OCTOBER TERM, 1999
Syllabus
HILL ET AL.
v. COLORADO ET AL.
CERTIORARI TO THE SUPREME COURT OF COLORADO
No. 98-1856. Argued January 19, 2000-Decided June 28, 2000
Colorado Rev. Stat. § 18-9-122(3) makes it unlawful for any
person within 100 feet of a health care facility's entrance to
"knowingly approach" within 8 feet of another person, without that
person's consent, in order to pass "a leaflet or handbill to,
displa[y] a sign to, or engag[e] in oral protest, education, or
counseling with [that] person .... " Claiming that the statute was
facially invalid, petitioners sought to enjoin its enforcement in
state court. In dismissing the complaint, the District Judge held
that the statute imposed content-neutral time, place, and manner
restrictions narrowly tailored to serve a significant government
interest under
Ward v.
Rock Against Racism, 491 U. S. 781, in that
Colorado had not "adopted a regulation of speech because of
disagreement with the message it conveys,"
id., at 791. The
State Court of Appeals affirmed, and the State Supreme Court denied
review. This Court vacated that judgment in light of its holding in
Schenck v.
ProChoice Network of Western NY., 519 U. S. 357, that an
injunctive provision creating a speech-free floating buffer zone
with a 15-foot radius violated the First Amendment. On remand, the
Court of Appeals reinstated its judgment, and the State Supreme
Court affirmed, distinguishing
Schenck, concluding that the
statute was narrowly drawn to further a significant government
interest, rejecting petitioners' overbreadth challenge, and
concluding that ample alternative channels of communication
remained open to petitioners.
Held: Section 18-9-122(3)'s restrictions on
speech-related conduct are constitutional. Pp. 714-735.
(a) Each side has legitimate and important concerns.
Petitioners' First Amendment interests are clear and undisputed. On
the other hand, the State's police powers allow it to protect its
citizens' health and safety, and may justify a special focus on
access to health care facilities and the avoidance of potential
trauma to patients associated with confrontational protests.
Moreover, rules providing specific guidance to enforcement
authorities serve the interest in evenhanded application of the
law. Also, the statute deals not with restricting a speaker's right
to address a willing audience, but with protecting listeners from
unwanted communication. Pp.714-718.
(b) Section 18-9-122(3) passes the
Ward
content-neutrality test for three independent reasons. First, it is
a regulation of places where
704
Syllabus
some speech may occur, not a "regulation of speech." Second, it
was not adopted because of disagreement with the message of any
speech. Most importantly, the State Supreme Court unequivocally
held that the restrictions apply to all demonstrators, regardless
of viewpoint, and the statute makes no reference to the content of
speech. Third, the State's interests are unrelated to the content
of the demonstrators' speech. Petitioners contend that insofar as
the statute applies to persons who "knowingly approach" within
eight feet of another to engage in "oral protest, education, or
counseling," it is "content-based" under
Carey v.
Brown, 447 U.
S. 455, 462, because it requires examination of the content of
a speaker's comments. This Court, however, has never held that it
is improper to look at a statement's content in order to determine
whether a rule of law applies to a course of conduct. Here, it is
unlikely that there would often be any need to know exactly what
words were spoken in order to determine whether sidewalk counselors
are engaging in oral protest, education, or counseling rather than
social or random conversation. The statute is easily
distinguishable from the one in
Carey, which prohibited all
picketing except for picketing of a place of employment in a labor
dispute, thereby according preferential treatment to expression
concerning one particular subject. In contrast, § 18-9122(3) merely
places a minor place restriction on an extremely broad category of
communications with unwilling listeners. Pp. 719-725.
(c) Section 18-9-122(3) is also a valid time, place, and manner
regulation under
Ward, for it is "narrowly tailored" to
serve the State's significant and legitimate governmental interests
and it leaves open ample alternative communication channels. When a
content-neutral regulation does not entirely foreclose any means of
communication, it may satisfy the tailoring requirement even though
it is not the least restrictive or least intrusive means of serving
the statutory goal. The 8-foot zone should not have any adverse
impact on the readers' ability to read demonstrators' signs. That
distance can make it more difficult for a speaker to be heard, but
there is no limit on the number of speakers or the noise level. Nor
does the statute suffer from the failings of the ''floating buffer
zone" rejected in
Schenck. The zone here allows the speaker
to communicate at a "normal conversational distance," 519 U. S., at
377, and to remain in one place while other individuals pass within
eight feet. And the "knowing" requirement protects speakers who
thought they were at the proscribed distance from inadvertently
violating the statute. Whether the 8-foot interval is the best
possible accommodation of the competing interests, deference must
be accorded to the Colorado Legislature's judgment. The burden on
the distribution of handbills is more serious, but the statute does
not prevent a leafletter from simply standing near the path of
oncoming pedestrians and proffering the material, which pedestrians
can accept or decline.
705
See Heffron v. International Soc. for Krishna Consciousness,
Inc., 452
(d) Section 18-9-122(3) is not overbroad. First, the argument
that coverage is broader than the specific concern that led to the
statute's enactment does not identify a constitutional defect. It
is precisely because the state legislature made a general policy
choice that the statute is assessed under
Ward rather than a
stricter standard. Second, the argument that the statute bans
virtually the universe of protected expression is based on a
misreading of the statute and an incorrect understanding of the
overbreadth doctrine. The statute does not ban any forms of
communication, but regulates the places where communications may
occur; and petitioners have not, as the doctrine requires,
persuaded the Court that the statute's impact on the conduct of
other speakers will differ from its impact on their own sidewalk
counseling, see
Broadrick v.
Oklahoma, 413 U. S. 601, 612, 615.
Pp. 730-732.
(e) Nor is § 18-9-122(3) unconstitutionally vague, either
because it fails to provide people with ordinary intelligence a
reasonable opportunity to understand what it says or because it
authorizes or encourages arbitrary and discriminatory enforcement,
Chicago v.
Morales, 527 U. S. 41, 56-57. The
first concern is ameliorated by § 18-9-122(3)'s scienter
requirement. It is unlikely that anyone would not understand the
common words used in the statute, and hypothetical situations not
before the Court will not support a facial attack on a statute that
is surely valid in the vast majority of its intended applications.
The Court is likewise unpersuaded that inadequate direction is
given to law enforcement authorities. Indeed, one of §
18-9-122(3)'s virtues is the specificity of the definitions of the
zones. Pp. 732-733.
(f) Finally, § 18-9-122(3)'s consent requirement does not impose
a prior restraint on speech. This argument was rejected in both
Schenck and
Madsen v.
Women's Health Center,
Inc., 512 U. S.
753. Furthermore, "prior restraint" concerns relate to
restrictions imposed by official censorship, but the regulations
here only apply if the pedestrian does not consent to the approach.
Pp. 733-735.
973 P. 2d 1246, affirmed.
STEVENS, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and O'CONNOR, SOUTER, GINSBURG, and BREYER, JJ.,
joined. SouTER, J., filed a concurring opinion, in which O'CONNOR,
GINSBURG, and BREYER, JJ., joined,
post, p. 735. SCALIA, J.,
filed a dissenting opinion, in which THOMAS, J., joined,
post, p. 741. KENNEDY, J., filed a dissenting opinion,
post, p. 765.
Jay Alan Sekulow argued the cause for petitioners. With
him on the briefs were
James M. Henderson, Sr., Walter
M.
706
Counsel
Weber, Joel H. Thornton, Thomas P. Monaghan, and Roger W
Westlund.
Michael E. McLachlan, Solicitor General of Colorado,
argued the cause for respondents. With him on the brief were
Ken
Salazar, Attorney General,
Felicity Hannay, Deputy
Attorney General,
Carol D. Angel, Senior Assistant Attorney
General, and
Maureen Herr Juran.
Deputy Solicitor General Underwood argued the cause for the
United States as amicus curiae urging affirmance. With her on the
brief were Solicitor General Waxman, Acting Assistant Attorney
General Lee, Beth S. Brinkmann, David K. Flynn, and Louis E.
Peraertz.
*
*Briefs of
amici curiae urging reversal were filed for
the American Civil Liberties Union by
Steven R. Shapiro; for
Liberty Counsel by
Mathew D. Staver; and for People for the
Ethical Treatment of Animals by
David N. Ventker.
Briefs of
amici curiae urging affirmance were filed for
the State of New York et al. by
Eliot Spitzer, Attorney
General of New York,
Preeta D. Bansal, Solicitor General,
Carol Fischer, Assistant Solicitor General, and
Jennifer
K. Brown, Assistant Attorney General, and by the Attorneys
General for their respective States as follows:
Janet
Napolitano of Arizona,
Bill Lockyer of California,
Richard Blumenthal of Connecticut,
Earl
Briefs of
amici curiae were filed for the American
Federation of Labor and Congress of Industrial Organizations by
Jonathan P. Hiatt and
Laurence Gold; and for the Life
Legal Defense Foundation by
Andrew W Zepeda.
707
JUSTICE STEVENS delivered the opinion of the Court.
At issue is the constitutionality of a 1993 Colorado statute
that regulates speech-related conduct within 100 feet of the
entrance to any health care facility. The specific section of the
statute that is challenged, Colo. Rev. Stat. § 18-9-122(3) (1999),
makes it unlawful within the regulated areas for any person to
"knowingly approach" within eight feet of another person, without
that person's consent, "for the purpose of passing a leaflet or
handbill to, displaying a sign to, or engaging in oral protest,
education, or counseling with such other person .... " 1 Although
the statute prohibits speakers from
1 The entire § 18-9-122 reads as follows:
"(1) The general assembly recognizes that access to health care
facilities for the purpose of obtaining medical counseling and
treatment is imperative for the citizens of this state; that the
exercise of a person's right to protest or counsel against certain
medical procedures must be balanced against another person's right
to obtain medical counseling and treatment in an unobstructed
manner; and that preventing the willful obstruction of a person's
access to medical counseling and treatment at a health care
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 to or exit from a health care facility.
"(2) A person commits a class 3 misdemeanor if such person
knowingly obstructs, detains, hinders, impedes, or blocks another
person's entry to or exit from a health care facility.
"(3) No person shall knowingly approach another person within
eight feet of such person, unless such other person consents, for
the purpose of passing a leaflet or handbill to, displaying a sign
to, or engaging in oral protest, education, or counseling with such
other person 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 violates this subsection (3) commits a class 3
misdemeanor.
"(4) For the purposes of this section, 'health care facility'
means any entity that is licensed, certified, or otherwise
authorized or permitted by law to administer medical treatment in
this state.
"(5) Nothing in this section shall be construed to prohibit a
statutory or home rule city or county or city and county from
adopting a law for the
708
approaching unwilling listeners, it does not require a standing
speaker to move away from anyone passing by. Nor does it place any
restriction on the content of any message that anyone may wish to
communicate to anyone else, either inside or outside the regulated
areas. It does, however, make it more difficult to give unwanted
advice, particularly in the form of a handbill or leaflet, to
persons entering or leaving medical facilities.
The question is whether the First Amendment rights of the
speaker are abridged by the protection the statute provides for the
unwilling listener.
I
Five months after the statute was enacted, petitioners filed a
complaint in the District Court for Jefferson County, Colorado,
praying for a declaration that § 18-9-122(3) was facially invalid
and seeking an injunction against its enforcement. They stated that
prior to the enactment of the statute, they had engaged in
"sidewalk counseling" on the public ways and sidewalks within 100
feet of the entrances to facilities where human abortion is
practiced or where medical personnel refer women to other
facilities for abortions. "Sidewalk counseling" consists of efforts
"to educate, counsel, persuade, or inform passersby about abortion
and abortion alternatives by means of verbal or written speech,
including conversation and/or display of signs and/or distribution
of literature." 2 They further alleged that such activities
frequently entail being within eight feet of other persons and that
their fear of prosecution under the new statute
control of access to health care facilities that is no less
restrictive than the provisions of this section.
"(6) In addition to, and not in lieu of, the penalties set forth
in this section, a person who violates the provisions of this
section shall be subject to civil liability, as provided in section
13-21-106.7, C. R. S."
2 App. 17.
709
caused them "to be chilled in the exercise of fundamental
constitutional rights." 3
Count 5 of the complaint claimed violations of the right to free
speech protected by the First Amendment to the Federal
Constitution, and Count 6 alleged that the impairment of the right
to distribute written materials was a violation of the right to a
free press.4 The complaint also argued that the statutory consent
requirement was invalid as a prior restraint tantamount to a
licensing requirement, that the statute was vague and overbroad,
and that it was a contentbased restriction that was not justified
by a compelling state interest. Finally, petitioners contended that
§ 18-9-122(3) was content based for two reasons: The content of the
speech must be examined to determine whether it "constitutes oral
protest, counseling and education"; and that it is "viewpointbased"
because the statute "makes it likely that prosecution will occur
based on displeasure with the position taken by the speaker."5
In their answers to the complaint, respondents admitted
virtually all of the factual allegations. They filed a motion for
summary judgment supported by affidavits, which included a
transcript of the hearings that preceded the enactment of the
statute. It is apparent from the testimony of both supporters and
opponents of the statute that demonstrations in front of abortion
clinics impeded access to those clinics and were often
confrontationa1.6 Indeed, it was a common practice to provide
escorts for persons entering and leaving the clinics both to ensure
their access and to provide
3Id., at 18-19.
4 Counts 1 through 4 alleged violations of the Colorado
Constitution, Count 7 alleged a violation of the right to peaceable
assembly, and Counts 8 and 9 alleged violations of the Due Process
and Equal Protection Clauses of the Fourteenth Amendment.
5Id., at 25-26.
6 The legislature also heard testimony that other types of
protests at medical facilities, such as those involving animal
rights, create difficulties for persons attempting to enter the
facility. App. to Pet. for Cert. 40a.
710
protection from aggressive counselors who sometimes used strong
and abusive language in face-to-face encounters.7 There was also
evidence that emotional confrontations may adversely affect a
patient's medical care.8 There was no evidence, however, that the
"sidewalk counseling" conducted by petitioners in this case was
ever abusive or confrontational.
The District Judge granted respondents' motion and dismissed the
complaint. Because the statute had not actually been enforced
against petitioners, he found that they only raised a facial
challenge.9 He agreed with petitioners that their sidewalk
counseling was conducted in a "quintessential" public forum, but
held that the statute permissibly imposed content-neutral "time,
place, and manner restrictions" that were narrowly tailored to
serve a significant government interest, and left open ample
alternative channels of communication.10 Relying on
Ward v.
Rock Against Rac-
7 A nurse practitioner testified that some antiabortion
protesters" '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 in a scary situation anyway.'''
Hill v.
Thomas, 973 P. 2d 1246, 1250 (Colo. 1999). A
volunteer who escorts patients into and out of clinics testified
that the protesters" 'are flashing their bloody fetus signs. They
are yelling, "you are killing your baby." [T]hey are talking about
fetuses and babies being dismembered, arms and legs torn off ... a
mother and her daughter ... were immediately surrounded and yelled
at and screamed at ... .'''
Id., at 1250-1251.
8 A witness representing the Colorado Coalition of Persons with
Disabilities, who had had 35 separate surgeries in the preceding
eight years, testified: "Each and everyone is tough. And the night
before and the morning of any medical procedure that's invasive is
the toughest part of all. You don't need additional stressors
[sic] placed on you while you're trying to do it .... We all
know about our own personal faith. You don't need somebody standing
in your face screaming at you when you are 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.
l°Id., at 32a.
711
ism, 491 U.
S. 781, 791 (1989), he noted that" '[t]he principal inquiry in
determining content neutrality ... is whether the government has
adopted a regulation of speech because of disagreement with the
message it conveys.' " He found that the text of the statute
"applies to all viewpoints, rather [than] only certain viewpoints,"
and that the legislative history made it clear that the State had
not favored one viewpoint over another.ll He concluded that the
"free zone" created by the statute was narrowly tailored under the
test announced in
Ward, and that it left open ample
alternative means of communication because signs and leaflets may
be seen, and speech may be heard, at a distance of eight feet.
Noting that petitioners had stated in their affidavits that they
intended to "continue with their protected First Amendment
activities," he rejected their overbreadth challenge because he
believed "the statute will do little to deter protected speech." 12
Finally, he concluded that the statute was not vague and that the
prior restraint doctrine was inapplicable because the "statute
requires no license or permit scheme prior to speaking." 13
The Colorado Court of Appeals affirmed for reasons similar to
those given by the District Judge. It noted that even though only
seven percent of the patients receiving services at one of the
clinics were there to obtain abortion services, all 60,000 of that
clinic's patients "were subjected to the same treatment by the
protesters." 14 It also reviewed our thenrecent decision in
Madsen v.
Women's Health Center, Inc., 512 U. S. 753 (1994), and
concluded that
Madsen's reasoning supported the conclusion
that the statute was content neutraU5
11
Id., at 32a-33a.
12Id., at 35a.
13Id.,
at 36a.
14 Hill v.
Lakewood, 911 P. 2d 670, 672 (1995).
15Id., at 673-674.
712
In 1996, the Supreme Court of Colorado denied review,16 and
petitioners sought a writ of certiorari from our Court. While their
petition was pending, we decided
Schenck v.
Pro-Choice
Network of Western N.
Y., 519 U. S. 357 (1997).
Because we held in that case that an injunctive provision creating
a speech-free "floating buffer zone" with a 15-foot radius violates
the First Amendment, we granted certiorari, vacated the judgment of
the Colorado Court of Appeals, and remanded the case to that court
for further consideration in light of
Schenck. 519 U. S.
1145 (1997).
On remand the Court of Appeals reinstated its judgment upholding
the statute. It noted that in
Schenck we had "expressly
declined to hold that a valid governmental interest in ensuring
ingress and egress to a medical clinic may never be sufficient to
justify a zone of separation between individuals entering and
leaving the premises and protesters" and that our opinion in
Ward provided the standard for assessing the validity of a
content-neutral, generally applicable statute. Under that standard,
even though a 15-foot floating buffer might preclude protesters
from expressing their views from a normal conversational distance,
a lesser distance of eight feet was sufficient to protect such
speech on a public sidewalk.17
The Colorado Supreme Court granted certiorari and affirmed the
judgment of the Court of Appeals. In a thorough opinion, the court
began by commenting on certain matters that were not in dispute. It
reviewed the history of the statute in detail and concluded that it
was intended to protect both the "citizen's 'right to protest' or
counsel against certain medical procedures" and also to ensure
"that government protects a 'person's right to obtain medical
counseling and treatment.'" 18 It noted that both the trial court
and the Court of Appeals had concluded that the statute was
con-
16 App. to Pet. for Cert. 46a.
17
Hill v.
Lakewood, 949 P. 2d 107, 109 (1997).
18973 P. 2d, at 1249 (quoting § 18-9-122(1)).
713
tent neutral, that petitioners no longer contended otherwise,
and that they agreed that the question for decision was whether the
statute was a valid time, place, and manner restriction under the
test announced in
Ward.19
The court identified two important distinctions between this
case and
Schenck. First,
Schenck involved a judicial
decree and therefore, as explained in
Madsen, posed "greater
risks of censorship and discriminatory application than do general
ordinances." 20 Second, unlike the floating buffer zone in
Schenck, which would require a protester either to stop
talking or to get off the sidewalk whenever a patient came within
15 feet, the "knowingly approaches" requirement in the Colorado
statute allows a protester to stand still while a person moving
toward or away from a health care facility walks past herP Applying
the test in
Ward, the court concluded that the statute was
narrowly drawn to further a significant government interest. It
rejected petitioners' contention that it was not narrow enough
because it applied to all health care facilities in the State. In
the court's view, the comprehensive coverage of the statute was a
factor that supported its content neutrality. Moreover, the fact
that the statute was enacted, in part, because the General
19 "[P]etitioners concede that the test for a time, place, and
manner restriction is the appropriate measure of this statute's
constitutionality.
