*1 HILL et al. v. COLORADO et al. 28, 2000
No. 2000—DecidedJune Argued January 98-1856. *3 Stevens, J., Rehnquist, Court, delivered the opinion in which J.,C. O’Connor, Souter, Ginsburg, and Breyer, JJ., and joined. Sou- ter, J., filed O’Connor, Ginsburg, concurring opinion, in which and Breyer, JJ., joined, post, p. Scalia, J., 735. filed a opinion, dissenting which Thomas, J., joined, post, Kennedy, J., 741. p. filed a dissenting opinion, post, p. 765.
Jay Alan Sekulow the cause for argued With petitioners. him on the briefs were James M. Henderson, Sr., Walter M.
Weber, Joel H. Thornton, P. Monaghan, Roger Thomas W. Westlund.
Michael E. McLachlan, Solicitor General Colorado, ar- gued the cause for respondents. him the With brief were Ken Salazar, Felicity Hannay, General, Attorney Deputy Angel, Carol D. Attorney General, Senior Assistant Attor- ney General, and Maureen Herr Juran.
Deputy Solicitor General Underwood the cause argued for the United States as amicus curiae urging affirmance. With her on the brief were Solicitor General Waxman, Act ing Attorney Assistant Lee, General Beth S. Brinkmann, Flynn, David K. and Louis E. Peraertz.* *Briefs of amici curiae urging reversal were for filed the Ameri- can Civil Liberties Union by R. Steven Shapiro; for Liberty Counsel Mathew D. Staver; and for People for the Ethical Treatment of Animals by David N. Ventker. Briefs of amici curiae urging affirmance were filed State of New York et al. by Eliot Spitzer, Attorney York, General of New Preeta D.
Bansal, Solicitor General, Fischer, Carol General, Assistant Solicitor Brown, K. Assistant Attorney General, and by Jennifer the Attorneys General for their respective States as follows: Janet Napolitano of Ari- zona, Bill Lockyer of California, Richard Blumenthal Connecticut, Earl I. Anzai of Hawaii, Carla J. Stovall of Kansas, Andrew Ketterer of Maine, J. Joseph Jr., Curran, of Maryland, Thomas F. Reilly of Massachusetts, Jeremiah W. (Jay) Nixon of Missouri, P. Joseph Mazurek Montana, Frankie Sue Del Papa of Nevada, Patricia A Madrid Mexico, New W.A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Sheldon *4 Whitehouse of Island, Rhode William H. Sorrell of Vermont, and Chris- tine 0. Gregoire of Washington; for the City of by Boulder et al. Daniel E. Muse and James C. Thomas; for the American College of Obstetricians and Gynecologists et al. by Carter G. Phillips, Mark Haddad, E. Ann E. Allen, lie, Michael L. and Leonard Nelson; A and for the National Abor- tion and Reproductive Rights Action League et al. by Lucinda M. Finley, C. Jajf Davis, Martha F. Powell, Roslyn Jennifer and Yolanda S. Wu. Briefs of amid curiae were filed for the American Federation of Labor and Congress of Industrial Organizations by Jonathan P. Hiatt Gold; Laurence and for the Life Legal Defense Foundation by Andrew W.Zepeda. delivered Justice Stevens opinion Court. At is issue aof constitutionality 1993 Colorado statute that regulates speech-related conduct within 100 feet of the entrance to health any eare facility. section specific the statute that is Colo. challenged, § 18-9-122(3) Rev. Stat. (1999), makes unlawful within the regulated areas for any person “knowingly approach” within feet eight of another person, without that person’s consent, “for the purpose a leaflet or passing handbill to, a to, displaying or sign engag- in ing oral protest, or education, counseling such other person....”1 Although the statute prohibits speakers from §18-9-122 1The entire reads as follows: "(1) The general assembly recognizes access to health care facilities for the purpose of obtaining medical counseling and treatment is impera- tive for the state; citizens this that the exercise person’s a right to protest or counsel against certain medical procedures must be balanced against another person’s right to obtain medical counseling and treatment in an manner; unobstructed and that preventing the willful obstruction a person’s access to medical counseling and treatment at a health eare facility is a matter of statewide concern. The general assembly therefore declares that it is appropriate to enact legislation that prohibits a person from knowingly obstructing another person’s entry or exit a from health care facility. “(2) A person commits class a 3 misdemeanor if such person knowingly obstructs, detains, hinders, impedes, or blocks person’s another entry or exit from a health care facility.
"(3) person No shall knowingly approach another person within eight feet of such person, unless such other person consents, for the purpose of passing leaflet or to, handbill to, displaying a sign engaging oral protest, education, or counseling with such other person in the public way or sidewalk area within a radius of one hundred feet from any entrance door to a health care facility. Any person who (3) violates this subsection commits a class 3 misdemeanor.
“(4) For the purposes of this section, ‘health care facility’ means any entity licensed, certified, or otherwise or permitted authorized law to administer medical treatment in this state. “(5) Nothing this section shall be construed to prohibit statutory or home city rule or county or city and county from adopting law the
approaching unwilling it listeners, require does not a stand- ing speaker away to move anyone from passing by. Nor place any it does restriction on the any content message anyone may wish to anyone communicate to else, either regulated inside outside the areas. It does, however, make more give difficult to unwanted particularly advice, in the form of a handbill or persons leaflet, entering or leaving medical facilities. question is whether the First rights Amendment speaker abridged by protection pro- statute
vides for unwilling listener.
{*— Five months after the petitioners was enacted, statute complaint filed a in the District Court for County, Jefferson Colorado, praying §18-9-122(3) for a declaration that was facially seeking invalid and injunction against an its enforce- ment. They prior stated that to the enactment the stat- they ute, engaged had counseling” “sidewalk on the ways and sidewalks within 100feet of the entrances to facili- ties where human practiced abortion is or where medical personnel refer women to other facilities for abortions. “Sidewalk counseling” consists of efforts “to educate, coun- persuade, sel, or inform passersby about abortion and abor- tion alternatives means of verbal or speech, written including conversation display and/or signs and/or distri- bution of They literature.” alleged further that such activ- ities frequently being entail eight within feet per- of other sons and prosecution that their fear under the new statute control of access health care facilities that is no less restrictive than provisions of this section. “(6) In to, addition of, and not in penalties lieu set forth in this section, a person who violates the provisions of this section shall be sub- ject to civil liability, as provided in section 13-21-106.7, C. R. S.”
Count 5 of the right claimed violations of the to speech protected by free the First Amendment to the Fed- eral alleged Constitution, and Count 6 impairment that the right of the to distribute written materials was a violation right press.4 to a complaint free argued also that statutory requirement consent was prior as a invalid re- straint licensing requirement, tantamount to a that the stat- vague ute was and overbroad, and that it awas content- based justified restriction by that was not compelling state Finally, §18-9-122(3) interest. petitioners contended that was content based for two reasons: The content of the must be examined to determine whether it “constitutes oral protest, counseling and education”; and “viewpoint- it is that based” because the statute likely prosecution “makes will displeasure occur based on position with the by taken speaker.”5
In their complaint, answers to the respondents admitted virtually all of allegations. They factual filed motion summary judgment supported by affidavits, which in- transcript cluded a hearings preceded the enact- ment of the It is apparent statute. testimony from the supporters both opponents and of the statute that demon- in front strations impeded abortion clinics access those clinics and were often confrontational.6 Indeed, it was a practice provide common persons entering escorts for and leaving the clinics both ensure their provide access and to
3Id, at 18-19. 4 through Counts alleged violations of Constitution, the Colorado Count 7 alleged violation of the right peaceable assembly, Counts 8 and 9 alleged violations of the Due Process and Equal Protection Clauses of the Fourteenth Amendment. 5Id, at 25-26. 6The legislature also testimony heard that other types protests at facilities,
medical such as those involving animal rights, create difficulties for persons attempting facility. to enter the App. to Pet. for 40a. Cert.
protection from counselors aggressive who sometimes used strong abusive language face-to-face encounters.7 There was also evidence that emotional confrontations may affect a adversely medical care.8 patient’s There was no evi- dence, however, that the “sidewalk conducted counseling” petitioners in this case was ever abusive or confrontational.
The District Judge granted motion respondents’ and dis- missed the complaint. Because the statute had not actually been enforced against petitioners, he found that they only *7 raised a facial He challenge.9 agreed petitioners that their sidewalk was conducted counseling in a “quintessen- tial” public forum, but held that the statute im- permissibly posed content-neutral “time, and place, manner restrictions” that were tailored to narrowly serve a significant govern- ment interest, and left open alternative ample channels of communication.10 on Ward v. Rock Against Rac- Relying 7A nurse practitioner testified some protesters antiabortion ‘“yell, thrust signs in faces, and generally try to upset the patient as much as possible, which makes it much more difficult for us to provide care ain scary situation anyway.’” v. Thomas, Hill (Colo. 2d 1246, P. 1999). A volunteer who escorts patients into and out of climes testified “ that the protesters ‘axe their Sashing bloody fetus signs. They are yell- ing, “you are killing your baby.” [T]hey are talking about fetuses and babies being dismembered, arms and torn legs off... a mother and her daughter . . . were immediately surrounded yelled at and screamed Id., at-’” at 1250-1251. 8A witness representing the Colorado Coalition of Persons with Disabil ities, who had had 35 separate surgeries in the preceding eight years, testified: “Each and every one is tough. And the night before and the morning of any medical procedure that’s invasive is the part toughest all. You don’t need additional stressors [sic] placed you while you’re trying to do it.... We all know about own personal our faith. You don’t need somebody in standing your face screaming you at when you going in for what may be one of the most traumatic experiences of your life anyway. Why make it more traumatic?” App. 108.
9 App.to Pet. for Cert. 31a. 10 Id., at 32a. “ (1989), ‘[t]he ism, 491 U. S. principal 781, 791 he noted that inquiry determining neutrality... content whether government adopted regulation has because ” disagreement message conveys.’ with the it He found that the text of “applies viewpoints, statute to all rather [than] only viewpoints,” legislative certain and that the his- tory made clear that the State had not favored one view- point over another.11 He concluded that “free zone” cre- ated narrowly statute was under the tailored test announced in open ample Ward, and that it left alternative means of signs communication because and leaflets be speech may seen, and eight heard, be feet. distance Noting petitioners had stated their affidavits that they intended protected to “continue with their First rejected Amendment he activities,” their overbreadth chal- lenge because he believed “the statute will do little to deter protected speech.”12 Finally, he concluded that statute vague was not prior that the inap- restraint doctrine was plicable requires because the permit “statute no license or prior speaking.”13 scheme
The Colorado Appeals Court of affirmed for reasons simi- given by lar to those Judge. the District It noted that even *8 though only percent patients seven receiving of the services at one of the clinics were there obtain services, abortion all 60,000of that patients subjected clinic’s “were to the same by treatment the protesters.”14 It also reviewed our then- recent decision in Madsen v. Center, Inc., Women’s Health (1994), 512 U. S. 753 and concluded Madsen’s reason- ing supported the conclusion that the statute was content neutral.15
11 Id., at32a-33a.
12 Id., at 35a. 13Id, at 36a. Lakewood, Hill (1995). 670, 911 P. 2d 15Id., at 673-674.
In
Supreme
the
Court of Colorado denied review,16
petitioners sought
and
a writ of certiorari from our Court.
petition
While their
pending,
was
we decided Schenck v.
(1997).
Pro-Choice Network
Y,
Western N.
firmed Appeals. Court of In thorough opinion, began court commenting on certain matters that were dispute. not in It reviewed the history of the statute in detail and concluded that it was pro intended to tect both the ‘right “citizen’s protest’ against or counsel certain procedures” medical and also to govern ensure “that protects ment ‘person’s right to obtain counseling medical and treatment.’”18 It noted that both the trial court Appeals Court of had concluded that the statute con was *9 16 App.to Pet. for 46a. Cert.
17 Lakewood, Hill (1997). P. 107, 109 949 2d 18 2d, 973 P. at §18-9-122(1)). 1249 (quoting petitioners longer tent that neutral, otherwise, no contended they question agreed and that that for decision was place, time, a whether the statute was valid and manner re striction under the test announced in Ward?19 important
The court identified two distinctions between judicial First, this case and a Schenck. Schenck involved explained posed “greater decree and as in therefore, Madsen, censorship discriminatory application risks of than do general floating Second, ordinances.”20 unlike the buffer require protester zone in Schenck, which would either talking stop get patient or to off the sidewalk whenever a “knowingly approaches” require- came within 15 feet, the protester ment in the Colorado statute allows to stand still person moving away while toward or from a health care facility past Applying walks her.21 the test in Ward, narrowly court that concluded the statute was drawn to fur- government significant rejected petition- ther a It interest. enough ap- ers’ contention that it was not narrow because plied to all health care facilities in the In the State. court’s comprehensive coverage view, of the statute awas factor supported neutrality. its content Moreover, the fact part, that the statute was in enacted, because the General time, concede that “[P]etitioners test for a place, manner re is striction the appropriate measure of this See constitutionality. statute’s Tape Recording 19,1998, of Oral Argument, Oct. statement of James M. Henderson, Esq. argue Petitioners pursuant to the test announced Ward, 18-9-122(3) in the floating buffer zone’ created section not is narrowly tailored to significant serve a government interest and that sec 18-9-122(3) tion does provide ample alternative channels of com Id., munication. disagree.” We at 1251. “We note that both the trial court and the court of found that appeals 18-9-122(3) section content-neutral, is and that do petitioners not contend Id., otherwise this appeal.” 1256. Center, Inc., Madsen v. Women’s Health 753, 764 512 U. S. (“What 2d, 21 973P. at 1257-1258 renders this statute less restrictive 18-9-122(3), than the injunction Schenck ... ... that under section no duty there is placed upon petitioners withdraw even within the zone”). eight-foot floating limited buffer *10 Assembly “was concerned with the safety of individuals seeking wide-ranging health care services, merely abor- tion counseling and procedures,” added to the substantiality government interest that it Finally, served.22 it con- cluded that ample alternative open channels remain because petitioners, and everyone,
“indeed, are still protest, able to counsel, implore, shout, persuade, dissuade, educate, inform, and distribute literature regarding They just abortion. can- not knowingly approach eight within feet of an individ- ual who is within 100 feet of a health care facility en- trance without that individual’s consent. As articulated so [‘the § well... Ward, 18-9-122(3)] fact that reduce degree to some potential audience for [peti- tioners’] speech is of no consequence, for there has been no showing that the remaining avenues of communica- tion inadequate.’”23 Because of the importance of granted the case, we certio-
rari.
22 Id., at 1258. 23 Ibid, (quoting Ward v. Rock Against Racism, 491 U. S. (1989)). rately explain protected that the areas the statute encom- pass public ways all the within every 100feet of entrance to every facility health care everywhere in the State of Colo- disagreement rado. There is no point, though this even legislative history makes it clear its enactment was *11 primarily by motivated vicinity activities in the of abortion they climes. correctly Second, leafletting, state that their sign displays, and oral protected by communications are the First Amendment. The fact messages that the conveyed by may those communications be recipients offensive to their deprive does not protection. them of constitutional Third, ways sidewalks, by streets, and affected the stat- ute “quintessential” public forums speech. for free Fi- nally, although there is magnitude debate about the of the statutory impediment to ability their to communicate effec- tively persons regulated in the ability, par- zones, that ticularly ability to distribute is unquestionably leaflets, lessened this statute.
On the
petitioners
hand,
other
do
challenge
not
legiti
macy of the state interests that the statute is intended to
serve.
