Rules of Engagement for Cultural Wars: Regulating Conduct, Unprotected Speech, and Protected Expression in Anti-Abortion Protests - Section II

In important respects, freedom of speech reinforces virtually every other important right protected by the Constitution. This is as true for privacy rights and reproductive freedom as it is for the right to racial equality and the right to practice one's reli­gion without state interference. To cite only one obvious exam­ple, freedom of speech directly facilitates the right to have an abortion by invalidating laws that prohibit the advertising of abortion services. Despite this obvious and important truism, there is also no question that expressive activity in some circumstances may inter­fere seriously with the right of women to choose to have an abortion. To the extent that the First Amendment can be as­serted to protect expression of this kind, courts must confront a conflict between constitutionally protected interests. Complex issues of constitutional law arise when the First Amendment is raised as a shield to protect expressive activity that burdens reproductive autonomy. This complexity has several sources. First, it is never a simple task to reconcile or balance competing interests of recognized importance when two rights are ostensibly placed in conflict. Second, expressive activity regarding abortion occurs in a variety of different circumstances - each of which may raise a distinct First Amendment question. Finally, free speech doctrine as a general matter is incoherent today because of the Supreme Court's fragmented and inconsistent decisions in recent years interpreting the First Amendment. The goal of this paper is to resolve three issues relating to freedom of speech and abortion rights that arise out of the civil and criminal litigation surrounding protest activity in the vicinity of clinics providing abortion services. These issues are important because of their practical consequences for the thousands of persons who seek reproductive health care at clinics or are ac­tively involved in protesting the availability of abortion services. They are also important at a more abstract level because they force courts and commentators to grapple with difficult ambigu­ities regarding the meaning of freedom of speech. The first issue relates to the constitutionality of FACE, the Freedom of Access to Clinic Entrances Act. Part I of the Article describes the current state of the case law evaluating the consti­tutionality of FACE and explains the difficulty lower courts have experienced in determining whether FACE violates the First Amendment. This subsection identifies the Supreme Court's recent decisions in RA. V. v. City of St. Paul and Wisconsin v. Mitchell as the primary reason for lower court uncertainty and incoherence in resolving the constitutionality of FACE. Parts II and III of the Article present a direct challenge to the reasoning of RA. V. and Mitchel􀀏 particularly with respect to the Court's conclusion that the content-discriminatory regulation of unprotected speech must receive strict scrutiny. The argu­ments justifying the rigorous review of content-discriminatory regulation of protected speech are examined to see if these ratio­nales are generally applicable to the regulation of unprotected speech. After establishing that strict scrutiny review of content­discriminatory laws restricting unprotected speech cannot be justified, and that the Court's holding in RA. V. is thus substan­tially in error, the Article offers an alternative model for review­ing the regulation of expressive conduct and unprotected speech. A demonstration of the utility of this new model in addressing the constitutionality of FACE concludes the analysis. The second issue relates to the regulation of expressive activi­ty outside of reproductive health clinics that constitutes harass­ment. Part IV of the Article examines the nature of expressive harassment and identifies criteria to be used to determine whether laws prohibiting harassment comply with First Amend­ment guarantees. An analysis of how harassment regulations might apply to anti-abortion protests outside of reproductive health clinics concludes this section. The final issue is whether regulatory actions to anti-abortion protests can be legitimated as a mediating response to the con­flict between two constitutionally protected interests: freedom of speech and reproductive autonomy. Part V of the Article consid­ers the validity of "constitutional compromises" adopted by states to accommodate the competing interests that are at stake when the exercise of one right interferes with the exercise of another right. This subsection concludes that carefully considered regula­tions attempting to implement such "compromises" should with­stand constitutional review.