Opposition Brief — Veronica Price, et al., Petitioners v. City of Chicago, Illinois, et al.

No. 18-1516

IN THE

Supreme Court of the United States

__________

VERONICA PRICE, ET AL.,

Petitioners,

v.

CITY OF CHICAGO, ET AL.,

Respondents.

__________

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

__________

BRIEF FOR RESPONDENTS IN OPPOSITION

__________

MARK A. FLESSNER

Corporation Counsel

of the City of Chicago

BENNA RUTH SOLOMON*

Deputy Corporation Counsel

MYRIAM ZRECZNY KASPER

Chief Assistant Corporation

Counsel

SUZANNE M. LOOSE

Senior Counsel

30 N. LaSalle St., Suite 800

Chicago, IL 60602

(312) 744-7764

benna.solomon@cityofchicago.org

*Counsel of Record

QUESTION PRESENTED

An ordinance of the City of Chicago provides that,

within fifty feet of the entrance to any healthcare

facility, no one may “knowingly approac[h]” another

person, without that person’s consent, “for the

purpose of” handing that person a leaflet, displaying

a sign, or “engaging in oral protest, education, or

counseling.” The ordinance is modeled on a statute

upheld in Hill v. Colorado, 530 U.S. 703 (2000),

although that statute applied to a substantially

larger area than the ordinance does.

The question is whether the ordinance violates

the First Amendment.

(i)

TABLE OF CONTENTS

Page

QUESTION PRESENTED........................................... i

TABLE OF CONTENTS ........................................... iii

TABLE OF AUTHORITIES ....................................... iv

STATEMENT ............................................................ 1

REASONS FOR DENYING THE PETITION ............ 7

1. The Ordinance is a Narrowly Drawn,

Non-Content-Based Regulation of the Place and

Manner of Expression.. .......................................... 8

2. Hill v. Colorado Is Justified By Established First

Amendment Principles And Should Not Be

Overruled.. .......................................................... 18

a. Hill was the product of a careful evolution in

this Court’s doctrine. ...................................... 18

b. Overruling Hill Would Destabilize Important

Bodies Of First Amendment Doctrine. ........... 21

3. The Ordinance Is Not Motivated By Hostility To

Abortion Opponents’ Expression.. ...................... 28

CONCLUSION .......................................................... 32

(iii)

iv

TABLE OF AUTHORITIES

CASES

Page

Ashcroft v. Iqbal,

556 U.S. 662 (2009) ....................................... 31

Chaplinsky v. New Hampshire,

315 U.S. 568 (1942) .................................. 25-26

Clark v. Community for Creative Non-Violence,

468 U.S. 288 (1984) ................................. 10, 30

Cohen v. California,

403 U.S. 15 (1971) ......................................... 25

Cox v. Louisiana,

379 U.S. 559 (1965) ....................................... 23

FCC v. League of Women Voters,

468 U.S. 364 (1984) ....................................... 14

Frisby v. Schultz,

487 U.S. 474 (1988) ................................. 24, 26

Graff v. City of Chicago,

9 F.3d 1309 (7th Cir. 1993) (en banc) ........... 17

Grayned v. City of Rockford,

408 U.S. 104 (1972) ....................................... 10

v

Heffron v. International Society for Krishna

Consciousness, Inc.,

452 U.S. 640 (1981).................................... 15, 22

Hill v. Colorado,

530 U.S. 703 (2000) ................................passim

In re Primus,

436 U.S. 412 (1978) ....................................... 26

International Society for Krishna Consciousness,

Inc. v. Lee,

505 U.S. 672 (1992) ................................. 22, 25

Kovacs v. Cooper,

336 U.S. 77 (1949) ......................................... 10

Madsen v. Women’s Health Center,

512 U.S. 753 (1994) ................................passim

March v. Mills,

867 F.3d 46 (1st Cir. 2017),

cert. denied, 138 S. Ct. 1545 (2018) .............. 10

Martin v. City of Struthers,

319 U.S. 141 (1943) ....................................... 15

McCullen v. Coakley,

134 S. Ct. 2518 (2014) ............................passim

NAACP v. Button,

371 U.S. 415 (1963) ....................................... 18

vi

Norton v. City of Springfield,

806 F.3d 411 (7th Cir. 2015) ........................... 4

Ohralik v. Ohio State Bar Association,

436 U.S. 447 (1978) ....................................... 26

Phelps-Roper v. City of Manchester,

697 F.3d 678 (8th Cir. 2012) ......................... 27

Phelps-Roper v. Ricketts,

867 F.3d 883 (8th Cir.),

cert. denied, 138 S. Ct. 477 (2017) .......... 27, 30

Phelps-Roper v. Strickland,

539 F.3d 356 (6th Cir. 2008) ......................... 27

Reed v. Town of Gilbert,

135 S. Ct. 2218 (2015) ............................passim

Roe v. Wade,

410 U.S. 113 (1973) ....................................... 20

Rowan v. Post Office Dept.,

397 U.S. 728 (1970) ................................. 15, 26

Schenck v. Pro-Choice Network,

519 U.S. 357 (1997) ................................. 19, 20

Snyder v. Phelps,

562 U. S. 443 (2011) ...............................passim

Street v. New York,

394 U.S. 576 (1969) ....................................... 15

vii

Texas v. Johnson,

491 U.S. 397 (1989) .................................. 14-15

United States v. Grace,

461 U.S. 171 (1983) ....................................... 10

United States v. Kokinda,

497 U.S. 720 (1990) ....................................... 22

Ward v. Rock Against Racism,

491 U.S. 781 (1989) ....................................... 10

STATUTES, ORDINANCES, AND REGULATIONS

18 U.S.C. § 1507............................................... 23

42 U.S.C. § 1983................................................. 2

Respect for America’s Fallen Heroes Act,

Pub. L. 109-228, codified at 38 U.S.C.

§ 2913 and 18 U.S.C. § 1387........................ 27

Municipal Code of Chicago, Ill.

