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May 3, 2015

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First Amendment, loved and loathed

One court says it’s OK to take voyeuristic videos of women. Another says it’s OK to harass them as they enter abortion clinics. Both cases sound like the makings of a new war on women — yet both were correctly decided.

Four months ago, the Massachusetts Supreme Judicial Court provoked an uproar by ruling that it was legally permissible to take pictures up women’s skirts. At least, that was how many saw it. “Massachusetts court says ‘upskirt’ photos are legal,” read a CNN headline.

The justices weren’t, of course, out to make the world safe for voyeurs. The problem was the statute itself: It actually didn’t prohibit upskirting. The court practically invited Massachusetts to change the law, pointing to models from other states. That happened, and police recently made their first arrest under the state’s new, more specific law.

But why go through all of this — and in the process, let off one Michael Robertson, the creep whose actions led to the Supreme Judicial Court case? It should have been obvious to the justices that this kind of stuff should be illegal.

Obvious, perhaps, but that’s not what judges are supposed to do. They parse language, interpret meaning and balance interests — but they shouldn’t write laws. That’s the prerogative of legislators, or, through the initiative petition process, the people.

The recent “buffer zone” case has provoked yet another uproar. The U.S. Supreme Court struck down a 2007 Massachusetts law prohibiting speech opposing (or even favoring) abortion within a 35-foot radius around abortion clinics. Much public reaction was harshly critical. The decision “shows a troubling level of disregard for American women,” said the head of the Planned Parenthood Federation of America. Gubernatorial candidate Don Berwick called it “a loss for women.”

It’s currently popular to believe, particularly when it comes to the Supreme Court, that ideology, not constitutional principle, drives judges’ opinions. But the decision was unanimous, including liberal and female justices. That fact alone suggests something else was at play.

That something else was the First Amendment. The state’s buffer zone was an obviously faulty piece of legislation, one that cut too freely against the constitutional right of free speech.

The amendment, I think, is popular in the abstract — a piece of secular sacred text, if you will — but not beloved in its application. We all favor free speech for those with whom we agree. But we’d just as soon squelch those we strongly disagree with, or, at a minimum, put them off in a corner where they won’t bother us. Dissenting speech can be annoying, upsetting, even offensive, especially when it’s up close and personal. That’s what seemed to upset many commentators the most about the buffer-zone decision. They viewed pro-life speech outside of clinics as a kind of bullying, an intrusion on women’s personal space at a time fraught with distress and anguish.

But that, too, is part of the First Amendment; constitutionally, the government can’t shield us from speech even if that speech disturbs us greatly. (If it could, you’d doubtless see a demand for buffer zones against a broad range of loud and insistent protesters.)

Of course, quelling speech wasn’t the professed purpose of the buffer zone. Its avowed concern, in the wake of shootings and threats of violence, was with women’s safety and access. Limiting speech was just a means to achieve those goals.

Courts have long recognized that interests like safety and access can require “narrowly tailored” limits on speech. It was the “narrow tailoring” requirement that tripped up the buffer. Read fairly, the court’s opinion was a matter of line drawing. Massachusetts’ buffer treaded too heavily, prohibiting all speech at all times of the day: belligerent and potentially threatening as well as quiet and nonconfrontational.

More targeted rules might pass muster. As with the voyeurism case, the court suggested alternatives, including more acceptable laws in states such as New York.

Absent getting rid of the First Amendment, pro-life speech around abortion clinics isn’t going to stop. But safety and access are different matters. It took the Massachusetts legislature only a day to pass a new upskirting law. A fix here won’t come as fast but is needed soon.

Tom Keane is a columnist for the Boston Globe.

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