February 2014
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Fickle with the First Amendment

By Katharhynn Heidelberg

It was hard to feel sorry for Eleanor Mc- Cullen, a Bostonian featured in the Jan. 13 New York Times.

McCullen is among the self-appointed public scolds of women who go to a Planned Parenthood clinic in her city. She is also a plaintiff challenging Massachusetts’ barrier law, which limits how close anti-choicers can come to abortion facilities. She told the NYT she finds the law intimidating, frustrating and a violation of her First Amendment rights.

Initial reaction: Boo-hoo, and how does your own medicine taste, lady? You’re the one trying to intimidate other women from seeking care they have decided to obtain, as free and functioning adults who don’t need your approval. How frustrated do you think they feel to have some busybody lecturing them and making assumptions about the care they’ve come to Planned Parenthood for? (Planned Parenthood offers a range of reproductive care for both women and men; abortions account for about 2 percent of its services.) And while you seem low-key and non-threatening enough, there are other anti-choicers out there who aren’t at all concerned with helping women, just in controlling them, and who will harass, hurt and stalk them, or even murder their doctors.

The First Amendment assertion, though, prompts me to dial it down. Why does Mc- Cullen have to stay behind a painted line to speak her mind when her speech does not threaten others? Why is it legal for her to speak on one side of the barrier, and not the other?

The pro-choice side of me digs in her heels and sputters “Because, that’s why!” The rest of me finishes the thought: “Because I don’t agree with what she’s saying.” I have to admit that doesn’t wash. There are things I say that she wouldn’t agree with; no one is making me stand behind a yellow line to speak.

So I must conclude that while Massachusetts can pass laws limiting conduct outside of abortion clinics, its laws governing speech outside of those facilities doesn’t pass constitutional muster. Harassment is not a form of speech; that is where state laws come into play. And clinics, as private property, can prohibit trespassing or loitering outside their doors — let protesters deal with the consequences of doing either, but don’t treat their speech as a crime depending on where they happen to be standing.

Remember the free-speech “zones” set up during George W. Bush’s presidency? It is true confining protesters to a particular area did not stop them from saying what they had to say. It’s also true the zones were located so as to ensure their words never reached W.’s ears. I’m not sure whether a distinction can be drawn between the “zones” case and McCullen’s. I do acknowledge that a public servant in a public place to address the public taking these steps to avoid his critics is very different from a private citizen attempting to access private medical care without the added hassle of unsolicited street evangelism.

What I am sure of in considering such cases is that we’re all for free speech as long as we agree with it; that blandishments aside, depending on what is being spoken, we wouldn’t mind that much if the “other side” was shut down, limited or penalized. It isn’t right, but it is how the mind works. If we don’t stop and check ourselves from time to time, we, not the government, ultimately pose the biggest threat to free speech. Including our own, since once we accept limits on others, we have tacitly accepted limits on ours — our opponents, using our very logic, might in turn be able to silence us.

The NYT also featured Roger Shuler, a blogger who in January sat in jail for allegedly violating a court order that spelled out what he could and could not blog about while a defamation suit was pending against him. While the courts can contend that he is in fact jailed for contempt, the questions raised by the article remain: Can a judge actually tell you what you can and cannot publish before there has been a finding of libel? It appears from the reporting that Shuler is of the mind that he can simply declare himself free of the court’s authority when he pleases; while this mindset might make him irritating, it doesn’t mean he has no First Amendment rights.

And we all remember “Duck Dynasty’s” Phil Robertson. In a GQ interview, Robertson made remarks about gay people (which got a lot of attention) and seemingly, the assertion that racism didn’t exist because no black person he grew up with ever outwardly complained about it (which received far less attention — even now, the matter continues to be cast as controversy about his “anti-gay remarks”).

One side yelped about Roberton’s free speech rights when A&E, which airs “Duck Dynasty,” suspended the star. The other side yelped right back that free speech doesn’t mean no consequences; that A&E, as Robertson’s employer, had the right to do what it pleased concerning his employment. While Sarah Palin, ever the mouth in search of a forum, screeched about Robertson’s rights, her detractors demanded to know where her outrage was when Martin Bashir was forced to resign over statements about Palin. In the middle of the fray sat a prescient friend of mine, who correctly noted that Phil would be reinstated because the entire flap was probably a publicity stunt.

I find it appalling that employers encroach on workers’ private lives by doling out consequences for what people do or say on their own time. For me, it depends on what Robertson’s contract with A&E says and whether he was “on the clock” when he gave the GQ interview. But, to exercise my own free-speech rights, I also think what he said ran the gamut from blazingly stupid to just plain weird.

The point remains: Robertson’s fans saw him as a First Amendment martyr because most of them agreed with him about gay people, while his detractors danced around the whole free-speech issue by contending there wasn’t one — because most of them didn’t agree with him.

To illustrate the point from one side: “Free-speech zones” that limited how close protestors could come at George W. Bush appearances = baaaad! Free-speech zones that limit zealous hecklers’ proximity to women visiting Planned Parenthood = gooood!

From the other side: Martin Bashir and MSNBC parting ways over the Palin remarks = goood! Phil Robertson being suspended for his remarks = baaaad!

From both sides: Limits on how close protestors — OK, the Westboro hategroup lot — can get to a funeral service = goood! (It remains very hard for me to stand up for that group’s speech rights; I think what it does is evil and I certainly don’t feel sorry for its members.)

Our biases tend to determine how outraged we become about possible First Amendment violations. The degree to which the affected person or group reflects our own beliefs matters, even if it shouldn’t.

While nature abhors a vacuum, human nature adores an echo chamber.

Katharhynn Heidelberg is an award-winning journalist in Montrose, Colo.


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