DePaul Law Review Volume 51 Issue 3 Spring 2002: Symposium - The End of Article 8 Adolescence Double Standards: The Suppression of Abortion Protesters' Free Speech Rights Christopher P. Keleher Follow this and additional works at: https://via.library.depaul.edu/law-review Recommended Citation Christopher P. Keleher, Double Standards: The Suppression of Abortion Protesters' Free Speech Rights, 51 DePaul L. Rev. 825 (2002) Available at: https://via.library.depaul.edu/law-review/vol51/iss3/8 This Comments is brought to you for free and open access by the College of Law at Via Sapientiae. It has been accepted for inclusion in DePaul Law Review by an authorized editor of Via Sapientiae. For more information, please contact [email protected]. DOUBLE STANDARDS: THE SUPPRESSION OF ABORTION PROTESTERS' FREE SPEECH RIGHTS "We should be eternally vigilant against attempts to check the ex- pression of opinions that we loathe."' "A function of free speech ...is to invite dispute. It may indeed when it induces ... unrest ... or even best serve its high purpose2 stirs people to anger." INTRODUCTION Free speech is necessary for a democracy. It prevents government oppression and tyranny while permitting ideas to flow freely and unin- hibited. It is important to keep free speech, from whatever source, unencumbered. Stifling free speech has resulted in devastating effects in other countries, eventually leading to their demise. 3 This issue takes on even greater importance in the United States because this country was founded on the principles of freedom of speech, press, 4 and religion. Most Americans would agree that free speech is a fundamental right that deserves protection. 5 However, throughout this country's history, many issues have tested the boundaries of free speech, one of the most controversial being abortion. Abortion remains one of the most divisive issues our nation has ever faced. Both sides of the abor- tion debate firmly believe their position is correct. Further, the sub- ject of abortion has permeated many aspects of our culture, including 6 politics, medicine, law, women's liberation, and religion. Whether an individual is a staunch supporter of abortion rights, an advocate of the pro-life movement, or one who is oblivious to the is- sue, it is important to consider the implications of the United States Supreme Court's recent limitations on the free speech of abortion 1. Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J.,dissenting). 2. Terminiello v. Chicago, 337 U.S. 1,4 (1949) (Douglas, J.). 3. See HARRISON E. SALISBURY, RUSSIA 39-43 (1965). 4. U.S. CONST. amend. I. 5. RODNEY A. SMOLLA, SMOLLA & NIMMER ON FREEDOM OF SPEECH - A TREATISE ON THE FIRST AMENDMENT 1-2 (1994). 6. See generally ABORTION, MEDICINE, & THE LAW (J. Douglas Butler & David F. Walbert eds., 4th ed. 1992) (examining the various legal, political, ethical, religious, and medical aspects surrounding abortion). DEPAUL LAW REVIEW [Vol. 51:825 protesters. The Court has gradually limited free speech over a period of six years through three separate cases. 7 In each consecutive case, the Court seemed to go one step further than before, as if it were attempting not to suppress too much free speech at once. The Court's willingness to severely limit the speech of the pro-life movement serves as a warning to any protest group that may one day find itself on the wrong side of the Court. Part II of this Comment will explore the history of free speech from its origin to the present, as well as the Supreme Court's role in shaping that right. 8 This section will also examine the history of the pro-life movement and abortion clinic violence. 9 In addition, Part II will ex- amine free speech cases concerning several contexts, such as the issues of abortion and civil rights. 10 Part III will analyze the Court's treat- ment of free speech in the context of abortion, comparing it to the treatment of non-abortion free speech cases.1 Part IV will discuss the actual impact this line of cases has had on lower courts throughout the country and whether these restrictions are warranted. 12 Part IV will then discuss the potential impact this line of abortion protest cases might have, not only for the pro-life protesters, but also on the First Amendment itself.13 II. BACKGROUND A. The History of Free Speech "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assem- ble, and to petition the court for redress of grievances. ' 14 With these words, the First Amendment to the Constitution of the United States defined several principles upon which this nation was founded. The First Amendment protects many of the rights Americans value most, such as freedom of speech, press, religion, assembly, and petition.15 While these freedoms are highly valued, the amount of protection ac- 7. See Madsen v. Women's Health Ctr., 512 U.S. 753 (1994); Schenck v. Pro-Choice Network of W. N.Y., 519 U.S. 357 (1997): Hill v. Colorado, 530 U.S. 703 (2000). 