Petitioners Brief — Hill v. Michigan Attorney Grievance Commission
Supreme Court brief1999
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No. 98-1856
in Tes . - Of GHB BLERE .
Supreme Court of the AniterSrates
LEILA JEANNE HILL, AUDREY HIMMELMANN,
AND EVERITT W. SIMPSON, JR..,
Petitioners,
Vv.
THE STATE OF COLORADO, BILL OWENS,
GOVERNOR, et ai.,
Respondents.
On Writ of Certiorari to the
Colorado Supreme Court
BRIEF FOR PETITIONERS
THOMAS P. MONAGHAN JAY ALAN SEKULOW
AMERICAN CENTER FOR Counsel of Record
LAW & JUSTICE JAMES M. HENDERSON, SR.
6375 New Hope Road WALTER M. WEBER
New Hope, KY 40052 JOEL H. THORNTON
(502) 549-7020 AMERICAN CENTER FOR
LAW & JUSTICE
ROGER W. WESTLUND 1000 Thomas Jefferson St., NW
12000 N. Washington, # 207 Suite 609
Thornton, CO 80241 Washington, DC 20007
(303) 450-0833 (202) 337-2273
Attorneys for Petitioners
QUESTIONS PRESENTED
Under a Colorado criminal law, no one may distribute
leaflets, orally counsel, educate or protest, or display signs,
within eight feet of another person, while within one hundred
feet of the entrance to a medical facility, unless the speaker first
seeks and gets consent from the other person. C.R.S. §
18-9-122(3). A speaker commits a crime if he communicates
by any of these methods, without consent, while within eight
feet of any person to whom the communication is addressed.
The following questions are presented:
1. Does Colorado’s statutory requirement that speakers
obtain consent from passersby on public sidewalks and.
streets before speaking, displaying signs, or distributing
leaflets unconstitutionally burden protected expressive
yt Aare) een Lee 3 | rights in a traditional public forum?
Bienes ert | | 2. Does Colorado’s statutory designation of private
inks ES citizens as censors of speech, picket signs, and leaflets on
public streets and sidewalks impose an unconstitutional
prior restraint?
3. Isa statute that gives broad discretion to passersby in
public places to act as censors of speech, picket signs, and
leaflets and which fails to prohibit content-based denials of
the right to speak, to display signs, or to pass leaflets
subject to strict scrutiny?
4. Isa statute that gives broad discretion to passersby in
public places to act as censors of speech, picket signs, and
leaflets and which fails to prohibit viewpoint-based denials
of the right to speak, to display signs, or to pass leaflets
unconstitutional per se?
PARTIES
All of the petitioners are listed in the caption on the cover.
None of the petitioners is a corporation. See Supreme Court
Rule 29.6.
In addition to the respondent listed in the caption on the
cover, the following persons or entities were respondents in the
proceedings below and are respondents in this Court:
David J. Thomas, in his official capacity as District
Attorney for the First Judicial District of the State of
Colorado; the City of Lakewood, Colorado; and, Ken
Salazar, in his official capacity as Attorney General of the
State of Colorado.
(ii)
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TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ............-- 00-00 ees i
ee edu scorer bes ecccccceocvcece ii
TABLE OF AUTHORITIES .............-00000005: vi
ee odes cee eccvceovccoces l
Eh. Je bens etbeoeedsccecccces l
CONSTITUTIONAL PROVISIONS AND STATUTES... |
STATEMENT OF THE CASE ...........-.-eeeeeee: 2
eee avcsbccccesoccecccces 2
TE chic bcccescccceccesovcccccces 4
1. The trial court's treatment of the federal
eee 5
2. The Colorado Court of Appeals’ treatment of the
federal questions on its initial review ........... 6
3. This Court's treatment of the prior petition ........ 7
4. The Colorado Court of Appeals’ treatment of the
federal issues on remand from this Court ........ 7
5. The Colorado Supreme Court's treatment of the
federal questions ..........000 0c cece cceeeee 7
SUMMARY OF ARGUMENT ........ 2.6.6.6 000005 9
EME ca vccocccucecceccevccccess 12
COLORADO REVISED STATUTE § _18-9-122(3)
IS UNCONSTITUTIONAL ON ITS FACE.......... 12
I. The Operation of C.R.S. § 18-9-122(3) ............. 13
A. The Statute Operates “in the Public Way or
LE PE OE 14
B. The Statute Restricts Activity Undertaken “for
the Purpose of Passing a Leaflet or Handbill to,
Displaying a Sign to, or Engaging in Oral
Protest, Education, or Counseling” ............ 14
(iii)
TABLE OF CONTENTS—cont’d
Page
C. The Statute Forbids Communication “Unless
Such Other Person Consents” ................ 15
D. The Statute Operates Within “a Radius of One
Hundred Feet from any Entrance Door to a
SGRNGUEEE nv ccccsscswndnbsecsuass 15
II. Petitioners’ Leafletting, Sign Displays, and Oral
Communications Are Constitutionally Protected ... 16
III. The Colorado Public Sidewalks, Streets and Ways
Affected by C.R.S. § 18-9-122(3) are Public Fora
ROTI ce veevecccvcikvtwanucasuvaeveses 18
IV. Section 18-9-122(3) Fails Constitutional Scrutiny ... 18
A. C.R.S. § 18-9-122(3) is Overbroad ............. 22
B. Section 18-9-122(3) Imposes an Unconstitutional
re rere 27
1. The Statute Grants Unbridled Discretion to
DORE ini cv cesecctcccddveséawes 29
2. Section 18-9-122(3) Lacks the Necessary
Procedural Safeguards ................005. 31
C. CRS. § 18-9-122(3) Unconstitutionally
Discriminates Based on Content and Viewpoint
CERES 6.0 oc cncen dctduddcscedcoscesss
3. No conceivable government interest, let
alone one that is compelling, justifies
Colorado’s decision to secure access to
health care facilities by suppressing
freedom of expression in the traditional
COE o ccc cccccceccedecntseceteses
TABLE OF CONTENTS—cont’d
4. Even if securing access to health care
facilities constitutes a compelling
government interest, C.R.S. § 18-9-122(3)
is not narrowly drawn to serve that
ES euscoandubuseanducenuenset cocss« 36
E. C.R.S. § 18-9-122(3) does not Survive Scrutiny
as a Regulation of Time, Place and Manner of
leafletting is not reasonable ................ 37
2. The ban on freedom of expression is not
Ns wee nheckddcuctbeteeces 39
3. C.R.S. § 18-9-122(3) does not leave
open ample alternative channels of
SE 8 cn cde aeucuasidbdaetces 43
F. C.R.S. § 18-9-122(3) Is Unconstitutionally
WEE, Sddcccddabbdocccdsswhedbatetcbene ce 45
PE hoketecandatesd c4065deabutweenas ent 50
