By Dan Calabrese ——Bio and Archives--June 27, 2014
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In McCullen v. Coakley, Chief Justice John Roberts writes that the law unconstitutionally restricts access to public sidewalks around abortion clinics in the name of "public safety" without "seriously addressing the problem through alternatives." By regulating public streets, the state directly foreclosed access to places that "developed as venues for the exchange of ideas." Restrictions must be based on misconduct, not directed at peaceful speakers.
So far, so good. The problem is that the Chief's opinion goes on to engage in contortions arguing that the Massachusetts law really wasn't trying to restrict the "content" of speech. That's critical because it means the law isn't subject to strict First Amendment scrutiny. It also means that while this Massachusetts law went too far, other restrictions on abortion protests might be allowable. That was too much for Justice Antonin Scalia, who concurred in the judgment but wrote that the Chief's opinion "carries forward this Court's practice of giving abortion-rights advocates a pass when it comes to suppressing the free-speech rights of their opponents" and continues to create "an entirely separate, abridged edition of the First Amendment applicable to speech against abortion." Justice Scalia was joined by Justices Anthony Kennedy and Clarence Thomas, and Justice Samuel Alito concurred in a separate opinion on similar grounds.Roberts is extremely cautious about using the power of the Supreme Court to establish major new precedents, which is why we are lamentably still dealing with ObamaCare today. That's admirable on a certain level, but in an age when the other two branches of government have gone so completely hog-wild in asserting their own will without regard to constitutional limits on their power, it would be nice to see the other co-equal branch use the power it has to really curtail this tendency. Even so, it's good to see that someone recognized the First Amendment rights of those whose opinions are not currently in vogue remain protected. You don't have the right to engage in a highly controversial practice while also forbidding those who object to express their thoughts about what you're really doing. Having won a battle in Roe v. Wade, abortionists now want the law to applied to stop their opponents from engaging in further battles, and if that means they lose their rights to free speech, that's fine with the abortionists. Thankfully, it's not OK with the Supreme Court. Maybe in the future a majority of the Roberts Court will go all the way and really dispense with the worst impulses of the power-hungry political class that dominates the current scene.
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