See Tape Recording of Oral Argument, Oct.
19, 1998, statement of James M. Henderson, Esq. Petitioners argue
that pursuant to the test announced in
Ward, the 'floating
buffer zone' created by section 18-9-122(3) is not narrowly
tailored to serve a significant government interest and that
section 18-9-122(3) does not provide for ample alternative channels
of communication. We disagree."
Id., at 1251.
"We note that both the trial court and the court of appeals
found that section 18-9-122(3) is content-neutral, and that
petitioners do not contend otherwise in this appeal."
Id.,
at 1256.
20 Madsen v.
Women's Health Center, Inc., 512 U. S. 753, 764
(1994). 21973 P. 2d, at 1257-1258 ("What renders this statute less
restrictive than ... the injunction in
Schenck ... is that
under section 18-9-122(3), there is no duty to withdraw placed upon
petitioners even within the eight-foot limited floating buffer
zone").
714
Assembly "was concerned with the safety of individuals seeking
wide-ranging health care services, not merely abortion counseling
and procedures," added to the substantiality of the government
interest that it served.22 Finally, it concluded that ample
alternative channels remain open because petitioners, and
"indeed, everyone, are still able to protest, counsel, shout,
implore, dissuade, persuade, educate, inform, and distribute
literature regarding abortion. They just cannot knowingly approach
within eight feet of an individual who is within 100 feet of a
health care facility entrance without that individual's consent. As
articulated so well ... in Ward, ['the fact that §
18-9-122(3)] may reduce to some degree the potential audience for
[petitioners'] speech is of no consequence, for there has been no
showing that the remaining avenues of communication are
inadequate.'" 23
Because of the importance of the case, we granted certiorari.
527 U. S. 1068 (1999). We now affirm.
II
Before confronting the question whether the Colorado statute
reflects an acceptable balance between the constitutionally
protected rights of law-abiding speakers and the interests of
unwilling listeners, it is appropriate to examine the competing
interests at stake. A brief review of both sides of the dispute
reveals that each has legitimate and important concerns.
The First Amendment interests of petitioners are clear and
undisputed. As a preface to their legal challenge, petitioners
emphasize three propositions. First, they accu-
22Id., at 1258.
23 Ibid. (quoting
Ward v.
Rock Against
Racism, 491 U. S.
781, 802 (1989)).
715
rately explain that the areas protected by the statute encompass
all the public ways within 100 feet of every entrance to every
health care facility everywhere in the State of Colorado. There is
no disagreement on this point, even though the legislative history
makes it clear that its enactment was primarily motivated by
activities in the vicinity of abortion clinics. Second, they
correctly state that their leafletting, sign displays, and oral
communications are protected by the First Amendment. The fact that
the messages conveyed by those communications may be offensive to
their recipients does not deprive them of constitutional
protection. Third, the public sidewalks, streets, and ways affected
by the statute are "quintessential" public forums for free speech.
Finally, although there is debate about the magnitude of the
statutory impediment to their ability to communicate effectively
with persons in the regulated zones, that ability, particularly the
ability to distribute leaflets, is unquestionably lessened by this
statute.
On the other hand, petitioners do not challenge the legitimacy
of the state interests that the statute is intended to serve. It is
a traditional exercise of the States' "police powers to protect the
health and safety of their citizens."
Medtronic, Inc. v.
Lohr, 518 U.
S. 470, 475 (1996). That interest may justify a special focus
on unimpeded access to health care facilities and the avoidance of
potential trauma to patients associated with confrontational
protests. See
Madsen v.
Women's Health Center, Inc.,
512 U. S. 753
(1994);
NLRB v.
Baptist Hospital, Inc., 442 U. S. 773 (1979).
Moreover, as with every exercise of a State's police powers, rules
that provide specific guidance to enforcement authorities serve the
interest in evenhanded application of the law. Whether or not those
interests justify the particular regulation at issue, they are
unquestionably legitimate.
It is also important when conducting this interest analysis to
recognize the significant difference between state restric-
716
tions on a speaker's right to address a willing audience and
those that protect listeners from unwanted communication. This
statute deals only with the latter.
The right to free speech, of course, includes the right to
attempt to persuade others to change their views, and may not be
curtailed simply because the speaker's message may be offensive to
his audience. But the protection afforded to offensive messages
does not always embrace offensive speech that is so intrusive that
the unwilling audience cannot avoid it.
Frisby v.
Schultz, 487
U. S. 474, 487 (1988). Indeed, "[i]t may not be the content of
the speech, as much as the deliberate 'verbal or visual assault,'
that justifies proscription."
Erznoznik v.
Jacksonville, 422 U. S. 205, 210211, n.
6 (1975) (citation and brackets omitted). Even in a public forum,
one of the reasons we tolerate a protester's right to wear a jacket
expressing his opposition to government policy in vulgar language
is because offended viewers can "effectively avoid further
bombardment of their sensibilities simply by averting their eyes."
Cohen v.
California, 403 U. S. 15, 21
(1971).
The recognizable privacy interest in avoiding unwanted
communication varies widely in different settings. It is far less
important when "strolling through Central Park" than when "in the
confines of one's own home," or when persons are "powerless to
avoid" it.
Id., at 21-22. But even the interest in
preserving tranquility in "the Sheep Meadow" portion of Central
Park may at times justify official restraints on offensive musical
expression.
Ward, 491 U. S., at 784, 792. More specific to
the facts of this case, we have recognized that "[t]he First
Amendment does not demand that patients at a medical facility
undertake Herculean efforts to escape the cacophony of political
protests."
Madsen, 512 U. S., at 772-773.
The unwilling listener's interest in avoiding unwanted
communication has been repeatedly identified in our cases. It is an
aspect of the broader "right to be let alone" that one
717
of our wisest Justices characterized as "the most comprehensive
of rights and the right most valued by civilized men."
Olmstead v.
United States, 277 U. S. 438, 478 (1928)
(Brandeis, J., dissenting).24 The right to avoid unwelcome speech
has special force in the privacy of the home,
Rowan v.
Post Office Dept., 397 U. S. 728, 738
(1970), and its immediate surroundings,
Frisby v.
Schultz, 487 U. S., at 485, but can also be protected in
confrontational settings. Thus, this comment on the right to free
passage in going to and from work applies equally-or perhaps with
greater force-to access to a medical facility:
"How far may men go in persuasion and communication and still
not violate the right of those whom they would influence? In going
to and from work, men have a right to as free a passage without
obstruction as the streets afford, consistent with the right of
others to enjoy the same privilege. We are a social people and the
accosting by one of another in an inoffensive way and an offer by
one to communicate and discuss information with a view to
influencing the other's action are not regarded as aggression or a
violation of that other's rights. If, however, the offer is
declined, as it may rightfully be, then persistence, importunity,
following and dogging become unjustifiable annoyance and
obstruction which is likely soon to savor of intimidation. From all
of this the person sought to be influenced has a right to be free,
and his employer has a right to have him free." American Steel
Foundries v. Tri-City Central Trades Council, 257 U. S. 184, 204
(1921).
We have since recognized that the "right to persuade" discussed
in that case is protected by the First Amendment,
Thornhill
v.
Alabama, 310
U. S. 88 (1940), as well as by fed-
24 This common-law "right" is more accurately characterized as
an "interest" that States can choose to protect in certain
situations. See
Katz v.
United States, 389 U. S. 347, 350-351
(1967).
718
eral statutes. Yet we have continued to maintain that "no one
has a right to press even 'good' ideas on an unwilling recipient."
Rowan, 397 U. S., at 738. None of our decisions has
minimized the enduring importance of "a right to be free" from
persistent "importunity, following and dogging" after an offer to
communicate has been declined. While the freedom to communicate is
substantial, "the right of every person 'to be let alone' must be
placed in the scales with the right of others to communicate."
Id., at 736. It is that right, as well as the right of
"passage without obstruction," that the Colorado statute
legitimately seeks to protect. The restrictions imposed by the
Colorado statute only apply to communications that interfere with
these rights rather than those that involve willing listeners.
The dissenters argue that we depart from precedent by
recognizing a "right to avoid unpopular speech in a public forum,"
post, at 771 (opinion of KENNEDY, J.); see also
post,
at 749-754 (opinion of SCALIA, J.). We, of course, are not
addressing whether there is such a "right." Rather, we are merely
noting that our cases have repeatedly recognized the interests of
unwilling listeners in situations where "the degree of captivity
makes it impractical for the unwilling viewer or auditor to avoid
exposure. See
Lehman v.
[Shaker Heights, 418 U. S. 298 (1974)]."
Erznoznik, 422 U. S., at 209. We explained in
Erznoznik that "[t]his Court has considered analogous
issues-pitting the First Amendment rights of speakers against the
privacy rights of those who may be unwilling viewers or auditors-in
a variety of contexts. Such cases demand delicate balancing."
Id., at 208 (citations omitted). The dissenters, however,
appear to consider recognizing any of the interests of unwilling
listeners-let alone balancing those interests against the rights of
speakers-to be unconstitutional. Our cases do not support this
view.25
25 Furthermore, whether there is a "right" to avoid unwelcome
expression is not before us in this case. The purpose of the
Colorado statute is not to protect a potential listener from
hearing a particular message. It
719
III
All four of the state court opinions upholding the validity of
this statute concluded that it is a content-neutral time, place,
and manner regulation. Moreover, they all found support for their
analysis in
Ward v.
Rock Against Racism, 491 U. S.
781 (1989).26 It is therefore appropriate to comment on the
"content neutrality" of the statute. As we explained in
Ward:
"The principal inquiry in determining content neutrality, in
speech cases generally and in time, place, or manner cases in
particular, is whether the government has adopted a regulation of
speech because of disagreement with the message it conveys."
Id., at 791.
The Colorado statute passes that test for three independent
reasons. First, it is not a "regulation of speech." Rather, it is a
regulation of the places where some speech may occur. Second, it
was not adopted "because of disagreement with the message it
conveys." This conclusion is supported not just by the Colorado
courts' interpretation of legislative history, but more importantly
by the State Supreme Court's unequivocal holding that the statute's
"restrictions apply equally to all demonstrators, regardless of
viewpoint, and the statutory language makes no reference to the
content of the speech."27 Third, the State's interests in
protecting
is to protect those who seek medical treatment from the
potential physical and emotional harm suffered when an unwelcome
individual delivers a message (whatever its content) by physically
approaching an individual at close range, i.
e., within
eight feet. In offering protection from that harm, while
maintaining free access to health clinics, the State pursues
interests constitutionally distinct from the freedom from unpopular
speech to which JUSTICE KENNEDY refers.
26 See App. to Pet. for Cert. 32a (Colo. Dist. Ct.); 911 P. 2d,
at 673-674 (Colo. Ct. App.); 949 P. 2d, at 109 (Colo. Ct. App.);
973 P. 2d, at 1256 (Colo. Sup. Ct.).
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
a target having nothing to do with abortion;
720
access and privacy, and providing the police with clear
guidelines, are unrelated to the content of the demonstrators'
speech. As we have repeatedly explained, government regulation of
expressive activity is "content neutral" if it is justified without
reference to the content of regulated speech. See
ibid. and
cases cited.
Petitioners nevertheless argue that the statute is not content
neutral insofar as it applies to some oral communication. The
statute applies to all persons who "knowingly approach" within
eight feet of another for the purpose of leafletting or displaying
signs; for such persons, the content of their oral statements is
irrelevant. With respect to persons who are neither leafletters nor
sign carriers, however, the statute does not apply unless their
approach is "for the purpose of ... engaging in oral protest,
education, or counseling." Petitioners contend that an individual
near a health care facility who knowingly approaches a pedestrian
to say "good morning" or to randomly recite lines from a novel
would not be subject to the statute's restrictions.28 Because the
content of the oral statements made by an approaching speaker must
sometimes be examined to determine whether the knowing approach is
covered by the statute, petitioners argue that the law is
"content-based" under our reasoning in
Carey v.
Brown, 447 U.
S. 455, 462 (1980).
Although this theory was identified in the complaint, it is not
mentioned in any of the four Colorado opinions, all of which
concluded that the statute was content neutral. For that reason, it
is likely that the argument has been waived. Additionally, the
Colorado attorney general argues that we should assume that the
state courts tacitly construed the terms "protest, education, or
counseling" to encompass "all
none of the restrictions imposed by the court were directed at
the contents of petitioner's message." 512 U. S., at 762-763.
28 See Brief for Petitioners 32, n. 23.
721
communication." 29 Instead of relying on those arguments,
however, we shall explain why petitioners' contention is without
merit and why their reliance on
Carey v.
Brown is
misplaced.
It is common in the law to examine the content of a
communication to determine the speaker's purpose. Whether a
particular statement constitutes a threat, blackmail, an agreement
to fix prices, a copyright violation, a public offering of
securities, or an offer to sell goods often depends on the precise
content of the statement. We have never held, or suggested, that it
is improper to look at the content of an oral or written statement
in order to determine whether a rule of law applies to a course of
conduct. With respect to the conduct that is the focus of the
Colorado statute, it is unlikely that there would often be any need
to know exactly what words were spoken in order to determine
whether "sidewalk counselors" are engaging in "oral protest,
education, or counseling" rather than pure social or random
conversation.
Theoretically, of course, cases may arise in which it is
necessary to review the content of the statements made by a person
approaching within eight feet of an unwilling listener to determine
whether the approach is covered by the statute. But that review
need be no more extensive than a determination whether a general
prohibition of "picketing" or "demonstrating" applies to innocuous
speech. The regulation of such expressive activities, by
definition, does not cover social, random, or other everyday
communications. See Webster's Third New International Dictionary
600, 1710 (1993) (defining "demonstrate" as "to make a public
display of sentiment for or against a person or cause" and "picket"
as an
29 "The Colorado Supreme Court's ruling confirms that the
statutory language should be interpreted to refer to approaches for
all communication, as Colorado has argued since the beginning of
this case." Brief for Respondents 21.
722
effort "to persuade or otherwise influence"). Nevertheless, we
have never suggested that the kind of cursory examination that
might be required to exclude casual conversation from the coverage
of a regulation of picketing would be problematic.30
In
Carey v.
Brown we examined a general
prohibition of peaceful picketing that contained an exemption for
picketing a place of employment involved in a labor dispute. We
concluded that this statute violated the Equal Protection Clause of
the Fourteenth Amendment, because it discriminated between lawful
and unlawful conduct based on the content of the picketers'
messages. That discrimination was impermissible because it accorded
preferential treatment to expression concerning one particular
subject matter-labor disputes-while prohibiting discussion of all
other issues. Although our opinion stressed that "it is the content
of the speech that determines whether it is within or without the
statute's blunt prohibition," 447 U. S., at 462, we appended a
footnote to that sentence explaining that it was the fact that the
statute placed a prohibition on discussion of particular topics,
while others were allowed, that was constitutionally
30 In
United States v.
Grace, 461 U. S. 171 (1983),
after examining a federal statute that was "[i]nterpreted and
applied" as "prohibit[ing] picketing and leafletting, but not other
expressive conduct" within the Supreme Court building and grounds,
we concluded that "it is clear that the prohibition is facially
content-neutral."
Id., at 181, n. 10. Similarly, we have
recognized that statutes can equally restrict all "picketing." See,
e. g., Police Dept. of Chicago v.
Mosley, 408 U.
S. 92, 98 (1972) ("This is not to say that all picketing must
always be allowed. We have continually recognized that reasonable
'time, place and manner' regulations of picketing may be necessary
to further significant governmental interests"), and cases cited.
See also
Frisby v.
Schultz, 487 U. S. 474 (1988)
(upholding a general ban on residential picketing). And our
decisions in
Schenck and
Madsen both upheld
injunctions that also prohibited "demonstrating."
Schenck v.
Pro-Choice Network of Western N. Y.,
519 U. S. 357, 366-367,
n. 3 (1997);
Madsen, 512 U. S., at 759.
723
repugnant.31 Regulation of the subject matter of messages,
though not as obnoxious as viewpoint-based regulation, is also an
objectionable form of content-based regulation.
Consolidated
Edison Co. of N.
Y. v.
Public Servo Comm'n of N.
Y., 447 U. S.
530, 538 (1980).
The Colorado statute's regulation of the location of protests,
education, and counseling is easily distinguishable from
Carey. It places no restrictions on-and clearly does not
prohibit-either a particular viewpoint or any subject matter that
may be discussed by a speaker. Rather, it simply establishes a
minor place restriction on an extremely broad category of
communications with unwilling listeners. Instead of drawing
distinctions based on the subject that the approaching speaker may
wish to address, the statute applies equally to used car salesmen,
animal rights activists, fundraisers, environmentalists, and
missionaries. Each can attempt to educate unwilling listeners on
any subject, but without consent may not approach within eight feet
to do so.
The dissenters, nonetheless, contend that the statute is not
"content neutral." As JUSTICE SCALIA points out, the vice of
content-based legislation in this context is that "it lends itself"
to being "'used for invidious thought-control purposes.'"
Post, at 743. But a statute that restricts certain
categories of speech only lends itself to invidious use if there is
a significant number of communications, raising the same problem
that the statute was enacted to solve, that fall outside the
statute's scope, while others fall inside.
E. g.,
Police Dept. of Chicago v.
Mosley, 408 U. S. 92 (1972).
Here,
31 "It is, 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 Amendment's hostility to content-based
regulation extends not only to restrictions on particular
viewpoints, but also to prohibition of public discussion of an
entire topic.' "
Carey V.
Brown, 447 U. S. 455,462, n. 6
(1980) (quoting
Consolidated Edison Co. of N. Y. V.
Public Servo Comm'n of N. Y.,
447 U. S. 530, 537
(1980)).
724
the statute's restriction seeks to protect those who enter a
health care facility from the harassment, the nuisance, the
persistent importuning, the following, the dogging, and the implied
threat of physical touching that can accompany an unwelcome
approach within eight feet of a patient by a person wishing to
argue vociferously face-to-face and perhaps thrust an undesired
handbill upon her. The statutory phrases, "oral protest, education,
or counseling," distinguish speech activities likely to have those
consequences from speech activities (such as JUSTICE SCALIA'S
"happy speech,"
post, at 743) that are most unlikely to have
those consequences. The statute does not distinguish among speech
instances that are similarly likely to raise the legitimate
concerns to which it responds. Hence, the statute cannot be struck
down for failure to maintain "content neutrality," or for
"underbreadth."
Also flawed is JUSTICE KENNEDY'S theory that a statute
restricting speech becomes unconstitutionally content based because
of its application "to the specific locations where [that]
discourse occurs,"
post, at 767. A statute prohibiting
solicitation in airports that was motivated by the aggressive
approaches of Hare Krishnas does not become content based solely
because its application is confined to airports-"the specific
locations where [that] discourse occurs." A statute making it a
misdemeanor to sit at a lunch counter for an hour without ordering
any food would also not be "content based" even if it were enacted
by a racist legislature that hated civil rights protesters
(although it might raise separate questions about the State's
legitimate interest at issue). See
ibid.
