- Regulation/restriction of speech based upon content is the essence of Harassment
, and CommercialSpeech
- Suggest that it is political speech that is most highly protected.
- Did this case arise from a failure of the police adequately to protect people entering and leaving the facilities?
- Time, place, manner -- restrictions on political speech at polling stations
- The Supreme Court in Burson v. Freeman, 504 U.S. 191 (1992), upheld a Tennessee law that provided for a 100-foot “campaign free zone” around the entrance to polling places. Scalia and Kennedy concurring. (37 page opinion)
- Compare with similar First Amendment behavior affecting entrance to an armed forces recruiting or induction location.
Respondent: State of Colorado
Venue: Supreme Court of the United States
Opinion of the Court: Hill v. Colorado (2000)
- Text of the Colorado statute.
- Colorado state law prohibits a person within 100' of a health case facility entrance to "knowingly" approach within 8' of another without consent for the purpose to pass "a leaflet or handbill to, displa[y] a sign to, or engag[e] in oral protest, education, or counseling with [that] person .... "
- State District Court dismissed stating 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 (1989)"
- "Because the statute had not actually been enforced against petitioners, he found that they only raised a facial challenge."
- State Appeals of Court affirmed.
- State Supreme Court denied review.
- US Supreme Court "vacated that judgment in light of its holding in Schenck v. ProChoice Network of Western NY. (1997), that an injunctive provision creating a speech-free floating buffer zone with a 15-foot radius violated the First Amendment."
- State Court of Appeals reinstated its judgment.
- State Supreme Court affirmed "statute was narrowly drawn to further a significant government interest, rejecting petitioners' overbreadth challenge, and concluding that ample alternative channels of communication remained open to petitioners."
- State Supreme Court noted that the petitioner had narrowed their claim(s) and "agreed that the question for decision was whether the statute was a valid time, place, and manner restriction under the test announced in Ward."
- Contra Schenck the protester must approach the listener and its a general law not a judicial decree.
That the statute is a violation of the right to free speech protected by the First Amendment to the Federal Constitution. (count 5)
That the impairment of the right to distribute written materials was a violation of the right to a free press. (count 6)
That the statutory consent requirement was invalid as a prior restraint tantamount to a licensing requirement.
That the statute was vague and overbroad.
That the statute was a content based restriction that was not justified by a compelling state interest.
Content based because the content of the speech must be examined to determine whether it "constitutes oral protest, counseling and education"; and that it is "viewpointbased" because the statute "makes it likely that prosecution will occur based on displeasure with the position taken by the speaker." See Carey v. Brown, 447 U. S. 455, 462 (1980).
But see narrowing above in "Facts".
Constitutionality of the Colorado statute.
"The question is whether the First Amendment rights of the speaker are abridged by the protection the statute provides for the unwilling listener."
Affirmed. Colorado statute's restrictions on speech-related conduct are constitutional.
Stevens majority opinion (Rehnquist, O'Connor, Souter, Ginsberg, Breyer)
- Pages 707-735
- Statute serves governmental interests that are significant and legitimate, is not content-based, is narrowly-tailored, leaves ample alternative channels, not overboard, not vague, not a prior restraint on speech.
- "The First Amendment interests of petitioners are clear and undisputed."
- "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)"
- "... 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)."
- "The unwilling listener's interest in avoiding unwanted communication ...." "It is an aspect of the broader 'right to be let alone' ... '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).
- " 'the right of every person `to be let alone' right of 'passage without obstruction,' that the Colorado statute legitimately seeks to protect."
- "... 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."
- Ward v. Rock content neutrality test: "whether the government has adopted a regulation of speech because of disagreement with the message it conveys."
- The Colorado statute passes the Ward v. Rock content neutrality test for three reasons: 1) not a "regulation of speech."; 2) not adopted "because of disagreement with the message it conveys."; 3) "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."
- Examining the content of speech to ascertain the is a practice common to: a copyright violation, a public offering of securities, or an offer to sell goods, etc.
- Reasons that Carey v. Brown is not applicable: 1) places no restrictions on either a particular viewpoint or any subject matter; 2) limits its application "to the specific locations where [that] discourse occurs,"; 3) "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."; 4) "It applies to all 'protest,' to all 'counseling,' and to all demonstrators" (page 725)
- "valid time, place, and manner regulation under the test applied in Ward because it is 'narrowly tailored.' " (page 730)
- Statute is not overbroad. Its breadth is a virtue "because it is evidence against there being a discriminatory governmental motive." Overbreadth requires that the statutue inhibit the rights of others, not the petitioners. (page 732)
- Statute is not vague due to its "scienter requirement" and due to "the specificity of the definitions of the zones described in the statute." (page 733)
- Not a prior restraint because "absolutely no channel of communication is foreclosed." (page 735)
Souter concurrance (O'Connor, Ginsberg, Breyer)
- Pages 735 - 741
- "content-based discriminations are subject to strict scrutiny because they place the weight of government behind the disparagement or suppression of some messages,"
- "Concern ... is not, however, raised in the same way when a law addresses not the content of speech but the circumstances of its delivery."
- "even in a public forum the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions"
- "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 ...."
