The ability to speak one’s one mind in an effort to persuade others of the truth of your position is a critical component in the workings of politics, academia, the courtroom . . . almost any area of public or private concern. Few personal liberties are therefore more cherished in this country than the right to free speech.
George Washington said it powerfully: “For if Men are to be precluded from offering their Sentiments on a matter, which may involve the most serious and alarming consequences, that can invite the consideration of Mankind, reason is of no use to us; the freedom of Speech may be taken away, and, dumb and silent we may be led, like sheep, to the Slaughter.”
Though it may have a checkered past on the issue, the Supreme Court has been an important guardian of the First Amendment’s guarantee of free speech. Recently, and positively, the Court has held that the state cannot compel pro-life pregnancy centers to advertise government-subsidized abortions. It has held that the government cannot treat Church signs advertising places of worship less than it treats non-religious directional signs.
Unfortunately, as with other rights, the right to free speech often falls prey to “abortion distortion,” where courts contort the meaning of well-established free speech principles to silence pro-life speakers. While the Supreme Court has made important and encouraging strides in the past decade to safeguard free speech—even in the abortion context—Justice Scalia once spoke of “the Court’s troubling tendency to bend the rules when any effort to limit abortion, or even to speak in opposition to abortion, is at issue.”
Sadly, the abortion distortion doctrine continues to rear its ugly head in the lower courts.
For years, the City of Pittsburgh has tried to keep pro-life speakers away from the very place where their message matters most: close to the entrance of abortion clinics. Similar to the City of Englewood ordinance we are challenging in federal court, Pittsburgh adopted a “buffer zone” prohibiting persons from congregating, patrolling, picketing, or demonstrating within 15-feet of an abortion clinic’s entrance.
Despite the Supreme Court’s 2014 decision in McCullen v. Coakley, which unanimously struck down a buffer zone abortion law in Massachusetts, both the district court and the Third Court of Appeals upheld Pittsburgh’s ordinance. Contrary to how the City interpreted its own ordinance, the Court of Appeals narrowed its scope by holding that the ordinance doesn’t cover sidewalk counseling.
While laudably permitting the speech of pro-life sidewalk counseling, there are two critical problems with the court’s ruling: (1) it’s not the role of federal courts to construe narrowly state and local laws in order to save them from a constitutional challenge, and (2) even if the ordinance does not apply to some pro-life speakers, it still sweeps within its ambit classic forms of free speech activity (including pro-life speech activity), such as demonstrating and picketing.
The Third Circuit’s decision shouldn’t be allowed to stand. And we’ll soon be filing an amicus brief with the Supreme Court in support of the pro-life speakers in Pittsburgh. It’s time for the Supreme Court to put an end to abortion distortion in the realm of free speech once and for all—both in this case and in another pro-life speech case out of Chicago that the Court is still considering whether to accept and decide (we also filed an amicus brief in this case).
The right to free speech is not a luxury or perk. When the government impermissibly seeks to squelch or limit that right, courts should be vigilant in striking down those restrictions. And when lower courts wrongly uphold those restrictions, as did the Third Circuit here, the Supreme Court needs to step in and reverse them.
You can sign on to our Supreme Court brief below.
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