It is a traditional
“police
exercise of
pow
the States’
protect
ers to
safety
the health and
their
citizens.” Med
(1996).
tronic, Inc. v. Lohr, 518 U. S. 470, 475
That interest
may justify
special
unimpeded
focus on
access to health
care facilities and the
potential
avoidance of
pa
to
trauma
tients associated with
protests.
confrontational
See Mod
sen v. Women's Health
(1994);
Center, Inc.,
It important is also conducting when this analysis interest recognize to significant difference between state restric- speaker’s right
tions on a to willing address a audience and protect those that listeners from unwanted communication. This statute deals with the latter. right speech, free right course, includes the
attempt
persuade
change
others to
their views, and
simply
be
speaker’s
curtailed
because the
message may
be offensive to his
protection
audience.
But
afforded
messages
to offensive
always
does not
embrace offensive
speech that is so
intrusive
the unwilling audience cannot
Frisby
avoid it.
v. Schultz,
The recognizable privacy
in avoiding
interest
unwanted
widely
communication varies
in
settings.
different
It is far
important
less
when “strolling through Central Park” than
when “in the confines of one’s own
persons
home,” or when
“powerless
Id.,
avoid” it.
at 21-22. But even the
interest
in preserving tranquility in
Sheep
“the
Meadow”
portion may
Central Park
justify
at times
official re
straints on
expression.
offensive musical
Ward, 491
S., U.
at 784,
specific
792. More
to the facts of
case,
this
we have
recognized
“[t]he
First Amendment does not demand
patients
at a
facility
medical
undertake Herculean ef
escape
forts to
cacophony
political protests.”
Mad
sen,
The listener’s in avoiding interest unwanted repeatedly communication has been identified in our cases. It aspect is an “right the broader to be let alone” that one of our wisest Justices characterized as comprehen “the most rights sive of right and the most by valued civilized men.” Olmstead v. United (1928) States, 277 U.S. (Brandeis, dissenting).24 J., right to avoid unwelcome special has privacy force in the of the home, Rowan v. Post Dept., 397 (1970), 728, 738 U. S. and its Office immediate surroundings, Frisby v. Schultz, 487 S., at U. 485, but can protected also be in confrontational settings. Thus, this comment right on the passage free going to and from applies work equally perhaps greater force—to ac —or cess ato facility: medical may
“How far gomen persuasion and communica tion and still not right violate the they those whom would going influence? In to and from work, men have right to as free passage without obstruction as the streets afford, right consistent with the of others to enjoy the same privilege. We are a people social the accosting by one of another in an way inoffensive and an offer one to communicate and discuss informa tion with a view to influencing the other’s action are regarded aggression as or a violation of that other’s rights. If, however, the offer is declined, as it rightfully persistence, be, then importunity, following and dogging unjustifiable become annoyance and ob struction which is likely soon savor of intimidation. From of person all this the sought to be influenced has right to be free, employer his right has a to have him free.” American Steel Tri-City Foundries v. Cen tral Trades Council, 257 U. 184, 204 S.
We have recognized since “right that the persuade” to dis- cussed in that protected case is by the First Amendment, Thornhill (1940), Alabama, 310 U. S. 88 as well as fed- 24This “right” common-law is more accurately characterized as an “in terest” that can States choose to protect in certain situations. See Katz States, v. United 389 U. S. 350-351
eral statutes. Yet we have continued to maintain that “no right press ‘good’ unwilling one has to even ideas on an recipient.” Rowan, at S., U. of our decisions 738. None importance has enduring right minimized the of “a to be persistent “importunity, following dogging” free” from after an offer to communicate has been declined. While every freedom to right communicate “the substantial, of person ‘to placed be let alone’ be in the must scales with right Id., of others to communicate.” at It is that 736. right, right “passage as well as the of without obstruction,” that the legitimately protect. Colorado statute seeks The imposed by restrictions apply the Colorado statute rights communications that than interfere with these rather willing those that involve listeners. argue depart precedent by
The dissenters
that we
from
recognizing
“right
unpopular
to avoid
in a
post,
J.);
(opinion
forum,”
post,
of
see
also
Kennedy,
J.).
(opinion
at 749-754
of Scalia,
course,
We,
not ad-
dressing
“right.”
whether there is such a
Rather, we are
merely noting
repeatedly recognized
that our eases have
unwilling
interests of
degree
listeners
situations where “the
'
captivity
impractical
unwilling
makes it
for the
viewer or
exposure.
auditor to
[Shaker
avoid
Heights,
Lehman v.
See
(1974)].”
III All four of opinions the state court upholding validity of this statute concluded it is a time, content-neutral place, regulation. and manner they Moreover, sup- all found port analysis for their Against in Ward v. Rock Racism, 491 (1989).26 S. 781 U. It is therefore appropriate to comment on the neutrality5’ “content of the statute. explained As we in Ward: principal
“The inquiry determining content neutral- ity, speech generally eases place, and in time, or man- ner particular, eases in government is whether the has adopted regulation speech disagreement because of with message conveys.” it Id., at 791.
The Colorado passes statute that test for independent three reasons. it First, “regulation is not a speech.” Father, regulation it is a places where some may occur. Second, it adopted was not “because of disagreement with message conveys.” This conclusion is supported not just by the Colorado interpretation courts’ legislative his- tory, but importantly more by the Supreme State Court’s unequivocal holding that the statute’s apply “restrictions equally to all regardless demonstrators, viewpoint, statutory language makes no reference to the content speech.”27 Third, the State’s in protecting interests protect is to those who seek medical treatment from the potential physical and emotional harm suffered when an unwelcome individual delivers a (whatever content) message its by physically approaching an individual at e., i. within eight feet. range, close In offering protection from harm, while maintaining free clinics, access to health the State pursues interests constitutionally distinct from the freedom from unpopular speech to which Kennedy Justice refers. (Colo. See App. Pet. Cert. 32a Ct.); Dist. 2d, 911 P. at 673-674 (Colo. Ct. (Colo. App.); 2d, 949 P. at 109 Ct. App.); 2d, 973 P. at 1256 (Colo. Ct.). Sup. 27 Ibid. This observation in Madsen is equally applicable here: "There is no suggestion in this record that Florida law would not equally restrain similar conduct directed at target having nothing to do abortion; privacy, police providing guide-
access and with clear lines, are unrelated to the content *15 demonstrators’ speech. repeatedly explained, As government reg- we have expressive activity ulation of justi- is “content neutral” if it is fied regulated speech. without reference to the content of ibid, See and eases cited. argue
Petitioners nevertheless that the statute is not con- applies tent neutral insofar as to some oral communication. applies persons The statute “knowingly to who approach” all eight purpose within feet of leafletting another for the or displaying signs; persons, for such the content of their oral respect persons statements is irrelevant. With who are sign neither carriers, leafletters nor however, the statute apply approach does not unless their purpose is “for the engaging protest, of . . . in oral counseling.” or education, Petitioners an contend that a individual near health care fa- cility knowingly approaches pedestrian who say “good a morning” randomly or to recite lines from a novel would not subject be to the statute’s restrictions.28 Because the con- tent by of the oral statements approaching speaker made an must sometimes be examined to determine whether the knowing approach petitioners covered the statute, argue that the law is “content-based” under our reasoning in Carey Brown, 447 U. S. 455,
Although theory this was complaint, identified in the it is any not mentioned in of the four opinions, Colorado all of which concluded that the statute was content neutral. For likely reason, it is argument that the has been waived. Additionally, attorney general Colorado argues that we should assume that the tacitly state courts construed the “protest, terms counseling” education, or encompass “all none the restrictions imposed by the court were directed at the contents of petitioner’s S., message.” 512 U. at 762-763. 28See Brief for Petitioners n. 23.
communication.”29 relying arguments, Instead of those on explain why petitioners’ however, we shall contention is why without merit and Carey their reliance on v. Brown is misplaced.
It is common in the law to examine the a content of com- munication to speaker’s purpose. determine the Whether particular statement constitutes a threat, blackmail, an agreement prices, to fix copyright violation, offer- ing of securities, or an goods offer to sell depends often precise content of the statement. haveWe never held, suggested, improper that it is to look at the content of an oral or written statement in order to determine whether a applies rule of law to a course of respect conduct. With the conduct that is the focus of the Colorado statute, it is *16 unlikely that any there would exactly often be need to know what words spoken were in order to determine whether "sidewalk counselors” engaging protest, in “oral edu- or counseling” cation, pure rather than social or random conversation.
Theoretically, of course, eases arise in which it is nec- essary to review the content by of statements made a person approaching eight unwilling within feet of an listener to determine approach whether the by is covered the statute. But that review need be no more extensive than a determi- general nation prohibition whether a “picketing” of or “dem- onstrating” applies speech. regulation innocuous expressive such activities, does definition, not cover so- cial, random, other everyday communications. See Web- ster’s Third (1993) New Dictionary International 600, 1710 (defining “to “demonstrate” as display make a of senti- against ment for or person a “picket” or cause” and as an 29 “The Colorado Supreme Court’s ruling confirms that statutory lan should guage be interpreted to refer approaches communication, for all as Colorado has argued since the beginning this case.” Brief for Respondents 21. influence”). persuade
effort “to or otherwise Nevertheless, suggested we cursory have never that the kind of examina- might tion required be to exclude casual conversation regulation from coverage picketing of a would be problematic.30
(cid:127) Carey
In
general prohibition
v. Brown we examined a
peaceful picketing
exemption
picketing
that contained an
place
employment
dispute.
involved in a labor
con-We
cluded that
Equal
this statute violated the
Protection Clause
of the Fourteenth Amendment, because it discriminated
between lawful and unlawful conduct based on the content
pieketers’
messages. That discrimination was im-
permissible
preferential
because it accorded
treatment
expression concerning
particular subject
one
matter —labor
disputes
prohibiting
all
discussion of
other issues.
—while
Although
opinion
our
stressed that “it is the content of the
speech that determines whether it is within or without the
prohibition,”
statute’s blunt
appended
S.,
447 U.
we.
footnote to
explaining
that sentence
that it was the fact that
placed
prohibition
statute
particular
on discussion of
topics, while others
constitutionally
were allowed, that was
30In
Grace,
United States v.
(1983),
The Colorado regulation statute’s pro- location of tests, counseling education, and easily distinguishable from Carey. places It no restrictions clearly on—and does not prohibit particular viewpoint any subject —either mat- ter may be discussed speaker. simply Rather, it establishes place minor restriction on an extremely broad category of communications unwilling listeners. In- stead of drawing distinctions based on the subject that the approaching speaker may wish to ap- address, the statute plies equally to used car rights salesmen, animal activists, fundraisers, environmentalists, and missionaries. Each can attempt to educate unwilling any subject, listeners on but without consent approach not eight within feet to do so.
The dissenters, nonetheless, contend that the statute is not “content neutral.” As points out, the vice Justice Scalia legislation content-based in this context is that “it lends itself” to being “'used for thought-control invidious pur ” poses.’ Post, at 743. But a statute that restricts certain categories only lends itself to invidious use if there significant is a number of raising communications, the same problem that the statute was enacted solve, fall out side the statute’s scope, while fall g., others inside. E. Police pt. De Chicago v. Mosley, 408 U. S. 92 Here, is, "It of course, no answer to assert that the Illinois statute does not discriminate on the basis of the speaker’s viewpoint, but only on the basis of the subject matter of his message. ‘The First hostility Amendment’s to content-based regulation extends to restrictions on particular ” viewpoints, but also prohibition of public discussion of an entire topic.’ Carey Brown, 447 U. 455, 462, S. (1980) n. 6 (quoting Consolidated Edi son Co. Y.v. Public Serv. Y., Comm’n (1980)). of N. U. 530, 537 S. of N. *18 protect
the statute’s restriction seeks to those who enter facility a health care from the harassment, nuisance, the persistent importuning, following, the dogging, implied physical touching accompany threat of that can approach eight an patient by unwelcome within feet of a person wishing argue vociferously face-to-face and perhaps upon thrust an undesired handbill her. The statu- tory phrases, protest, counseling,” “oral education, or distin- guish speech likely consequences activities to have those (such speech from activities “happy as Justice Scalia’s 743) speech,” post, unlikely that are most to have those consequences. The distinguish among statute does not likely similarly instances that legiti- to raise the responds. mate concerns to which it Hence, the statute can- not be struck down for failure to maintain “content neutral- ity,” or for “underbreadth.” theory
Also flawed is Justice Kennedy’s that a statute restricting speech unconstitutionally becomes content based application specific because of its “to the locations where [that] post, discourse occurs,” at 767. A prohibiting statute airports by solicitation in aggressive was motivated approaches Hare Krishnas does not become content based solely application because its airports confined —“the specific [that] locations where discourse A occurs.” statute making it a misdemeanor to sit at a lunch counter for an hour ordering any without food would also not be “content based” even if it by were legislature enacted a racist that hated civil rights protesters (although might separate questions raise issue). legitimate about the State’s interest at See ibid. Similarly, “viewpoint contention that a statute is simply based” because its enactment was motivated partisans conduct of the of a one side debate is without support. Post, at dissenting). J., 768-769 (Kennedy, antipicketing upheld Frisby ordinance Schultz, 487 U. S. (1988), a decision in which today’s both of dissenters *19 joined, obviously response was enacted in to the activities of protesters protest antiabortion who wanted at the home particular persuade of a doctor they him and others that practice performing viewed his abortions to be murder. summarily We nonetheless concluded that the statute was Id., content neutral. 482. suggests speaker further that a Kennedy who
Justice approaches patient praise Supreme and “chants the Court and its abortion or simple decisions,” hands out “ ” saying, leaflet rights,’ We are for abortion would not be subject to the statute. Post, at 769. But what reason is there to believe the statute would not apply to that indi- engaged vidual? protest” She would be in “oral and “educa- just opponent tion,” as expresses abortion the who her view Supreme Court decisions were incorrect would be “protest[ing]” the “educat[ing]” patient decisions and approach the issue. The close of the latter, more hostile, likely demonstrator be being perceived more to risk physical aas form of harassment; but the relevant First point Amendment is that prevent the statute would both speakers, entering unless welcome, from the 8-foot zone. The statute is not oppose limited those who abortion. applies It to in Justice demonstrator ex- Kennedy’s ample. applies “protest,” It to all “counseling,” to all and all demonstrators whether or not the demonstration con- cerns they and oppose abortion, whether support woman who has made an abortion decision. That is the level neutrality that the Constitution demands. §18-9- correctly
The Colorado courts concluded that 122(3) is content neutral.
IV agree § We also with the state courts’ conclusion that 18- 9-122(3) place, is a regulation time, valid manner under applied the test “narrowly in Ward it because is tailored.” already governmental We noted that have statute serves significant interests legitimate that are and that the re- persuaded are strictions content neutral. We likewise “narrowly that the tailored” to serve those inter- statute open ample ests and that it leaves alternative channels for emphasized we communication. As have on more than one regulation entirely when a occasion, content-neutral does not any may satisfy communication, foreclose means of the tai- loring requirement though even it is not the least restrictive serving statutory goal.32 or least intrusive means of § types The three regulated of communication 18-9- 122(3) display signs, leafletting, are the speech. and oral *20 separation speaker The 8-foot between the and the audience any impact ability should not have adverse on the readers’ signs displayed by to read sepa- demonstrators. In fact, the might actually pedestrians’ ability ration aid the to see the signs by preventing surrounding others from them and im- peding their the places Furthermore, view. statute no limi- images tations on the placards. number, or size, text, of the as And, with all restrictions, the 8-foot zone does not affect signs place. demonstrators with who remain in respect
With to oral certainly statements, the distance can make it speaker particularly more difficult for a to be heard, background if the level of high speakers noise is and other competing pedestrian’s for the Notably, attention. places statute speakers no limitation on the number or including the noise amplification level, equipment, the use of although upheld we have past such restrictions in cases. g., e. See, Madsen, 512 U. significantly, S., at 772-773. More this failings statute does not compelled suffer from the that reject us “floating buffer zone” in Schenck, 519 S., U. at 377. Unlike the 15-foot zone in Schenck, this 8-foot zone speaker allows the to communicate at a “normal conversa- any “Lest remain, confusion on the point we reaffirm today that a regulation time, place, manner of protected speech must be nar rowly tailored to serve the government’s legitimate, content-neutral inter ests but that it need not be the least restrictive or least intrusive means Racism, so.” Ward Rock Against doing S., 491 U. at 798. tional Additionally, distance.” Ibid. the statute allows the speaker to place, remain in one other and individuals can pass eight protester within feet of the causing without protester Finally, to violate the statute. here there ais “knowing” requirement protects speakers thought “who they keeping pace were targeted individual” at the proscribed inadvertently distance from violating the statute. Id., at n. 9.
