A Separate Abridged Edition of the First Amendment
By Colin Starger
In 2014, the late Justice Scalia concurred in judgment in a case called McCullen v.
Coakley.1 Judgment was in fact unanimous — invalidating under the First Amendment a
Massachusetts law that criminalized standing on a public road or sidewalk within thirtyfive feet of a reproductive health care facility. Though satisfied with the Court’s decision
to strike down the law, Justice Scalia bucked at the means taken to the end. His
concurrence opens with these words:
Today’s opinion carries forward this Court’s practice of giving abortion-rights
advocates a pass when it comes to suppressing the free-speech rights of their
opponents. There is an entirely separate, abridged edition of the First Amendment
applicable to speech against abortion. 2
Scalia then cited two prior cases that enacted the “abortion-speech edition of the First
Amendment” – Madsen v. Women’s Health Center (1994) and Hill v. Colorado (2000).3
Not coincidentally, Scalia wrote forceful separate dissenting opinions in each of those
prior cases.
This chapter analyzes the rhetorical strategy pursued by Scalia across his separate
opinions in the “abridged” First Amendment controversies. Initial analysis leads to a
counterintuitive conclusion: that Scalia’s opinions in these so-called “abortion speech”
cases are not actually about free speech at all. While they formally focus on First
Amendment doctrine, the opinions’ true subject is the broader and highly fraught legal
discourse around abortion and choice itself. Pages of technical free speech exposition
1
McCullen v. Coakley, 134 S.Ct. 2518 (2014).
Id. at 2541 (Scalia, J., concurring in judgment).
3
Id. at 2541 (Scalia, J., concurring in judgment) (citing Hill v. Colorado, 530 U.S. 703 (2000);
Madsen v. Women’s Health Center, Inc., 512 U.S. 753 (1994).
2
1
merely frame Scalia’s deeper and more essential rhetoric aimed at promoting values and
arguments undermining the Court’s abortion decisions from Roe v. Wade on forward.
To break down the crux and significance of Scalia’s strategy, this chapter
introduces the rhetorical concept of epideictic speech. As will be explained, epideictic
speech seeks to affect the values of a larger argumentative discourse rather than the
outcome of a current dispute. In the First Amendment cases under review, Scalia employs
an epideictic approach to associate the Court’s abortion rights jurisprudence with the
erosion of core constitutional values. Per Scalia, the Court’s various abortion doctrines
collectively function as an “ad hoc nullification machine” wreaking havoc on the Rule of
Law.4 Scalia’s rhetoric across the abortion-protestor cases is precisely engineered to drive
this point home.
Agree or disagree with him on the merits of his claims, Scalia’s recourse to
epideictic argument warrants our close attention. Though his rhetoric, Scalia reminds us
that the true axis of dispute in the Court’s most controversial cases often concerns
competing values.5 Examining how Scalia constructs his value-based arguments in turn
illuminates how ancient rhetorical categories can deepen our understanding of legal
discourse.
A. Abortion Protest, the Supreme Court, and the First Amendment
See Madsen v. Women’s Health Clinic, Inc., 512 U.S. 753, 785 (1994) (Scalia, J., concurring in
judgment in part and dissenting in part); Hill v. Colorado, 530 U.S. 703, 741 (2000) (Scalia, J.,
dissenting). See also Janklow v. Planned Parenthood, 517 U.S. 1174, 1179 (1996) (Scalia, J.,
dissenting from the denial of certiorari).
5
Here I build on prior work analyzing the rhetorical role of value argument in constitutional
discourse. See generally Colin Starger, Constitutional Law and Rhetoric, 18 U. PA. J. CONST. L.
1347 (2016).
4
2
After the Supreme Court decided Roe v. Wade in 1973, national debate over
abortion did not end. To the contrary, battles over life, choice, and women’s rights only
intensified after the Court “resolved” the constitutional question. 6 This intensification is
at least partially explained by Roe’s disruption of state legislative efforts and its shortcircuiting of the political process. As Justice Ginsburg has acknowledged, Roe “left
virtually no state laws fully conforming to the Court’s delineation of abortion regulation
still permissible. Around that extraordinary decision, a well-organized and vocal right-tolife movement rallied.”7
The strategies of this right-to-life movement evolved over time and varied wildly.
