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?