29 U.C. Davis L. Rev. 553 (1995-1996)
Rules of Engagement for Cultural Wars: Regulating Conduct, Unprotected Speech, and Protected Expression in Anti-abortion Protests

handle is hein.journals/davlr29 and id is 563 raw text is: Rules of Engagement for Cultural
Wars: Regulating Conduct,
Unprotected Speech, and Protected
Expression in Anti-abortion Protests
Alan E. Brown.stein*
In important respects, freedom of speech reinforces virtually
every other important right protected by the Constitution. This
is as true for privacy rights and reproductive freedom as it is for
the right to racial equality and the right to practice one's reli-
gion without state interference. To cite only one obvious exam-
ple, freedom of speech directly facilitates the right to have an
abortion by invalidating laws that prohibit the advertising of
abortion services.'
Despite this obvious and important truism, there is also no
question that expressive activity in some circumstances may inter-
fere seriously with the right of women to choose to have an
abortion.2 To the extent that the First Amendment can be as-
serted to protect expression of this kind, courts must confront a
conflict between constitutionally protected interests. Complex
issues of constitutional law arise when the First Amendment is
raised as a shield to protect expressive activity that burdens
reproductive autonomy.
This complexity has several sources. First, it is never a simple
task to reconcile or balance competing interests of recognized
importance when two rights are ostensibly placed in conflict.
* Professor of Law, University of California, Davis. B.A. 1969, Antioch College; J.D.
1977, Harvard University. I wish to thank Vikram Amar, James Weinstein, and Leslie Jacobs
for reading drafts of this article and for providing helpful criticism. I also want to thank
Stephanie Hamilton and Jennifer Holman for their work as research assistants on this pro-
, Bigelow v. Virginia, 421 U.S. 809 (1975).
Technically speaking, of course, private expressive activity can not interfere with the
exercise of a constitutional right since rights are only protected against state action. See
infra note 145 and accompanying text. Having dutifully reported this truism, however, I
declare myself free to describe expressive activity as interfering with the exercise of consti-
tutional rights in the conventionally accepted, non-technical sense of interfering with an
interest that is protected by the Constitution against state abridgment. See generaUy Burson
v. Freeman, 504 U.S. 191, 206 (1992) (upholding content-discriminatory prohibition of
distribution of private political campaign material within 100 feet of polling place as neces-
sary to protect right to vote against fraud and intimidation).

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