HILL v. COLORADO
A Colorado statute makes it unlawful for any person within 100 feet of a health care facility's entrance to "knowingly approach" within 8 feet of another person, without that person's consent, in order to pass "a leaflet or handbill to, display a sign to, or engage in oral protest, education, or counseling with [that] person...." Leila Hill and others, sidewalk counselors who offer abortion alternatives to women entering abortion clinics, sought to enjoin the statute's enforcement in state court, claiming violations of their First Amendment free speech rights and right to a free press. In dismissing the complaint, the trial court held that the statute imposed content-neutral time, place, and manner restrictions narrowly tailored to serve a significant government interest and left open ample alternative channels of communication. The Colorado Court of Appeals affirmed, and the Colorado Supreme Court denied review. The U.S. Supreme Court vacated that judgment after holding that a provision creating a speech-free floating buffer zone with a 15-foot radius violated the First Amendment. On remand, the Colorado Court of Appeals reinstated its judgment. In affirming, the Colorado Supreme Court reiterated the lower court's conclusions. The court concluded that the statute struck a proper balance between a person's right to protest and a person's right to medical treatment.
Does Colorado's statutory requirement that speakers obtain consent from people within 100 feet of a health care facility's entrance before speaking, displaying signs, or distributing leaflets to such people violate the First Amendment rights of the speaker?
Legal provision: Amendment 1: Speech, Press, and Assembly
No. In a 6-3 opinion delivered by Justice John Paul Stevens, the Court held that the Colorado statute's restrictions on speech-related conduct are constitutional. The Court concluded that the statute "is not a regulation of speech. Rather, it is a regulation of the places where some speech may occur." "Although the statute prohibits speakers from approaching unwilling listeners, it does not require a standing speaker to move away from anyone passing by. Nor does it place any restriction on the content of any message that anyone may wish to communicate to anyone else, either inside or outside the regulated areas. It does, however, make it more difficult to give unwanted advice, particularly in the form of a handbill or leaflet, to persons entering or leaving medical facilities," Justice Stevens wrote for the Court. "The unwilling listener's interest in avoiding unwanted communication has been repeatedly identified in our cases." Justices Antonin Scalia, Clarence Thomas, and Anthony M. Kennedy dissented.
Argument of Jay A. Sekulow
Chief Justice Rehnquist: We'll hear argument now in No. 98-1856, Leila Jeanne Hill, et al. v. Colorado.
Mr. Sekulow: Mr. Chief Justice, and may it please the Court:
The Colorado statute at issue here, 18-9-122, section 3, converts protected speech into a crime.
The statute, which can be found at page 64a and 65a of the petition appendix, the last two pages, imposes an 8-foot floating bubble zone around every person who passes within a 100-foot radius of every entrance door to every health care facility in the State of Colorado.
Within that floating bubble zone, the statute criminalizes a knowing approach made for the purposes of engaging in constitutionally protected speech unless prior consent is obtained.
The consent provision alone invalidates the statute.
It makes the peaceful distribution of a leaflet, the display of a sign, and even specific oral communications in a traditional public forum a crime if prior consent is not obtained.
The statute targets only constitutionally protected speech.
There is no core or prescribable conduct which this statute reaches.
The bubble zone, with its consent provisions, attaches to every person who comes within a 100-foot radius of every health care facility in the State.
Justice Ginsburg: Mr. Sekulow, am I correct in understanding that no speech, no words, are prohibited.
It's only distance.
You can speak anything you want at an 8-foot distance.
Mr. Sekulow: Outside of the zone, there is no restriction on speech.
It's when you...
Justice Ginsburg: But even in the zone, as long as you're 8 feet away, you can speak.
Mr. Sekulow: Yes, but there... you have... there are two different zones here.
The 8-foot bubble zone comes into existence when someone is within a 100-foot area... radius of a health care facility.
The bubble zone which floats attaches to every person who enters that specific... specific zone.
So, you... once you're within the 8-foot of someone, if you do not ask for consent, you do not... you're not allowed to speak.
Justice Breyer: What is it... what is it that... I mean, 8 feet.
You're 16 feet away from me.
8 feet is about the distance to Mrs. Underwood here.
What... what is it that she can't tell me?
Mr. Sekulow: I think it's...
Justice Breyer: What... what speech is it difficult for anyone to make when you're about this 8 feet, say, the distance between me and Justice Kennedy?
Mr. Sekulow: Justice Breyer, I think it's the same issues that the Court dealt with in Schenck, the distribution...
Justice Breyer: Well, in Schenck I suppose the problem was that you couldn't... you didn't know where the bubble started.
Somebody walking along the sidewalk... you carried the bubble with you.
They didn't know where they're supposed to be.
Now, there's none of that problem here.
Mr. Sekulow: Well, I... I think there is, Justice Breyer.
I think the... the bubble zone floats.
There's no doubt about that.
It attaches to everyone who is within... comes within the initial 100-foot area.
That bubble zone floats to... unless you...
Justice Breyer: That wasn't... I thought the problem in the other case was that as the person walked along the sidewalk, people who were just standing on the sidewalk would have to get out of the way as the person carrying the bubble moved along.
But here anyone on the sidewalk simply stops.
There's no problem.
They can come within 1 feet, but if the woman wants to avoid that person, the person can't chase after her.
Mr. Sekulow: This...
Justice Breyer: Now, is... am I right about that factually?
Mr. Sekulow: I think that's incorrect, Justice Breyer.
Justice Kennedy: All right.
Mr. Sekulow: And here's the reason why.
The zone here does float.
You are not allowed to enter that 8-foot zone unless there is prior consent.
Justice Breyer: I'm... I'm sorry.
I didn't... I wasn't clear.
I didn't say it didn't float.
I said that a person standing on the sidewalk, as the woman approaches, if the person stands still, the person doesn't have to do anything even if the woman comes within 6 inches.
Mr. Sekulow: That's...
Justice Breyer: But if in fact the woman decides she doesn't want to go close to that person and walks around him, then he cannot chase her.
Now, that's my understanding of how it worked physically.
Is that right?
Mr. Sekulow: That's correct.
If you're standing still and you're there first.
In... in that regard, it operates... the consent provision here operates exactly as the consent provision in Madsen.
In Madsen, you could stand still.
If you weren't there first, you could stand still.
It prohibited a physical approach, which is exactly what this statute does here.
This statute actually combines the floating zone of Schenck with the no-approach zone that the Court prohibited in Madsen.
So, if you're going to enter within 8-feet of a person, if you're not there first... in other words, if you stand still, sure, you don't violate it, just like in Madsen.
But the consent provision alone in Madsen invalidates the statute.
Justice Stevens: Well, that's not like in Madsen.
In Madsen, at least the Court assumed they would have had to move out of the bubble.
That's what I remember the Chief Justice's opinion said, I think.
Mr. Sekulow: Actually, Justice Stevens, in Madsen the... the prohibition that was at issue in the injunction prohibited a physical approach.
Justice Stevens: Well, didn't the Chief Justice's opinion interpret it as requiring the stand-by to move?
Mr. Sekulow: Not in Madsen.
In Schenck that was the concern of the floating bubble zone.
Justice O'Connor: Oh, okay.
Mr. Sekulow: And in that... in that regard, here the concern was that the zone floats in Schenck.
It does here.
I mean, while the person moves, you have to move with them unless you have consent.
So, Justice Breyer, it's the same.
Justice Breyer: Remind me... my original question was this, and it may just require reminding me of what these other cases said.
But if I'm standing still and I... people can approach me, and then I'm about the distance I am from Justice Kennedy.
Mr. Sekulow: Yes.
Justice Breyer: And there's a woman coming along.
What is it... because she can walk around me... that I can't tell her?
Mr. Sekulow: I think...
Justice Breyer: This is a speech case.
What's the restriction on the speech?
Mr. Sekulow: The display of a leaflet, the showing someone written material.
In... in Schenck we talked about, Justice Breyer... we talked about the displaying of a Bible.
In Schenck, this Court at page 377 stated... and I'll... I'll quote it exactly... that the concern of the floating bubble zone was that it prevented defendants, except for two sidewalk counselors, while they are tolerated within the targeted zone, from communicating a message from a normal conversational distance or handing a leaflet to people and...
Justice Ginsburg: What was the distance, Mr. Sekulow?
It was more than 8 feet.
Mr. Sekulow: That's correct.
It was 15 feet there.
I don't think the difference between 15 feet and 8 feet would make the constitutionality any different.
The standard is still the same.
You cannot display or hand out a leaflet, say, to someone 8 feet away without, again, asking for consent.
It was in Schenck this Court said that the leafleting and commenting on matters of public concern are protected speech, especially on traditional public forum.
Chief Justice Rehnquist: But the... but the distance must make some difference, Mr. Sekulow.
Perhaps the difference between 8 feet and 15 doesn't, but if you got down to 3 feet, for example, it doesn't seem to me there's any message you can't communicate at a distance of 3 feet.
The... the distance requirement would impede you.
Mr. Sekulow: Well, interestingly in this particular case, the statute does prohibit impeding, blocking, or crowding, section 2, which is not challenged.
And I don't think, Mr. Chief Justice, that it's simply the location being 2 feet.
You could be 2 feet next to someone, as I am with co-counsel, and... and not cause any impeding.
You could be 1... about 5 feet in front of somebody and block them.
So, I don't think it's necessarily just distance.
It's location as well, and... and this is distribution of literature.
Justice Souter: It's not just impeding.
Justice Scalia: It's also intimidating.
It's also threatening.
I... I suppose you would acknowledge that... what about 2 inches?
I mean, you know, going nose to nose to someone, thrusting your... your head right in their face.
Certainly that could be prohibited.
That's intimidating behavior.
Mr. Sekulow: Well, Justice Scalia, this Court has recognized that when it comes to public debate, that it can be robust.
I think if someone is 2 inches away from somebody and they're blocking access, they should be violating section 2.
Justice Stevens: No.
Justice Scalia: They're just 2 inches away and not blocking access.
They just come up and thrust their... their face right in front of me, just like this.
Mr. Sekulow: I don't... first... first of all, this would not... that action would not violate the statute because this statute, section 3, does not prohibit simply an approach.
It is an approach with speech, and it's the speech that is the violation.