§ 8-4-010(j)(1) .................................................. 2

N.Y.C. Admin. Code § 8-803(a)(3) (2014) ........ 27

OTHER AUTHORITIES

Richard H. Fallon, Jr., Sexual Harassment,

Content Neutrality, and the First Amendment

Dog that Didn’t Bark,

1994 S. Ct. Rev. 1 .......................................... 24

viii

Jamie B. Raskin & Clark L. LeBlanc, Disfavored

Speech About Favored Rights,

51 Am. U. L. Rev. 179 (2001) ...................... 28

Kathleen M. Sullivan, Sex, Money, and Groups:

Free Speech and Association Decisions in the

October 1999 Term,

28 Pepperdine L. Rev. 723 (2001) ............... 28

IN THE

Supreme Court of the United States

__________

No. 18-1516

__________

VERONICA PRICE, ET AL.,

Petitioners,

v.

CITY OF CHICAGO, ET AL.,

Respondents.

__________

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

__________

BRIEF FOR RESPONDENTS IN OPPOSITION

__________

STATEMENT

Factual Background

An ordinance of the City of Chicago includes,

among other types of conduct that constitute

“disorderly conduct,” a provision that applies to the

area outside healthcare facilities. Specifically, the

Ordinance prohibits “knowingly approach[ing] * * *

within eight feet” a person who does not consent, “for

the purpose of passing a leaflet or handbill to,

2

displaying a sign to, or engaging in oral protest,

education, or counseling with such other person”

while “within a radius of 50 feet from any entrance

door to a hospital, medical clinic, or healthcare

facility.”

Municipal

Code

of

Chicago,

Ill.

§ 8-4-010(j)(1).

Petitioners

are several

individuals

and

organizations with members who gather at

healthcare facilities in Chicago in order to “dissuade

[women] from choosing an abortion.” Complaint, ¶¶

5-8, 10. They assert that they seek to “engage women

approaching the abortion clinics in a one-on-one

conversation in a calm, intimate manner in order to

offer information about the dangers involved in

abortion and to offer alternatives.” Complaint, ¶ 20.

Petitioners brought this action under 42 U.S.C. §

1983 against the City and various City officials.

Petitioners asserted that the Ordinance violates the

First Amendment both on its face and as applied.1

The District Court Proceedings

The United States District Court for the

Northern District of Illinois dismissed the complaint

1

Petitioners also asserted claims under the Equal

Protection and Due Process Clauses, as well as state law claims.

See Pet. App. 5. They do not pursue those claims in this Court.

See Pet. i.

3

insofar as it challenged the Ordinance on its face.2

The court noted that the Ordinance was modeled on a

Colorado statute upheld by this Court in Hill v.

Colorado, 530 U.S. 703 (2000). Pet. App. 29. The

“only material difference between the two laws is the

size of the area within which the eight-foot ‘bubble

zone’ applies”: the Colorado statute applied within a

100-foot radius, while the Ordinance applies within a

much smaller 50-foot radius (Pet. App. 29-30, 40),

meaning that the Ordinance covers approximately

one-fourth of the area specified by the Colorado law.

The district court considered, and rejected,

petitioners’ argument that this Court’s decisions in

McCullen v. Coakley, 134 S. Ct. 2518 (2014), and

Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015),

fatally undermined Hill. See Pet. App. 42-50. The

court explained that McCullen involved a different

kind of restriction: one that prohibited unauthorized

persons from standing within 35 feet of an entrance

to a reproductive healthcare facility, in contrast to

the statute in Hill (and the Ordinance), “which do[es]

not ban people from standing near clinics.” Pet. App.

42. In addition, “the Hill Court focused on patients’

privacy interests in avoiding unwanted, intrusive

communication in situations in which avoiding such

communication is not practical” (Pet. App. 46), an

2

The district court initially denied the motion to dismiss

the counts alleging that the Ordinance was unconstitutional as

applied, but the parties settled those claims, and the district

court dismissed those claims pursuant to the parties’ settlement

agreement. See Pet. App. 5, 53-59.

4

interest that McCullen did not disapprove. See Pet.

App. 45-46.

Reed considered a municipal regulation that

imposed different restrictions on signs depending on

the type of information they conveyed; the Court held

that the regulation was a content-based restriction on

speech that did not satisfy strict scrutiny and was

therefore unconstitutional. See 135 S. Ct. at 2227,

2231-32. Petitioners asserted that under Reed, the

Ordinance is content-based as well. But the district

court explained that “[i]n Hill, in contrast [to Reed], it

was not the message of the speech that was

important — instead it was the manner of speech”

because “unlike the Sign Code, the Colorado law had

nothing to say about what one can talk, counsel,

educate, protest, or leaflet about.” Pet. App. 50. See

also id. at 50-51 n.7 (distinguishing Norton v. City of

Springfield, 806 F.3d 411 (7th Cir. 2015), which

invalidated a law forbidding panhandling, on the

ground that “[t]he Ordinance, in contrast, permits

individuals to speak about any subject, but limits the

manner in which they convey information * * *.”).

Because the district court concluded that the

Ordinance is not content-based, the court reviewed

the Ordinance under intermediate scrutiny: the

question was whether the Ordinance is narrowly

tailored to serve a significant government interest

and leaves open ample alternative channels for

communication. Pet. App. 51. The intermediate

scrutiny analysis, the district court said, was

controlled by Hill, which upheld a measure that

imposed a greater restriction on speech than the

5

Ordinance does. Pet. App. 51. The district court

rejected petitioners’ argument that the City was

required to adduce evidence to support the

Ordinance. The court noted that Hill “provided the

model for the Ordinance” and explained that

“‘[w]here the courts have already upheld a similar

ordinance because of the governmental interests at

stake, a future litigant should not be able to

challenge similar governmental interests without

showing some distinction at the pleading stage.’” Pet.

App. 52 (citation omitted). Because petitioners had

not alleged facts that would justify treating the

Ordinance differently from the more far-reaching

statute upheld in Hill, the district court ruled that

the Ordinance satisfied intermediate scrutiny. The

court accordingly dismissed petitioners’ facial

challenge. Pet. App. 53, 60.

