Bubble Machine


My hero Bill Donohue of the Catholic League raises First Amendment concerns about a proposed San Francisco law that would beef up the eight-foot "bubble" rules for protestors at abortion clinics. Under current city law, the clinic client has to demand to be left alone before protestors are required to move outside the legal eight-foot buffer zone (around the client). The bill introduced by Supervisor Aaron Peskin would require protestors to get consent of the client before approaching within eight feet.

"The ACLU should have an interest in opposing this gag rule; we will contact them today," says Donohue, author of Twilight of Liberty: The Legacy of the ACLU. "At stake is not simply the right of prolife protesters, at stake is the right of all demonstrators."

Donohue will be delighted or disappointed to know that ACLU Northern California does plan to oppose the bill. "We continue to believe that making peaceful approaches to people on a public street is quintessential first amendment expression," Margaret Crosby, an attorney with ACLU Northern California, told me when I called the group's office.

The use of the eight-foot buffer zone for clinic patrons, and the requirement that protestors get prior consent to approach people, was upheld by the Supreme Court in 2000 in the case Hill v. Colorado. Since the change in the San Francisco law will only bring it into conformity with the Colorado law, it's likely to fly.

"The ACLU took the position in the Supreme Court that the [Colorado] statute was unconstitutional," says Crosby, "and though the court disagreed with us, we continue to believe it's unconstitutional… In a quiet room people can be eight feet apart and engage in a conversation. That's not true on a public sidewalk. This law may not infringe the free expression of a protestor who wants to hold up a sign with three words on it. But that doesn't hold true for a more sophisticated type of communication. So this protects one form of political speech, but not another. And they're not fungible. This is not the first time we've disagreed with the Supreme Court on the constitutionality of a statute."

For my money, this one is too close to call. Susan Osborne, patient manager of Choice Medical Group, concedes that the protestors are generally nonviolent, but says there have been confrontations where protestors laid hands on a client, stood in the way of the door, etc. "It's not natural for somebody to be confronted like that and have to be confrontational back," she says. "[The protestors] are not violent. But from the patient's point of view, they're very intimidating." It is reasonable, I think, to consider that intimidation can in some cases be so great as to be an infringement on the client's right to conduct business in the clinic. Osborne, who calls the San Francisco proposal "not ideal, but the best we can do right now," confirms that some clients have been dissuaded, at least temporarily, from using her clinic.

Still, I find it difficult to square a right to free expression with a requirement to ask permission before handing somebody a leaflet or trying to start a conversation. Slippery slope conceit: Couldn't celebrities also claim a need for such a buffer zone? How about shy people?

NEXT: Deconstructing Terrorism

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  1. I can think of a lot of media outlets who should be forced to ask my permission before spewing their BS – CNN, MSNBC, PBS, Fox News, the NY Times, USA Today, Reuters, the AP, etc etc etc

  2. The above should read “spewing their BS within my earshod.”

  3. The above should read “spewing their BS within my earshod.”

    You put shoes on your ears?

  4. only if you can clean them with a shoehorn.

    though the PP parties on saturday mornings tend to be staffed either by very polite older people or absolutely obnoxious fucktard all-ages groups. considering not everyone goes to PP to get an abortion (obgyn services/STI testing/birth control etc) yelling “don’t do it” and “baby killer” to everyone seems sort of heavyhanded.

    at the same time creating a statute preveting them from being fucktards sucks as well. i’d rather err on the side of free speech, though.

  5. when everywhere else protesters are confined *within* 16 foot circles, why is one particular case where protesters are excluded from a 16 foot circle anywhere near the top of our list of concerns?

  6. Of course, if clinics were privately owned and operated on private property, this wouldn’t be an issue…

  7. Funny, I bet old Battlin’ Bill would be the first to sign on to a law that would restrict anyone from protesting outside of one of a catholic church. Donohue hasn’t met a controversy (real or imagined) that isn?t some sort of anti-catholic bigotry. Note that he had no problem pressuring the FCC to threaten to pull WNEWs license over the Opie and Anthony ?Sex for Sam? stunt. That tool?s responsible for crappy, crappy afternoon drive radio here in DC.

    You?re mom?s box!

