Constitutional chaos: What is the reach of free speech after the Dobbs abortion ruling? — FAN 346

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Constitutional chaos: What is the reach of free speech after the Dobbs abortion ruling? — FAN 346

Pro-Choice protest outside Supreme Court building

Abortion rights activists pass the Supreme Court with signs showing their support for the court not to overturn Roe v. Wade. (Phil Pasquini / Shutterstock.com)

Justice Kavanaugh's home: "The pickets at justices’ homes — they’ve primarily targeted Justice Brett M. Kavanaugh — are beyond the pale. As I’ve written before, they’re unnecessary; protesters can make their views amply known at the court itself." — Ruth Marcus (The Washington Post, July 9)

Justice Kavanaugh and public spaces: "When public officials go into public life we should expect two things. One, you should always be free from violence, harassment and intimidation. And two, you’re never going to be free from criticism or peaceful protests, people exercising their First Amendment rights," [Transportation Secretary Pete] Buttigieg said. "That's what happened in this case. Remember the justice never even came into contact with these protesters, reportedly didn't see or hear them." (Axios, July 10)

The black barricades erected around the Supreme Court might be understood as a metaphor for the future of free speech in the aftermath of the Court’s controversial abortion ruling in Dobbs v. Jackson Women's Health Organization.

Protests directed at Supreme Court Justices

After Dobbs, have the days of the Justices speaking, or even appearing, in public places become a thing of the past? In but a few weeks, all sorts of free speech issues are presenting themselves as the ideological divide broadens and the domain of free speech protections is called into question. For example, how much free speech latitude should be extended to Supreme Court Justices when it comes to demonstrations in front of their homes? What about when they are in public places (e.g. public universities)? Or when they are in commercial spaces (e.g. restaurants, shopping malls, or movie theaters)? Or what about on sidewalks in front of houses of worship they attend? Or vacation spots they venture to (e.g. Yosemite Park)?

Sarah Jackson & John Dorman, "Morton's has been flooded with phone calls and fake reservations after it said Brett Kavanaugh had a 'right' to 'eat dinner' without protestors gathering outside," Yahoo! News (July 9)

In other words, how robust is the First Amendment when the public officials protested against are judges, and more specifically Supreme Court Justices? One part of the answer depends on the applicable time, place, and manner regulations. Examples include the following:

  • Title 18, Section 1507 of the U.S. Code: This law makes it illegal to picket or parade in front of a courthouse or a judge’s home "with the intent of interfering with, obstructing, or impeding the administration of justice, or with the intent of influencing any judge." As Professor Eugene Volokh has noted: “Such an intent may be hard to prove, especially after the decision has been handed down, and the Justices have already discharged their duties.”
  • State or local laws (e.g. Montgomery, MD ordinance):

Sec. 32-23. Picketing a private residence:

(a) A person or group of persons must not picket in front of or adjacent to any private residence. (b) This Section does not prohibit:

(1) a person or group of persons from marching in a residential area without stopping at any particular private residence.

  • Applicable First Amendment law. e.g. Frisby v. Schultz (1988) 6-3 vote. Per the syllabus, such laws serve a:

significant government interest of protecting residential privacy. An important aspect of such privacy is the protection of unwilling listeners within their homes from the intrusion of objectionable or unwanted speech. . . .  Moreover, the ordinance is narrowly tailored to serve that governmental interest, since, although its ban is complete, it targets and eliminates no more than the exact source of the "evil" it seeks to remedy: offensive and disturbing picketing focused on a "captive" home audience. It does not prohibit more generally directed means of public communication that may not be completely banned in residential areas.

Laws directed at the speech of pro-choice advocates

FIRE Legal Director Will Creeley
FIRE Legal Director Will Creeley

From a June 29 Jeremy W. Peters article for The New York Times:

“You have the right, ostensibly, to talk about abortion,” said Will Creeley, the legal director for the Foundation for Individual Rights and Expression. "The question then becomes whether that talk can be regulated if it aids and abets or encourages others to have an abortion."

"That presents a First Amendment problem,” he added. “Will you still have the First Amendment right to speak when you no longer have the constitutional right to an abortion? And that is going to get messy.”

Proposed abortion law

Proposed by James Bopp, Jr. for the National Right to Life Committee

To ensure that all parties participating in an illegal abortion are subject to enforcement, we recommend that the above criminal penalties for performing an illegal abortion should be extended to anyone, except for the pregnant woman, who (a) conspires to cause an illegal abortion or (b) aids or abets an illegal abortion.