The Court of Appeals’ Decision

The Seventh Circuit affirmed. Pet. App. 1-27. The

court recognized that the Ordinance “is materially

identical to–indeed, is narrower than–the law upheld

in Hill.” Pet. App. 27. And the court acknowledged

that it was bound by Hill. Pet. App. 2. But the court

asserted that “Hill’s content-neutral holding is hard

to reconcile with both McCullen and Reed * * * and its

narrow-tailoring holding is in tension with

McCullen.” Pet. App. 2.

Specifically, the court of appeals stated that Reed

and McCullen used a definition of content-neutrality

that was different from the definition used in Hill:

6

Hill’s analysis emphasized the question whether the

government disagreed with the message conveyed by

the regulated speech, while, the court of appeals said,

the more recent cases focused on the text of the

challenged measure. Pet. App. 21-23. In addition, the

court declared, the later decisions established that

Hill was wrong to hold that it is sometimes

permissible to consider the content of an individual’s

speech in order “to determine if a violation of the law

had occurred.” Pet. App. 22; see Pet. App. 22-24. And

the court of appeals believed that the government’s

interest in protecting individuals from the

“‘emotional harm suffered when an unwelcome

individual delivers a message . . . at close range’”

(Pet. App. 24) (quoting Hill, 530 U.S. at 718 n.25) was

no longer “an acceptable justification.” Pet. App. 24

(emphasis omitted).

On the question whether the Ordinance is

sufficiently narrowly tailored, the court of appeals

understood McCullen to disapprove of “broad

prophylactic regulations in speech-sensitive zones”

while Hill approved the “‘bright-line prophylactic’

aspect” of Colorado’s statute. Pet. App. 25 (quoting

Hill, 530 U.S. at 729). The court of appeals concluded

that “McCullen and Reed have deeply shaken Hill’s

foundation.” Pet. App. 25. But because this Court has

not overruled Hill, the court affirmed the district

court’s dismissal of petitioner’s claim. Pet. App. 26.

7

REASONS FOR DENYING THE PETITION

Chicago’s Ordinance is constitutional under

established First Amendment principles, even apart

from the stare decisis effect of Hill v. Colorado. The

Ordinance is a narrowly drawn regulation of the

manner and place of speech – not of its content – that

serves important government interests and goes no

further than necessary in restricting expression.

Neither McCullen nor Reed draws this conclusion

into question. McCullen’s explicit conclusion that the

statute at issue in that case was not content-based

reinforces, a fortiori, the non-content-based nature of

the Ordinance. And McCullen’s holding about narrow

tailoring concerned a significantly different kind of

regulation, and different government interests, from

what is involved here. Similarly, no plausible

interpretation of Reed justifies the court of appeals’

conclusion that the Ordinance is content-based.

Petitioners acknowledge, as they must, that the

Court cannot invalidate the Ordinance without

overruling Hill. Hill was not an isolated or

ill-considered decision; it was the product of a careful

evolution in this Court’s cases concerning expressive

activity like petitioners’. Moreover, Hill is rooted in,

and justified by, First Amendment principles that

underlie many other decisions. Petitioners’ simplistic

arguments, if they were accepted, would threaten to

undermine settled law concerning, among other

subjects, the regulation of solicitation in public

places; harassment laws, including those that

petitioners themselves urge as alternatives to the

Ordinance; the Court’s “fighting words” doctrine; the

8

regulation of picketing and demonstrations targeted

at particular locations, such as courthouses,

residences, and funerals; regulations that limit

expressive activities in sensitive public areas, such as

those around schools, libraries, and hospitals; and

measures that protect individuals from unwanted

expression.

Petitioners do not remotely explain why, in these

circumstances, the Court should reconsider Hill.

Petitioners do not identify any lower court, other

than the panel in this case, that has found Hill to be

incompatible with more recent decisions. The district

judge in this case – who has since been appointed to

the Seventh Circuit – did not believe there was any

such incompatibility. The petition for a writ of

certiorari should be denied.

1. The Ordinance is a Narrowly Drawn,

Non-Content-Based Regulation of the

Place and Manner of Expression.

a. The Ordinance is a limited regulation of the

place and manner of expression. It has no effect at all

outside of the 50-foot area. Within that area,

individuals may stand anywhere they like and

express themselves any number of ways: by speaking

to passersby, chanting, holding a sign, or offering

literature. The only limit on their behavior within

that area is that they may not approach closer than

eight feet – a distance from which strangers

commonly hail each other on the street – a person

who does not consent to being approached. The

9

Ordinance applies only to the act of “approach[ing]”:

if petitioners are distributing leaflets, for example,

they do not have to move out of the way of someone

walking toward them. And because the Ordinance

requires scienter, an unintentional approach is not a

violation.

The Ordinance applies no matter what the

speaker’s subject, message, or point of view. It would

apply to anti-war protesters who wish to accost

veterans, face-to-face, while they are entering a

hospital, to “educate” them about the nature of the

conflict in which they were wounded; to animal-rights

advocates who objected to methods used at a research

hospital; to community activists who believed that a

hospital catered to wealthy individuals at the

expense of poorer people living nearby; and to

alternative medicine proponents who wanted to

“counsel” unconsenting patients, face-to-face, to reject

conventional medical treatments. Crucially, it applies

to people whose views are diametrically opposed to

petitioners’: An approach by someone who wanted to

offer encouragement to a person obtaining an

abortion would violate the Ordinance if that person

simply wanted to be left alone and did not consent.

b. Face-to-face speech – which is the only thing

the Ordinance affects – is a manner of expression. It

is one of several possible ways in which people might

want to convey a message in a public setting. It is

comparable to amplified speech, for example, and to

picketing, holding up a sign, marching en masse,

door-to-door solicitation, and symbolic speech in

streets and parks: sleeping overnight in a park to

10

dramatize the plight of homeless people (see Clark v.