Similarly, the contention that a statute is "viewpoint based"
simply because its enactment was motivated by the conduct of the
partisans on one side of a debate is without support.
Post,
at 768-769 (KENNEDY, J., dissenting). The antipicketing ordinance
upheld in
Frisby v.
Schultz, 487 U. S. 474 (1988), a
decision in which both of today's dissenters
725
joined, was obviously enacted in response to the activities of
antiabortion protesters who wanted to protest at the home of a
particular doctor to persuade him and others that they viewed his
practice of performing abortions to be murder. We nonetheless
summarily concluded that the statute was content neutral.
Id., at 482.
JUSTICE KENNEDY further suggests that a speaker who approaches a
patient and "chants in praise of the Supreme Court and its abortion
decisions," or hands out a simple leaflet saying, "'We are for
abortion rights,'" would not be subject to the statute.
Post, at 769. But what reason is there to believe the
statute would not apply to that individual? She would be engaged in
"oral protest" and "education," just as the abortion opponent who
expresses her view that the Supreme Court decisions were incorrect
would be "protest[ing]" the decisions and "educat[ing]" the patient
on the issue. The close approach of the latter, more hostile,
demonstrator may be more likely to risk being perceived as a form
of physical harassment; but the relevant First Amendment point is
that the statute would prevent both speakers, unless welcome, from
entering the 8-foot zone. The statute is not limited to those who
oppose abortion. It applies to the demonstrator in JUSTICE
KENNEDY'S example. It applies to all "protest," to all
"counseling," and to all demonstrators whether or not the
demonstration concerns abortion, and whether they oppose or support
the woman who has made an abortion decision. That is the level of
neutrality that the Constitution demands.
The Colorado courts correctly concluded that § 18-9122(3) is
content neutral.
IV
We also agree with the state courts' conclusion that §
189-122(3) is a valid time, place, and manner regulation under the
test applied in
Ward because it is "narrowly tailored." We
already have noted that the statute serves governmental interests
that are significant and legitimate and that the re-
726
strictions are content neutral. We are likewise persuaded that
the statute is "narrowly tailored" to serve those interests and
that it leaves open ample alternative channels for communication.
As we have emphasized on more than one occasion, when a
content-neutral regulation does not entirely foreclose any means of
communication, it may satisfy the tailoring requirement even though
it is not the least restrictive or least intrusive means of serving
the statutory goaP2
The three types of communication regulated by § 18-9122(3) are
the display of signs, leafletting, and oral speech. The 8-foot
separation between the speaker and the audience should not have any
adverse impact on the readers' ability to read signs displayed by
demonstrators. In fact, the separation might actually aid the
pedestrians' ability to see the signs by preventing others from
surrounding them and impeding their view. Furthermore, the statute
places no limitations on the number, size, text, or images of the
placards. And, as with all of the restrictions, the 8-foot zone
does not affect demonstrators with signs who remain in place.
With respect to oral statements, the distance certainly can make
it more difficult for a speaker to be heard, particularly if the
level of background noise is high and other speakers are competing
for the pedestrian's attention. Notably, the statute places no
limitation on the number of speakers or the noise level, including
the use of amplification equipment, although we have upheld such
restrictions in past cases. See,
e. g.,
Madsen, 512 U. S., at 772-773. More significantly, this
statute does not suffer from the failings that compelled us to
reject the "floating buffer zone" in
Schenck, 519 U. S., at
377. Unlike the is-foot zone in
Schenck, this 8-foot zone
allows the speaker to communicate at a "normal conversa-
32 "Lest any confusion on the point remain, we reaffirm today
that a regulation of the time, place, or manner of protected speech
must be narrowly tailored to serve the government's legitimate,
content-neutral interests but that it need not be the least
restrictive or least intrusive means of doing so."
Ward v.
Rock Against Racism, 491 U. S., at 798.
727
tional distance."
Ibid. Additionally, the statute allows
the speaker to remain in one place, and other individuals can pass
within eight feet of the protester without causing the protester to
violate the statute. Finally, here there is a "knowing" requirement
that protects speakers "who thought they were keeping pace with the
targeted individual" at the proscribed distance from inadvertently
violating the statute.
Id., at 378, n. 9.
It is also not clear that the statute's restrictions will
necessarily impede, rather than assist, the speakers' efforts to
communicate their messages. The statute might encourage the most
aggressive and vociferous protesters to moderate their
confrontational and harassing conduct, and thereby make it easier
for thoughtful and law-abiding sidewalk counselors like petitioners
to make themselves heard. But whether or not the 8-foot interval is
the best possible accommodation of the competing interests at
stake, we must accord a measure of deference to the judgment of the
Colorado Legislature. See
Madsen, 512 U. S., at 769-770.
Once again, it is worth reiterating that only attempts to address
unwilling listeners are affected.
The burden on the ability to distribute handbills is more
serious because it seems possible that an 8-foot interval could
hinder the ability of a leafletter to deliver handbills to some
unwilling recipients. The statute does not, however, prevent a
leafletter from simply standing near the path of oncoming
pedestrians and proffering his or her material, which the
pedestrians can easily accept.33 And, as in all leafletting
situations, pedestrians continue to be free to decline the tender.
In
Heffron v.
International Soc. for
33JU8TICE KENNEDY states that the statute "forecloses peaceful
leafletting,"
post, at 780. This is not correct. All of the
cases he cites in support of his argument involve a total ban on a
medium of expression to both willing and unwilling recipients, see
post, at 780-787. Nothing in this statute, however, prevents
persons from proffering their literature; they simply cannot
approach within eight feet of an unwilling recipient.
728
Krishna Consciousness, Inc., 452 U. S. 640 (1981), we
upheld a state fair regulation that required a religious
organization desiring to distribute literature to conduct that
activity only at an assigned location-in that case booths. As in
this case, the regulation primarily burdened the distributors'
ability to communicate with unwilling readers. We concluded our
opinion by emphasizing that the First Amendment protects the right
of every citizen to "'reach the minds of willing listeners and to
do so there must be opportunity to win their attention.'
Kovacs v.
Cooper, 336 U. S. 77, 87 (1949)."
Id., at 655. The Colorado statute adequately protects those
rights.
Finally, in determining whether a statute is narrowly tailored,
we have noted that "[w]e must, of course, take account of the place
to which the regulations apply in determining whether these
restrictions burden more speech than necessary."
Madsen, 512
U. S., at 772. States and municipalities plainly have a substantial
interest in controlling the activity around certain public and
private places. For example, we have recognized the special
governmental interests surrounding schools,34 courthouses,35
polling places,36 and private homes.37 Additionally, we previously
have noted the unique concerns that surround health care
facilities:
"'Hospitals, after all, are not factories or mines or assembly
plants. They are hospitals, where human ailments are treated, where
patients and relatives alike often are under emotional strain and
worry, where pleasing and comforting patients are principal facets
of the day's activity, and where the patient and [her] family ...
need a restful, uncluttered, relaxing, and
34 See Grayned v. City of Rockford,
408 U. S. 104, 119
(1972). 35 See Cox v. Louisiana,
379 U. S. 559, 562
(1965).
36 See
Burson v.
Freeman, 504 U. S. 191, 206-208
(1992) (plurality opinion);
id., at 214-216 (SCALIA, J.,
concurring in judgment).
37 See Frisby v. Schultz, 487 U. S., at 484-485.
729
helpful atmosphere.'" Ibid. (quoting NLRB v.
Baptist Hospital, Inc., 442 U. S., at 783-784, n. 12).
Persons who are attempting to enter health care facilities-for
any purpose-are often in particularly vulnerable physical and
emotional conditions. The State of Colorado has responded to its
substantial and legitimate interest in protecting these persons
from unwanted encounters, confrontations, and even assaults by
enacting an exceedingly modest restriction on the speakers' ability
to approach.
JUSTICE KENNEDY, however, argues that the statute leaves
petitioners without adequate means of communication.
Post,
at 780. This is a considerable overstatement. The statute seeks to
protect those who wish to enter health care facilities, many of
whom may be under special physical or emotional stress, from close
physical approaches by demonstrators. In doing so, the statute
takes a prophylactic approach; it forbids all unwelcome
demonstrators to come closer than eight feet. We recognize that by
doing so, it will sometimes inhibit a demonstrator whose approach
in fact would have proved harmless. But the statute's prophylactic
aspect is justified by the great difficulty of protecting, say, a
pregnant woman from physical harassment with legal rules that focus
exclusively on the individual impact of each instance of behavior,
demanding in each case an accurate characterization (as harassing
or not harassing) of each individual movement within the 8-foot
boundary. Such individualized characterization of each individual
movement is often difficult to make accurately. A bright-line
prophylactic rule may be the best way to provide protection, and,
at the same time, by offering clear guidance and avoiding
subjectivity, to protect speech itself.
As we explained above, the 8-foot restriction on an unwanted
physical approach leaves ample room to communicate a message
through speech. Signs, pictures, and voice itself can cross an
8-foot gap with ease. If the clinics in Colorado resemble those in
Schenck, demonstrators with leaflets
730
might easily stand on the sidewalk at entrances (without
blocking the entrance) and, without physically approaching those
who are entering the clinic, peacefully hand them leaflets as they
pass by.
Finally, the 8-foot restriction occurs only within 100 feet of a
health care facility-the place where the restriction is most
needed. The restriction interferes far less with a speaker's
ability to communicate than did the total ban on picketing on the
sidewalk outside a residence (upheld in
Frisby v.
Schultz, 487
U. S. 474 (1988)), the restriction of leafletting at a
fairground to a booth (upheld in
Heffron v.
International
Soc. for Krishna Consciousness, Inc., 452 U. S. 640 (1981)), or
the "silence" often required outside a hospital. Special problems
that may arise where clinics have particularly wide entrances or
are situated within multipurpose office buildings may be worked out
as the statute is applied.
This restriction is thus reasonable and narrowly tailored.
V
Petitioners argue that § 18-9-122(3) is invalid because it is
"overbroad." There are two parts to petitioners' "overbreadth"
argument. On the one hand, they argue that the statute is too broad
because it protects too many people in too many places, rather than
just the patients at the facilities where confrontational speech
had occurred. Similarly, it burdens all speakers, rather than just
persons with a history of bad conduct.38 On the other hand,
petitioners also contend that the statute is overbroad because it
"bans virtually the universe of protected expression, including
displays of signs, distribution of literature, and mere verbal
statements." 39
The first part of the argument does not identify a
constitutional defect. The fact that the coverage of a statute
is
38 Brief for Petitioners 22-23.
39Id., at 25.
731
broader than the specific concern that led to its enactment is
of no constitutional significance. What is important is that all
persons entering or leaving health care facilities share the
interests served by the statute. It is precisely because the
Colorado Legislature made a general policy choice that the statute
is assessed under the constitutional standard set forth in
Ward, 491 U. S., at 791, rather than a more strict standard.
See
Madsen, 512 U. S., at 764. The cases cited by
petitioners are distinguishable from this statute. In those cases,
the government attempted to regulate nonprotected activity, yet
because the statute was overbroad, protected speech was also
implicated. See
Houston v.
Hill, 482 U. S. 451
(1987);
Secretary of State of Md. v.
Joseph H. Munson
Co., 467 U. S.
947 (1984). In this case, it is not disputed that the
regulation affects protected speech activity; the question is thus
whether it is a "reasonable restrictio[n] on the time, place, or
manner of protected speech."
Ward, 491 U. S., at 791. Here,
the comprehensiveness of the statute is a virtue, not a vice,
because it is evidence against there being a discriminatory
governmental motive. As Justice Jackson observed, "there is no more
effective practical guaranty against arbitrary and unreasonable
government than to require that the principles of law which
officials would impose upon a minority must be imposed generally."
Railway Express Agency, Inc. v.
New York, 336 U. S. 106, 112 (1949)
(concurring opinion).
The second part of the argument is based on a misreading of the
statute and an incorrect understanding of the overbreadth doctrine.
As we have already noted, § 18-9-122(3) simply does not "ban" any
messages, and likewise it does not "ban" any signs, literature, or
oral statements. It merely regulates the places where
communications may occur. As we explained in
Broadrick v.
Oklahoma, 413
U. S. 601, 612 (1973), the overbreadth doctrine enables
litigants "to challenge a statute not because their own rights of
free expression are violated, but because of a judicial prediction
or
732
assumption that the statute's very existence may cause others
not before the court to refrain from constitutionally protected
speech or expression." Moreover, "particularly where conduct and
not merely speech is involved, we believe that the overbreadth of a
statute must not only be real, but substantial as well, judged in
relation to the statute's plainly legitimate sweep."
Id., at
615. Petitioners have not persuaded us that the impact of the
statute on the conduct of other speakers will differ from its
impact on their own sidewalk counseling. Cf.
Members of City
Council of Los Angeles v.
Taxpayers for Vincent,
466 U. S. 789,
801 (1984). Like petitioners' own activities, the conduct of other
protesters and counselors at all health care facilities are
encompassed within the statute's "legitimate sweep." Therefore, the
statute is not overly broad.
VI
Petitioners also claim that § 18-9-122(3) is unconstitutionally
vague. They find a lack of clarity in three parts 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 statute can be impermissibly vague for either of two
independent reasons. First, if it fails to provide people of
ordinary intelligence a reasonable opportunity to understand what
conduct it prohibits. Second, if it authorizes or even encourages
arbitrary and discriminatory enforcement.
Chicago v.
Morales, 527 U.
S. 41, 56-57 (1999).
In this case, the first concern is ameliorated by the fact that
§ 18-9-122(3) contains a scienter requirement. The statute only
applies to a person who "knowingly" approaches within eight feet of
another, without that person's consent, for the purpose of engaging
in oral protest, education, or counseling. The likelihood that
anyone would not understand any of those common words seems quite
remote.
733
Petitioners proffer hypertechnical theories as to what the
statute covers, such as whether an outstretched arm constitutes
"approaching."40 And while "[t]here is little doubt that
imagination can conjure up hypothetical cases in which the meaning
of these terms will be in nice question,"
American
Communications Assn. v.
Douds, 339 U. S. 382, 412
(1950), because we are "[c]ondemned to the use of words, we can
never expect mathematical certainty from our language,"
Grayned v.
City of Rockford, 408 U. S. 104, 110
(1972). For these reasons, we rejected similar vagueness challenges
to the injunctions at issue in
Schenck, 519 U. S., at 383,
and
Madsen, 512 U. S., at 775-776. We thus conclude that "it
is clear what the ordinance as a whole prohibits."
Grayned,
408 U. S., at 110. More importantly, speculation about possible
vagueness in hypothetical situations not before the Court will not
support a facial attack on a statute when it is surely valid "in
the vast majority of its intended applications,"
United
States v.
Raines, 362 U. S. 17, 23
(1960).
For the same reason, we are similarly unpersuaded by the
suggestion that § 18-9-122(3) fails to give adequate guidance to
law enforcement authorities. Indeed, it seems to us that one of the
section's virtues is the specificity of the definitions of the
zones described in the statute. "As always, enforcement requires
the exercise of some degree of police judgment,"
Grayned,
408 U. S., at 114, and the degree of judgment involved here is
acceptable.
VII
Finally, petitioners argue that § 18-9-122(3)'s consent
requirement is invalid because it imposes an unconstitutional
"prior restraint" on speech. We rejected this argument previously
in
Schenck, 519 U. S., at 374, n. 6, and
Madsen, 512
U. S., at 764, n. 2. Moreover, the restrictions in this case raise
an even lesser prior restraint concern than those at
40 Brief for Petitioners 48.
734
issue in
Schenck and
Madsen where particular
speakers were at times completely banned within certain zones.
Under this statute, absolutely no channel of communication is
foreclosed. No speaker is silenced. And no message is prohibited.
Petitioners are simply wrong when they assert that "[t]he statute
compels speakers to obtain consent to speak and it authorizes
private citizens to deny petitioners' requests to engage in
expressive activities."41 To the contrary, this statute does not
provide for a "heckler's veto" but rather allows every speaker to
engage freely in any expressive activity communicating all messages
and viewpoints subject only to the narrow place requirement
imbedded within the "approach" restriction.
Furthermore, our concerns about "prior restraints" relate to
restrictions imposed by official censorship.42 The regulations in
this case, however, only apply if the pedestrian does not consent
to the approach.43 Private citizens have always retained the power
to decide for themselves what they wish to read, and within limits,
what oral messages they want to consider. This statute simply
empowers private citizens entering a health care facility with the
ability to prevent a speaker, who is within eight feet and
advancing, from communicating a message they do not wish to hear.
Further,
41Id., at 29.
42 See
Ward, 491 U. S., at 795, n. 5 ("[T]he regulations
we have found invalid as prior restraints have 'had this in common:
they gave
public officials the power to deny use of a forum
in advance of actual expression'" (quoting
Southeastern
Promotions, Ltd. v.
Conrad, 420 U. S. 546, 553 (1975)
(emphasis added))).
43 While we have in prior cases found governmental grants of
power to private actors constitutionally problematic, those cases
are distinguishable. In those cases, the regulations allowed a
single, private actor to unilaterally silence a speaker even as to
willing listeners. See,
e. g., Reno v.
American Civil
Liberties Union, 521 U. S. 844, 880 (1997)
("It would confer broad powers of censorship, in the form of a
'heckler's veto,' upon any opponent of indecent speech ... "). The
Colorado statute at issue here confers no such censorial power on
the pedestrian.
735
the statute does not authorize the pedestrian to affect any
other activity at any other location or relating to any other
person. These restrictions thus do not constitute an unlawful prior
restraint.
***
The judgment of the Colorado Supreme Court is affirmed.
It is so ordered.
JUSTICE SOUTER, with whom JUSTICE O'CONNOR, JUSTICE GINSBURG,
and JUSTICE BREYER join, concurring.
I join the opinion of the Court and add this further word.
The key to determining whether Colo. Rev. Stat. § 18-9122(3)
(1999) makes a content-based distinction between varieties of
speech lies in understanding that content-based discriminations are
subject to strict scrutiny because they place the weight of
government behind the disparagement or suppression of some
messages, whether or not with the effect of approving or promoting
others.
United States v.
Playboy Entertainment Group,
Inc., 529 U. S.
803, 812 (2000);
R. A. v: v.
St. Paul, 505 U. S. 377, 382
(1992); cf.
Police Dept. of Chicago v.
Mosley,
408 U. S. 92,
95-96 (1972). Thus the government is held to a very exacting and
rarely satisfied standard when it disfavors the discussion of
particular subjects,
Simon &
Schuster, Inc. v.
Members of N.
Y. State Crime Victims Bd., 502 U. S. 105, 116
(1991), or particular viewpoints within a given subject matter,
Carey v.
Brown, 447 U. S. 455, 461-463
(1980) (citing
Chicago, supra, at 95-96); cf.
National
Endowment for Arts v.
Finley, 524 U. S. 569, 601-602
(1998) (SOUTER, J., dissenting).
Concern about employing the power of the State to suppress
discussion of a subject or a point of view is not, however, raised
in the same way when a law addresses not the content of speech but
the circumstances of its delivery. The right to express unpopular
views does not necessarily immunize a speaker from liability for
resorting to otherwise im-
736
permissible behavior meant to shock members of the speaker's
audience, see
United States v.
O'Brien, 391 U. S. 367, 376 (1968)
(burning draft card), or to guarantee their attention, see
Kovacs v.
