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A Right to Speak to Those Who Don’t Want to Listen

Jonathan Wallace Apr 10

Last year, the Supreme Court decided McCullen v. Coakley, in which it invalidated on First Amendment grounds a Massachusetts law creating a buffer of 35 feet from the front door of abortion clinics. The case turned on the right of the anti-abortion protesters to approach and argue with women who are seeking one of the most private and personal forms of medical intervention imaginable, and who may very much resent being approached.

In a unanimous 9-0 verdict, the justices reminded us that there is a right to utter unwelcome speech, up close, to people who don’t want to listen: “It is no accident that public streets and sidewalks have developed as venues for the exchange of ideas,” Chief Justice John Roberts wrote for the court. “Even today,” he added, “they remain one of the few places where a speaker can be confident that he is not simply preaching to the choir. With respect to other means of communication, an individual confronted with an uncomfortable message can always turn the page, change the channel, or leave the Web site. Not so on public streets and sidewalks. There, a listener often encounters speech he might otherwise tune out. In light of the First Amendment’s purpose to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, this aspect of traditional public fora is a virtue, not a vice.”

In the early March trial of 10 protesters arrested at the “Flood Wall Street” climate change demonstration last September, the defense team led by attorney Martin Stolar with myself as “second chair” relied heavily, and successfully, on McCullen. We argued that the closure of the entire Wall Street area to the demonstrators was clearly illegal. Many of the clients testified at trial that their plan for the day had been to post themselves outside the Stock Exchange or elsewhere in the Wall Street area, and to talk to bankers, brokers and other employees of financial companies about the environmental harm committed by their employers. Rather than keeping the demonstrators merely 35 feet away from the target, the police had closed off an entire neighborhood.

Judge Robert Mandelbaum, without reaching the issue of the Wall Street closure, held that the order given by the police to disperse was unlawful. The order, which an officer read repeatedly from a written note, included the words, “You must exit west on Rector Street.” As opposed to a mere order to return to the sidewalk, the order to leave via Rector Street further limited the free speech rights of the demonstrators. Judge Mandelbaum therefore acquitted all of the defendants.

McCullen, and Judge Mandelbaum’s ruling, are useful in a wide variety of protest-related cases. The NYPD regularly closes the entire Wall Street area when large protests are expected for May Day or September 17, the anniversary of the founding of Occupy Wall Street. Antiwar demonstrators are frequently arrested attempting to deliver petitions or even loaves of bread to the checkpoints of military bases. Neighborhood activists opposing gentrification are carted away by police at community board meetings. In each of these cases, the judges can usefully be reminded that the First Amendment does not only exist to protect the speech we want to hear, and that inconvenience or annoyance is not grounds for arrest and prosecution.

Jonathan Wallace is a member of the Mass Defense Committee of the New York City chapter of the National Lawyers Guild.


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