Community for Creative Non-Violence, 468 U.S. 288

(1984)) or lying down in the street to protest violence.

In

each

of

these

instances,

speakers

characteristically assert, as petitioners do, that their

favored manner of expression will be the most

effective way for them to convey their message. But

each of these methods of expression can be regulated

to address the different public interests that are

affected – that the expression is too noisy, too

disruptive, too intrusive, or in some other way

infringes on an important public interest.

The Ordinance also applies only in a narrowly

defined place in which the interests it protects are

most significantly affected. The traditional public

forum – “streets, sidewalks, and parks” (United

States v. Grace, 461 U.S. 171, 177 (1983)) – is, for

First Amendment purposes, not an undifferentiated

whole. The government is permitted to recognize the

special sensitivity of certain areas. The government is

not required to allow a march on a busy street during

rush hour, or demonstrations in areas of a public

park committed to other uses. It can limit the use of

amplifiers near residential areas, schools in session,

or hospitals. See, e.g., Ward v. Rock Against Racism,

491 U.S. 781 781, 796-97 (1989) (citing Kovacs v.

Cooper, 336 U.S. 77, 86-87 (1949) (opinion of Reed,

J.)); id. at 96-97 (Frankfurter, J., concurring); id. at

97 (Jackson, J., concurring); Grayned v. City of

Rockford, 408 U.S. 104, 120 (1972); March v. Mills,

867 F.3d 46 (1st Cir. 2017), cert. denied, 138 S. Ct.

1545 (2018)).

11

The Ordinance fits within these principles. It

applies only to an area near the entrance of a

healthcare facility – a place where patients and their

loved ones, entering or leaving the facility, are likely

to be in a particularly vulnerable emotional state. Cf.

Snyder v. Phelps, 562 U.S. 443, 473 (2011) (Alito, J.,

dissenting). And just as a noise ordinance may

constitutionally restrict a mode of expression when it

is particularly intrusive, such as in a residential area

or near a school, Chicago’s Ordinance affects only a

mode of expression that is especially intrusive in the

narrowly defined context it governs – face-to-face

speech directed at individuals who do not want to be

approached in that way while they are about to enter

a healthcare facility. As the Court explained in Hill,

the concern is with “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.” 530 U.S. at 724.

c. Petitioners assert that the Ordinance is

content-based. Their principal argument is that the

Ordinance prohibits approaching a person for the

purpose of “‘engaging in oral protest, education, or

counseling’” but not “to solicit donations for a charity,

sell Cubs tickets, campaign for a candidate, or

panhandle.” Pet. 1; see Pet. 25 (“raise funds for

charity, sell Cubs tickets, make small talk about the

weather, or panhandle”).

12

Petitioners repeatedly invoke the criticism of Hill

by Members of this Court and academic

commentators who have asserted that Hill allows

content-based regulation. See, e.g., Pet. 2-3, 14-17.

But the critics’ argument has not been that laws like

the Ordinance discriminate in favor of people who

want to sell baseball tickets. Their principal

argument has been that measures like the Ordinance

are motivated by hostility to the views of those who

oppose abortion. See pp. 28-29 & n.5, infra. That

argument, which we will address below, is meritless.

Petitioners, revealingly, do not assert it. The

artificiality of the argument they do make is an

indication of its weakness.

Petitioners’ argument ignores what the Court

said in Hill about the language that the Ordinance

shares with the Colorado statute: “[T]he statute

applies equally to used car salesmen, animal rights

activists,

fundraisers,

environmentalists,

and

missionaries.” 530 U.S. at 723. As the Court

explained: “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.” Id. at 721.

That distinction – between “social or random

conversation” and targeted face-to-face advocacy –

cannot plausibly be regarded as content-based for

First Amendment purposes. In the words of Reed, the

decision on which petitioners most heavily rely, that

13

distinction is not based on “the topic discussed or the

idea or message expressed.” 135 S. Ct. at 2227; see id.

at 2231 (same); id. at 2227 (“distinctions drawn based

on the message a speaker conveys”).

The Ordinance does not refer to any topics, ideas,

or messages. It applies to a person making an

unconsented approach no matter what topics, ideas,

or messages that person might have in mind. Under

Reed, therefore, the Ordinance is not content-based.

In fact, as we explain below, if the distinction

identified by Hill were treated as content-based,

many unquestioned decisions of this Court would

have to be reconsidered. See pp. 21-24, infra.

The distinction identified in Hill matters

because, as anyone who has walked on a busy city

street knows, there is a difference between being

“approach[ed]” by, for example, someone asking

directions – and who could just as easily have asked

any other passer-by – and being singled out by a

stranger who wants to have an intense conversation

on a subject of his choosing. The latter can be

intrusive or even threatening, not because of the

subject of the conversation but because of the nature

of the unconsented approach. The Ordinance

regulates that kind of “approach” – not in general, of

course, but only in a narrow area, designed to deal

with the special circumstances of a patient entering a

hospital.

Petitioners suggest (Pet. 25-26) that a law is

content-based whenever enforcement authorities

must examine what an individual said in order to

14

determine whether the individual acted unlawfully.

That cannot possibly be right.3 The lawfulness of an

act routinely depends on the intent with which an

individual did it, and intent is routinely determined

by

examining

that

individual’s statements.

Petitioners also contend (Pet. 4, 22) that the

Ordinance violates the well-established principle, for

which petitioners quote Snyder, 562 U.S. at 458, that

“‘speech cannot be restricted simply because it is

upsetting or arouses contempt.’” But as Snyder itself

illustrates, and as the Court has repeatedly said in

the cases that petitioners cite, that principle applies

when the government restricts speech because it

determines that the ideas being expressed are

offensive – not when it is the mode of expression that

is objectionable. See, e.g., Texas v. Johnson, 491 U.S.