Cooper, 336 U. S. 77, 86-88 (1949)
(sound trucks);
Frisby v.
Schultz, 487 U. S. 474, 484-485
(1988) (residential picketing);
Heffron v.
International
Soc.for Krishna Consciousness, Inc., 452 U. S. 640, 647-648
(1981) (soliciting). Unless regulation limited to the details of a
speaker's delivery results in removing a subject or viewpoint from
effective discourse (or otherwise fails to advance a significant
public interest in a way narrowly fitted to that objective), a
reasonable restriction intended to affect only the time, place, or
manner of speaking is perfectly valid. See
Ward v.
Rock
Against Racism, 491 U. S. 781, 791 (1989)
("Our cases make clear ... that even in a public forum the
government may impose reasonable restrictions on the time, place,
or manner of protected speech, provided the restrictions 'are
justified without reference to the content of the regulated speech,
that they are narrowly tailored to serve a significant governmental
interest, and that they leave open ample alternative channels for
communication of the information'" (quoting
Clark v.
Community for Creative Non-Violence, 468 U. S. 288, 293
(1984))); 491 u. S., at 797 ("[O]ur cases quite clearly hold that
restrictions on the time, place, or manner of protected speech are
not invalid 'simply because there is some imaginable alternative
that might be less burdensome on speech'" (quoting
United
States v.
Albertini, 472 U. S. 675, 689
(1985))).
It is important to recognize that the validity of punishing some
expressive conduct, and the permissibility of a time, place, or
manner restriction, does not depend on showing that the particular
behavior or mode of delivery has no association with a particular
subject or opinion. Draft card burners disapprove of the draft, see
United States v.
O'Brien, supra, at 370, and abortion
protesters believe abortion is morally wrong,
Madsen v.
Women's Health Center,
737
Inc., 512
U. S. 753, 758 (1994). There is always a correlation with
subject and viewpoint when the law regulates conduct that has
become the signature of one side of a controversy. But that does
not mean that every regulation of such distinctive behavior is
content based as First Amendment doctrine employs that term. The
correct rule, rather, is captured in the formulation that a
restriction is content based only if it is imposed because of the
content of the speech, see
Ward, supra, at 791 ("The
principal inquiry in determining content neutrality, in speech
cases generally and in time, place, or manner cases in particular,
is whether the government has adopted a regulation of speech
because of disagreement with the message it conveys"), and not
because of offensive behavior identified with its delivery.
Since this point is as elementary as anything in traditional
speech doctrine, it would only be natural to suppose that to day's
disagreement between the Court and the dissenting Justices must
turn on unusual difficulty in evaluating the facts of this case.
But it does not. The facts overwhelmingly demonstrate the validity
of subsection (3) as a contentneutral regulation imposed solely to
regulate the manner in which speakers may conduct themselves within
100 feet of the entrance of a health care facility.
No one disputes the substantiality of the government's interest
in protecting people already tense or distressed in anticipation of
medical attention (whether an abortion or some other procedure)
from the unwanted intrusion of close personal importunity by
strangers. The issues dividing the Court, then, go to the content
neutrality of the regulation, its fit with the interest to be
served by it, and the availability of other means of expressing the
desired message (however offensive it may be even without
physically close communication).
Each of these issues is addressed principally by the fact that
subsection (3) simply does not forbid the statement of any position
on any subject. It does not declare any view
738
as unfit for expression within the lOO-foot zone or beyond it.
What it forbids, and all it forbids, is approaching another person
closer than eight feet (absent permission) to deliver the message.
Anyone (let him be called protester, counselor, or educator) may
take a stationary position within the regulated area and address
any message to any person within sight or hearing. The stationary
protester may be quiet and ingratiating, or loud and offensive; the
law does not touch him, even though in some ways it could. See
Madsen, supra, at 768-771 (injunction may bar protesters
from 36foot zone around entrances to clinic and parking lot).
This is not to say that enforcement of the approach restriction
will have no effect on speech; of course it will make some
difference. The effect of speech is a product of ideas and
circumstances, and time, place, and manner are circumstances. The
question is simply whether the ostensible reason for regulating the
circumstances is really something about the ideas. Here, the
evidence indicates that the ostensible reason is the true reason.
The fact that speech by a stationary speaker is untouched by this
statute shows that the reason for its restriction on approaches
goes to the approaches, not to the content of the speech of those
approaching. What is prohibited is a close encounter when the
person addressed does not want to get close. So, the intended
recipient can stay far enough away to prevent the whispered
argument, mitigate some of the physical shock of the shouted
denunciation, and avoid the unwanted handbill. But the content of
the message will survive on any sign readable at eight feet and in
any statement audible from that slight distance. Hence the
implausibility of any claim that an antiabortion message, not the
behavior of protesters, is what is being singled out.
The matter of proper tailoring to limit no more speech than
necessary to vindicate the public interest deserves a few specific
comments, some on matters raised by JUSTICE KENNEDY'S dissent.
Subsection (3) could possibly be ap-
739
plied to speakers unlike the present petitioners, who might not
know that the entrance to the facility was within 100 feet, or who
might try to engage people within 100 feet of a health facility
other than a physician's office or hospital, or people having no
business with the facility. These objections do not, however, weigh
very heavily on a facial challenge like this. The specter of
liability on the part of those who importune while oblivious of the
facility is laid to rest by the requirement that a defendant act
"knowingly." See Colo. Rev. Stat. § 18-1-503(4) (1999) (culpable
mental state requirement deemed to apply to each element of
offense, absent clear contrary intent). While it is true that
subsection (3) was not enacted to protect dental patients, I cannot
say it goes beyond the State's interest to do so; someone facing an
hour with a drill in his tooth may reasonably be protected from the
intrusive behavior of strangers who are otherwise free to speak.
While some mere passersby may be protected needlessly, I am
skeptical about the number of health care facilities with
substantial pedestrian traffic within 100 feet of their doors but
unrelated to the business conducted inside. Hence, I fail to see
danger of the substantial overbreadth required to be shown before a
statute is struck down out of concern for the speech rights of
those not before the Court. Cf.
Secretary of State of Md. v.
Joseph H. Munson Co., 467 U. S. 947, 964-965
(1984);
Houston v.
Hill, 482 U. S. 451, 458
(1987).
As for the claim of vagueness, at first blush there is something
objectionable. Those who do not choose to remain stationary may not
approach within eight feet with a purpose, among others, of
"engaging in oral protest, education, or counseling." Colo. Rev.
Stat. § 18-9-122(3) (1999). While that formula excludes liability
for enquiring about the time or the bus schedule within eight feet,
"education" does not convey much else by way of limitation. But
that is not fatal here. What is significant is not that the word
fails to limit clearly, but that it pretty clearly fails to limit
very much at
740
all. It succeeds in naturally covering any likely address by one
person approaching another on a street or parking lot outside a
building entrance (aside from common social greetings, protests, or
requests for assistance). Someone planning to spread a message by
accosting strangers is likely to understand the statute's
application to "education." And just because the coverage is so
obviously broad, the discretion given to the police in deciding
whether to charge an offense seems no greater than the
prosecutorial discretion inherent in any generally applicable
criminal statute. Cf.
Grayned v.
City of Rockford,
408 U. S. 104,
108 (1972) (noting that "[v]ague laws may trap the innocent by not
providing fair warning" and that "if arbitrary and discriminatory
enforcement is to be prevented, laws must provide explicit
standards for those who apply them");
Coates v.
Cincinnati, 402 U. S. 611, 614
(1971). "[P]erfect clarity and precise guidance have never been
required even of regulations that restrict expressive activity."
Ward, 491 U. S., at 794.
Although petitioners have not argued that the "floating bubble"
feature of the 8-foot zone around a pedestrian is itself a failure
of narrow tailoring, I would note the contrast between the
operation of subsection (3) and that of the comparable portion of
the injunction struck down in
Schenck v.
Pro-Choice
Network of Western N.
Y., 519 U. S. 357, 377-379
(1997), where we observed that the difficulty of administering a
floating bubble zone threatened to burden more speech than
necessary. In
Schenck, the floating bubble was larger (15
feet) and was associated with near-absolute prohibitions on speech.
Ibid. Since subsection (3) prohibits only 8-foot approaches,
however, with the stationary speaker free to speak, the risk is
less. Whether floating bubble zones are so inherently difficult to
administer that only fixed, no-speech zones (or prohibitions on
ambulatory counseling within a fixed zone) should pass muster is an
issue neither before us nor well suited to consideration on a
facial challenge, cf.
Ward, supra, at 794 ("Since respondent
does not claim
741
that city officials enjoy unguided discretion to deny the right
to speak altogether, it is open to question whether respondent's
claim falls within the narrow class of permissible facial
challenges to allegedly unconstrained grants of regulatory
authority").
JUSTICE SCALIA, with whom JUSTICE THOMAS joins, dissenting.
The Court today concludes that a regulation requiring speakers
on the public thoroughfares bordering medical facilities to speak
from a distance of eight feet is "not a 'regulation of speech,'"
but "a regulation of the places where some speech may occur,"
ante, at 719; and that a regulation directed to only certain
categories of speech (protest, education, and counseling) is not
"content-based." For these reasons, it says, the regulation is
immune from the exacting scrutiny we apply to content-based
suppression of speech in the public forum. The Court then
determines that the regulation survives the less rigorous scrutiny
afforded contentneutral time, place, and manner restrictions
because it is narrowly tailored to serve a government
interest-protection of citizens' "right to be let alone" -that has
explicitly been disclaimed by the State, probably for the reason
that, as a basis for suppressing peaceful private expression, it is
patently incompatible with the guarantees of the First
Amendment.
None of these remarkable conclusions should come as a surprise.
What is before us, after all, is a speech regulation directed
against the opponents of abortion, and it therefore enjoys the
benefit of the "ad hoc nullification machine" that the Court has
set in motion to push aside whatever doctrines of constitutional
law stand in the way of that highly favored practice.
Madsen
v.
Women's Health Center, Inc., 512 U. S. 753, 785 (1994)
(SCALIA, J., concurring in judgment in part and dissenting in
part). Having deprived abortion opponents of the political right to
persuade the electorate that abortion should be restricted by law,
the Court today contin-
742
ues and expands its assault upon their individual right to
persuade women contemplating abortion that what they are doing is
wrong. Because, like the rest of our abortion jurisprudence,
today's decision is in stark contradiction of the constitutional
principles we apply in all other contexts, I dissent.
I
Colorado's statute makes it a criminal act knowingly to approach
within 8 feet of another person on the public way or sidewalk area
within 100 feet of the entrance door of a health care facility for
the purpose of passing a leaflet to, displaying a sign to, or
engaging in oral protest, education, or counseling with such
person. Whatever may be said about the restrictions on the other
types of expressive activity, the regulation as it applies to oral
communications is obviously and undeniably content based. A speaker
wishing to approach another for the purpose of communicating
any message except one of protest, education, or counseling
may do so without first securing the other's consent. Whether a
speaker must obtain permission before approaching within eight
feet-and whether he will be sent to prison for failing to do
so-depends entirely on
what he intends to say when he gets
there. I have no doubt that this regulation would be deemed content
based
in an instant if the case before us involved antiwar
protesters, or union members seeking to "educate" the public about
the reasons for their strike. "[I]t is," we would say, "the content
of the speech that determines whether it is within or without the
statute's blunt prohibition,"
Carey v.
Brown,
447 U. S. 455,
462 (1980). But the jurisprudence of this Court has a way of
changing when abortion is involved.
The Court asserts that this statute is not content based for
purposes of our First Amendment analysis because it neither (1)
discriminates among viewpoints nor (2) places restrictions on "any
subject matter that may be discussed by a speaker."
Ante, at
723. But we have never held that the
743
universe of content-based regulations is limited to those two
categories, and such a holding would be absurd. Imagine, for
instance, special place-and-manner restrictions on all speech
except that which "conveys a sense of contentment or happiness."
This "happy speech" limitation would not be "viewpoint
based"-citizens would be able to express their joy in equal measure
at either the rise or fall of the NASDAQ, at either the success or
the failure of the Republican Party-and would not discriminate on
the basis of subject matter, since gratification could be expressed
about anything at all. Or consider a law restricting the writing or
recitation of poetry-neither viewpoint based nor limited to any
particular subject matter. Surely this Court would consider such
regulations to be "content based" and deserving of the most
exacting scrutiny.l
"The vice of content-based legislation-what renders it deserving
of the high standard of strict scrutiny-is not that it is always
used for invidious, thought-control purposes, but that it lends
itself to use for those purposes."
Madsen,
1 The Court responds that statutes which restrict categories of
speechas opposed to subject matter or viewpoint-are
constitutionally worrisome only if a "significant number of
communications, raising the same problem that the statute was
enacted to solve, ... fall outside the statute's scope, while
others fall inside."
Ante, at 723. I am not sure that is
correct, but let us assume, for the sake of argument, that it is.
The Court then proceeds to assert that "[t]he statutory phrases,
'oral protest, education, or counseling,' distinguish speech
activities likely to" present the problem of "harassment, nuisance,
... persistent importuning, ... following, ... dogging, and ...
implied threat of physical touching," from "speech activities [such
as my example of 'happy speech'] that are most unlikely to have
those consequences,"
ante, at 724. Well. That may work for
"oral protest"; but it is beyond imagining why "education" and
"counseling" are especially
likely, rather than especially
unlikely, to involve such conduct. (Socrates
was
something of a
noodge, but even he did not go
that
far.)
Unless, of course, "education" and "counseling" are
code words for efforts to dissuade women from abortion-in which
event the statute would not be viewpoint neutral, which the Court
concedes makes it invalid.
744
supra, at 794 (opinion of SCALIA, J.) (emphasis deleted).
A restriction that operates only on speech that communicates a
message of protest, education, or counseling presents exactly this
risk. When applied, as it is here, at the entrance to medical
facilities, it is a means of impeding speech against abortion. The
Court's confident assurance that the statute poses no special
threat to First Amendment freedoms because it applies alike to
"used car salesmen, animal rights activists, fundraisers,
environmentalists, and missionaries,"
ante, at 723, is a
wonderful replication (except for its lack of sarcasm) of Anatole
France's observation that "[t]he law, in its majestic equality,
forbids the rich as well as the poor to sleep under bridges .... "
J. Bartlett, Familiar Quotations 550 (16th ed. 1992). This Colorado
law is no more targeted at used car salesmen, animal rights
activists, fundraisers, environmentalists, and missionaries than
French vagrancy law was targeted at the rich. We know what the
Colorado legislators, by their careful selection of content
("protest, education, and counseling"), were taking aim at, for
they set it forth in the statute itself: the "right to protest or
counsel
against certain medical procedures" on the sidewalks
and streets surrounding health care facilities. Colo. Rev. Stat. §
18-9-122(1) (1999) (emphasis added).
The Court is unpersuasive in its attempt to equate the present
restriction with content-neutral regulation of demonstrations and
picketing-as one may immediately suspect from the opinion's wildly
expansive definitions of demonstrations as "'public display[s] of
sentiment for or against a person or cause,'" and of picketing as
an effort" 'to persuade or otherwise influence.'''
Ante, at
721-722, quoting Webster's Third New International Dictionary 600,
1710 (1993). (On these terms, Nathan Hale was a demonstrator and
Patrick Henry a picket.) When the government regulates "picketing,"
or "demonstrating," it restricts a particular manner of expression
that is, as the author of today's opinion has several times
explained, "'a mixture of conduct and commu-
745
nication.'"
Frisby v.
Schultz, 487 U. S. 474, 497 (1988)
(STEVENS, J., dissenting), quoting
NLRB v.
Retail Store
Employees, 447 U.
S. 607, 618-619 (1980) (STEVENS, J., concurring in part and
concurring in result). The latter opinion quoted approvingly
Justice Douglas's statement:
"Picketing by an organized group is more than free speech, since
it involves patrol of a particular locality and since the very
presence of a picket line may induce action of one kind or another,
quite irrespective of the nature of the ideas which are being
disseminated. Hence those aspects of picketing make it the subject
of restrictive regulation." Bakery Drivers v. Wohl,
315 U. S. 769, 776-777 (1942) (concurring opinion).
As JUSTICE STEVENS went on to explain, "no doubt the principal
reason why handbills containing the same message are so much less
effective than labor picketing is that the former depend entirely
on the persuasive force of the idea."
Retail Store Employees,
supra, at 619. Today, of course, JUSTICE STEVENS gives us an
opinion restricting not only handbilling but even one-on-one
conversation of a particular content. There comes a point-and the
Court's opinion today passes it-at which the regulation of action
intimately and unavoidably connected with traditional speech is a
regulation of speech itself. The strictures of the First Amendment
cannot be avoided by regulating the act of moving one's lips; and
they cannot be avoided by regulating the act of extending one's arm
to deliver a handbill, or peacefully approaching in order to speak.
All of these acts can be regulated, to be sure; but not, on the
basis of content, without satisfying the requirements of our
strict-scrutiny First Amendment jurisprudence.
Even with regard to picketing, of course, we have applied strict
scrutiny to content-based restrictions. See
Carey, 447 U.
S., at 461 (applying strict scrutiny to, and invalidating, an
Illinois statute that made "permissibility of residential
746
picketing ... dependent solely on the nature of the message
being conveyed"). As discussed above, the prohibition here
is content based: Those who wish to speak for purposes other
than protest, counsel, or education may do so at close range
without the listener's consent, while those who wish to speak for
other purposes may not. This bears no resemblance to a blanket
prohibition of picketing-unless, of course, one uses the fanciful
definition of picketing ("an effort to persuade or otherwise
influence") newly discovered by to day's opinion. As for the
Court's appeal to the fact that we often "examine the content of a
communication" to determine whether it "constitutes a threat,
blackmail, an agreement to fix prices, a copyright violation, a
public offering of securities, or an offer to sell goods,"
ante, at 721, the distinction is almost too obvious to bear
mention: Speech of a certain content is constitutionally
proscribable. The Court has not yet taken the step of consigning
"protest, education, and counseling" to that category.
Finally, the Court is not correct in its assertion that the
restriction here is content neutral because it is
"justified
without reference to the content of regulated speech," in the sense
that "the State's interests in protecting access and privacy, and
providing the police with clear guidelines, are unrelated to the
content of the demonstrators' speech."
Ante, at 719-720
(emphasis added). That is not an accurate statement of our law. The
Court makes too much of the statement in
Ward v.
Rock
Against Racism, 491 U. S. 781 (1989),
that "[t]he principal inquiry in determining content neutrality ...
is whether the government has adopted a regulation of speech
because of disagreement with the message it conveys."
Id.,
at 791, quoted
ante, at 719. That is indeed "the
principal inquiry"-suppression of uncongenial ideas is the
worst offense against the First Amendment-but it is not the
only inquiry. Even a law that has as its purpose something
unrelated to the suppression of particular content cannot
irrationally single out that content for its prohibition.
747
An ordinance directed at the suppression of noise (and therefore
"justified without reference to the content of regulated speech")
cannot be applied only to sound trucks delivering messages of
"protest." Our very first use of the "justified by reference to
content" language made clear that it is a prohibition
in
addition to, rather than in place of, the prohibition of
facially content-based restrictions. "Selective exclusions from a
public forum," we said, "may not be based on content alone,
and may not be justified by reference to content alone."
Police Dept. of Chicago v.
Mosley, 408 U. S. 92, 96 (1972)
(emphasis added).