It also is not clear that the statute’s restrictions will nec- essarily impede, speakers’ rather assist, than efforts to communicate messages. their might encourage statute aggressive the most and protesters vociferous to moderate their confrontational harassing and thereby conduct, make it thoughtful easier for law-abiding sidewalk coun- petitioners selors like to make themselves heard. But whether or not the 8-foot possible interval is the best accom- modation of the competing interests at stake, we must accord a measure of judgment deference to the Leg- the Colorado islature. See Madsen, 512 S.,U. again, 769-770. Once reiterating worth attempts to unwilling address listeners are affected. ability
The burden on the to distribute handbills is more *21 possible serious because it seems that an 8-foot interval could ability hinder the aof leafletter deliver handbills unwilling some recipients. The statute does not, however, prevent a simply leafletter from standing path near the oncoming pedestrians proffering and his or her material, pedestrians which the easily accept.33 can And, as in all leafletting pedestrians situations, continue to be free to decline the tender. In v. International Soc. Heffron Kennedy 33 Justice states that the statute peaceful "forecloses leaf- letting,” at post, 780. This is not correct. All of the cases he cites in support of argument his involve a total ban on a medium of expression to both and willing unwilling recipients, see post, 780-787. in Nothing statute, this however, prevents persons literature; from their proffering they simply approach cannot within eight feet of an unwilling recipient.
728 (1981), Krishna upheld Consciousness, Inc., 452 U. S. we regulation a state fair required religious organization desiring to activity only distribute literature to conduct that assigned at an location—in that As in this case, case booths. regulation primarily ability burdened the distributors’ unwilling communicate with readers. We concluded our opinion by emphasizing protects that the First Amendment right every willing citizen to “‘reach the minds of lis- teners and to do opportunity so there must be to win their (1949).” attention.’ Kovacs Cooper, 77, v. 386 U. S. Id., at 655. protects adequately Colorado statute those rights.
Finally, determining narrowly whether a statute is tai lored, “[w]e we have noted must, course, take account place to which regulations apply determining whether these restrictions burden more than neces sary.” Madsen, 512 municipalities U. S., at 772. and States plainly have a controlling activity substantial interest in around certain private places. example, and For we recognized have special governmental interests sur rounding polling schools,34 places,36 pri courthouses,35 and vate homes.37 Additionally, previously we have noted the unique concerns that surround health care facilities:
“ ‘Hospitals, after all, are not factories or mines or as- sembly plants. They hospitals, are where human ail- ments are patients treated, where and relatives alike often are under emotional worry, strain and where pleasing comforting patients and principal facets of day’s activity, and patient [her] where the family . . . need a relaxing, restful, uncluttered, 34See Grayned v. City Rockford, (1972). 104, 119 408 U. S. 35See Cox Louisiana, 379 U. S. 36See Burson Freeman, *22 (1992) v. 191, 206-208 504 U. S. (plurality opin ion); id., at (Scalia, J., 214-216 concurring in judgment). 37See Frisby Schultz, S., 487 U. at 484-485. ” Ibid, Baptist atmosphere.’
helpful (quoting NLRB v. 12). 783-784, Hospital, n. Inc., S., at U. facili- attempting health care to enter
Persons who particularly vulnerable any purpose often in ties—for —are physical of Colorado The State and emotional conditions. legitimate interest responded and has to its substantial encounters, con- protecting persons these from unwanted exceedingly by enacting an and even assaults frontations, ability approach. speakers’ modest restriction on the argues the statute however, Kennedy, Justice petitioners adequate of communica- leaves without means overstatement. Post, at 780. This a considerable tion. is protect wish to enter health The statute seeks to those who physical many may special care be under facilities, of whom approaches physical dem- stress, or emotional from close prophylactic doing In so, onstrators. the statute takes approach; come all demonstrators to forbids unwelcome by doing it will eight recognize so, than closer feet. We approach in fact inhibit whose sometimes a demonstrator prophylactic proved But the statute’s would have harmless. say, aspect justified by great difficulty protecting, is legal pregnant physical rules woman from harassment with exclusively impact of each in- that focus on the individual demanding char- stance of each ease an accurate behavior, (as harassing) harassing of each individual acterization or not boundary. movement individualized within the 8-foot Such diffi- characterization of each movement often individual accurately. bright-line prophylactic cult to make rule A way provide protection, and, be the best the same by offering guidance avoiding subjectivity, time, clear protect speech itself. explained
As we on an un- above, the 8-foot restriction physical approach ample wanted room to leaves communicate message speech. through Signs, pictures, voice itself gap can cross an 8-foot If clinics in with ease. Colorado resemble those in with leaflets Schenck, demonstrators
might easily (without stand on the sidewalk at entrances entrance) blocking the and, physically approaching without those entering who peacefully clinic, hand them they pass by. leaflets as
Finally, the 8-foot restriction
occurs
within 100 feet
of a health
facility
place
care
where the restriction is
—the
most needed. The restriction interferes far less
awith
speaker’s ability to communicate than did the total
ban
picketing on the sidewalk outside a
(upheld
residence
in
Frisby v.
(1988)),
Schultz,
This restriction is thus narrowly reasonable and tailored.
y § argue 18-9-122(8) Petitioners is invalid because it is “overbroad.” There parts are two petitioners’ “over- breadth” argument. On the one they argue hand, that statute is too protects broad because it many people too many places, too just rather than patients at the facilities where confrontational had Similarly, occurred. burdens all speakers, just persons rather than history with a of bad conduct.38 On the other petitioners hand, also contend that the statute is overbroad because it “bans vir- tually the protected universe of expression, including dis- plays signs, distribution of literature, and mere verbal statements.”39 part
The first argument not identify does a constitu- tional defect. The coverage fact that the aof statute is
38Brief for Petitioners 22-23.
39Id, at 25. specific its enactment is broader than the concern that led to important significance. is that of no constitutional What is leaving share persons entering all health care facilities precisely It is because the interests served the statute. Legislature general policy choice the Colorado made set the statute is assessed under the constitutional standard *24 Ward, than a more strict S., 791, forth in 491 at rather U. cases cited Madsen, S„ standard. 512 U. See 764. by petitioners distinguishable In this are from statute. attempted regulate nonpro- government cases, those activity, yet pro overbroad, tected the statute was because implicated. Hill, tected Houston v. 482 was also See (1987); Joseph Secretary U. H Mun S. 451 Md. v. State (1984). disputed son not Co., case, 467 U. 947 In this it is S. activity; regulation protected speech that the affects restrietio[n] question on is thus it a whether “reasonable place, protected speech.” 491 time, Ward, or manner of comprehensiveness S., Here, U. at 791. of the statute against is a a there virtue, vice, not because is evidence being discriminatory governmental As Justice motive. practical guar Jackson observed, “there is no more effective anty against arbitrary government and unreasonable than to require principles that the im of law which officials would pose upon minority Railway imposed generally.” must be (1949) Express Agency, York, 106, v. Inc. New 386 U. S. (concurring opinion). argument part misreading
The second of the is based understanding statute and an of the over- incorrect 18-9-122(3) § already breadth noted, doctrine. As we have simply any messages, does not “ban” does not and likewise it any signs, merely “ban” literature, or oral statements. It regulates places may As where communications occur. explained we Oklahoma, Broadrick 413 U. S.
(1973), litigants “to overbreadth doctrine enables chal- lenge rights expres- a statute not because their own of free sion judicial prediction but violated, because of a or
assumption that the
very
statute’s
existence
cause oth-
ers not before the court to refrain from constitutionally
protected speech
expression.”
“particularly
Moreover,
where conduct and merely
not
speech is involved, we believe
that the overbreadth of a statute
must not
be real, but
substantial
judged
as well,
in relation to the
plainly
statute’s
legitimate sweep.” Id., at 615. Petitioners have
per-
not
us
suaded
impact
that the
of the statute on the conduct of
speakers
other
will differ from impact
its
on their own side-
walk counseling. Cf. Members
City Council
Los
Angeles v. Taxpayers
Vincent,
VI § Petitioners also 18-9-122(8) claim that *25 is unconstitution- ally vague. They find a clarity lack of parts in three of the section: the meaning of “protest, education, or counseling”; the “consent” requirement; and the determination whether one is “approaching” within eight feet of another.
A can statute be impermissibly vague for either of two independent reasons. First, if it provide fails people of ordinary intelligence a reasonable opportunity to understand what prohibits. conduct it Second, if it authorizes or even encourages arbitrary and discriminatory enforcement. Chi- cago v. Morales, 527 (1999). U. S. 41, 56-57 In this case, the first concern is ameliorated the faet §18-9-122(8) that contains a scienter requirement. The statute applies person a “knowingly” who approaches eight within feet of another, person’s without that consent, for the purpose of engaging in protest, oral education, or counseling. The likelihood anyone that would not under- any stand of those common words quite seems remote.
738 proffer hyperteehnieal Petitioners theories as to what the covers, statute such as whether an outstretched arm consti “[t]here “approaching.”40 tutes And while is little doubt imagination conjure up hypothetical that can cases which meaning question,” terms be in these will nice Ameri can Assn. Douds, Communications v. 382, 339 U. S. 412 “[ejondemned (1950),because we are to the use words, we expect certainty can never mathematical from our lan guage,” Grayned City 104, 408 U. S. 110 Rockford, (1972). rejected For vagueness reasons, these we similar challenges injunctions to the at in Schenck, issue S.,U. at 383, Madsen, S., 512 U. at 775-776. thusWe conclude is prohibits.” that “it clear what the ordinance as a whole Grayned, 408 importantly, speculation S.,U. at 110. More possible vagueness hypothetical about situations not be support fore the Court will not a facial on a attack statute surely is majority when it valid “in the vast of its intended applications,” Raines, United States v. 17, 23 U. S. For similarly the same unpersuaded by reason, we are 18-9-122(3) § suggestion give adequate guidance fails to to law enforcement Indeed, authorities. it seems to us that specificity one of the section’s virtues is the of the definitions always, zones described in the statute. “As enforce- requires ment degree police exercise of some judg- Grayned, ment,” degree judg- S., U. and the ment acceptable. involved here
VII 18-9-122(3)’s § Finally, petitioners argue consent re- quirement imposes is invalid because it an unconstitutional *26 “prior speech. rejected restraint” on argument We this previously in Schenck, 519 U. at S., 374, 6,n. and Madsen, S., 764, 512 U. at n. Moreover, 2. in this restrictions case prior an raise even lesser restraint concern than those at 40Brief for Petitioners 48.
784 issue in SchencJc and Madsen particular where speakers were at times completely banned within certain zones. Undér this absolutely statute, no channel of communication speaker foreclosed. No is silenced. And no message is prohibited. Petitioners simply wrong they when assert “[t]he compels statute speakers to obtain consent to speak and it private authorizes deny citizens to petitioners’ requests engage in expressive activities.”41 To the con- trary, this provide statute does not a for “heekler’s veto” but rather every speaker allows engage freely any in expres- activity sive communicating all messages and viewpoints subject only to place the narrow requirement imbedded within the “approach” restriction.
Furthermore, our concerns “prior about restraints” relate imposed restrictions by officialcensorship.42 regula- tions this case, however, apply pedestrian if the does not consent to approach.43 Private citizens always have power retained to decide for they themselves what wish to read, and within limits, what messages oral they want to consider. This statute simply empowers private citizens entering a health facility care ability prevent speaker, who is within eight feet and advancing, from com- municating a message they do not wish to hear. Further,
41 Id., at 29. 42 Ward, See U. S., 795, (“[T3he 491 n. 5 regulations we have found invalid as prior restraints ‘had have this in common: they gave power to deny use a forum in officials advance of actual expres sion”’ (quoting Southeastern Promotions, Conrad, Ltd. 546, U. S. (1975) added))). (emphasis 43While we prior have in cases governmental found grants of power to private actors constitutionally problematic, those cases are distinguish able. In cases, those the regulations allowed single, private actor to unilaterally silence speaker even as to willing See, e. g., Reno listeners. v. American Civil Union, Liberties (1997) (“It 521 U. S. would confer broad powers of censorship, the form of a veto,’ ‘heckler’s upon opponent any .”). indecent speech . . The Colorado statute at issue here confers no such censorial power on the pedestrian.
735 pedestrian any the statute does not authorize the to affect activity any relating any other at other location or to other person. These restrictions thus do not constitute an unlaw- prior ful restraint. sfc
‡ judgment Supreme The the of Colorado Court is affirmed.
It is so ordered. Justice Souter, whom Justice O’Connor, Justice Breyer and Justice Ginsburg, join, concurring. join opinion word.,
I
and add
Court
this further
§
key
determining
The
whether Colo. Rev.
18—9—
Stat.
122(3)(1999)makes a content-based distinction between va
speech
understanding
rieties
lies in
that content-based dis-
subject
scrutiny
they
criminations are
place
strict
because
weight
government
disparagement
sup
behind
or
pression
messages,
of some
whether or not with the effect of
approving
promoting
or
Playboy
others. United States v.
(2000);
Group,
Entertainment
Inc., 529 U. 803, 812
S.
R.A.V.
(1992);
St.
Dept.
Paul,
v.