(v)
TABLE OF AUTHORITIES
Cases
Page(s)
Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963) .. 10, 28
Board of Airport Comm'rs v. Jews for Jesus,
Ge, FD bn. 66 bb betcsbcedisess« 24, passim
Boos v. Barry, 485 U.S. 312 (1988) ......... 17, 19, 34, 36
Bray v. Alexandria Women’s Health Clinic,
SR, ED ckWus Kdenaceisecedcsoccences 35
Burton v. Wilmington Parking Authority,
SORTER, FOO 6 KUtberedeS hoc ccdnccccds 28-29
Carey v. Brown, 447 U.S. 455 (1980) .......... 17, 32, 34
Chicago Teachers Union v. Hudson,
GPs SEED 5 n.060 6 dcGaceesciciccccceccct 31
City of Ladue v. Gilleo, 512 U.S. 43 (1994) ........... 44
City of Houston v. Hill, 482 U.S. 451 (1987) .... 12, passim
City of Lakewood v. Plain Dealer Publishing,
GEG, FD bn oc cedeescccecescccsccss 30, 31
Coates v. Cincinnati, 402 U.S. 611 (1971) ...... 20, 24, 49
Connally v. General Constr. Co.,
EGE. BE oda n cteenedecsedeceussens 45, 47
Cooper v. Aaron, 358 U.S. 1 (1958) ..........-.-- 28, 29
Cornelius v. N.A.A.C.P. Legal Defense & Educ. Fund,
GID UE, TG ovine dccecnsdccedoncsdncccoces Ms
Edwards v. South Carolina, 372 U.S. 339 (1963) ....... 17
Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975) 35, 36
Evans v. Newton, 382 U.S. 296 (1966) ...........045. 28
Federal Election Comm'n v. National Conservative PAC,
GIDE, GEE 4 6 cbs ccerecvcccccevevecocess 26
Forsyth County v. Nationalist Movement,
SERGE, TG eho cdccccccesscecesecces 30, 33
(vi)
TABLE OF AUTHORITIES—cont’d
Page(s)
Freedman v. Maryland, 380 U.S. 51 (1965) ........... 31
Frisby v. Schultz, 487 U.S. 474 (1988) ........ 18, passim
FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990) . 12,31
Grayned v. City of Rockford,
Se SEs oak i cecccnccotac 11, 17, passim
Gregory v. City of Chicago, 394 U.S. 111 (1969) .... 12,17
Hague v. CIO, 307 U.S. 496 (1939)... 2... ee 10, 18
Heffron v. ISKCON, 452 U.S. 640 (1981) ... 2.2.0.0... 17
Hill v. City of Lakewood, 911 P.2d 670 (Colo. App. 1995) . 1
Hill v. City of Lakewood, 949 P.2d 107 (Colo. App. 1997) . 1
Hill v. Colorado, 519 U.S. 1145 (1997)... 2... l
Hill v. Thomas, 973 P.2d 1246 (Colo. 1999) ............ |
Hustler Magazine v. Falwell, 485 U.S. 46 (1988) ....... 12
Hynes v. Mayor of Oradell, 425 U.S. 610 (1976) .... 48, 49
ISKCON v. Lee, 505 U.S. 672 (1992) ...........0.5.. 36
Lamb's Chapel v. Center Moriches Union Free School Dist..
i a i wecue 24
Larkin v. Grendel's Den, 459 U.S. 116 (1982) ......... 28
Lewis v. City of New Orleans, 415 U.S. 130 (1974) ..... 25
Linmark Associates v. Township of Willingboro,
RE 44
Lovell v. City of Griffin, 303 U.S. 446 (1938) ....... 10, 17
Madsen v. Women’s Health Center,
Ns ieee 12, passim
McIntyre v. Ohio Elections Comm'n,
es ce cececes 10, 16
Metromedia, Inc. v. City of San Diego,
eS t clceeeces 44
Members of City Council v. Taxpayers for Vincent,
os Chek oe Gee beadceenece 12
(vii)
TABLE OF AUTHORITIES—cont’d
Page(s)
Meyer v. Grant, 486 U.S. 414 (1988) .......... 30, 44, 45
NAACP v. Button, 371 U.S. 415 (1963)... 2.2.2.0... 11, 49
National Socialist Party v. Village of Skokie,
Gs as GE ca Cena cadet eeds va cestssuues 30
Organization for a Better Austin v. Keefe,
Ge Se EE avcuedwunbbabibsciceeaceks 17, 36
Perry Educ. Ass'n v. Perry Local Educator's Ass'n,
GER Fe din 0 adldadae caste doeneccaudeas 18
Planned Parenthood of Southeastern Pennsylvania v. Casey,
er ee ee 13
Police Department v. Mosley, 408 U.S. 92 (1972) ... 33,34
R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) ......... 12
Reno v. American Civil Liberties Union,
See Wek ED Sac Gdudabs ote s dec udccs 11, 28, 34
Riley v. National Fed'n of the Blind,
Gay Gas Pe ED hue bose besdcoccowesets 19, 24, 31
Schenck v. Pro-Choice Network of Western New York,
Sg BR RS A eee 7, passim
Schneider v. State, 308 U.S. 147 (1939) .............. 44
Secretary of State v. J. H. Munson Co.,
467 U.S. 847 (1984) .................. 10, 22, passim
Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969) 30
Simon & Schuster, Inc. v. Members of New York State Crime
Victims Bd., 502 U.S. 105 (1991) .... 2.2.2.2... 20, 21
Smith v. California, 361 U.S. 147 (1959) .......... 48, 50
Street v. New York, 394 U.S. 576 (1969) .............. 22
Terminiello v. Chicago, 337 U.S. 1 (1949) ............ 13
Texas v. Johnson, 491 U.S. 397 (1989) .............4.. 12
Thornhill v. Alabama, 310 U.S. 88 (1940)... . 19, 24, 39, 40
(viii)
TABLE OF AUTHORITIES—cont’d
Turner Broadcasting System v. FCC,
ED oS ded Ged Kbee cece cccecene 32, 33
U.S. Postal Service v. Greenburgh Civic Ass'n, 453 U.S. 114
DEE Gbdkibunccetéeeh sees veedsEs ode cweccccees 21
United States v. Eichman, 496 U.S. 310 (1990). ........ 12
United States v. Grace, 461 U.S. 171 (1983) .... 12, passim
United States v. Kokinda, 497 U.S. 720 (1990) .. 17, 36, 39
United States v. O'Brien, 391 U.S. 267 (1968) ......... 35
Village of Hoffman Estates v. Flipside, Hoffman-Estates,
SPEED 6 Sven edeccdveccvesccesees 45, 46
Ward v. Rock Against Racism,
Se ED wo cececccecccnsess 7, 8, 19, 28, 40
Statutes and Rules |
EE ei ce ides edcneds sSeecéccuéeeecet l
Supreme Court Rule 29.6... 0... cece cece ee eenes ii
TE Leek dccbesevecnecdeedescecanes 21
ED cvs casecicecoceescevecccosveseen 21
I sed eid che ceubecteetccesuenseue 21
IED. Scoccdnncccccscucecccccsesssess 21
SRE Di a cnncudncececccccsoccoscwenes 21
EE nib ic dde cece ebhosgenseccocceaen 21
EE ic culce seb ebeseesscovecvesveses 21
bc csiveededbecccens.sccecsvéoes 2
ED cond ndudadedecceccveiccccsss 20
SR PRED occ ndeccdcccccesccccccececess 42
ee EEE co vcccvecsdecestocesoses i, passim
EE os cov ccesebecvecesccvcveces 2,15
PE 6 Viv adsdceeaendetessveccoceses 21
(ix)
TABLE OF AUTHORITIES—cont’d
Page(s)
Other Materials
Kindley, The Fit Between the Elements for an Informed
Consent Cause of Action and the Scientific Evidence
Linking Induced Abortion with Increased Breast Cancer
Pr 8. 4 8S OR PRT eee 47
Loose, Antiabortion Message Gets Free Ride on Metro
System; Ads Linking Procedure, Breast Cancer Disputed,
Washington Post, Jan. 22, 1996 ..........05eee cues 47
M. Nimmer, Freedom of Speech (1984)... ........0046. 13
(x)
OPINIONS BELOW'
The trial court decision is unpublished. Pet. App. 30a. The
first Colorado Court of Appeals decision is published as Hill v.
