Abortion-Speech Case Draws Parallels From School Protest Decisions

By Mark Walsh — January 16, 2014 4 min read
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The country had been divided over a contentious issue for decades. Officials were concerned that protests related to that issue, especially at locations frequented by a vulnerable population, were disorderly and could perhaps lead to violence. They resorted to laws establishing buffer zones regulating certain forms of speech.

While that description applies to the case before the U.S. Supreme Court on Wednesday about Massachusetts’ restrictions on speech within 35 feet of a “reproductive health care facility,” i.e., an abortion clinic, it also applies to two high court cases from 1972 involving protests outside public schools.

The school cases were cited by both of the opposing sides in McCullen v. Coakley (Case No. 12-1168), the Massachusetts case.

The state’s “burdening of speech outside abortion clinics is no more permissible than a law prohibiting picketing at schools except if they are ‘involved in a labor dispute,’” says the brief on behalf of Eleanor McCullen, a 76-year-old grandmother and abortion opponent who spends time outside an abortion clinic seeking to counsel women entering such facilities from undergoing the procedure. Among other arguments, the law’s opponents say it regulates speech based on content because it bars speakers from the buffer zone, but permits clinic employees to escort and speak to clinic patrons in the same zone.

The brief refers to one of the 1972 school decisions, Police Department of Chicago v. Mosley, in which the court unanimously struck down a city ordinance that barred picketers and demonstrators within 150 feet of a public school during school hours unless the picketing was related to a labor dispute at the school.

Even the facts of Mosley have parallels to the abortion speech case. (Abortion rights advocates contend that anti-abortion groups have groomed grandmothers such as McCullen as the new, friendlier face to counter 1990s images of raucous demonstrations outside abortion clinics.)

The challenge to Chicago’s school anti-picketing law was brought by Earl Mosley, who for months had conducted a lonely picketing vigil outside a high school in the city alleging “black discrimination” at the school.

Writing for seven justices in the majority (the two others concurred in the result), Justice Thurgood Marshall said that “the central problem with Chicago’s ordinance is that it describes permissible picketing in terms of its subject matter. Peaceful picketing on the subject of a school’s labor-management dispute is permitted, but all other peaceful picketing is prohibited.”

“Although preventing school disruption is a city’s legitimate concern, Chicago itself has determined that peaceful labor picketing during school hours is not an undue interference with school,” Justice Marshall continued. “Therefore, under the Equal Protection Clause, Chicago may not maintain that other picketing disrupts the school unless that picketing is clearly more disruptive than the picketing Chicago already permits.”

The same day it decided Mosley, the court issued a companion decision, Grayned v. City of Rockford. That case involved a larger demonstration against segregation and alleged race discrimination at a high school in the Illinois city by a group of some 200 students, parents, and others.

The demonstrators carried signs with such slogans as “Black cheerleaders to cheer too"; “Black history with black teachers"; “Equal rights, Negro counselors.”

Amid contradictory evidence about how loud and disruptive the demonstration was, police arrested 40 demonstrators. One of them, Richard Grayned, challenged his conviction for violating two ordinances: a measure barring picketing near schools that was identical to Chicago’s, and an ordinance prohibiting noise or diversions that disturb the peace adjacent to schools.

The Supreme Court, with Justice Marshall again writing the opinion, struck down Rockford’s anti-picketing law based on the same reasoning as the Mosley decision. But the court ruled 8-1 to uphold Grayned’s conviction under the anti-noise measure.

Justice Marshall noted that schools “are often the focus of significant grievances,” but the anti-noise ordinance was “narrowly tailored to further Rockford’s compelling interest in having an undisrupted school session conducive to the students’ learning, and does not unnecessarily interfere with First Amendment rights.”

“Far from having an impermissibly broad prophylactic ordinance, Rockford punishes only conduct which disrupts or is about to disrupt normal school activities,” Marshall said. “That decision is made, as it should be, on an individualized basis, given the particular fact situation.”

In defending the focus of its law regulating speech at abortion clinics, Massachusetts cited the part of Grayned upholding the anti-noise provision.

“Federal, state, and local governments ... have determined ... that schools could not function properly if disruptive demonstrations were permitted outside their doors during school hours,” the state said in its brief.

During the Jan. 15 oral arguments in the Massachusetts case, there was a genuine sense that speech and conduct regulation around abortion clinics was a special category of concern based on the depth of the divisions over the issue and its history of conflict.

But, as always, the justices were mindful that their decisions may hold implications in other areas than the one before them. While the school cases were not mentioned specifically, the justices asked about state and local laws that create buffers or otherwise regulate speech around political conventions, military funerals, circuses, and even, as Justice Samuel A. Alito Jr., suggested, “fraternal lodges.”

Justice Stephen G. Breyer observed that “we can think of many, many situations, irrespective of subject matter, where there is a need for such refereeing.”

A version of this news article first appeared in The School Law Blog.