When Noam Scheiber began his pitch for socialized law, he opened with the “requisite anecdote.” It’s a rhetorical device, used by those knowledgeable in the art of persuasion against the unwary. It’s also used by the unwary because they fail to understand that it’s of no conceptual significance and they think it proves their point. Let me tell you a tale of woe or joy, they begin, and you will then agree with me.
Linda Greenhouse explains the pitch as well as I’ve ever seen in her New York Times op-ed on the little nuns, a grandmother, Hobby Lobby and the murder of two abortion clinic workers.
“We tell ourselves stories in order to live,” Joan Didion famously wrote in her essay collection “The White Album.” It’s a haunting line, because it’s so universally applicable. We tell ourselves stories not only for profound reasons but for mundane ones as well: to process the ambiguous and complex events that unfold every day around us, or even to try to understand the issues presented in a major Supreme Court case.
In the world of First Amendment freedom, the Supreme Court’s imposition of 35-foot buffer zones around the entrance to clinics flies in the face of a gentle grandmother who only seeks the opportunity to speak with women before they do something that cannot be undone. What of her right to speech?
Eleanor McCullen is a 77-year-old grandmother whose photograph, with an oversize cross hanging from her neck over a bulky winter coat, has been ubiquitous in accounts of the case. For many years she has positioned herself outside the entrance to a Planned Parenthood clinic in downtown Boston with the mission of dissuading women from going ahead with their scheduled abortions. Her argument in the case is that the buffer zone means she can’t engage the women in low-key conversation as she wishes, but instead has to raise her voice in order to get their attention and deliver a message that as a result is inevitably perceived differently.
What could possibly be wrong with allowing McCullen the opportunity to persuade? During oral argument before the Supreme Court, Justice Scalia took umbrage with the characterization of McCutcheon as a “protester.” She says she only wishes to “speak quietly and in a friendly manner,” as is her right. And indeed, no one doubts her sincerity, and it is her right. So what could possibly be the issue here?
Missing from the story of the cherubic grandmother, of course, is context — the reason that Massachusetts enacted its buffer zone, adapted from one the Supreme Court upheld in a Colorado case 14 years ago.
Abortion clinics in Massachusetts have witnessed not only orchestrated harassment but also deadly violence; 20 years ago, amid other such incidents around the country, two clinic staff members were shot to death in Brookline, adjacent to Boston. Ms. McCullen has long been affiliated with Operation Rescue, a group that at its height in the 1990s regularly massed hundreds of people to blockade abortion clinics with the goal of shutting them down. Viewing the law in context, and in light of the Supreme Court’s precedents, the federal appeals court in Boston upheld it as a reasonable regulation designed to protect public safety, leaving any impact on speech both incidental and justifiable.
This isn’t to say whether the decision in Hill v. Colorado was right or wrong, or whether an impact on highly charged political speech that’s characterized as “incidental and justifiable,” a very facile excuse for infringing speech, should prevail. But if free speech doctrine is to be based only on the anecdote of grandma McCullen, the answer is simple and the argument in its favor obvious.
The problem is that legal doctrine isn’t based on an anecdote, but on context, and this complicates things sometimes. Anyone embracing grandma McCullen without understanding why the 35-foot buffer zone was created in the first place cannot engage in rational discussion because they lack context.
The anecdote of the Little Sisters of the Poor is another story that gives rise to outrage, since the answer appears so obvious as to be beyond words.
Little Sisters of the Poor is an order of nuns who offer end-of-life care to the elderly poor in the United States and more than two dozen other countries. As a nonprofit religious organization, the order is exempt from the requirement to provide contraception coverage under its group health insurance plan.
The story began as if they were being forced, by the government, to provide contraceptive coverage, contrary to their religious beliefs and their laudable purpose. Greenhouse then exposes the context.
In other words, there is no chance — none — that the Little Sisters will ever have to have anything whatsoever to do with birth control. All the government is asking the order to do is sign the standard one-page form that sets the exemption machinery in motion.
Bureaucrats do so love forms. In his brief in opposition to an injunction, Solicitor General Donald B. Verrilli Jr. explained why this form was more critical than their religious beliefs:
“When extending religious accommodations, the government must be allowed to provide for regularized, orderly means of permitting eligible individuals or entities to declare that they intend to take advantage of them. That is what the self-certification under the regulations accomplishes.”
Permitting a refusal even to certify, the solicitor general told the court, “would be extraordinary.”
Part of the context is that the need of government for the “orderly” exercise of rights trumps the exercise of rights themselves. More pointedly, the solicitor general contends that absolving the Little Sisters from the duty to put smiles on the faces of bureaucrats would be “extraordinary,” meaning above that which would please the government in the regular course of its function.
The rest of the context, however, appears to escape Greenhouse’s notice. Should we wish to stand on a soapbox and opine that a government official is doing a poor job, there would be no doctrinal basis to not require the speaker to sign a one page certification that he is doing so in order to exercise his right to free speech. So too could a form be required of people who flash their lights at a speed trap.
The point of rights is that one does not require the government’s approval to exercise them. While it would be a tiny burden for the Little Sisters to sign off, the Constitution contains no provision that the rights it protects are subject to the execution of a form. Would it make for a more orderly union? Sure, and there are plenty of nice people who are more than happy to forfeit rights in exchange for order.
These tend to be the same people who embrace an anecdote rather than consider the rule they wish to ram down other people’s throats in context. Everybody is entitled to an opinion, but only after they are aware of the context behind the issue. Without that, it’s just meaningless noise, subject to dismissal out of hand. If you disagree, please fill out the disagreement form in triplicate with a black pen. Failure to do so is subject to a $1000 fine and 15 days in jail.