The way the statute works... and again, it's on page 64a and 65a of the petition appendix in its entirety... it states that no person shall knowingly approach another person within 8 feet for the purpose... unless there's consent, for the purpose of displaying a leaflet, displaying signs, handing out a leaflet, or for engaging in specific oral communications, oral protest, education...
Justice Stevens: Have you... I don't think you've answered the question.
Supposing it said 1 foot.
Would that be bad too?
Mr. Sekulow: I... I think it suffers from the same constitutional problem.
I... I don't think it's...
Justice Scalia: It would be the same, okay.
Mr. Sekulow: Justice Stevens, I don't think it's simply the location because you could be 6 inches away from someone and not be blocking them at all.
You could be 3 feet and block somebody.
Justice Scalia: How about an eighth of an inch?
An eighth of an inch?
Mr. Sekulow: Justice Scalia, I... I wouldn't even want to give you the eighth of the inch.
Justice Scalia: Really, your client holds some very unreasonable territory.
Mr. Sekulow: I... I don't... I don't think so because this is... this is speech on a public forum, and if you're blocking somebody, that... that's a different story.
Chief Justice Rehnquist: But speech on a public forum, the traditional concept is, you know, there's somebody on a soapbox and a bunch of people gathered around them, not that you're one on one with someone an eighth of an inch away.
Mr. Sekulow: I... I think leafleting, Mr. Chief Justice, does require close contact.
When someone distributes a leaflet, usually it's with a hand extended which if you were, by the way, 8 feet away from this particular person you were approaching, you'd violate that bubble with... with...
Chief Justice Rehnquist: Well, in Abrams against United States, they threw them out of a second story window... the leaflets.
Mr. Sekulow: Yes, and I... I take it, when it landed on the streets, it would be... have been protected speech at that point.
Justice Scalia: Would you acknowledge, Mr. Sekulow... would you... no, I gather you would not acknowledge that it would be reasonable to have such a law which limited the bubble to a distance which is inherently intimidating.
You just... you just don't acknowledge that there's any distance at which you can talk to somebody which is inherently intimidating.
Mr. Sekulow: I think that the danger in that is, because it's so specific on facts and circumstances, in the context of a statute like this, that if the concern that's being addressed is access or blocking, the way to handle it... the State of Colorado did it... and that is section 2.
A person commits a class 3 misdemeanor.
It's the same offense.
7 months in jail.
If you obstruct, detain, hinder, or impede.
I would take it if you're an eighth away...
Justice Scalia: I'm not obstructing, detaining, hindering.
I'm just intimidating.
I'm just... I'm just intimidating.
What if I... my nose touched your nose?
Oh, that would be okay even though I'm...
Mr. Sekulow: No.
It probably would be an assault at that point.
Justice Scalia: What makes that okay?
Mr. Sekulow: But under the statute...
Justice Scalia: What makes that okay?
Mr. Sekulow: Because of speech activity.
This... and interestingly, under your example, if you came up to someone or a protestor came up to someone and engaged in very intimidating facial expressions and made very intimidating gestures, they don't violate this statute, but the petitioner here, Jeannie Hill, if she goes and approaches someone to hand them a leaflet or to engage in quiet conversation, a counseling, she violates the statute.
So, the intimidating conduct does not violate the statute.
The petitioner handing out a leaflet...
Justice O'Connor: Well, but you... you certainly can convey anything you want to convey orally from a distance of 8 feet.
It's just not difficult.
You can speak in a normal conversational tone and be heard fully.
And to distribute a leaflet, it doesn't matter if you're 6 inches away or 8 feet away, the person receiving it, in order to receive it, has to accept it.
Mr. Sekulow: That's correct.
Justice O'Connor: And so, this isn't some unusual provision.
Mr. Sekulow: But I... I think, Justice...
Justice O'Connor: You don't... you don't say that a person must accept the leaflet.
Mr. Sekulow: No.
They have absolutely... they do not have an obligation to accept it.
But I think what... Your Honor, Justice O'Connor, what you wrote in Kokinda... and that is people that live in metropolitan areas know that one need not ponder the contents of a leaflet to mechanically take it out of someone's hand or, for that matter, to reject it, but it's that mechanical taking out of someone's hand.
Traditional leafleting on public sidewalks, is the kind of situation where someone is out there approaching people.
People will come up and take it.
8 feet away is the same prohibition as a restriction on speech.
Justice O'Connor: Well, if the person to whom it's offered wants to take it under this statute, they can and will.
I mean, it's just...
Mr. Sekulow: And the same...
Justice O'Connor: And it would be the same if it were 1 foot or 8 feet.
Mr. Sekulow: And it... the same argument could have been and was made in Schenck, and this Court said there 15 feet was still a problem because the zone floats.
And it does, Justice Breyer...
Justice Souter: Mr. Sekulow, on... on that, I understood you to answer Justice Breyer's question by saying that the stationary speaker, so-called, could not even station... in a stationary position offer leaflets without violating the statute.
Did I understand you correctly?
Mr. Sekulow: If you're standing still and you're in... within that 8-foot zone before someone else is, you...
Justice Souter: I'm standing still and somebody...
Mr. Sekulow: Approaches you?
Justice Scalia: gets within 8 feet.
Mr. Sekulow: It's... that's correct.
That's not a problem.
It's exactly the situation...
Justice Souter: So, I can say to that person, will you take a leaflet, or just hold the leaflet out.
Justice Kennedy: No problem.
Mr. Sekulow: If you're there first.
Justice Breyer: Pardon me?
Mr. Sekulow: If you're there first.
Justice Souter: If you're there first and you're stationary...
Mr. Sekulow: Absolutely.
Justice Breyer: you can do that.
Mr. Sekulow: That operates exactly, Justice Souter, as the no-approach zone in Madsen.
Justice Breyer: Now, why then being that... if that's the case, what's exactly the problem?
I'm not just saying another case.
I'm trying to understand what the problem is.
I'm standing here.
I plunk myself down on the sidewalk in front of the abortion clinic.
Anyone who's walking into that abortion clinic has to pass me, and I simply hold out the leaflet.
Now, if a woman wants the leaflet, she'll take it, but if she walks around me, now she doesn't want it.
So, what's the problem if I can stand still, hand it out just like this, and she'd have to walk around in order to avoid taking it, but she's free to walk around under this statute?
What's the problem?
Mr. Sekulow: The problem is the assumption, Justice Breyer, that you're operating under is that you got there first, and if you got there first, you... and you stand still and someone approaches you and you're not blocking them... of course, the... the dichotomy of all this is, if you're standing still, you may well be blocking.
Generally protest activities, distribution of literature, speech, in the robust debate, people are moving, but if you're standing still and you're there first, it's not a violation.
But in Madsen, this Court dealt with exactly the same situation.
It was a no-approach zone, no physical approaches.
If you were there first, if you were standing still, it wasn't a violation.
And the Court in Madsen said that the consent provision alone invalidated the provision of the injunction in Madsen.
The same should apply here, especially since you have the combination of the floating zone in Schenck.
It does float.
If you're not there first, Justice Breyer, it does float and it floats.
You have to stay unless you have obtained consent.
You have to maintain that 8-foot distance.
And I think showing someone a Bible verse, the display of a sign, all of that type of activity which is more intimate in its communication...
Chief Justice Rehnquist: How practically?
I mean, it's not as if this were a parade, you know, of people marching double-file to get into the clinic where the question of whether you got there first might be very important.
I mean, certainly there are times when no one is coming to the clinic.
There a person has a perfect opportunity to get there first.
Mr. Sekulow: That's right, if they got there before the event opened.
But this statute, which is not limited to abortion facilities, which has the floating bubble zone, applies to everyone in that 100-foot zone.
It's not just...
Justice Breyer: Mr. Sekulow...
Mr. Sekulow: Yes.
Justice Stevens: May... may I just ask kind of a general question?
And I think it was the Heffron case, the Court made a reference to the importance of getting access to the willing listener and the willing recipient.
Now, I think you'd probably agree that this ordinance doesn't really restrict your ability to communicate with a woman who wants to receive your message.
It really does pose some limit on the leafleting to a woman who presumably doesn't want the leaflet.
Mr. Sekulow: Well, to anyone who doesn't want the leaflet.
It's not limited to people...
Justice O'Connor: Well, I understand that.
Mr. Sekulow: seeking access to or egress from the clinic.
Justice Stevens: So... so, you... you have... it's... there's kind of a dilemma, it seems to me.
You either have to assume that the... that you have a right to make the unwilling listener take the leaflet, which doesn't seem it would work in the real world...
Mr. Sekulow: You don't have the... you... you can't require someone to take a leaflet, but I think Heffron is a good example of this.
Justice Stevens: But... but you do have a constitutional right to give her an opportunity if she's a willing recipient, either the doctor or the... to have that.
And doesn't she have that... assuming it's a willing person interested in the... in the leaflet?
Mr. Sekulow: If there's... consent is given, there's no violation of the statute.
It's the requirement of consent, we think, which caused the problem.
In Heffron, which was interesting, of course, the Court said it was not a traditional public forum.
The sidewalks in front of these medical health care facilities, which could even be an ophthalmologist's office, the way the statute is written, has a provision in there that... it's very specific.
If you enter that 8-foot zone, you have to obtain consent.
In Heffron, the Court found it not to be a traditional public forum and said that...
Justice Stevens: But see, what I'm trying to suggest is that you have to be a willing listener if you're in the 8-foot zone.
And it seems to me if you're not a willing listener, you're not going to take the leaflet anyway.
Mr. Sekulow: It's... it's not simply leafleting.
I think it's the... also the oral communication.
Justice Stevens: Well, I'm just concentrating on the leafleting now because, it seems to me, that's your strongest argument.
Mr. Sekulow: Well, the... the way the leafleting works is usually, in a... in a leafleting situation, people are close, closer than 8 feet.
They're not asking may I... you know, this statute turns every literature distribution into a solicitation because you have to ask consent before you approach.
And interestingly, in Heffron the Court stated that, while finding it not to be a public forum, that in fact they did allow one-on-one, face-to-face communications to go on throughout the State fair without any restrictions.
Justice Scalia: Mr. Sekulow?
Mr. Sekulow: Yes.
Chief Justice Rehnquist: In Madsen, we said that an injunction would be judged by a more stringent standard than a statute, and here, of course, we... we have a statute, not an injunction.
Mr. Sekulow: That's correct.
