The ACLU “evolves” on speech rights

In McCullen v. Coakley, the Supreme Court will reconsider its 2000 decision in Hill v. Colorado, which upheld a law prohibiting (among other things) leafleting and some other forms of peaceful protest within 100 feet of an abortion facility. (Massachusetts in 2007 passed a similar law which is now under challenge.) Noted civil libertarian Floyd Abrams, writing in the WSJ, sees the case as a straightforward one of supporting free speech for a position with which he happens to disagree. But the ACLU, Abrams notes, has changed its position between the earlier case and this one, and in a speech-unfriendly direction:

In a friend-of-the-court brief in Hill, the ACLU argued that because the Colorado statute “burdens substantially more speech than is necessary to accomplish the state’s goal,” the statute was facially unconstitutional. When the 2007 statute was proposed in Massachusetts, the Massachusetts ACLU opposed it, stating that “[i]f the message is unwelcome, as it often will be outside abortion clinics, the constitutionally appropriate response in a public forum is for the listener to walk away.”

But now that McCullen has reached the Supreme Court, both ACLU groups have switched sides. Their position, their brief states, has “evolved over time” and the Massachusetts law is, after all, constitutional on its face. Of course, the First Amendment has not changed in the 14 years between the filing of the ACLU briefs in Hill and McCullen; the ACLU has.

The old ACLU got it right.

P.S. More from Jonathan Adler. And the Cato Institute filed this amicus brief in the case of McCullen v. Coakley.


  • The ACLU has it right in these buffer zone cases.

    The issue is not free speech– no one questions the right of anti-abortion people to preach to the public at large, or to peaceably assemble and petition the government for new abortion restrictions– but rather coerced listening: cornering private individuals on private business to hear (again and again) a message they have already heard and rejected, and meanwhile seizing the opportunity to physically block said private individuals from their lawful private business.

    Uphold the anti-abortion people in this case, and then there is no legal way to prevent other fanatics from camping out (complete with bongo drums and loudspeakers) in front of private residences of people they don’t like (eg. anyone who has contributed to a libertarian cause), or from sending soundtrucks to badger target neighborhoods late at night.

    Some anti-abortion fanatics point out laws tolerating picket lines by strikers, but those laws are statutes, not Constitutional rights. Congress has decided to give strikers some leeway against strikebreakers who are taking their jobs. There is no requirement to extend the same right to busybodies harassing strangers. And even strikers would face restrictions if they had the same record of lawlessness, violence, and even murder of the Boston-area anti-abortion demonstrators.

    A USSC decision to uphold the Massachusetts buffer law would direct the energies of the anti-abortion people back where the First Amendment specified– in the public square and political arena.

    I use the term “Weimar Republican” to describe that branch of the party which panders to religious-right extremists.

  • Hugo,

    Can you please show me in the text of the First Amendment the words “public square and political arena?”

    I seem to be missing it.

  • GC–

    I had in mind “the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” It is certainly closer to the mark than a “right to listen” conjured up by right-wing “Boston Globe” columnist Jeff Jacoby on behalf of the anti-abortion protestors. Presumably Jacoby had in mind a “right to [force private individuals to] listen.”

  • Hugo.

    I read Jacoby’s column and I don’t see where he or anyone is advocating people be forced to listen.

    If part of the purpose of the first amendment is the exchange of ideas, then moving voices so far away from people where they cannot be heard seems to be contrary to that idea.

    It bothers me to some extent that this law targets pro-life protesters, but leaves in place the idea that PeTA picketing KFC’s are acceptable. Or perhaps you remember the targeting of business that supported the traditional definition of marriage.

    If we are going to say “move down the street where you cannot be heard,” then we have to do that for all groups and not just groups whose speech is of a certain content.

    Finally, you may or may not remember that back in 1993, Melbourne, Fl was “ground zero” for pro-life protests and pro-choice advocates. The battleground was a clinic just off of US1 on the north side of Melbourne. It also happens to be in my back yard.

    To say the least, the encounters were brutal. I know because I was there. While I am pro-life, I am sympathetic to the idea that you are putting forth that yelling, screaming, threatening and demeaning those seeking an abortion is not the way to have people see the wisdom of your views. I am of the mind that if you don’t want to listen, walk away. If you want your message heard, convey it in a way that will be heard. Trust me when I say that I argued more with people on the pro-life side who were yelling at people than I did with pro-choice people.

    In short, while I don’t agree that there is a “right to be heard,” I also don’t believe that the government should prevent an idea from being heard when it is expressed on public property and in the public arena, especially when that restriction is based not on the methods of communication, but the content of the message.

    In effect, a CONTROL “cone of silence” in the public arena in my opinion contrary to the First Amendment and the rights of people.

  • Hugo,

    In your scenario, who decides a particular viewpoint has been heard and when that viewpoint has been heard enough? Also , when should “camping out” by busybodies be excluded, and who decides whether one particular group meets your definition of busybody?

  • Hugo,
    I just read some pieces penned by Jacoby, and you either have great difficulty in comprehension or are intentionally misrepresenting his words. Perhaps you can point me to an article in which Jacoby advocates forcing people to listen. While you are at it, please post links of the “lawlessness, violence, and even murder” of Boston pro-life demonstrators. Keep in mind, being arrested for protesting does not count.

    BTW, checked out your website, how’s your love of the USSR working out? Now there’s a country that knew how to protect rights of free speech.

  • JH–
    Ref. my Cyberussr website–
    Look up the words “satire” and “irony” at,
    and then take a closer look at the mix of commentary and original source materials at my Soviet website.