But in any event, if one accepts the Court's description of the
interest served by this regulation, it is clear that the regulation
is
both based on content
and justified by reference
to content. Constitutionally proscribable "secondary effects" of
speech are directly addressed in subsection (2) of the statute,
which makes it unlawful to obstruct, hinder, impede, or block
access to a health care facility-a prohibition broad enough to
include all physical threats and all physically threatening
approaches. The purpose of subsection (3), however (according to
the Court), is to protect "[t]he unwilling listener's interest in
avoiding unwanted communication,"
ante, at 716. On this
analysis, Colorado has restricted certain categories of
speech-protest, counseling, and education-out of an apparent belief
that only speech with this content is sufficiently likely to be
annoying or upsetting as to require consent before it may be
engaged in at close range. It is reasonable enough to conclude that
even the most gentle and peaceful close approach by a so-called
"sidewalk counselor"-who wishes to "educate" the woman entering an
abortion clinic about the nature of the procedure, to "counsel"
against it and in favor of other alternatives, and perhaps even
(though less likely if the approach is to be successful) to
"protest" her taking of a human life-will often, indeed usually,
have what might be termed the "secondary effect" of annoying or
deeply upsetting the woman who is planning
748
the abortion.
But that is not an effect which occurs "without
reference to the content" of the speech. This singling out of
presumptively "unwelcome" communications fits precisely the
description of prohibited regulation set forth in
Boos v.
Barry, 485 U.
S. 312, 321 (1988): It "targets the
direct impact of a
particular category of speech, not a secondary feature that happens
to be associated with that type of speech." (Emphasis added.2)
In sum, it blinks reality to regard this statute, in its
application to oral communications, as anything other than a
content-based restriction upon speech in the public forum. As such,
it must survive that stringent mode of constitutional analysis our
cases refer to as "strict scrutiny," which requires that the
restriction be narrowly tailored to serve a compelling state
interest. See
United States v.
Playboy Entertainment
Group, Inc., 529
U. S. 803, 813 (2000);
Perry Ed. Assn. v.
Perry Local
Educators' Assn., 460 U. S. 37,45 (1983).
Since the Court does not even attempt to support the regulation
under this standard, I shall discuss it only briefly. Suffice it to
say that if protecting people from un-
2 The Court's contention that the statute is content neutral
because it is not a "'regulation of speech'" but a "regulation of
the places where some speech may occur,"
ante, at 719
(quoting
Ward v.
Rock Against Racism, 491 U. S. 781, 791
(1989)), is simply baffling. First, because the proposition that a
restriction upon the places where speech may occur is not a
restriction upon speech is both absurd and contradicted by
innumerable cases. See,
e. g., Madsen v.
Women's Health
Center, Inc., 512
U. S. 753 (1994); Burson v.
Freeman, 504 U. S. 191 (1992);
Frisby v.
Schultz, 487 U. S. 474 (1988);
Boos
v.
Barry, 485
U. S. 312 (1988);
Heffron v.
International Soc. for
Krishna Consciousness, Inc., 452 U. S. 640 (1981);
Carey v.
Brown, 447 U. S. 455 (1980);
Grayned v.
City of Rockford, 408 U. S. 104 (1972);
Police Dept. of Chicago v.
Mosley, 408 U. S. 92 (1972). And
second, because the fact that a restriction is framed as a
"regulation of the places where some speech may occur" has nothing
whatever to do with whether the restriction is content
neutral-which is why
Boos held to be content based the ban
on displaying, within 500 feet of foreign embassies, banners
designed to "'bring into public odium any foreign government.'''
485 U. S., at 316.
749
welcome communications (the governmental interest the Court
posits) is a compelling state interest, the First Amendment is a
dead letter. And if (as I shall discuss at greater length below)
forbidding peaceful, nonthreatening, but uninvited speech from a
distance closer than eight feet is a "narrowly tailored" means of
preventing the obstruction of entrance to medical facilities (the
governmental interest the State asserts), narrow tailoring must
refer not to the standards of Versace, but to those of Omar the
tentmaker. In the last analysis all of this does not matter,
however, since as I proceed to discuss neither the restrictions
upon oral communications nor those upon hand billing can withstand
a proper application of even the less demanding scrutiny we apply
to truly content-neutral regulations of speech in a traditional
public forum.
II
As the Court explains, under our precedents even a
content-neutral, time, place, and manner restriction must be
narrowly tailored to advance a significant state interest, and must
leave open ample alternative means of communication.
Ward,
491 U. S., at 802. It cannot be sustained if it "burden[s]
substantially more speech than is necessary to further the
government's legitimate interests."
Id., at 799.
This requires us to determine, first, what
is the
significant interest the State seeks to advance? Here there appears
to be a bit of a disagreement between the State of Colorado (which
should know) and the Court (which is eager to speculate). Colorado
has identified in the text of the statute itself the interest it
sought to advance: to ensure that the State's citizens may "obtain
medical counseling and treatment in an unobstructed manner" by
"preventing the willful obstruction of a person's access to medical
counseling and treatment at a health care facility." Colo. Rev.
Stat. § 18-9-122(1) (1999). In its brief here, the State repeatedly
confirms the interest squarely identified in the statute under
review. See,
e. g., Brief for Respondents 15 ("Each
provision of the statute was
750
chosen to precisely address crowding and physical intimidation:
conduct shown to impede access, endanger safety and health, and
strangle effective law enforcement");
id., at 14 ("[T]his
provision narrowly addresses the conduct shown to interfere with
access through crowding and physical threats"). The Court
nevertheless concludes that the Colorado provision is narrowly
tailored to serve ...
the State's interest in protecting its
citizens' rights to be let alone from unwanted speech.
Indeed, the situation is even more bizarre than that. The
interest that the Court makes the linchpin of its analysis was not
only unasserted by the State; it is not only completely
different from the interest that the statute specifically
sets forth; it was explicitly
disclaimed by the State in its
brief before this Court, and characterized as a "straw interest"
petitioners served up in the hope of discrediting the
State's case.
Id., at 25, n. 19. We may thus add to the
lengthening list of "firsts" generated by this Court's relentlessly
proabortion jurisprudence, the first case in which, in order to
sustain a statute, the Court has relied upon a governmental
interest not only unasserted by the State, but positively
repudiated.
I shall discuss below the obvious invalidity of this statute
assuming, first (in Part A), the fictitious state interest that the
Court has invented, and then (in Part B), the interest actually
recited in the statute and asserted by counsel for Colorado.
A
It is not without reason that Colorado claimed that, in
attributing to this statute the false purpose of protecting
citizens' right to be let alone, petitioners were seeking to
discredit it. Just three Terms ago, in upholding an injunction
against antiabortion activities, the Court refused to rely on any
supposed "'right of the people approaching and entering the
facilities to be left alone.'"
Schenck v.
Pro-Choice
Network of Western N.
Y., 519 U. S. 357, 383
(1997). It expressed "doubt" that this "'right' ... accurately
reflects our
751
First Amendment jurisprudence."
Ibid. Finding itself in
something of a jam (the State here has passed a regulation that is
obviously not narrowly tailored to advance any
other
interest), the Court today neatly repackages the repudiated "right"
as an "interest" the State may decide to protect,
ante, at
717, n. 24, and then places it onto the scales opposite the right
to free speech in a traditional public forum.
To support the legitimacy of its self-invented state interest,
the Court relies upon a
bon mot in a 1928 dissent (which we
evidently overlooked in
Schenck). It characterizes the
"unwilling listener's interest in avoiding unwanted communication"
as an "aspect of the broader 'right to be let alone'" Justice
Brandeis coined in his dissent in
Olmstead v.
United
States, 277 U. S.
438, 478. The amusing feature is that even this slim reed
contradicts rather than supports the Court's position. The right to
be let alone that Justice Brandeis identified was a right the
Constitution "conferred,
as against the government"; it was
that right, not some generalized "common-law right" or
"interest" to be free from hearing the unwanted opinions of one's
fellow citizens, which he called the "most comprehensive" and "most
valued by civilized men."
Ibid. (emphasis added). To the
extent that there can be gleaned from our cases a "right to be let
alone" in the sense that Justice Brandeis intended, it is the right
of the
speaker in the public forum to be free from
government interference of the sort Colorado has imposed here.
In any event, the Court's attempt to disguise the "right to be
let alone" as a "governmental interest in protecting the right to
be let alone" is unavailing for the simple reason that this is not
an interest that may be legitimately weighed against the speakers'
First Amendment rights (which the Court demotes to the status of
First Amendment "interests,"
ante, at 714). We have
consistently held that "the Constitution does not
permit
government to decide which types of otherwise protected speech are
sufficiently offensive to require protection
for the unwilling
listener or viewer." Erz-
752
noznik v.
Jacksonville, 422 U. S. 205, 210 (1975)
(emphasis added). And as recently as in
Schenck, the Court
reiterated that "[a]s a general matter, we have indicated that in
public debate our own citizens must tolerate insulting, and even
outrageous, speech in order to provide adequate breathing space to
the freedoms protected by the First Amendment." 519 U. S., at 383
(internal quotation marks omitted).
The Court nonetheless purports to derive from our cases a
principle limiting the protection the Constitution affords the
speaker's right to direct "offensive messages" at "unwilling"
audiences in the public forum.
Ante, at 716. There is no
such principle. We have upheld limitations on a speaker's exercise
of his right to speak on the public streets
when that speech
intrudes into the privacy of the home. Frisby, 487 U. S., at
483, upheld a content-neutral municipal ordinance prohibiting
picketing outside a residence or dwelling. The ordinance, we
concluded, was justified by, and narrowly tailored to advance, the
government's interest in the "protection of residential privacy."
Id., at 484. Our opinion rested upon the "unique nature of
the home"; "the home," we said, "is different."
Ibid. The
reasoning of the case plainly assumed the
nonexistence of
the right-common law or otherwise-that the Court relies on today,
the right to be free from unwanted speech when on the public
streets and sidewalks. The home, we noted, was" 'the one retreat to
which men and women can repair to escape from the tribulations of
their daily pursuits.'''
Ibid. (quoting
Carey, 447 U.
S., at 471). The limitation on a speaker's right to bombard the
home with unwanted messages which we approved in
Frisby-and
in
Rowan v.
Post Office Dept., 397 U. S. 728 (1970),
upon which the Court also relies-was predicated on the fact that"
'we are often 'captives'
outside the sanctuary of the home
and subject to objectionable speech.'''
Frisby, supra, at
484 (quoting
Rowan, supra, at 738) (emphasis added). As the
universally understood state of First Amendment law is described in
a leading treatise: "Outside
753
the home, the burden is generally on the observer or listener to
avert his eyes or plug his ears against the verbal assaults, lurid
advertisements, tawdry books and magazines, and other 'offensive'
intrusions which increasingly attend urban life." L. Tribe,
American Constitutional Law § 12-19, p. 948 (2d ed. 1988). The
Court today elevates the abortion clinic to the status of the
home.3
There is apparently no end to the distortion of our First
Amendment law that the Court is willing to endure in order to
sustain this restriction upon the free speech of abortion
opponents. The labor movement, in particular, has good cause for
alarm in the Court's extensive reliance upon
American Steel
Foundries v.
Tri-City Central Trades Council, 257 U. S. 184 (1921), an
opinion in which the Court held that the Clayton Act's prohibition
of injunctions against lawful and peaceful labor picketing did not
forbid the injunction in that particular case. The First Amendment
was not at issue, and was not so much as mentioned in the opinion,
so the case is scant authority for the point the Court wishes to
make. The case is also irrelevant because it was "clear from the
evidence that from the outset, violent methods were pursued from
time to time in such a way as to characterize the attitude of the
picketers as continuously threatening."
Id., at 200. No such
finding was made, or could be made, here. More importantly,
however, as far as our future labor cases
3 I do not disagree with the Court that "our cases have
repeatedly recognized the interests of unwilling listeners" in
locations, such as public conveyances, where "'the degree of
captivity makes it impractical for the unwilling viewer or auditor
to avoid exposure,' "
ante, at 718 (quoting
Erznoznik
v.
Jacksonville, 422 U. S. 205, 209
(1975)). But we have never made the absurd suggestion that a
pedestrian is a "captive" of the speaker who seeks to address him
on the public sidewalks, where he may simply walk quickly by.
Erznoznik itself, of course,
invalidated a
prohibition on the showing of films containing nudity on screens
visible from the street, noting that "the burden normally falls
upon the viewer to 'avoid further bombardment of [his]
sensibilities simply by averting [his] eyes.'''
Id., at
210-211 (quoting
Cohen v.
California, 403 U. S. 15,21
(1971).
754
are concerned: If a "right to be free" from "persistence,
importunity, following and dogging,"
id., at 204, short of
actual intimidation, was part of our infant First Amendment law in
1921, I am shocked to think that it is there today. The Court's
assertion that "[n]one of our decisions has minimized the enduring
importance of 'a right to be free' from persistent 'importunity,
following and dogging' after an offer to communicate has been
declined,"
ante, at 718, is belied by the fact that this
passage from
American Steel Foundries has never-not
once-found its way into any of the many First Amendment cases this
Court has decided since 1921. We will have cause to regret today's
injection of this irrelevant anachronism into the mainstream of our
First Amendment jurisprudence.
Of course even if one accepted the
American Steel
Foundries dictum as an accurate expression of First Amendment
law, the statute here is plainly not narrowly tailored to protect
the interest that dictum describes. Preserving the "right to be
free" from "persisten[t] importunity, following and dogging" does
not remotely require imposing upon all speakers who wish to
protest, educate, or counsel a duty to request permission to
approach closer than eight feet. The only way the narrow-tailoring
objection can be eliminated is to posit a state-created,
First-Amendment-trumping "right to be let alone" as broad and
undefined as Brandeis's
Olmstead dictum, which may
well (why not, if the Court wishes it?) embrace a right not to be
spoken to without permission from a distance closer than eight
feet. Nothing stands in the way of
that solution to the
narrow-tailoring problemexcept, of course, its utter absurdity,
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 Colorado's brief: the
preservation of unimpeded access to health care facilities. We need
look no further than subsection (2) of the statute to
755
see what a provision would look like that is narrowly tailored
to serve
that interest. Under the terms of that subsection,
any person who "knowingly obstructs, detains, hinders, impedes, or
blocks another person's entry to or exit from a health care
facility" is subject to criminal and civil liability. It is
possible, I suppose, that subsection (2) of the Colorado statute
will leave unrestricted some expressive activity that, if engaged
in from within eight feet, may be sufficiently harassing as to have
the effect of impeding access to health care facilities. In
subsection (3), however, the State of Colorado has prohibited a
vast amount of speech that cannot possibly be thought to correspond
to that evil.
To begin with, the 8-foot buffer zone attaches to
every
person on the public way or sidewalk within 100 feet of the
entrance of a medical facility, regardless of whether that person
is seeking to enter or exit the facility. In fact, the State
acknowledged at oral argument that the buffer zone would attach to
any person within 100 feet of the entrance door of a skyscraper in
which a single doctor occupied an office on the 18th floor. Tr. of
Oral Arg. 41. And even with respect to those who
are seeking
to enter or exit the facilities, the statute does not protect them
only from speech that is so intimidating or threatening as to
impede access. Rather, it covers
all unconsented-to
approaches for the purpose of oral protest, education, or
counseling (including those made for the purpose of the most
peaceful appeals) and, perhaps even more significantly,
every approach made for the purposes of leafletting or
handbilling, which we have never considered, standing alone,
obstructive or unduly intrusive. The sweep of this prohibition is
breathtaking.
The Court makes no attempt to justify on the facts this blatant
violation of the narrow-tailoring principle. Instead, it flirts
with the creation of yet a new constitutional "first" designed for
abortion cases: "[W]hen," it says, "a contentneutral regulation
does not entirely foreclose any means of communication, it may
satisfy the tailoring requirement even
756
though it is not the least restrictive or least intrusive means
of serving the statutory goal."
Ante, at 726. The
implication is that the availability of alternative means of
communication permits the imposition of the speech restriction upon
more individuals, or more types of communication, than narrow
tailoring would otherwise demand. The Court assures us that "we
have emphasized" this proposition "on more than one occasion,"
ibid. The only citation the Court provides, however, says no
such thing.
Ward v.
Rock Against Racism, 491 U. S.,
at 798, quoted
ante, at 726, n. 32, says only that narrow
tailoring is not synonymous with "least restrictive" alternative.
It does not at all suggest-and to my knowledge no other case does
either-that narrow tailoring can be relaxed when there are other
speech alternatives.
The burdens this law imposes upon the right to speak are
substantial, despite an attempt to minimize them that is not even
embarrassed to make the suggestion that they might actually "assist
... the speakers' efforts to communicate their messages,"
ante, at 727. (Compare this with the Court's statement in a
nonabortion case, joined by the author of to day's opinion: "The
First Amendment mandates that we presume that speakers, not the
government, know best both what they want to say and how to say
it."
Riley v.
National Federation of Blind of N. c.,
Inc., 487 U.
S. 781, 790-791 (1988).) The Court displays a willful ignorance
of the type and nature of communication affected by the statute's
restrictions. It seriously asserts, for example, that the 8-foot
zone allows a speaker to communicate at a "normal conversational
distance,"
ante, at 726-727. I have certainly held
conversations at a distance of eight feet seated in the quiet of my
chambers, but I have never walked along the public sidewalk-and
have not seen others do so-"conversing" at an 8-foot remove. The
suggestion is absurd. So is the suggestion that the opponents of
abortion can take comfort in the fact that the statute "places no
limitation on the number of speakers or the noise level, including
the use of amplification
757
equipment,"
ante, at 726. That is good enough, I suppose,
for "protesting"; but the Court must know that most of the
"counseling" and "educating" likely to take place outside a health
care facility cannot be done at a distance and at a high-decibel
level. The availability of a powerful amplification system will be
of little help to the woman who hopes to forge, in the last moments
before another of her sex is to have an abortion, a bond of concern
and intimacy that might enable her to persuade the woman to change
her mind and heart. The counselor may wish to walk alongside and to
say, sympathetically and as softly as the circumstances allow,
something like: "My dear, I know what you are going through. I've
been through it myself. You're not alone and you do not have to do
this. There are other alternatives. Will you let me help you? May I
show you a picture of what your child looks like at this stage of
her human development?" The Court would have us believe that this
can be done effectively-yea, perhaps even
more
effectively-by shouting through a bullhorn at a distance of eight
feet.
The Court seems prepared, if only for a moment, see
ante,
at 727-728, to take seriously the magnitude of the burden the
statute imposes on simple hand billing and leafletting. That
concern is fleeting, however, since it is promptly assuaged by the
realization that a leafletter may, without violating the statute,
stand "near the path" of oncoming pedestrians and make his
"proffe[r] ... , which the pedestrians can easily accept,"
ante, at 727. It does not take a veteran labor organizer to
recognize-although surely any would, see Brief for American
Federation of Labor and Congress of Industrial Organizations as
Amicus Curiae 7-8-that leafletting will be rendered utterly
ineffectual by a requirement that the leafletter obtain from each
subject permission to approach, or else man a stationary post (one
that does not obstruct access to the facility, lest he violate
subsection (2) of statute) and wait for passersby voluntarily to
approach an outstretched hand. That simply is not how it is done,
and the
758
Court knows it-or should. A leafletter, whether he is working on
behalf of Operation Rescue, Local 109, or Bubba's Bar-B-Que, stakes
out the best piece of real estate he can, and then walks a few
steps toward individuals passing in his vicinity, extending his arm
and making it
as easy as possible for the passerby, whose
natural inclination is generally not to seek out such
distributions, to simply accept the offering. Few pedestrians are
likely to give their "consent" to the approach of a handbiller
(indeed, by the time he requested it they would likely have passed
by), and even fewer are likely to walk over in order to pick up a
leaflet. In the abortion context, therefore, ordinary handbilling,
which we have in other contexts recognized to be a "classic for[m]
of speech that lie[s] at the heart of the First Amendment,"
Schenck, 519 U. S., at 377, will in its most effective
locations be rendered futile, the Court's implausible assertions to
the contrary notwithstanding.