City of Lakewood, 911 P.2d 670 (Colo. App. 1995) (Pet. App.
38a). This Court’s prior order in Hill v. Colorado, No. 95-
1905, is published as Hill v. Colorado, 519 U.S. 1145 (1997)
(Pet. App. 47a, 48a). The second Colorado Court of Appeals
decision is published as Hill v. City of Lakewood, 949 P.2d 107
(Colo. App. 1997) (Pet. App. 51a). The Colorado Supreme
Court decision is published as Hill v. Thomas, 973 P.2d 1246
(Colo. 1999) (Pet. App. 1a).
JURISDICTION
The Colorado Supreme Court entered its decision on
February 16, 1999. Petitioners filed their petition for writ of
certiorari on May 17, 1999. This Court granted certiorari on
September 28, 1999. This Court has jurisdiction over this
matter under 28 U.S.C. § 1257(a).
CONSTITUTIONAL PROVISIONS
AND STATUTES
The text of the first and fourteenth amendments to the United
States Constitution are set out in the Appendix to the Petition.
Pet. App. 64a. C.R.S. § 18-9-122(3) provides:
(3) No person shall knowingly approach another person
within eight feet of such person, unless such other person
consents, for the purpose of passing a leaflet or handbill to,
displaying a sign to, or engaging in oral protest, education,
or counseling with such other person in the public way or
sidewalk area within a radius of one hundred feet from any
entrance door to a health care facility. Any person who
violates this subsection (3) commits a class 3 misdemeanor.
1. As used herein, “Pet. App.” refers to the Appendix to the Petition for a
Writ of Certiorari and “JA” refers to the Joint Appendix.
(1)
2
C.R.S. § 18-9-122(4) provides,
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.
The entire text of C.R.S. § 18-9-122 is set out in the Appendix
to the Petition. Pet. App. 64a-65a.
STATEMENT OF THE CASE
Statement of Facts
Leila Jeanne Hill, Audrey Himmelmann, and Everitt W.
Simpson, Jr., oppose legalized human abortion, because, in
their opinions, human abortion exterminates innocent human
life. JA 45, 9 4; JA 52, 93; JA 54-55, 93. Petitioners believe
that many women who abort their children do so because no
one has offered them information about alternatives to abortion.
JA 48,95; JA 52, 9 4; JA 55, 4 4.
Petitioners have engaged in an activity they call “sidewalk
counseling” to offer other alternatives to abortion-bound
women. JA 49, 4 6; JA 52,95; JA 55,95. Petitioners have
educated, counseled, persuaded, or informed passersby about
abortion and abortion alternatives through leafletting, sign
displays, conversation, and other means. JA 49-50, 97;JA53,
4 7; JA 55, 4 6.
Hill, Himmelmann and Simpson distributed leaflets about
abortion and its alternatives, JA 49, 4 9; JA 53,99; JA 56, q
10, on public ways and sidewalks near abortion clinics.
Petitioners also communicated by word of mouth. JA 51, § 12;
JA 53, J 7; JA 55, 4 6. To teach others how to provide
sidewalk counseling services, Hill prepared a manual entitled,
“Sidewalk Counseling Workbook.” JA 49-50, 8.
Petitioners prepared signs and posters, containing information
about abortion and abortion alternatives for public display. JA
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49,97; JA 53, J 10; JA 55,96. Their posters contained text
(e.g., “Abortion Kills Children”) or pictures (e.g., photograph
of baby killed by saline abortion). Simpson wore a “sandwich
signboard” with both text and images. JA 56,49. Hill has
carried a model of an unborn child at ten weeks gestation,
which she has displayed to the public as part of the counseling
and education process. JA 49, { 7.
Hill, Himmelmann and Simpson do not engage in violence to
further their goals. The Colorado Supreme Court assumed, for
the purpose of deciding the case below, “that petitioners have
not engaged in, and do not intend to engage in, such dangerous
and harassing conduct.” Pet. App. 10a n.7.
Prior to the enactment of C.R.S. § 18-9-122(3), petitioners
expressed their opposition to abortion, and engaged in public
efforts to advise abortion-bound women that alternatives to
abortion are available. They conducted sidewalk counseling on
public ways and sidewalks within 100 feet of the entrances of
health care facilities and spoke without fear that they could be
silenced by those members of the public who might not care to
hear, see, or receive their messages. Nor did they fear
prosecution for failing to hide their messages from public view
or audition. JA 50, § 10; JA 53, 4 8; JA 56, 4 7. Petitioners
distributed leaflets, displayed signs, and communicated orally
with the public passing nearby while they were within 100 feet
of the entrances of abortion clinics. JA 51, § 12; JA 53, 4 9;
JA 56,47. Their activities occurred within eight feet of other
persons. Based on their experience, petitioners have concluded
that it is difficult to remain on the public ways or sidewalks,
stay at least eight feet away from others, and speak, display
signs, or communicate orally. JA 51, 4 13; JA 53-54, 4 11; JA
56, ¥ 11.
Hill had successes counseling women. She has seen
4
abortion-bound women change their minds after she spoke with
them or gave them pamphlets. JA 51, $9 14-15. Hill has
counseled women after abortions who grieved for the loss of
children through abortion. Jd.
