“Congress shall make no law … abridging the freedom of speech.” These words account for less than 0.1 percent of the Constitution’s overall text; yet, if a recent Crimson Staff Op-ed is to be believed, there is nothing more to our founding charter than those 10 words. According to the Crimson, the Constitution’s free speech protections are of such paramount importance that they prohibit the erection of 35-foot buffer zones (areas in which protestors may not legally enter) around abortion clinics. This stance shows a callous disregard for the wide range of liberties the Constitution seeks to protect; additionally, it is symptomatic of a pervasive, unhealthy fetish with free speech that is hurting American democracy.
Clearly, the importance of free speech is of greater weight than its textual presence indicates. Robust speech protections are undoubtedly a necessary cornerstone of democratic government. But real democracy, the kind of democracy that our constitution seeks to implement, requires more than just free speech.
Alongside the freedom of speech, the Constitution also protects a wide range of important values. Some are very specific: women, persons of every race, and adults eighteen years of age and older are guaranteed the right to vote; poll taxes are impermissible; the quartering of troops during wartime is prohibited; and slavery is categorically banned. Other rights are more vague: Congress is prohibited from “abridging” the freedom of speech; citizens are protected from “unreasonable” searches and seizures; and everyone is assured “due process” and “equal protection” of law. Yet for all the Constitution’s effort at listing protected freedoms, the document does not tell us what to do when these rights conflict.
What should we do when attempts to respect the free exercise clause privilege religion over non-religion in ways that implicate the establishment clause? How do we resolve instances where the state’s duty to ensure domestic tranquility seems to infringe on privacy rights? And how do we settle the numerous instances where an alleged speech claim is in tension with other important values, such as a woman’s right to choose? There is constant debate about how much weight each of these constitutional rights should be accorded and how we should balance these weights when they conflict.
These cases are notoriously difficult because the Constitution offers no overarching standard for their resolution. Inevitably, an appeal must be made to extra-textual values to settle the dispute. That is why law is necessarily a value-laden process and why judging can only make sophist pretenses at value-neutrality. But for all the difficulty in resolving these dilemmas, one thing is abundantly clear: when one of these freedoms is valued to such an extent that it seriously erodes our remaining liberties, something has gone horribly wrong in the balancing act.
That is the predicament in which America currently finds itself. For the past several decades, free speech has been accorded such an inordinate value that it is slowly obliterating some of our most cherished freedoms. In Boy Scouts of America vs. Dale (2003), for instance, the Supreme Court held, counter to centuries of free speech jurisprudence, that an organization’s alleged right to express non-core viewpoints trumped a state’s right to eradicate the socially corrosive effects of invidious discrimination. In United States vs. Stevens (2010) the Court likewise held that a porn company’s right to film and sell animal crush videos (in this case, a video where a woman crushed the skull of a live kitten with her stiletto heel) outweighed a state’s right to protect animals from undue cruelty. Perhaps most notoriously, in Citizen’s United, the Court held that a corporation’s free speech claims outweighed the state’s right to protect the integrity of the electoral process. The problem with all these cases springs from the same diseased root: a gross misunderstanding of the value of free speech relative to other constitutional objectives.
In McCullen v. Coakley we are, yet again, faced with a constitutional dilemma where freedom of speech is in tension with another protected value—in this case, a woman’s right to choose. As the Crimson sees it, the choice is easy: we must decide between preserving freedom and securing safety at the expense of liberty. That dichotomy is irresponsibly misleading. As is frequently the case with constitutional dilemmas, freedom is not just on one side of the equation, it is on both. As well as the protestor’s freedom to express his viewpoint, there is also the woman’s freedom to carry out an abortion in a safe environment without undue stress.
In a last-ditch effort to respect women’s freedom, the Crimson mentions that what is actually wrong with Massachusetts’s buffer zone is its size. A smaller zone, they suggest, would more easily satisfy constitutional standards. That statement is preposterous. It is ludicrous to suggest that determining the exact size of a buffer zone is properly within the reach of judicial competency. Questions concerning exact measurements have been traditionally left to the discretion of legislatures—and rightly so. While Massachusetts is certainly not at liberty to erect a buffer zone that encompasses the entire commonwealth, it most certainly can erect a 35-foot buffer zone when, in good faith, it believes that size is necessary to protect the safety of women and their health providers. Unless there is overwhelming evidence to the contrary, the Court has a duty to defer to the state’s judgment in this case.
The failings of the Crimson article are more grave than mere ignorance regarding judicial function. Their primary error is the inordinate weight they attach to free speech. On this score, they resemble those religious zealots who read the proscriptions against homosexuality in Leviticus without considering the Bible’s overarching purposes. The Constitution, read as a whole, is about more than simply ensuring freedom of speech. That right only makes sense if we understand it as part of a rational continuum of freedom that embraces a far greater range of values. Respect for that overarching mission should lead the Court to uphold Massachusetts’s buffer zone.
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