It is recognize that the validity punishing expressive some conduct, and the permissibility of a time, place, or manner restriction, depend does on show- ing particular that the behavior or mode delivery has no association particular with a subject or opinion. Draft card burners disapprove of the see draft, United States v. supra, O’Brien, at 370, and protesters abortion believe abor- tion is morally wrong, Madsen v. Women’s Center, Health always Inc., 753, 758 512 U. S. There is a correlation subject viewpoint regulates with when the law conduct signature controversy. that has become of one side aof every regulation But that does not mean that of such distinc tive behavior is content based as First Amendment doctrine employs captured that term. The correct rule, is rather, in the formulation restriction is content based if it imposed speech, because of the content of the Ward, see (“The supra, principal inquiry determining at 791 in content neutrality, speech generally place, eases time, particular, manner government eases in is whether the has adopted regulation disagreement because of message conveys”), and not because of offensive behav delivery. ior identified with its *29 point elementary
Since this anything is as as in traditional speech suppose it doctrine, would be to natural that today’s disagreement dissenting between the Court and the difficulty Justices turn on evaluating must unusual in the facts of this case. But it does not. The facts overwhelm- (8) ingly validity the demonstrate subsection as content- regulation imposed solely regulate neutral to the manner in speakers may which conduct themselves within 100 feet of facility. the entrance aof health care disputes No one substantiality government’s the of the protecting already people interest tense or distressed (whether anticipation of medical attention an abortion procedure) or some other from the unwanted intrusion of personal importunity by strangers. close The issues divid- ing go neutrality Court, regu- then, content of the its by lation, fit interest to be it, served and the availability expressing of other means the desired mes- (however sage may offensive it physically be even without communication). close by
Each of these principally issues is addressed the fact (3) simply that subsection does forbid the statement of any position any subject. any on It does not declare view
as unfit expression within the beyond 100-footzone or it. itWhat forbids, and all it forbids, is approaching another person (absent eight closer than feet permission) to deliver message. (let Anyone him protester, be called coun- educator) selor, may stationary take a position within the regulated area and any address message any person sight within or hearing. stationary protester may be quiet and ingratiating, or loud and offensive; the law does not touch him, even though in ways some it could. See Madsen, supra, at (injunction 768-771 protesters bar from 86- foot zone around lot). entrances to clinic parking This is say not to approach enforcement of the restric- tion will have no speech; effeet on of course will make some difference. The speech effect of product is a of ideas and circumstances, and place, time, and manner are circum- stances. The question is simply whether the ostensible rea- son for regulating the really circumstances is something about the ideas. Here, the evidence indicates that the osten- sible reason is the true reason. The fact speech by speaker stationary untouched this statute shows that the reason for its restriction approaches goes ap- to the proaches, not to the content of approach- those ing. prohibited What is is a close encounter per- when the son addressed does not want get close. So, the intended recipient stay can far enough away prevent whispered argument, mitigate some physical shock of the shouted *30 denunciation, and avoid the unwanted handbill. But the content of the message will any survive sign readable at eight any feet and in statement audible slight from that dis- tance. Hence the implausibility any of claim that an anti- abortion message, not the protesters, behavior of is what is being singled out.
The matter proper tailoring to limit no more necessary than to vindicate interest deserves a specific few comments, some on matters by raised Justice (8) Kennedy’s dissent. Subsection possibly could ap- be plied speakers present to petitioners, unlike might who not know facility that the entrance to the was within might try or engage feet, who people within 100 feet of a facility physician’s health other hospital, than office or or people having no facility. objec- business with the These weigh very do heavily tions not, however, on a facial chal- lenge specter like liability this. The part on the of those importune who while facility oblivious of the is laid to rest requirement that “knowingly.” defendant act See §18-1-503(4) (1999) Colo. Rev. (culpable Stat. mental state requirement apply deemed to to each element of offense, ab- intent). contrary sent clear While it is true that subsection (3) protect was not enacted patients, say dental I cannot goes beyond it the State’s facing interest to do so; someone an hour may with a reasonably drill in protected his tooth be from the intrusive strangers behavior of who are otherwise speak. free passersby may While some mere pro- be needlessly, tected skeptical I am about the of health number care pedestrian facilities with substantial traffic within 100 feet of their doors but unrelated to the business conducted inside. danger Hence, I fail to see substantial over- required breadth be shown before a statute is struck down out of for speech rights concern of those not before the Secretary Court. Cf. Joseph State Md. v. H. Munson (1984); Co., 467 U. S. 964-965 Houston v. Hill, 482 U. S. 451,
forAs vagueness, the claim of at first blush is there some- objectionable. thing Those who do choose not to remain sta- tionary approach eight not purpose, within feet with among “engaging others, of protest, in oral education, §18-9-122(3) (1999). counseling.” Colo. Rev. Stat. While liability formula excludes enquiring about the time or the bus eight schedule feet, within “education” does not convey by way much else of limitation. But that is not fatal significant here. isWhat that the word fails to limit clearly, pretty clearly but very to limit fails much at
740 all. It naturally covering any likely succeeds in by address person one approaching parking another on a street or lot (aside building outside a greet entrance from common social ings, assistance). protests, requests for plan Someone ning spread message by accosting strangers likely is understand the application statute’s And “education.” just coverage because the obviously is so discre broad, the given tion police to the in deciding charge whether an greater offense seems no prosecutorial than the discretion any generally inherent in applicable criminal statute. Cf. Grayned (1972) City (noting 104, 108 408 Rockford, U. S. “[vjague may trap laws the innocent providing not warning” fair and arbitrary discriminatory “if en forcement is to prevented, be provide explicit laws must them”); apply standards those who Cincinnati, Coates v. “[Pjerfeet 402 U. 611, 614 S. clarity guid precise ance have required never been regulations even of that re expressive strict activity.” Ward, S.,U. at 794. Although petitioners have argued “floating not that the bubble” feature of the 8-foot zone pedestrian around a it self a tailoring, failure of narrow I would note the contrast (3) operation between the of subsection and that of the com parable portion injunction struck down in Schenck v. Pro-Choice Network Y, Western N. 519 U. S. 357, 377-379 (1997),where we difficulty observed that the of administer ing a floating bubble zone threatened to burden more than necessary. In floating Schenck, larger bubble was (15 feet) and was associated with prohibitions near-absolute speech. (3) on Ibid. prohibits Since only subsection 8-foot approaches, stationary speaker however, free to speak, the risk is floating less. Whether bubble zones are inherently so difficult to no-speech administer that fixed, (or prohibitions zones ambulatory counseling within a zone) fixed pass should muster is issue an before neither us nor well suited to consideration on a challenge, facial (“Since supra, cf. Ward, respondent does claim *32 city enjoy that unguided officials deny right to the discretion speak altogether, to open question respond- it is to whether ent’s claim falls permissible within narrow the class of facial challenges allegedly to grants regulatory unconstrained authority”).
Justice Scalia, with whom Justice Thomas joins, dissenting. today
The Court regulation requiring concludes that speakers public on the thoroughfares bordering medical facil- speak ities to eight from a ‘regula- distance feet is “not a ” speech,’ tion of regulation but “a places where some speech may regulation occur,” ante, and 719; that a di- rected categories certain speech (protest, educa- counseling) tion, and is not For these rea- “content-based.” says, it regulation sons, the is exacting immune from the scrutiny apply to suppression we content-based in forum. The regu- Court then determines that lation rigorous survives the scrutiny less afforded content- place, neutral time, and manner restrictions is because it nar- rowly government tailored to serve a protection interest — “right of citizens’ to be let explicitly alone”—that has been by disclaimed probably the State, that, for the reason as peaceful basis for suppressing private expression, it is patently incompatible guarantees of the First Amendment.
None of these remarkable conclusions should come aas surprise. What is speech regulation before us, all, after is a against directed the opponents abortion, it therefore enjoys the benefit of “ad hoe nullification machine” the Court has set in push motion to aside whatever doctrines of constitutional law way highly in the stand of that favored practice. Madsen v. Women’s Center, Inc., Health 512 U. S. (1994) 753, 785 concurring judgment part J., in (Scalia, dissenting part). Having deprived oppo- abortion political nents of the right persuade electorate abortion today should be restricted contin- law, Court expands ues and upon its assault their right individual persuade contemplating women they abortion that what doing wrong. Because, juris- the rest of our like abortion prudence, today’s decision is in stark contradiction of the constitutional principles apply we in all other contexts, I dissent.
I Colorado’s statute knowingly makes act criminal approach within 8 person feet of public way another on the or sidewalk area within 100 feet of the entrance door of a *33 health care facility purpose for the passing of to, leaflet displaying sign engaging to, or protest, in oral education, counseling or person. such may Whatever be said about the types expressive restrictions the other activ- ity, regulation applies as it to oral communications is ob- viously and undeniably speaker content wishing based. A approach to purpose another for the communicating any message except protest, one of or counseling may education, do so securing without first the other’s consent. Whether a speaker permission must obtain approaching before within eight feet—and whether he prison will be sent to failing for to do depends entirely on what he say intends to when so— gets (cid:127)he there. I have no regulation doubt that this would be deemed content based in an instant if the case before us involved protesters, antiwar or union seeking members "educate” the about the reasons “[I]t for their strike. is,” say, we would "the speech of the content that determines whether it is or within without prohibi- statute’s blunt Carey tion,” v. Brown, 447 S. 455, U. But the jurisprudence way this Court has a changing when abortion is involved.
The Court asserts that this statute is based content purposes for of our First analysis Amendment because nei- (1) ther (2) among viewpoints discriminates places nor re- “any strictions on subject matter that be discussed speaker.” Ante, at 723. we But have held never that the universe of content-based is limited to those two regulations and such a categories, would be absurd. Imagine, holding instance, restrictions on all special plaee-and-manner that which a sense of contentment except “conveys or This limitation would not happiness.” be “happy speech” based” —citizens would be their “viewpoint able express measure at either rise or fall of the joy equal at either NASDAQ, the success or the failure of the Republi- can would not discriminate on the basis of sub- Party —and matter, since ject could be about gratification any- expressed at all. Or consider a law thing restricting writing recitation of poetry based nor limited to viewpoint —neither any particular matter. this Court would con- subject Surely sider such regulations be “content based” and deserving of the most exacting scrutiny.1
“The vice of content-based renders it de- legislation —what standard of strict not that it serving high scrutiny —is used for invidious, always but thought-control purposes, it lends itself to use for those Madsen, purposes.” responds The Court that statutes which categories speech— restrict as opposed subject viewpoint matter or worri constitutionally —are *34 some if a communications, “significant number of raising the same problem that the statute solve,... was enacted to fall outside the statute’s Ante, scope, while others fall inside.” at 723. I am not sure that correct, assume, but let us for the sake of it argument, that is. The Court then proceeds to assert that statutory “[t]he ‘oral phrases, protest, educa tion, or counseling,’ distinguish to” speech likely present activities problem “harassment, of nuisance, . . . persistent . . . importuning, . . . following,... dogging, and ... implied threat of touching,” physical from “speech [such activities my as of example speech’] that are ‘happy most ante, unlikely to those have consequences,” at 724. Well. That may work for “oral protest”; it is beyond but imagining why “education” and “counseling” are especially likely, rather than especially unlikely, to in (Socrates volve such conduct. was a but noodge, something of even he far.) that Unless, go did not course, of and “education” “counseling” are code words for efforts to dissuade women from abortion —in which event the statute neutral, would not viewpoint be the Court which concedes it makes invalid. J.) deleted). supra, (opinion (emphasis at 794 A Scalia, operates only restriction that communicates message protest, presents counseling education, or ex- actly applied, this risk. here, When as it is at entrance against impeding speech medical it facilities, is a means abortion. The Court’s that the confident assurance statute poses special no threat to First Amendment freedoms be- applies it rights cause alike to “used ear animal salesmen, activists, fundraisers, environmentalists, missionaries,” (except replication ante, sarcasm) at is a wonderful lack of its “[t]he of Anatole France’s law, observation in majestic equality, its poor forbids the rich as the as well sleep bridges under Bartlett, ....” J. Familiar Quotations (16th 1992). targeted ed. This Colorado law is no more at used car rights salesmen, animal activists, en- fundraisers, vagrancy vironmentalists, and missionaries than French law targeted was legis- the rich. We know what the Colorado lators, their careful (“protest, selection of content educa- counseling”), tion, and taking they were aim at, for set forth “right statute protest itself: the or counsel against certain procedures” medical on the sidewalks and surrounding streets health care facilities. Colo. Rev. Stat. 18-9-122(1) § (1999) added). (emphasis unpersuasive Court is attempt equate its present restriction regulation with content-neutral of dem- onstrations and picketing immediately suspect one —as opinion’swildly from the expansive definitions of demonstra- “ ‘public tions as display[s] against per- sentiment for or ” son or picketing cause,’ persuade as an effort “‘to or ” otherwise quoting Ante, influence.’ at 721-722, Webster’s (On Third New Dictionary International 600, 1710 terms, these Nathan Hale was a demonstrator and Patrick Henry picket.) government When regulates “picket- ing,” “demonstrating,” particular it restricts a manner *35 expression of today’s opinion is, as the author of has “ several explained, times ‘a mixture of conduct and commu-
745 ” (1988) Frisby Schultz, v. 487 474, 497 nication.’ (Ste U. S. dissenting), quoting Employ NLRB vens, J., v. Retail Store (1980) concurring ees, in 607, 618-619 J., (Stevens, U. S. result). concurring part opinion quoted and The latter approvingly Douglas’s Justice statement:
“Picketing by organized group an is more than free speech, patrol particular locality since it involves of very presence picket and since the aof induce line quite irrespective action of one kind or another, of being nature of the ideas which are disseminated. aspects picketing subject Hence those make it the regulation.” Bakery restrictive Wohl, Drivers (1942)(concurring opinion). S. 776-777 U. explain, As Justice Stevens went on to “no doubt principal why containing message reason handbills the same picketing are so less much effective than labor is that the depend entirely persuasive former on the force of the idea.” Employees, supra, Today, Retail Store at 619. course, gives opinion restricting us an Justice Stevens handbilling particular but even one-on-one conversation of a point opinion content. There comes a the Court’s —and today passes regulation it—at which the intimately of action unavoidably speech and regu- connected with traditional is a lation of itself. The strictures of the First Amend- by regulating moving ment cannot be avoided act one’s lips; they by regulating cannot be avoided the act of extending peacefully ap- one’s arm handbill, to deliver a proaching speak. regu- order to All of these acts can be lated, sure; be but on the not, content, basis of without requirements satisfying strict-serutiny of our First jurisprudence. Amendment regard picketing, applied
Even with we have course, scrutiny Carey, strict to content-based restrictions. See scrutiny (applying invalidating, S., at 461 to, U. strict “permissibility an Illinois statute that made of residential *36 picketing dependent solely message ... on the nature of the being conveyed”). As prohibition above, discussed here is content speak based: Those purposes who wish to for other protest, than counsel, or range education do at close so without the speak listener’s consent, while those who towish purposes may other not. This bears no resemblance prohibition a blanket picketing one course, uses unless,— (“an the fanciful picketing persuade definition of effort to influence”) otherwise newly by today’s opinion. discovered As for appeal the Court’s fact that we often “examine the content of a communication” determine whether it “constitutes a agreement threat, prices, blackmail, an to fix copyright public offering violation, a of securities, or an goods,” offer to sell ante, 721, the distinction is almost too Speech obvious to bear mention: of a certain content is constitutionally proseribable. yet The Court has not taken step of consigning “protest, counseling” education, and category.
Finally, the Court is not correct in its assertion that the
restriction here is
“justified
content neutral because it is
without reference to
regulated speech,”
the content of
in the
sense that “the State’s
protecting
in
interests
access and
privacy,
providing
police
guidelines,
with clear
unrelated to the content of
speech.”
the demonstrators’
added).
Ante,
(emphasis
at 719-720
That is
an
accurate
statement of our law. makes
Court
too much of the
statement Against
Ward v. Rock
Racism,
But in accepts event, if one description Court’s of the interest served regulation, this it is clear that the regulation is both based on justified by and content reference to content. Constitutionally proscribable “secondary ef- speech fects” of directly (2) addressed in subsection the statute, which makes it unlawful to obstruct, im- hinder, pede, or block access to facility health care prohibition —a enough broad to physical include all threats physi- all and cally threatening approaches. purpose of subsection (3), (according however Court), to the protect “[t]he is to un- willing listener’s avoiding interest in unwanted communica- tion,” ante, at 716. analysis, On this Colorado has restricted categories certain of speech protest, counseling, and educa- — tion—out of apparent an only belief that with this content is sufficiently likely annoying to upsetting be or as require to consent before engaged it be range. at close It is enough reasonable that gentle conclude even the most peaceful close approach by a so-called “sidewalk coun- selor”—who wishes to “educate” the entering woman an abortion clinic about procedure, nature of the to “coun- against sel” it and in favor of other perhaps alternatives, (though even likely successful) less if approach is to be “protest” taking her of a human life—will often, indeed usually, have might what be “secondary termed the effect” of annoying deeply upsetting the planning woman who is
the abortion. But that “with is not an which occurs effect out to the content” the speech. This singling reference out of fits “unwelcome” communications presumptively pre set forth cisely description regulation prohibited Boos v. (1988): direct Barry, 312, 321 485 U. S. It “targets of a impact particular category speech, secondary feature that to be associated happens type added.2) speech.” (Emphasis
In
sum,
blinks
this
in its
statute,
reality
regard
appli-
cation to oral
other
than a
communications, as anything
content-based restriction
in the
forum.
upon speech
As such, it must survive that
mode of constitu-
stringent
tional
our cases refer to as “strict
which
analysis
scrutiny,”
be
tailored to serve
requires
restriction
narrowly
See United States
state
v.