Aiding or abetting an illegal abortion should include, but not be limited to: (1) giving instructions over the telephone, the internet, or any other medium of communication regarding self-administered abortions or means to obtain an illegal abortion; (3) hosting or maintaining a website or providing internet service, that encourages or facilitates efforts to obtain an illegal abortion; (4) offering or providing illegal “abortion doula” services; and (5) providing referrals to an illegal abortion provider. The penalties for such conspiracy, and for such aiding or abetting, would be subject to the affirmative defense for a physician to perform a life-saving abortion.

Corn-Revere responds

Robert Corn-Revere
Robert Corn-Revere

The National Right to Life Committee (NLRC) has drafted model legislation to provide what it calls "an effective enforcement regime" to stamp out abortion. A centerpiece of the proposal would make it a felony to "aid and abet" abortions by "giving instructions over the telephone, the internet, or any other medium of communication regarding self-administered abortions or means to obtain an illegal abortion" or "hosting or maintaining a website, or providing internet service, that encourages or facilitates efforts to obtain an illegal abortion." The law would provide for civil enforcement as well.

These legal tactics and messianic zeal bring to mind Anthony Comstock, the most prominent anti-vice crusader of the 19th and early 20th centuries. Comstock started in 1872 as a vigilante, making 'citizen's arrests' of smut peddlers on the streets of New York. But he quickly became, in the words of H.L. Mencken, 'the Copernicus of a quite new art and science,' one who first capitalized moral endeavor like baseball or the soap business, and made himself the first of its kept professors.

[ . . . ]

[I]t [is] highly unlikely that NLRC's model legislation will succeed. In Bigelow v. Virginia(1975), the Supreme Court struck down a state law that prohibited encouraging or prompting an abortion by the sale or circulation of any publication. Virginia had prosecuted the publisher of a Virginia-based underground newspaper that had run an ad for legal abortion services in New York at a time when abortion had been illegal in Virginia. Among other things, the advertisement stated that "abortions are now legal in New York,' provided contact information "for immediate placement in accredited hospitals and clinics,' and offered to "make all arrangements for you and help you with information and counseling.'"

More statements on abortion speech

"[U]nder fundamental First Amendment principles, individuals must remain free to inform and counsel each other about the reproductive care that is available in other states. Advocates with different views on this issue have the right to, and will, voice their opinions. Peacefully expressing a view is protected by the First Amendment. But we must be clear that violence and threats of violence are not. The Justice Department will not tolerate such acts.” — Attorney General Merrick Garland (June 24)

 "'There will be some tougher questions,” said Eugene Volokh. “Let’s say you’re deliberately advertising in a Texas newspaper and say, ‘Would you like an abortion? Go to this New Mexico abortion clinic.’ Can Texas prohibit that?'"

 Mark L. Rienzi, a law professor at the Catholic University of America, posed a hypothetical that he said could test how courts might apply the First Amendment in a post-Roe world: What if New York State bought billboards in Texas offering to help women there make the journey north for a legal abortion?"

 "[M]onetary contributions and expenditures have long been recognized as an element of political speech, so that any attempt to punish those who offer financial support to groups who aid individuals in their efforts to obtain legal abortions should be on safe ground. Again, tagging any such monetary assistance as funding for political purposes might be wise." — Lynn Greenky (June 17)

Related: The matter of law firm subsidies for abortion traveling 

 Isabella Zavarise, "Read the threatening letter the Texas GOP sent to a law firm that planned to reimburse travel costs for employees seeking an abortion," Yahoo! News (July 9)

Proposed: The Uniform Public Expression Protection Act

In an open letter to the Uniform Law Commission (ULC) released today, 28 nonprofit organizations and trade associations from across the political spectrum endorsed the ULC’s model state law to protect speakers from meritless and retaliatory lawsuits. The bill, known as the Uniform Public Expression Protection Act (UPEPA), was enacted by overwhelming margins in Kentucky and Hawaii earlier this year.

The groups tout the UPEPA as the best defense states can provide against lawsuits intended to silence or punish speech. Even when these lawsuits, known as Strategic Lawsuits Against Public Participation ('SLAPP'), are unsuccessful, they can force speakers to spend tens of thousands of dollars to defend basic First Amendment rights. Anti-SLAPP laws such as the UPEPA aim to prevent litigants from abusing the legal system to retaliate against speech about matters of public concern.

