When I first noticed their banner as I walked by Bedford Square, in London, I didn’t think too much about it. It registered as a depressing example of the public expression of a position I had strong opposition to, not much more. It wasn’t until sometime later that I clocked the unusual location of the small public protest — a quiet spot with relatively little pedestrian or other traffic upon which to make an impact. I googled. It turns out that the ‘impact’ of the protest was directed toward the women who were seeking the services of the clinic across the road, the British Pregnancy Advisory Service. Although the large banner, small signs, a handful of the ‘faithful’ across the street — watching, singing, and praying as the women came and went — was not the full extent of their activities. It also involved up to two individuals stationed on either side of the front entrance of the clinic, handing out (factually incorrect and manipulative) information, and trying to engage both those coming and going to the clinic, and passer-bys, in discussion. There have also been reports of assault and filming. This outraged me. Freedom to protest, freedom of expression, okay. Harassing women during what is often a very difficult and private experience, not okay.
The response to the vigil has been escalating, along with the vigil itself. Most recently we saw a counter-protest (outside of clinic hours) which significantly outnumbered the pro-life campaigners. Whilst the symbolic victory may have been won by those who will defend the right to choose, the fact that the counter protest was held only after clinic hours is indicative of a deeper issue. Those who would defend the right to choose are conscious not to contribute to the distress of women seeking these services. Unfortunately, vigil keepers do not share this concern, and willingly make a battlefield of the clinic entrance. Even if the slumbering giant of the pro-choice movement has awoken, it does not necessarily address this key issue — that is the issue of tactic, strategy, and what constitutes an acceptable form of protest or political expression. Counter protest (outside clinic hours), polite but clear letters of opposition (I am infamous for this one), or confronting vigil keepers as one walks by may persuade some that their peaceful protest is not as peaceful as they think, but those committed to the campaign remain. The question that I want to raise is what role, if any, do we think the law ought to play in addressing this issue?
The role of the law in relation to forms of direct action or protest is understandably met with suspicion. Examples of disproportionate and violent responses to peaceful protest has ceased to surprise many of us (if it ever did). Perhaps even more fundamentally, the law itself is a form of constituted power that protest may seek to challenge. We have good reason to be hesitant about invoking the law to limit forms of protest: But this hesitation risk subsuming the political to the legal. The right to protest as a legal right is already necessarily limited. It does not define what may be legitimate protest according to political or ethical (or other) criteria. But that does not mean that a legal right to protest is not an important and valuable thing – but it will always be a limited conception of political action. What we should be asking ourselves is what kinds of limits these legal limits should be.
Returning to our case of those who keep vigil outside of abortion clinics, we might want to say that as a form of political action it should not be confined or deterred by the legal form. But then if harassing women is their form of action — my political response is to stop them. Theoretically, a politically ‘legitimate’ response would be for me to send my posse out to stop their posse from harassing women, but not only does the law already constrain such a response, it is not a particularly desirable form of action. If we ask where we believe the limits of legal protest should lie on the other hand — many of us would likely say that those limits should preclude harassing women.
As it turns out, the law already reflects this limit. Harassment is a criminal offence, and the law does not recognize protest as a defence. Significantly, since the introduction of the Serious Organised Crime and Police Act 2005, the law recognises the particular kind of harassment that is the result of a political campaign, campaigns which target a particular person or persons to try to persuade them not to do something they are legally entitled to do. But then, what does the law recognise as harassment? Generally, the answer is a course of conduct that causes someone alarm or distress (or fear of violence). It doesn’t matter whether the person engaged in this conduct thinks they are causing alarm or distress, but what the ‘reasonable person’ would think would cause someone alarm or distress. Are these dangerous lines to be drawing, especially in relation to protest? Absolutely. Most forms of protest probably cause some kind of alarm or distress — in fact wearing a bright colour whilst walking down the street might cause someone alarm or distress. But it is, I would argue, a line that should be drawn.
In this case the nature of the conduct is distinguishable as harassment by the nature of the target. These are not any member of the public going about their daily business — the targets of the vigil keeper’s conduct are women who are actively seeking abortion related services. They are identified as such and confronted because they enter the door of a clinic. In what is perhaps one of the more difficult and deeply private moments of their lives, they are subjected to an ordeal by those who assume moral and spiritual superiority — and who would seek to stop them from exercising their choice. Would the law find this to be harassment? I suspect so. Should we look to the law in such a case? Yes.
Victoria Ridler is a lecturer in law at Birkbeck, University of London.
For me defining this as harassment is a violation of freedom of speech and freedom to assembly. How would this be any different legally to occupy london harassing bankers by pitching tents and anti banking banners at canary wharf? Every expansion of the law in this way will result in the state using it in just this way.