Playboy
interest.
compelling
Entertainment
Inc.,
803,
(2000);
529 U. S.
Group,
Perry
Ed. Assn. Assn.,
Local
Educators’
460 U.
Perry
S.
(1983). Since the Court
not even
does
support
attempt
*38
standard,
-under this
I shall discuss it
regulation
Suffice it
un-
briefly.
to
if
from
say
protecting people
2The Court’s contention that
is content
it is
the statute
neutral because
not a
of
“‘regulation
speech’”
“regulation
but a
of the
some
places where
occur,” ante,
may
Racism,
speech
at 719
Ward v. Rock
(quoting
Against
(1989)),
491 U. S.
791
First,
is simply
proposi
because the
baffling.
tion
a restriction upon the
where
occur
not a
places
speech may
is
restriction upon speech is both absurd and
contradicted
innumerable
See,
cases.
e.
Center, Inc.,
g., Madsen v. Women’s
512
Health
U. S. 753
(1994);
Freeman,
Burson
(1992);
v.
Schultz,
Frisby
U. S. 191
v.
(1988);
U. S. 474
(1988);
Boos v. Barry,
II As the explains, Court precedents under our even a place, content-neutral, time, and manner restriction must be narrowly tailored to significant advance a state interest, and open ample must leave alternative means of communication. Ward, 491 atS.,U. 802. It cannot be sustained if it “bur- dents] substantially more necessary than is to further government’s legitimate interests.” Id., at 799. requires
This us to determine, significant first, what is interest the State seeks to advance? appears Here there be a bit disagreement of a between the State of Colorado (which know) (which should and the eager Court specu- late). Colorado has identified in the text the statute itself sought the interest it to advance: to ensure that the State’s citizens “obtain counseling medical and treatment in an *39 unobstructed by manner” “preventing the willful obstruction person’s of a access to medical counseling and treatment at facility.” § health care 18-9-122(1) (1999). Colo. Rev. Stat. In its brief here, the repeatedly State confirms the interest squarely identified in statute g., under review. See, e. (“Each Respondents Brief for provision 15 of the statute was 750 precisely crowding physical
chosen to address and intimi- impede endanger dation: conduct shown to safety aecess, strangle and enforcement”); health, and effective law id., at (“[T]his provision narrowly addresses the conduct shown through crowding interfere physical with access and threats”). The Court nevertheless concludes that the Colo- provision narrowly rado tailored to serve .. .the State’s 'protecting citizens’rights interest in its to be let alone from speech. unwanted
Indeed, the situation is even more bizarre than that. The interest linchpin that the Court makes the analysis of its was only by not only completely unasserted it is State; not from the specifically interest that the statute sets different explicitly by forth; was disclaimed the State in its brief before this Court, characterized as a “straw interest” petitioners up hope served in the discrediting the State’s Id., case. 25, n. 19. We thus add to lengthening generated by list of “firsts” this relentlessly proabor- Court’s jurisprudence, tion the first case in which, order to sustain upon governmental statute, the Court has relied interest by unasserted positively but repudiated. State, I shall invalidity discuss below the obvious of this statute (in A), assuming, first Part the fictitious state interest that (in B), the Court has invented, and then Part the interest actually recited the statute and asserted counsel for Colorado.
A It is not without reason Colorado claimed that, in at tributing to this statute purpose the false protecting citi right petitioners zens’ to be let seeking alone, were to dis credit it. ago, Just three Terms in upholding injunction an against antiabortion activities, rely Court refused to “ any supposed ‘right people approaching entering ” the facilities to be left alone.’ Schenck v. Pro-Choice Net work Y., Western N. U. S. It ex “ pressed “doubt” ‘right’... accurately that this reflects our
751 jurisprudence.” First Amendment Finding Ibid. itself in (the something jam of a passed regulation State here has obviously that is narrowly any tailored to advance other interest), today neatly the Court repackages repudiated the “right” an may as “interest” the protect, State decide to ante, at places 717, 24, n. and then the it onto opposite scales right the to free public in a traditional forum. support To legitimacy the of its self-invented state inter (which the upon est, Court relies a bon mot in a 1928dissent Schenck). evidently we overlooked in It characterizes the “unwilling listener’s avoiding interest unwanted communi ” cation” “aspect as an ‘right of the broader to be let alone’ Justice Brandéis coined in his dissent in Olmstead v. United States, 277 438, 478. U. S. amusing The feature is that even this slim reed contradicts supports rather than the Court’s position. right to be let alone Justice Brandéis right identified was a the Constitution against “conferred, as governmentit the right, was that generalized not some right” “common-law or “interest” to hearing be free from the opinions unwanted of one’s fellow citizens, which he called the comprehensive” “most and “most valued civilized Ibid, added). (emphasis men.” To the extent that there gleaned can be from our “right eases a to be let alone” in the sense that Justice right intended, Brandéis it is the speaker in the to government forum be free from in terference of imposed the sort Colorado has here. any
In event, the attempt disguise Court’s “right be let “governmental alone” as a protecting interest in right to be let unavailing alone” is simple for reason that this is not an interest legitimately weighed be against (which speakers’ First rights Amendment Court demotes the status of First Amendment “interests,” 714). ante, at consistently We have held that “the Constitu- permit tion government does not types decide which protected speech otherwise sufficiently offensive to re- quire protection unwilling listener or viewer” Erz- (1975) (emphasis Jacksonville, S.
noznik v.
U.
added).
recently
reiterated
Schenck, the Court
as
And
as
*41
public
“[a]s
that in
general
indicated
matter,
a
we have
insulting,
even
and
tolerate
our own citizens must
debate
outrageous,
breathing
adequate
provide
speech in
to
order
by the
Amendment.”
space
protected
First
to the freedoms
omitted).
(internal quotation marks
S., at 388
519 U.
cases
to
from our
purports
derive
The Court nonetheless
affords
limiting
protection
principle
the
the Constitution
a
messages” at “unwill-
right
speaker’s
the
to
“offensive
direct
There is
ing”
public
Ante, at 716.
in the
audiences
forum.
speak-
principle.
upheld
on
have
limitations
no such
We
public
right
speak
streets when
on the
er’s exercise of his
to
Frisby,
speech
privacy
the home.
intrudes
the
into
municipal ordi-
upheld
at
S.,
487 U.
content-neutral
dwelling.
or
prohibiting picketing
residence
nance
outside a
by,
narrowly
justified
and
The
we
was
ordinance,
concluded,
“protec-
government’s
in the
advance,
to
interest
tailored
.the
opinion rested
privacy.”
Id.,
tion
residential
at 484. Our
we
upon
“unique
home,”
said,
the
“the
home”;
nature
plainly as-
reasoning of the ease
“is different.” Ibid. The
right
law or other-
sumed the nonexistence of the —common
right
today,
free
to
wise—that
relies on
be
Court
speech
from
streets and side-
unwanted
when on the
“
walks.
retreat to which
noted,
The
we
was 'the one
home,
repair
escape
men
the tribulations
and women can
from
” Ibid,
Carey,
daily pursuits.’
(quoting
S.,
of their
447 U.
471).
speaker’s right
at
The
on a
bombard
limitation
approved
messages
the home
in
which we
unwanted
Frisby
Dept.,
in Rowan
There
apparently
no end to the distortion of our First
Amendment law that the
is willing
Court
endure
order
to sustain this
upon
restriction
the free
of abortion
opponents. The labor
particular,
movement, in
good
has
cause for alarm in the Court’s extensive
upon
reliance
Amer-
ican Steel
Tri-City
Foundries v.
Central
Council,
Trades
(1921),
are concerned: If a to actual following dogging,” short of portunity, id., 204, and part Amendment law in was of our infant First intimidation, today. to think it is there 1921, I am shocked “[n]one our has minimized decisions Court’s assertion right persist- enduring importance to ‘a be free’ from dogging’ ‘importunity, following an offer to after ent ante, at is declined,” been belied communicate has passage that this from American Foundries the fact Steel way any many its into has never—not once—found eases has since 1921. First Amendment this Court decided regret today’s injection irrele- will have to of this We cause anachronism into the mainstream of our First Amend- vant jurisprudence. ment accepted course even if one the American Steel Found-
Of expression dictum as an accurate of First Amendment ries pro- plainly narrowly law, the statute not tailored to here is Preserving tect interest that dictum describes. “right importunity, following “persisten[t] to be free” from remotely upon dogging” require imposing all does speakers duty protest, to educate, who wish or counsel request permission approach eight than feet. The closer only way narrow-tailoring objection can be eliminated posit First-Amendment-trumping “right a state-created, be let alone” broad and as undefined Brandeis’s as Olm- (why stead which if dictum, not, well the Court wishes it?) right spoken permission embrace a not to be to without *43 eight from a Nothing distance closer than feet. stands in way narrow-tailoring problem— of that solution to the except, absurdity, of course, its utter which is no obstacle in abortion cases.
B I turn now to the real state interest at issue here —the one set forth in the statute and asserted in brief: the Colorado’s preservation unimpeded to health care access facilities. (2) need look no We further than subsection of the statute to provision see what a would look like that narrowly is tailored to serve that interest. Under the terms of that subsection, any person “knowingly who obstructs, detains, hinders, im- pedes, or person’s blocks another entry to or exit from a health facility” care subject to criminal liability. and civil possible, It is suppose, (2) I that subsection of the Colorado statute will leave unrestricted expressive some activity that, engaged if eight from within may feet, be sufficiently har- assing as to have the effect impeding access to health care (3), In facilities. subsection however, the State of Colorado prohibited has a vast speech amount of possibly cannot be thought correspond to that evil. begin
To with, the 8-footbuffer zone attaches to every per- son on way or sidewalk within 100 feet of the entrance of a facility, medical regardless of per- whether that son is seeking to enter or facility. exit the In fact, the State acknowledged at argument oral that the buffer zone would any attach person within 100 feet of the entrance door of a skyscraper in which single doctor occupied an office on the 18th floor. Arg. Tr. of Oral 41. And even respect to those who are seeking to enter or exit the facilities, the statute does not protect them from that is so intimidating or threatening impede as access. Rather, it covers all uneonsented-to approaches purpose for of oral protest, or counseling education, (including those for made the purpose peaceful most appeals) perhaps and, even more significantly, every approach made purposes leafletting or handbilling, which we have never considered, standing alone, obstructive unduly sweep intrusive. The of this prohibition is breathtaking.
The Court makes no attempt justify on the facts this blatant violation of the narrow-tailoring principle. Instead, it flirts with the yet creation of a new constitutional “first” designed for abortion eases: says, “[W]hen,” it “a content- regulation neutral does entirely any foreclose means of communication, it satisfy the tailoring requirement even *44 though it the means is not least restrictive or least intrusive serving statutory goal.” implica- of the at The Ante, 726. availability tion is that the alternative means of communi- of permits imposition speech upon cation the of the restriction types more than nar- individuals, communication, more of tailoring row The assures would otherwise demand. Court emphasized” proposition us that have than “we this “on more provides, only occasion,” one ibid. The citation the Court says Against thing. no however, such v. Rock Rac- Ward quoted says ism, 491 S., 798, ante, U. at at n. 726, 32, tailoring synonymous that “least restric- narrow not my suggest tive” It does all alternative. not at —and knowledge tailoring case no other does either —that narrow can be when there relaxed are other alternatives. right speak imposes upon burdens this law despite attempt substantial, an them that is not to minimize they might suggestion even embarrassed make the that actually speakers’ “assist . . . efforts communicate messages,” their (Compare ante, at this with the 727. joined by Court’s statement in the author case, a nonabortion today’s opinion: “The First Amendment mandates that we presume speakers, government, know best both they say what say Riley want to and how to v. National it.” Federation N. C., Inc., Blind 487 U. 790-791 S. (1988).) displays type ignorance The Court willful and nature of communication affected re- statute’s seriously It example, strictions. asserts, the 8-foot speaker zone allows a to communicate at a “normal conversa- certainly tional distance,” ante, at con- 726-727. I have held eight quiet versations at a distance of feet in the seated my along chambers, but I have never walked side- “conversing” walk—and have an not seen others do so— sugges- 8-foot suggestion remove. The is absurd. is the So opponents tion that the of abortion can take comfort in the “places fact that the statute no limitation on the number of speakers including amplification or the level, noise use *45 equipment,” good enough, suppose, I ante, at 726. is That “protesting”; for but the Court must know that most of “counseling” “educating” likely place a and to take outside facility a health care cannot done at a and at be distance high-decibel availability powerful amplifica- level. The of a system help hopes tion will be little to the woman who to forge, last is moments before another of her sex intimacy might have an a bond abortion, of concern and persuade change enable her to the woman to her mind and alongside heart. The counselor wish to walk and to say, sympathetically softly and as the circumstances allow, as something “My you going dear, like: I what are know through. myself. through I’ve been it You’renot alone and you not do have to do this. There are other alternatives. you you? help May you Will picture let me I show a of what your stage develop- child looks like at this of her human ment?” The Court would have us that this can be believe effectively yea, effectively by done perhaps even more — — shouting through eight at a bullhorn distance of feet. prepared,
The Court moment, ante, seems if for a see seriously at magnitude 727-728,to take of the burden the imposes simple handbilling leafletting. statute and That fleeting, concern promptly assuaged by is however, since it is may, violating realization that a leafletter without path” oncoming pedestrians statute, stand “near the “proffe[r] make easily his pedestrians . , . . which the can accept,” orga- ante, 727. It does not take a veteran labor recognize although nizer to surely any would, see Brief for — American Congress Federation of Labor and of Industrial Organizations as leafletting Amicus Curiae 7-8—that will utterly be rendered requirement ineffectual that the leafletter subject permission obtain approach, from each (one stationary else man post that does not obstruct (2) statute) facility, access to the lest he violate subsection passersby and wait voluntarily approach an out- stretched simply hand. That it done, not how is and the
Court knows it—or should. A leafletter, whether he is
working
Operation
on behalf of
Rescue, Local 109,or Bubba’s
piece
stakes out the best
Bar-B-Que,
of real estate he can,
steps
and then walks a few
toward
passing
individuals
in his
vicinity, extending
arm
making
his
easy
it
'possible
as
as
passerby,
for the
whose natural
generally
inclination is
to seek out
simply
such distributions, to
accept
offering.
pedestrians
likely
give
Few
their
ap-
“consent” to the
proach
(indeed, by
of a handbiller
requested
the time he
they
likely
passed by),
would
have
and even
likely
fewer are
to walk over in
pick up
order to
a leaflet.