Chief Justice Rehnquist: Yet, you frequently refer to Madsen as if the things were interchangeable.
Mr. Sekulow: Well, in this context.
Number one, our position is that this is a content-based prohibition on speech.
So, it would be a higher standard than the Madsen standard.
It would be strict scrutiny because of the specific limitations on oral communications that constitute protest, education, or counsel.
And also this Court in Madsen...
Justice Scalia: Why don't you talk about that one?
You've been just talking about your point that the mere... the mere consent requirement invalidates it.
You also contend that this is a... a content-based restriction.
How is that so?
Mr. Sekulow: Absolutely.
The prohibition here as... specifically on its... the face of the statute, section 3, requires consent if you're going to engage in specific oral communication: protest, education, or counsel
A prosecutor who's bringing a criminal accusation for a violation of section 3 would have to establish through the presentation of evidence what exactly was said to determine if, in fact, it constitutes protest, education, or counsel.
Justice Kennedy: Can you... can you tell me?
Suppose someone wanted to encourage a... a patient to get a particular procedure.
Would that be barred by the statute?
Mr. Sekulow: That... that's interesting.
We... we have thought about that, and if it constitutes a form of protest, education, or counsel, it would.
Justice Kennedy: It's... it's not protest.
Mr. Sekulow: Encouragement?
Justice Kennedy: encouraging the person.
Mr. Sekulow: Oh, it... I think that that would not, but I think the State, if they were making an accusation, would probably say... they would argue that it may constitute a form a counseling, offering of guidance, the way they... they've drafted this.
But what is interesting here in that exact type of scenario, if a news reporter... say there was a protest going on at a particular health care facility, and a news reporter entered the 100-foot radius and then was going to approach someone, did not ask for consent, and asked a general question.
Justice Kennedy: How do you feel?
Mr. Sekulow: How do you feel?
What do you think about health care in America today?
Probably not counsel, education, or protest.
If that same news reporter were to approach a person again without consent and say something like Congress was considering changes to the health care laws in the United States allowing for private lawsuits against HMO carriers.
What do you think?
That's education and that would be a violation of the statute.
Justice Breyer: Well, but which is it?
I mean, I grant you it's... you may not have a good answer to this because I have a hard time with the cases on this one.
But it seems to me if they... if the State tries to write a... one that covers more than just abortion clinics and tries to go beyond just as you've said... you said, well, this is terrible.
It... it gets innocent things like what time is it.
But then if they try to be more narrow, you say, well, it's too... it's too... it's too... it's narrow.
I mean, either they didn't narrowly tailor it...
Mr. Sekulow: Which I think they did not.
Justice Breyer: or... or if they do narrowly tailor it, it's content discrimination.
Mr. Sekulow: And... and...
Justice Breyer: So... so, whenever the State would try to regulate anything, they'd fall into the one or the other.
Mr. Sekulow: Justice Breyer, I don't think so.
The State has argued that they're in the proverbial catch 22.
They've drafted a statute that we argue is overbroad and one that is content-based.
Justice Kennedy: Do you know of any precedent which defines narrow tailoring by whether or not it's content-based?
Mr. Sekulow: I... I think looking at it, no because the most realistic narrow tailoring case that fits this the Court found it to be content-neutral, which was United States v. Grace.
There's never been a statute, though, written like this.
Justice Ginsburg: Mr. Sekulow, I was reading your brief closely and trying to envision the statute that would be constitutional.
The Chief has reminded you that the Court has held that the statute, which is passed when it... we don't know who the particular people are, requires less rigid review.
So, reading... reading your brief, I had the impression that no statute, other than the one that bars obstruction, would do in your judgment, that you could not have a... a statute like Madsen or Schenck had an injunction.
You simply couldn't.
Mr. Sekulow: I think that's... that's a correct position.
That's the position we're asserting.
And the reason, Justice Ginsburg, that that's our position is that this is speech on a public sidewalk, and it does apply.
It's a statute.
And I think the difficulty is... and far be it for me to draft Colorado's statute...
Justice Scalia: Wait.
Justice Breyer: Go... go back for a second because certainly you would agree that you can write legislation in terms of categories like advertising or lawyer solicitation, counseling.
I mean, those aren't all unconstitutional, are they?
Mr. Sekulow: Well, the way Colorado has drafted it, I think it is.
Justice Kennedy: No, no.
Justice Breyer: But I mean, to talk about a category called advertising is okay, isn't it?
Our cases are filled with that.
Mr. Sekulow: Commercial speech would...
Justice Breyer: That isn't content-based because you...
Mr. Sekulow: That's...
Justice Breyer: treat advertising differently from... all right.
Mr. Sekulow: Although it does bring up an interesting scenario here, Justice Breyer, and that is the way that this statute works... let's say someone talking about advertising, to take your example.
If someone was handing out discount pizza coupons on a public sidewalk in front... front of Denver General Hospital and failed to ask for consent before they approached someone to distribute them the free discount coupon, they violate this statute.
That's how broad the statute is written.
Chief Justice Rehnquist: Well, you... you argue... my colleagues admitted you argue, on one hand, the statute is too broad and, on the other hand, it's too narrow.
I mean, that's like the old arguments we used to get here about the Establishment Clause.
If... if a... if the State tried to regulate the expenditure of funds for parochial schools, then it was said to be too much entangled, and there... under that line of thinking, there was nothing the State could do.
Are you saying, in effect, that the State can't draft a statute, any kind of a statute, to cover what it conceives to be this problem here?
Mr. Sekulow: No, I think the State can.
And... and, Mr. Chief Justice...
Chief Justice Rehnquist: Well... go ahead.
Mr. Sekulow: What I would... what I would have drafted if I was the... the State here...
Chief Justice Rehnquist: You were the State.
Mr. Sekulow: Yes, but I'm not.
Is a statute that...
Chief Justice Rehnquist: That's why you should use the subjunctive.
Mr. Sekulow: [Laughter]
Mr. Sekulow: Yes.
And in the... in the... in this particular case, the State's concerns, the asserted interests here are to prevent intimidation, crowding, and threatening conduct.
This statute does not do that.
They need to draft a statute that targets the precise concerns...
Justice Ginsburg: They have that statute.
Chief Justice Rehnquist: They have...
Mr. Sekulow: Section 2.
Justice Ginsburg: Yes, and I asked you before and you, I thought, were quite candid in saying that's all they can do.
Mr. Sekulow: I think that's...
Justice Ginsburg: section 2 and there's no other statute that would satisfy your test.
Mr. Sekulow: I think that... that...
Justice Breyer: It could not go beyond that.
Mr. Sekulow: because section 2 would satisfy my test, Justice Ginsburg.
Justice Ginsburg: Yes, but I asked you if there was any statute that tried to replicate...
Mr. Sekulow: What they've done here.
Justice Ginsburg: or controls the injunctions that we have permitted...
Mr. Sekulow: I don't think so, and let me clarify my position and the reason why.
I don't think so because in Madsen and in Schenck, despite the somewhat more rigorous standard that was given there... in Madsen and in Schenck, the concern over leafleting and uninvited approaches, even if they're peaceful being prohibited... the Madsen concern... the Schenck concern about literature distribution, both of those cases dealt with... the Court relied on Boos v. Barry in... in Madsen and Boos v. Barry and United States v. Grace in Schenck... were both statutory cases.
Those were not injunction cases, and it was the concern of literature distribution and... and one-on-one advocacy that was the concern.
Justice Ginsburg: But as I remember Boos at least, that was a one viewpoint.
You couldn't picket against the embassy, but you could... no... there was no prohibition on doing something they were of.
And here, the statute is written in neutral terms.
It says you can't counsel about either side.
Mr. Sekulow: And this Court...
Justice Ginsburg: You can't educate about either side.
Mr. Sekulow: Justice Ginsburg, the... this Court in Madsen and Schenck, in dealing with the issues, said that the injunctions were content-neutral and...
Justice O'Connor: Well, this... this statute makes me think, in a way, of the City of Renton case where the concern was the secondary effects of the conduct.
It was First Amendment activity, the adult theater.
Mr. Sekulow: I...
Justice O'Connor: But there were secondary effects being addressed, and maybe...
Mr. Sekulow: Justice...
Justice O'Connor: that's the situation here, that the... the State doesn't care on which side of the message it is, but is concerned about the secondary effects of intimidation... intimidating conduct near a medical facility.
Mr. Sekulow: If that's... based on your question and... and comment, Justice O'Connor, they need to draft a statute that prohibits intimidation, crowding, or violence which I think... or threatening conduct, which I think they did in section 2.
Justice Breyer: But we...
Mr. Sekulow: This isn't...
Justice Kennedy: we take the case, I think, on the assumption that Colorado has tried to do that and cannot enforce it if there are crowds.
The problem here is crowds.
And so, what they want to do is to have a... a zone where we know who is coming up to push or pinch or shove, and that's all they're trying to do.
Is that a... is that a fair assessment of what the purpose of the statute was?
Maybe they failed, maybe they... maybe they succeeded.
Mr. Sekulow: I think they set the purpose out of the statute in section 1, which states that the General Assembly recognizes access to health care facilities for the purposes of obtaining medical counsel and treatment that's imperative for citizens, that the exercise of a person's right to protest or counsel against certain medical procedures must be balanced against another person's right to obtain medical counseling.
To me that points very closely to content-based...
Justice Stevens: Mr. Sekulow, can I ask... I'm really seeking information here on your position.
I thought there was some tension between your quoting the engaging in oral protest, education, or counseling as being content-based and not viewpoint-neutral on the one hand and saying that those words would cover the delivery of a pizza solicitation.
Mr. Sekulow: The pizza solicitation would be the distribution of literature prohibition which applies to all literature distribution.
Justice Stevens: I see.
That is not... that is not content-based...
Mr. Sekulow: We... we think it's content-based from the standpoint that it provides an opportunity for... because of the prior consent requirement, to allow for content-based determinations.
But the distribution of literature prohibition is because of the prohibition of literature.
Mr. Chief Justice, I'd like to reserve the remainder of my time for rebuttal.
Argument of Michael E. McLachlan
Chief Justice Rehnquist: Very well, Mr. Sekulow.
Mr. McLachlan, we'll hear from you.