In 1993, Colorado’s legislature enacted legislation purporting
to ensure unobstructed access to health care facilities. See Pet.
App. 64a-65a. One provision of the legislation, C.R.S. § 18-9-
122(2) directly prohibits conduct that interferes with access to
facilities. The legislation also included another provision,
C.R.S. § 18-9-122(3), at issue here, which restricts freedom of
expression near health care facilities.
When C.R.S. § 18-9-122(3) became law, petitioners stopped
or altered their public education and protest activities. Simpson
discontinued his expressive activities for fear of prosecution.
JA 57, 4 14. Hill and Himmelmann modified the means by
which they sought to communicate with the public about
abortion. JA 52, J 16; JA 54,9 13. These changes have made
their expressive activities more difficult and less effective.
Petitioners plan and desire to resume their expressive activities
when they may do so free from the threat of prosecution
resulting from possible dissatisfaction of some people with their
message. JA 52, 417; JA 54, 9 14; JA 57,9 15.
Course of Proceedings
The federal questions on which this Court granted review
have been the focus of this litigation and the principal grounds
of the decisions below. Petitioners sued in the District Court of
Jefferson County, Colorado, asserting that C.R.S. § 18-9-122(3)
violated several federal constitutional rights, including their
rights to freedom of speech, press, peaceable assembly, due
process of law, and equal protection of the laws. See generally
JA 14-30 (Complaint).
SO RE Te” 7”
5
1. The trial court’s treatment of the federal questions
The trial court framed the issues this way: “It is clear, and the
parties agree, that the statute in question regulates activity
protected by the First Amendment. The issue before the Court
is whether the statute reasonably regulates the activity within
the limits proscribed [sic] by the Constitution.” Pet. App. 31a.
The trial court held, “Plaintiff's [sic] conduct implicates First
Amendment rights[,]” Pet. App. 31la-32a, and “(t]he public
sidewalks and streets, including the ones that the statute would
apply, [sic] constitute ‘quintessential’ public forum [sic] for
First Amendment purposes.” /d. (citation omitted).
Nevertheless, the trial court granted summary judgment for
respondent. Pet. App. 36a. The trial court concluded that
C.R.S. § 18-9-122(3) did not regulate speech according to its
content or its viewpoint. The court held that, because the
statute “applies not only to oral protest but to ‘education’ and
‘counseling[,]’” the statute “applies to all viewpoints, rather
then [sic] only certain viewpoints.” Pet. App. 32a-33a. The
trial court reasoned that the “statute in question applies even-
handedly to all speakers and the content of their speech. All
persons demonstrating are to comply with the statute.” Pet.
App. 33a.
The trial court found that C.R.S. § 18-9-122(3) was narrowly
tailored because it “targets the offensive and disturbing conduct
taking place outside health care facilities[,)” and “[iJt
address[es] the exact source of evil it seeks to remedy,” Pet.
App. 33a, and because it leaves open ample alternative
channels of communication. Pet. App. 33a.
The trial court also held that C.R.S. § 18-9-122(3) is not
unconstitutionally overbroad because the statute was not so
“sweeping in its scope as to deter both protected and
unprotected speech.” Pet. App. 34a. The trial court held that
6
“the statute does not prohibit speech.” Pet. App. 35a. The trial
court also concluded that the statute was not unconstitutionally
vague and that it did not impose a prior restraint on expression.
Id. at 35a-36a.
2. The Colorado Court of Appeals’ treatment of the federal
questions on its initial review
The Colorado Court of Appeals affirmed. Pet. App. 39a. The
appeals court stated, “[t]he principal issue in this appeal is
whether [the statute] violates the right to free speech contained
in the First Amendment to the United States Constitution.” Jd.
The appeals court ruled that C.R.S. § 18-9-122(3) was
content-neutral because it did “not address only the speech of
anti-abortion protesters” and “would also apply to protest
activity directed at patients requiring or seeking advice relative
to an organ transplant.” Pet. App. 42a.
The appeals court held that the statute was “narrowly
tailored” and “reasonably necessary to serve a significant
government interest” in ensuring “safety and unobstructed
access for patients and staff entering and departing from health
care facilities.” Pet. App. 43a. The appeals court reasoned that
ample alternative channels of communication remained open
because “posters and signs may be made visible at eight feet[,]”
and because “plaintiffs may continue to communicate... ata
distance of eight feet or more.” Jd.
The appeals court also concluded that the statute was not
unconstitutionally vague, id. at 44a, and that it did not impose
a system of prior restraints on expression, id. at 44a-45a. The
appeals court did not explicitly address petitioners’ arguments
that C.R.S. § 18-9-122(3) created a viewpoint-based restriction
on free speech through its restriction on “orai protest” and the
requirement of consent and that the statute was
unconstitutionally overbroad.
7
The Colorado Court of Appeals denied petitioners’ request
for rehearing. Pet. App. 60a. The Colorado Supreme Court
denied review. Pet. App. 46a.
3. This Court's treatment of the prior petition
Petitioners sought review of the appeals court decision in this
Court. After deciding Schenck v. Pro-Choice Network of
Western New York, 519 U.S. 357 (1997), this Court granted the
petition, vacated the judgment of the Colorado Court of
Appeals, and remanded the case for further consideration in
light of Schenck. See Pet. App. 47a-48.
4. The Colorado Court of Appeals’ treatment of the federal
issues on remand from this Court
On remand, the Colorado Court of Appeals again affirmed the
judgment below. Pet. App. 52a. The appeals court decided that
Schenck did not govern this case because it involved an
injunction rather than a statute. Pet. App. 55a. Instead, the
appeals court applied the standard announced in Ward v. Rock
Against Racism, 491 U.S. 781,791 (1989). “Applying the Ward
rationale here, we conclude that the statute meets constitutional
muster.” Pet. App. 56a. Thus, the appeals court again held that
section 18-9-122(3) did not violate petitioners’ First
Amendment rights. Pet. App. 57a.
5. The Colorado Supreme Court's treatment of the federal
questions
Petitioners again sought review in the Colorado Supreme
Court, which granted limited review, Pet. App. 58a-59a,’ and
affirmed the decision of the court of appeals, id. at 2a, 29a.
The Colorado Supreme Court identified the state interest
supporting C.R.S. § 18-9-122 as the “interest in preserving the
2. The Colorado Supreme Court denied review on every issue identified by
petitioners and considered only the constitutionality of the statute in light of
this Court's prior remand order. Pet. App. 59a.
health and safety of Colorado’s citizens” and specifically the
interest in “assuring a citizen’s access to medical ‘counseling
and treatment’ at Colorado health care facilities.” Pet. App. 9a-
10a. Invoking the “right to be let alone”, the court concluded
that petitioners’ freedoms of speech, press, and assembly were
subject to restriction in the name of fundamental rights of
privacy. Jd. at 13a-14a. “Here, the fundamental right balanced
against the First Amendment rights of petitioners is the right
that the General Assembly determined was ‘imperative,’ a
citizen’s right of access to ‘counseling and treatment’ at
Colorado medical facilities.” Jd. at 14a (citations omitted).
