedom of expression?
    In my opinion it does not, but significantly impairs the freedom of another human being, as noted by Doris-thank you for your post- a human being in a vulnerable position emotionally troubled by a decision or a loss. That human being demands respect and protection, and I believe 35 yards is a reasonable protection. I do not think that people have to be “in your face” to express their opinion, and when they do that they express violence and disrespect. Do they have the right to do that to a vulnerable person? Is that moral?

  3. A paradoxical result of protecting free speech by law, is those who are firmly opposed to free speech, or speech they do not like, will use and abuse the law to further their own agenda. Anti-abortion activists have shown they are extremely in favour of censorship, even the ultimate form of censorship, which is assignation.

    The intention of the anti-abortion activist doorstep “protests” is not free speech. It is to physically blockade the entrance of the clinics. At 35 feet, they simply do not have enough activists to form a blockade. Their free speech is not impinged, but their ability to blockade is.

    The interpretation of freedom of religion, and freedom of speech. the anti-abortionist draw are satanic inversions of the intentions of these protections. Freedom of religion is to protect individuals and groups from having religious beliefs and laws derived from religions inflicted on them. It is not the freedom to inflict beliefs and practices on others. And freedom of speech is not the freedom to censor others through intimidation. And it’s not meant to provide the freedom to lie to further any cause.

    The religious tend to believe themselves to be morally superior. Because they believe morality to be the product of supernatural revelation. And they believe these revelations have supremacy over secularly derived moralities, and grant them a license to lie, and commit acts of intimidation and murder.

    A belief that is typically dominant among anti-abortion activists, is that a woman should be denied a life saving abortion, even in the instance where the foetus is also doomed, as their deaths are the will of God. It’s a peculiar exception to their generally held belief that medical interventions are fine in all other circumstances, even though all interventions by the hand of man, are in defiance of the will of the lord.

    Do anti-abortionists activist have any respect for freedom of speech. Of course they don’t. In 35 American states “informed consent” laws have been introduced. These curtail the freedom of speech of doctors, and impel them by law to speak anti-abortion propaganda. Ideally, I believe they would desire the situation that existed in Ireland until relatively recently (I imagine since American anti-abortion activists are the major funders of the Irish anti-abortion movement). In Ireland a doctor could inform a woman that her pregnancy put her life at risk, (though the law did not obliged him to do so), however he was prohibited by law from informing her an option to save her life would be to travel to a country where abortion was legal and have an abortion in that jurisdiction. Anti-abortion activists had even campaigned for law to confine pregnant women within the Irish jurisdiction for the term of their pregnancies.

    What is to be done. Should the enemies of freedom be granted the freedom to destroy it.

  4. Of course you can yell “fire” in a crowded theatre. There is no danger to people, and if there is it’s because the theatre is inherently unsafe and not because some idiot shouted.

    It is, at best, a civil matter between you and the theatre owner.

    It should be noted that the original quote for this came from Wendel Holmes who was trying to limit the free speech of people opposing the draft in WW1. Overturned by a later court decision.

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