8. See infra notes 14-85 and accompanying text. 9. See infra notes 86-214 and accompanying text. 10. See infra notes 215-343 and accompanying text. 11. See infra notes 344-504 and accompanying text. 12. See infra notes 505-596 and accompanying text. 13. See infra notes 597-623 and accompanying text. 14. U.S. CONST. amend. 1. 15. SMOLLA, supra note 5, at 1-2. See, e.g., Frederick Schauer, The Second-Best First Amend- ment, 31 WM. & MARY L. REV. 1 (1989) (discussing the importance and reasoning behind the 2002] DOUBLE STANDARDS corded to these rights has become controversial because of issues such as hate speech, 16 pornography,' 7 and other offensive speech.' 8 1. The Early Years The First Amendment to the Constitution has been a controversial principle throughout the history of this country. 19 In fact, before the writing of the Constitution, many states refused to ratify the Constitu- without a Bill of Rights. 20 The states did not ratify the Bill of tion 2 1 Rights until 1791, fifteen years after the signing of the Constitution. While the enactment of the First Amendment granted the right of free speech, it did not define what speech was included or the limita- tions upon it.22 Thus, since the inception of the Bill of Rights, there have been different interpretations 23 as to exactly how far this right extends.24 Most of the debate about the First Amendment and the breadth of its protection revolves around the history of the First 25 Amendment. First Amendment and the background justification for it); Kent Greenawalt, Free Speech Justifi- cations, 89 COLUM. L. REV. 119 (1989). 16. Charles R. Lawrence III, Frontiers Of Legal Thought I1, The New First Amendment: If He Hollers Let Him Go: Regulating Racist Speech On Campus, 1990 DUKE L.J. 431 (1990) (discuss- ing racist speech on college campuses and the regulation of such speech). 17. Compare, CATHARINE A. MACKINNON, ONLY WORDS 25 (1993) (arguing that pornogra- phy should not be considered in light of the First Amendment, but rather through the Four- teenth Amendment), with NADINE STROSSEN, DEFENDING PORNOGRAPHY: FREE SPEECH, SEX, AND THE FIGHT FOR WOMEN'S RIGHTS 14 (1995) (stating that "we adamantly oppose any effort to restrict sexual speech not only because it would violate our cherished First Amendment free- doms . but also because it would undermine our equality, our status, our dignity, and our autonomy"). 18. SMOLLA, supra note 5, at 1-2. See also Alan C. Kors & Harvey A. Silverglate, Codes of Silence, Who's Gagging Free Speech on Campus-And Why, REASON, Nov. 1998, at 22 (observ- ing First Amendment infringements at universities across the country); Nadine Strossen, Political Correctness: Avoiding Extremism in the PC Controversy, in VISIONS OF THE FIRST AMENDMENT FOR A NEW MILLENNIUM 14, 14 (Fred H. Cate ed., 1992) (considering free expression in light of the political correctness phenomena). 19. 0. JOHN ROGGE, THE FIRST & THE FIFTH 12 (1971). 20. Id. It was argued that since the federal government had enumerated powers, a Bill of Rights was not necessary; many also felt the state governments would protect individual rights. Id. 21. NAT HENTOFF, THE FIRST FREEDOM: THE TUMULTUOUS HISTORY OF FREE SPEECH IN AMERICA 74 (1980). 22. DANIEL A. FARBER, THE FIRST AMENDMENT 9 (1998). The legislative history surround- ing the Amendment is incomplete and answers very little. Id. at 9-10. 23. Some argue that the words 'no law' contained within the First Amendment mean exactly that. See generally TINSLEY E. YARBROUGH, MR. JUSTICE BLACK AND HIS CRITICS (1988) (evaluating Justice Black's judicial and constitutional philosophy, along with the arguments raised by his critics). 24. SMOLLA, supra note 5, at 1-2. For the history regarding free speech prior to enactment of First Amendment, see VINCENT BURANELLI, TIlE TRIAL OF PETER ZENGER (1957). 25. FARBER, supra note 22, at 9-10. DEPAUL LAW REVIEW [Vol. 51:825 One of the first tests of the interpretation of the First Amendment came only a few years after the adoption of the Bill of Rights. 26 In 1798, Congress passed the Sedition Act,27 which prohibited certain speech against the United States government.2 8 The Act was ex- tremely oppressive to free speech, severely limiting all citizens' right to free speech. 29 While debates surrounding the Act are unreliable as evidence, some view the passing of the Sedition Act as an indication that the Framers wanted to maintain the English Common Law 30 no- tions of freedom of the press and speech.