The Colorado provision differs in one fundamental respect from
the "content-neutral" time, place, and manner restrictions the
Court has previously upheld. Each of them rested upon a necessary
connection between the regulated expression and the evil the
challenged regulation sought to eliminate. So, for instance, in
Ward v.
Rock Against Racism, the Court approved the
city's control over sound amplification because every occasion of
amplified sound presented the evil of excessive noise and
distortion disturbing the areas surrounding the public forum. The
regulation we upheld in
Ward, rather than "ban[ning] all
concerts, or even all rock concerts, ... instead focus[ed] on the
source of the evils the city seeks to eliminate ... and eliminates
them without at the same time banning or significantly restricting
a substantial quantity of speech that does not create the same
evils." 491 U. S., at 799, n. 7. In
Members of City Council of
Los Angeles v.
Taxpayers for Vincent, 466 U. S. 789, 808
(1984), the Court approved a prohibition on signs attached to
utility poles which "did no more than eliminate the exact source
of
759
the evil it sought to remedy." In
Heffron v.
International Soc. for Krishna Consciousness, Inc., 452 U. S. 640, 652
(1981), the Court upheld a regulation prohibiting the sale or
distribution on the state fairgrounds of any merchandise, including
printed or written material, except from a fixed location, because
that precisely served the State's interest in "avoiding congestion
and maintaining the orderly movement of fair patrons on the
fairgrounds."
In contrast to the laws approved in those cases, the law before
us here enacts a broad prophylactic restriction which does not
"respon[dJ precisely to the substantive problem which legitimately
concern[edJ" the State,
Vincent, supra, at 810-namely (the
only problem asserted by Colorado), the obstruction of access to
health facilities. Such prophylactic restrictions in the First
Amendment context-even when they are content neutral-are not
permissible. "Broad prophylactic rules in the area of free
expression are suspect .... Precision of regulation must be the
touchstone in an area so closely touching our most precious
freedoms."
NAACP v.
Button, 371 U. S. 415, 438
(1963). In
United States v.
Grace, 461 U. S. 171 (1983), we
declined to uphold a ban on certain expressive activity on the
sidewalks surrounding the Supreme Court. The purpose of the
restriction was the perfectly valid interest in security, just as
the purpose of the restriction here is the perfectly valid interest
in unobstructed access; and there, as here, the restriction
furthered that interest-but it furthered it with insufficient
precision and hence at excessive cost to the freedom of speech.
There was, we said, "an insufficient nexus" between security and
all the expressive activity that was banned,
id., at
181-just as here there is an insufficient nexus between the
assurance of access and forbidding unconsented communications
within eight feet.4
4 The Court's suggestion,
ante, at 730, that the
restrictions imposed by the Colorado ban are unobjectionable
because they "interfer[e] far less with a speaker's ability to
communicate" than did the regulations involved
760
Compare with these venerable and consistent descriptions of our
First Amendment law the defenses that the Court makes to the
contention that the present statute is overbroad. (To be sure, the
Court is assuming its own invented state interest-protection of the
"right to be let alone"rather than the interest that the statute
describes, but even so the statements are extraordinary.) "The
fact," the Court says, "that the coverage of a statute is broader
than the specific concern that led to its enactment is of no
constitutional significance."
Ante, at 730-731. That is true
enough ordinarily, but it is
not true with respect to
restraints upon speech, which is what the doctrine of overbreadth
is all about. (Of course it is also not true, thanks to one of the
other proabortion "firsts" announced by the current Court, with
respect to restrictions upon abortion, which-as our decision in
Stenberg v.
Carhart, post, p. 914, exemplifies-has
been raised to First Amendment status, even as speech opposing
abortion has been demoted from First Amendment status.) Again, the
Court says that the overbreadth doctrine is not applicable because
this law simply "does not 'ban' any signs, literature, or oral
statements," but "merely regulates the places where communications
may occur."
Ante, at 731. I know of no precedent for the
proposition that time, place, and manner restrictions are not
subject to the doctrine of overbreadth. Our decision in
Grace,
supra, demonstrates the contrary: Restriction of speech on the
sidewalks around
in
Frisby v.
Schultz, 487 U. S. 474 (1988), and
Heffron, and in cases requiring "silence" outside of a
hospital (by which I presume the Court means
Madsen v.
Women's Health Center, Inc., 512 U. S. 753 (1994)),
misses the point of narrow-tailoring analysis. We do not compare
restrictions on speech to some Platonic ideal of speech
restrictiveness, or to each other. Rather, our First Amendment
doctrine requires us to consider whether the regulation in question
burdens substantially more speech than necessary to achieve
the
particular interest the government has identified and asserted.
Ward, 491 U. S., at 799. In each of the instances the Court
cites, we concluded that the challenged regulation contained the
precision that our cases require and that Colorado's statute (which
the Court itself calls "prophylactic,"
ante, at 729)
manifestly lacks.
761
the Supreme Court was invalidated because it went further than
the needs of security justified. Surely New York City cannot
require a parade permit and a security bond for any individual who
carries a sign on the sidewalks of Fifth Avenue.
The Court can derive no support for its approval of Colorado's
overbroad prophylactic measure from our decision in
Schenck.
To be sure, there we rejected the argument that the court
injunction on demonstrating within a fixed buffer zone around
clinic entrances was unconstitutional because it banned even
"'peaceful, nonobstructive demonstrations.'" 519 U. S., at 381. The
Court upheld the injunction, however, only because the "District
Court was entitled to conclude," "[b]ased on defendants' past
conduct" and "the record in [that] case," that the specific
defendants involved would, if permitted within the buffer zone,
"continue to do what they had done before: aggressively follow and
crowd individuals right up to the clinic door and then refuse to
move, or purposefully mill around parking lot entrances in an
effort to impede or block the progress of cars."
Id., at
381-382. It is one thing to assume, as in
Schenck, that a
prophylactic injunction is necessary when the specific targets of
that measure have demonstrated an inability or unwillingness to
engage in protected speech activity without also engaging in
conduct that the Constitution clearly does not protect. It
is something else to assume that
all those who wish to speak
outside health care facilities across the State will similarly
abuse their rights if permitted to exercise them. The First
Amendment stands as a bar to exactly this type of prophylactic
legislation. I cannot improve upon the Court's conclusion in
Madsen that "it is difficult, indeed, to justify a
prohibition on
all uninvited approaches of persons seeking
the services of the clinic, regardless of how peaceful the contact
may be, without burdening more speech than necessary to prevent
intimidation and to ensure access to the clinic. Absent evidence
that the protesters' speech is independently
762
proscribable (i.
e., 'fighting words' or threats), or is
so infused with violence as to be indistinguishable from a threat
of physical harm, this provision cannot stand." 512 U. S., at 774
(citation omitted).
The foregoing discussion of overbreadth was written before the
Court, in responding to JUSTICE KENNEDY, abandoned any pretense at
compliance with that doctrine, and acknowledged-indeed,
boasted-that the statute it approves "takes a prophylactic
approach,"
ante, at 729, and adopts "[a] bright-line
prophylactic rule,"
ibid.5 I scarcely know how to
respond to such an unabashed repudiation of our First Amendment
doctrine. Prophylaxis is the antithesis of narrow tailoring, as the
previously quoted passage from
Button makes clear ("Broad
prophylactic rules in the area of free expression are suspect ....
Precision of regulation must be the touchstone in an area so
closely touching our most precious freedoms." 371 U. S., at 438).
If the Court were going to make this concession, it could simply
have dispensed with its earlier (unpersuasive) attempt to show that
the statute
was narrowly tailored. So one can add to the
casualties of our whatever-it-takes proabortion jurisprudence the
First Amendment doctrine of narrow tailoring and overbreadth. R. 1.
P.
***
Before it effectively threw in the towel on the narrowtailoring
point, the Court asserted the importance of taking
5 Of course the Court greatly understates the scope of the
prophylaxis, saying that "the statute's prophylactic aspect is
justified by the great difficulty of protecting, say, a pregnant
woman from physical harassment with legal rules that focus
exclusively on the individual impact of each instance of behavior,"
ante, at 729. But the statute prevents the "physically
harassing" act of (shudder!) approaching within closer than eight
feet not only when it is directed against pregnant women, but also
(just to be safe) when it is directed against 300-pound, male, and
unpregnant truck drivers-surely a distinction that is not
"difficult to make accurately,"
ibid.
763
into account "'the place to which the regulations apply in
determining whether these restrictions burden more speech than
necessary.'"
Ante, at 728 (quoting
Madsen, supra, at
772). A proper regard for the "place" involved in this case should
result in, if anything, a commitment by this Court to adhere to and
rigorously enforce our speech-protective standards. The public
forum involved here-the public spaces outside of health care
facilities-has become, by necessity and by virtue of this Court's
decisions, a forum of last resort for those who oppose abortion.
The possibility of limiting abortion by legislative means-even
abortion of a live-and-kicking child that is almost entirely out of
the womb-has been rendered impossible by our decisions from
Roe v.
Wade, 410 U. S. 113 (1973), to
Stenberg v.
Carhart, post, p. 914. For those who
share an abiding moral or religious conviction (or, for that
matter, simply a biological appreciation) that abortion is the
taking of a human life, there is no option but to persuade women,
one by one, not to make that choice. And as a general matter, the
most effective place, if not the only place, where that persuasion
can occur is outside the entrances to abortion facilities. By
upholding these restrictions on speech in this place the Court
ratifies the State's attempt to make even that task an impossible
one.
Those whose concern is for the physical safety and security of
clinic patients, workers, and doctors should take no comfort from
to day's decision. Individuals or groups intent on bullying or
frightening women out of an abortion, or doctors out of performing
that procedure, will not be deterred by Colorado's statute;
bullhorns and screaming from eight feet away will serve their
purposes well. But those who would accomplish their moral and
religious objectives by peaceful and civil means, by trying to
persuade individual women of the rightness of their cause, will be
deterred; and that is not a good thing in a democracy. This Court
once recognized, as the Framers surely did, that the freedom to
speak and persuade is inseparable from, and antecedent to, the
survival
764
of self-government. The Court today rotates that essential
safety valve on our democracy one-half turn to the right, and no
one who seeks safe access to health care facilities in Colorado or
elsewhere should feel that her security has by this decision been
enhanced.
It is interesting to compare the present decision, which
upholds an utterly bizarre proabortion "request to approach"
provision of Colorado law, with
Stenberg, post, p. 914, also
announced today, which
strikes down a live-birth abortion
prohibition adopted by 30 States and twice passed by both Houses of
Congress (though vetoed both times by the President). The present
case disregards the State's own assertion of the purpose of its
proabortion law, and posits instead a purpose that the Court
believes will be more likely to render the law
constitutional.
Stenberg rejects the State's assertion of the very meaning of
its antiabortion law, and declares instead a meaning that will
render the law unconstitutional. The present case
rejects
overbreadth challenges to a proabortion law that regulates speech,
on grounds that have no support in our prior jurisprudence and that
instead amount to a total repudiation of the doctrine of
overbreadth.
Stenberg applies overbreadth analysis to an
antiabortion law that has nothing to do with speech, even though
until eight years ago overbreadth was unquestionably the exclusive
preserve of the First Amendment. See
Janklow v.
Planned
Parenthood, Sioux Falls Clinic, 517 U. S. 1174, 1177-1181
(1996) (SCALIA, J., dissenting from denial of certiorari);
Ada v.
Guam Soc. of Obstetricians &
Gynecologists, 506 U. S. 1011, 1013 (1992) (SCALIA, J.,
dissenting from denial of certiorari).
Does the deck seem stacked? You bet. As I have suggested
throughout this opinion, to day's decision is not an isolated
distortion of our traditional constitutional principles, but is one
of many aggressively proabortion novelties announced by the Court
in recent years. See,
e. g., Madsen v.
Women's Health
Center, Inc., 512
U. S. 753 (1994);
Schenck
765
v.
Pro-Choice Network of Western N.
Y., 519 U. S. 357 (1997);
Thornburgh v.
American College of Obstetricians and
Gynecologists, 476 U. S. 747 (1986).
Today's distortions, however, are particularly blatant. Restrictive
views of the First Amendment that have been in dissent since the
1930's suddenly find themselves in the majority. "Uninhibited,
robust, and wide open" debate is replaced by the power of the State
to protect an unheard-of "right to be let alone" on the public
streets. I dissent.
JUSTICE KENNEDY, dissenting.
The Court's holding contradicts more than a half century of
well-established First Amendment principles. For the first time,
the Court approves a law which bars a private citizen from passing
a message, in a peaceful manner and on a profound moral issue, to a
fellow citizen on a public sidewalk. If from this time forward the
Court repeats its grave errors of analysis, we shall have no longer
the proud tradition of free and open discourse in a public forum.
In my view, JUSTICE SCALIA'S First Amendment analysis is correct
and mandates outright reversal. In addition to undermining
established First Amendment principles, the Court's decision
conflicts with the essence of the joint opinion in
Planned
Parenthood of Southeastern Pa. v.
Casey, 505 U. S. 833 (1992). It
seems appropriate in these circumstances to reinforce JUSTICE
SCALIA'S correct First Amendment conclusions and to set forth my
own views.
I
The Court uses the framework of
Ward v.
Rock Against
Racism, 491 U. S.
781 (1989), for resolution of the case. The Court wields the
categories of
Ward so that what once were rules to protect
speech now become rules to restrict it. This is twice unfortunate.
The rules of
Ward are diminished in value for later cases;
and the
Ward analysis ought not have been undertaken at all.
To employ
Ward's com-
766
plete framework is a mistake at the outset, for
Ward
applies only if a statute is content neutral. Colorado's statute is
a textbook example of a law which is content based.
A
The statute makes it a criminal offense to "knowingly approach
another person within eight feet of such person, unless such other
person consents, for the purpose of passing a leaflet or handbill
to, displaying a sign to, or engaging in oral protest, education,
or counseling with such other person in the public way or sidewalk
area within a radius of one hundred feet from any entrance door to
a health care facility." Colo. Rev. Stat. § 18-9-122(3) (1999). The
law imposes content-based restrictions on speech by reason of the
terms it uses, the categories it employs, and the conditions for
its enforcement. It is content based, too, by its predictable and
intended operation. Whether particular messages violate the statute
is determined by their substance. The law is a prime example of a
statute inviting screening and censoring of individual speech; and
it is serious error to hold otherwise.
The Court errs in asserting the Colorado statute is no different
from laws sustained as content neutral in earlier cases. The
prohibitions against "picketing" and/or "leafleting" upheld in
Frisby v.
Schultz, 487 U. S. 474 (1988),
United States v.
Grace, 461 U. S. 171 (1983), and
Police Dept. of Chicago v.
Mosley, 408 U. S. 92 (1972), the
Court says, see
ante, at 722, and n. 30, are no different
from the restrictions on "protest, education, or counseling"
imposed by the Colorado statute. The parallel the Court sees does
not exist. No examination of the content of a speaker's message is
required to determine whether an individual is picketing, or
distributing a leaflet, or impeding free access to a building.
Under the Colorado enactment, however, the State must review
content to determine whether a person has engaged in criminal
"protest, education, or counseling." When a citizen
767
approaches another on the sidewalk in a disfavored-speech zone,
an officer of the State must listen to what the speaker says. If,
in the officer's judgment, the speaker's words stray too far toward
"protest, education, or counseling"-the boundaries of which are far
from clear-the officer may decide the speech has moved from the
permissible to the criminal. The First Amendment does not give the
government such power.
The statute is content based for an additional reason: It
restricts speech on particular topics. Of course, the enactment
restricts "oral protest, education, or counseling" on any subject;
but a statute of broad application is not content neutral if its
terms control the substance of a speaker's message. If oral
protest, education, or counseling on every subject within an 8-foot
zone present a danger to the public, the statute should apply to
every building entrance in the State. It does not. It applies only
to a special class of locations: entrances to buildings with health
care facilities. We would close our eyes to reality were we to deny
that "oral protest, education, or counseling" outside the entrances
to medical facilities concern a narrow range of topics-indeed, one
topic in particular. By confining the law's application to the
specific locations where the prohibited discourse occurs, the State
has made a content-based determination. The Court ought to so
acknowledge. Clever content-based restrictions are no less
offensive than censoring on the basis of content. See,
e.
g., United States v.
Eichman, 496 U. S. 310 (1990). If,
just a few decades ago, a State with a history of enforcing racial
discrimination had enacted a statute like this one, regulating
"oral protest, education, or counseling" within 100 feet of the
entrance to any lunch counter, our predecessors would not have
hesitated to hold it was content based or viewpoint based. It
should be a profound disappointment to defenders of the First
Amendment that the Court today refuses to apply the same structural
analysis when the speech involved is less palatable to it.
768
The Court, in error and irony, validates the Colorado statute
because it purports to restrict all of the proscribed expressive
activity regardless of the subject. The evenhandedness the Court
finds so satisfying, however, is but a disguise for a glaring First
Amendment violation. The Court, by citing the breadth of the
statute, cannot escape the conclusion that its categories are
nonetheless content based. The liberty of a society is measured in
part by what its citizens are free to discuss among themselves.
Colorado's scheme of disfavored-speech zones on public streets and
sidewalks, and the Court's opinion validating them, are
antithetical to our entire First Amendment tradition. To say that
one citizen can approach another to ask the time or the weather
forecast or the directions to Main Street but not to initiate
discussion on one of the most basic moral and political issues in
all of contemporary discourse, a question touching profound ideas
in philosophy and theology, is an astonishing view of the First
Amendment. For the majority to examine the statute under rules
applicable to contentneutral regulations is an affront to First
Amendment teachings.
After the Court errs in finding the statute content neutral, it
compounds the mistake by finding the law viewpoint neutral.
Viewpoint-based rules are invidious speech restrictions, yet the
Court approves this one. The purpose and design of the statute-as
everyone ought to know and as its own defenders urge in attempted
justification-are to restrict speakers on one side of the debate:
those who protest abortions. The statute applies only to medical
facilities, a convenient yet obvious mask for the legislature's
true purpose and for the prohibition's true effect. One need read
no further than the statute's preamble to remove any doubt about
the question. The Colorado Legislature sought to restrict "a
person's right to protest or counsel against certain medical
procedures." Colo. Rev. Stat. § 18-9-122(1) (1999). The word
"against" reveals the legislature's desire to restrict
769
discourse on one side of the issue regarding "certain medical
procedures." The testimony to the Colorado Legislature consisted,
almost in its entirety, of debates and controversies with respect
to abortion, a point the majority acknowledges.
Ante, at
715. The legislature's purpose to restrict unpopular speech should
be beyond dispute.
