Thursday, January 16, 2014
The Court has upheld such prophylactic legislation for buffer zones around clinics in Hill v. Colorado. And it has upheld a similar 35 foot buffer zone in Madsen v. Women's Health Center as a prophylactic remedy to protect against further assaults and violations of constitutional rights. In these past cases, the Court seemed to give more deference to legislation rather than judicial remedies. But now, in possibly striking down a legislated buffer zone, it seems to be leaning the other direction: contemplating permitting a broader restriction on the protestors protected speech only after a harm has been established in a judicial case. I wrote a little about this contrast between prophylactic legislation and remedies in Congress' Section 5 Power and Remedial Rights, 34 UC Davis L. Rev. 673 (2001).