“But the Supreme Court has its own buffer zone…”

Whichever way you come down on the sidewalk-buffer-zone series of cases, it’s time to retire the wheeze about how the U.S. Supreme Court is supposedly being inconsistent by not inviting protesters up really close to its entrance doors — though the taunt does conceal something of a genuine point about how smaller, poorer organizations are more likely to have to put up with the annoyances and inconveniences of public space and its concomitant public forum doctrine, as they also do when the forums involved are public parks or schools [Eugene Volokh, earlier]

One Comment

  • As a long-time foe of the Weimar coalition between anti-abortion thugs and various left-wing thugs, I entered Mr. Volokh’s E-auditorium armed with a bag full of rotten E-tomatoes. I was somewhat surprised to leave the auditorium with my bag undiminished: he did make a valid technical point, that the USSC can afford (with taxpayer assistance) to surround themselves with an empty *private* space under more restrictive laws than public sidewalks.

    Does Mr. Volokh argue, then, that a pro-choice State or municipality could lease to an abortion clinic an office facing onto a municipal space where the municipality could enforce USSC-type exclusions? Picketers could, of course, line the adjacent sidewalk, but they would not know whether those passing through are women seeking abortions, or run-of-the-mill municipal employees and public. That would be especially true if the abortion clinic had one or more interior doors to adjacent municipal offices.

    Would today’s USSC uphold such an arrangement? If not, then Mr. Volokh’s argument disappears like dew on gossamer.

    Massachusetts responded to the USSC decision by allowing the police a temporary (12-hour, I believe) right to clear away demonstrators after the occurrence of disorder. Not living in the area, I am not sure how that is working out in practice.

    An approach I might have tried would have taken Justice Scalia’s complaint about viewpoint selectivity at face value:
    Restore the 30-foot buffer, but authorize a vetted roster of law-abiding “sidewalk counselors” (plainly identified) to enter it under these conditions:

    Patient seeks to enter alone: one “counselor” can approach within four feet, not blocking the way.
    Patient seeks to enter with one companion: one “counselor” can approach within two feet, not blocking the way.
    Patient seeks to enter with more than one companion: an equal number of “counselors” can approach withing two feet, not blocking the way. (The abortion clinic would soon put out the word that the number of companions should be kept to a minimum.)