In his post last night, our prolific breakfast-mate Dick Posner criticized three opinions I’ve praised with enthusiasm: Justice Kagan’s terrific dissent in Greece v. Galloway, the unanimous, tech-savvy decision in the cellphone cases—Riley—and the speciously unanimous, yet nevertheless correct, result in McCullen. I should've adopted Dahlia’s term “faux-nanimous,” which is definitely snettier—snarkier, better, and neater.
I’ve already suggested, over breakfast, my admiration for Riley. So I want to focus this post on responding to Dick’s criticisms of the Greece dissent and McCullen majority.
I believe Judge Posner, in dissing these opinions as “hard to take … seriously,” presents radically simplified versions of the facts that downplay the vital concerns at the heart of each case. Especially in the two First Amendment cases—one about town prayer and one about attempts to persuade women to continue their pregnancies—he presents dramatically diminished versions of the free speech and anti-establishment principles at stake.
In criticizing the dissenters in Greece, Dick suggests that the board’s response to the complaints of the two non-Christian plaintiffs—to invite three non-Christians to give four opening prayers in 2008—cured whatever legitimate grievance the two women may have had with the town. In a case Justice Breyer rightly describes in his dissent as highly “fact-sensitive,” we should at least acknowledge the other relevant facts at work in Greece, New York:
First, these handful of non-Christian prayer-givers represented a brief oasis (or should I say a brief “recess,” a word Noel Canning has taken from the schoolyard to the public square) of uninterrupted Christian sermons: the town invited them only in response to the plaintiffs’ complaints and lawsuit, and, a year later, reverted back to monolithic, Christian sectarian prayer. Second, when the plaintiffs complained to the board, they asked not just for diverse prayer-givers but also for the town to give guidance to its ministers to make the prayers themselves inclusive. The town’s response? The board told Ms. Galloway and Ms. Stephens that if they did not like the prayers that were being offered, they could leave the meeting. A classic “love it or leave it” reply that perfectly captured the way the practice that the town (and, sadly, the Obama administration) was defending made outsiders of those who didn't share the religious faith of the majority. Oh, Sandra Day O’Connor, where are you now?
One minister, by the way, in an opening prayer, called the two objecting women “minorit[ies] … ignorant of the history of [their] country.” I’d say, with respect, it’s those who find the Kagan dissent hard to take seriously who display ignorance of our country’s history. These facts—fully examined—do not reveal women without a legitimate grievance. They reveal religious minorities facing—as Justice Kagan emphasized in her dissent—the “unenviable choice of either pretending to pray like the majority or declining to join its communal activity” at the very moment they sought to engage in participatory democracy.
I have criticisms with the Kagan dissent. I don’t think, for instance, it adequately addresses Justice Kennedy’s fears of government supervision and censorship of prayer-givers. But Justice Kagan’s clear-eyed recognition of what it must be like to be a religious minority in the town of Greece—what it will still be like—is something I applaud. My only criticism is that neither she nor any other dissenting justice went far enough: an embrace of Justice O’Connor’s anti-endorsement theory would have led to a repudiation of the whole practice of opening lawmaking sessions with prayer—and the overruling of the original sin of Marsh v. Chambers, the 1983 decision upholding that practice when the prayer is directed solely at elected legislators.
As for McCullen, I again have to respectfully disagree with our colleague’s presentation of the facts. The petitioners were hardly “nuts,” as Dick suggests, but elderly counselors trying to speak quietly to women as they passed on the street. They were hoping to convince women seeking abortions that they were making the wrong decision at the only location they could reliably find them: reproductive health facilities. Their aspirations may have been naive—the women they hoped to persuade may have been too firmly fixed in their plans by that point to be open to the gentle persuasion Eleanor McCullen thought she had a First Amendment right to practice—but if even falsehood doesn’t strip speech of First Amendment protection, surely naïveté can’t lower the shield of the Free Speech Clause.
Though some protesters may wave gruesome photos of fetuses, the pictures Eleanor McCullen carried with her were those of children born to the women she counseled—her refrigerator is covered with them. If this were genuine harassment, or if these would-be street counselors were blocking the women from entering the clinic or refusing to respect the requests of particular women that they be left alone, the state had ample tools for making the Eleanor McCullens of the world honor the women’s privacy. These tools may be blunt, and they may be expensive, but as the chief justice said yesterday: “A painted line on the sidewalk is easy to enforce, but the prime objective of the First Amendment is not efficiency.”
I share our colleague’s concern for the challenges faced by abortion clinic patients. I was actually half expecting those concerns to find a sympathetic ear in Justice Alito, whose solo dissent from the court’s pro-speech ruling in Snyder v. Phelps movingly sympathized with the father trying to bury his son over the interruption of bigoted protesters. “In order to have a society in which public issues can be openly and vigorously debated,” Alito wrote, “it is not necessary to allow the brutalization of innocent victims.” But the cases are worlds apart. In the funeral protest case, the court failed to grapple in a meaningful way with the special characteristics of conduct that uses speech not to persuade listeners or even to call public attention to an issue in an effort to bring about social or political change but instead to wound the listener or viewer—to inflict emotional distress, deliberately using the target of one’s words and images as a means to one’s ends rather than respecting the target’s humanity. That is not the McCullen case—not by a long shot. (I have an op-ed in today’s New York Times about the faux-nanimity of the decision, and about my agreement with Justices Scalia, Kennedy, Thomas, and Alito that the path the chief justice and his four more “liberal” colleagues took to strike down the Massachusetts buffer zone was disingenuous and trouble-making.)
Dick’s observation that the quiet conversations Eleanor McCullen hoped to have from much closer than a 35-foot shouting distance weren’t part of a public political dialogue is no doubt true, but it’s beside the point. It isn’t only public debate about topics like abortion rights that the First Amendment protects; it’s personal conversation as well. Thankfully, the Constitution doesn’t adopt Alexander Meiklejohn’s theory that only political speech warrants protection. A world in which we’re all free to yell into a megaphone or spend unlimited sums to influence voters or sway lawmakers but may be silenced or muffled by government when we try to talk an individual into exercising his or her rights differently isn’t a world I recognize when I think about the First Amendment.
I certainly don’t deny the terrible reality that the past decades have seen an endless array of barriers and public pressures put in the way of women seeking abortions, now some 40 years after Roe. Some of these barriers (like the TRAP laws Emily has written so powerfully about) may impermissibly restrict a woman’s access to a constitutional right. When they do, we should fight them and the Supreme Court should strike them down. But I’m afraid Eleanor McCullen’s quiet counseling, to the extent it unsettles the women she tries to address, is an intrusion the First Amendment treats not as an evil but as the heart of our civil society.