Intimidation: Now It’s a First Amendment Right!


For anti-choicers, the right to freedom of speech is like a game of Calvin-ball, the “Calvin and Hobbes” comic strip “sport” in which all rules could be revised, changed, updated, and discarded depending on what it took to win. They claim that freedom of speech trumps literally every other right, as long as it is done under the guise of “saving babies.”

It’s “freedom of speech,” for example, to “inconvenience” Planned Parenthood of Greater Orlando CEO Jenna Tosh by picketing her home. Tosh told the WinterPark, Florida, city council that she felt “threatened and ambushed” when anti-choicers picketed her home, and the council passed a short-term ordinance forbidding assembly on a residential property. But opponents say that it was the wrong decision. After all, it was just one woman being intimidated. In an op-ed written by the Florida Sentinel, the paper argues:

Winter Park modeled its measure after ordinances that already had passed constitutional muster, so we aren’t arguing legal merits. But we do question the knee-jerk response to a single citizen’s complaint—precipitated by the distribution of pro-life handouts and, nearly a week later, some nonviolent picketing. And we question the need for a new law when laws exist to protect citizens against protests that grow unruly. And we question why government officials are so quick to crack down on freedom of speech. Imagine the outcry if commissioners had tried to go after the Second Amendment. Having to push past protesters toting signs that read “Jenna Tosh kills babies and hurts women” certainly is unpleasant. We sympathize with her. However, her need to avoid disturbing, anti-abortion expressions outside her home shouldn’t trump the rights of the many to exercise their First Amendment rights within public areas in residential areas.

Is it merely “unpleasant” to have people picket your neighborhood in a group, using your name and calling you a baby-killer? Does making someone feel unsafe in her own home not matter if it somehow infringes on the right of a group to make that person feel intimidated? And where exactly do “free speech” advocates draw the line for what constitutes “unruly?”

In fact, in some cases it seems as though courts are bending over backwards to ignore the physical intimidation involved in many of the anti-choice protesters’ activities. In a recent FACE act case involving an anti-choice activist at EMW Women’s Surgical Center in Louisville, the judge decided that touching an escort is just another way of expressing “freedom of speech.”

“In his attempt to continue talking to the patient, [anti-choice "sidewalk counselor" David Hamilton ‘pushed [clinic escort Jane Fitts's] arm down slightly,’” [U.S. District Judge Jennifer B. Coffman] found.

But the judge said the Federal Access to Clinic Entrances Act (FACE), requires the prosecution to show Hamilton used force with the intent to injure or intimidate someone because that person was seeking or providing reproductive health services.

There are questions for a jury concerning whether any contact “was used intentionally to injure, intimidate, or interfere” and “whether Fitts was indeed providing reproductive health services.”

The judge suggested it was possible that Fitts was not an “escort” at all but would be “more accurately characterized as a counter-protester.”

“U.S. courts are charged with protecting the freedoms of all American citizens,” said Cody. “Sidewalk counselors have the same rights as other people.”

How is pushing an escort’s arm down in order to make contact with a patient trying to access abortion services not an attempt to “interfere” with or “intimidate” both the escort and the woman seeking a termination?

Anti-choicers don’t appear to “have the same rights as other people.” They claim more rights, supra-rights, a secretly granted set of rights that appear to trump the rights of those who seek reproductive health care, those who provide it, and those who assist in ensuring the first two can meet each other without hindrance. If the right to freedom of speech outweighs the pursuit of happiness—i.e.: the ability to access care, the ability to walk the streets without unwanted physical contact, the right to feel safe in your own home, then how does anyone else have any freedom at all?

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