Mr. McLachlan: Thank you, Mr. Chief Justice, and may it please the Court:
The Colorado legislature acted to protect sick, disabled, and vulnerable people on their way to and from its hospitals and doctor's offices.
And it designed the statute to keep our...
Justice Scalia: Excuse me.
Just sick, disabled, or vulnerable people?
Justice Kennedy: Is that... is the only...
Mr. McLachlan: That's what I said, Your Honor.
Justice Scalia: It only protects those people?
Mr. McLachlan: No.
The statute was designed to protect medical patients who are often sick, disabled, and who are vulnerable...
Justice Scalia: But it doesn't cover just medical patients.
How many... what... what percentage of the people going in and out of... of these facilities do you think are sick... what was it... sick, vulnerable and... and whatnot?
Mr. McLachlan: No, Your Honor...
Justice Scalia: I mean, that's a very small percentage of the... of the universe covered by this thing, isn't it?
Mr. McLachlan: Your Honor, the... the statute covers all persons within 100 feet of a medical facility, and a great percentage of those people are... are either treating individuals who are sick and vulnerable and disabled or persons who are seeking treatment from these...
Justice Kennedy: Well, in... in that respect, how does this statute work?
Suppose there's a seven-story building and on the sixth floor there are doctors' offices.
On... on the... all of the other floors, there are other businesses.
I take it this statute operates with respect to anyone who engages in the prohibited activity outside the main entrance to the building?
Mr. McLachlan: The statute operates to the extent that it is covered, public sidewalk or a public way.
And so if there's a 20-story building...
Justice Kennedy: So, if...
Mr. McLachlan: a story of any type, it would be the entrance to the building which contained the medical facility...
Justice Stevens: So...
Mr. McLachlan: and the public right-of-way.
Justice Kennedy: So, with respect to all of the businesses in those buildings, the press, lawyers, business people, people engaged in manufacturing that might affect the environment, this statute happens to apply just because there's a doctor's office there.
Justice Breyer: Isn't that right?
Mr. McLachlan: No.
Yes, because there's entrance to a medical facility.
Justice Kennedy: It seems to me that that's... that that's whimsical and imprecise and inconsistent with our speech precedents.
Mr. McLachlan: Your Honor, it was... it's narrowly designed to affect only the 100 feet within a medical facility or a hospital.
Justice Kennedy: But we've just discussed the hypothetical in which it is not.
Mr. McLachlan: Well, if a doctor's office is contained within a... a private building, the statute would not be operative because it doesn't involve a public way or a public sidewalk.
The statute requires...
Justice Kennedy: I... I... my hypothesis is a private building that has an entry off a public sidewalk...
Mr. McLachlan: That's...
Justice Kennedy: which I assume most buildings do.
Mr. McLachlan: That's correct, Your Honor.
That would operate in those circumstances to the extent that it involves 100 foot of the entrance and a public sidewalk, and also I don't think, as... as ordinary course, Your Honor, that we would have a situation where persons would be protesting within the building.
Justice Kennedy: Sorry.
Justice Breyer: I didn't... I didn't pick this up in the briefs.
So, what is the definition of a medical facility?
If you have the... the Russell Building which is 20 floors high, and on floor 18 there's a doctor, and on all the other floors it's a lawyer, is the whole Russell Building a medical facility under this statute?
I mean, if that... if that's the problem with this, I'm surprised that I didn't pick it up in the brief.
Mr. McLachlan: The statute uses the term, Justice Breyer, health care facility, and it states that a health care facility means any entity that is licensed, certified, or otherwise authorized or permitted by law to administer medical treatment in the State.
Justice Breyer: So, I guess that... that floor 18 or... has office number 1806 is the medical facility.
Is the whole building a medical facility?
Mr. McLachlan: No, Your Honor, it would not be.
It's only as to the entrance of that medical facility.
Justice Scalia: Right.
The crucial provision is the entrance... is the entrance provision.
How does that read?
To what does the 100-foot restriction apply?
Mr. McLachlan: The provision states...
Justice Scalia: Within 100 feet of what?
Mr. McLachlan: Within 100 feet of a medical... of the entrance to a medical facility.
Justice Scalia: Of the entrance to a medical facility.
Now, do you consider that to be the entrance to the building and not the entrance to the... to the office in which the... in... in a large building the facility is contained?
Mr. McLachlan: Your Honor, the statute only operates within 100... of a medical... 100 feet of a... entrance to a medical facility and on a public sidewalk.
Chief Justice Rehnquist: Now, Mr.... Mr. McLachlan, in section 2 on page 65a, it uses the term health care facility.
You said medical facility.
Is that the word used somewhere else, or is that just a synonym for health care facility?
Mr. McLachlan: I believe they're synonymous, Your Honor.
And I... I read the narrow statutory definition of health care facility which is in the statute.
Chief Justice Rehnquist: Where... where you reading from?
Mr. McLachlan: I was... Your Honor, the best location of the statute is appendix to the Solicitor General's brief where the entire statute is set out verbatim on pages...
Justice Breyer: Is... am I... where... where does this issue that Justice Kennedy just raised fit in this case, that the reason that it's too broad is it would cover offices that are located within some large, downtown office building that don't have doctors in it?
Now, has that suddenly... what's your... what's... what's the reaction to that issue in the context of...
Mr. McLachlan: Your Honor, it's narrowly drawn because the statute only operates in conjunction with entrance to a medical facility and a public side-way or walkway.
So, if there's a public...
Justice Kennedy: I don't want to distract the Court on an issue that wasn't briefed, but it seems to me that this is troublesome and I would read the statute... and I thought... and I think that's your answer, that it applies to anybody on the... on the sidewalk of that building.
But the point... the reason I brought it up at the point that I did was it indicates that your opening statement, which is that this is for the... for the vulnerable and the sick, is not a ground on which we can sustain a statute.
The... the statute... there's nothing in the record that says there's a high percentage of these people that... that are on these sidewalks fit that category.
I think you would have to make a different argument to sustain the statute.
Mr. McLachlan: Your Honor, the statute is predicated upon a finding by the Colorado legislature that it is imperative to protect access to health care facilities and that the relationship between that... that location and a public sidewalk is the object of the... of the regulation.
Those two operating together...
Chief Justice Rehnquist: But...
Mr. McLachlan: are the circumstances in which it would apply.
Chief Justice Rehnquist: Mr. McLachlan, now as I recall in Madsen, it was a free-standing clinic.
You know, we had diagrams and so forth, and the... the clinic was the only operation in... in the building.
In Justice Kennedy's hypothesis, you're really... you're curtailing a lot of other activity that would otherwise take place that may be not at all related to the health care facility.
Mr. McLachlan: Well, Your Honor, again because the statute only operates as to a public sidewalk or... or way... public way, I think, as a practical matter, the statute operates outside the facility within... within a...
Justice Kennedy: But that's... that's the whole point.
There are all kinds of people with all kinds of views and all kinds of messages and all kinds of purposes on a public sidewalk.
Mr. McLachlan: That's correct, Your Honor.
Justice Souter: Well, Mr.... Mr. McLachlan, I thought a moment ago your answer to the 18-story building hypothesis was that the medical facility was the office up on... whatever it was... the 16th floor.
It was not the whole building.
Mr. McLachlan: That's correct, Your Honor.
Justice Souter: All right.
Mr. McLachlan: But the entrance is located in conjunction with the public sidewalk and the public way.
Justice Souter: So that if there is one doctor's office on the 16th floor, the whole sidewalk and entrance is subject to this regulation by the statute as if the entire building were filled with doctors' offices?
Mr. McLachlan: No, not as if, Your Honor.
It... it would constitute an entrance to the health care facility if the building contained...
Justice Souter: No, but you're saying that if there's a doctor's office on any floor of the skyscraper, that the entrance and the sidewalk is subject to regulation under the statute.
Mr. McLachlan: That's correct, Your Honor.
Justice O'Connor: Mr. McLachlan, if there's a...
Justice Stevens: May I ask if any Colorado judge or anybody in the legislature ever discussed this hypothetical?
Mr. McLachlan: No, Your Honor.
Justice Ginsburg: And it's not for you to say.
It's for the Colorado Supreme Court to answer that hypothetical, and they have not, have they?
Mr. McLachlan: That's correct, Your Honor.
That hypothetical has not been discussed by the legislature nor has it been discussed by the court.
Chief Justice Rehnquist: But if... if you're talking about a statute that abridges freedom of speech or is alleged to, it... it can't be vague.
I mean, we've... you've got to be able to tell from reading the statute just where it applies.
Now, you've given... given an interpretation and we've often accepted the statement of the State solicitor general in the absence of any decision from... from a Colorado court on the subject.
Mr. McLachlan: Thank you, Your Honor.
Justice Breyer: Is that the case that you want us to do, that we... we now accept as the... to turn this case on your interpretation of a matter that hasn't come up before I gather, and that you're saying officially in your role as a representative of the State that it does apply to an 18-story office building on the... on the sidewalk where there's nobody but one doctor up on the 18th floor and stops everybody else from speaking about anything?
Mr. McLachlan: I'm not... I'm not asking the... the Court to accept my interpretation.
I'm simply pointing out that the Colorado Supreme Court has not looked at this issue, but the Colorado Supreme Court has reviewed the statute otherwise and has upheld it.
Justice Breyer: Well, has the statute ever been applied...
Justice Scalia: You don't... you don't want us to accept the opposite interpretation either, do you?
Do... are you willing to say that it does not apply to the... to the entrance of a facility where there's a doctor's office on the 16th floor?
Mr. McLachlan: I think it does apply in conjunction...
Justice Souter: You think it does.
Mr. McLachlan: If it's... if it's in connection with a public way and a public sidewalk.
Justice Scalia: You think it does, and although you're not willing... you're not willing to say authoritatively that it does?
Mr. McLachlan: No.
Excuse me, Your Honor.
I... I didn't mean to use the word in a haphazard fashion.
I... there's no question in the position of the State of Colorado...
Justice Breyer: That it does.
Mr. McLachlan: that it applies to the entrance of a health care facility in connection with a public sidewalk or a public way.
Justice Souter: And that is so even if the health care facility on the 18th floor is more than 100 feet away from the sidewalk.
Justice Breyer: Vertically.
Justice Souter: Yes.
Mr. McLachlan: That's correct, Your Honor, because the focus of the statute is with 100 feet of the entrance.