In legal terms, tactics have run the gamut from the clearly legal (such as letter writing and
prayer vigils) to the clearly illegal (such as fire-bombing clinics and even murdering
doctors). 8 For obvious reasons, the violent actions of criminal “activists” occupy a
prominent place in public debates over the right-to-life movement. In Supreme Court
debates, however, the fanatical fringe lurks in the background of the discourse. This is
because pro-life protesters whose cases have reached the Court generally have pushed the
legal boundaries of free speech rather than engaged in outright violence. The most
relevant context for the Court’s “abortion speech” cases is thus the tradition if militant
pro-life civil disobedience.
See Planned Parenthood v. Casey, 505 U.S. 833, 995-96 (1992) (Scalia, J., dissenting) (“Roe
fanned into life an issue that has inflamed our national politics in general, and has obscured with
its smoke the selection of Justices to the Court in particular”).
7
Ruth Bader Ginsburg, Speaking in a Judicial Voice, 67 N.Y.U. L. REV. 1185, 1205 (1992).
8
According to the National Abortion Federation (NAF), there have been eleven murders of
abortion providers and twenty-six attempted murders since the early 1990s. The NAF also has
documented over 200 bombings and arsons directed at reproductive health facilities since the
1970s. See generally https://prochoice.org/education-and-advocacy/violence/violence-statisticsand-history/.
6
3
This tradition began on a small scale in the 1970s often led by leftist Catholics
who had cut their teeth in earlier civil rights and anti-war movements.9 By the late 1980s,
militant civil disobedience had become widespread. Radical pro-lifers employed direct
action tactics like sit-ins and entrance blockades in their efforts to shut down abortion
clinics. Groups such as Operation Rescue directly courted arrest and this outcome was
common. In 1988, for example, there were 188 clinic blockades resulting in over 11,000
arrests.10
As charged scenes of confrontation and chaos played out in front of clinics around
the country, the women’s rights movement mobilized. In addition to organizing
grassroots clinic defense, pro-choice activists turned to the law to combat disruptive
direct action. In courts and legislatures, abortion-rights advocates sought injunctions
against specific pro-life groups as well as the passage of laws to protect clinic access.11
Legal wrangling over the space outside of clinics led to cat-and-mouse-like games where
lines would be drawn to prevent pro-life protesters from interfering with clinic functions,
then protesters would find ways to skirt or avoid the lines, and then new lines would be
drawn. Eventually, some of this wrangling ended up in the Supreme Court.
The Supreme Court cases that directly adjudicated pro-life protesters’ First
Amendment rights in the context of clinic direct actions are properly understood as the
“abortion speech” cases. During Justice Scalia’s 30-year tenure on the Court from 1986
See Christopher Keleher, Double Standards: The Suppression of Abortion Protesters’ Free
Speech Rights, 51 DEPAUL L. REV. 825, 839-40 (2002).
10
See Note, Safety Valve Closed: The Removal of Nonviolent Outlets for Dissent and the Onset of
Anti-Abortion Violence, 113 HARV. L. REV. 1210, 1218 (2000).
11
In terms of legislation, the most significant national victory for the pro-choice movement was
likely the enactment of the Freedom of Access to Clinic Entrances (FACE) Act in 1994. See 18
U.S.C. § 248. This law criminalized interference by force, threat, or intimidation with people
seeking reproductive health services and created a much-utilized civil cause of action.
9
4
to 2016, the Court decided five abortion speech cases: Frisby (1988)12, Madsen13 (1994),
Schenck14 (1997), Hill15 (2000), and McCullen16 (2014). To be clear, the Court decided
numerous other cases that dealt with abortion and even abortion protest during this 30year period.17 But only Frisby, Madsen, Schenck, Hill, and McCullen directly ruled on
pro-life protesters’ First Amendment rights. Since they provide the source material for
this Chapter’s rhetorical analysis, a snapshot view of these disputes and the doctrinal
questions implicated is in order.
