U.S. Supreme Court
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. Pro-Choice Network of Western N. Y., 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
Held: Section 18-9-122(3)'s restrictions on speech-related conduct
are constitutional. Pp. 9-30.
(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. 9-13.
(b) Section 18-9-122(3) passes the Ward content-neutrality test for
three independent reasons. First, it is a regulation of places where 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, §18-19-122(3) merely places a minor place restriction on
an extremely broad category of communications with unwilling listeners. Pp.
(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. See Heffron v. International Soc. for Krishna
Consciousness, Inc., 452 U. S. 640. Pp. 21-25.
(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. 25-27.
(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.
(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. 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. 29-30.
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. Scalia, J.,
filed a dissenting opinion, in which Thomas, J., joined. Kennedy,
J., filed a dissenting opinion.
LEILA JEANNE HILL, AUDREY HIMMELMANN,
EVERITT W. SIMPSON, Jr., PETITIONERS v.
COLORADO et al.
on writ of certiorari to the supreme court
[June 28, 2000]
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
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.
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 caused them "to be chilled in the exercise of fundamental
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 content-based 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
"viewpoint-based" 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 confrontational.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 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
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 Racism, 491 U. S. 781, 785 (1989), he
noted that " `the 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 certain viewpoints," and that
the legislative history made it clear that the State had not favored one
viewpoint over another.11 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 the 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
protesters." 14 It also reviewed our then-recent 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
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 content 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 towards or away from a health
care facility walks past her.21 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 contentneutrality. Moreover, the fact that the statute was
enacted, in part, because the General 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.
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 accurately 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
even-handed 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 restrictions 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,
210-211, 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
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 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 federal 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 "the 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
The dissenters argue that we depart from precedent by recognizing a "right to
avoid unpopular speech in a public forum," post, at 7 (opinion of
Kennedy, J.); see also post, at 10-14 (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
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 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 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 exten-
sive than a determination of 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 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 of 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," 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 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 Serv. Comm'n of N. Y., 447 U. S. 530, 538
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 3. 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, 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 3) 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 3. A
statute prohibiting solicitation in airports that was motivated by the
aggressive approaches of Hari-Krishnas does not become content based solely
because its application is confined to airports--"the specific location where
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 post, at 3-4.
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 4-5 (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 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 5. 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 §18-9-122(3)
is content neutral.
We also agree with the state courts' conclusion that
§18-9-122(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 restrictions 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 goal.32
The three types of communication regulated by §18-9-122(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 15-foot zone in Schenck, this 8-foot zone allows
the speaker to communicate at a "normal conversational 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 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
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 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 14-15. 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 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 Society
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.
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 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, 412 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 we have 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) (Jackson, J., concurring).
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 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
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 of 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
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,
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.
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 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, 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
* * *
The judgment of the Colorado Supreme Court is
It is so ordered.
LEILA JEANNE HILL, AUDREY HIMMELMANN,
EVERITT W. SIMPSON, Jr., PETITIONERS v.
COLORADO et al.
on writ of certiorari to the supreme court
[June 28, 2000]
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. §18-9-122(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. ___, ___ (2000) (slip
op., at 7); 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 impermissible 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, 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
Since this point is as elementary as anything in traditional speech doctrine,
it would only be natural to suppose that today'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 content-neutral 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 as unfit for expression within the 100-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 (1994) (injunction may bar protesters from 36 foot 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 anti-abortion 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 applied 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
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 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
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, 491 U. S., at
794 ("Since respondent does not claim 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").
LEILA JEANNE HILL, AUDREY HIMMELMANN,
EVERITT W. SIMPSON, Jr., PETITIONERS v.
COLORADO et al.
on writ of certiorari to the supreme court
[June 28, 2000]
Justice Scalia, with whom Justice Thomas
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 14; 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 content-neutral 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
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 continues 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.
