KONSTYTUCYJNA WOLNOŚĆ SŁOWA W ORZECZNICTWIE SĄDÓW USA NA PRZYKŁADZIE PROTESTÓW ANTYABORCYJNYCH
CONSTITUTIONAL FREEDOM OF SPEECH IN THE JURISPRUDENCE OF U.S. COURTS ON THE EXAMPLE OF ANTI-ABORTION PROTESTS

Summary/Abstract: Freedom of speech is one of the fundamental human rights in modern democratic rule of law states. It is a tool or means of articulating one’s own position on particular issue. Freedom of speech enables effective dissemination and popularization of professed views, ideas and beliefs, only if its limitations are extraordinary. U.S. legal order is regarded as a standard example of just such a perception of freedom of speech. American case-law does not limit the freedom of speech to the ability of public communication of uncontested claims. U.S. courts assume that the essence of the given freedom is the right to formulate controversial and unpopular judgments or even judgments that cause social unrest and culture wars. Abortion is one of the hottest discussed issue. Opponents of abortion exercising their freedom of expression and freedom of assembly, publicly protest against the killing of unborn children. They picket on urban streets, squares, parks, often in front of abortion clinics and residential homes of aborters. Visual form of their arguments are posters showing pictures of aborted fetuses and signs equating abortion with murder. US courts claim that this type of pro-life movement activity in public places – on the so-called “traditional public forum” – is the materialization of the protected freedom of speech fixed in the First Amendment to the United States Constitution. Freedom of speech does not, however, presupposes absolutisation of the right to anti-abortion protest in public space. The need to protect other competing values, eg. public order and the right to privacy, enforces some degree of freedom of speech reglamentation. Exemplification of the given restriction are particularly “buffer” and “bubble” zones around abortion clinics within which the some or all forms of protest are prohibited. Inconsistency of US case law on anti-abortion protest shows that the determination of an optimal balance between conflicting values is a difficult task.

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