Frisby concerned a facial challenge to local law in Brookfield, Wisconsin, that
prohibited all picketing in front of residential homes. The law was passed after protesters
had repeatedly gathered at the home of a local doctor who performed abortions and
disturbed neighborhood quiet. After protesters challenged on First Amendment grounds,
a 6-3 majority of the Supreme Court upheld the law. Even though abortion protest
provided the impetus, the law itself prohibited all residential picketing in front of a single
house and thus was “content-neutral”. Though he did not write an opinion, Justice Scalia
notably voted with the majority. Dissent only came from the Court’s liberal wing who
objected to the broad sweep of the anti-picketing law.
Six years after Frisby, the Court decided Madsen. After Operators of the Aware
Woman Center for Choice in Melbourne, Florida initially obtained an injunction
prohibiting activists from directly interfering with clinic access, the operators sought to
combat continued protests that featured loud noise, disturbing images, and harsh
12
Frisby v. Schultz, 487 U.S. 474 (1988).
Madsen v. Women’s Health Center, 512 U.S. 753 (1994).
14
Schenck v. Pro-Choice Network of Western NY, 519 U.S. 537 (1997).
15
Hill v. Colorado, 530 U.S. 703 (2000).
16
McCullen v. Coakley, 134 S.Ct. 2518 (2014).
17
See infra note 37.
13
5
exchanges with clinic employees and patients. The district court broadened the existing
injunction by imposing various buffer zone around the entire clinic and ordering limits on
noise and observable images. A 6-3 majority of the Supreme Court upheld parts of the
injunction and struck down others.18
Writing for the majority, Chief Justice Rehnquist found the new injunction to be a
“content-neutral” restriction directed only at protesters who had violated the initial
injunction. Rehnquist approved those buffer zones and noise limitations that were
necessary for the clinic to function. However, he found the injunction violated First
Amendment when it prohibited the display of graphic images and created buffer zones in
places irrelevant to preserving access to the clinic. Justice Scalia dissented. He began:
“The judgment in today’s case has an appearance of moderation and Solomonic wisdom,
upholding as it does some portions of the injunction while disallowing others. That
appearance is deceptive.”19 Per Scalia, the entire new injunction violated the First
Amendment because it was a content-based restriction directed at those who expressed
anti-abortion sentiments.
Decided three years after Madsen, Schenck involved similar facts and provoked a
similar debate. The case once again involved an injunction against pro-life activists who
had blockaded clinic entrances and engaged in aggressive “sidewalk counseling.” The
district court issued an injunction that prohibited demonstrations within 15 feet of clinic
entrances and parking lots (“fixed buffer zones”) and also prohibited demonstrators from
coming within 15 feet of patients coming to the clinic (“floating buffer zones”). By a vote
of 6-3, the Supreme Court upheld the fixed buffer zones but struck down the floating
18
19
See generally Frisby, 487 U.S. at 757-76.
Id., 487 U.S. at 784-5 (Scalia, J., dissenting)
6
buffer zones under the First Amendment. Once again, Chief Justice Rehnquist penned the
majority opinion and once again Justice Scalia dissented from that part of the decision
that upheld portions of the injunction.20
Next in the series, Hill is possibly the most controversial abortion-speech case.
Decided in 2000, Hill involved a statute rather than an injunction. The Colorado law
prohibited those standing within 100 feet of a health care facility's entrance from
approaching people going to the facility and passing them leaflets without their consent.
The law also limited within 100 feet displaying signs, and engaging in protest, education,
or counseling. In another 6-3 decision with the exact same line-up as in Madsen and
Schenck, the Court upheld the statute against a First Amendment challenge.
