Supplementing the Assumed Definitions: A Commentary on Professor Brownstein's Analysis of Abortion Protest Restrictions

Abstract

This Commentary agrees with Professor Brownstein's analysis of the proper scope of abortion protest speech restrictions in many respects. But crucial to applying the general analyses are the definitions contained within them. This Commentary proposes that several of the definitions assumed within Professor Brownstein's analysis and the analysis of courts that have reviewed the Freedom of Access to Clinic Entrances (FACE) Act are too narrowly understood. Instead, there is a supplementary concept appropriate to each. These are to add “impact” to the definition of viewpoint discrimination, add “equality” to the definition of the abortion right, and add “women's perspective” to the definition of a threat within the FACE Act.

Keywords: Constitution, First Amendment, Free Speech, Abortion, FACE Act, Viewpoint Discrimination