Judge Posner and Anti-Abortion Protestors

Based on Judge Posner’s recent piece on slate.com, I think that the next time he is on a panel in a case involving a free speech claim by anti-abortion protestors their counsel should file a motion seeking his recusal.  Consider this passage discussing yesterday’s Supreme Court decision on buffer zones around abortion clinics:

Who wants to be buttonholed on the sidewalk by “uncomfortable message[s],” usually delivered by nuts? Lecturing strangers on a sidewalk is not a means by which information and opinion are disseminated in our society. Strangers don’t meet on the sidewalk to discuss “the issues of the day.” (Has Chief Justice John Roberts, the author of the opinion, ever done such a thing?) The assertion that abortion protesters “wish to converse” with women outside an abortion clinic is naive. They wish to prevent the women from entering the clinic, whether by showing them gruesome photos of aborted fetuses or calling down the wrath of God on them. This is harassment of people who are in a very uncomfortable position; the last thing a woman about to have an abortion needs is to be screamed at by the godly.

The issue is not mainly, as the court stated in the last sentence that I quoted, the maintenance of public safety. Most abortion protesters are not violent, and police will be present to protect the visitors to the clinic. The issue is the privacy, anxiety, and embarrassment of the abortion clinic’s patients—interests that outweigh, in my judgment anyway, the negligible contribution that abortion protesters make to the marketplace of ideas and opinions.

I submit that this calls into question whether Judge Posner could fairly adjudicate the First Amendment rights of these “nuts” who make a “negligible contribution.”


You may also like...

5 Responses

  1. Joe says:

    People on sidewalks might be “nuts” in various cases, but many people try to convince people that way, including the proverbial soapbox. Many of these at the time (and now) were/are seen as nuts. But, that is neither here or there. He is better focusing on the typical person here, who even there, aren’t “nuts” in various cases as compared to to be blunt jerks.

    The real life situation of them also harassing and obstructing is true enough in various cases but he went too far in his comments. But, I guess, who is really surprised given his tendencies to run his mouth a bit too far? See, e.g., his ongoing feud with Scalia, whose ire at certain people wasn’t just found in an (unlinked) commentary piece. See, e.g., his separate opinion in WATCHTOWER BIBLE & TRACT SOC. OF N. Y., INC. v. VILLAGE OF STRATTON about certain “crackpots.

  2. Joe says:

    Here’s the article:


    Note he is something of an equal opportunity um critic here. The remarks included that he had found “hard to take the dissents seriously” in the town meeting invocations case, tossing in calling a Wiccan a “witch.”

    I found the remarks about Roberts’ “wit” overblown. But, this sort of rhetoric by a federal judge is to my mind beyond the pale.

  3. NSW Lawyers says:

    There are many comments in that case.

  4. Eric Rasmusen says:

    Political protesters rarely change anyone’s mind, I would guess. It does happen occasionally that abortion protesters change the mind of a woman about to have an abortion, and that is one reason the protests have continued an astonishing 40 years (has any other cause prompted demonstrations once a week for even 5 years in a row). Many of the women coming for abortions will not have talked with anyone giving them a practical alternative to abortion, or who cares about the doubts they have as to whether what they are doing is right. That’s one reason many of them are bothered by the protesters; Judge Posner is saying that these women should be protected from ever having to hear anyone who questions whether their decision is correct.
    I personally know one 12-year-old boy who was born only because his mother talked to abortion protesters and was persuaded to put him up for adoption.

  5. paul smith says:

    Protesters are unpredictable and intimidating, once you gave them a right over a particular matter, they will use it and at the same time abuse it. I am hoping that this law will not aggravate the situation.