The Colorado Supreme Court concluded that “the First
Amendment can accommodate reasonable government action
intended to effectuate the free exercise of another fundamental
right, an individual’s right to privacy ....” /d. at 15a.
In the court’s view, Schenck was not dispositive because it
“involved a judicially created preliminary injunction drawn
solely for the parties before the Court” while “section 18-9-
122(3) is not the creature of our judiciary, but, instead, is a
statute crafted by a coordinate branch of government, and is a
rule of general application representing the public policy
choices of the General Assembly ... .” Pet. App. 19a. The
Colorado Supreme Court decided that “the appropriate test to
be applied in this case is found in Ward v. Rock Against
Racism, 419 U.S. 781 (1989).” Pet. App. 16a.
The Colorado Supreme Court concluded that the statute was
narrowly tailored, advanced a significant government interest,
and left open ample alternative channels of communication.
Pet. App. 24a-29a. “In sum,” the court concluded, the statute
“represents a fair legislative balancing of the ‘right to protest or
counsel against certain medical procedures’ while protecting ‘a
person’s right to obtain medical counseling and treatment.””
Pet. App. 29a.
SUMMARY OF ARGUMENT
Ina stunning strike against constitutional rights to freedom of
expression, Colorado has enacted a statute with the sole effect
of restricting the exercise of freedoms of speech, press, and
assembly. Under C.R.S. § 18-9-122(3), an evangelist
distributing gospel tracts, a pizzeria employee distributing
discount coupons, or a nurse distributing flyers to explain a
strike for improved working conditions, who are within 100
feet of any entrance door to any health care facility in Colorado,
are prohibited from freely approaching closer than 8 feet to any
other person if they want to offer their materials, or even just to
speak, to passersby. Instead, pamphleteers and those who
approach others to display signs or to speak, must obtain
consent while at a distance greater than 8 feet from those with
whom they would communicate. Communicating without
consent is a criminal offense.
Colorado’s statute flouts several doctrinal considerations
relevant to laws affecting expression. The breadth and scope of
Colorado’s statutory suppression of speech are remarkable.
This Court seldom has confronted a statute embodying such
sweeping disregard for freedom of expression.
In practice, Colorado has given its citizens the power to
impose a prior restraint on unwelcome speech. Under the
statute, a prospective speaker must seek and obtain consent
from a prospective listener, without approaching closer than
eight feet. Decisions to grant or withhold consent will often —
if not invariably — turn on the content and viewpoint of the
proposed communication. Nonetheless, that decision will
determine whether the speech is criminal or free.
The framework for resolving the present dispute is settled.
See Cornelius v. N.A.A.C.P. Legal Defense & Educ. Fund, 473
10
U.S. 788 (1985). Initially, this Court must determine whether
petitioners’ activity is constitutionally protected. /d at 797.
Next, this Court “must identify the nature of the forum, because
the extent to which the Government may limit access depends
on whether the forum is public or nonpublic.” Jd Finally, this
Court must decide whether the restrictions on expression
survive the requisite constitutional scrutiny. /d.
First, the statute regulates petitioners’ exercise of core
constitutional rights of expression. Distributing leaflets,
displaying signs, and orally educating, counseling, or
protesting, are paradigms of protected forms of expression.
This Court consistently has noted the constitutional value of
these expressive activities. See, e.g, Lovell v. City of Griffin,
303 U.S. 446 (1938); McIntyre v. Ohio Elections Commission,
514 U.S. 334 (1995).
Second, the statute regulates protected expression in the
traditional public forum. C.R.S. § 18-9-122(3) operates only in
traditional public forum properties, where the constitutional
rights of speech, press and assembly enjoy their greatest
protection. See, e.g, Hague v. C.1.O., 307 U.S. 496, 515
(1939) (plurality).
Third, the statute does not come close to satisfying the
demanding tests for statutes that regulate core speech in the
traditional public forum. It is unconstitutionally defective.
Because the statute targets only protected expression, not
conduct, Secretary of State v. J. H. Munson Co., 467 U.S. 847,
965-67 (1984), it is facially overbroad. Moreover, the statute
is substantially overbroad; in every conceivable application of
the statute, constitutionally protected expression is targeted.
The statute creates a prior restraint on speech and press, see
Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963), by
imposing requiring advance consent to leaflet, picket, or speak.
The statute omits all requisite safeguards for such a system of
prior restraint and it grants unbridled discretion to licensors of
speech; thus, it is an unconstitutional restraint.
The statute is an unconstitutional content-based restriction:
it applies to al/ leafletting and to a// sign displays, but it applies
only to those ora/ communications which constitute protest,
counsel or education; thus, it is a content-based restriction, see,
e.g., Reno v. American Civil Liberties Union, 521 U.S. 844,
867-68 (1997) and not narrowly drawn to any relevant,
compelling governmental interest. By granting unlimited
licensing power to private citizens, Colorado has created a
condition under which the right to speak may be denied based
on the content- or viewpoint of expression.
Even if the statute were analyzed as a time, place and manner
restriction, it fails the requisite scrutiny. It is not reasonable.
It is not narrowly tailored. And it fails to leave open ample
alternative channels of communication.
Finally, the statute’s commands are drawn in terms too vague
to be tolerated under the Constitution, see Grayned v. City of
Rockford, 408 U.S. 104, 108-09 (1972). The statute operates
at the core of the rights to freedom of speech, of the press, and
of assembly. Consequently, it was the duty of the Colorado
General Assembly to craft its restrictions with particular care to
safeguard these “delicate and vulnerable, as well as supremely
precious” freedoms, NAACP v. Button, 371 U.S. 415, 433
(1963).
12
ARGUMENT
COLORADO REVISED STATUTE § _ 18-9-122(3)
IS UNCONSTITUTIONAL ON ITS FACE
This litigation challenges C.R.S. § 18-9-122(3) on its face.’
The statute suffers from a myriad of fatal constitutional flaws.
Freedom of expression — an essential ingredient of liberty —
must be jealously guarded, particularly when the controversial
nature of the speaker’s message has stirred emotions and
triggered an attempt to suppress that message. E.g., Gregory v.
