Hill v. Colorado

United States Supreme Court
530 U.S. 703 (2000)

ELI5:

Rule of Law:

A statute that regulates the physical proximity of speakers to unwilling listeners in a public forum may be a valid, content-neutral time, place, and manner restriction if it is narrowly tailored to serve a significant government interest and leaves open ample alternative channels of communication.

Facts:

Leila Jeanne Hill and other petitioners engaged in 'sidewalk counseling' on public sidewalks within 100 feet of entrances to medical facilities where abortions were performed.
This 'sidewalk counseling' consisted of efforts to educate, counsel, and persuade passersby about abortion alternatives through conversation, displaying signs, and distributing literature.
These activities frequently entailed the petitioners being within eight feet of other persons.
The Colorado legislature enacted a statute making it unlawful within 100 feet of any health care facility entrance to knowingly approach within eight feet of another person, without that person’s consent, to pass a leaflet, display a sign, or engage in oral protest, education, or counseling.
Prior to the statute's enactment, legislative testimony indicated that demonstrations in front of abortion clinics often impeded access, were confrontational, and involved aggressive or abusive language in face-to-face encounters.
There was evidence presented to the legislature that emotional confrontations could adversely affect a patient’s medical care.
Petitioners alleged that their fear of prosecution under the new statute caused them to be chilled in the exercise of their free speech rights.
There was no evidence that the sidewalk counseling conducted by these specific petitioners was ever abusive or confrontational.

Procedural Posture:

Petitioners filed a complaint in the District Court for Jefferson County, Colorado, seeking a facial invalidation of the statute and an injunction against its enforcement.
The District Court granted summary judgment for the respondents (the state), upholding the statute as a permissible content-neutral time, place, and manner restriction.
The Colorado Court of Appeals affirmed the District Court's judgment.
The Colorado Supreme Court initially denied review.
While petitioners' request for certiorari was pending before the U.S. Supreme Court, the Court decided Schenck v. Pro-Choice Network of Western N. Y.
The U.S. Supreme Court granted certiorari, vacated the Colorado Court of Appeals' judgment, and remanded the case for reconsideration in light of Schenck.
On remand, the Colorado Court of Appeals reinstated its judgment upholding the statute.
The Colorado Supreme Court granted certiorari and affirmed the judgment of the Court of Appeals.
The U.S. Supreme Court granted certiorari to review the decision.

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Issue:

Does a Colorado statute that makes it unlawful for a person within 100 feet of a health care facility's entrance to knowingly approach within eight feet of another person without their consent, for the purpose of protest, education, or counseling, violate the First Amendment's protection of free speech?

Opinions:

Majority - Justice Stevens

No, the Colorado statute does not violate the First Amendment. It is a constitutional time, place, and manner regulation because it is content-neutral, narrowly tailored to serve significant government interests, and leaves open ample alternative channels for communication. The statute is not a regulation of speech itself, but rather a regulation of the place where some speech may occur. Its purpose is to protect citizens' access to healthcare and their right to be let alone from unwanted, close-range communications in a potentially stressful setting, which are significant and legitimate government interests unrelated to the content of any particular message. The 8-foot floating buffer zone is narrowly tailored as it only restricts the speaker's approach, allows communication at a 'normal conversational distance,' and does not ban any form of communication entirely. Speakers can still display signs, speak from a stationary position, and offer leaflets, thus preserving ample alternative channels.

Concurring - Justice Souter

No, the statute is constitutional. The key to its content neutrality is that the law addresses not the content of speech, but the circumstances of its delivery. The statute does not suppress any subject or viewpoint; it forbids the physical act of approaching another person closely without consent to deliver a message. A speaker may stand in a stationary position and say anything they wish. Because the restriction is on the intrusive behavior of approaching, not the message itself, it is a valid time, place, and manner regulation.

Dissenting - Justice Scalia

Yes, the statute violates the First Amendment. The statute is a content-based restriction on speech and is therefore subject to strict scrutiny, which it cannot survive. It is content-based because its application depends entirely on what the speaker intends to say; it only applies to approaches for the purpose of 'protest, education, or counseling,' while excluding other communications. The Court invents a state interest in protecting a 'right to be let alone' from unwanted speech in a public forum, an interest which the state itself disclaimed and which is incompatible with the First Amendment. Even under a lower standard, the law is not narrowly tailored, as it prohibits a vast amount of peaceful, non-obstructive speech and renders effective leafletting impossible. This decision is another example of the Court distorting constitutional principles in cases involving abortion.

Dissenting - Justice Kennedy

Yes, the statute violates the First Amendment. This law is a textbook example of a content-based regulation, as an officer must listen to the speaker's words to determine if they constitute criminal 'protest, education, or counseling.' It is also viewpoint-based, as its purpose and predictable operation are to restrict speech by those who oppose abortion. The Court's approval of this law creates a novel and dangerous 'right to avoid unpopular speech in a public forum.' Furthermore, the statute is unconstitutionally vague and overbroad because its key terms are imprecise, and it is not narrowly tailored because it burdens substantially more speech than necessary and forecloses effective alternative channels like face-to-face leafletting.

Analysis:

This decision established the constitutionality of a legislatively created 'floating buffer zone' around individuals in a specific, sensitive context, distinguishing it from the broader, injunction-based buffer zone struck down in Schenck. The case refines the analysis of content neutrality, suggesting that restrictions on broad categories of communication (like 'protest, education, or counseling') can be deemed neutral if they regulate the manner of delivery rather than the specific viewpoint or subject matter. The ruling significantly strengthens the state's ability to protect unwilling listeners and ensure access to healthcare facilities, weighing these interests more heavily than the speakers' interests in engaging in close, personal communication in a public forum.

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