Justice Souter: Has the statute ever been applied in the fashion you... you maintain it would apply?
Has there ever been a prosecution...
Mr. McLachlan: No, Your Honor.
As we point out in our brief...
Justice Souter: The answer is no.
Mr. McLachlan: there has never been a prosecution under the statute.
Justice Souter: For anybody.
Mr. McLachlan: has never been enjoined.
There's never been a civil complaint for damages, nor has there been a criminal complaint filed pursuant to the statute.
Justice Stevens: But even in the case...
There's probably never been an abortion protest outside the Empire State Building either.
Mr. McLachlan: That's correct, Your Honor.
We don't also have the Empire State Building in Colorado.
Justice Scalia: Is... excuse me.
Is this statute just addressed to abortion protests?
Is... is that...
Mr. McLachlan: To the contrary, Your Honor.
It covers all...
Justice Scalia: I didn't think it was.
Mr. McLachlan: all conduct of the subject matter of the statute which occurs within 100 feet of a health care facility.
Justice Scalia: It would be bad if it was addressed just to abortion protests, wouldn't it?
Mr. McLachlan: Absolutely, Your Honor.
It would violate content neutrality.
Justice Kennedy: So... so it applies to labor picketing?
Mr. McLachlan: It would apply to labor picketing under the circumstances present in this case if you were within 100...
Justice Kennedy: So, a labor organization has a different rule if it's in front of a health facility than it's... if it's in front of a manufacturing plant.
Mr. McLachlan: That's correct, Your Honor.
Justice Kennedy: That's... is that content-based?
Mr. McLachlan: No, Your Honor, it's not because again the purpose of the statute and the scope of the statute is to govern all... all forms of...
Justice Breyer: But I suppose the NLRB, if it turned out to be a labor problem, could preempt any effect of Colorado's State law in respect to the labor unions, couldn't it?
Mr. McLachlan: That... that may well be the result, Justice Breyer, that the operation of the Federal law would... would affect the statute that way.
Justice Scalia: What...
Justice Stevens: Except in the labor law, we said there are different rules apply to medical facilities than apply to other facilities.
Mr. McLachlan: That's correct, Your Honor.
In... and in those cases, the Court recognized that the... that the patients are entitled to consideration under... under the rule and that in this particular case our statute is also designed to protect the patients.
Justice Scalia: I'm curious.
You know, I'm sure there... there has been violence in... in some abortion protests.
Are you aware that there's been more violence in that context than in labor picketing, for example?
I mean, the number... the number of people killed or the number of people intimidated in in labor protests annually.
Do you think it's...
Mr. McLachlan: I'm not aware of that, Your Honor.
I am aware that...
Justice Scalia: I'm just wondering why... you know, why this is a... a great... this particular area is of... is of great concern to the... I don't know.
People going into supermarkets that are being picketed... are they... are they any less... what... vulnerable and... I forget what your other adjectives were.
It's curious that this need to protect the innocent and vulnerable from... from being approached is... is felt only in this one... one area.
Mr. McLachlan: Your Honor, the Colorado legislature, in its review of the statute, first of all, we've never employed the term innocent.
We've simply determined that they are ill, that they are vulnerable, and that they are, as medical patients, entitled to consideration under the statute.
Justice Scalia: I just wonder whether the statute is... is, you know, although facially applicable to anybody who... who approaches this kind of facility, I think... I think we know what it's aimed at, which is abortion protests.
And I just wonder what justification there is for singling them out as being particularly intimidating as opposed to, let's say, labor picketing.
Mr. McLachlan: Your Honor, what the statute singles out and what the statute focuses upon is the approach in a... in a circumstance which can arise and become, as this Court recognized in... in the Schenck case, a constructive obstruction.
Justice Stevens: In other words...
Justice Scalia: You could... you could at least apply this rationale that you're defending here... you acknowledge that it could be applied to labor picketing.
If... if you had a similar finding by the legislature that labor picketing can be intimidating, you could require all labor pickets to... within 100 feet of whatever they're picketing, to stay 8 feet away from people.
Mr. McLachlan: I think the reason this has a different under... under-support than labor picketing is because it focuses solely on people within 100 feet of a health care facility.
Justice O'Connor: No.
Justice Scalia: I understand, but...
Mr. McLachlan: And that these people are entitled to special protection as found by our legislature.
Justice Ginsburg: And it would apply to labor people who were trying to educate the public about a labor union matter, people who were objecting to the facility charging too much money, people who were objecting to the facility's use of animals in experimenting.
They would all come under the same rules.
Mr. McLachlan: That is correct, Your Honor.
That is correct.
It... it would apply...
Justice Scalia: What...
Mr. McLachlan: It applies to both sides or all the multiple sides of the debate because it is a content-neutral statute.
Justice O'Connor: Would you tell us what this portion of the statute accomplishes that subsection 2 does not?
Mr. McLachlan: Subsection 2 only deals with, in our... in our view, physical contact between persons and...
Justice O'Connor: Well, it... it deals with knowingly obstructing, detaining, impeding, and so forth.
Now, it's... it's hard for me to know what this covers that that wouldn't also cover.
Mr. McLachlan: What this covers by the establishment of the 8-foot zone of separation is it allows a normal conversation to occur.
It is a speech inducing, it's a speech allowing, it's a speech endorsement, and that is... that is what this statute allows that the other statute doesn't address.
Justice Kennedy: But...
Mr. McLachlan: The other section just deals with physical... physical contact and... and physical obstruction without... without regard to the proximity between the... the willing listener and... and the demonstrator.
Chief Justice Rehnquist: We don't ordinarily think that to... to be able to speak you have to have State authorization or permission to speak.
The... the view is almost to the contrary that you can speak unless there's valid prohibition against speech.
Mr. McLachlan: That's correct, Your Honor, and I think it's important for us to point out again in front of this Court that from 8 feet away all forms of expression, irrespective of their content, are... are encouraged, allowed, and permitted under the statute...
Justice Scalia: Well, you... you could say that from... from 100 feet if you use a... you know, a bullhorn, but... but you can't... what the... what these abortion protestors, which is what this is directed at, generally do is... is... like to say, you know, my dear, have you really considered the consequences?
Are you going to shout this?
Justice Kennedy: My dear, have you really considered?
Justice Scalia: It's a totally different... it's a totally different enterprise when you do it from 8 feet away.
You can't really seriously say that there's no difference between approaching someone quietly, confidentially and speaking in... in that kind of a manner and shouting whatever you want to do from 8 feet away.
You... you really assert that there's no difference?
Mr. McLachlan: Your Honor, 8 feet is a normal conversational tone.
Justice O'Connor: It is?
Mr. McLachlan: Yes, it is, Your Honor.
In fact, in this courtroom...
Justice Scalia: My goodness, I... I rarely stand 8 feet away from somebody that I'm talking to.
I don't stand an eighth of an inch, and... and if that's what the distance was, I... I'd have no problem here.
But 8 feet?
Mr. McLachlan: I understand, Your Honor, but everybody that you communicate with is a willing listener.
Justice Scalia: Oh, I... I think not.
Justice Kennedy: Don't be so sure.
Mr. Sekulow: [Laughter]
Mr. McLachlan: But if I may, Your Honor...
Justice O'Connor: Don't be too sure.
Mr. Sekulow: [Laughter]
Justice O'Connor: Don't be too sure.
Mr. McLachlan: Yes, ma'am.
Mr. Sekulow: [Laughter]
Mr. McLachlan: But if I may, Your Honor, 8 feet is the precise distance... on an earlier occasion, we were permitted by the Marshal to measure the distances in this courtroom and 8 feet is the distance from this podium to the edge of the Court where the Chief Justice sits.
Justice Kennedy: Why isn't this a content-based statute if what it does is foreclose discussion of all the issues Justice Ginsburg was mentioning with relation to the health... health care system?
Mr. McLachlan: I'm sorry, Your Honor.
Justice Kennedy: Why isn't this content-based because it has... imposes a special burden on people who want to discuss issues, all of the ones Justice Ginsburg raised and more, HMO cost, et cetera, with reference to the health system?
Mr. McLachlan: It's not content-based because it allows... it takes no side on the debate.
It... it simply designates a...
Justice Kennedy: It forecloses all debate on that subject.
Mr. McLachlan: All... all debates on the... no subject.
Justice Kennedy: Well, on the subject of health care.
That's the whole justification for the statute or how the health care facilities are being operated.
Mr. McLachlan: Again, within the 100... 100-foot from an entrance of a facility, it allows completely for both uninhibited debate on all topics and it allows it if the listener wants...
Justice Kennedy: You're saying the statute is not content-based if it forecloses discussions on both sides of... of a particular subject.
Mr. McLachlan: It doesn't foreclose discussions, Your Honor.
Justice Kennedy: That's not my definition of content...
Mr. McLachlan: All discussions can occur from 8 feet, and if the... if the listener is willing to allow a... a person to approach... and again, one of the reasons for the 8 feet is a very common sense thing.
Justice Stevens: This would cover a protest over the death penalty as well as something to do with health care, wouldn't it?
Would this statute apply to somebody who wants to speak about the death penalty?
Mr. McLachlan: If it... yes, yes, it would.
Justice Stevens: So, I mean, not only point of view, but also a wide range of subject matter can be spoken in... in this kind of activity.
Mr. McLachlan: That's correct, Your Honor, if it meets the statutory definition, oral protest, education, or...
Justice Kennedy: If you're interested in health care issues, do you go to a health care facility or to the zoo?
Mr. McLachlan: I think probably you would go to your insurance carrier, if you have one, or you would go to your doctor and you would want to make sure that you would have access to your doctor because the Colorado legislature has provided that you will have that access through the operation of the statute.
Justice Scalia: Why... why wouldn't it suffice for the concerns of the State here to... to prohibit any intimidating approach by speech or otherwise?
I mean, what the State has prohibited here is speech.
It's the only thing that is prohibited is speech, not intimidation, not approaching.
Why wouldn't prohibiting an intimidating approach suffice?
Mr. McLachlan: Again, Your Honor, it's our position that there is no prohibition.
There is simply a minimal restriction, a minimal burden with inside of the 8 feet.
Argument of Barbara D. Underwood
Chief Justice Rehnquist: Thank you, Mr. McLachlan.
Ms. Underwood, we'll hear from you.
Ms Underwood: Thank you.