Justice Stevens wrote for the majority and classified the law as a content-neutral
time, place and manner restriction. Per Stevens, the law did not discriminate based on
viewpoint and served legitimate government interests in ensuring ingress and egress to
medical clinics. Scalia dissented, hotly disputing the majority’s content-neutrality
analysis:
I have no doubt that this regulation would be deemed content-based in an
instant if the case before us involved antiwar protesters, or union members
seeking to “educate” the public about the reasons for their strike… But the
jurisprudence of this Court has a way of changing when abortion is
involved.21
This quote reflects both Scalia’s concern with content-neutrality doctrine and his
rhetorical strategy of accusing the Court of double-standards when it comes to
abortion.
20
21
See generally Schenck, 519 U.S. at 361-95.
See Hill, 530 U.S. at 742 (Scalia, J., dissenting) (italics in orginal).
7
Before examining that strategy in earnest, the final case in the abortion-speech
line requires brief exposition – McCullen. This 2014 case involved a Massachusetts law
that criminalized knowingly standing within 35 feet of an abortion facility (other than a
hospital). The law was an undeniably aggressive response to anti-abortion protest. The
Court unanimously stuck down the law on First Amendment grounds. Chief Justice
Roberts authored the majority opinion. Roberts reasoned that although the Massachusetts
law was content-neutral, it was also overbroad because it prohibited too much protected
speech.
Scalia concurred in judgment only and wrote separately. In his concurrence,
Scalia argued that the Massachusetts law was not at all content-neutral and castigated the
Court for its continued the distortion of free speech doctrine. It was in this final opinion
in the line that Scalia accused the Court of applying “an entirely separate, abridged
edition of the First Amendment… to speech against abortion.”
B. Scalia’s Rhetoric Attacking Legitimacy
Justice Scalia’s separate opinions in the abortion-speech cases span dozens of
pages of the US Reports. The great bulk the ink spilled is devoted to what might be fairly
characterized as technical analysis – close readings of the factual record before the Court
and of relevant First Amendment precedent. This is as it should be. The majority opinions
in these cases were likewise centered on conventional argument over the record and
precedent. The main First Amendment flashpoint concerned content-neutrality doctrine.
Who is “right” and who is “wrong” on the technical doctrinal issues need not
detain us long. Suffice it to say that both sides advance plausible interpretations of the
8
First Amendment and plausible readings of prior caselaw. Reasonable jurists could (and
certainly did) disagree on the merits. Nonetheless, Scalia’s non-technical argument – his
deeper and more essential rhetoric – consistently maintained that the only real
explanation for the majority’s doctrinal positions was ideological commitment to abortion
and bias against pro-life protest. It is this rhetoric attacking the basic legitimacy of the
majority’s arguments that draws our gaze.
From the outset, Scalia faced rhetorical obstacles in painting his opponents as
driven by anti-pro-life bias. This is because the interpretative divide in the abortionspeech cases never fell along classic liberal/conservative lines. Indeed, the first case in
this line – Frisby – saw a conservative majority that included Scalia himself (!) uphold
regulations drawn up to stop anti-abortion home picketing. Then came the clinic-access
cases Madsen, Schenck, Hill, and McCullen. While Scalia was invariably joined by
Justices Kennedy and Thomas in his separate opinions in those cases, the competing
majority coalitions always attracted conservative Justices – at first Rehnquist and
O’Connor and later Roberts. None of these conservative Justices could be fairly accused
of a pro-abortion ideological bias.
Scalia’s response to this awkward rhetorical reality was to bob and weave.
In Madsen, Scalia bobbed by throwing his opponents’ words back in their faces.