City of Chicago, 394 U.S. 111 (1969); Texas v. Johnson, 491
U.S. 397 (1989). Popular speech and pleasant words have little
need for constitutional protection. City of Houston v. Hill, 482
U.S. 451, 462 n.11 (1987). The true test of the right to free
speech is the protection afforded to unpopular, unpleasant,
disturbing, or even despised speech. Cf Madsen v. Women’s
Health Center, 512 U.S. 753, 773-74 (1994) (anti-abortion
expression); United States v. Eichman, 496 U.S. 310 (1990)
(flag burning); R.A.V. v. City of St. Paul, 505 U.S. 377 (1992)
(cross-burning); Hustler Magazine v. Falwell, 485 U.S. 46
(1988) (scurrilous attacks on public figure). Free speech
may indeed best serve its high purpose when it induces a
condition of unrest, creates dissatisfaction with conditions
as they are, or even stirs people to anger. Speech is often
provocative and challenging. It may strike at prejudices
and preconceptions and have profound unsettling effects as
it presses for acceptance of an idea. That is why freedom
3. “The seminal cases in which th{is] Court has held state legislation
unconstitutional ‘on its face’” resulted from this Court’s determination that
“any attempt to enforce such legislation would create an unacceptable risk
of the suppression of ideas.” Members of the City Council v. Taxpayers for
Vincent, 466 U.S. 789, 797 (1984) (citations and footnotes omitted); see
also FW/PBS v. City of Dallas, 493 U.S. 215, 223 (1990).
13
of speech, though not absolute . . . is nevertheless protected
against censorship or punishment unless shown likely to
produce a clear and present danger of a serious substantive
evil that rises far above public inconveaience, annoyance,
or unrest.... There is not room under our Constitution for
a more restrictive view.
Terminiello v. Chicago, 337 U.S. 1, 3-4 (1949).‘
The divisiveness of legalized human abortion — including
debates over the contours of its legality, its morality, and its
availability — provokes expressive activities that irritate,
provoke, disturb, and test the patience of many.’ But “if
absolute assurance of tranquility is required, we may as well
forget about free speech.” City of Houston, 482 U.S. at 462
n.11 (editing marks and citation omitted). Here, the vices of
C.R.S. § 18-9-122(3) compel the conclusion that it is
unconstitutional. The judgment below must be reversed.
I. The Operation of C.R.S. § 18-9-122(3).
To understand the constitutional gravity of the wrong
embodied in C.R.S. § 18-9-122(3), it is necessary to understand
the statute’s operation.
C.R.S. § 18-9-122(3) is a specific intent offense. No offense
is committed if, within 100 feet of the entrance door to a health
care facility, one person approaches another without the
4. Cf M. Nimmer, Freedom of Speech § 1.04 (1984) (gathering cases and
materials on the “safety valve” function of freedom of expression).
5. This Court has noted the divisive nature of abortion. Planned
Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 850
(1992) (“Men and women of good conscience can disagree, and we suppose
some always shall disagree, about the profound moral and spiritual
implications of terminating a pregnancy, even in its earliest stage. Some of
us as individuals find abortion offensive to our most basic principles of
morality”).
14
purpose of displaying a sign to, passing a leaflet to, or uttering
oral protest, counsel or education to, the other. Pet. App. 65a.
Thus, greater liberty of movement in public places is granted to
persons who are mot seeking to exercise constitutionally
protected rights of freedom of speech, of press, and of
assembly. The statute targets speech, not physical proximity.
Worse still, unlike disabilities imposed by injunction, such as
those at issue in Schenck and in Madsen, C.R.S. § 18-9-122(3)
is not limited in application to those whose prior adjudicated
misconduct warrants the imposition of otherwise impermissible
disabilities on free expression. Instead, the statute restricts the
constitutional rights of every person in that State without
prohibiting approaches that might obstruct or approaches that
occur for no reason whatever or without a purpose of
communicating to others.
A. The Statute Operates “in the Public Way or Sidewalks”
C.R.S. § 18-9-122(3) restricts speech on
* all public ways or sidewalks, ways ° within 100 feet
* of every entrance door
* to every health care facility
* everywhere in the State of Colorado.
B. The Statute Restricts Activity Undertaken “for the
Purpose of Passing a Leaflet or Handbill to, Displaying
Counseling”
C.R.S. § 18-9-122(3) restricts
* anyone who displays a sign
* anyone who distributes a leaflet or handbill
* anyone who utters words constituting oral protests
* anyone who utters words constituting oral education and
6. These are traditional public forum properties. See Argument III, infra.
|
|
|
;
15
* anyone who utters words constituting oral counsel.
A would-be communicator is required to obtain consent from
* any person passing by on the sidewalk, street, or public
way
* before knowingly approaching closer than eight feet for
* the purpose of communicating with that person in one of
the ways restricted under the statute.
ee naan aa eas
tas come tae, statute requires consent from every person to whom
communications will be directed, not just from patients of
health care facilities, family members or companions of
patients, staff members of health care facilities, or business
partners of health care facilities. Instead, the speech-free
bubble surrounds every person passing within 100 feet of an
entrance door to any health care facility in the State, including
* passersby
* other sidewalk counselors
* demonstrators
* so-called “clinic escorts”
* patients and their companions
* facility employees and contractors
* and countless others.
The statute is not limited in its operation to the vicinity of
abortion clinics. C.R.S. § 18-9-122(4) defines “health care
facility” as “any entity that is licensed, certified, or otherwise
authorized or permitted by law to administer medical treatment”
in Colorado. Pet. App. 65a. These zones exist outside every
* ambulatory surgical center
* hospital
16
urgent care facility
medical diagnostic facility
general practitioner’s office
medical specialist’s office (from allergists to
endocrinologists to opthalmologists to vascular surgeons).
In addition to such locations obviously included within the
definition of “health care facility,” numerous other locations
may be included because the statute includes any “entity”
“licensed, certified, or otherwise authorized or permitted by law
to administer medical treatment,” leaving open, for example,
the likely possibility that a school-based clinic or nurse’s office
or a industrial plant’s nurse’s station all fall within the scope of
the statute, if the entrance doors to such locations are within
100 feet of a public sidewalk or way.
II. Petitioners’ Leafletting, Sign Displays, and Oral
C.R.S. § 18-9-122(3) targets only expression protected by the
Constitution, including spoken words, sign displays, and
leafletting. Petitioners have used all these means to disseminate
information and viewpoints. JA 17-18, §§j 17-20; JA 49, ¥ 7;
JA 53, 9 7; JA 55, 9 6. Each of these methods of
communication with the public is constitutionally protected.’
First, distributing leaflets on the public ways is a form of free
speech protected under the Constitution. Mc/ntyre, 514 U.S. at
347. There is no doubt that “leafletting [is an] expressive
activit[y] involving ‘speech’ protected by the First
7. The State conceded this point. See Pet. App. 31a (“[iJt is clear, and the
parties agree, that the statute in question regulates activity protected by the
First Amendment”); id. at 3 1a-32a (“[t}here is no question that the Plaintiffs
conduct implicates First Amendment rights”); JA at 217-18 (“[a}dmitted”
that “[dJisplay of signs and posters,” “[d]istribution of free written
materials,” and “[o]}ral expression” are constitutionally protected).