In the abortion
*46
context,
ordinary
therefore,
handbilling, which we have in
recognized
other contexts
to be a
for[m]
“classic
speech
of
lie[s]
at the
heart
First Amendment,” SckencJc,
The Colorado
differs in one
respect
fundamental
from the
place,
time,
“content-neutral”
and manner restric-
tions the
previously
Court
upheld.
has
Each of them rested
upon necessary
a
regulated
connection between the
expres-
sion and
challenged
the evil the
regulation sought to elimi-
nate.
for
So,
in
Against
instance, Ward v. Rock
Racism, the
approved
Court
city’s
the
control
amplification
over sound
every
because
amplified
occasion of
presented
sound
the evil
of excessive noise and distortion disturbing the areas sur-
rounding
the
regulation
forum. upheld
we
in
Ward,
“ban[ning]
rather than
all concerts, or even all rock
concerts,...
foeus[ed]
instead
on the source of the evils the
city seeks to eliminate . . . and eliminates them without at
the same
banning
time
significantly
or
restricting a substan-
quantity
tial
that does not create the same evils.”
491
S.,U.
at 799, n. 7.
In
City
Members
Council Los
Angeles Taxpayers
(1984),
Vincent,
759 sought remedy.” evil In v. International Heffron Soc. Consciousness, Inc., Krishna S. U. (1981), upheld prohibiting regulation Court the sale or fairgrounds any distribution on the state merchandise, including printed except material, written from a fixed precisely location, because' that served the State’s interest “avoiding congestion maintaining orderly movement patrons of fair fairgrounds.” on In contrast to approved the laws in those the law cases, before us here prophylactic enacts broad restriction which “respon[d] does precisely problem to the substantive legitimately eoncern[ed]” which swpra, State, Vincent, (the namely Colorado), problem asserted 810— obstruction of access prophylactic to health facilities. Such restrictions in the First Amendment context—even when they permissible. are pro content neutral —are not “Broad phylactic rules expression suspect.... the area of free regulation Precision of must be the touchstone in an area so closely touching precious our most freedoms.” NAACP v. Button, 871 415, 438 U. S. In Grace, United States v. (1983), 461 U. S. uphold we declined to ban certain expressive activity surrounding on the sidewalks the Su preme The purpose Court. per the restriction was the *47 fectly valid just interest in security, purpose as the of the restriction perfectly here is the valid interest in unob structed and access; there, as here, the restriction farthered that interest —but it precision furthered with insufficient and hence at excessive cost speech. to the freedom of There was, we said, “an security insufficient nexus” between and all expressive the activity just banned, id., that'was at 181— as here there is an insufficient nexus between the assurance of access forbidding and unconsented communications within eight feet.4 4 ante, Court’s 730, suggestion, at the imposed by restrictions the Colorado ban are unobjectionable because they “interfer[e] far less
with a speaker’s ability to communicate” than the did involved regulations
Compare with
descriptions
these venerable and consistent
of our First Amendment law the defenses that the Court
present
makes to the contention that the
statute is over-
(To
broad.
assuming
be
the
sure,
Court is
its own invented
protection
“right
state
to be let alone”—
interest —
rather than the
describes,
interest that the statute
but even
so
extraordinary.)
the statements are
“The
fact,”
Court
says,
coverage
“that
spe-
of statute
broader
is
than the
cific concern that led to
its enactment is
no constitutional
significance.”
enough
Ante, at 730-731. That is true
ordi-
narily,
respect
upon
but it is not true with
to restraints
speech, which what
the doctrine
overbreadth is all
(Of
about.
course it is
true,
also not
thanks to one of the
proabortion
other
“firsts” announced
the current Court,
respect
upon
to restrictions
abortion, which—as our de-
Stenberg
post,
cision in
p.
exemplifies
Carhart,
v.
—has
been raised
op-
to First
speech
status,
Amendment
even as
posing abortion has been demoted from First Amendment
status.) Again,
says
the Court
that the overbreadth doc-
applicable
trine is
simply
not
because this law
“does not han5
any signs,
“merely
literature, or
regu-
oral statements,” but
places
lates
where communications
Ante,
occur.”
precedent
I
731.
know of
proposition
no
that time,
place, and manner
subject
restrictions are
to the
doctrine
of overbreadth.
supra,
Our decision in Grace,
demonstrates
contrary:
speech
Restriction of
on the sidewalks around
Schultz,
Frisby
v.
Heffron,
(1988),
U. S. 474
in cases requir
ing “silence” outside of a hospital (by which I presume the Court means
Madsen Center, Inc.,
Women’s Health
(1994)),
The Court can support approval derive no for its of Colora- do’s prophylactic overbroad measure in from our decision Schenck. To rejected argument sure, be there we the that injunction the court demonstrating within a buffer fixed zone around clinic entrances was unconstitutional because “'peaceful, banned even nonobstructive demonstrations.’” S., 519U. at upheld injunction, 381. The Court the however, because “District Court was entitled to conclude,” “[biased past on defendants’ conduct” and “the record in [that] specific ease,” that the if would, defendants involved permitted within they zone, buffer to “continue do what had done aggressively before: follow crowd individuals right up to the clinic pur- door and then to or move, refuse posefully mill parking around lot in an to entrances effort impede or block progress Id., ears.” It 381-382. thing is one to assume, in prophylactic Schenck, as that a injunction necessary is specific targets when the of that measure have inability unwillingness an demonstrated engage protected speech activity engaging without also conduct that the clearly protect. Constitution does not It is something else to speak assume that all who those wish to outside health care facilities across similarly the State will rights abuse permitted their if to exercise them. The First Amendment stands as a bar exactly type prophy- this legislation. lactic improve upon I cannot the Court’s conclu- sion in Madsen justify “it is prohi- difficult, indeed, bition on all approaches persons uninvited seeking services of the regardless peaceful clinic, how contact may be, without burdening speech necessary more than prevent intimidation and to ensure to the access clinic. Ab- sent protesters’ evidence independently
762 (i. proseribable 'fighting e., threats), words’ or or is so infused with violence as to be indistinguishable from a threat of physical harm, provision this cannot stand.” 512 S., U. at (citation omitted).
The foregoing discussion of overbreadth was written be- fore the Court, in responding to Justice aban- Kennedy, any pretense doned at compliance with that doctrine, and acknowledged indeed, boasted—that ap- statute it — proves prophylactic “takes a approach,” ante, at 729, and adopts “[a] bright-line prophylactic rule,” ibid.5 scarcely I respond know how to to such an repudiation unabashed our First Amendment Prophylaxis doctrine. is the antithe- sis of narrow tailoring, as the quoted previously passage (“Broad from Button makes clear prophylactic rules in the area of expression free suspect.... regula- Precision of tion must be the touchstone in an area closely so touching our precious most 438). freedoms.” 371 U. S., at If the Court were going to make this concession, it simply could dispensed have with its (unpersuasive) earlier attempt to show that the statute narrowly was tailored. So one can add to the casualties of our proabortion whatever-it-takes jurisprudence the First Amendment doctrine of narrow tai- loring and overbreadth. R. I. P. ‡
% # it effectively Before threw in the towel on the narrow- tailoring point, the Court importance asserted the of taking 5 Of course the Court greatly understates scope the prophylaxis, saying that “the statute’s prophylactic aspect justified by great dif ficulty of protecting, say, a pregnant woman from physical harassment with legal rules that focus exclusively the individual impact each instance of behavior,” ante, at 729. But the prevents statute the “phys ically harassing” (shudder!) act of approaching within closer than eight feet not only when it is directed against pregnant women, but also (just safe) to be when it is directed against 300-pound, male, and unpregnant truck surely distinction that is not “difficult to make accu drivers — rately,” ibid. place regulations apply “‘the into account to which the determining whether these burden more restrictions ” necessary.’ (quoting supra, Ante, than at Madsen, 772). proper regard “place” A for the involved this ease anything, should result if in, commitment this Court rigorously speech-protective to adhere to and our enforce public standards. The forum involved here—the *50 spaces by outside of health care facilities—has ne- become, cessity by and virtue of this decisions, Court’s a forum of oppose last resort for those who possibility abortion. The limiting by legislative abortion means—even abortion live-and-Meking a child that entirely is almost out of the impossible by womb—has been rendered our decisions from (1973), Roe v. Wade, 410 U. Stenberg S. 113 Carhart, post, p. abiding 914. For those who an share moral or reli- (or, gious simply biological that ap- matter, conviction preciation) taking that abortion is the life, a human there option persuade no by is but to women, one to make one, not general that choice. And as matter, the effective most place, only place, if persuasion not the that where can occur is By outside the upholding entrances abortion facilities. place these restrictions on this ratifies Court attempt the State’s to make impossible even that task an one. Those whose physical security concern is for the safety and patients, of clinic workers, and doctors should take no com- today’s fort from groups decision. Individuals or intent on bullying frightening or women out of an abortion, or doctors performing out of procedure, that by will not be deterred Colorado’s statute; screaming eight bullhorns and from feet away will purposes serve their well. But those who would accomplish religious objectives by their peaceful moral and and by trying civil means, to persuade individual women of rightness of their cause, will be deterred; and that is not good thing democracy. ain recognized, This Court once as the surely Framers speak did, that freedom to persuade inseparable from, and antecedent to, the survival self-government. today The Court rotates that essential
safety valve democracy on our right, one-half turn to the no one who seeks safe access to health care facilities in Colo- rado elsewhere security should feel by that her has this decision been enhanced.
It is interesting to compare present decision, which upholds utterly an proabortion bizarre “request ap proach” provision of Stenberg, post, law, Colorado p. 914, also today, announced which strikes down a live-birth abor prohibition tion adopted by 30 passed States and by twice both Congress Houses of (though vetoed both times President). present The disregards ease the State’s own as purpose sertion of the proabortion of its posits law, and in a purpose stead that the Court believes will likely more be render the law Stenberg rejects constitutional. the State’s assertion very meaning of its antiabortion law, and declares meaning instead a that will render the law meonsti- tutional. present rejects case challenges overbreadth proabortion to a regulates law speech, grounds *51 support no have in our prior jurisprudence instead amount to a repudiation total of the doctrine of overbreadth. Stenberg applies analysis overbreadth to an antiabortion law nothing that has speech, to do with though eight even until years ago overbreadth was unquestionably pre the exclusive serve of the First Amendment. See Janklow v. Planned Parenthood, Sioux Falls Clinic, 517 U. S. 1174, 1177-1181 (1996) dissenting J., certiorari); from denial of Ada (Scalia, v. Guam Soc. Gynecologists, Obstetricians & 506 U. S. of (1992) 1011, 1013 dissenting J., from denial of (Scalia, certiorari).
Does the deck seem stacked? sug- You bet. As I have gested throughout opinion, today’s this decision is not an iso- lated distortion of our traditional principles, constitutional but many is one of aggressively proabortion an- novelties by nounced years. Court in g., recent See, e. Madsen v.
Women’s
Center,
Health
(1994);
Inc.,
Justice dissenting. century holding than a half more The contradicts Court’s principles. For First Amendment of well-established private bars a approves a law which first the Court time, message, peaceful manner and on passing from in a citizen public side- profound to fellow citizen on a issue, moral grave repeats its the Court If from this time forward walk. proud analysis, longer the tradi- no errors of we shall have my open In in a forum. tion of free and discourse analysis is correct Amendment view, Justice Scaua’s First to undermin- outright In addition and mandates reversal. ing principles, the Court’s established First Amendment joint opinion decision conflicts with the essence of Casey, 505 U. S. Planned Parenthood Pa. v. Southeastern appropriate seems in these circumstances It conclu- Amendment reinforce Justice Scalia’s correct First my and to sions set forth own views.
I
Against
The
uses the
Rock
Court
framework of Ward v.
(1989),
Racism,
of the ease.
A The statute makes it a criminal offense to “knowingly ap- proach person another eight within person, feet such un- less person such other consents, for purpose of passing a leaflet or handbill to, displaying sign to, or engaging in protest, oral education, or counseling with person such other way or sidewalk area within a radius of one hundred feet from any entrance door ato health care facil- ity.” Colo. §18-9-122(3) (1999). Rev. Stat. The law im- poses content-based restrictions by reason of the terms it uses, categories employs, and the conditions for its enforcement. It is content by based, predict- too, its able and operation. intended particular Whether messages violate the statute is determined their substance. The prime is a law example of a inviting statute screening and censoring of speech; individual and it is serious error to hold otherwise.
The Court errs in asserting the Colorado statute is no dif
ferent from laws sustained as content neutral
in earlier
prohibitions
cases. against “picketing” and/or “leaflet
ing” upheld Frisby
v. Schultz,
(1988),
The statute reason: is content based for an additional speech particular topics. course, the enact- restricts on Of counseling” any protest, education, ment “oral or on restricts subject; application neu- a statute of is not content but broad speaker’s message. tral if its terms control the of a substance protest, counseling every subject If oral or education, public, present danger the stat- within an 8-foot zone to the apply every building ute in the State. It should to entrance applies special of locations: en- does not. It class buildings trances to with health care facilities. We would eyes reality deny protest, close our were “oral we counseling” or outside the entrances to medical education, range topic topics facilities concern a narrow one indeed, — particular. By spe- application confining the law’s to the prohibited occurs, cific locations where the discourse has The State made a content-based determination. Court ought acknowledge. to so Clever content-based restrictions censoring are no less offensive on the than basis content. g., e. See, If, United States 496 S. 310 Eichman, U. just ago, enforcing history a few decades a State with a reg- racial one, discrimination had like this enacted statute ulating protest, counseling” “oral or within education, any predecessors feet of the counter, entrance to lunch our would not have hesitated hold it was content based viewpoint profound disappointment to based. It should be a today defenders of the re- First that the Amendment Court apply analysis fuses to the same when the structural palatable involved less to it. irony, Court, error and validates the Colorado stat-
ute purports because it to restrict all proscribed of the expressive activity regardless subject. The even- *54 handedness the Court finds so satisfying, however, is but disguise a glaring for a First Amendment violation. The by citing Court, the breadth the escape statute, cannot the conclusion that categories its are nonetheless content based. liberty The society a is measured in part by what its citizens are among free discuss themselves. Colorado’s scheme of disfavored-speeeh zones and streets side- walks, and the opinion Court’s validating them, are antitheti- cal to our entire First Amendment say tradition. To one citizen approach can 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 question discourse, a profound touching ideas in philosophy theology, is an as- tonishing view of the First Amendment. For majority the to examine the statute applicable under rules to content- regulations neutral is an affront to First Amendment teachings.
After the Court errs in finding the statute content neutral, compounds finding mistake the law viewpoint neu- Viewpoint-based tral. rules speech invidious restric- yet tions, the Court approves this purpose one. The design of the everyone statute —as ought to know and as its own urge defenders attempted justification to re- —are speakers strict on one side protest debate: those who abortions. The applies only statute to medical facilities, a yet convenient obvious legislature’s mask for the pur- true pose prohibition’s and for true effect. One need read no further than preamble the statute’s any remove doubt question. about the The Legislature Colorado sought to re- person’s right strict “a protest against counsel certain procedures.” medical 18-9-122(1) § Colo. Rev. Stat. The “against” word reveals legislature’s desire to restrict regarding on one side of the issue “certain medical discourse testimony Legislature procedures.” to the Colorado entirety, in its almost of debates and controversies consisted, majority respect point acknowledges. a abortion, legislature’s purpose unpopu- Ante, at 715. The to restrict beyond dispute. lar should be objective. operation The statute’s reflects its Under the interpretation speaker a law, most reasonable if Colorado’s any approaches a fellow citizen within one of thou- Colorado’s disfavored-speech praise sands of zones and chants in Supreme Court and its abortion I should decisions, think counseling. protest, there is neither nor education, nor If opposite message prosecu- communicated, is however, punish protest antispeeeh tion to dis- warranted. The pertains approaches public tinction also if citizen official *55 visiting facility point a health care to make favor of abor- rights. says, job, tion If she no Governor,” “Good there is says, you, if she on violation; Governor,” “Shame there is. speaker Furthermore, if the a woman who is con- addresses sidering says, just an abortion and to “Please take moment support read these brochures and call our line to talk with your speaker situation,” women who have been in would penalties counseling. speaker face criminal Yet if the says, simply rights,” “We are for abortion think I should this counseling. is neither education nor Thus does the Court today praised ensure its own can be but not decisions con- speech designed demned. Thus it restrict does to teach that right necessarily the exereise a of constitutional is not con- making Nothing comitant with a sound moral choice. in our law or our enviable free tradition this sustains self- serving punish speech rule. is now allowed Colorado be- viewpoint. cause of its content and again The Court time and has held content-based or viewpoint-based regulations presumptively to be invalid. McIntyre Comm’n, See v. Ohio 514 Elections U. S. 334, (1995); (1992); 345-346 A Paul, 377, R. V. v. 505 382 St. U. S. TÍO
Simon & Schuster, Inc. v. Members N. Y. State Crime
of
(1991) (“
Victims Bd., 502 U. S.
