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Buffer Zones: A Targeted Violation of Free Speech
Brooke Karmie | 22 October 2020
A “buffer zone” as defined by the Oxford Language Dictionary is a “neutral area serving to separate hostile forces or nations,”[i] but outside of foreign affairs, the term has, in recent times, been used in reference to separating sidewalk counseling advocates from abortion facilities.
The buffer zone is typically a floating or fixed distance ranging from 15 to 100-feet surrounding the property of abortion facilities, which prohibits sidewalk advocates from entering, holding signs, shouting, using speakers, and various other limits to their speech and actions are imposed.
Most recently, Louisville, Kentucky (August 2020)[ii] and Napa Valley, California (August 2020)[iii] have proposed buffer zones. The Louisville ordinance proposes a buffer zone area “extending forward from the entrance of a healthcare facility to the closest adjacent street curb and measuring twelve (12) feet from side to side.” The Napa Valley ordinance is still being discussed on the municipal level.
The question in all of this is whether these zones are simply protective measures for patients or if they are direct violations of first amendment rights to speech.
It is important to look at the times these buffer zones have been put to the test by our federal courts, specifically in the most recent case on abortion buffer zones heard by the Supreme Court of the United States, McCullen v. Coakley (2014).[iv] In this decision, Massachusetts' 35-foot fixed buffers zones were at issues. The court unanimously decided that these zones were unconstitutional because they too broadly limited free speech, and Chief Justice John Roberts wrote, “The buffer zones burden substantially more speech than necessary to achieve Massachusetts’ asserted interests.”[v]
Incredibly, the court was in total agreement on this controversial decision in such divisive times, but it is also very telling.
The Court recognizes the Constitutional protection of our right to free speech, and in this decision confirmed that protection includes the free speech of sidewalk counselors. We know certain types of speech are unprotected by the first amendment like obscenity, threats, defamation,[vi] but the actions and intentions of sidewalk counselors certainly qualify as protected speech.
While the strategies differ across the board, the pro-abortion lobby's portrayal of pro-life sidewalk advocates is far from reality. It is inaccurately used to push legislation allowing limits of their free speech. Those calling for buffer zones cite “decades of harassment, obstruction, and violent acts”[vii] as reasoning for buffer zones. Many have even gone as far as labeling sidewalk counselors as “sidewalk terrorists.”[viii]
However, the purpose of sidewalk counseling is to offer a countering voice of support to women in crisis pregnancy situations and provide individuals with life-affirming resources and services to help them choose life for their child. Sidewalk Advocates for Life, a national sidewalk counseling training organization, states the purpose of sidewalk counseling is to “actively encourage a woman to choose life, empowering her to leave the abortion center, and ministering to all present to bring about a conversion of heart from a culture of death to a culture of life.”[ix]
When observing sidewalk counseling, you will find it consists of silent praying, gentle invitations to women and men entering the abortion facility to learn more about nonviolent resources offered in their area, and even gift bags being handed out with pregnancy and healthcare resources, and small items like lotions, journals, and encouraging letters. Far from what anyone could label “sidewalk terrorism.”
The proposed sidewalk buffer zones in places like Napa Valley are masked under the name of "public safety" and deemed by Napa City Councilmember Scott Sedgley as a “balanced approach.”[x] However, it has become an evident attempt to silence the voices of anti-abortion members of society.
As they propose new limits for anti-abortion advocates, they remain silent on other protests that have taken place in the same area, such as Black Lives Matter, anti-police brutality protests where groups were picketing in the streets, and blocking off traffic access.[xi] There was never a discussion or question of public safety or “disturbance of the peace.” The rights of all involved in the protest were respected and even celebrated. The same standard should be held for sidewalk advocates.
When hearing these calls for "public safety measures," it is important to note that various laws are already in place to maintain public safety while also not infringing upon individuals' rights to protest and allow their voices to be heard. The California Freedom of Access to Clinic and Church Entrances Act regulates the actions that take place outside of abortion facilities and specifically forbids threats, intimidation, and interference with those entering the facilities.[xii] Further, Napa Valley city ordinances[xiii] forbid sidewalk obstruction and blocking[xiv] by individuals and objects.
Ultimately, the ordinances in place already provide legal protection over those entering the facility. The misrepresentation of sidewalk counselors is an evident and biased attempt to silence the anti-abortion advocates by placing further unconstitutional limits on their speech. At the same time, every other form of differing opinion or protest goes untouched by additional legal impositions. Napa Valley City Council will be proposing specific buffer zone stipulations in the coming months, and following Louisville's proposal, I would expect more city proposals in the near future.
To find out more about Sidewalk Counseling, 40 Days For Life and Sidewalk Advocates for Life are great starting points. To find out about Sidewalk Counselor’s Rights, Alliance Defending Freedom has created a PDF manual to educate individuals on their legal rights while sidewalk counseling.[xv]
[iv] McCullen v. Coakley, 573 U. S.
[v] McCullen v. Coakley, 573 U. S., (slip op., at 23))
Pacific Southwest Regional Coordinator, Students for Life