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.”