Seb — When these women seek out the services of BPAS they cannot help but become publicly visible. They don’t choose to be watched, prayed at, approached (sometimes aggressively), or judged by this mob of people when they go to the clinic. They go to the clinic because they choose to seek out their services. I get the concern about protest, really, I do, and I don’t necessarily expect you to agree with me, but targeting these women in this way is not about expression (you can express yourself anywhere), it is about power and intimidation and forcing your expression upon a (captive) group of people who are, by nature of what they are dealing with — in a very vulnerable position. I can totally get why you would disagree, but to put it quite simply, the very specific nature of the place, what goes on there, and who needs to go there for services — in my opinion, constitutes this form of ‘expression’ as harassment. (I wouldn’t say this about a banker going to work — nor would the arguments I am suggesting support this interpretation.) When I walk by and see what they are doing, I want to physically stop them. My knees go weak, and I feel sick to my stomach. Its like watching someone bullying my little sister. If I am going to ‘respect’ (or at least not break) the law by not harassing (or assaulting) these people in return, I will gladly look to the law to stop them from something I consider violent and vile in nature. Freedom of expression and freedom of assembly have always had legal limits. For me, the unique nature of the abortion clinic creates such a need for limits. What I think we sometimes forget when committed to radical politics is the difference between legal legitimacy and the legitimacy an action may have more generally. I hoped I expressed this in the article — but the gist is that we should not look to the law to define the limits of political action. In this case, unless we want a civil war outside the clinic, where the victims are the women using it, we should limit the right to protest in this physical space.
How could you legally make this case absolutely specific though? Would not any legal precedent be universal and hence applicable to all situations where a similar case could be made?
Its a good question. I have been looking at a few other cases that involve a political campaign and injunctions, most specifically Eli Lilly & Co Ltd v Stop Huntingdon Animal Cruelty [2011] EWHC 3527 (QB)
and Bayer CropScience Ltd v Stop Huntingdon Cruelty (SHAC) [2009] EWHC 3289 (QB) Injunctions are not especially uncommon in relation to protest activities (I’ve included a link to a guardian article about the phenomena below). So I am not convinced that finding protest activities outside of clinics providing abortion related services would in any way expand the law as it already is — nor expand the scope of its application to different factually similar circumstances. But that doesn’t mean I endorse the law as it is. In fact, I think you could greatly limit its application as it currently stands and still find harassment in this case. I read a lot of case law in my work (although sadly not usually criminal law) — and judges and council are remarkably good at making categories and types out of different factual situations. I would like to think a very strong argument could be made that targeting women seeking abortion relation services by ‘preying’ upon them when they go to these clinics involve targeting a very vulnerable group of people defined as such by the nature of the service they are seeking (this would be defined by the specificity of the time and location of approach). Where the legal definition of harassment concerns what can be reasonably anticipated to cause alarm or distress, this would seem a factual scenario that — unlike many others (such as going to work for a bank, etcetera) — indicates towards a much higher likelihood of causing such an effect. Article 8 of the European Convention on Human Rights (given direct effect by the HRA 1997) would likely also come into play in any judicial reasoning on the question (well, not likely, instead ‘would’ come into play.). Basically, I think you could have a much stricter test on what could count as harassment than we already do and still have scope for finding harassment in this case. Now, I suspect that many injunctions don’t meet the kinds of extreme requirements suggested in the case law indicated above. I am still looking into the legal situation generally. I guess the main issue I wanted to address was whether we should be invoking the law at all if we care about the right to protest. Ultimately, I think we could have much more strongly protected rights of protest and still limit them in this kind of context.
The Guardian: High court injunction – the weapon of choice to slap down protests
Oregon Live: Free speech or harassment?
Interesting read. I would accept it is probably harassment, though I would be concerned with limiting protests too much generally. But on a wider level, I have ongoing concerns, as you probably know, with the “culture wars” on both sides of the pond, because we’re all working ourselves into a frenzy and an inability to talk to each other respectfully and advance to new positions. Look at the level of debate: you want tar sands, or you’re a communist; Obama is evil, or you’re a socialist; you’re pro-life, or you deserve to be killed for not being pro-life; you want Scottish independence, or you love the Tories; you want privacy or you’re a paedo. They’re logic systems that are impossible to resolve, fed by enabling websites such as Comment is Free (ie everyone argue your position as loudly as possible). It’s all fun and Guardian columnists til someone loses an eye… But I’m probably nuts ;)
- agreed. And I worry too about the capacity for the law applied in this case to become extended to further cases. Sadly, I don’t think we need precedent around an abortion clinic for to see the way in which the law is used to limit what ought to be respected as peaceful rights to protest. It already does — but I think we do need to make arguments for why legal limits should or should not apply in different situations. Yeah, the culture wars are a scary thing. I am happy to have an honest and respectful discussion with someone who doesn’t agree with me (just not in front of a clinic.)
In the sense of limiting protest in a particular physical space, MPs get more protection than women do.
Thanks, Tristan, I was just thinking about that.
[…] This is a guest post from Victoria Ridler, who is a lecturer in law from Birkbeck College, London. It was originally posted at Critical Legal Thinking. […]