Justices Stress Free Speech in Abortion Case : Supreme Court: Tough questions from the bench indicate that protesters’ rights may prevail in clinic ‘buffer zone’ issue.

WASHINGTON —  A lawyer defending a court-ordered “buffer zone” around an embattled Florida abortion clinic got some tough questioning Thursday at the Supreme Court, as conservative and liberal justices alike seemed to indicate that they see the issue as a free-speech violation.

Justice Antonin Scalia openly disputed the argument, applied by the Florida judge who created the buffer zone, that abortion clinics and their staffs can be protected from hostile protesters to shield their patients from added anxiety.

“So any speech can be prohibited if it affects people’s vital numbers?” Scalia asked. “If I have a heart condition, can I wear a badge that says, ‘Heart Condition: Do Not Upset Me?’ ”

The state judge had ordered local police to arrest any abortion protester who pickets within 36 feet of the entrance to the Melbourne, Fla., clinic or within 300 feet of the residence of a clinic employee. Judge Robert McGregor imposed the order last April a few days after an abortion doctor was shot and killed in Pensacola, Fla.

Responding to Scalia, attorney Talbot D’Alemberte noted that protesters swarm around cars approaching the clinic and try to block patients from entering. “We would not tolerate this kind of conduct around a hospital,” he said.

Clinic doctors had testified that women set for surgery often arrived upset and with an elevated pulse, attributable largely to the “gantlet” of anti-abortion protesters, the attorney said.

But abortion foes have maintained that the buffer zone also bars peaceful protest and therefore violates the First Amendment’s guarantee of freedom of speech.

The judge’s order “criminalizes their side of the debate,” said Mathew Staver, representing the abortion protesters. “It is a prior restraint (on speech) and it comes to this court with a heavy presumption of unconstitutionality.”

The exchange between Scalia and D’Alemberte highlighted the arguments in the court’s first test case involving the free-speech rights of abortion protesters. The comments and questions from the bench suggest that a majority of the justices are troubled by the broad ban on picketing and protest and are likely to narrow it or strike it down entirely.

Some justices sounded a bit less certain about how those First Amendment rights apply to this case specifically because it involves a court injunction.

Normally, a law cannot single out one group for punishment. But injunctions specifically target people or groups that have provoked trouble.

U.S. Solicitor Gen. Drew S. Days III, representing the Clinton Administration, supported the argument on behalf of the abortion clinic. A judge must have the power to “enjoin certain behavior that poses a threat,” Days told the court.

However, Justice Anthony M. Kennedy said he saw “a certain danger” in letting a judge single out protesters on one side of a controversy. Courts must show a “special solicitude for the free speech rights” of the protesters in such instances, he said.

Judge Ruth Bader Ginsburg said she agreed because of the “long history of this country” of restricting protests. She cited examples during the 1960s involving civil rights and the Vietnam War.

The justices will meet behind closed doors today to cast votes in the case (Madsen vs. Women’s Health Center, 93-880) and issue a written ruling by the end of June.