‘Regulations
105, 116
which
permit the Government to discriminate on the basis of the
content of
message
cannot be tolerated under the First
”
Amendment’
(quoting Regan
Time,
v.
Inc.,
771 B precedent learn we glaring departure from In a further speech unpopular today right a to avoid that citizens have public For reasons Ante, at 716-717. in a forum. Justice Bran- neither explains convincing fashion, Justice in Scalia States, 277 dissenting opinion v. United déis’ in Olmstead (1928), opinion in American nor the Court’s 438, U. S. Tri-City Council, 257 Trades Steel Foundries v. Central (1921), right free from unwel- to be U. S. 184 establishes pub- expression a traditional aired a fellow citizen in come permit a does not “The lic forum: Fourteenth Amendment unpopular expression of peaceful make the State to criminal 229, Carolina, 372 U. S. views.” Edwards v. South Dept., 397 The Court’s reliance on Rowan v. Post Office (1970), S. 205 Jacksonville, 422 U. U. S. 728 and Erznoznik v. (1975), allowing inapt. statute a federal Rowan involved mailing from commercial individuals remove their names infringed upon their lists. Businesses the statute contended private citi right First to communicate with Amendment challenge, reasoning the rejected zens. The Court over First some control Amendment affords individuals messages enter commercial what, and how often, unwelcome private at did S., 736, 738. their Rowan residences. 397 U. contrary today’s opinion, ante, hold, see to statements permits government that the First Amendment private public Indeed, to restrict in a forum. recognized everyone, today, un Court Rowan what before ‘captives’ “[W]e derstood to be true: are often outside sanctuary subject objectionable speech of the home and other sound at 738. S., ....” U. municipal ordi-
In Erznoznik, struck down Court prohibiting nance visible from either drive-in movie theaters showing public place street or a films contain- from ing nudity. imposed a concluded, ordinance, Court upon speech and was both too restriction content-based *57 772
broad and too
narrow serve the interests
asserted
municipality. 422
S., at
U.
211-215.
law,
The
moreover,
was
analogous
to the rare, “selective
restrictions”
speech previously upheld
protect
privacy.
individual
Id.,
(citing
at 208-209
discussing
supra,
Rowan,
and Lehman
Heights,
(1974)).
Shaker
Today’s decision is unprecedented an departure from this teachings Court’s respecting unpopular speech fora.
1—1 HH The Colorado statute offends settled First Amendment principles in another respect. fundamental It violates the prohibitions constitutional against vague overly or broad criminal regulating statutes speech. The enactment’s fatal ambiguities multiple and interact to create further im- preeisions. The result is a vague law more and overly broad any than criminal statute the Court has sustained per- as a regulation missible speech. The imprecisions statute’s are so evident that ought this, too, to have ended the case without further discussion.
The law makes it a criminal offense to “knowingly ap- proach person another eight within feet person, of such un- less such person other consents, purpose passing or leaflet handbill displaying to, sign engaging to, in oral protest, education, or counseling with such person other public way or sidewalk area within radius of one hun- dred feet any from entrance door to a health facility.” care §18-9-122(3) (1999). Colo. Rev. Stat. operative terms phrases of the statute are not defined. The case comes *58 system; courts and as the Colorado from the state court to us narrowing construction, give a sufficient did not the statute vagueness should be addressed questions and overbreadth Cincin- by Coates v. in the first instance. See this Court (1971). 611, 613-614 nati, U. S. penalties imposing criminal for of a law
In the context “counseling” imprecise is speech, “protest” word; an pure is No imprecise an word. imprecise “education” is word; an authority gives legal these terms the or tradition, custom, prohibition on required a criminal specificity to sustain majority’s simply disagree estimation speech. with I “anyone “quite would not understand remote” that that it is any Ante, The criminal words.” at 732. of those common subject manipulation police, prosecutors, and is to statute impreeisions speech, juries. will chill so the Its substantial Kolender v. violates the First Amendment. Cf. statute (1983); Lowry, Herndon v. Lawson, 352, 358, 461 U. S. 263-264 301 U. S. arbitrary operation effects
In the statute’s inevitable problems 8-foot no- vagueness their own. The create speech. approach it will chill Assume zone so unworkable building points persons are about to enter a from different walking sign protester is and forth with a or and a back attempting stops she to create to hand out leaflets. If pedestrian, per- other 8-foot zone for one she cannot reach message; yet moves to maintain the 8- sons with her if she may trying patron move zone while to talk to one she foot facility attempting patron knowingly to a enter the closer requires addition, a In the statute from different direction. give exhibitor of affirmative consent before the a citizen dealing approach. sign can When a or the bearer of a leaflet building’s strangers walking a entrance, fast toward ambiguous ground mixed there is a answers and middle misinterpretation subject good-faith signals in which can speaker liability. give The a re- to criminal mere failure to give action, instance, is a consent. These ele- failure ments ambiguity compound Finally, others. as we all identity know, the enterprise occupants of a build- ing which fronts on a always street is known to public. providers Health care may occupy single but office large building. The Colorado citizen walk from a disfavored-speeeh zone to a free zone with little noor ability to discern when one ends and the begins. other vagueness statute’s thus becomes as well one source of its overbreadth. The way sure violating avoid the law is to refrain from picketing, leafletting, or advocacy oral alto- gether. Scienter cannot vague save so a statute as this. *59 vague
A statute is
when the conduct it forbids is not ascer-
tainable.
Chicago
See
v.
(1999).
Morales, 527 U.
41,
S.
56
“[People] of commonintelligence
required
cannot be
guess
to
at the meaning of the enactment.” Winters v. New York,
338 U.
S.
The
protest,
terms “oral
educa-
tion, or counseling” are at
imprecise
least as
as
pro-
criminal
hibitions
speech
on
the Court has declared void
vague-
past
in
ness
decades.
In Coates v. Cincinnati,
The
for statutes that
public expression
criminal sanctions on
was established well
before
Hill,
Coates and
of course.
In
Carlson California,
(1940),
Rather than rule, adhere to this the Court turns onit its stating the head, statute’s is “a overbreadth not a virtue, goes Ante, vice.” at 731. Court praising even further, “prophylactic approach; the statute’s all forbids unwelcome *60 eight demonstrators to come closer than feet.” at Ante, 729. “bright-line Indeed, prophylactic view, rule[s] Court’s may way provide be protection” the best to those individ- unwilling uals message to hear a fellow citizen’s in a quite forum. wrong. Ibid. The Court is a Overbreadth is saving constitutional flaw, not a Sweeping feature. within protected its ambit speech even more does not save crimi- nal statute invalid in design. its essential reach and The Court, moreover, cannot meet concern that the statute vague; is for neither the Colorado courts nor established legal principles satisfactory guidance offer interpreting impreeisions. the statute’s
III Even aside from the erroneous, most disturbing assump- tions that the statute is content neutral, viewpoint neutral, and neither nor vague overbroad, the Court falls into further serious error when it turns to time, place, manner set forth in Ward. rules
An essential under Ward is that requirement the regula- tion in question “burden more substantially than speech to further necessary the government’s legitimate inter- ests.” S.,U. at 799. As we have seen, however, Colo- rado and the Court attempt justify the law on just opposite assumption.
I have explained how the already statute is a failed at- to make tempt the enactment content appear neutral, a dis- for the real guise concern of the legislation. The legislature as well have enacted statute “oral subjecting protest, education, or near abortion counseling clinics” to criminal Both penalty. the State and the Court attempt sidestep the enactment’s obvious content-based restriction by prais- the statute’s ing breadth, us all by telling topics conversa- tion, not just discourse on abortion, are banned within the statutory The proscription. feature the saving Court tries to grasp creates simply additional free speech infirmity. Our do precedents not permit content be censoring to cured even by taking more protected speech within a statute’s reach. The statute before us, as construed by the majority, would do just that. If it indeed proscribes “oral protest, education, or on all counseling” subjects across the board, by definition becomes “substantially broader than necessary to achieve the government’s Id., interest.” 800.
The whimsical, arbitrary nature the statute’s operation is further demonstration of a restriction more upon than necessary. of happenstance dental office being located in a building brings zone restricted-speech into *61 If play. the same also an building houses dedi- organization say, protest cated, to against issues, environmental the group’s policies would be if, barred. Yet on the next block enterprise there were a interest building in a with no speech health care facility, the would be unrestricted. The example is a proscription statute classic of a narrowly not resulting tailored and in speech restrictions of far more than necessary legislature’s to object. achieve The first time, place, requirement and manner of Ward cannot be satisfied.
Assuming Colorado enacted respond statute to inci- dents disorderly and unlawful conduct near abortion clin- ics, there were restricting alternatives to speech. It is be- yond dispute pinching shoving or hitting battery or ais under actionable punishable the criminal law and as a crime. State courts have also found an actionable tort when there is touching, done an object offensive closely manner, of an body, identified even if it is clothing body or the g., itself. See, e. Fisher v. Carrousel Hotel, Motor Inc., 424 (Tex. 1967) (“Personal S. W. 2d indignity is the es- battery; sence of an action for and consequently the defend- ant is liable not for contacts which physical do actual harm, but also for those which are insulting” offensive and (citing (1956))). Prosser, Insult Outrage, & 44 Calif. L. Rev. very The statute before parts, us, in its other pro- includes a ensuring vision aimed at access to health care facilities. imposes The law upon criminal any person sanctions who “knowingly obstructs, impedes, detains, hinders, or blocks person’s entry another facility.” exit from a health care §18-9-122(2) (1999). Colo. Rev. Stat. these With means available ensure access, overreaching statute’s regulation again apparent. becomes majority insists the aims to protect distraught statute women who they embarrassed, vexed, or harassed as at- tempt to enter abortion punishable elinics. If these are acts, they prohibited should be in those terms. In the course praising approach, majority Colorado’s pause does not why, tell us in its substantially view, less restrictive means *62 778 employed
cannot be to ensure citizens access to health care prevent physical facilities or to contact between citizens. The approach Court’s rigor is at by odds with the demanded (“Government Ward. See 491 may regulate S.,U. at 799 not expression in such a manner that a portion substantial of the speech burden on does not goals”). to serve advance its There are further prophylactic errors in the novel, Court’s analysis. prophylactic theory The seems to be based aon supposition that approaching most citizens a health care fa cility unwilling are to message listen ato fellow citizen’s and that face-to-face communications will lead to lawless behav power ior within punish. the premises of the State to These support have no in law or in fact. And even when there is authority adopt preventive to measures, of course, the First speech Amendment does prohibition not impre allow a in an overly cise or broad Alabama, statute. Cf. Thornhill v. (1940)(“The U. 88, 105 S. power duty and the the State to adequate take steps preserve peace protect and to privacy, the lives, the property of its residents cannot be doubted. But no present danger clear and of destruction of life property, or right privacy, invasion of the or breach peace of the can thought be to be inherent in the activities every person approaches who premises employer of an publicizes the facts dispute of a involving labor the lat ter”). places The Court speech our grave free traditions in jeopardy by licensing legislatures adopt “bright-line pro phylactic rule[s] provide protection” ... unwilling quintessential listeners in public Ante, forum. at 729. The Court’s lack of concern with the flaws statute’s is ex- plained part in by disregard its importance of the of free discourse and exchange in a of ideas traditional precedents forum. Our have protec- considered the level of tion speech specific afforded locations, but the rules for- mulated in those today. decisions followed “To ascertain any, what placed protected limits, if be on speech,” precedents our instruct “we have focused often on ‘place’ speech, of that considering the nature of the forum speaker [T]he seeks to employ,. . . standards which speech limitations on must be evaluated depending ‘differ ” the character property at Frisby issue.’ Schultz, S., 487 U. 479 (quoting Perry Perry Ed. Assn. v. Local (1983)). Educators’ Assn., 460 U. S. quoted lan- guage was part holding of our important an free *63 case; and a holding it is the majority disregards.
Frisby upheld municipal a restricting targeted ordinance picketing in primary residential areas. The purpose of the ordinance, and a reason the Court sustained pro- it, towas tect preserve tranquility private pri- homes. The vate location at respondents which sought engage in their expressive activities throughout was stressed the Court’s opinion. (“[W]e See 487 U. atS., 483 construe the ban to be limited one; picketing taking place solely focused in particular front prohibited”). “Although residence is in many locations,” the expect Court “we reasoned, individuals simply to speech they avoid do not want to hear, the home is different. ‘That “captives” we are often outside the sanc- tuary of the subject objectionable home and . . . does not mean we captives everywhere.’” must be Id., at 484 (quoting 738). Rowan Dept., v. Post 397 S., U. at Office The Colorado law protect private does seek to resi dences. Nor does impose place enactment restriction upon expressive activity undertaken property, such as fairgrounds, designated special for purposes. limited, See, g., e. v. International Soc. Krishna Conscious Heffron for ness, Inc., 452 U. S. 640, 655 applies The statute public streets and public sidewalks, traditional fora which “ ‘time out of mind, purposes have been used for assembly, communicating thoughts between discussing citizens, public questions.’” See 485 Boos, S.,U. at (quoting 318 Hague v. Organization, Committee Industrial 307 U. S. for (1939) J.)). (opinion 496, 515 of Roberts, Given our traditions respect open discussion in fora, statute, this
780 sweeps largely freedoms, can- which so on First Amendment not be sustained. Ward, it does not
The statute fails test under for a further open ample “leave for communication alternative channels (quoting Clark v. U.S., at 791 information.’” Community 288, 468 U. Non-Violence, Creative S. for (1984)). again Frisby reason we A second instructs us. targeted picket- banning residential sustained ordinance ing alternativ[e]” “ample for was because avenues communi- open: cation remained
“ ‘Protestors from the residential have not been barred neighborhoods. They neighborhoods, may enter such They may go groups, marching. or alone in even . . . They may proselytize dis- door-to-door to their views. through the tribute manner literature this ... They telephone, mails. short contact residents ” (quoting Brief S., harassment.’ 483-484 U. 41-42). Appellants pp. 87-168, No. O. T. *64 picketing concluded, residential the ordinance, Court “permit[ted] message” general the of more dissemination a targeted to the audience. at 483. S., 487 U.
