Skip to comments.Scalia: Supreme Court is letting liberal politicians crush pro-life free speech
Posted on 06/27/2014 5:54:16 AM PDT by wagglebee
WASHINGTON, D.C. – Most pro-life groups had a warm response to today's Supreme Court decision in McCullen v. Coakley, finding that the state of Massachusetts had overreached when barring pro-life sidewalk advocates from exercising their free speech rights within a 35-foot zone of abortion facilities.
But three justices, led by Antonin Scalia, issued a scathing rebuke to part of the otherwise unanimous decision.
“Today’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 the onward march of abortion-speech-only jurisprudence,” he wrote.
The justices unanimously struck down the Massachusetts law, but Chief Justice John Roberts sided with the court's liberal bloc in saying the state had not violated sidewalk counselors' rights by prohibiting their speech while allowing abortion escorts to speak freely.
“I prefer not to take part in the assembling of an apparent but specious unanimity,” Justice Scalia wrote in a concurring opinion joined by Justices Anthony Kennedy and Clarence Thomas.
“It blinks reality to say, as the majority does, that a blanket prohibition on the use of streets and sidewalks where speech on only one politically controversial topic is likely to occur—and where that speech can most effectively be communicated—is not content based,” he wrote.
“The obvious purpose of the challenged portion of the Massachusetts Reproductive Health Care Facilities Act is to 'protect' prospective clients of abortion clinics from having to hear abortion-opposing speech on public streets and sidewalks,” the joint concurring opinion continued.
“The provision is thus unconstitutional root and branch,” he wrote.
The law, he said, clearly intended to silence all pro-life advocacy near abortion facilities.
The three criticized the majority's view that the state law was not “narrowly tailored” because the pro-life counselors had not engaged in sufficient violence to warrant the statute. “That is rather like invoking the eight missed human targets of a shooter who has killed one victim to prove, not that he is guilty of attempted mass murder, but that he has bad aim.”
Justice Scalia also rapped the court's liberal wing for telling Massachusetts lawmakers to “consider an ordinance such as the one adopted in New York City that . . . makes it a crime ‘to follow and harass another person within 15 feet of the premises of a reproductive health care facility.’”
“Is it harassment, one wonders, for Eleanor McCullen to ask a woman, quietly and politely, two times, whether she will take literature or whether she has any questions?” he asked. “Three times? Four times? It seems to me far from certain that First Amendment rights can be imperiled by threatening jail time (only at 'reproductive health care facilit[ies],' of course) for so vague an offense.”
Justice Samuel Alito had questioned why abortion escort's free speech rights would be respected within the bubble zone but pro-lifers would have their rights denied.
Imagine if two people spoke to a woman considering an abortion, he said during oral arguments months ago. “The first, who is an employee of the facility, says, ‘Good morning. This is a safe facility.’ The other one who’s not an employee says, ‘Good morning, this is not a safe facility.’ Now, under this statute, the first one has not committed a crime; the second one has committed a crime,” he said.
Justice Alito did not join Scalia's opinion but filed his own concurrence. “It is clear on the face of the Massachusetts law that it discriminates based on viewpoint,” Justice Alito wrote. “Speech in favor of the clinic and its work by employees and agents is permitted; speech criticizing the clinic and its work is a crime. This is blatant viewpoint discrimination.”
Scalia understands that the Big Murder wants to extinguish any opposition.
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Now, there's a surprise! /S (heavy)
The justices make an excellent point on the content of speech. Who would decide weather a person was pro-abortion escort or an anti-abortion protestor based on their rhetoric?
Couldn’t a person serving as an escort, gently lead a young pregnant woman to the clinic door while saying, “come along now deary, let’s get you safely into the clinic where they can (insert your most graphic description of abortion here).
I must be particularly dense this morning.
If the ruling was unanimous, and the buffer-zone law was struck down, against what is Scalia railing?
In myriad rulings, it is the sidebar or collateral opinions that are more telling than the final ruling at bar. Additionally, important notions are also buried in the footnotes. So while pro-lifers won on this narrow decision, they will lose in another case in the future crafted to meet these collateral opinions espoused in this ruling.
Scalia wrote for himself, Kennedy, and Thomas.
Alito wrote separately, but very similar to Scalia’s opinion.
Roberts is becoming more and more disappointing with each term.
Bush should have nominated Janice Rogers Brown for CJ.
I'm actually surprised that Kennedy signed with Scalia.
Wut? Is Justice Kennedy trying to redeem himself?
Curious now, can you distill the essence of the NY law down to a short sentence?
When a case is being deliberated, the Justices may meet to discuss it, or they may have their clerks shuffle messages back and forth; eventually they determine which way the decision will go and who will write the opinion for the majority. The opinion states the legal basis for the opinion, often in many pages, and is entered into the record. All SCOTUS interpretations of law, majority and minority, can prove important to future cases.
This case had no minority but in a case that does, one or more justices can attach minority opinions to clarify on what legal grounds they disagree.
Even if they side with the majority opinion, Justices have a right to attach additional opinions for the record to clarify what they mean -- and what they do not mean to imply -- in siding with a majority. Scalia is saying, "I agree with the outcome of shooting down this law; I disagree with some of the premises of the majority opinion, and particular assumptions future cases may try to make because of the way the majority opinion is stated."
SCOTUS lawyers try to cherry-pick phrases from decisions to use as levers in future arguments. So these "exceptions to the rule" are important.
Excellent - thank you both.
With the exception of Kennedy’s love for the gay agenda (last year’s DOMA opinion), he has been edging further to the right ever since the current pResisent took office.
Roberts on the other hand has been noticeably trending to the left.
Part of me wonders if his role in presiding over the FISA court has influenced him.
That is, he knows vastly more than most about how significant the internal spy network is and how those not in the good graces of our future dictator will be disposed of.
That’s just a theory. It’s also possible that he took his eye off the ball and is fighting to bring respect to the judiciary as opposed to fighting to uphold the Constitution.
I can’t help but wonder what the court would look like with Scalia or Thomas (or Alito) as chief.
Roberts would be much better as an associate.
It’s that pressure from the NYT and such on a young CJ and his legacy blah blah blah that led to the 0bamacare decision.
Strong leadership from someone like the three I mentioned would have given him the cover to vote the way he originally wanted to without the fear of headlines like “The Roberts Court Right Wing Activism”.
Lots of politics at play here.
Notice how Roberts joined the left (5-4) on the reasoning in the recess appointment case and the Abortion Buffer Zone case.
The media’s account of unanimity was either misleading or ignorant.
The judgements were technically unanimous, but the lasting precedent and meaning for lower courts in the future are unimpressive.
If Roberts goes against Hobby Lobby then he’s not much better than Suter.
We can only pray he hasn’t completely sold his soul.
Roberts is a creature of DC. He’s infected and it will get worse. Scalia and Alito are right on the money. Roberts is looking for ways to abridge the speech rights of pro lifers. He is an asshole in plain English.
John Roberts: The FAIL that keeps on failing