
                         Roanoke Times
                 Copyright (c) 1995, Landmark Communications, Inc.

DATE: THURSDAY, May 17, 1990                   TAG: 9005170464
SECTION: EDITORIAL                    PAGE: A-14   EDITION: METRO 
SOURCE: 
DATELINE:                                 LENGTH: Medium

TOO HEAVY A HAND ON ABORTION PROTEST

OPERATION Rescue employs tactics that seem likelier to offend people than to persuade them of the rightness of the group's anti-abortion cause.

But despite Operation Rescue's penchant for sit-ins and human barricades, the courts have gone too far in barring the organization from demonstrating within 50 feet of the property line of any abortion clinic in Atlanta.

The injunction, upheld first by the Georgia Supreme Court and this week by the U.S. Supreme Court on a 5-4 vote, is too broad. It is permanent. It covers public areas, such as streets and sidewalks, as well as private property. It enjoins not only illegal behavior but also behavior that, absent the injunction, would not violate the law.

Granted, the tactics of Operation Rescue can be vicious as well as illegal. To block patrons' access to and egress from abortion clinics, as has occurred in Atlanta and elsewhere, is to use physical force to bully people already under stress.

Granted, too, the exercise of free speech isn't the same as harassment and intimidation. The former is guaranteed by the First Amendment; the latter enjoys no constitutional guarantee.

But the line separating the acceptable from the unacceptable can be fuzzy. When it is, the government and its courts should take care that, if they err, they err on the side of free speech.

A more narrowly drawn injunction might well have been unobjectionable. For example, the court could have limited the injunction to clearly illegal behavior, thereby adding the prospect of contempt penalties to statutory penalties. Or the court could have pinpointed specific trouble spots, and set rules for each to ensure that protesters' picketing did not interfere with the public's right to pass.

As it is, however, the ban in its breadth goes beyond the regulation necessary for ensuring that one party's rights aren't exercised at the expense of another party's. The ban seems based not only on the mode of political expression but also, as the Supreme Court dissenters noted, on the content of that expression.

At first glance, the dissenters make an odd coalition. Justices Thurgood Marshall and William J. Brennan are called liberal. Justices Antonin Scalia and Anthony Kennedy are Reagan-appointed conservatives.

What they apparently share, however, is a conviction that the First Amendment is too precious to be cast aside even for offensive speech. Make that especially for offensive speech: Inoffensive speech seldom needs constitutional protection. Indeed, vehemence and a lack of courtesy are to be expected from protesters who may believe that abortion is a holocaust, the equivalent of baby-killing.

Enforce laws against behavior that obstructs the activities of legal enterprises? Of course. But don't suppress speech because it's disagreeable.

by CNB