3

In support of this contention, petitioners quote a passage

from the Court’s opinion in McCullen to the effect that a law is

content-based if authorities must “examine the content of the

message that is conveyed to determine whether a violation has

occurred.” 134 S. Ct. at 2531. But the Court was referring to

instances in which the conveying of speech with a certain

content is the offense, not when the statements are used to

establish the intent, or – in the words of the Ordinance – the

“purpose” behind a physical act like an unconsented approach.

See ibid. (quoting FCC v. League of Women Voters, 468 U.S. 364,

383 (1984)) (“[I]n order to determine whether a particular

statement [is prohibited,] enforcement authorities must

necessarily examine the content of the message that is conveyed

to determine whether the views expressed concern ‘controversial

issues of public importance.’”).

15

397, 414 (1989); Street v. New York, 394 U.S. 576, 592

(1969).

For example, even when expression is involved,

the government may prohibit loud noises because

they are upsetting, and the government may ban

visual blight because it is offensive. And it may, in

the special circumstances addressed by the

Ordinance – which says nothing about ideas – ban an

excessively close physical approach because it is

intrusive, even when expression is involved.

Contrary to petitioners, the fact that an

individual might withhold consent because of her

perception of what a speaker will say also does not

make

the

Ordinance

content-based.

Any

content-based judgment in that situation is not made

by the government. A measure designed to protect

individuals from unwanted intrusive expression will

often allow the individual to indicate whether it is

indeed unwanted: that does not make those measures

content-based, as this Court’s decisions establish.

See, e.g., Rowan v. Post Office Department, 397 U.S.

728, 737 (1970); Martin v. City of Struthers, 319 U.S.

141, 148 (1943) (allowing door-to-door solicitation to

be banned when a “householder * * * has

appropriately indicated that he is unwilling to be

disturbed”). See also Heffron v. International Society

for Krishna Consciousness, Inc., 452 U.S. 640, 649

n.12 (1981) (argument that a “regulation is not

content-neutral in that it prefers listener-initiated

exchanges to those originating with the speaker * * *

is interesting but has little force”).

16

Nor does it matter, as petitioners suggest,

whether the unwanted expression takes place in the

public forum. A noise ordinance – including one that

applies in the public forum – does not become

content-based if its enforcement is contingent upon

nearby residents’ complaining, even though the

content of the amplified expression might affect

whether they complain.

d. Petitioners assert that McCullen requires the

conclusion that the Ordinance is not narrowly

tailored. But McCullen involved a different kind of

regulation – one that put an area entirely off-limits to

speakers – and the statute in McCullen was justified

primarily by the need to prevent physical obstruction.

The Ordinance, by contrast, is concerned with the

close-approach physical intrusiveness that Hill

described. See pp. 9-11, supra; 530 U.S. at 724.

The Ordinance contains at least five features that

precisely tailor it to protecting that interest without

unnecessarily restricting expression. The Ordinance

has no application at all except within fifty feet of an

entrance to a healthcare facility; it applies only to an

individual who “approaches another person”; it

contains a scienter requirement, limiting its

application to a “knowin[g]” approach; it applies only

to an approach closer than eight feet, a normal

conversational distance; and it applies only to an

approach made without consent. Petitioners never

explain why these aspects of the Ordinance do not

constitute narrow tailoring; in fact, their argument

about narrow tailoring never addresses these

features of the Ordinance at all.

17

In any event, as the district court explained, once

this Court has determined that a regulatory measure

is narrowly tailored to a particular situation, other

units of government are entitled to rely on that

determination, at least until the parties challenging a

measure make a factual showing to undermine it. See

Pet. App. 52 (quoting Graff v. City of Chicago, 9 F.3d

1309, 1323 (7th Cir. 1993) (en banc)). Otherwise this

Court’s decisions would provide no guidance on that

issue. Petitioners offer no factual evidence at all

suggesting that Chicago’s Ordinance, in particular, is

too sweeping.

Petitioners instead make a general attack on

Hill’s conclusion that the Colorado statute, and

measures like it, are narrowly tailored. Pet. 22-24. As

we explain below, petitioners treat Hill as if it came

out of nowhere; they ignore the fact that Hill was the

product of a progression of cases in which the Court

gained familiarity with the issues presented by

protests near healthcare facilities and, in fact,

invalidated some measures because they were not

narrowly tailored. See pp. 18-21, infra. By the time

Hill came before the Court, the Court understood

very well what was needed to deal with those issues.

But petitioners’ and the court of appeals’

principal attack on Hill seems not to be that the

Court in Hill somehow misapprehended the facts;

instead, it is that Hill should not have allowed the

adoption of a “bright-line” rule to address the

problems growing out of activity near healthcare

facilities and should instead have insisted on

regulations that were more flexible. Pet. 24; Pet. App.

18

25. This is, if anything, exactly backward. While

excessively broad prophylactic rules are suspect, see

NAACP v. Button, 371 U.S. 415, 438 (1963) – and the

Court concluded that the McCullen statute was

excessively broad – “[p]recision of regulation must be

the touchstone” in dealing with First Amendment

rights. Button, 371 U.S. at 438. The bright-line

clarity of the Ordinance is a virtue, not a vice.

2.

Hill v. Colorado Is Justified By

Established

First

Amendment

Principles

And

Should

Not

Be

Overruled.

a. Hill was the product of a careful

evolution in this Court’s doctrine.

Petitioners portray Hill as an inexplicable First

Amendment outlier. It was nothing of the kind. Hill

was the last of a series of decisions in which the Court

addressed the issues raised by individuals who

protested near facilities that provided abortions, and

it reflected the Court’s extensive and well-informed

consideration of those issues.

In Madsen v. Women’s Health Center, 512 U.S.

753 (1994), the Court considered a state court

injunction that imposed a variety of restrictions on

individuals who had engaged in disruptive conduct

near an abortion clinic. Among other things, the

injunction

forbade

those

individuals

from

“approaching any person seeking services of the clinic

‘unless such person indicates a desire to

19

communicate’ in an area within 300 feet of the clinic.”

