High Court to Weigh Free-Speech Rights

Does the 1st Amendment give someone a right to walk beside you on the sidewalk and shout in your face?

The Supreme Court, reentering the battle over abortion, agreed Monday to answer that question.

The ruling will likely affect not just antiabortion demonstrators, but also sidewalk panhandlers and protesters of all sorts, from gay-rights activists to union picketers.

Two years ago, the high court upheld a judge’s order that created a 36-foot “buffer zone” at the entrance of an embattled Florida abortion clinic. On a 6-3 vote, the court said that a no-picketing zone was needed to allow patients and staff to enter and exit the medical facility freely.

Since then, however, some judges and city officials have expanded on that concept and put into effect measures that ban all antiabortion picketing in neighborhoods where abortion doctors live as well as on sidewalks near their clinics.

Last year, the U.S. 2nd Circuit Court of Appeals in New York upheld a judge’s order that bars antiabortion activists from coming within 15 feet of patients, doctors or nurses who enter or leave a clinic in Buffalo, N.Y. Two “sidewalk counselors” may approach a patient to urge her not to enter the clinic, but they may be fined $10,000 if they do not step away if the woman says she does not want to hear their message.

That 1992 order followed years of demonstrations, including several “blockades” organized by Operation Rescue.

The 1st Amendment’s free-speech clause protects “peaceful persuasion . . . not coercive or obstructionist conduct,” wrote Judge Ralph Winters for the appeals court. “In my view, there is no right to invade the personal space of individuals going about lawful business, to dog their footsteps or chase them down the street, to scream or gesticulate in their faces.”

But lawyers for the abortion protesters say the whole purpose of the 1st Amendment is to protect speech on a public sidewalk “that is unpopular, unpleasant, disturbing or even despised.” If the lower court opinion is upheld, they say, it will threaten “union picket lines, gay-rights activists and all other antiestablishment protesters who hassle the American people by challenging the status quo.”

The dispute over abortion picketing has split the court’s conservatives along generational lines.

Chief Justice William H. Rehnquist, who came to Washington in the late 1960s, has taken a dim view of free-speech rights for protesters and demonstrators. He wrote the 1994 opinion upholding the no-picketing zone outside the Florida clinic.

But a newer generation of conservatives who gained eminence in the 1980s, led by Justice Antonin Scalia, have championed free speech and railed at the restrictions on abortion protesters. Two years ago, Scalia strongly dissented from Rehnquist’s opinion, and he was joined by Justices Anthony M. Kennedy and Clarence Thomas.

Women’s rights activists said they were surprised the court agreed to hear the appeal filed on behalf of abortion protesters.

“I believe in the right to free speech, but I don’t want someone harassing me when I go in for a medical procedure,” said Deborah Ellis, executive director of NOW Legal Defense. “If you are dogging someone down the sidewalk, that is not peaceful 1st Amendment activity. It is like stalking.”

But the attorney for the abortion protesters said the court in the past has upheld the right of strikers to shout at and harass laborers who cross their picket lines. It has also protected civil rights protesters who loudly boycotted whites-only business establishments.

The case, known as Schenck vs. Pro-Choice Network of Western New York, 95-1065, will be heard in the fall.