The statute's operation reflects its objective. Under the most
reasonable interpretation of Colorado's law, if a speaker
approaches a fellow citizen within anyone of Colorado's thousands
of disfavored-speech zones and chants in praise of the Supreme
Court and its abortion decisions, I should think there is neither
protest, nor education, nor counseling. If the opposite message is
communicated, however, a prosecution to punish protest is
warranted. The antispeech distinction also pertains if a citizen
approaches a public official visiting a health care facility to
make a point in favor of abortion rights. If she says, "Good job,
Governor," there is no violation; if she says, "Shame on you,
Governor," there is. Furthermore, if the speaker addresses a woman
who is considering an abortion and says, "Please take just a moment
to read these brochures and call our support line to talk with
women who have been in your situation," the speaker would face
criminal penalties for counseling. Yet if the speaker simply says,
"We are for abortion rights," I should think this is neither
education nor counseling. Thus does the Court today ensure its own
decisions can be praised but not condemned. Thus does it restrict
speech designed to teach that the exercise of a constitutional
right is not necessarily concomitant with making a sound moral
choice. Nothing in our law or our enviable free speech tradition
sustains this selfserving rule. Colorado is now allowed to punish
speech because of its content and viewpoint.
The Court time and again has held content-based or
viewpoint-based regulations to be presumptively invalid. See
McIntyre v.
Ohio Elections Comm'n, 514 U. S. 334, 345346
(1995);
R. A. v: v.
St. Paul, 505 U. S. 377, 382
(1992);
770
Simon &
Schuster, Inc. v.
Members of N.
Y. State Crime Victims Bd., 502 U. S. 105, 116 (1991)
(" 'Regulations which permit the Government to discriminate on the
basis of the content of the message cannot be tolerated under the
First Amendment'" (quoting
Regan v.
Time, Inc.,
468 U. S. 641,
648-649 (1984))). Here the statute "suppresses expression out of
concern for its likely communicative impact."
Eichman, 496
U. S., at 317. Like the picketing statute struck down in
Boos v.
Barry, 485 U. S. 312 (1998),
this prohibition seeks to eliminate public discourse on an entire
subject and topic. The Court can cite not a single case where we
sustained a law aimed at a broad class of topics on grounds that it
is both content and viewpoint neutral. Cf.
McIntyre v.
Ohio Elections Comm'n, supra, at 345 ("[E]ven though this
provision applies evenhandedly to advocates of differing
viewpoints, it is a direct regulation of the content of speech");
Boos, supra, at 319 ("[A] regulation that 'does not favor
either side of a political controversy' is nonetheless
impermissible because the 'First Amendment's hostility to
content-based regulation extends ... to prohibition of public
discussion of an entire topic'" (quoting
Consolidated Edison Co.
of N.
Y. v.
Public Servo Comm'n of N.
Y.,
447 U. S. 530,
537 (1980))); see also
First Nat. Bank of Boston v.
Bellotti, 435
U. S. 765, 784-785 (1978) (invalidating statute which permitted
corporations to speak on political issues decided by referenda, but
not on other subjects). Statutes which impose content-based or
viewpoint-based restrictions are subjected to exacting scrutiny.
The State has failed to sustain its burden of proving that its
statute is content and viewpoint neutral. See
United States
v.
Playboy Entertainment Group, Inc., 529 U. S. 803, 816 (2000)
("When the Government restricts speech, the Government bears the
burden of proving the constitutionality of its actions"). The
Ward time, place, and manner analysis is simply inapplicable
to this law. I would hold the statute invalid from the very
start.
771
B
In a further glaring departure from precedent we learn today
that citizens have a right to avoid unpopular speech in a public
forum.
Ante, at 716-717. For reasons JUSTICE SCALIA explains
in convincing fashion, neither Justice Brandeis' dissenting opinion
in
Olmstead v.
United States, 277 U. S. 438, 478
(1928), nor the Court's opinion in
American Steel Foundries
v.
Tri-City Central Trades Council, 257 U. S. 184 (1921),
establishes a right to be free from unwelcome expression aired by a
fellow citizen in a traditional public forum: "The Fourteenth
Amendment does not permit a State to make criminal the peaceful
expression of unpopular views."
Edwards v.
South
Carolina, 372 U.
S. 229, 237 (1963).
The Court's reliance on
Rowan v.
Post Office Dept.,
397 U. S. 728 (1970), and
Erznoznik v.
Jacksonville, 422 U. S. 205 (1975), is
inapt.
Rowan involved a federal statute allowing individuals
to remove their names from commercial mailing lists. Businesses
contended the statute infringed upon their First Amendment right to
communicate with private citizens. The Court rejected the
challenge, reasoning that the First Amendment affords individuals
some control over what, and how often, unwelcome commercial
messages enter their private residences. 397 U. S., at 736, 738.
Rowan did not hold, contrary to statements in today's
opinion, see
ante, at 718, that the First Amendment permits
the government to restrict private speech in a public forum.
Indeed, the Court in
Rowan recognized what everyone, before
today, understood to be true: "[WJe are often 'captives' outside
the sanctuary of the home and subject to objectionable speech and
other sound .... " 397 U. S., at 738.
In
Erznoznik, the Court struck down a municipal ordinance
prohibiting drive-in movie theaters visible from either a public
street or a public place from showing films containing nudity. The
ordinance, the Court concluded, imposed a content-based restriction
upon speech and was both too
772
broad and too narrow to serve the interests asserted by the
municipality. 422 U. S., at 211-215. The law, moreover, was not
analogous to the rare, "selective restrictions" on speech
previously upheld to protect individual privacy.
Id., at
208-209 (citing and discussing
Rowan, supra, and
Lehman v.
Shaker Heights, 418 U. S. 298 (1974)).
The Court did not, contrary to the majority's assertions, suggest
that government is free to enact categorical measures restricting
traditional, peaceful communications among citizens in a public
forum. Instead, the Court admonished that citizens usually bear the
burden of disregarding unwelcome messages. 422 U. S., at 211
(citing
Cohen v.
California, 403 U. S. 15, 21
(1971)).
Today's decision is an unprecedented departure from this Court's
teachings respecting unpopular speech in public fora.
II
The Colorado statute offends settled First Amendment principles
in another fundamental respect. It violates the constitutional
prohibitions against vague or overly broad criminal statutes
regulating speech. The enactment's fatal ambiguities are multiple
and interact to create further imprecisions. The result is a law
more vague and overly broad than any criminal statute the Court has
sustained as a permissible regulation of speech. The statute's
imprecisions are so evident that this, too, ought to have ended the
case without further discussion.
The law makes it a criminal offense to "knowingly approach
another person within eight feet of such person, unless such other
person consents, for the purpose of passing a leaflet or handbill
to, displaying a sign to, or engaging in oral protest, education,
or counseling with such other person in the public way or sidewalk
area within a radius of one hundred feet from any entrance door to
a health care facility." Colo. Rev. Stat. § 18-9-122(3) (1999). The
operative terms and phrases of the statute are not defined. The
case comes
773
to us from the state court system; and as the Colorado courts
did not give the statute a sufficient narrowing construction,
questions of vagueness and overbreadth should be addressed by this
Court in the first instance. See
Coates v.
Cincinnati, 402 U. S. 611, 613-614
(1971).
In the context of a law imposing criminal penalties for pure
speech, "protest" is an imprecise word; "counseling" is an
imprecise word; "education" is an imprecise word. No custom,
tradition, or legal authority gives these terms the specificity
required to sustain a criminal prohibition on speech. I simply
disagree with the majority's estimation that it is "quite remote"
that "anyone would not understand any of those common words."
Ante, at 732. The criminal statute is subject to
manipulation by police, prosecutors, and juries. Its substantial
imprecisions will chill speech, so the statute violates the First
Amendment. Cf.
Kolender v.
Lawson, 461 U. S. 352, 358, 360
(1983);
Herndon v.
Lowry, 301 U. S. 242, 263-264
(1937).
In operation the statute's inevitable arbitrary effects create
vagueness problems of their own. The 8-foot noapproach zone is so
unworkable it will chill speech. Assume persons are about to enter
a building from different points and a protester is walking back
and forth with a sign or attempting to hand out leaflets. If she
stops to create the 8-foot zone for one pedestrian, she cannot
reach other persons with her message; yet if she moves to maintain
the 8foot zone while trying to talk to one patron she may move
knowingly closer to a patron attempting to enter the facility from
a different direction. In addition, the statute requires a citizen
to give affirmative consent before the exhibitor of a sign or the
bearer of a leaflet can approach. When dealing with strangers
walking fast toward a building's entrance, there is a middle ground
of ambiguous answers and mixed signals in which misinterpretation
can subject a good-faith speaker to criminal liability. The mere
failure to give a reaction, for instance, is a failure to give
consent. These ele-
774
ments of ambiguity compound the others. Finally, as we all know,
the identity or enterprise of the occupants of a building which
fronts on a public street is not always known to the public. Health
care providers may occupy but a single office in a large building.
The Colorado citizen may walk from a disfavored-speech zone to a
free zone with little or no ability to discern when one ends and
the other begins. The statute's vagueness thus becomes as well one
source of its overbreadth. The only sure way to avoid violating the
law is to refrain from picketing, leafletting, or oral advocacy
altogether. Scienter cannot save so vague a statute as this.
A statute is vague when the conduct it forbids is not
ascertainable. See
Chicago v.
Morales, 527 U. S. 41, 56 (1999).
"[People] of common intelligence cannot be required to guess at the
meaning of the enactment."
Winters v.
New York,
333 U. S. 507,
515 (1948). The terms "oral protest, education, or counseling" are
at least as imprecise as criminal prohibitions on speech the Court
has declared void for vagueness in past decades. In
Coates
v.
Cincinnati, 402 U. S. 611 (1971), the
Court encountered little difficulty in striking down a municipal
ordinance making it a criminal offense for "three or more persons
to assemble ... on any of the sidewalks ... and there conduct
themselves in a manner annoying to persons passing by .... "
Ibid. The Court held the ordinance to be unconstitutionally
vague because "it subject[ed] the exercise of the right of assembly
to an unascertainable standard, and [was] unconstitutionally broad
because it authorize[d] the punishment of constitutionally
protected conduct."
Id., at 614. Vagueness led to
overbreadth as well in
Houston v.
Hill, 482 U. S. 451 (1987),
where the Court invalidated an ordinance making it "'unlawful for
any person to ... in any manner oppose ... or interrupt any
policeman in the execution of his duty.'"
Id., at 455. The
"sweeping" restriction, the Court reasoned, placed citizens at risk
of arrest for exercising their
775
"freedom ... to oppose or challenge police action," a right "by
which we distinguish a free nation from a police state."
Id., at 462-463.
The requirement of specificity for statutes that impose criminal
sanctions on public expression was established well before
Coates and
Hill, of course. In
Carlson v.
California, 310 U. S. 106 (1940), a
unanimous Court invalidated an ordinance prohibiting individuals
from carrying or displaying any sign or banner or from picketing
near a place of business "for the purpose of inducing or
influencing, or attempting to induce or influence, any person to
refrain from entering any such works, or factory, or place of
business, or employment."
Id., at 109. The statute employed
imprecise language, providing citizens with no guidance as to
whether particular expressive activities fell within its reach. The
Court found that the "sweeping and inexact terms of the ordinance
disclose the threat to freedom of speech inherent in its
existence," a result at odds with the guarantees of the First
Amendment.
Id., at 112.
Rather than adhere to this rule, the Court turns it on its head,
stating the statute's overbreadth is "a virtue, not a vice."
Ante, at 731. The Court goes even further, praising the
statute's "prophylactic approach; it forbids all unwelcome
demonstrators to come closer than eight feet."
Ante, at 729.
Indeed, in the Court's view, "bright-line prophylactic rule[s] may
be the best way to provide protection" to those individuals
unwilling to hear a fellow citizen's message in a public forum.
Ibid. The Court is quite wrong. Overbreadth is a
constitutional flaw, not a saving feature. Sweeping within its
ambit even more protected speech does not save a criminal statute
invalid in its essential reach and design. The Court, moreover,
cannot meet the concern that the statute is vague; for neither the
Colorado courts nor established legal principles offer satisfactory
guidance in interpreting the statute's imprecisions.
776
III
Even aside from the erroneous, most disturbing assumptions that
the statute is content neutral, viewpoint neutral, and neither
vague nor overbroad, the Court falls into further serious error
when it turns to the time, place, and manner rules set forth in
Ward.
An essential requirement under
Ward is that the
regulation in question not "burden substantially more speech than
is necessary to further the government's legitimate interests." 491
U. S., at 799. As we have seen, however, Colorado and the Court
attempt to justify the law on just the opposite assumption.
I have explained already how the statute is a failed attempt to
make the enactment appear content neutral, a disguise for the real
concern of the legislation. The legislature may as well have
enacted a statute subjecting "oral protest, education, or
counseling near abortion clinics" to criminal penalty. Both the
State and the Court attempt to sidestep the enactment's obvious
content-based restriction by praising the statute's breadth, by
telling us all topics of conversation, not just discourse on
abortion, are banned within the statutory proscription. The saving
feature the Court tries to grasp simply creates additional free
speech infirmity. Our precedents do not permit content censoring to
be cured by taking even 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
counseling" on all subjects across the board, it by definition
becomes "substantially broader than necessary to achieve the
government's interest."
Id., at 800.
The whimsical, arbitrary nature of the statute's operation is
further demonstration of a restriction upon more speech than
necessary. The happenstance of a dental office being located in a
building brings the restricted-speech zone into play. If the same
building also houses an organization dedi-
777
cated, say, to environmental issues, a protest against the
group's policies would be barred. Yet if, on the next block there
were a public interest enterprise in a building with no health care
facility, the speech would be unrestricted. The statute is a
classic example of a proscription not narrowly tailored and
resulting in restrictions of far more speech than necessary to
achieve the legislature's object. The first time, place, and manner
requirement of
Ward cannot be satisfied.
Assuming Colorado enacted the statute to respond to incidents of
disorderly and unlawful conduct near abortion clinics, there were
alternatives to restricting speech. It is beyond dispute that
pinching or shoving or hitting is a battery actionable under the
criminal law and punishable as a crime. State courts have also
found an actionable tort when there is a touching, done in an
offensive manner, of an object closely identified with the body,
even if it is not clothing or the body itself. See,
e.
g., Fisher v.
Carrousel Motor Hotel, Inc., 424
S. W. 2d 627, 630 (Tex. 1967) ("Personal indignity is the essence
of an action for battery; and consequently the defendant is liable
not only for contacts which do actual physical harm, but also for
those which are offensive and insulting" (citing Prosser, Insult
& Outrage, 44 Calif. L. Rev. 40 (1956))). The very statute
before us, in its other parts, includes a provision aimed at
ensuring access to health care facilities. The law imposes criminal
sanctions upon any person who "knowingly obstructs, detains,
hinders, impedes, or blocks another person's entry to or exit from
a health care facility." Colo. Rev. Stat. § 18-9-122(2) (1999).
With these means available to ensure access, the statute's
overreaching in the regulation of speech becomes again
apparent.
The majority insists the statute aims to protect distraught
women who are embarrassed, vexed, or harassed as they attempt to
enter abortion clinics. If these are punishable acts, they should
be prohibited in those terms. In the course of praising Colorado's
approach, the majority does not pause to tell us why, in its view,
substantially less restrictive means
778
cannot be employed to ensure citizens access to health care
facilities or to prevent physical contact between citizens. The
Court's approach is at odds with the rigor demanded by
Ward.
See 491 U. S., at 799 ("Government may not regulate expression in
such a manner that a substantial portion of the burden on speech
does not serve to advance its goals").
There are further errors in the Court's novel, prophylactic
analysis. The prophylactic theory seems to be based on a
supposition that most citizens approaching a health care facility
are unwilling to listen to a fellow citizen's message and that
face-to-face communications will lead to lawless behavior within
the power of the State to punish. These premises have no support in
law or in fact. And even when there is authority to adopt
preventive measures, of course, the First Amendment does not allow
a speech prohibition in an imprecise or overly broad statute. Cf.
Thornhill v.
Alabama, 310 U. S. 88, 105 (1940) ("The
power and the duty of the State to take adequate steps to preserve
the peace and to protect the privacy, the lives, and the property
of its residents cannot be doubted. But no clear and present danger
of destruction of life or property, or invasion of the right of
privacy, or breach of the peace can be thought to be inherent in
the activities of every person who approaches the premises of an
employer and publicizes the facts of a labor dispute involving the
latter"). The Court places our free speech traditions in grave
jeopardy by licensing legislatures to adopt "bright-line
prophylactic rule[s] ... to provide protection" to unwilling
listeners in a quintessential public forum.
Ante, at
729.
The Court's lack of concern with the statute's flaws is
explained in part by its disregard of the importance of free
discourse and the exchange of ideas in a traditional public forum.
Our precedents have considered the level of protection afforded
speech in specific locations, but the rules formulated in those
decisions are not followed today. "To ascertain what limits, if
any, may be placed on protected speech," our precedents instruct
"we have often focused on
779
the 'place' of that speech, considering the nature of the forum
the speaker seeks to employ .... [T]he standards by which
limitations on speech must be evaluated 'differ depending on the
character of the property at issue.'"
Frisby v.
Schultz, 487 U. S., at 479 (quoting
Perry Ed. Assn.
v.
Perry Local Educators' Assn., 460 U. S. 37, 44 (1983)).
The quoted language was part of our holding in an important free
speech case; and it is a holding the majority disregards.
Frisby upheld a municipal ordinance restricting targeted
picketing in residential areas. The primary purpose of the
ordinance, and a reason the Court sustained it, was to protect and
preserve the tranquility of private homes. The private location at
which respondents sought to engage in their expressive activities
was stressed throughout the Court's opinion. See 487 U. S., at 483
("[WJe construe the ban to be a limited one; only focused picketing
taking place solely in front of a particular residence is
prohibited"). "Although in many locations," the Court reasoned, "we
expect individuals simply to avoid speech they do not want to hear,
the home is different. 'That we are often "captives" outside the
sanctuary of the home and subject to objectionable speech ... does
not mean we must be captives everywhere.'"
Id., at 484
(quoting
Rowan v.
Post Office Dept., 397 U. S., at
738).
The Colorado law does not seek to protect private residences.
Nor does the enactment impose a place restriction upon expressive
activity undertaken on property, such as fairgrounds, designated
for limited, special purposes. See,
e. g., Heffron v.
International Soc. for Krishna Consciousness, Inc., 452 U. S. 640, 655
(1981). The statute applies to public streets and sidewalks,
traditional public fora which " 'time out of mind, have been used
for purposes of assembly, communicating thoughts between citizens,
and discussing public questions.'" See
Boos, 485 U. S., at
318 (quoting
Hague v.
Committee for Industrial
Organization, 307
U. S. 496,515 (1939) (opinion of Roberts, J.)). Given our
traditions with respect to open discussion in public fora, this
statute,
780
which sweeps so largely on First Amendment freedoms, cannot be
sustained.
The statute fails a further test under
Ward, for it does
not "'leave open ample alternative channels for communication of
the information.'" 491 U. S., at 791 (quoting
Clark v.