'
17
Amendment.” United States v. Grace, 461 U.S. 171, 176
(1983). See also Schenck, 519 U.S. at 377 (noting that
leafletting is a “classic form[] of speech that lie[s] at the heart
of the First Amendment”). Pamphleteering is a particularly
inoffensive means of communication: “[o]ne need not ponder
the contents of a leaflet or pamphlet in order mechanically to
take it out of someone’s hand,” United States v. Kokinda, 497
U.S. 720, 734 (1990) (plurality). This Court’s consistent
jurisprudence has recognized free distribution of literature as
expression protected by the Constitution. See, e.g,
Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971);
Lovell, 303 U.S. at 452; Heffron v. ISKCON, 452 U.S. 640
(1981).
Second, displaying signs addressing public issues is a form of
free speech resting “at the core of the first amendment,” Boos
v. Barry, 485 U.S. 312, 318 (1988); Carey v. Brown, 447 U.S.
455, 466-67 (1980) (“[p]ublic issue picketing . . . has always
rested on the highest rung of the hierarchy of First Amendment
values”) (internal quotation marks and citations omitted).
Accord United States v. Grace, 461 U.S. 171, 176-77 (1983)
(and cases cited); cf Grayned v. City of Rockford, 408 U.S.
104, 119 (1972) (“classic expressive gesture of the solitary
picket”).
Third, oral communications rest at the very heart of the right
to free speech. City of Houston; Gregory; Edwards v. South
Carolina, 372 U.S. 339 (1963); Schenck, 519 U.S. at 377.
Without question, Petitioners’ expressive activities enjoy
constitutional protection.
18
Ill. The Colorado Public Sidewalks, Streets and Ways
Affected by C.R.S. § 18-9-122(3) are Public Fora for
Free Speech.
The public ways and sidewalks of Colorado, including those
within 100 feet of the entrances to health care facilities,
constitute “quintessential” public fora for free speech. See
Perry Educ. Ass'n v. Perry Local Educator’s Ass'n, 460 U.S.
37, 45 (1983); see also Hague v. CIO, 307 U.S. 496, 515
(1939) (plurality); cf Schenck, 519 U.S. at 377 (“speech in
public areas is at its most protected on public sidewalks, a
prototypical example of a traditional public forum”) (emphasis
added). “No particularized inquiry into the precise nature of a
specific street is necessary; all public streets are held in the
public trust and are properly considered traditional public fora.”
Frisby v. Schultz, 487 U.S. 474, 481 (1988).*
IV. Section 18-9-122(3) Fails Constitutional Scrutiny.
The constitutional standards governing restrictions on the
right to freedom of speech on the public ways and sidewalks
within 100 feet of the entrances to health care facilities, are
well-established:
In these quintessential public fora, the government may not
prohibit all communicative activity. For the State to
enforce a content-based exclusion it must show that its
regulation is necessary to serve a compelling state interest
and that it is narrowly drawn te achieve that end. The State
may also enforce regulations of the time, place, and manner
of expression which are content neutral, are narrowly
tailored to serve a significant government interest, and
leave open ample alternative channels of communication.
8. The State conceded this point, as well. See JA at 277 (“[a}dmitted” that
“publicly owned sidewalks within 100 feet of the entrance to a health care
facility are traditional public forums”).
19
Frisby, 487 U.S. at 481 (editing marks omitted; quoting Perry,
460 U.S. at 45). Furthermore, “[c]riminal statutes must be
scrutinized with particular care,” City of Houston, 482 U.S. at
459; therefore, “[p]recision of regulation must be the
touchstone in an area so closely touching our most precious
freedoms.” Riley v. National Fed’n of the Blind, 487 U.S. 781,
801 (1988) (internal quotation marks and citation omitted).
A statutory ban on leafletting, sign displays, and oral
education, protest, and counseling, on public sidewalks, is
unconstitutional. See, e.g., Thornhill v. Alabama, 310 U.S. 88
(1940) (place of business); Grace, 461 U.S. 171 (courthouse);
Grayned, 408 U.S. at 119 (school); Boos, 485 U.S. 312
(embassy). Petitioners’ expressive activities on public
sidewalks are classic exercises of the right to free speech. No
valid government interest supports Colorado’s restrictions on
speech. Indeed, this Court has pointedly noted, “[a] ban on
handbilling . . . would suppress a great quantity of speech that
does not cause the evils that it seeks to eliminate,” Ward v.
Rock Against Racism, 491 U.S. 781, 799 n.7 (1989). Because
Colorado’s ban encompasses so much speech unrelated to any
regulable evil, its “complete ban on handbilling [is]
substantially broader than necessary to achieve the interests
justifying it.” Id.°
Colorado cannot justify restrictions on peaceful expression on
the basis of the supposed offensiveness of petitioners’ message
to some viewers. “The fact that society may find speech
offensive is not a sufficient reason for suppressing it. Indeed,
9. The Colorado Court of Appeals construed C.R.S. § 18-9-122(3) to
impose just such a flat ban. See Pet. App. 56a (“with reference to the fact
that leafletting may not take place within 100 feet of the entrance to the
medical clinic unless consent is given, we view the significant governmental
interest here as sufficient to warrant the requirements of the statute”).
20
if it is the speaker’s opinion that gives offense, that
consequence is a reason for according it constitutional
protection.” Simon & Schuster, Inc. v. Members of New York
State Crime Victims Bd., 502 U.S. 105, 118 (1991) (editing
marks and citations omitted).
Nor can access concerns justify a flat ban on, for example,
displaying a placard outside a health care facility.'° A solitary
pedestrian walking on a public sidewalk distributing leaflets,
displaying a sign, or communicating orally does not
automatically prevent access.'' Nor is a blanket ban on
leafletting, sign displays, and oral expression without advance
10. Because the challenge provision does not target obstructive conduct, or
unprotected expression, such as fighting words or threats that are
independently proscribable and that may interfere with access, it is
disingenuous to describe the governmental interest to which the statute is
directed as ensuring access to health care facilities. But see C.R.S. § 18-9-
122(1), Pet. App. at 64a-65a. The statute only restricts communications.
Consequently, it is likely that the actual purpose of the statute is to insulate
others from opinions and views with which they may disagree. The court
below stated that it was seeking to balance freedom of expression with the
constitutional right of privacy. Pet. App. 14a. That approach is
fundamentally flawed. First, this Court has expressed real “doubt that . . .
‘the right of the people approaching and entering the facilities to be left
alone’—accurately reflects our First Amendment jurisprudence in this area,”
Schenck, 519 U.S. at 383 (citing Madsen). Second, the statute restricts only
communicative approaches; hence, the “privacy” in question is not physical
solitude, or freedom from government interference with personal decisions,
but freedom from messages.