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 18. But we have never held that the 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 scrutiny1
"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, supra, at 794 (opinion of Scalia, J.) (emphasis
omitted). 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 18, 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
... ." see J. Bartlett, Familiar Quotations 550 (16th ed. 1992). This Colorado
law is no more targeted at used car salesmen, animal rights activists, fund
raisers, 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. Col. Rev. Stat. §18-9-122(1) (1999)
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 16-17, 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 communication.'
" 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
"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)
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 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 today'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 16, 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
14-15 (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 14. 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. 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)
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 11. 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 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." Ibid. (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. ___, ___ (2000) (slip op., at 8); 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 unwelcome
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 handbilling 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.
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 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
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.
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 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 re-packages the repudiated "right" as an "interest" the
State may decide to protect, ante, at 11, 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
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 9.) We have
consistently held that "the Constitution does not permit the government
to decide which types of otherwise protected speech are sufficiently offensive
to require protection for the unwilling listener or viewer."
Erznoznik 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 10.
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 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
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 `the right to be free' from persistent `importunity,
following and dogging' after an offer to communicate has been declined,"
ante, at 12, 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 "persistent 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 problem--except, of course, its utter
absurdity, which is no obstacle in abortion cases.
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 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
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
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."
Ante, at 21. 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 21, 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 22. (Compare this with the Court's statement in a
nonabortion case, joined by the author of today'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 22. 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 equipment," ante, at
21. 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 22-23,
to take seriously the magnitude of the burden the statute imposes on simple
handbilling 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
22-23. 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
Organization 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 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 "bann[ing] 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 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
In contrast to the laws approved in those cases, the law before us here
enacts a broad prophylactic restriction which does not "respon[d] precisely to
the substantive problem which legitimately concern[ed]" 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
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 26. 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. ___,
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 27. 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 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
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 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 protestors' speech is independently 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
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 24, and adopts "[a]
bright-line prophylactic rule," ante, at 25.5 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. I. P.
* * *
Before it effectively threw in the towel on the narrow-tailoring
point, the Court asserted the importance of taking into account " `the place to
which the regulations apply in determining whether these restrictions burden
more speech than necessary.' " Ante, at 23 (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. ___. 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 today'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 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. ___, 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 Stenberg, post, at ___ (Thomas,
J., dissenting); Janklow v. Planned Parenthood, Sioux Falls Clinic,
517 U. S. 1174, 1177-1181 (1996) (Scalia, J., dissenting from denial of
cert.); Ada v. Guam Soc. of Obstetricians & Gynecologists, 506
U. S. 1011, 1013 (1992) (Scalia, J., dissenting from denial of cert.).
Does the deck seem stacked? You bet. As I have suggested throughout this
opinion, today'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 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.
LEILA JEANNE HILL, AUDREY HIMMELMANN,
EVERITT W. SIMPSON, Jr., PETITIONERS v.
COLORADO et al.
on writ of certiorari to the supreme court
[June 28, 2000]
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
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
complete 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.
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 17, 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 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.
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 content-neutral regulations is an affront to First Amendment
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 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 9. 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 any one 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 or 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 self-serving 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, 345-346 (1995); R. A. V. v.
St. Paul, 505 U. S. 377, 382 (1992); 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 regulations extends ... to prohibition of public
discussion of an entire topic' " (quoting Consolidated Edison Co. of N. Y.
v. Public Serv. 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. ___, ___ (2000) (slip op., at 12)
("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.
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 11-12. 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. Id., at 736, 738. Rowan
did not hold, contrary to statements in today's opinion, see ante, at
12-13, 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: "[W]e 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
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.
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 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 28. 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 no-approach zone is so unworkable it will
chill speech. Assume persons are about to enter a building from different points
and a protestor 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 8-foot
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 elements 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 are 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, leafleting, 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 "freedom ... to oppose or challenge police action," a right "by
which we distinguish a free nation from a police state." Id., at
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 26. The Court
goes even further, praising the statute's "prophylactic approach; it forbids all
unwelcome demonstrators to come closer than eight feet." Ante, at 24.
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. Ante, at 25. 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
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 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
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 dedicated, 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
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 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 25.