David Keating


"Already, 32 states have anti-SLAPP statutes, though most could be significantly improved by adopting some or all of the UPEPA’s language," the letter explains. "Every state should adopt an anti-SLAPP law that follows the provisions in the UPEPA to provide national uniformity against abusive litigation that undermines First Amendment-protected freedom of expression."

[ . . . ]

"At a time when politics is growing more divisive, protecting free speech in the courts is one thing all sides can agree on. Anti-SLAPP laws are popular across the political spectrum and receive strong bipartisan support because they safeguard everyone’s right to free expression," said David Keating, President of the Institute for Free Speech, a nonpartisan First Amendment advocacy group that defends political speech rights.

In February, the Institute for Free Speech published its first-ever report card of state anti-SLAPP statutes. Only 16 states earned 'A' or 'B' grades. Fortunately, recent years have seen several states adopt or improve their anti-SLAPP laws. Washington adopted a new law in 2021, New York substantially improved its law in 2020, and Colorado and Tennessee adopted solid new laws in 2019.

Forthcoming book: Ben-Porath on universities and cancel culture 

Book cover of Cancel Wars

An even-handed exploration of the polarized state of campus politics that suggests ways for schools and universities to encourage discourse across difference. 

College campuses have become flashpoints of the current culture war and, consequently, much ink has been spilled over the relationship between universities and the cultivation or coddling of young American minds. Philosopher Sigal R. Ben-Porath takes head-on arguments that infantilize students who speak out against violent and racist discourse on campus or rehash interpretations of the First Amendment. Ben-Porath sets out to demonstrate the role of the university in American society and, specifically, how it can model free speech in ways that promote democratic ideals.

In Cancel Wars, she argues that the escalating struggles over “cancel culture,” “safe spaces,” and free speech on campus are a manifestation of broader democratic erosion in the United States. At the same time, she takes a nuanced approach to the legitimate claims of harm put forward by those who are targeted by hate speech. Ben-Porath’s focus on the boundaries of acceptable speech (and on the disproportional impact that hate speech has on marginalized groups) sheds light on the responsibility of institutions to respond to extreme speech in ways that proactively establish conversations across difference. Establishing these conversations has profound implications for political discourse beyond the boundaries of collegiate institutions. If we can draw on the truth, expertise, and reliable sources of information that are within the work of academic institutions, we might harness the shared construction of knowledge that takes place at schools, colleges, and universities against truth decay. Of interest to teachers and school leaders, this book shows that by expanding and disseminating knowledge, universities can help rekindle the civic trust that is necessary for revitalizing democracy.

Two forthcoming books 

Prof. Dennis Baron

The freedom to think what you want and to say what you think has always generated a pushback of regulation and censorship. This raises the thorny question: to what extent does free speech actually endanger speech protection?

This book examines today's calls for speech legislation and places it into historical perspective, using fascinating examples from the past 200 years, to explain the historical context of laws regulating speech. Over time, the freedom to speak has grown, the ways in which we communicate have evolved due to technology, and our ideas about speech protection have been challenged as a result. Now more than ever, we are living in a free speech paradox: powerful speakers weaponize their rights in order to silence those less-powerful speakers who oppose them. By understanding how this situation has developed, we can stand up to these threats to the freedom of speech.

Part memoir, part courtroom drama, part primer for fighting assaults on free speech, Stifled Laughter, the revised edition, is the story of one woman's efforts to restore literary classics to the classrooms of rural north Florida. In 2021, 1,500 books were banned in the United States. More than any other year previously recorded. Johnson's honest, often hilarious, first-person account of censorship in its modern form provides valuable insight into why what our children read at school remains a controversial issue, and why free speech in America remains a precarious right. For anyone who has ever wondered just how far the religious right will go in limiting free expression, this book proves once again that the personal is political. Parents and teachers, writers and readers—all will benefit from Johnson's experience and all will be touched by her spirit.

Claudia Johnson was the first recipient of the PEN/Newman's Own First Amendment Award for her efforts against censorship. She is also a writer and screenwriter in resident at Florida State University's Film School.

Two forthcoming scholarly articles 

'So to Speak' podcast: The First Amendment & LGBTQ rights

“Every advance gay people have made in this country has been the result of the exercise of free expression,” argues writer James Kirchick, author of the New York Times bestseller, “Secret City: The Hidden History of Gay Washington.”

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