Liberals, Free Speech, and Demonstrations Outside Abortion Clinics

I blogged last week about the danger of assuming that liberals would be hostile to First Amendment protection for anti-abortion speech. I wanted to add an extra data point, related to McCullen v. Coakley, an abortion clinic demonstration case pending before the Court.

The petition in McCullen seeks review of a First Circuit decision (McCullen), and argues in part that the decision conflicts with a Ninth Circuit decision (Hoye v. City of Oakland). The First Circuit decision upheld a statute that limited protester speech but exempted speech in the same place by clinic employees. The Ninth Circuit decision struck down an Oakland enforcement policy of limiting protester speech but exempting speech in the same place by pro-abortion-rights would-be patient escorts.

McCullen, the decision upholding the favored treatment for clinic employee speech, was handed down by a panel consisting of three Republican-appointed judges. Hoye, the decision striking down the favored treatment for would-be escorts, was handed down by a panel consisting of three Democrat-appointed judges, including the archliberal Judge Stephen Reinhardt.

As I mentioned in my initial post, in some past Supreme Court decisions liberal Justices were indeed more willing to restrict anti-abortion speech than the conservative Justices were. (In the residential picketing decision, though, that lineup was largely flipped.) And indeed it may well be that judges’ views about abortion rights may sometimes color their views of the First Amendment, whether soundly or otherwise (judges being only human). But one can’t casually assume — as some of the people I quoted in my earlier post assumed — that liberals will always support restrictions on anti-abortion speech. Hoye is evidence of that.

Disclosure: I signed on to an amicus brief in McCullen that supports the petition for certiorari. I also signed on to a very similar brief filed in an earlier stage of the litigation, long before I decided to litigate the Scott v. Saint John’s Church in the Wilderness case.