Id. at 773. The Court’s opinion recited the evidence

showing that the actions that had been enjoined “took

their toll on the clinic’s patients.” Id. at 758. The

Court then rejected the claim that the injunction was

content-based because it applied only to anti-abortion

protesters. Id. at 762-64. But the Court invalidated

the restriction on approaching a patient within 300

feet of the clinic on the ground that it swept too

broadly. Id. at 773-74.

Three years later, in Schenck v. Pro-Choice

Network, 519 U.S. 357 (1997), the Court addressed

another injunction restricting conduct near abortion

clinics. The Court again reviewed the facts that led a

federal district court to grant the injunction. Id. at

361-66. The injunction imposed, among other things,

a requirement that protesters stay fifteen feet away

from people entering or leaving the clinics. The Court

invalidated that provision of the injunction,

explaining that it prevented the defendants “from

communicating a message from a normal

conversational distance or handing leaflets to people

entering or leaving the clinics.” Id. at 377.

By the time Hill came before the Court, the Court

had experience with the issues raised by expressive

activity near abortion clinics and with the various

regulatory devices that might be used. It had

addressed the question whether those regulatory

measures were content-based and whether they

swept too broadly. On the basis of that experience,

the Court concluded that the statute in Hill lacked

the defects that caused it to invalidate the

20

comparable provisions of the injunctions. The

Colorado statute applied only within 100 feet of a

healthcare facility – the Ordinance, of course, applies

to a much smaller area. The Colorado statute,

because it prohibited only “knowingly approaching,”

did not require protesters to keep their distance from

people entering a facility. It did not prevent them

from offering leaflets to their target audience. And it

did not prevent “communicating a message from a

normal conversational distance.” Notably, Chief

Justice Rehnquist, who wrote for the Court in

Madsen and Schenck, joined the majority opinion in

Hill.

This progression by itself is enough to answer

petitioners’ contention that the Ordinance – which is

substantially more limited than the Colorado

statute – is not narrowly tailored. This Court itself

ensured that it was narrowly tailored, because it had

pared away what it considered the excessive

restrictions imposed by the injunctions in the prior

cases.

More important, though, this progression shows

that Hill is precisely the kind of case that should not

be overruled. Hill did not come out of nowhere. It was

not the product of a snap judgment, superficial

reasoning, or a preconception about the issues. Chief

Justice Rehnquist, for example, had dissented in Roe

v. Wade, 410 U.S. 113, 171 (1973), but he was

satisfied that the Colorado statute did not present the

difficulties that his previous opinions identified in the

injunctions.

21

Rather, Hill was the work of a Court that was

deeply familiar with both the practical and the

analytical issues that the case presented. The Hill

Court could draw on the lessons of its own

experience. It had seen a variety of regulatory

measures and had had an opportunity to consider the

extent to which each of them preserved First

Amendment values. The decision that the Court

made in those circumstances should not be dismissed

without a much stronger showing than anything

petitioners have offered.

b. Overruling Hill Would Destabilize

Important

Bodies

Of

First

Amendment Doctrine.

Because Hill is based on established First

Amendment principles, it cannot be surgically

removed from the body of First Amendment doctrine,

as petitioners seem to think. Overruling Hill would

draw into question a number of settled decisions of

this Court and various regulatory approaches the

validity of which has been generally assumed,

including by the Court.

i. One of the central claims made by petitioners

and the court of appeals is that under Reed, measures

like the Colorado statute upheld in Hill must now be

regarded as content-based. As we have shown, the

distinction that Hill drew – between “social or

random conversation” and targeted face-to-face

advocacy – is not content-based even under the

language of Reed itself, because it is not based on “the

22

topic discussed or the idea or message expressed”

(135 S. Ct. at 2227, 2231). But beyond that, the Court

has often upheld, without even raising a question

about content-neutrality, measures that draw

distinctions more closely related to the content of

expression than the distinction recognized in Hill.

For example, the Court has repeatedly upheld

regulations that imposed restrictions on “solicitation”

by religious and advocacy groups that were not

imposed on other forms of expression – even though

determining whether someone is engaged in

“solicitation” as opposed to another kind of expression

requires at least as much of an investigation of

content as Hill does. See, e.g., International Society

for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672,

675-76 (1992) (“solicitation and receipt of funds” if

“conducted * * * in a continuous or repetitive

manner” is forbidden within airports); United States

v. Kokinda, 497 U.S. 720, 724 (1990) (plurality

opinion) (“[s]oliciting alms and contributions”

prohibited on Postal Service property); Heffron, 452

U.S. at 643-44 (“fund solicitation operations” on a

fairground must be conducted from a booth although

“communicati[on of] the organization’s views [to] fair

patrons” need not be).

In these cases, the Court did not even consider it

worth discussing whether the regulation was

content-based and therefore subject to strict scrutiny.

On petitioners’ view that Hill did not survive Reed,

then these cases – and the undoubtedly numerous

regulations built upon them – will be open to serious

question.

23

In Cox v. Louisiana, 379 U.S. 559 (1965), the

Court upheld a state statute prohibiting “picket[ing]

or parad[ing] in or near a building housing a [state]

court” if the picketing is done “with the intent of

influencing any judge, juror, witness, or court officer,

in the discharge of his duty” (id. at 560) (internal

quotation marks and citation omitted). There is a

substantively identical federal statute. See 18 U.S.C.

§ 1507. Like the Ordinance, these statutes apply in

the public forum, but to only a limited area within the

public forum – near a courthouse, or near a

healthcare facility.

Unlike the Ordinance, though, these statutes will

routinely require an examination of the specific views

expressed by a speaker in order to determine if the

law was violated. Moreover, as the Court explained in

Cox, the basis for these statutes is the impact of the

prohibited speech on people who were exposed to it:

“the danger that some judges, jurors, and other court

officials, will be consciously or unconsciously

influenced by demonstrations in or near their

courtrooms both prior to and at the time of the trial.”

