Abrams's unsatisfying WSJ column on the 'most indefensible First Amendment ruling' this century

On January 15, SCOTUS will hear oral argument in  McCullen v. Coakley--the challenge to Massachusetts' law prohibiting anti-abortion protesters from coming within 35 feet of an abortion clinic. The case calls into question the Court's 2000 decision in Hill v. Colorado, in which it upheld a Colorado statute that banned protesters from coming within 100 feet of abortion clinics--or from coming within eight feet of persons approaching the facility. Yesterday, in The Wall Street Journal,  renowned litigator Floyd Abrams called Hill the Court's "most indefensible First Amendment ruling so far this century."  Abrams writes:

According to the state, the 2007 legislation was enacted in response to antiabortion protesters blocking entrances to abortion clinics, harassing women who were seeking abortions, and otherwise impeding their efforts to do so. Both federal and state legislatures had previously sought to deal with such misbehavior. Federal law punishes as a crime those who "by physical obstruction" attempt to "intimidate or interfere" with any person "obtaining or providing reproductive health services." A pre-existing Massachusetts law, passed in 2000, makes it criminal to "knowingly obstruct, detain, hinder, impede, or block another person's entry to or exit from a reproductive health facility." These statutes are narrowly drafted and do not raise any plausible First Amendment objections.

 

In contrast, the 2007 Massachusetts law, with its 35-foot exclusion zone, is anything but narrow in its impact. It effectively prevents Eleanor McCullen and her colleagues from engaging in entirely peaceful, nondisruptive antiabortion advocacy via the distribution of leaflets and oral advocacy at the very places it is most likely to be effective. This is what First Amendment law refers to as "overbreadth"—laws that in the course of criminalizing constitutionally unprotected speech or activities limit or impair speech that is fully protected.

Sadly, Abrams failed even to acknowledge perhaps the most relevant precedent in this case: Burson v. Freeman.  In Burson, the Court considered a challenge to a Tennessee statute that prohibited among other things "the display of campaign posters, signs or other campaign materials, [or the] distribution of campaign materials" within 100 feet of a polling place. The Court concluded that the exercise of First Amendment rights at the polling place "[conflicted] with another fundamental right, the right to cast a ballot in an election free from the taint of intimidation and fraud." Thus, the statute was constitutional.

Like the right to vote, the Supreme Court decision in Roe v. Wade confirms that abortion is a fundamental right.* In both cases, the law restricts First Amendment speech in places where illegal activity has been shown to disrupt the exercise of another fundamental right; the Court's decision in Burson also "effectively prevents...entirely peaceful, nondisruptive [political] advocacy via the distribution of leaflets and oral advocacy at the very places it is most likely to be effective." 

Perhaps Abrams opposes Burson, too. Perhaps not. Or, perhaps he would distinguish the two cases. We don't know, because he didn't say. It would have been helpful for "[t]he dean of the First Amendment bar" to clarify his position.

* Although calling the right to vote fundamental, the Court's jurisprudence makes clear either 1) it is not fundamental; or 2) the Court is confused as to what the right's fundamental status means. But more on this later.

(h/t WSJ's Law Blog)