The concept has been contradicted more than once by the Supreme Court. Nonetheless, it still is oft-cited by individuals arguing that government can, when facts of a matter indicate, establish a limit to free expression.
However, it turns out that in some circumstances, you can be hostile, noisy, and threatening with virtual impunity.. Upon questioning of Supreme Court nominee Ketanji Brown Jackson
Sen. Marsha Blackburn, R-Tenn., pressed Jackson on her views about abortion, arguing that Roe v. Wade should be overturned.
She quoted from a filing Jackson made in a case that referred to a group of anti-abortion rights activists as "noisy" and "hostile." She then asked Jackson whether, when she saw anti-abortion rights women at her church, she viewed them the way the women in the filing were described.
"Do you look at them thinking of them in that way, that they're noisy, hostile, in your face? Do you think of them? Do you think of pro-life women like me that way?" Blackburn asked.
Jackson said the line Blackburn quoted was part of a brief filed on behalf of a client, not a statement of her own opinion.
"That was a statement made in a brief I made on behalf of my client," Jackson said.
But Blackburn found the response insufficient.
"I think even zealous advocacy doesn’t allow that kind of rhetoric on a free speech issue," Blackburn said.
Shame on anyone, a judge or a layman, to call a conservative "noisy" or "hostile." It seems it's not only the left which is appalled at "microaggressions."
An Associated Press fact-checker explains
Asked about the brief on Tuesday and Wednesday, Jackson said she worked on the case after joining a private law firm that represented a group advocating for a buffer zone. She said the Massachusetts law was not directed at abortion rights opponents but rather women and men protesting on both sides. The Supreme Court in later years struck down the law after the buffer zone was widened to 35 feet.
The law was struck down in 2014 by a unanimous, 9-0 vote. Yet as PBS legal consultant Nina Totenberg noted upon reporting the ruling, in Massachusetts "two people were shot and killed and five others were wounded at abortion clinics in 1994. After first trying a moving, 'no approach' buffer zone, the state in 2007 adopted a fixed, stationary 35-foot buffer zone outside clinics."
At the time, there were five conservative, and four liberal, judges on the Court. A majority opinion and three concurring opinions were issued by the Justices because their reasons for deciding against Massachusetts varied.
The scoreboard now stands not at 5-4 but at 6-3. Whether Roe v. Wade is completely overturned- as is widely speculated- soon, we now can turn Oliver Wendell Holmes' wisdom on its head: when it obstructing women's reproductive health freedom, you can yell 'fire' in a crowded movie theater.