ND Expert: Abortion-related free speech case gives opportunity to 'correct earlier mistake'

Author: Shannon Chapla

Richard W. Garnett Richard W. Garnett

On Wednesday (Jan. 15), the Supreme Court of the United States (SCOTUS) will hear oral arguments in a case called McCullen v. Coakley, which involves a free-speech challenge to a Massachusetts law that limits speech and expression outside abortion clinics.

University of Notre Dame Law Professor Richard W. Garnett, a former SCOTUS law clerk and First Amendment scholar, says, “The Massachusetts law is a clear and serious violation of the freedom of speech.

“The current Supreme Court has consistently shown itself to be firmly committed to the freedom of speech,” Garnett says, “even when what’s being said is unsettling, unwelcome or offensive. The justices should be very skeptical about this regulation.”

According to Garnett, SCOTUS’ last major abortion-related speech case — the 2000 ruling in Hill v. Colorado — was wrongly decided.

“A majority of the justices were mistaken in the Hill case when they let stand a Colorado restriction on peaceful speech near abortion providers,” Garnett says. “The Massachusetts law, which is even more restrictive than the one upheld in Hill, shows that the temptation to silence unwelcome expression is a strong one. The justices should correct their earlier mistake and bring the court’s abortion-related speech cases back in line with general and well-established First Amendment principles.”

Garnett says, “Many legal scholars, free-speech experts and activists across the political spectrum, both pro-life and pro-choice, agree that the First Amendment does not allow government to censor or silence speech, even when it involves controversial and divisive topics, in order to protect some listeners’ desire not to hear a message.

“This is a case about the freedom of speech and not about abortion rights,” Garnett says. “Our disagreements about abortion should not distort our understanding and application of free-speech principles. It is black-letter law that protected speech should not be disfavored, or singled out for regulation, simply because its content is unpopular or unwelcomed.”

Along with a diverse group of First Amendment scholars, Garnett filed an “amicus curiae” brief in the McCullen case. As the brief notes, although these scholars “have divergent perspectives on the court’s abortion jurisprudence,” they “agree on the importance of the First Amendment principles at stake in this case.”

Contact: Richard W. Garnett, 574-631-6981, rgarnett@nd.edu