Specifically, Scalia opened his own dissent by block quoting another dissent from “long
ago” in “another abortion-related case”:
This Court’s abortion decisions have already worked a major distortion in the
Court’s constitutional jurisprudence. Today’s decision goes further, and makes it
painfully clear that no legal rule or doctrine is safe from ad hoc nullification by
9
this Court when an occasion for its application arises in a case involving state
regulation of abortion. 22
The block quote came from O’Connor in her dissent – joined by then-Justice Rehnquist –
in a mainline abortion case (Thornburgh) where the majority invalidated state informedconsent and reporting regulations. Now that Rehnquist and O’Connor were in the Madsen
majority, Scalia declared: “Today the ad hoc nullification machine claims its latest,
greatest, and most surprising victim: the First Amendment.” 23
Here Scalia implicitly brands Rehnquist and O’Connor as hypocrites. Never mind
that the hypocrisy charge makes little sense. (Given Rehnquist and O’Connor favored
abortion regulation in Thornburgh, it seems unlikely that anti-pro-life sentiment guided
their First Amendment analysis in Madsen). Scalia’s larger point is that abortion confuses
Court doctrine and his argument creates heat and sows confusion by attacking the basic
legitimacy of the majority and its argument.
In Hill, Scalia also weaves around the legitimacy issue. One tactic deployed is a
time-tested trope: repetition. In page after page, Scalia charges the majority with bias.
“Having deprived abortion opponents of their political right to persuade the electorate
that abortion should be restricted by law,” he begins, “the Court today… expands its
assault upon their individual right to persuade women contemplating abortion that what
they are doing is wrong.”24 Later he muses, “There is apparently no end to the distortion
of our First Amendment law that the Court is willing to endure in order to sustain this
restriction upon the free speech of abortion opponents.”25 And then finally: “Does the
22
Madsen, 512 U.S. at 785 (Scalia, J., dissenting) (quoting Thornburgh v. American College of
Obstetricians and Gynecologists, 476 U.S. 747, 814 (1986) (O’Connor, J., dissenting)).
23
Id. (Scalia, J., dissenting).
24
Hill, 530 U.S. at 741-2 (Scalia, J., dissenting)
25
Id. at 753 (Scalia. J., dissenting).
10
deck seem stacked? You bet.” 26 Through repetition, the charge of illegitimacy gains
momentum.
Scalia amplifies his charge through familiar accusations of hypocrisy. Since
Justice Stevens wrote the Hill majority opinion, Scalia sets his sights on Stevens’ prior
dissents (including Frisby) wherein Stevens had argued against anti-picketing restrictions
because they hindered vital persuasive communications. “Today, of course,” barbed
Scalia, “Justice Stevens gives us an opinion restricting not only handbilling but also oneon-one conversation of a particular content.” 27 For Scalia, this about-face proves ill will.
(Never mind that Scalia voted with the majority in Frisby in upholding anti-picketing
restrictions burdening pro-life protest; his about-face is not the issue).
As a liberal, Stevens made an easy target. Yet Scalia’s rhetorical posture once
again failed to come to grips with the fact that the Hill majority garnered votes from
conservative pro-life Justices. Specifically, Chief Justice Rehnquist joined the Hill
majority even though he voted with Scalia to uphold so-called “partial birth abortion ban”
in Stenberg v. Carhart, a massively controversial case decided on the very same day as
Hill.28 Hypocrisy, bias, and a desire to stifle anti-abortion speech simply cannot explain
Rehnquist’s First Amendment analysis in Madsen and Schenck or his vote in Hill.
Although Scalia ignored the Rehnquist problem in his Hill dissent, he did not
ignore Stenberg. Far from it. In Stenberg, a 5-4 majority struck down the “partial birth
abortion” restrictions and so Scalia (and Rehnquist) both dissented. In his Hill dissent,
Scalia argued extensively that the majority methods in Hill and Stenberg contradicted
each other thus revealing hypocrisy. The appeal to hypocrisy must now be put aside for it
26
Id. at 654 (Scalia, J., dissenting).
Hill, 530 U.S. at 745 (Scalia, J., dissenting).
28
Stenberg v. Carhart, 530 U.S. 914 (2000).
