Any day now, the Supreme Court will hear oral arguments in a free-speech case that could cement a dangerous precedent one establishing a de facto double standard in governments favor.
The case stems from the election season of 2004, when a group of 200 or so protesters showed up near a Jacksonville, Ore., restaurant where George W. Bush was eating. They started chanting about Bushs polices on war and the environment. After 15 minutes or so, the Secret Service decided that was enough anti-Bush speech for the day. Agents instructed local law enforcement to move the demonstrators which was done, with riot police firing plastic bullets.
A pro-Bush demonstration nearby was allowed to continue unimpeded.
Michael Mookie Moss and his anti-Bush compadres have a strong claim that the disparate treatment violated their First Amendment rights. But they are spitting into the wind of a two-year-old precedent. In 2012, the Supreme Court said Secret Service agents enjoyed qualified immunity in arresting Steven Howard, who accosted Vice President Dick Cheney and told him his policies in Iraq are disgusting.
Justice Ruth Bader Ginsburg wrote that officers assigned to protect public officials must make singularly swift, on-the-spot, decisions whether the safety of the person they are guarding is in jeopardy. In performing that protective function, they rightly take into account words spoken to, or in the proximity of, the person whose safety is their charge.
You can see the sense in that. At the same time, though, you can see how such a policy creates a bias in favor of the government: People who oppose the incumbent partys policies are more likely to be considered potential threats than people who support them.
A similar problem bedevils the 35-foot-buffer zone around Massachusetts abortion clinics that the high court also is scrutinizing this term. Defenders of the buffer zone claim it does not violate the Constitution because it is a neutral rule that applies to everyone and is meant merely to ensure safe access to abortion clinics. As Boston Globe writer Jeff Jacoby noted earlier this year, that concern is understandably taken seriously in the state where John Salvi murdered two employees of Planned Parenthood clinics in 1994.
But as Jacoby also notes, murder, the use of physical force and even the threat of physical force are already against the law. Federal law prohibits obstructing access to a clinic. The Massachusetts buffer zone, then, seems designed to protect potential clients from the discomfort of close proximity to abortion protesters.
That impression was reinforced during oral arguments, when Justice Samuel Alito hypothesized two women within the buffer zone one telling a potential client this is a safe facility, and the other telling her, this is not a safe facility. The only difference between the two, he noted, is that theyve expressed a different viewpoint. Yet under the current statute one of them the anti-abortion protester has violated Massachusetts law and the other has not. Once again, a safety rationale enables viewpoint discrimination.
Many American universities are subordinating free speech not merely to physical safety but to emotional equilibrium. The problem extends beyond campus speech codes and free-speech zones, both of which have received considerable attention in recent years. On many campuses, certain viewpoints are considered so inherently offensive that they require silencing.
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Free speech case triggers dangerous precedent