Mr. Chief Justice, and may it please the Court:
Under this statute, petitioners are free to say and to show anything they want to people near a health care facility.
They can shout or they can talk in normal tones.
They can offer literature and hold up signs and pictures that can be seen by their target audience.
They can station themselves where the patients will have to pass by much closer than 8 feet.
They just can't move toward the target without consent once the distance between them is 8 feet or less.
Justice O'Connor: Ms. Underwood...
Justice Scalia: If... if that is so reasonable, I assume it... it could apply... could be applied to normal labor picketing at any facility.
I mean, it's so reasonable.
You can say whatever you want.
You can... you think it would be constitutional applied to normal labor picketing?
Ms Underwood: No, not a general... not... not a general statute like...
Justice O'Connor: Why not?
Ms Underwood: Well, Colorado was responding to a particular need.
If the same need existed, which is...
Justice Scalia: Well, there's violence in... you... you unaware that there... that there have occurred instances of violence and intimidation in labor picketing?
Ms Underwood: Well, the Court has...
Justice Scalia: We can make the same finding they have here and say all... all picketing... you know, we apply it generally to all... all commercial establishments.
Ms Underwood: Colorado hasn't made that finding that... I don't think that finding would be supported.
And we do expect... we have a tradition of people being of rather more robust activity...
Justice Scalia: So, there is some problem about... about not letting somebody come closer than 8 feet.
Ms Underwood: There is a First Amendment issue.
I don't think there's a problem with this statute.
Justice O'Connor: Not a real...
Chief Justice Rehnquist: So, you're saying, Ms. Underwood, that... you know, supposing Colorado on the basis of things that happened out there in the early 20th century... read Moyer against Peabody if you want to find out about it.
And there is violence in labor picketing.
We're going to impose this same regulation.
You say that would be judged by a different standard, or that it would... that it would fail, whereas this would succeed?
That's a very strange position.
Ms Underwood: No.
What I meant to say was that if... if exactly the same findings and exactly the same need were found, then the same statute would be upheld.
Justice Breyer: Well, it might or might... wouldn't it be for the labor board in the labor case... the constitutional issue has to presuppose that the labor board made findings like Colorado and then, as a labor law matter, laid it down.
And the question would be is that unconstitutional if the labor board did it.
Is that right?
Ms Underwood: That's right.
Chief Justice Rehnquist: Well, why... why do you say that's right in this very peripheral discussion?
I mean, let's suppose Colorado passes a statute affecting labor picketing this same way and it is simply challenged on a First Amendment basis.
The labor board doesn't even get into it.
I take it that the answer you gave to my question is... is the correct one.
Ms Underwood: If Colorado made findings that... that there was a problem of violence and intimidation that arose out of one-to-one close... close approaches of the sort here and that was not capable of being dealt with in any other way, as Colorado had tried to do here and that a statute like this was the least restrictive or at least the... was the most appropriate way of dealing with the problem, then such a statute would be upheld.
There is no such finding and there is...
Justice O'Connor: Is it necessary that there be hearings and findings in order to sustain a statute like this?
Ms Underwood: It is necessary that the judgment be supported.
This Court reviews the judgments of legislatures with some deference when a factual matter is concerned and hearings and findings are helpful, but the Court has never prescribed a particular method for... for...
Justice O'Connor: But is there... there is Federal legislation, is there not?
Ms Underwood: Yes.
Justice O'Connor: A Federal Freedom of Access to Clinic Entrances Act?
Ms Underwood: Yes, there is.
Justice O'Connor: And how does that differ from this?
And was that factored into the hearings and the findings, the effect of that Federal act?
Ms Underwood: Well, this statute was passed before the Federal Access to Clinics Act was passed, about a year before.
Under the Federal Access to Clinics Act, an injunction can issue and, in at least one case that we've called to the Court's attention, has issued, that imposes a similar sort of restriction.
There are differences, obviously, between the way injunctions are judged and the way statutes are judged, but that some evidence that under the Federal statute it has been found necessary by courts, pursuant to the statute, to impose a no-approach... a small no-approach zone in order to protect against intimidation and... and threats.
This is not the floating bubble of Schenck or the no-approach rule of Madsen for several reasons.
As... as has been noted, the target can't create a violation here.
The distance in question is 8 feet rather than 15.
In Madsen, while there was a no-approach rule that the Court rejected, there was in the same case a 36-foot absolute ban which covered most of the approach to the... to the facility that the Court... that the Court upheld.
The matter... there was a discussion about whether this is content-based.
This Court has found many similar bans to be content-neutral.
I understand there's an argument that there is some speech that's covered and some not.
But the Court in Grace held that the ban on displays was content-neutral; in Heffron, that the ban on demonstrating... that the ban on distributing written materials was content-neutral.
And in fact, in Schenck and Madsen, it found that those injunctions were content-neutral.
Justice Scalia: Excuse me.
In the two cases you mentioned, did those bans refer to the content of the speech as this one does?
It's only that speech that educates, that counsels, and so forth.
Ms Underwood: The ban in Grace around the Supreme Court is on flags and devices that call attention to an organization, a movement, or... there clearly... there's a communicative requirement there that's quite similar to this.
Presumably a work of art on a flag would not qualify.
And the bans in... in Schenck and Madsen, the ones that were upheld, as well as the ones that were struck down, were on demonstrating, which again is... is essentially what this language captures.
And on the question whether we can look behind the... the words to its purpose, Justice Scalia, you spoke about the purpose of this.
First of all, the clear purpose of the Colorado legislature was to reduce the risk of violence and intimidation at health care facilities, not just at reproductive health care facilities and not just from those with one particular viewpoint.
While it's true that the anti-abortion protests generated much of the activity that led to the statute, the legislature was clearly aware of and concerned about both reciprocal violence by pro-abortion protestors...
Justice Kennedy: If there were a sudden interest in the automobile industry, could Colorado have these speech regulatory zones around every auto dealership?
Ms Underwood: This isn't a... first, if exactly the same findings were made, obviously, it seems to me...
Justice Kennedy: You don't like that term speech regulatory zone?
That's what this is.
Ms Underwood: No.
It's an approach regulatory zone, and I'd like to take issue with this...
Justice Kennedy: But what about the hypothetical?
Approach regulatory zone?
Ms Underwood: Yes.
What this statute prohibits is moving in on somebody.
Justice Scalia: It's not an approach... you can approach as close as you like so long as you don't speak.
Ms Underwood: No, that's not right.
You have the purpose...
Justice Scalia: It's only the person who approaches to speak or to... or to hand a leaflet...
Ms Underwood: With... with that...
Justice Scalia: who is prohibited.
Ms Underwood: With that purpose.
Actually I'd like to just on the words of the statute... what has to happen is an approach.
The... the advocacy aspect of the statute is the purpose.
You don't have to get as...
Justice Scalia: Approach with the intention of.
Ms Underwood: With the intent.
You can approach without intent...
Justice Kennedy: Right.
Justice Scalia: With the intention of speaking.
Ms Underwood: without getting to the point of speaking.
Justice Kennedy: Or you could do this just for auto dealerships...
Ms Underwood: If there were...
Justice Kennedy: or law offices.
How about lawyers?
Any law office?
Ms Underwood: If there were a problem...
Justice Kennedy: And what I'm... what I'm trying to find out is if this isn't a basis to say that this is content-controlled and not content... that obviously underlies the question.
That's what I'd like you to address.
Ms Underwood: No, it's not content control.
It is facility protective.
There is a problem at health care facilities, a problem of intimidation and violence, that Colorado...
Justice Kennedy: Because of the message that goes on there.
Ms Underwood: No.
Actually with respect to a great many messages, although there's one that perhaps is more common than others.
There is a problem.
The legislature is not required to act with respect to problems that don't exist.
And if you're hypothesizing a world in which people are intimidating people from buying cars by coming up close to them in their face and... and showing them pictures of automobile accidents, then perhaps Colorado would want to do something and could do something like what it did here, which is to permit them to show those pictures and to permit them to give those messages, but to require them not to move in on somebody closer than 8 feet.
Justice Scalia: Ms. Underwood, what about... what about the consent requirement?
Now, you know, we... we allow people to prevent unwelcome speech in their homes.
You can cancel, you know... require mail not to be delivered.
You can have a city ordinance saying I don't want any... you need consent before hawkers can come to the door.
But in the public forum outside in the street, can... can we have a law that... that enables people to... to turn off unwelcome speech?
Ms Underwood: Not to turn off unwelcome... may I answer, Mr. Chief Justice?
Not to turn off unwelcome speech.
To repel unwanted close approaches.
This is about a close approach and not about speech at all.
Rebuttal of Jay A. Sekulow
Chief Justice Rehnquist: Thank you, Ms. Underwood.
Mr. Sekulow, you have 3 minutes remaining.
Mr. Sekulow: Thank you, Mr. Chief Justice.
With regard to the Free Access to Clinic Entrances Act, Justice O'Connor, it specifically exempts First Amendment activities.
With regard to reliance on United States v. Grace, on page 176 of this Court's opinion... I'm quoting... we also accept the Government's contention not contested by appellees about the content of the speech.
We are contesting that here.
Justice Ginsburg: Mr. Sekulow...
Mr. Sekulow: Yes.
Justice Ginsburg: am I wrong in thinking that there... there's legislation that establishes quiet zones around hospitals, around schools, which would be much more restrictive than what's involved here, based on the character of the facility?
Is that not so?
Mr. Sekulow: You often see signs even that say quiet zones.
I think the difference is here a silent approach without any words to distribute a leaflet requires consent.
Justice Breyer: Well, is it...
Mr. Sekulow: And it's not a quiet zone here that they're talking about.
There's nothing... no prohibition here that says you can't talk loud.
Justice Breyer: But... but given the fact that there is a history of women in a very vulnerable, emotionally charged state, in a difficult physical condition, and given the fact that using words like you can't harass and you can't... whatever those words are in section 2... are very hard to interpret, could you say that having 8 feet as the limit between my fist and your face, so to speak, helps the First Amendment?
It makes clear what you can do and what you can't do...
Mr. Sekulow: No.
Justice Breyer: rather than every time getting into an argument about what constitutes harassment.
Mr. Sekulow: Justice Breyer, this case... this particular statute is a criminal statute.
It requires precision of regulation.
