An Inconvenient Amendment

By Jonathan S. Tobin

Tuesday, July 24, 2018 6:30 AM

When former New York State attorney general Eric Schneiderman initiated a lawsuit against a group of pro-life protesters last year, he may have thought it would be easy to shut down their vigil at a clinic in Jamaica, Queens. The attorney general’s office set up a camera outside the site, sent in decoys who could serve as bait for those looking to harass or intimidate women seeking abortions, and hid microphones on the women’s escorts.

But the evidence from a year’s worth of surveillance wasn’t enough to convince a federal court that the state had a case. Judge Carol Bagley Amon of the Eastern District of New York ruled on Friday that the 13 defendants Schneiderman (who resigned in disgrace in May after allegations surfaced of him physically abusing women) singled out didn’t have “the intent to harass, annoy, or alarm” patients entering the Choices Women’s Medical Center. The judge therefore turned down the government’s demand that a buffer zone be created that would make it difficult for protesters to speak or hand out pamphlets to those entering the facility.

Judge Amon said the evidence procured from the government’s stakeout of the vigil made it clear the pro-lifers had stuck to their practice of offering alternatives to abortion and handing out literature and that they had backed off when rebuffed. As with a recent separate case that concerned a vigil in Queens in which police were illegally ordering protesters not to speak to patients, those involved were not actually violating a New York City law that forbids “following and harassing.” They were just exercising their First Amendment rights to free assembly and to voice their views.

Strictly speaking, the ruling has no legal implications for future litigation that might seek to overturn the Roe v. Wade decision legalizing abortion or even about rules that protect abortion clinics against violent or intrusive protesters since the judge was careful to state that if those involved did cross the line into harassment of patients, they would be prosecuted.

But the limited nature of the case hasn’t prevented liberals from decrying the outcome not merely because it thwarted efforts to spike pro-life vigils but as a harbinger of future judicial defeats. As far as those quoted in a New York Times story on the ruling were concerned, the failure of Schneiderman’s effort is just one more instance of conservatives “weaponizing” the First Amendment.

As noted here earlier this month, the talk about “weaponizing” speech stems from U.S. Supreme Court Justice Elena Kagan’s lament that the ability of conservative plaintiffs to successfully invoke their First Amendment rights in cases ranging from religious freedom, campaign-finance spending, union dues, and pro-life advocacy is causing consternation on the left.

It’s not just that liberals suspect the addition of a strict constructionist conservative in the form of Judge Brett Kavanaugh to replace Justice Anthony Kennedy will likely mean that laws imposing restrictions on abortions will get a fair hearing or that Roe might be endangered. Their problem is that rulings which extend the Constitution’s protections for free speech to people whose opinions they despise might mean that that efforts to use the power of the government to repress such retrograde forces are effectively doomed.

Protests at clinics are a controversial topic because there is a history of violence and harassment by some anti-abortion activists. It is also true, as Judge Amon stated, that patients seeking to avail themselves of the services available at abortion clinics — which also includes women seeking health care unrelated to abortion — have a right to do so without physical harassment or fear of violence. But protecting those rights does not deprive others of their right to free speech so long as they are, as those attending the vigils at the Choices Women’s Medical Center were, acting as “sidewalk counselors” rather than actively blocking and harassing patients.

The notion that one group’s rights erase another’s is a constant theme in liberal jurisprudence these days. A separate Times article published Monday presented evidence on whether Kavanaugh will support the precedent set in the Citizens United case by harping on his repeated quotation of this phrase from the 1976 Buckley v. Valeo decision: “The concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.”

That seemingly unexceptionable idea that was once at the core of liberal ideas about the First Amendment, applied across the board to all sorts of actions or opinions — from radical street protestors and Nazis to pornographers — is now deeply controversial among those who see the Constitution as having become, in the words of leftist scholar Catherine MacKinnon, a “sword for authoritarians, racists and misogynists.”

Having established that behaving in an offensive manner — such as burning an American flag — was constitutionally protected free speech, liberals now shrink from protecting the rights of those with whom they disagree. Today, even the ACLU is foreswearing the defense of causes it finds repugnant. Liberals believe that those seeking abortions should not only have the right to do so but that the government should act to restrain and, if needs be, silence, those who seek to dissuade them even if they are acting in a peaceful manner. Abortion-rights supporters who oppose these “sidewalk counselors” aren’t so much defending access to clinics, which is not in question at the Queens facilities, as much as they are defending patients from what they believe is offensive speech. Telling someone of alternatives to abortion or about the fetus they are seeking to abort may well be unpopular in certain quarters as well as obnoxious to the patient but the First Amendment does not allow it to be prohibited.

Defending these protesters’ rights isn’t “weaponizing” an Amendment that was long believed to apply to everyone but which some on the left now think ought to be denied to those who advocate for unpleasant conservative ideas such as the pro-life movement. Now that it is conservative Christians, union dissidents, or pro-lifers rather than radical leftists who are more likely to need a civil-liberties lawyer, the liberal legal establishment that an activist attorney general like Schneiderman embodied has no more use for the First Amendment. The stakeout he planned demonstrated that he gave no thought to the rights of the protesters.

Cases such as these may be a rallying cry for liberals who fear that their ability to silence opponents is being curtailed. But it ought to be just as important for conservatives since it illustrates that free-speech rights, like those of religious liberty, hang in the balance when federal judges are being nominated and confirmed. As much as the Left is mobilizing to defend Roe, conservatives need to understand that keeping a Republican Senate is integral to ensuring that the First Amendment remains a sword defending the rights of all Americans.