Diary

ACLU-NH's selective First Amendment defense

The New Hampshire Union Leader on July 24 carried an American Civil Liberties Union of New Hampshire op-ed. The topic was free speech and the First Amendment, particularly where political signs are concerned. The op-ed celebrated judicial determination that while content-neutral regulation is permissible, content-based regulation amounts to censorship and is a no-no. Feast on this paragraph, wherein the writers speculate on what could happen if content-based censorship were allowed.

Just think about it. Government officials who want to censor certain categories of speech could simply hide these nefarious motives behind seemingly neutral justifications (i.e.public safety, preventing crime, etc.) and voila, the law would now no longer be content based.

The op-ed goes on to say that ACLU-NH is actively opposing New Hampshire’s “ballot selfie” law which makes it a violation-level offense to post to social media a photo of a marked ballot, including one’s own. It’s a ridiculous law, it certainly looks like content-based speech regulation, and ACLU is on the side of the angels in that fight.

So why did ACLU-NH lobby for New Hampshire’s abortion-area buffer zone law and then successfully lobby against its repeal?

Unlike restrictions on pro-life public witness that have been found constitutional (if odious) in other states, New Hampshire’s law – if it were allowed to go into effect – would give abortion facility managers the power to bar public access to public sidewalks, regardless of a person’s reason for occupying the sidewalk. The abortion facility managers would have sole authority to determine the size, placement, and hours of enforcement of the “buffer” area.

The law was such an in-your-face violation of First Amendment rights that when it was challenged in court, a federal judge immediately slapped an injunction on it. It remains enjoined pending the outcome of a lawsuit.

As the ACLU writers pointed out in their op-ed, “Just think about it. Government officials who want to censor certain categories of speech could simply hide these nefarious motives behind seemingly neutral justifications (i.e. public safety…)…”

Or legislators determined to eradicate public pro-life witness at all costs could just give carte blanche to abortion providers. When the law was in a House committee, there was a motion to give municipalities more than an advisory role in the establishment of buffer zones. The motion was defeated.

And ACLU-NH was okay with that.

Lose the blind spot. If the First Amendment is good for ballot selfies, it’s good for peaceful pro-life witness.

[A slightly different version of this post first appeared on the author’s blog, leavenfortheloaf.com.]