An 8-foot prohibition here requiring consent we believe violates the First Amendment.
There is not a First Amendment health care exception.
I am sure...
Justice Breyer: That's my very point.
Why isn't it more precise to say 8 feet than to say in each case we'll... we'll litigate whether my waving my arm or something like that did or did not constitute harassment?
Mr. Sekulow: I think for the exact same reason that this Court in Madsen and in Schenck rejected the health care exception to the First Amendment.
I think it points to the situation in NAACP v. Clayborne Hardware.
I'm sure the... the gentleman that ran Clayborne Hardware would have rather not had those protestors out in front of his stores.
And maybe he had a heart condition, and if he did, I don't think you can carry a sign that says I've got a heart condition, don't approach you.
Justice Ginsburg: But, Mr. Sekulow, isn't there something different about a hospital, I mean, wholly apart from the question of abortion clinics?
Haven't there been restrictions on speech activity around schools?
I mean, mostly the problem was not that they... you couldn't have the restriction, but you couldn't favor one speaker.
Mr. Sekulow: But this Court has also said in those same contexts... Mr. Chief Justice, my time is expired.
Would the Court like me to respond?
Justice Stevens: Briefly.
Mr. Sekulow: The difference is there the question was was the conduct going to aggravate what was going on inside, and because the courts there gave a narrowing construction that only when it... it violates what's going on inside or causes a problem, that there would be a violation.
That's not the case here.
Thank you, Mr. Chief Justice.
Chief Justice Rehnquist: Thank you, Mr. Sekulow.
The case is submitted.
Argument of Speaker
Mr. Sekulow: The opinion of the Court in No. 98-1856, Hill against Colorado will be announced by Justice Stevens.
Argument of Justice Stevens
Mr. Stevens: This case comes to us on a writ of certiorari to the Supreme Court of Colorado.
At issue is the constitutionality of a 1993 Colorado statute that regulates speech-related conduct within 100-feet of the entrance to any healthcare facility in the State.
The challenged section of the statute makes it unlawful within the regulated areas for any person to “knowingly approach” within eight feet of another person, without that person’s consent, “for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling with such other person.”
Petitioners are opponents of abortion and engage in a practice that they call Sidewalk Counseling.
They regularly attempt to inform others about abortion and abortion alternatives outside of healthcare facilities through verbal speech, signs, and distribution of literature.
Although, the State of Colorado presented evidence that demonstrations in front of abortion clinics sometimes in TDEx as to those clinics and were often confrontational.
There was no evidence that the petitioners in this case were ever abusive or confrontational.
The basic question is whether the First Amendment rights of the petitioners are abridged by the protection the statute provides for the unwilling listener.
The Colorado Supreme Court unanimously upheld the constitutionality of the statute as a valid time, place, and manner restrictions.
For reason stated in an opinion filed with the Clerk, we affirm that decision.
We began by pointing out the significant difference between State restrictions on a speaker’s right to address a willing audience, and those that protect unwilling listeners from unwanted communication.
This statute deals only with the latter.
It is significant that the statute does not place any limit whatsoever on what maybe set or displayed more than eight feet from the listener and it doesn’t place any limit on what maybe said if the listener consents to the speaker coming within eight feet of the speaker.
The right to free speech of course includes the right to attempt to persuade others to change their views, and may not be curtailed simply because the speaker’s message maybe offensive to his audience, but the protection afforded to offensive messages does not always embrace speech that is so intrusive that the unwilling listener cannot avoid it.
In a case decided in 1921 in a very different context, Chief Justice Taft explained the interest of the unwilling listener in this language, “How far may men go in persuasion and communication, and still not violate the right of those whom they would influence?
In going to and from work, men have a right to as free a passage without obstruction as the streets afford, consistent with the right of others to enjoy the same privilege.
We are a social people, and the accosting by one of another in an inoffensive way and an offer by one to communicate and discuss information with a view to influencing the other's action are not regarded as aggression or a violation of that other's rights.
If, however, the offer is declined, as it may rightfully be, then persistence, importunity, following and dogging, become unjustifiable annoyance and obstruction which is likely soon to savor of intimidation.
From all of this the person sought to be influenced has a right to be free.”
The unwilling listener’s interest has been repeatedly identified in our cases.
It is an aspect of the broader right to be let on that one of our wisest Justice, Justice Brandeis characterized as “the most comprehensive of rights and the right most valued by civilized men.”
The Colorado Supreme Court was correct to conclude that this regulation is a content-neutral time, place, or manner restriction.
It was not adopted because the State disagreed with any particular message and the State’s interest in protecting access and privacy are unrelated to the content of the demonstrator’s speech.
Petitioners nevertheless argued that the statute is not content-neutral, because an individual near a healthcare facility who knowingly approaches a pedestrian to say good morning or to randomly reside a few lines from a novel would not be subject to the statute’s restriction of oral protest, education and counseling.
This argument is misplaced.
It is common in the law to examine the content of a communication to determine the speaker’s purpose, whether a particular statement constitutes a threat, blackmail, an agreement to fix prices, a copyright violation, a public offering of securities, or an offer to sell goods often depends on the precise content of the statement.
At most the necessary review under this statute need to be no more extensive than a simple determination of whether a general prohibition of picketing or demonstrating applies to innocuous speech, which we have never found constitutionally problematic.
The Colorado Statute’s regulation places no restrictions on and clearly does not prohibit either a particular viewpoint or any subject matter that may be discussed by a speaker.
It applies equally to used car salesmen, animal rights activists, fundraisers, environmentalists, and missionaries.
Each can attempt to educate unwilling listeners on any subject, but without consent may not approach within eight feet to do so.
We also agree with the State Court’s conclusion that the section is narrowly tailored.
We are persuaded that the statute leaves open ample alternative channels for communication.
Additionally, we previously have noted the unique concerns that surround healthcare facilities.
Persons who are attempting to enter health care facilities for any purpose are often in particularly vulnerable, physical and emotional conditions.
The State of Colorado has responded to its substantial and legitimate interest in protecting these persons from unwanted encounters, confrontations, and even assaults by enacting a modest restriction on the speakers’ ability to approach.
Petitioners' further contemned that the statute is unconstitutional because it is overbroad, vague, and a prior restrained.
For reasons that are stated than rather likely opinion which is joined by the Chief Justice and Justices O’Connor, Souter, Ginsburg, and Breyer, we reject each of those arguments.
Justice Souter has filed a concurring opinion in which Justices O’Connor, Ginsburg, and Breyer have joined, and Justice Scalia has some contrary views to express.
Argument of Justice Scalia
Mr. Scalia: I have filed a dissent in this case in which Justice Thomas has joined.
It has long been a fundamental principle of our First Amendment jurisprudence that government imposed restrictions on speech must be narrowly tailored.
They cannot go further than it is necessary to achieve a legitimate state interest that is pursued.
Moreover, if the restriction on speech is content based, if it applies not impartially to all speech but only to speech with a particular content the asserted State interest must be not only a significant one but a compelling one.
The Court today concludes that the compelling State interest requirement is not applicable here because the restriction is not content based, that is patently false.
The ban on leafleting does indeed apply to all leaflets of whatever content, but the ban on oral speech applies only to speech that consists of “protest, education, or counseling”.
Of course, in the context of this legislation applicable only to healthcare facilities, we all know that those terms are code words for speech in opposition to abortion, but even accepting them at face value, it is impossible to believe that they do not make the restriction hinge upon the content of the speech.
Whether a speaker may obtain permission before approaching within eight feet and whether he will be sent to prison for failing to do so, depends entirely on what he intends to say when he gets there.
Even if however, the regulation here were not content based, it would under our well-established law still have to be narrowly tailored in order to achieve a significant though not a compelling state interest.
It plainly does not pass even that more lenient test.
The statute the court upholds today makes it a criminal act knowingly to approach within eight feet of another person without his consent on the public sidewalk within a 100 feet of the entrance door to a healthcare facility for the purpose of passing a leaflet to, displaying a sign to, or engaging in oral protest, education, or counseling with such person.
The eight foot buffer zone attaches to every person on the public way or sidewalk within a 100 feet of the entrance of a medical facility, not just pregnant woman, not just healthcare providers, not even just those people seeking to enter the facility but to everyone passing on the sidewalk.
As the State acknowledged at oral argument this weird buffer zone would attach to any person within a 100 feet of the entrance door of a skyscraper in which a single doctor, not necessarily a doctor providing abortion but even a dentist occupied an office on the 18th floor, and of course the statute criminalizes all unconsented to approaches, no matter how peaceful and non-threatening for the purpose of oral protest, education, or counseling.
Not just protest, education, or counseling concerning abortion or even healthcare more generally, but also protest, education, or counseling concerning unionization, religious belief, public referendums, or anything else.
It also criminalizes every approach made for the purposes of leafleting or handbilling, even the leaflet or handbill is not aimed at protest, education, or counseling but says simply eat at Bubba's Barbeque.
What possible legitimate State interest could this conceivably be narrowly tailored to achieve, that is a good question.
The statute itself said that its purpose was, “to prevent willful obstruction of a person’s access to medical counseling and treatment in a healthcare facility”, and that was the only State interest dissertate by counsel for Colorado in their briefs and oral argument, but of course this law goes wildly beyond what is necessary for that purpose.
So, the court ignores today the purpose specified by the statute, and dissertate by its defenders, and posits instead the purpose of protecting citizens’ rights to be let alone from unwanted speech.
This Court invented State interest, was not only unasserted by Colorado, but it was positively disclaimed as of the purpose of the law.
It was the opponents of the law, the petitioners here, who had asserted that that what its purpose because it was so very clear from our cases that such a purpose protecting people from unwanted speech in the public forum would be unconstitutional.
To quote only one of our cases on this point, “the Constitution does not permit the government to decide which types of otherwise protected speech are sufficiently offensive to require protection for the unwilling listener or viewer.”
To be sure we have protected the listener who is outside the public form, the homeowner who’s residence has picketed, and we protected the captive listener who does not want to be subjected to political propaganda on a public bus or trolley, but we have never even hinted that a person walking along the public streets could be protected from unwelcome speech.
The only authority the Court provides for its newly discovered right to be let alone is a passage in Justice Brandeis’ 1928 dissent in a case called Olmstead versus United States, and the amusing feature of that is that even this slim reed contradicts rather than supports the court’s position.
