Immersed in the sorrow and spectacle of the O. J. Simpson trial, many of us may have missed a recent Supreme Court decision that re-examines this nation’s commitment to protest and freedom of speech. Long after the Simpson affair fades from public memory, this case will continue to define who we are as a people and how we may disagree with the established order of the state.
Thirty years ago, in the midst of widespread civil rights demonstrations, the Supreme Court established the principle that public places constitute an important forum in which protest may occur. The public forum doctrine, as it is now called, holds that such protest is subject to reasonable time, place and manner restrictions. The restrictions must be implemented to further a legitimate state interest, without regard to the content of the message, and in a manner “least restrictive” of individuals’ free speech rights.
The case handed down earlier this month, Madsen vs. Women’s Health Center, shows just how easily the public forum can be diminished and how tenuous 1st Amendment protection can be. Two appellate courts had disagreed over the constitutionality of a lower court injunction creating a “buffer zone” around an abortion clinic. The buffer zone had been created to keep protesters representing Operation Rescue, an anti-abortion group, at some distance from abortion clinics.
The court’s decision is disturbing. On its face, it reaffirmed the importance of dissenting speech by striking down a 300-foot buffer zone approved by one appellate court as well as a restriction on visual images. At a deeper level, however, the Madsen opinion may indicate a new willingness to limit the place and manner in which protest may occur. It justified the remaining 36-foot buffer zone and a prohibition on noise on the grounds that protesters blocked access to the clinic and harassed clinic workers at their homes, and that the noise caused stress in clinic patients. But, as Justice Antonin Scalia noted in his dissent, no evidence of protesters locking entry and exit, or of patient stress, was presented, and the injunction cannot possibly solve the problem of harassment at home.
Of course, lurking behind this decision was the very real threat to the safety of abortion clinic staff members, and to allow violence and force to hide behind the 1st Amendment would be intolerable. But the threat of violence is quite often present in free speech cases, and no evidence of actual violence was presented in Madsen. And we must remember that limitations on speech are also quite dangerous, especially where public protest is concerned.
Protest is much more than simple carping. To protest is to express the good and bad we find in living, to celebrate human wonder and to focus our chagrin. Our children protest when they shout, pout, sit, or scream, and the compulsion to disagree is as much a part of us as it is of them. Of course, some forms of protest are considered more discreet, civilized, or appropriate than others. But where the 1st Amendment is concerned, style alone is not a sufficient basis for limiting such acts.
We protest in many ways. We protest in language when we take issue with an idea and speak or write to dissuade. We protest nonverbally when, more or less consciously, we distance ourselves from others by wearing unique clothing or by altering our appearances cosmetically. We protest when we dance suggestively or when we descend into outrageous and revolutionary forms of music and art. We protest when we vote, when we buy or refuse to buy certain items, and even when we recycle or place bumper-stickers on our cars.
And protest is always more than the rejection of someone’s values or policies. At its primeval roots protest is a howl against our displacement from the natural or social order. Of course, depending on the depth of feeling for the cause (as in the case of today’s anti-abortionists or yesterday’s civil rights demonstrators) protest can lead to violence.
But as long as it remains nonviolent, as long as it does not degenerate into coercion or force, protest should never be feared and rarely be limited. At the very least, we should tolerate protest. At times we should encourage or even respond to it.
Many of us find public protest-especially passionate, vociferous protest-disquieting and unpleasant. But that is its virtue as well as its vice. Thomas Jefferson often urged that from time to time we all need to be shaken by dissent and offended by protest, lest we become too complaisant or too comfortable in our apathy. Public disagreement, he believed, serves to dissolve our lethargy, to keep us alive to the conditions of life around us.
Certainly that is the case today, when the Simpson trial threatens to swamp our thinking and distort our sense of perspective. If those who founded the nation and drafted the 1st Amendment needed Jefferson’s reminder, how much more might we?
