Permission to Speak Freely

Stephanie By Stephanie Herman
Rightgrrl Co-Founder
January 31, 2000
Anti-commemorating last week's anniversary of Roe v. Wade, I attended a Right to Life rally at the Colorado state capitol. To the pro-life crowd assembled there, Jeannie Hill expressed her hope that the U.S. Supreme Court would soon find Colorado's bubble law unconstitutional.

Hill is a sidewalk counselor; she approaches women entering abortion facilities in an effort to persuade them against aborting. She explains the process of fetal development and, understanding the enormous pressures of an unwanted pregnancy, offers these women a run-down of non-violent alternatives, as well as information on organizations that assist pregnant women. The first baby Hill saved in front of an abortion "clinic" is now 14 years old.

But Colorado's bubble law, in effect since 1993, keeps Hill and other sidewalk counselors eight feet away from anyone entering an abortion facility. Defenders of the law insist that it's needed to protect women from intimidation and assault. But intimidation can be perpetrated from more than eight feet away; only physical assault and intimate, one-on-one speech can be prevented by an eight-foot legal bubble. Since we already have laws against physical assault, it would appear that the logical prohibition of the bubble law is one-on-one speech.

"The sidewalk," writes Hill in her Sidewalk Counseling Workbook, "constitutes a traditional public forum from which cherished First Amendment freedoms may not be prohibited. Permitting access to the sidewalks for First Amendment activities provides a less costly means of communication which is 'so essential to the poorly financed causes of the little people.' (Martin v. Struthers, 319 U.S. 141, 146, 1943)."

Bubble law supporters eventually admit the law does limit speech, but they justify that by claiming it's "content neutral." What a relief, eh? Not only are pro-life sidewalk counselors forbidden to hand out a pamphlets; pro-choice activists are prohibited, as well. Clearly, content neutral restrictions on free speech, when imposed in front of abortion mills, silence only the pro-life message.

Unless, that is, the woman gives the sidewalk counselor permission to speak.

Now, I would hope that sidewalk counselors ask permission before attempting to inform or counsel these women and girls; it's only courteous. But should courtesy be legislated? And since when does one citizen legally require the permission of another citizen to exercise First Amendment rights? If the parameters of free speech are limited by the permission of others, our right to free speech is dead on arrival.

Let's remember the reason speech needs protection under the constitution; it's because individuals will naturally disagree on the appropriateness or validity of various messages. That some women will find a sidewalk counselor's message unwanted is not the issue. These women are free to refuse the message by walking into the abortion facility. Their freedom to choose abortion is not threatened.

Those who insist that equality (in the egalitarian sense) trumps liberty have argued that speech can and should occasionally be restricted. In The Irony of Free Speech, Owen Fiss interprets the First Amendment as a regulator of "free and open debate," believing that one side of an argument must sometimes be dampened in order to allow the quieter opposing voices to be heard. "Indeed," writes Fiss, "the First Amendment should be more embracing of such regulation, since that regulation seeks to further the democratic values that underlie the First Amendment itself."

But what if the opposing view is quieter because, after 130 years of debate, society has reached a consensus that racism is wrong? Is the government required by the First Amendment to amplify the voices of less popular or unfunded positions?

Not at all. The First Amendment has never established the egalitarian view that all messages are valid, or that all must be heard. Only that expression be permitted.

Of course, the question we should be asking is: Who's hurt if a sidewalk counselor succeeds in talking a young woman out of an abortion? The women's movement isn't hurt; they claim that the procedure should be rare and applaud reductions in the number of abortions. The woman making the choice against abortion isn't hurt - to suggest that she is would be an indictment of her right to choose. The only individuals hurt by her choice not to abort are those individuals profiting from abortion.

Here's hoping the Supreme Court recognizes the only inherent threat in allowing nonviolent sidewalk counselors the right to speak freely.

This article copyright © 2000 by Stephanie Herman and may not be reproduced in any form without the express written consent of its author. All rights reserved.