Free Speech for All, Except Pro-Lifers
As we now know from Snyder v Phelps, the First Amendment protects hateful protestors who heckle a soldier's funeral. The very possibility of a tort claim against the protestors was held to be an infringement of Free Speech.
But that same robust First Amendment does not extend to anti-abortion activists, at least according to a Federal court in Pennsylvania. In Kuhns v. Allentown, an anti-abortion group asserted its right to protest an abortion clinic by standing together on an adjacent sidewalk. The clinic has taken extreme counter measures -- six-foot high tarps blocking the sidewalk, among other things -- all with the winking consent of the city and police. But the federal court held that the First Amendment claim was invalid as a matter of law because there was insufficient "state" involvement in suppressing speech.
Can anyone make sense of this? If the state merely allows a soldier's family to seek compensation from Pastor Phelps via the Court system, that = state suppression of speech. But if the City and Police of Allentown stand by while an abortion clinic blocks a public sidewalk for the express purpose of discouraging protest -- well that couldn't possibly rise to the level of a First Amendment claim.
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Mar '11
Re: Free Speech for All, Except Pro-Lifers
There's nothing "mere" about the state allowing someone to sue for hurtful speech. The risk of litigation dictates behavior in many facets of our lives; the Constitution is the reason we do not have to fear being sued for our words, and I'd prefer to keep it that way.
The judge in Kuhns held that the private defendants were not working in a conspiracy with the state, so there was no state action (and so no Constitutional violation). Whether that is true is a question of fact, and whether you agree with the judge on the conspiracy does not really change any of the legal analysis. Yes, the abortion provider is evil - like the Westboro baptists - but it seems a stretch to say the police are helping the clinic suppress speech. That blood is on the clinic.
Sep '10
Re: Free Speech for All, Except Pro-Lifers
I presume that if I wanted to fence out the Westboro protestors from a funeral I could. It seems to me this is a little off in that the issue is the fence or curtain rather than the speech itself, which is allowed.
Re: Free Speech for All, Except Pro-Lifers
Jackal
The judge in Kuhns held that the private defendants were not working in a conspiracy with the state, so there was no state action (and so no Constitutional violation). Whether that is true is a question of fact . . .
I couldn't agree more - but the judge tossed this out on on the pleadings, not after an evidentiary trial. At the pleadings stage you have to accept plaintiffs' allegations as true. Strikes me as rather biased to say the protestors' claim couldn't possibly rise to a First Amendment claim.