The same conclusion cannot be here. Door-to- reached mailing telephone campaigns door distributions or mass or are not effective alternative avenues of communication for petitioners. They engage peaceful want in face-to-face to petitioners communication with the believe are individuals profound wrong. about to commit a moral Without the abil- ity person, momentarily, to interact in with a clinic however patron very might place near the where a woman elect using an strips petitioners receive of abortion, the statute speech place, pro- the the time, and manner most vital to expression. tected leaving petitioners adequate
In addition to means without peaceful leafletting, a communication, law forecloses speech history deep mode and roots in our Nation’s age In traditions. an when vast resources and talents are sophisticated shape opinions commanded media to subjects limitless ideas, distribution on a leaflets antiquated. sidewalk seem a proves bit This case necessity for the speech. traditional mode of It must re be membered that the whole course our jurispru free sustaining dence, open the idea of discourse which is the hallmark of system, the American constitutional rests to significant involving extent picketing on cases and leaflet- ting. Our foundational First Amendment cases are based recognition on the subject that citizens, exceptions, rare great must be able to issues, discuss small, through the expression they means of deem best purpose. suited to their speaker, It government, is for the not the to choose the best expressing message. means of “The First Amendment,” “protects [citizens’] our cases right illustrate, not to ad vocate cause they their also but to select what believe to be the most doing.” Meyer effective means so Grant, v. 414, 424 U. S. The Court’s conclusion that Colorado’s no-approach 8-foot protects zone ability citizens’ to leaflet or engage peaceful otherwise protest is untenable. holding,
Given Court’s necessary it is our recall protecting cases right protest and hand out leaflets. City In Lovell (1938), 303 U. Griffin, S. 444 the Court invalidated an forbidding ordinance the distribution of litera- any ture of kind permission without the city written of a liberty official. “The press,” explained, the Court “is newspapers confined to periodicals.” Id., at 452. necessarily “It pamphlets embraces and leaflets. These in- deed have weapons been historic liberty, in the defense of as pamphlets of Thomas Paine and others in our own his- *65 tory abundantly press attest. in its historic connotation comprehends every publication sort of which affords vehi- a cle opinion.” of information and Ibid. (Town In Schneider v. Irvington), State 308 U. S. of
(1939),reinforcing Lovell, the Court struck down a series of of handbills the prohibiting distribution municipal ordinances littering. preventing of rationale the public streets on on may enjoy not a citizens that while clear made Schneider they accept do unwilling leaflet, a person to right force an to a stressed right it. The Court protected to tender a have “[T]he streets natural precept: First Amendment basic and of information the dissemination proper places for and liberty his of of the exercise opinion; not to have one is and abridged plea it places appropriate the expression in place.” S., 308 U. 163. in some other be exercised century ago a demon- more than half the Court words of Hie today: principles necessity to those to adhere the strate public, have “Municipal authorities, as trustees for the open and keep streets duty to their communities’ the pri- property, people and of for movement available mary are dedicated. So purpose to the streets which abridge the con- long legislation end does not to this as upon liberty rightfully to the street of one stitutional speech through or distribution impart information regulate may lawfully the conduct those literature, example, person ex- For a could not using streets. liberty by taking in the middle of his stand ercise this contrary and regulations, to traffic street, a crowded position stoppage traffic; all his maintain upon group not insist a constitu- of distributors could right the street and to to form a across tional cordon accept pass ten- pedestrian not who did allow no guarantee freedom of does the leaflet; dered nor power deprive municipality press speech or of the against throwing regulations broad- literature to enact such would cast in the streets. Prohibition of conduct activity liberty abridge constitutional since such necessary speak, relationship freedom bears no print opinion. write, or distribute information “This court has characterized the freedom of rights press personal as fundamental
783 phrase liberties. The empty is not an one and was not lightly It used. reflects the belief the of framers of the Constitution that exercise of rights lies at the foun- government dation by of free free It men. as stresses, many opinions do of importance court, this pre- of venting the enjoyment restriction of of these liberties. every
“In case, legislative abridg- therefore, where rights ment of the is asserted, the courts should be as- tute to examine the effect of the challenged legislation. legislative Mere preferences or respecting beliefs mat- public ters of convenience support well regulation directed personal at other activities, but be insufficient to justify such as diminishes the exercise rights so vital to the maintenance of democratic institutions. And so, arise, as cases the delicate and difficult task falls upon the courts weigh ap- circumstances and to praise substantiality of the sup- reasons advanced port regulation of the enjoyment of the free (footnote rights.” omitted). Id., 160-161 After Lovell and Schneider gave the Court continued, ex- plicit definition to our practice custom and open of free and by discourse picketing leafletting. and In Thornhill v. Ala- (1940), bama, 310 U. S. the Court considered First challenge Amendment to a prohibiting statute “‘[ljoitering ” “ picketing’ or premises near ‘the place or of business any corporation, . . . firm, or people, association engaged ” in a lawful Id., business.’ at 91. Petitioner was arrested, charged, violating convicted engaging statute peaceful picketing in front a manufacturing plant. Id., at 94-95. The Court invalidated the Alabama statute. The breadth of Alabama’s restriction was reason one ruling it just invalid on its face, as it should be for the statute today: we consider
“[Alabama §] Code applied by has been the state prohibit courts single so as to walking individual from slowly peacefully back and forth side- premises walk in front of the employer, of an without speaking anyone, carrying sign placard on a staff *67 above stating his head the fact that the employer employ did not union men affiliated with the American purpose Federation of Labor; the of the activ- described ity concededly was to advise customers prospective and relationship of customers the existing between the em- ployer employees and its thereby and to induce such cus- patronize tomers not to employer.” the Id., at 98-99 (footnote omitted). prohibited statute, short, in “whatever the means used publicize the dispute, facts of a labor whether printed
sign, by pamphlet, by word of mouth or otherwise ... so long as it in vicinity occurs the of the dispute.” scene Id., at 101.
The Court followed these observations explication with an speech of fundamental free principles I thought would have controlling present in the case:
“It does not follow that the in dealing State with the arising evils from disputes industrial may impair the ef- fective right of exercise freely to discuss industrial relations which are public matters of concern. A con- trary conclusion could be support used to abridgment of freedom of press and of concerning almost every importance matter of society. range
“The of proscribed activities by §3448,whether picketing characterized as loitering or otherwise, nearly embraces every practicable, effective means whereby those including employees di- interested — rectly enlighten may public on the nature affected— dispute. causes of a labor The safeguarding of these means is essential to securing of an informed public opinion educated with respect to a matter public which may concern. It be that effective ex- public erase the means of advancing knowledge may persuade some of those entering reached to refrain from advantageous into with relations the business establish- ment which is the dispute. Every expres- scene opinion sion of on important matters that are has the potentiality inducing action in the interests one group rather than society. another in group But the power any at impose penal moment sanctions peaceful and truthful discussion of matters of merely showing interest aon may thereby that others persuaded be take action inconsistent its inter- ests.” Id., 104.
Carlson (1940), 310 U. S. California, is in accord. In reversing the course of Carlson’s engaging conviction for peaceful protest near a project construction in Shasta *68 County, California, the Court declared that a right citizen’s “publiciz[e] the facts a dispute of labor peaceful way a appropriate through by means, pamphlet, by whether word by of mouth or banner, must regarded now be as within that liberty of communication every which is person by secured to [the through] First Amendment the Fourteenth Amendment against abridgment by a Id., State.” at 113. principles explained
The in Thornhill and Carlson were years reaffirmed a few later in speech context of on reli- gious matters sought when an individual to advertise a meet- ing of the by Jehovah’s engaging Witnesses in a door-to-door distribution of leaflets. City Martin Struthers, 319 U. S. petitioner The city was convicted under a prohibited ordinance which individuals “distributing from handbills, circulars or other private advertisements” to resi- Id., dences. at 142. The Court invalidated the ordinance, reinforcing today’s the vital ignores: idea Court
“While door to door distributers of literature be either a nuisance or a blind for criminal they activities, may also be useful society members of engaged in the
dissemination of ideas in accordance with the best tra-
dition of free
widespread
discussion. The
use of this
method of
by many groups
communication
espousing
various
major
causes
importance.
attests its
‘Pam-
phlets
proved
have
effective
most
instruments in the
opinion.
dissemination
perhaps
And
the most effec-
way
tive
bringing
them to the notiee of individuals is
”
their distribution at
people.’
the homes of the
Id., at
145 (quoting
164).
Schneider, 308
atS.,U.
precedents
Court’s more recent
princi-
honor the same
ples: Government cannot foreclose a traditional medium of
expression.
City
In
(1994),
v. Gilleo,
Ladue
yearA
McIntyre
later in
v. Ohio
Comm’n,
Elections
(1995),
U. S. 334
we once moi’e
privileged
confirmed the
sta-
peaceful
tus
leafletting enjoys
speech
in our free
tradition.
prohibited
Ohio
anonymous leafletting in connection with
campaigns.
Invalidating
election
the law, we observed as
“‘Anonymous pamphlets,
follows:
leaflets, brochures and
played
even
important
books have
an
role
progress
in the
Id.,
mankind.’”
(quoting Talley
California,
(1960)).
U.
60, 64
rejected
S.
We
the State’s claim that the
prevent
restriction was
to
needed
fraud and libel in its elec
processes.
tion
had
Ohio
other
place
laws in
to achieve
objectives.
these
514U. S., at 350. The case, we concluded,
upon
speech
rested
fundamental free
principles:
“Indeed, the speech in
McIntyre
which
engaged—
Mrs.
handing out leaflets in
advocacy
politically
of a
con-
viewpoint
troversial
the essence
First
Amend-
—is
expression.
ment
advocacy
That this
occurred in the
heat of a controversial
referendum
strength-
vote
protection
ens the
afforded to
McIntyre’s expres-
Mrs.
Urgent,
sion:
important,
speech
and effective
can be no
protected
less
impotent
than
speech,
right
lest the
speak
relegated
be
to those instances when
least
speech
needed. No form of
greater
is entitled to
consti-
protection
tutional
than
McIntyre’s.”
Mrs.
Id., at 347
(citations omitted).
Petitioners
present
commenced the
suit
challenge
statute preventing them from expressing their views on
through
abortion
peaceful
the same
ap-
and vital methods
proved in Lovell, Schneider, Thornhill, Carlson,
McIn-
tyre.
punishing
Laws
protests
which
the lawfulness
morality
government’s
policy
own
are the essence
tyrannical
of power guards
First Amendment
against. We must
that,
remember
decree of this Court
in discharging
duty
our
interpret
any
Constitution,
plea
government
to the
to outlaw some abortions will be to
no effect. See Planned Parenthood
Southeastern Pa. v.
Casey,
ling importance. desiring not have resources women do abortions considering likely much less their to use mainstream media for message, of abor- resources to loeate women option contemplating media, or the they tion. the aid of the government Lacking seek resort to the time honored method leafletting more is the Nowhere important signs. display to occur. than at act is about the time and where the place “I en- Hill, As the named Leila Jeanne explained, plaintiff, information in a of activities gage impart variety designed friends and families....” abortion-bound women and their I have “In 49. of sidewalk counseling App. my many years minds about their seen number women change [these] sidewalk their children as a result my unborn aborting Id., at 51. God’s counseling, grace.” *71 person When a walking pace at a hurried enter a to building, a eight away solicitor who must stand still feet can- person not know whether persuaded accept the can be to the leaflet Merely or viewing picture not. message a or brief on the outside of the might leaflet be critical in the choice to pamphlet receive it. To by solicit per- is to it tender to the ignores son. The statute this the fact. What statute re- person trying stricts is one to communicate to another, which ought to be the heart of civilized discourse.
Colorado’s the excuse, and excuse, Court’s for the serious burden imposed upon right the to leaflet or to discuss is that it wrong place. occurs at the Again, Colorado and the Court just it have protesters backwards. For these the 100-foot zone in young building which just enter a women is not the place last where message the can be communicated. It likely only place. is the It is the location where the Court expend should its speech, utmost effort to vindicate free suppress burden or it. Perhaps the leaflet picture will contain a of an unborn picture a speaker child, the message. thinks vital to the arguments One of the proponents I abortion, had thought, young was might woman have so unin- been formed that she did pregnancy. not know how to avoid speakers in this ease seek to ask the same uninformed or any woman, indeed considering woman who is an abortion, to understand contemplate and to the nature the life she carries within her. right To restrict speaker hand her sign, a leaflet, speak quietly hold is for deny Court to neutrality princi- that must be the first ple of the First respect Amendment. In this I am full agreement with explanation insult Justice Scalia’s gives the Court when grave us tells these moral matters just can be discussed through well as a bullhorn. It would be remiss, moreover, profound not to observe the difference a leaflet can have in decisionmaking process. woman’s
Consider account young of one woman who testified be- fore the Colorado Senate: major
“Abortion is a decision. Unfortunately, most women have to make this decision I alone. did and I know that I’m only not the As one. soon as I said the 'pregnant/ word he was history, never to be heard of, again. from I was scared and all I alone. was too em- help. barrassed to ask for If this law had been in effect I then, got would not have any information at all and gone through my abortion because the people my were side people were the at the abortion *72 They clinic. exactly knew how I was feeling and what say make my all better. In heart, I knew abor- tion wrong, was but it didn’t I matter. had never taken responsibility my actions why so start then. One of major the reasons I go did not through my with sched- uled picture abortion awas given I was while I was pregnant. This was the first time I had ever seen the other side of story. the I speak think I for a lot of myself women, say included, when I abortion is the way out [sic] because of it’s all I In knew. Sex Educa- I tion, taught was not adoption about or the fetus or anything like that. All I learned about was venereal diseases and people abortion. The supplying pam- the phlet helped my me make got I choice. an informed got decision, I information from both sides, and I made an informed my decision that son and I could both live with. Because of picture this given, I was right there, boy this little got a chance at life that he would never have had.” Id., at 167-168.
There are, no doubt, women testify who would that abortion necessary was and unregretted. point The here is simply speech makes a difference, as it must when acts of last- ing significance profound moral consequence being contemplated. majority The contrary reaches a conclusion only by disregarding settled free principles. In doing so grave it delivers a wound to the First Amendment as as to well the reasoning essential joint opinion in the in Casey, a concern to I which now turn.
IV In Planned Parenthood Casey, Pa. Southeastern the prior Court holding reaffirmed its pro- the Constitution tects right a woman’s to terminate pregnancy her early in its stages. majority opinion Casey considered the wom- liberty an’s interest and principles of decisis, stare but took care to recognize gravity personal decision: “[Abortion] is an fraught act consequences for others: for the woman who must live with implications of her persons decision; for perform who proce- and assist in the spouse, dure; for the family, society which must confront knowledge procedures that these procedures exist, some nothing deem short anof act against of violence innocent human depending life; and, on one’s beliefs, for the life or potential life that is aborted.” 505 S.,U. at 852.
The Court now strikes at the heart of reasoned, careful balance I had believed was the opinion basis for Casey. *73 The principle vital opinion of was that in defined in- stances the woman’s decision whether to abort her child was in its essence a moral a one, choice the State could not dic- tate. Foreclosed using from machinery government of early ban abortions oppose term, those who it are re- mitted to debate the issue in its moral dimensions. In a way, cruel today the Court turns its back on that balance. It in effect tells us the moral important is debate so after all and can just be conducted through as well a bullhorn from an 8-foot distance as it through can peaceful, a face-to-face exchange of a leaflet. The lack of care with which the Court sustains the Colorado statute troubling reflects a most abdi- responsibility cation our to enforce the First Amendment. through theory There runs our First Amendment a con- cept immediacy, thoughts pleas peti- idea passage fleeting In a must not be lost with the of time. tions through we little find truth existence have but time to dis- immediacy speech, illustration of the course. No better urgency persuasion, preciousness of the of time, of the is presented in this Here the who than ease. citizens claim protection if it which, First Amendment seek it for place very place effective, must take at the time and a to be grievous wrong, view, moral in their is about to occur. away protesters guarantees tears from the Court they when most need it. committed is First Amendment So protesters, the Court to these in the its course it denies they gravest face of what consider to be one life’s moral opportunity try crises, even to offer a citizen fellow pamphlet, paper higher seeking little handheld to reach law.
I dissent.