When was the last pamphlet that changed your mind about something?
I’m just curious. Looking back on all the pamphlets I’ve read in the course of my brief time on the globe, I would say the last one that actually influenced my thinking in any way was called “Common Sense.” It was written by Thomas Paine.
Maybe I’m alone in this. Maybe I have just been getting the wrong pamphlets. Usually the pamphlets I get from people on the sidewalk include a frightening-looking cartoon, imply that I will spend the remainder of eternity roasting in Hell and incorporate six or seven really creative misspellings. I have one in my hand right now. “WHERE ARE YOU GOING TO SPEND ETERNITY?” it asks. It was handed to me a week or two ago. I have another one explaining a sinister conspiracy involving Andrew Jackson, printed out by someone in a tiny, cramped font, erratically capitalized.
Frankly, I think the pamphlet is on its way out.
No, strike that. I am sure the pamphlet is on its way out. As a medium, it has been exhausted. If you have something to say and decide to say it in a pamphlet, I will automatically assume that you have nothing to say. Even if it’s glossy.
So I was really struck by how vital the Supreme Court, in its McCullen v. Coakley ruling on buffer zones for Massachusetts abortion clinics, seemed to think the pamphlet still was. Included in Chief Justice Roberts’ decision was a quote from the historian Bernard Bailyn’s “The Ideological Origins of the American Revolution,” observing: “It was in this form — as pamphlets — that much of the most important and characteristic writing of the American Revolution appeared. For the Revolutionary generation, as for its predecessors back to the early sixteenth century, the pamphlet had peculiar virtues as a medium of communication. Then, as now, it was seen that the pamphlet allowed one to do things that were not possible in any other form.” This, I should note, was written in 1967.
Didn’t they JUST rule on cellphones? Am I missing something?
Next they’ll say you absolutely can stand outside abortion clinics ringing a big bell and shouting “Hear ye, hear ye,” on the grounds that “the town crier, in his role of spreading the news, remains as vital as ever and offers advantages no other medium possesses.” Next people will be permitted to construct a large bonfire outside a clinic on the grounds that “we need fire to keep warm, just as was the case historically.” Well, no. Look around you. At a certain point, common sense should trump.
Not to be harsh on pamphlets. Pamphlets are all very well. But just because the founders did it and it was vital then does not mean it deserves the same privileged status as a method of conveying ideas that it had back in 1788.
The body of the ruling notes that “while the First Amendment does not guarantee a speaker the right to any particular form of expression, some forms — such as normal conversation and leafletting on a public sidewalk — have historically been more closely associated with the transmission of ideas than others” and quoted another ruling — “Leafletting and commenting on matters of public concern are classic forms of speech that lie at the heart of the First Amendment.”
All well and good. Historically. Next someone can arrange a series of carrier pigeons with anti-abortion messages strung to their feet. I get all my best information from Bills Posted Against The King.
I’m sorry this is getting out of hand, but you do see my point.
In the ruling, it all comes back to the idea that “By its very terms, the Massachusetts Act regulates access to “public way[s]” and “sidewalk[s]. . . . Such areas occupy a ‘special position in terms of First Amendment protection’ because of their historic role as sites for discussion and debate. . . . These places — which we have labeled ‘traditional public fora’ — have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.”
Ah, yes, no public forum more traditional than the 35 feet of space outside an abortion clinic. That was where Thomas Paine handed out some of his best pamphlets. I like to call it a “sidewalk” myself, but I haven’t been reading the right leaflets, evidently.
“It is no accident,” the ruling continues, “that public streets and sidewalks have developed as venues for the exchange of ideas. Even today, they remain one of the few places where a speaker can be confident that he is not simply preaching to the choir. With respect to other means of communication, an individual confronted with an uncomfortable message can always turn the page, change the channel, or leave the Web site. Not so on public streets and sidewalks. There, a listener often encounters speech he might otherwise tune out.”
If you were just tuning in at this point, you would be forgiven for mistaking the 35 feet in front of a Massachusetts clinic for the speakers’ corner in Hyde Park. When I want to engage in free exchange of ideas, I always beeline straight down to the sidewalk outside abortion clinics. Just as Thomas Jefferson did. As the ruling notes, newspapers, TV and the Internet are historically poor methods for the exchange of ideas that that the First Amendment had in mind. You can close them and turn their pages! Why do they get any protection at all?
No, really, those last 35 feet before the clinic door: That’s the sweet free speech spot.
My other favorite part of this ruling was the accounts from the plaintiffs, which I can loosely summarize as follows: The plaintiffs wanted to approach the people going into the clinic and speak compassionately to them. Unfortunately, because of the buffer zone, they were forced to yell at the people from far away, and the people could not tell how compassionate they really were.
Why, the plaintiffs asked, do you force us to yell at you like this?
Look, stepping back from pamphlets for a moment, I think it is possible that the statute was not narrowly tailored enough, and that there is a way for Massachusetts to frame this to achieve the same end without creating Zones of Silence on the sidewalk — especially if the problems were primarily limited to one location with some specific enforcement problems that prompted the upgrade from the original six-foot buffer zone.
But I do find one part of the ruling troubling. When the court explains that it let a buffer zone around polling places stand, Roberts wrote, “we approved the buffer zones as a valid prophylactic measure, noting that existing ‘[i]ntimidation and interference laws fall short of serving a State’s compelling interests because they “deal with only the most blatant and specific attempts’ to impede elections.”’ Such laws were insufficient because ‘[v]oter intimidation and election fraud are . . . difficult to detect.’ . . . Obstruction of abortion clinics and harassment of patients, by contrast, are anything but subtle.”
Is that so? Is it “anything but subtle”? In some forms, yes, when it’s the shouting person with the sign. But I think one man’s “a large friendly group of us are compassionately approaching you on your way down the sidewalk to hand you these leaflet and speak compassionately to you one on one, but if we can’t get close enough, we’re going to yell compassionately” could be another man’s “obstruction of an abortion clinic.”
It’s difficult. Speech is protected. Free speech is vital. You want to express your beliefs in the public forum, especially beliefs as deeply felt as the ones on both sides of this issue. There is no right not to hear certain types of speech. But if you acknowledge that women seeking access to clinics have the right to enter them without being harassed, it feels a little glib to say “ah, but there’s nothing here like that! What this case really is about, is the ability to pamphleteer in the traditional public square.”
But this probably won’t convince you. After all, it isn’t a pamphlet.