27
11
is Scalia’s references to Stenberg that hold the key to understanding the rhetorical
strategy driving all his abortion-speech dissents. He writes:
The public forum involved here – the public spaces outside of health care
facilities – has become, by necessity and by virtue of this Court’s decisions, a
forum of last resort for those who oppose abortion. The possibility of limiting
abortions by legislative means – even abortion of a live-and-kicking child that is
almost entirely out of the womb – has been rendered impossible by our decisions
from Roe v. Wade to Stenberg v. Carhart. For those who share an abiding moral
or religious conviction… that abortion is the taking of a human life, there is no
option but to persuade women, one by one, not to make that choice. And as a
general matter, the most effective place, if not the only place, where that
persuasion can occur is outside the entrances to abortion facilities.29
The pathos of Scalia’s writing here jumps off the page. He clearly shares the view of
“those who oppose abortion” that the practice is immoral. By his reference to a live-andkicking child, it is equally clear that Stenberg pains him. Frustrated by defeat in that
mainline abortion case, Scalia implies that his First Amendment analysis must be right
because it protects the only effective way left to persuade women not to choose abortion.
This remarkable argument provides evidence for the counterintuitive conclusion
foreshadowed in this Chapter’s introduction – that Scalia’s abortion-speech opinions do
not fundamentally concern free speech at all. Rather, Scalia’s true subject is abortion. He
aims to delegitimize the Court’s mainline abortion doctrine by associating it with erosion
of the rule-of-law values elsewhere in the Court’s jurisprudence. Accusations of
hypocrisy advance the notion that abortion causes the Court to disregard neutral decisionmaking and principled consistency. Neutrality and consistency are, of course, hallmarks
of the rule of law.
The accuracy of Scalia’s accusations matters less than that he repeats the
accusations with verve and flair. Because the point really isn’t to “win” the technical First
29
Hill, 530 U.S. at 763 (Scalia, J., dissenting).
12
Amendment argument. The point instead is to intervene in the larger discourse around
abortion and advance value arguments supporting the pro-life view. This kind of
“argument really about another argument” may seem strange to the literal-minded, but
rhetoricians have a concept explains its function: epideictic. Seen through an epideictic
lens, Scalia’s abortion-speech dissents can be understood as part and parcel of long-term
rhetorical strategy to move the Court’s abortion discourse.
C. Scalia’s Rhetoric as Epideictic Speech
In his famous treatise on the subject, Aristotle identified three species of rhetoric:
deliberative, judicial, and epideictic. 30 Each of these rhetorical species represents a genre
of oratory or speech. Deliberative (also known as political) speech seeks to persuade an
audience about future action. Debates before legislative bodies – Should we go to war?
Should we provide health care for all? – typify the future-looking deliberative genre. By
contrast, judicial (also known as forensic) speech seeks to persuade an audience to make
a judgment about the past. A lawyer’s argument before a court – Did the plaintiff make a
valid contract? Did the defendant commit a crime? – exemplifies judicial speech.
Epideictic is the third and final of these rhetorical speech categories.
According to Aristotle, epideictic speech has the present as its subject. In its
classical formulation, epideictic speech praises or blames a person, place or idea. Such
presented-centered reflections often occur at events like weddings or graduations and so
epideictic is sometimes dubbed ceremonial speech. Canonical examples of epideictic
30
ARISTOTLE, ON RHETORIC: A THEORY OF CIVIC DISCOURSE 47-9 (George A. Kennedy trans.,
2d ed. 2007).
13
speech include funeral eulogies as well as oratorical panegyrics performed at ancient
festivals or games.
Commentators have long recognized epideictic as the most elusive of Aristotle’s
speech categories and debated the genre’s significance to rhetorical theory. Because of its
association with ceremonial speech, some dismissed epideictic as just-for-show oratory
or “a degenerate kind of eloquence with no other aim than to please.” 31 In 1958, however,
Chaïm Perelman and Lucie Olbrechts-Tyteca published their treatise “The New
Rhetoric”, which revolutionized our understanding of the epideictic genre.32
Perelman and Olbrechts-Tyteca’s basic insight is that epideictic speech
“strengthens the disposition towards action by increasing the adherence to the values it
lauds.”33 This insight proceeds from a fundamentally discursive perspective on rhetoric.