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
the `place' of that speech, considering the nature of the forum the speaker
seeks to employ. The 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 ("[W]e 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 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, 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[e]" avenues for communication remained
"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[ted] the more general dissemination of a message" to the targeted
audience. 487 U. S., at 483.
The same conclusion cannot be reached here. Door-to-door 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 leafleting, a mode of speech with deep roots in our
Nation's history and 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 leafleting. 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. It 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
In Schneider v. State (Town of Irvington), 308 U. S. 147
(1939), reinforcing Lovell, the Court struck down a series of 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
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 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." 308 U. S., 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 leafleting. 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 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 101.
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 exercise 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
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
"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 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
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 leafleting
enjoys in our free speech tradition. Ohio prohibited anonymous leafleting in
connection with 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
"Indeed, the speech in which Mrs. McIntyre engaged--handing
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 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
leafleting 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.
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 protestors the
100-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.
Consider the account of one young woman who testified before the Colorado
"Abortion is a major decision. Unfortunately, most women have
to make this decision alone. I did and I know that I am 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 the 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
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.
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 joint 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 joint 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.
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.
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
"(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 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."
Id., at 18-19.
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
Id., at 25-26.
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.
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 protestors " `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
A witness representing the Colorado Coalition of Persons with Disabilities,
who had had 35 separate surgeries in the preceding eight years testified: "Each
and every one is tough. And the night before and the morning of any medical
procedure that's invasive is the toughest part of all. You don't need additional
stressors 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.
App. to Pet. for Cert. 31a.
Id., at 32a.
Id., at 32a-33a.
Id., at 35a.
Id., at 36a.
Hill v. Lakewood, 911 P. 2d 670, 672 (1995).
Id., at 673-674.
App. to Pet. for Cert. 46a.
Hill v. Lakewood, 949 P. 2d 107, 109 (1997).
973 P. 2d, at 1249 (quoting §18-9-122(1)).
"[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.
Madsen v. Women's Health Center, Inc., 512 U. S. 753, 764
973 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").
Id., at 1258.
Ibid. (quoting Ward v. Rock Against Racism, 491 U.
S. 781, 802 (1989)).
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).
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 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
heath clinics, the State pursues interests constitutionally distinct from the
freedom from unpopular speech to which Justice Kennedy refers.
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.
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; none of the restrictions imposed by the court were directed at the
contents of petitioner's message." 512 U. S., at 762-763.
See Brief for Petitioners 32, n. 23.
"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.
In United States v. Grace, 461 U. S. 171 (1983), after
examining a federal statute that was "interpreted 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, n. 3 (1997); Madsen, 512 U. S., at 759.
"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, 447 U. S., at 462, n. 6 (quoting Consolidated Edison Co. of N.
Y. v. Public Serv. Comm'n of N. Y., 447 U. S. 530, 537 (1980)).
"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.
Justice Kennedy states that the statute "forecloses peaceful
leafletting," post, at 15. 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 16-22. Nothing
in this statute, however, prevents persons from proffering their literature,
they simply cannot approach within eight feet of an unwilling recipient.
See Grayned v. City of Rockford, 408 U. S. 104, 119 (1972).
See Cox v. Louisiana, 379 U. S. 559, 562 (1965).
See Burson v. Freeman, 504 U. S. 191, 206-208 (1992)
(plurality opinion); Id., at 214-216 (Scalia, J., concurring
See Frisby v. Schultz, 487 U. S., at 484-485.
Brief for Petitioners 22-23.
Id., at 25.
Brief for Petitioners 48.
Id., at 29.
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)).
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.
The Court responds that statutes which restrict categories of speech--as
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 18-19. 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,"
ibid. 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.
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 14 (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.
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 13 (quoting Erzoznick
v. City of Jacksonville, 422 U. S. 205 (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.
Erzoznick 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).
The Court's suggestion, ante, at 25, 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 in
Frisby 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 24-25) manifestly lacks.
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 24-25. 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," ante, at 25.