The right to be let alone that Justice Brandeis described was a right the Constitution conferred, “as against the government”.
Wise to the extent that there can be gleaned from our cases, even from our 72-year-old dissents, a right to be let alone, it is the right of the speaker in the public forum to be free from government interference of the sort Colorado has imposed here.
As we said, just three terms ago, in a case called Schenck versus Pro-Choice Network of Western New York far from having a right to be let alone “our own citizens must tolerate insulting, and even outrageous speech in order to provide adequate breathing space to the freedoms protected by the First Amendment.”
At some points in its opinion the Court re-characterizes the right to be let alone as a “right to be free from persistence, importunity, following and dogging”.
That is of course a more limited interest, but once again there is no possible way the statue can be regarded as narrowly-tailored to protect that interest.
It criminalizes the most innocuous approaches to educate or counsel, and requires leafleters, no matter what subject their leaflet address is, to avoid approaching passers by closer than eight feet with an outstretched arm.
In the last analysis, the Court frankly acknowledges that this statute is not narrowly-tailored.
It says “a bright-line prophylactic rule maybe the best way to provide protection.”
I scarcely know how to respond to such an unabashed repudiation of our First Amendment doctrine.
Broad prophylaxis is the antithesis of narrow tailoring, which is what the First Amendment has until today required.
We have stated time and time again that prophylactic restrictions in the First Amendment context even when they are content-neutral are not permissible.
The Court emphasizes in its opinion the importance of taking into account “the place to which these regulations apply” but a proper regard for the place involved in this case should result and if anything, a commitment by this court to adhere even more rigorously to our speech protective standards.
The public forum involved here, the public space outside of abortion clinics has become by necessity and by virtue of this court’s decisions, a forum of last resort for those who oppose abortion.
The possibility of limiting abortion by legislative means even abortion of a live-and-kicking child that is almost entirely out of the womb has been rendered impossible by our decisions from Roe versus Wade to Stenberg versus Carhart.
For those who share an abiding moral or religious conviction or for that matter, simply a biological appreciation that abortion is the taking of a human life, there is no option but to persuade women one-by-one, not to make that choice.
As a general matter, the most effective place, if not the only place, where that persuasion can occur, is outside the entrances to abortion facilities.
By upholding these restrictions on speech in this place the Court ratifies the State’s attempt to make even that task an impossible one.
The Court seeks to minimize the burden that this law places upon those who wish to speak.
It seriously asserts, for example, that the eight-foot zone allows a speaker to communicate at a “normal conversational distance”.
I have certainly held conversations at a distance of eight feet seated in the quiet of my chambers, but I have never walked along the public sidewalk and have not seen others do so conversing at an eight-foot remove, the suggestion is absurd.
So is the court’s suggestion that the opponents of abortion can take comfort in the fact that the statute “places no limitation on the number of speakers or the noise level, including the use of amplification equipment”.
That is good enough I suppose for those individuals or groups who are intent on bullying or frightening women out of an abortion or doctors out of performing that procedure.
Hate and invective, shouted by a mob through bullhorns at a distance of eight feet will serve their purposes well enough, but those who would accomplish their moral and religious objectives by peaceful and civil needs, by trying to persuade individual women of the rightness of their cause will be deterred; and that is not a good thing for democracy.
The availability of a powerful amplification system will be of little help to the woman who hopes to forge, in the last moments before another of her sexes to have an abortion, a bond of concern and intimacy that might enable her to persuade the woman to change her mind and heart.
The counselor may wish to walk alongside and say, sympathetically and as softly as the circumstances allow something like: “My dear, I know what you are going through.
I have been through it myself.
You are not alone and you do not have to do this.
There are other alternatives.
Will you let me help you?
May I show you a picture of what your child looks like at this stage of her human development?”
The Court would have us believe that this can be done effectively yea, it suggests, perhaps even more effectively by shouting through a bullhorn at a distance of eight feet.
It is interesting to compare the present decision with the other abortion case decided today, the Stenberg.
This decision upholds an utterly bizarre proabortion, please may I approach provision, while Stenberg strikes down a live-birth abortion prohibition adopted by 30 States and twice passed by both Houses of Congress.
The present case disregards the State’s own assertion of the purpose of its proabortion law, and posits instead a purpose that the Court believes will be more likely to render the law constitutional.
While Stenberg, as you have heard rejected the State’s assertion of the meaning of its antiabortion law, and declared instead a meaning designed to render the law unconstitutional.
The present case rejects overbreadth challenges to a proabortion law that regulates speech, on grounds that have no support in our prior jurisprudence and that instead amount to a total repudiation of the doctrine of overbreadth.
While Stenberg applies overbreadth analysis to an antiabortion law that has nothing to do with speech, even though until eight years ago overbreadth was unquestionably the exclusive preserve of the First Amendment.
Does the deck seem stacked?
The decision in the present case is not an isolated distortion of our traditional constitutional principles, but is merely the latest of many aggressively proabortion novelties announced by the Court in recent years.
Today’s distortions, however, are particularly blatant.
Restrictive views of the First Amendment that have been in dissent in this Court since the 1930s suddenly find themselves in the majority.
As a result, our long standing commitment to Uninhibited, robust, and wide-open debate is miraculously replaced by the power of the state to protect an unheard of right to be let alone on the public streets.
Argument of Justice Kennedy
Mr. Kennedy: I too have filed a dissenting opinion in this case.
I agree with Justice Scalia’s First Amendment analysis.
The court’s holding contradicts more than half-a-century of well-established First Amendment principles, and for the first time the court approves a law which bars a private citizen from passing the message in a peaceful manner and on a profound moral issue to a fellow citizen on a public sidewalk.
Under the Colorado law, the State must review content to determine whether a person has engaged in criminal protest, education, or counseling, the First Amendment does not give the government this power.
Statute is content based for an additional reason.
It restricts speech on particular topics.
Just a few decades a State with a history of enforcing racial discrimination had enacted a statute like this one, regulating oral protest, education, or counseling within a 100 feet of the entrance to any lunch counter, our predecessors would not have hesitated to hold it was content based and viewpoint based.
It should be a profound disappointment to defenders of the First Amendment that the Court today refuses to apply the same structural analysis when the speech involved is less palatable to it.
To say that one citizen can approach another to ask the time or the weather forecast or the directions to Main Street but not to initiate discussion on one of the most basic moral and political issues in all of contemporary discourse, a question touching profound ideas in philosophy and theology is an astonishing view of the First Amendment.
After the Court errs in finding the statute content neutral, it compounds the mistake by finding the law viewpoint neutral.
The purpose and design of the statute as everyone ought to know and as its own defenders urged in attempted justification are to restrict speakers on one side of debate those who protest abortions.
The anti-speech distinction pertains if a citizen approaches a public official who is visiting a healthcare facility to make a point in favor of abortion rights.
If she says, “Good job Governor!” there is no violation; if she says, “Shame on you Governor!” there is.
Thus does the Court today ensure its own decisions can be praised but not condemned.
Thus does it restrict speech designed to teach that the exercise of a constitutional right is not necessarily concomitant with making a sound moral decision.
Nothing in our law or our enviable free speech jurisprudence sustains this rule.
In a further departure from precedent, as Justice Scalia has indicated we learned today that citizens have a right to avoid unpopular speech in a public forum.
The Constitution does not permit a State to make criminal the peaceful expression of unpopular views.
The Colorado statute offends settled First Amendment principles in another fundamental respect.
It violates the constitutional prohibitions against vague or overly broad criminal statutes regulating speech.
This law is more vague and overly broad than any criminal statute the Court has ever sustained as a permissible regulation of speech.
Now, even aside from the erroneous and most disturbing assumptions that the statute is content neutral and viewpoint neutral, neither vague nor overbroad, the Court falls in the further serious error when it turns at the time, place, and manner rules set forth in Ward.
As Justice Scalia has indicated both the State and the Court attempt to sidestep the enactment’s obvious content-based restriction by praising the statute’s breadth, by telling us all topics of conversation, not just discourse on abortion, or within the statutory proscription against protest, education, and counseling.
The saving feature the Court tries to grasp simply creates additional free speech infirmity.
The law does not permit content censoring to be cured by taking even more protected speech within the statute’s reach.
In an age when vast resources and talents are commanded by a sophisticated media to shape opinions on limitless subjects and ideas, the distribution of leaflets on a sidewalk may seem a bit antiquated.
This case proves the necessity for that traditional mode of speech.
Colorado’s excuse and the Court’s excuse for the serious burden imposed upon the right to leaflet or to discuss is that it occurs at the wrong place.
Again, Colorado and the Court have it just backwards.
For these protestors the 100-foot zone in which a young woman seeks to enter a building is not just the last place where the message can be communicated, it is likely the only place.
It is the location where the Court should expend its utmost effort to vindicate free speech, not to suppress it.
In Planned Parenthood versus Casey, we reaffirmed our prior holding that the Constitution protects a woman’s right to terminate her pregnancy in its early stages.
Our decision took care to recognize the gravity in lasting consequence of the personal decision at stake.
The Court now strikes at the heart of the reasoned, careful balance I had thought was the basis for the joint opinion in Casey.
The vital principle of that opinion was that in defined instances the woman’s decision whether to abort her child was in its essence a moral one.
Foreclosed from using the machinery of government to ban abortions in early term, those who oppose it are remitted to debate the issue in its moral dimensions.
In a cruel way, the Court today turns its back on that balance.
It in effect tells us the moral debate is not so important after all and can be conducted just as well through a bullhorn from an eight-foot distance as it can through a peaceful, face-to-face exchange of a leaflet.
There runs through our First Amendment theory, a concept of immediacy, the idea that thoughts and pleas and petitions must not be lost with the passage of time.
In the fleeting existence we have but little time to find truth through discourse.
No better illustration of the immediacy of speech, of the urgency of persuasion, of the preciousness of time is presented than in this case.
Here the citizens who claim First Amendment protection seek it for speech which, if it is to be effective, must take place at the very time and place a grievous moral wrong, in their view is about to occur.
The Court tears away from the protesters the guarantees of the First Amendment when they most need it.
So committed is the Court to its course that it denies these protesters, in the face of what they consider to be one of life’s gravest moral crises, even the opportunity to try to offer a fellow citizen a little pamphlet, a handheld paper seeking to reach a higher law.