- MOST SIGNIFICANTLY the freedom to speak and persuade is inseparable from, and antecedent to, the survival of self-government. (political speech allowed, not attacking legal, individual behavior)
Scalia dissent (Thomas)
- Pages 741-765
- claims to "right to be let alone"
- claims Overbreadth
- pretends calm, quiet, empathetic communication while acknowledging aggressive behavior recorded in Schneck.
- "right to be let alone" it is patently incompatible with the guarantees of the First Amendment. (right to speech; not a right to an audience)
- the "ad hoc nullification machine" that the Court has set in motion
- Content considerations: Section I
- undeniably content based -- for the purpose of communicating any message except one of protest, education, or counseling may do so without first securing the other's consent.
- (fundamentally an attack on time, place and manner considerations ... should be a bothersome/nettlesome person case)
- 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.
- "the principal inquiry"—suppression of uncongenial ideas is the worst offense against the First Amendment—but it is not the only inquiry.
- 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.
- 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. (telemarketing, spamming, importune solicitation, etc.)
- Time, place, and manner considerations: Section I
- 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.
- what is the significant interest? "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."
- The interest that the Court makes the linchpin of its analysis was not only unasserted by the State;
- "right to be let alone" Section I A
- NEEDS CHECKING a "right to be let alone" in the sense that Justice Brandeis intended, it is the right of the speaker in the public forum to be free from government interference of the sort Colorado has imposed here.
- not an interest that may be legitimately weighed against the speakers' First Amendment rights
- 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
- content-neutral municipal ordinance prohibiting picketing outside a residence or dwelling
- Scalia states: "No such finding was made, or could be made, here." Scalia is factually incorrect. "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." American Steel Foundries v. Tri-City Central Trades Council, 257 U. S. 184 (1921) at 200
- the preservation of unimpeded access to health care facilities Section I B
- overbroad: covers all unconsented-to approaches for the purpose of oral protest, education, or counseling including those made for the purposes of leafletting or handbilling
- The implication is that the availability of alternative means of communication permits the imposition of the speech restriction
- it covers all unconsented-to approaches, not only speech that is so intimidating or threatening as to impede access.
- perhaps even more significantly, every approach made for the purposes of leafletting or handbilling
- NEEDS CHECKING not the least restrictive or least intrusive means of serving the statutory goal.
- (objects to "speakers who wish to protest, educate, or counsel" as content based and claims that the statute is not "least restrictive or least intrusive")
- leafletting will be rendered utterly ineffectual by a requirement (of consent to approach) or else man a stationary post
- previously upheld -- a necessary connection between the regulated expression and the evil the challenged regulation sought to eliminate. (here the problem is) the obstruction of access to health facilities
- declined to uphold a ban on certain expressive activity on the sidewalks surrounding the Supreme Court United States v. Grace, 461 U. S. 171 (1983)
- I know of no precedent for the proposition that time, place, and manner restrictions are not subject to the doctrine of overbreadth.
- if permitted ... 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.
- (deliberately fails to differentiate between broad prophylaxis and narrowly-tailored.) Prophylaxis is the antithesis of narrow tailoring
- the freedom to speak and persuade is inseparable from, and antecedent to, the survival of self-government. (political speech allowed, not attacking legal, individual behavior)
- Pages 765-792
- 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.
- Content, Overbreadth: Section I A
- Ward applies only if a statute is content neutral. Colorado's statute is a textbook example of a law which is content based.
- 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.
- 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."
- the statute should apply to every building entrance in the State. (see leafletting, handbilling at entrances of polling places)
- The Court time and again has held content-based or viewpoint-based regulations to be presumptively invalid.
- The Ward time, place, and manner analysis is simply inapplicable to this law.
- 'right to be left alone' Section I B
- no right to be free from unwelcome (peaceful) expression aired by a fellow citizen in a traditional public forum:
- Vague or overly broad: Section II
- The operative terms and phrases of the statute are not defined.
- "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.
- A statute is vague when the conduct it forbids is not ascertainable
- Time, place and manner: Section III
- An essential requirement under Ward is that the regulation in question not "burden substantially more speech than is necessary to further the government's legitimate interests." 491 U. S., at 799.
- FALSE CLAIM: If the same building [which houses medical facility] also houses an organization dedicated, say, to environmental issues, a protest against the group's policies would be barred. (compare polling place)
- With these means [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."] available to ensure access, the statute's overreaching in the regulation of speech becomes again apparent.
- (Kennedy claims that the place test in Ward is not met) applies to public streets and sidewalks, traditional public fora
- The statute fails a further test under Ward, for it does not "`leave open ample alternative channels for communication of the information.'"
- individuals the petitioners believe are about to commit a profound moral wrong (immaterial ... lawful act. clothing that this revealing but not indecent...hijab and morality police)
- forecloses peaceful leafletting (polling places)
- "[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 -- Thornhill v. Alabama, 310 U. S. 88 (1940)
- likely do not have resources to use the mainstream media for their message (immaterial ... issue of wealth)
- 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. (failure to collect data does not confer a right)
- Last Opportunity: Section IV
- 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. (false claim.)