The Right to Protest

IT may have been coincidence, but it is not insignificant, that on the same day last week that the United States Supreme Court heard arguments on flag-burning, the justices also voted to uphold a Georgia judge's injunction restraining the abortion clinic blockades by Operation Rescue, a group of pro-life militants. Flag-burning and abortion may not seem to have much in common, but there is a basic issue at stake in both causes: the right to protest. Traditional ideological alliances among Supreme Court justices break down when it comes to First Amendment free speech rights.

When the justices decided a Texas case last year, voting 5 to 4 to strike down a state statute banning flag-burning, they had the support of two of the court's most conservative jurists, associate justices Anthony Kennedy and Antonin Scalia.

Note that Messrs. Kennedy and Scalia were not voting for disrespect of the flag but for free speech.

The same motivation seemed to prompt these two justices to ally themselves with the court's most liberal duo, associate justices William Brennan and Thurgood Marshall, in opposing the Georgia injunction against Operation Rescue.

Justice Kennedy, in a losing cause, cited a 1977 high-court ruling that allowed Nazis to march in the heavily Jewish community of Skokie, Ill. He said that this decision ``[did] not distinguish among speakers based on the content of their speech.''

Associate Justices Harry Blackmun and John Paul Stevenson - usually staunch defenders of free speech - joined Chief Justice William Rehnquist and his fellow conservatives, associate justices Sandra Day O'Connor and Byron White, in voting to leave the injunction against Operation Rescue intact.

Justice Stevens, writing for the majority, said that the American Nazi Party in the mid-1970s ``did not have a similar history of illegal conduct in the jurisdiction where the march was scheduled.'' He called Operation Rescue participants ``a class of persons who have persistently and repeatedly engaged in unlawful conduct.''

What Operation Rescue protesters were doing in Atlanta is to try to keep pregnant women out of abortion clinics by illegally sitting in on the premises. This raises the issue of whether the right to privacy of those seeking to use the clinic or the right to expression of the protesters deserves greater constitutional protection.

Ultimately, the Supreme Court will be asked to decide this broad issue. This time the jurists limited their opinion to the constitutionality of the Georgia injunction. This week, however, the court without comment upheld a permanent injunction again Operation Rescue, stemming from a New York case.

The second look at the flag-burning question involves a federal statute outlawing desecration of the flag. Bush administration officials, who defend this law, say they will push for a constitutional amendment if the court again strikes down the prohibition in favor of free speech. Liberal and conservative legislators are split on this matter, but not on party lines.

For instance, Sen. Joseph Biden Jr. (D) of Delaware, chairman of the Senate Judiciary Committee, says he will call for the constitutional amendment if the high court invalidates the federal law. Speaker Thomas Foley (D) of Washington says he would allow a debate on the floor of the House but would speak against the amendment.

In the end, judicial and legislative action will tell us more about the limits of free speech than the merits of flag-burning and abortion. And that is all to the good.

An axiom that has become central to the democratic process says: ``I disapprove of what you say, but I will defend to the death your right to say it.''

This is a paraphrase of Voltaire's words in his 18th century ``Essay on Tolerance'': ``Think for yourselves and let others enjoy their privilege to do so too.''

Good advice. It appears that at least on these two issues US leaders are heeding it.

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