Regulation of nonviolent political-protest activities outside abortion clinics must balance the constitutional rights to free speech and to choose abortion, and the social value of nonviolent political protest. This Article examines and questions two current assumptions about the proper scope of government regulations. The first assumption is that, absent a constitutional obstacle under prevailing free speech jurisprudence, it is appropriate to enjoin or statutorily enhance sanctions for any variety of nonviolent political-protest activities that block access to clinics or constitute illegal trespasses. This Article argues that for a particular type of nonviolent political protest-conduct that is equivalent to speech on a public issue-the general, but rebuttable presumption should be that neither of these extra burdens is appropriate. The second assumption is that restrictions on “harassing” speech, absent threatened or actual physical harm, necessarily conflict with the values that underlie the First Amendment. This Article argues that current constitutional analysis places disproportionate weight on the free speech right and insufficiently recognizes the equality interest that underlies the right to choose abortion. The Article concludes that a slight shift in focus would accommodate both interests more fully, allowing regulation more freely where political-protest activities are targeted at specific individuals or occur in close proximity to the targets.
Leslie Gielow Jacobs, Nonviolent Abortion Clinic Protests: Reevaluating Some Current Assumptions About the Proper Scope of Government Regulations, 70 Tul. L. Rev. 1359, 1360 (1996).