379 U.S. at 565. In this way, 18 U.S.C. § 1507 and the

statute upheld in Cox reflect a judgment by the

government that speech with a certain content –

speech designed to influence judicial proceedings –

will have a harmful impact on listeners. The

Ordinance reflects no such judgment about the

content of any speech. If Hill is overruled as

petitioners request, it is difficult to see how Cox and

18 U.S.C. § 1507 can survive.

24

Finally, in Frisby v. Schultz, 487 U.S. 474 (1988),

the Court upheld a municipal ordinance that it

construed as forbidding “picketing focused on, and

taking place in front of, a particular residence.” Id. at

482. That ordinance, too, applied in the public forum.

See id. at 480-81. Determining whether picketing is

focused on a particular residence, like determining

whether speech constitutes “solicitation” and whether

a picketer has an intent to influence judicial

proceedings, requires a more substantial inquiry into

content than Hill envisions. But the Court has not

questioned Frisby. Indeed, despite the Hill majority’s

reliance on Frisby, the two dissenters in Hill who had

joined the majority in Frisby did not doubt the

content neutrality of the ordinance in Frisby,

distinguishing it on other grounds.

ii. In a wide range of contexts, the Court has

recognized that face-to-face expression presents

distinctive issues and justifies distinctive forms of

regulation. 4 Petitioners utterly fail to acknowledge

this. Overruling Hill would potentially affect all of

these varied principles.

4

See Richard H. Fallon, Jr., Sexual Harassment, Content

Neutrality, and the First Amendment Dog that Didn’t Bark,

1994 S. Ct. Rev. 1, 42 (footnotes omitted): “Narrowly targeted,

face-to-face expression has often received less constitutional

protection than words and expressive conduct in other contexts.

* * * [I]ndividually-targeted, face-to-face speech is especially

likely to have the purpose of being, and to be experienced as,

invasive, threatening, or coercive.”

25

In Lee – which upheld a ban on solicitation at

airports – the Court emphasized that “face-to-face

solicitation presents risks of duress that are an

appropriate target of regulation.” 505 U.S. at 684.

The Court mentioned the particular risk to “the most

vulnerable, including those accompanying children or

those suffering physical impairment and who cannot

easily avoid the solicitation.” Ibid. People who are

entering a healthcare facility are especially likely to

be among those described by the Court. And while the

Court in Lee was addressing face-to-face solicitation,

Chief Justice Rehnquist, the author of the Court’s

opinion in Lee, quoted the same language in his

opinion for the Court in Madsen, dealing with

face-to-face contact outside an abortion clinic. See 512

U.S. at 773-74.

The “fighting words” doctrine, which the Court

has consistently understood as defining a low-value

category of speech since its decision in Chaplinsky v.

New Hampshire, 315 U.S. 568 (1942), is similarly

designed to deal with “personally abusive epithets,”

but only when the epithets are “‘directed to the

person of the hearer.’” Cohen v. California, 403 U.S.

15, 20 (1971) (citation omitted). The Court has made

it clear that the same words that might constitute

unprotected fighting words when spoken face-toface – and therefore be subject to an outright

prohibition – will be fully protected if spoken

publicly. In Cohen, for example, the Court held that

displaying an epithet publicly in connection with a

political issue was fully protected speech even though

the same epithet is “not uncommonly employed” in a

26

way that might constitute unprotected fighting

words. Ibid. While it is customary to describe

“fighting words” as an unprotected category of

speech, it is more accurate to say that fully protected

speech can, in some circumstances, become

unprotected – precisely because of its effect on the

person to whom it is directed – when those same

words are uttered face-to-face. That is true even

when the face-to-face contact occurs in the public

forum: the facts of Chaplinsky took place on a public

sidewalk. It is difficult to see how this established

doctrine can survive petitioners’ approach.

In yet another context, the Court highlighted the

distinctive issues presented by face-to-face speech

when it issued two contrasting decisions on the same

day. In In re Primus, 436 U.S. 412 (1978), the Court

held that a state could not reprimand a lawyer who

offered his services to a potential client by mail. Then

in Ohralik v. Ohio State Bar Association, 436 U.S.

447 (1978), the Court held that a state bar

association could punish a lawyer who contacted a

potential client in person.

iii. Finally, the Court has, contrary to petitioners,

often recognized the importance of protecting

individuals from unwanted expression. This is true

even when, as in Frisby, the expression itself took

place in the public forum. The Court has emphasized

that individuals have a particular interest in being

protected from unwanted expression when they are

at home. See, e.g., Rowan, 397 U.S. at 737. But there

are circumstances outside the home in which

27

individuals’ interest in not being subjected to

intrusive modes of expression is equally strong.

For example, in Snyder, the Court noted that

nearly all states, and the federal government, have

enacted measures restricting the location of

demonstrations near funerals. See 562 U.S. at

456-57; Respect for America’s Fallen Heroes Act, Pub.

L. 109-228, codified at 38 U.S.C. § 2913 and 18 U.S.C.

§ 1387. These statutes have been upheld on the

ground that “‘mourners attending a funeral . . . share

a privacy interest analogous to those which the

Supreme Court has recognized for individuals in

their homes’” (Phelps-Roper v. Ricketts, 867 F.3d 883,

893 (8th Cir.), cert. denied, 138 S. Ct. 477 (2017))

(quoting Phelps-Roper v. City of Manchester, 697 F.3d

678, 692 (8th Cir. 2012) (en banc)). See also

Phelps-Roper v. Strickland, 539 F.3d 356 (6th Cir.

2008). Decisions upholding these statutes have

recognized the resemblance, in this respect, between

individuals attending a funeral and patients entering

a healthcare facility, and they have explicitly relied

on Hill. See, e.g., Phelps-Roper v. Ricketts, 867 F.3d

at 893. Overruling Hill on the ground that the

government may not protect individuals outside the

home from unwanted speech would draw into

question all of these statutes.

Petitioners suggest (Pet. 13) that laws forbidding

harassment would serve the purposes of the

Ordinance. The Court in McCullen suggested that a

New York City harassment ordinance might be a way

of preventing abusive behavior near an abortion

clinic. See 134 S. Ct. at 2538 (citing N.Y.C. Admin.

