We have talked so much about McCullen v. Coakley, and I am reluctant to beat a dead horse. But it is Friday. Dead-horse-beating day. And Larry, I am almost convinced of your zealous argument that the First Amendment trumps all and the story of McCullen just ends happily for everyone. But then I read Justice Alito, who, as you and Emily note, showed tremendous compassion for the mourners in Snyder v. Phelps, and also in the campaign finance case—compassion that is missing altogether in his concurrence in McCullen. He has actually now flipped that compassion into a paragraph about the poor woman entering a clinic who “heads haltingly toward the entrance” and is approached by a “sidewalk counselor” unable to give her accurate information, and—in a second hypothetical—the halting woman is thus never warned about the “botched abortion” that occurred inside that clinic.
Compare that to the same Justice Samuel Alito, writing in a concurrence in the 2010 case of Doe v. Reed. There the issue is whether the folks who put their names on an anti-gay marriage referendum in Washington state can prevent the government from posting their names on the Internet. Alito signed on to the majority opinion suggesting that the names could be disclosed, but nevertheless observes that:
If this information is posted on the Internet, then anyone with access to a computer could compile a wealth of information about all of those persons, including in many cases all of the following: the names of their spouses and neighbors, their telephone numbers, directions to their homes, pictures of their homes, information about their homes (such as size, type of construction, purchase price, and mortgage amount), information about any motor vehicles that they own, any court case in which they were parties, any information posted on a social networking site, and newspaper articles in which their names appeared (including such things as wedding announcements, obituaries, and articles in local papers about their children’s school and athletic activities). The potential that such information could be used for harassment is vast.
Justice Clarence Thomas, dissenting in the same case, worries that anyone whose name is published online will be subject to threats and harassment: “The state of technology today creates at least some probability that signers of every referendum will be subjected to threats, harassment, or reprisals if their personal information is disclosed,” he writes. “ ‘The advent of the Internet’ enables rapid dissemination of ‘the information needed’ to threaten or harass every referendum signer.”
I believe in zealous protection of the First Amendment as zealously as the next guy. Well, maybe not as zealously as Larry. But what I object to, as Walter expresses more clearly today than I did Thursday, is that there appears to be a two-tiered approach to zoning out areas for speech we don’t want to hear. The right to be free from unwanted speech is reserved to only some. And I think this flows in turn from the personal experience-driven jurisprudence Eric pointed to earlier this week. Several members of the Roberts court seem to have a sliding scale of empathy that affords boundless concern for signers of an anti-gay referendum and very little compassion for real women experiencing actual screaming and physical threats as they walk into reproductive care clinics. If we are serious about speech rights for the sidewalk counselors in McCullen, let’s give exactly those rights to the citizens of Washington state who would similarly like to have “difficult conversations” with opponents of gay marriage.
As both Eric and Emily write—good grief will we agree on everything?—the First Amendment shouldn’t be a Trojan horse that swallows every other right that we cherish. I think the First Amendment and I need to see other people for a few days.
In the interest of disagreement, let me note that I disagree with Eric that Hobby Lobby is a great big snooze. We can fight about that on Monday. Enjoy the weekend!