It recognizes that actors within a discourse make many decisions over time and respond
to new arguments based on their own prior values and beliefs. Nothings happens in a
vacuum; we all come to any given argument with prior prejudgments and prejudices.34
Epideictic speech affects discourse over time by shaping the value hierarchies at back of
these prejudgments and prejudices.
By increasing the intensity of adherence to values, epideictic speeches lay
foundations for deliberative and judicial rhetoric. While deliberative and judicial
31
CHAÏM PERELMAN AND L. OLBRECHTS-TYTECA, THE NEW RHETORIC: A TREATISE ON
ARGUMENTATION 48 (John Wilkinson and Purcell Weaver trans., 1969).
32
See generally id. at 47-54. Although published in French in 1958, the English translation did
not become available until 1969.
33
Id. at 50.
34
In discourse, “prejudice” does not have an inherently negative connotation as “all
understanding inevitably involves some prejudice.” HANS-GEORG GADAMER, TRUTH AND
METHOD 272 (Joel Weinsheimer and Donald Marshall trans., 2d Rev’d Ed. 2004). In this sense,
“prejudice” merely reflects prior beliefs and values shape a discursive actor’s sense of
“precedent.” Id. at 272-3.
14
arguments aim to persuade audiences to make a specific judgments at a specific points in
time, epideictic “arguments” are not so tethered. As Perelman and Olbrechts-Tyteca note:
Whereas these two kinds of speeches [deliberative and judicial] make use of
dispositions already present in the audience, and values are for them means that
make it possible to induce action, in epideictic speech, on the other hand, the
sharing of values is in end pursued independently of the precise circumstances in
which this communion will be put to the test. 35
The precise judgment urged in a deliberative or judicial speech may be thought of as the
short game in discourse. Epideictic speech always plays the long game.
Returning to Scalia and his abortion-speech opinions, we can now appreciate how
he uses an epideictic approach to play the constitutional long game on abortion. Though
the judicial arguments he presses in his separate opinions concern First Amendment
doctrine, his deeper epideictic appeals paint abortion jurisprudence as undermining the
Rule of Law writ large. Scalia’s claim that there is “an entirely separate abridged edition
of the First Amendment applicable to speech against abortion” works with his “ad hoc
nullification machine” charge to suggest that abortion is bad because it distorts the
Court’s jurisprudence beyond the abortion context.
Yet it is the abortion context – not what is beyond – that drives Scalia’s rhetoric.
He asserts that the majorities in abortion-speech cases fear the content of pro-life speech
and then gives voice to that content. A striking passage from Hill reveals just how Scalia
can pivot from discussion of First Amendment regulation to epideictic speech articulating
pro-life values. In this passage, Scalia confronts the majority argument that Colorado’s
limits on sidewalk “counseling” do not prevent pro-life protesters from communicating
their message via megaphones outside clinics. Scalia then writes:
35
PERELMAN AND OLBRECHTS-TYTECA at 53.
15
The availability of a powerful amplification system will be of little help to the
woman who hopes to forge, in the last moments before another of her sex is to
have an abortion, a bond of concern and intimacy that might enable her to
persuade the women to change her mind and heart. The counselor may wish to
walk alongside and say, sympathetically and as softly as the circumstances allow,
something like: “My dear, I know what you are going through. I’ve been through
it myself. You’re not alone and you do not have to do this. There are other
alternatives. Will you let me help you? May I show you a picture of what your
child looks like at this stage of her human development?” 36
Through the hypothetical protester, Scalia speaks directly to his audience. For a moment,
he holds his caustic tongue and tries to persuade us “sympathetically and softly as the
circumstances allow” to change our minds and hearts about abortion.
Agree or disagree with his perspective on abortion or choice, Scalia’s recourse to
epideictic speech warrants our attention. He is consciously appealing to values and
associating the value of free speech and rational persuasion with the values of the pro-life
movement. (Of course, Scalia does not imagine a protester throwing fake blood,
screaming “murderer,” or holding a poster of a doctor seen through a rifle scope.) Since
he wrote in dissent, Scalia knew he had lost the battle in Hill. Nonetheless, he wrote
separately both to rally troops for the ongoing war and to convince others to join his side.