28

Code § 8-803(a)(3) (2014)). But harassment laws,

when applied outside a healthcare facility, have all

the same features that, according to petitioners, call

for Hill to be overruled. They protect an individual

from unwelcome expressive conduct outside the

home. The conduct takes place in a public forum. And

the alleged harasser’s verbal expression will

routinely be relevant to determining whether the

conduct constitutes harassment.

3. The Ordinance Is Not Motivated By

Hostility

To

Abortion

Opponents’

Expression.

Petitioners repeatedly emphasize criticisms of

Hill made by the dissenting opinions in that case.

E.g., Pet. 2-3, 13-15. Those criticisms, however, were

explicitly animated by a claim that petitioners do not

advance, at least not overtly: the claim that the

Colorado statute, and other regulations like it, are

motivated by hostility to the views expressed by

opponents of abortion. See, e.g., Hill, 530 U.S. at

741-42, 744 (Scalia, J., dissenting); id. at 768

(Kennedy, J., dissenting). The same is true of much of

the academic criticism that petitioners invoke.5

5

See, e.g., Jamie B. Raskin & Clark L. LeBlanc, Disfavored

Speech About Favored Rights, 51 Am. U. L. Rev. 179, 215 (2001)

(“The conclusion that the statute was designed to and would

function to stifle anti-abortion protest is inescapable”); Kathleen

M. Sullivan, Sex, Money, and Groups: Free Speech and

Association Decisions in the October 1999 Term, 28 Pepperdine

L. Rev. 723, 737-38 (2001) (“[T]he motivation for this facially

neutral law had to do with its effect in shielding patients

29

Because this claim plays a central role in

criticism of Hill – and because that criticism plays

such a prominent role in the petition – it is important

to recognize how utterly without merit this claim is.

It is, for one thing, foreclosed by the Court’s decision

in McCullen. The McCullen Court squarely rejected

the argument that the Massachusetts statute was a

content-based restriction on anti-abortion speech. See

134 S. Ct. at 2530-32. And that statute applied only

to the area outside facilities where abortions are

performed. Id. at 2526. It follows a fortiori that the

Ordinance – which applies to all healthcare

facilities – is not directed at anti-abortion expression.

Moreover, the Court explained that it had

established the non-content-based nature of the

Massachusetts law in order to leave open other

regulatory options that would apply to the area near

a facility that provided abortions – including the

anti-harassment measures that, as we explained

above, share many of the characteristics of the

Ordinance. See id. at 2530, 2538. In all of these ways,

McCullen, directly contrary to petitioners’ assertions,

(abortion patients) known to be the recipients of a particular

kind of speech (anti-abortion speech).”) An amicus curiae brief

filed in McCullen that was devoted to recounting academic

criticism of Hill characterized the academic criticism in the

same way. See Brief of Eugene Volokh, et al., as amici curiae in

support of petitioners, McCullen v. Coakley, No. 12-1168

(October Term, 2013), at 8 (commentators objected to Hill

because the Colorado statute “clearly targeted anti-abortion

speech”).

30

reinforces the constitutionality of the Ordinance.

As the Court has recognized, in McCullen and

elsewhere (see, e.g., Madsen, 512 U.S. at 763; Clark,

468 U.S. at 294-95), a regulation of a method of

expression does not become content-based just

because it affects a group with a particular viewpoint.

There is a direct analogy to the state and federal laws

that, as the Court has noted, regulate protests near

funerals. See Snyder, 562 U.S. at 456-57; pp. 26-27,

supra. Even if those laws were a response to the

actions of the group involved in Snyder, that would

not make them content-based, so long as they were

prompted by concern about the tactics that the group

used, not its views. Significantly, petitioners seem to

think otherwise: that the laws of the federal

government and nearly every state regulating

protests near funerals are per se constitutionally

suspect. See Pet. 33-34 (asserting that Phelps-Roper

v. Ricketts erroneously failed to treat as

content-based a law that “bann[ed] a single category

of speech – protests in the vicinity of funeral

services”). Petitioners’ position on this issue is a

further indication of how much established First

Amendment doctrine would be discarded if

petitioners were to prevail.

Petitioners’ complaint, in fact, does not even

contain a claim that the Ordinance was enacted out

of hostility to their speech.6 And nothing about the

6

One clause in the complaint states, in passing, that the

Ordinance “was enacted and is applied so as to restrict pro-life

31

Ordinance suggests that it was. The Ordinance does

not limit petitioners’ speech anywhere except within

eight feet of a patient who is near a healthcare

facility and does not want to be approached by

petitioners. As we have said, anyone on any side of

any issue is subject to the same restriction. There is

no reason whatever to doubt that the basis for the

Ordinance is a concern with protecting patients from

intrusive conduct and not anything having to do with

the ideas that petitioners, or anyone else, is

expressing.

Petitioners portray Hill as a decision that was

widely condemned, is legally unsound, and is at odds

with First Amendment principles. In fact, it is fully

legally justified. It is so well-rooted in First

Amendment principles that it cannot be overruled

without jeopardizing wide-ranging and important

aspects of First Amendment doctrine. And, for the

most part, the condemnation is based on a false

premise that even petitioners are unwilling to avow.

speech” (Complaint, ¶ 120), but the Complaint contains no

“factual matter” supporting the assertion that the enactment of

the Ordinance was improperly motivated. See Ashcroft v. Iqbal,

556 U.S. 662, 678-80 (2009). Nor does the petition pursue this

assertion.

32

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted,

MARK A. FLESSNER

Corporation Counsel

of the City of Chicago

BENNA RUTH SOLOMON*

Deputy Corporation Counsel

MYRIAM ZRECZNY KASPER

Chief Assistant Corporation

Counsel

SUZANNE M. LOOSE

Senior Counsel

30 N. LaSalle St., Suite 800

Chicago, IL 60602

(312) 744-7764

benna.solomon@cityofchicago.org

Attorneys for Respondents

*Counsel of Record

August 7, 2019