  8. What if the protestor’s violent act or the stress of the situation caused a miscarriage?

    No, I didn’t ask that stupid question…

  9. No one has a right to block someone else from his or her legal movement. Anything beside accidental obstruction is an assault. Any yelling or other commment on the intentions of another is also an assault. If someone obstructs my passage, I might be forgiven if I accidently fall on them, and I weigh 220. If I am then injured, I just might sue. This new deal crap that actions on picket lines somehow are above the law has caused enough trouble.

  10. Josh,

    Planned Parenthood is a private organization. They do happen to be, like most places, adjacent to a PUBLIC STREET!

    This is a good. Somehow requiring people to ask you whether you want something doesn’t smack of the rise of fascism. Besides, its fucking POLITE!

  11. The Catholic League = Superpope, The Inquisitioner, Silent Woman, Oddly Touchy Father, Tridentine Man (who refuses to speak to anyone else), The Gin Blossom and, of course, Rose.

  12. I’ve always thought this an easy case, not a hard case. Whether one finds a speaker on a public street to be “confrontational” or the speech to be distasteful or impolite has nothing to do with the speaker’s right to speak. Or, at least, that’s the rule in every context but anti-abortion speech.

  13. “The public sidewalk” is an interesting concept. In many jurisdictions, it is technically private property, before the city/town/village decides to install them. Property owners are frequently hit with a special assessment to pay for laying the walks down, or repairing existing ones. Owners can be obliged to clean the walks in front of their buildings of snow or litter, or be fined. Still, while an owner has all the inconvenience of owning a piece of property, he forfeits control to the state.

    In my municipality, I understood the rules for such practices as asking people to sign a petition as thus:

    Stand on the roadway side of the walk. If you stand on the other side, you may unintentionally stray onto the part of the property the state allows the owner to control. Don’t block anyone’s progress as they walk. Don’t touch anyone. Don’t use amplification equipment that requies a permit, unless you get a permit. Don’t restrict anyone’s access to any building. Don’t damage any private or public property.

    If one follows this behavior, the police will let you be. The Anti-abort/P-L crowd feel a moral duty to throw their bodies in the path of those they cannot persuade to stop and listen to them, and as such, fall into the “civil disobedience” category. Sometimes that means you go to jail, same as anti-nuke nuns hammering on cruise missiles do. Fair is fair.


  14. the best part of the opie and anthony “scandal” was that those two nitwits had actually found a form of sex within the catholic church that they would act against. nice break from running that pedophile dating service.

  15. “In many jurisdictions, it is technically private property, before the city/town/village decides to install them.” Untrue! The public right of way often extends beyond the paved road. It may look like your front yard, but check your deed. Whether it’s grass or concrete, the government owns the entire width of the RoW, even before it chooses to utilize it.

  16. Would you people by offended by laws preventing a Klansman in robes and hood from approaching a black man without his permission? The reality of antiabortion violence should be taken into account here.

  17. kevrob–you misunderstand what this legislation does. This legislation prevents handing out handbills or leaflets, for example. That can’t be done without approaching within 8 feet of another person. The notion that this is the typical sort of regulation is false; this is something else entirely. It aims to prevent effective communication solely because of the content of the communication. In the old days, that was thought clearly unconstitutional. I had thought that libertarians still thought it a bad idea.

  18. joe, you are right about the right of way. If I own a piece of land, it’s all mine, up to the RoW. If I subdivide it, and, as is usual practice, build a road that I donate to the municipality, I will include a RoW up to the property line of the new lots. This does not change the fact that the owners of the lots may be required to keep up the space between their property line and the curb or road shoulder, at their own expense. Didn’t we abolish the corvee’? 🙂

    Seriously, I never minded mowing my Dad’s lawn “below the property line.” It sure beat county weed control doing it and tacking a charge onto the annual property taxes!

    As for the proposed legislation, I don’t think the AA/PL crowd should be under any stricter rubric than someone handing out menus or “Vote for Smith” leaflets or whatever, except where specific people’s actions have led to an injunction against harrassment, or a restraining order against someone who has committed an act of violence, vandalism or intimidation. A high standard of proof should be the rule when even temporarily restricting freedom of expression on the public way.


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