January 19, 2014

Free speech for me but not thee can always backfire

I'm not quite as much a First Amendment absolutist as Glenn Greenwald is, but, that said, I'd have to say, along the lines of this piece about them, that Massachusetts' selective free speech zones outside of abortion clinics are at least "problematic."

The biggest point is that they can be turned around on others. Having been restricted to just certain areas for protest and speaking at antiwar rallies in Dallas, especially ones around area in which either George W.  Bush or Dick Cheney were expected, I know personally that the old "safety concerns" issue can be expanded to cover a lot of things that pummel the First Amendment into oblivion.

Also being an environmentalist of some sort who has protested more than once outside eXXXon's annual shareholder meeting, and knowing that both the federal government and various states, and their respective law enforcement and investigative agencies have been all too eager in the past to sling around the word "ecoterrorist," gives me further reason to pause at this law. 

The story makes just these points:
If the Supreme Court were to uphold the Massachusetts law, it’s not hard to imagine businesses lobbying to create zones where union members are not allowed to speak, but workers for the business are. Businesses could use the same logic used in McCullen:  the picketers are disrupting business and upsetting customers. So, government, please silence them—even though they are standing on a public sidewalk.

Potter described how liberal activists have made this mistake before.  He said, “Back in the late 1990s…Planned Parenthood was using RICO statutes against anti-abortion protestors.  A lot of civil rights people were saying this is going to come back around to us and sure enough RICO has been used against animal-rights protestors.  The [lawsuits] have failed, but it costs mountains of cash to defend against.”

In an interview, the First Amendment lawyer Floyd Abrams—who is a supporter of abortion rights—described the Massachusetts law as being “as bad as first amendment cases have gotten in a while.”  He said of the liberal groups supporting the law, “They undervalue the First Amendment…and substitute political liberalism” as their guiding principle instead.
But, but, but ... you say. The ACLU supports this!

First, the ACLU's never been perfect on the First Amendment. And, since the days of the Skokie march, and especially in the last decade or so, since Anthony Romero has become executive director, it's slid further downhill. Former board members, harassed off by Romero in combination with then board president Nadine Strossen, and outside critics as well, attest to the fact that the ACLU has become more a liberal special interest group and less a civil liberties organization in general.

Greenwald knows those critiques and basically doesn't discuss them. Nor does he discuss the fact that the ACLU isn't the only civil liberties game in town. One will note that the Center for Constitutional Rights is not listed as supporting the Massachusetts law, at least in this story. (That's not to say CCR is necessarily perfect on such issues.)

Second, Floyd Abrams makes the same point that I made earlier. And frankly, I doubt it changes until Romero moves on. Sadly, I think that's not going to happen before the end of this decade, if that. I think he likes the little fiefdom he's built up.

Plus, as Perkins notes, Massachusetts has anti-harassment law that already covers the intent of this legislation.

I'm sure Pennsylvania also has similar rules. That's why, although a Pennsylvania man is to be congratulated for his work at clinics, he's simply wrong in supporting the Massachusetts law, as well as the reasons he gives for justifying his stance.

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