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Current Laws and Enforcement
The most significant and well-known federal law restricting the speech of antiabortion protesters is the Freedom of Access to Clinic Entrances (FACE) Act. Signed into law by the Clinton administration in May 1994, the FACE Act “makes it a federal crime to use force, the threat of force, or physical obstruction to prevent individuals from obtaining or providing reproductive health services.” The law provides criminal and civil penalties; the U.S. Department of Justice investigates and files charges for criminal violations, while any individual or facility that has been victimized in violation of the Act (as well as any federal, state, or local government) can bring a civil suit. FACE specifically avoids infringement of First Amendment rights by focusing on criminal conduct such as vandalism, threats, assault, and trespassing, and has been upheld by appeals courts in every circuit.
Several states also have local laws that restrict certain forms of speech at abortion clinics. Three states (Colorado, Massachusetts, and Montana) and a handful of cities have “buffer zone” laws which physically restrict the movement of protesters within a certain distance of building entrances. Maine, Washington, and the District of Columbia also proscribe certain levels of noise outside of clinics. These laws have been held to be constitutional “time, place, and manner” restrictions under Madsen v. Women’s Health Center, Inc, Schenck v. Pro-Choice Network of Western New York, and Hill v. Colorado. California, New York, and Washington also have their state-level versions of the FACE act, and 10 other states have other statutes restricting harassment at clinics and other healthcare facilities.
Practical Restrictions
There are two additional practical restrictions which have some connection to legal protections and limitations, but are not necessarily part of free speech jurisprudence or enforced by police. The first of these is trespassing laws. Protesters’ First Amendment rights only apply in public areas; clinics and their landlords have no obligation or desire to allow protesters to cross their private property lines. The nature of property lines can have a major impact on the efficacy of protesters’ speech and their ability to reach their intended audience. For example, Potomac Family Planning in Rockville, Maryland is located in a business park, with its entrance in the center of a parking lot and facing away from the street. At that clinic, protesters cannot go past the edge of the driveways, putting them easily over a hundred feet from the clinic entrance and the patients entering the clinic. By contrast, the Planned Parenthood health center in downtown Washington, DC is located in a building on land leased from the city, meaning that protesters have free access to the front lawn and sidewalk up to the front door of the clinic. These two physical settings provide radically different venues for protesters’ speech without any legal or constitutional effects.
The second tool used by some clinics to counteract the effects of antiabortion protesters, especially ones that engage in “sidewalk counseling,” is volunteer clinic escorts. These are individuals who, in coordination with the clinic, provide an easily identifiable pro-choice presence at the clinic to reassure and comfort visitors. Clinic escorts also provide a physical barrier between visitors and protesters, walking with visitors and speaking to them in order to distract from the (often very loud and insistent) protesters as the patient approaches or leaves the building. In essence, escorts are part of a “marketplace of ideas” solution to the speech of protesters, providing both a voice for the clinic (albeit a brief one) and a method of delivering visitors safely into the building where they can be exposed to the full speech potential of the clinic itself. The FACE Act specifically includes clinic escorts in the protected category of “individuals obtaining or providing reproductive health care services.” These two cases demonstrate that there are a variety of practical considerations in freedom of assembly and free speech, not solely legal ones.
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