And Scalia’s real war concerned abortion rather than free speech.
This epideictic lens shows how Scalia’s separate opinions in the abortion-speech
cases can function as “arguments really about other arguments.” The pro-life and prochoice movements have clashed in many Supreme Court cases implicating many
different constitutional discourses. Yet the value hierarchies affecting how Justices (and
the general public) view any given conflict cut across all doctrine. Scalia is trying to
persuade at this deeper level of value. For Scalia, First Amendment doctrine about free
36
Hill, 530 U.S. at 757 (Scalia, J., dissenting).
16
speech abstractly is less important than the concrete pro-life speech the Amendment
could protect.
Conclusion
Is there “an abridged version edition of the First Amendment applicable to speech
against abortion”? Given the doctrine’s subjective and normative nature, the merits of
Scalia’s claim cannot be proved or disproved. However, his argument that the Court’s
free speech analysis in the abortion-speech cases has been motivated by a desire to stifle
pro-life messages, to borrow a phrase Scalia loved, “blinks reality.” For it is objectively
true that abortion protesters have often prevailed in the Supreme Court.
Besides total victory in McCullen (where Scalia concurred) and partial victories in
Madsen and Schenck (where portions of injunctions were struck down), pro-life
protesters won the day in Bray v. Alexandria Women’s Clinic and in the Scheidler v.
National Organization for Women cases.37 In those cases, the Court – joined by Scalia –
struck down attempts by pro-choice organizations to make pro-life groups liable under
civil conspiracy theories. Had anti-pro-life bias really infected the Court, these cases
would have gone the other way.
In the final analysis, the accuracy of Scalia’s claims about the Court’s hypocritical
First Amendment jurisprudence are beside the point. Scalia’s essential rhetoric in
abortion-speech cases was never aimed at vindicating timeless claims about free speech.
See Bray v. Alexandria Women’s Clinic, 506 U.S. 263 (1993) (rejecting claim that abortion
protesters violated section 1985(3) by obstructing access to abortion clinics); Scheidler v.
National Organization of Women, 547 U.S. 9 (2006) (rejecting application of Hobbs Act to
abortion protesters); Scheidler v. National Organization of Women, 537 U.S. 393 (2003)
(generally rejecting application of Racketeering and Corrupt Influences Act (RICO) to abortion
protesters). But see National Organization of Women v. Scheidler, 510 U.S. 249 (1994) (first case
in series holding that RICO could apply to groups acting without an economic motive).
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17
Rather he used the occasion of dissent to make epideictic appeals that promoted pro-life
values. Scalia knew his dissents were not going to change outcomes of the cases already
decided. Where judicial argument had failed, Scalia employed epideictic argument to
shape future constitutional discourse.
This rhetorical analysis of Scalia’s abortion-speech dissents suggests a broader
truth – all Supreme Court dissents might be regarded as having an epideictic aspect. By
definition, it is always true that the author of a dissent has lost the instant judicial battle.
Perhaps most dissenters also hope to win a long-term war. They dissent to speak to that
longer game. Even though most Supreme Court cases do not involve as controversial an
issue as abortion, and while not every dissenter can boast the flourish of Scalia, all
students of constitutional law and rhetoric can learn from studying these cases.
•
Key quotes from Scalia.
•
Conclude
o Note the idea that abortion protestors lose not square with Frisby,
Bray, Scheindlin
Though not directly before us, a second related category of abortion protest case
provides context that warrants brief mention – civil conspiracy actions brought against
pro-life groups by pro-choice groups.
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For its part, the pro-life movement can claim significant legal victory in Scheidler v.
National Organization of Women, 547 U.S. 9 (2006). This case finally ended an
aggressive legal action by NOW againas’s vi would likely claim its eventual victory in
the longstanding
On the
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