Community for Creative Non-Violence, 468 U. S. 288, 293
(1984)). Frisby again instructs us. A second reason we
sustained the ordinance banning targeted residential picketing was
because "ample alternativ[eJ" avenues for communication remained
open:
"'Protestors have not been barred from the residential
neighborhoods. They may enter such neighborhoods, alone or in
groups, even marching .... They may go door-to-door to proselytize
their views. They may distribute literature in this manner ... or
through the mails. They may contact residents by telephone, short
of harassment.'" 487 U. S., at 483-484 (quoting Brief for
Appellants in No. 87-168, O. T. 1987, pp. 41-42).
The residential picketing ordinance, the Court concluded,
"permit[tedJ the more general dissemination of a message" to the
targeted audience. 487 U. S., at 483.
The same conclusion cannot be reached here. Door-todoor
distributions or mass mailing or telephone campaigns are not
effective alternative avenues of communication for petitioners.
They want to engage in peaceful face-to-face communication with
individuals the petitioners believe are about to commit a profound
moral wrong. Without the ability to interact in person, however
momentarily, with a clinic patron near the very place where a woman
might elect to receive an abortion, the statute strips petitioners
of using speech in the time, place, and manner most vital to the
protected expression.
In addition to leaving petitioners without adequate means of
communication, the law forecloses peaceful leafletting, a mode of
speech with deep roots in our Nation's history and
781
traditions. In an age when vast resources and talents are
commanded by a sophisticated media to shape opinions on limitless
subjects and ideas, the distribution of leaflets on a sidewalk may
seem a bit antiquated. This case proves the necessity for the
traditional mode of speech. It must be remembered that the whole
course of our free speech jurisprudence, sustaining the idea of
open public discourse which is the hallmark of the American
constitutional system, rests to a significant extent on cases
involving picketing and leafletting. Our foundational First
Amendment cases are based on the recognition that citizens, subject
to rare exceptions, must be able to discuss issues, great or small,
through the means of expression they deem best suited to their
purpose. I t is for the speaker, not the government, to choose the
best means of expressing a message. "The First Amendment," our
cases illustrate, "protects [citizens'] right not only to advocate
their cause but also to select what they believe to be the most
effective means for so doing."
Meyer v.
Grant, 486 U.
S. 414, 424 (1988). The Court's conclusion that Colorado's 8-foot
no-approach zone protects citizens' ability to leaflet or otherwise
engage in peaceful protest is untenable.
Given the Court's holding, it is necessary to recall our cases
protecting the right to protest and hand out leaflets. In
Lovell v.
City of Griffin, 303 U. S. 444 (1938), the
Court invalidated an ordinance forbidding the distribution of
literature of any kind without the written permission of a city
official. "The liberty of the press," the Court explained, "is not
confined to newspapers and periodicals."
Id., at 452. "It
necessarily embraces pamphlets and leaflets. These indeed have been
historic weapons in the defense of liberty, as the pamphlets of
Thomas Paine and others in our own history abundantly attest. The
press in its historic connotation comprehends every sort of
publication which affords a vehicle of information and opinion."
Ibid.
In
Schneider v.
State (Town of Irvington),
308 U. S. 147
(1939), reinforcing
Lovell, the Court struck down a series
of
782
municipal ordinances prohibiting the distribution of handbills
on public streets on the rationale of preventing littering.
Schneider made clear that while citizens may not enjoy a
right to force an unwilling person to accept a leaflet, they do
have a protected right to tender it. The Court stressed a basic
First Amendment precept: "[T]he streets are natural and proper
places for the dissemination of information and opinion; and one is
not to have the exercise of his liberty of expression in
appropriate places abridged on the plea that it may be exercised in
some other place." 308 U. S., at 163. The words of the Court more
than a half century ago demonstrate the necessity to adhere to
those principles today:
"Municipal authorities, as trustees for the public, have the
duty to keep their communities' streets open and available for
movement of people and property, the primary purpose to which the
streets are dedicated. So long as legislation to this end does not
abridge the constitutional liberty of one rightfully upon the
street to impart information through speech or the distribution of
literature, it may lawfully regulate the conduct of those using the
streets. For example, a person could not exercise this liberty by
taking his stand in the middle of a crowded street, contrary to
traffic regulations, and maintain his position to the stoppage of
all traffic; a group of distributors could not insist upon a
constitutional right to form a cordon across the street and to
allow no pedestrian to pass who did not accept a tendered leaflet;
nor does the guarantee of freedom of speech or of the press deprive
a municipality of power to enact regulations against throwing
literature broadcast in the streets. Prohibition of such conduct
would not abridge the constitutional liberty since such activity
bears no necessary relationship to the freedom to speak, write,
print or distribute information or opinion.
"This court has characterized the freedom of speech and that of
the press as fundamental personal rights and
783
liberties. The phrase is not an empty one and was not lightly
used. It reflects the belief of the framers of the Constitution
that exercise of the rights lies at the foundation of free
government by free men. It stresses, as do many opinions of this
court, the importance of preventing the restriction of enjoyment of
these liberties.
"In every case, therefore, where legislative abridgment of the
rights is asserted, the courts should be astute to examine the
effect of the challenged legislation. Mere legislative preferences
or beliefs respecting matters of public convenience may well
support regulation directed at other personal activities, but be
insufficient to justify such as diminishes the exercise of rights
so vital to the maintenance of democratic institutions. And so, as
cases arise, the delicate and difficult task falls upon the courts
to weigh the circumstances and to appraise the substantiality of
the reasons advanced in support of the regulation of the free
enjoyment of the rights." Id., at 160-161 (footnote
omitted).
After
Lovell and
Schneider the Court gave
continued, explicit definition to our custom and practice of free
and open discourse by picketing and leafletting. In
Thornhill v.
Alabama,
310 U. S. 88 (1940), the
Court considered a First Amendment challenge to a statute
prohibiting" '[l]oitering or picketing'" near "'the premises or
place of business of any ... firm, corporation, or association of
people, engaged in a lawful business.'"
Id., at 91.
Petitioner was arrested, charged, and convicted of violating the
statute by engaging in peaceful picketing in front of a
manufacturing plant.
Id., at 94-95. The Court invalidated
the Alabama statute. The breadth of Alabama's speech restriction
was one reason for ruling it invalid on its face, just as it should
be for the statute we consider today:
"[Alabama Code §] 3448 has been applied by the state courts so
as to prohibit a single individual from walking
784
slowly and peacefully back and forth on the public sidewalk in
front of the premises of an employer, without speaking to anyone,
carrying a sign or placard on a staff above his head stating only
the fact that the employer did not employ union men affiliated with
the American Federation of Labor; the purpose of the described
activity was concededly to advise customers and prospective
customers of the relationship existing between the employer and its
employees and thereby to induce such customers not to patronize the
employer."
Id., at 98-99 (footnote omitted).
The statute, in short, prohibited "whatever the means used to
publicize the facts of a labor dispute, whether by printed sign, by
pamphlet, by word of mouth or otherwise ... so long as it occurs in
the vicinity of the scene of the dispute."
Id., at 10l.
The Court followed these observations with an explication of
fundamental free speech principles I would have thought controlling
in the present case:
"It does not follow that the State in dealing with the evils
arising from industrial disputes may impair the effective exercise
of the right to discuss freely industrial relations which are
matters of public concern. A contrary conclusion could be used to
support abridgment of freedom of speech and of the press concerning
almost every matter of importance to society.
"The range of activities proscribed by § 3448, whether
characterized as picketing or loitering or otherwise, embraces
nearly every practicable, effective means whereby those
interested-including the employees directly affected-may enlighten
the public on the nature and causes of a labor dispute. The
safeguarding of these means is essential to the securing of an
informed and educated public opinion with respect to a matter which
is of public concern. It may be that effective ex-
785
ercise of the means of advancing public knowledge may persuade
some of those reached to refrain from entering into advantageous
relations with the business establishment which is the scene of the
dispute. Every expression of opinion on matters that are important
has the potentiality of inducing action in the interests of one
rather than another group in society. But the group in power at any
moment may not impose penal sanctions on peaceful and truthful
discussion of matters of public interest merely on a showing that
others may thereby be persuaded to take action inconsistent with
its interests." Id., at 104.
Carlson v.
California, 310 U. S. 106 (1940), is
in accord.
In the course of reversing Carlson's conviction for engaging in
a peaceful protest near a construction project in Shasta County,
California, the Court declared that a citizen's right to
"publiciz[e] the facts of a labor dispute in a peaceful way through
appropriate means, whether by pamphlet, by word of mouth or by
banner, must now be regarded as within that liberty of
communication which is secured to every person by [the First
Amendment through] the Fourteenth Amendment against abridgment by a
State."
Id., at 113.
The principles explained in
Thornhill and
Carlson
were reaffirmed a few years later in the context of speech on
religious matters when an individual sought to advertise a meeting
of the Jehovah's Witnesses by engaging in a door-to-door
distribution of leaflets.
Martin v.
City of Struthers,
319 U. S. 141 (1943). The petitioner was convicted under a city
ordinance which prohibited individuals from "distributing
handbills, circulars or other advertisements" to private
residences.
Id., at 142. The Court invalidated the
ordinance, reinforcing the vital idea today's Court ignores:
"While door to door distributers of literature may be either a
nuisance or a blind for criminal activities, they may also be
useful members of society engaged in the
786
dissemination of ideas in accordance with the best tradition of
free discussion. The widespread use of this method of communication
by many groups espousing various causes attests its major
importance. 'Pamphlets have proved most effective instruments in
the dissemination of opinion. And perhaps the most effective way of
bringing them to the notice of individuals is their distribution at
the homes of the people.'" Id., at 145 (quoting
Schneider, 308 U. S., at 164).
The Court's more recent precedents honor the same principles:
Government cannot foreclose a traditional medium of expression. In
City of Ladue v.
Gilleo, 512 U. S. 43 (1994), we
considered a challenge to a municipal ordinance prohibiting,
inter alia, "such absolutely pivotal speech as [the display
of] a sign protesting an imminent governmental decision to go to
war."
Id., at 54. Respondent had placed a sign in a window
of her home calling "For Peace in the Gulf."
Id., at 46. We
invalidated the ordinance, finding that the local government "ha[d]
almost completely foreclosed a venerable means of communication
that is both unique and important."
Id., at 54. The opinion,
which drew upon
Lovell, Martin, and
Schneider, was
also careful to note the importance of the restriction on place
imposed by the ordinance in question:
"Displaying a sign from one's own residence often carries a
message quite distinct from placing the same sign someplace else,
or conveying the same text or picture by other means." 512 U. S.,
at 56. So, too, did we stress the importance of preserving the
means citizens use to express messages bearing on important public
debates. See
id., at 57 ("Residential signs are an unusually
cheap and convenient form of communication[,] [e]specially for
persons of modest means or limited mobility ... ").
A year later in
McIntyre v.
Ohio Elections Comm'n,
514 U. S. 334 (1995), we once more confirmed the privileged
status peaceful leafletting enjoys in our free speech tradition.
Ohio prohibited anonymous leafletting in connection with
787
election campaigns. Invalidating the law, we observed as
follows: "'Anonymous pamphlets, leaflets, brochures and even books
have played an important role in the progress of mankind.'"
Id., at 341 (quoting
Talley v.
California, 362
U. S. 60, 64 (1960)). We rejected the State's claim that the
restriction was needed to prevent fraud and libel in its election
processes. Ohio had other laws in place to achieve these
objectives. 514 U. S., at 350. The case, we concluded, rested upon
fundamental free speech principles:
"Indeed, the speech in which Mrs. McIntyre engagedhanding out
leaflets in the advocacy of a politically controversial
viewpoint-is the essence of First Amendment expression. That this
advocacy occurred in the heat of a controversial referendum vote
only strengthens the protection afforded to Mrs. McIntyre's
expression: Urgent, important, and effective speech can be no less
protected than impotent speech, lest the right to speak be
relegated to those instances when it is least needed. No form of
speech is entitled to greater constitutional protection than Mrs.
McIntyre's." Id., at 347 (citations omitted).
Petitioners commenced the present suit to challenge a statute
preventing them from expressing their views on abortion through the
same peaceful and vital methods approved in
Lovell, Schneider,
Thornhill, Carlson, and
McIntyre. Laws punishing speech
which protests the lawfulness or morality of the government's own
policy are the essence of the tyrannical power the First Amendment
guards against. We must remember that, by decree of this Court in
discharging our duty to interpret the Constitution, any plea to the
government to outlaw some abortions will be to no effect. See
Planned Parenthood of Southeastern Pa. v.
Casey,
505 U. S. 833
(1992). Absent the ability to ask the government to intervene,
citizens who oppose abortion must seek to convince their fellow
citizens of the moral imperative
788
of their cause. In a free society protest serves to produce
stability, not to undermine it. "The right to speak freely and to
promote diversity of ideas and programs is therefore one of the
chief distinctions that sets us apart from totalitarian regimes."
Terminiello v.
Chicago, 337 U. S. 1, 4 (1949). As
Justice Brandeis observed: "[The Framers] recognized the risks to
which all human institutions are subject. But they knew that order
cannot be secured merely through fear of punishment for its
infraction; that it is hazardous to discourage thought, hope and
imagination; that fear breeds repression; that repression breeds
hate; that hate menaces stable government; that the path of safety
lies in the opportunity to discuss freely supposed grievances and
proposed remedies; and that the fitting remedy for evil counsels is
good ones. Believing in the power of reason as applied through
public discussion, they eschewed silence coerced by law-the
argument of force in its worst form."
Whitney v
California, 274 U. S. 357, 375-376
(1927) (concurring opinion).
The means of expression at stake here are of controlling
importance. Citizens desiring to impart messages to women
considering abortions likely do not have resources to use the
mainstream media for their message, much less resources to locate
women contemplating the option of abortion. Lacking the aid of the
government or the media, they seek to resort to the time honored
method of leafletting and the display of signs. Nowhere is the
speech more important than at the time and place where the act is
about to occur. As the named plaintiff, Leila Jeanne Hill,
explained, "I engage in a variety of activities designed to impart
information to abortion-bound women and their friends and families
.... " App. 49. "In my many years of sidewalk counseling I have
seen a number of [these] women change their minds about aborting
their unborn children as a result of my sidewalk counseling, and
God's grace."
Id., at 51.
789
When a person is walking at a hurried pace to enter a building,
a solicitor who must stand still eight feet away cannot know
whether the person can be persuaded to accept the leaflet or not.
Merely viewing a picture or brief message on the outside of the
leaflet might be critical in the choice to receive it. To solicit
by pamphlet is to tender it to the person. The statute ignores this
fact. What the statute restricts is one person trying to
communicate to another, which ought to be the heart of civilized
discourse.
Colorado's excuse, and the Court's excuse, for the serious
burden imposed upon the right to leaflet or to discuss is that it
occurs at the wrong place. Again, Colorado and the Court have it
just backwards. For these protesters the lOO-foot zone in which
young women enter a building is not just the last place where the
message can be communicated. It likely is the only place. It is the
location where the Court should expend its utmost effort to
vindicate free speech, not to burden or suppress it.
Perhaps the leaflet will contain a picture of an unborn child, a
picture the speaker thinks vital to the message. One of the
arguments by the proponents of abortion, I had thought, was that a
young woman might have been so uninformed that she did not know how
to avoid pregnancy. The speakers in this case seek to ask the same
uninformed woman, or indeed any woman who is considering an
abortion, to understand and to contemplate the nature of the life
she carries within her. To restrict the right of the speaker to
hand her a leaflet, to hold a sign, or to speak quietly is for the
Court to deny the neutrality that must be the first principle of
the First Amendment. In this respect I am in full agreement with
JUSTICE SCALIA'S explanation of the insult the Court gives when it
tells us these grave moral matters can be discussed just as well
through a bullhorn. It would be remiss, moreover, not to observe
the profound difference a leaflet can have in a woman's
decisionmaking process.
790
Consider the account of one young woman who testified before the
Colorado Senate:
"Abortion is a major decision. Unfortunately, most women have to
make this decision alone. I did and I know that I'm not the only
one. As soon as I said the word 'pregnant,' he was history, never
to be heard of, from again. I was scared and all alone. I was too
embarrassed to ask for help. If this law had been in effect then, I
would not have got any information at all and gone through with my
abortion because the only people that were on my side were the
people at the abortion clinic. They knew exactly how I was feeling
and what to say to make it all better. In my heart, I knew abortion
was wrong, but it didn't matter. I had never taken responsibility
for my actions so why start then. One of the major reasons I did
not go through with my scheduled abortion was a picture I was given
while I was pregnant. This was the first time I had ever seen the
other side of the story. I think I speak for a lot of women, myself
included, when I say abortion is the only way out because of
[sic] it's all I knew. In Sex Education, I was not taught
about adoption or the fetus or anything like that. All I learned
about was venereal diseases and abortion. The people supplying the
pamphlet helped me make my choice. I got an informed decision, I
got information from both sides, and I made an informed decision
that my son and I could both live with. Because of this picture I
was given, right there, this little boy got a chance at life that
he would never have had." Id., at 167-168.
There are, no doubt, women who would testify that abortion was
necessary and unregretted. The point here is simply that speech
makes a difference, as it must when acts of lasting significance
and profound moral consequence are being contemplated. The majority
reaches a contrary conclusion
791
only by disregarding settled free speech principles. In doing so
it delivers a grave wound to the First Amendment as well as to the
essential reasoning in the joint opinion in
Casey, a concern
to which I now turn.
IV
In
Planned Parenthood of Southeastern Pa. v.
Casey, the Court reaffirmed its prior holding that the
Constitution protects a woman's right to terminate her pregnancy in
its early stages. The majority opinion in
Casey considered
the woman's liberty interest and principles of
stare
decisis, but took care to recognize the gravity of the personal
decision: "[Abortion] is an act fraught with consequences for
others: for the woman who must live with the implications of her
decision; for the persons who perform and assist in the procedure;
for the spouse, family, and society which must confront the
knowledge that these procedures exist, procedures some deem nothing
short of an act of violence against innocent human life; and,
depending on one's beliefs, for the life or potential life that is
aborted." 505 U. S., at 852.
The Court now strikes at the heart of the reasoned, careful
balance I had believed was the basis for the opinion in
Casey. The vital principle of the opinion was that in
defined instances the woman's decision whether to abort her child
was in its essence a moral one, a choice the State could not
dictate. Foreclosed from using the machinery of government to ban
abortions in early term, those who oppose it are remitted to debate
the issue in its moral dimensions. In a cruel way, the Court today
turns its back on that balance. It in effect tells us the moral
debate is not so important after all and can be conducted just as
well through a bullhorn from an 8-foot distance as it can through a
peaceful, face-to-face exchange of a leaflet. The lack of care with
which the Court sustains the Colorado statute reflects a most
troubling abdication of our responsibility to enforce the First
Amendment.
792
There runs through our First Amendment theory a concept of
immediacy, the idea that thoughts and pleas and petitions must not
be lost with the passage of time. In a fleeting existence we have
but little time to find truth through discourse. No better
illustration of the immediacy of speech, of the urgency of
persuasion, of the preciousness of time, is presented than in this
case. Here the citizens who claim First Amendment protection seek
it for speech which, if it is to be effective, must take place at
the very time and place a grievous moral wrong, in their view, is
about to occur. The Court tears away from the protesters the
guarantees of the First Amendment when they most need it. So
committed is the Court to its course that it denies these
protesters, in the face of what they consider to be one of life's
gravest moral crises, even the opportunity to try to offer a fellow
citizen a little pamphlet, a handheld paper seeking to reach a
higher law.
I dissent.
Comments
Be the first to comment
Leave a Comment