11. If.an individual actually interfered with public passage, then the proper
approach would be to enforce relevant criminal laws such as C.R.S. § 18-9-
122(2), which directly prohibits obstructive conduct. /nfra note 13. Such
laws may not be selectively invoked as a pretense for suppressing an
objectionable message. See, e.g., Coates v. Cincinnati, 402 U.S. 611
(1971).
21
consent narrowly drawn to address access concerns. The
expressive activities burdened by the statute are no more
obstructive than countless other activities, such as strolling with
a friend, walking with a cane, stopping to talk with friends,
walking a dog, riding in a wheelchair, etc. The expressive
activities targeted by C.R.S. § 18-9-122(3) are not the “evil” —
obstruction of access — that motivated the General Assembly
to enact the statute. Cf Frisby, 487 U.S. at 485 (“complete
ban can be narrowly tailored . . . only if each activity within the
proscription's scope is an appropriately targeted evil”). Finally,
if access concerns could justify these burdens on freedom of
expression outside of health care facilities, the same rationale
would apply to such activities outside amy business or
government facility. Free speech would be a mere shadow."
If Colorado is concerned with disturbing noises, it is free to
enact and enforce a noise control statute. If the problem is
obstructive or disorderly conduct, there are laws tailored to
such conduct."® But the face of C.R.S. § 18-9-122(3) reveals a
different and profoundly disturbing purpose: to suppress
uninvited messages. The Constitution protects the petitioners
against such censorship. Simon & Schuster, 502 U.S. at 118
12. Colorado may not, “by its own ipse dixit[,] destroy the ‘public forum’
status of streets and parks which have historically been public forums... .”
U.S. Postal Service v. Greenburgh Civic Ass'n, 453 U.S. 114, 133 (1981);
see also Grace, 461 U.S. at 179-80.
13. Colorado has numerous laws directly targeting unprotected conduct.
See, e.g., C.R.S. § 18-3-202 (assault, first degree); C.R.S. § 18-3-203
(assault, second degree); C.R.S. § 18-3-204 (assault, third degree); C.R.S.
§ 18-9-106 (disorderly conduct); C.R.S. § 18-9-107 (obstructing passage);
C.R.S. § 18-9-111 (harassment—stalking); C.R.S. § 18-9-114 (hindering
transportation); C.R.S. § 18-9-122(2) (obstructing access to health care
facilities); C.R.S. § 18-13-107 (interference with persons with disabilities).
22
(and cases cited); Street v. New York, 394 U.S. 576, 592 (1969).
A. CRS. § 18-9-122(3) is Overbroad
C.R.S. § 18-9-122(3) is unconstitutionally overbroad.’
Every person passing within 100 feet of any entrance door to
every health care facility in Colorado is enveloped by a speech
free bubble with an eight foot radius. The zones surround
persons having no present business with, or interest in, the
hospitals, clinics, labs, diagnostic facilities, ambulatory surgical
centers, outpatient mental health facilities, and the offices of
general practitioners and medical specialists.'" The operation
14. In the usual facial challenge based on overbreadth, a court must
determine whether the overbreadth of a statute is substantial. E.g., City of
Houston v. Hill, 482 U.S. 451, 458 (1987) (citing cases). That analysis is
appropriate to statutes that imperfectly address a valid core of conduct that
is subject to proscription or regulation, and the question is whether the
restriction also restricts a substantial amount of free speech. /d.; Secretary
of State v. JH. Munson Co., 467 U.S. 847, 864-65 (1984).
Substantial overbreadth is a criterion the Court has invoked to avoid
striking down a statute on its face simply because of the possibility that
it might be applied in an unconstitutional manner. It is appropriate in
remainder of the statute . . . covers a whole range of easily identifiable
Munson, 467 U.S. at 864-65 (emphasis added). The “substantial
overbreadth” test does not apply, however, where “there is no core of easily
prohibits.” /d. at 865-66. In such a case, the statute is facially
unconstitutional, and no inquiry into the substantiality of other overbroad
applications is necessary. /d. In this case, C.R.S. § 18-9-122(3) is
unconstitutional regardless of which overbreadth standard applies. In every
obvious application of the statute, protected expression is criminalized.
15. The foregoing examples are only the obvious ones, but the statute
creates similar floating speech free zones outside the entrance doors to “any
entity that is licensed, certified, or otherwise authorized or permitted by law
23
of the zones, conditioning communication on consent, is not
limited to persons with a history of bad conduct; Colorado
assumes that no one can be trusted to communicate in these
circumstances without abusing his constitutional rights. '®
As in Secretary of State v. J. H. Munson Co., 467 U.S. 847
(1984), “[t]he flaw in the [Colorado] statute is not simply that
it includes within its sweep some impermissible applications,
but that in all its applications it operates on a fundamentally
mistaken premise,” 467 U.S. at 966. Colorado has ignored this
Court’s teaching that “[t]he Constitution does not allow such
speech to be made a crime.” City of Houston, 482 U.S. at 462.
The false premise here is that the State may subject ail
expression in public fora to a “heckler’s license.”
The only activities “reached” by the statute are paradigmatic
forms of constitutionally protected expression: leafletting, sign
displays, oral utterances. C.R.S. § 18-9-122(3) is overbroad
because it “imposes a direct restriction on protected First
Amendment activity” and the “means chosen to accomplish the
State’s objectives are too imprecise, so that in all its
applications the statute creates an unnecessary risk of chilling
free speech.” Munson, 467 U.S. at 967-68 (footnote and
Colorado Revised Statute § 18-9-122(3)
violates the constitutional right of free assembly and
association. [This Court’s] decisions establish that mere
to administer medical treatment” in Colorado. See Pet. App. 65a, C.R.S. §
18-9-122(4). And in every case (other than certain abortion clinics) these
zones were imposed without any evidence of a problem regarding access,
and without any demonstrated need for the vast reach of the Statute.
16. Although the Colorado Supreme Court accepted, Pet. App. 10a, that
petitioners had not engaged in such abuses, it recognized that the legislature
attributed such abuses generally to anti-abortion protestors, id.
24
public intolerance or animosity cannot be the basis for the
abridgment of these freedoms. ... The First and
Fourteenth Amendments do not permit [Colorado] to make
criminal the exercise of the right of assembly simply
because its exercise may be ‘annoying’ to some people.
Coates, 402 U.S. at 615.
That Colorado’s statute operates in the vicinity of every
health care facility in that State, rather than everywhere cannot
salvage the statute. A restriction is no less unconstitutional
because it only applies in certain locales, such as airports,
Board of Airport Comm'rs v. Jews for Jesus, 482 U.S. 569,
570-71 (1987), public school buildings, Lamb’s Chapel v.
Center Moriches Union Free School Dist., 508 U.S. 384
(1993), or the Supreme Court grounds, Grace.
C.R.S. § 18-9-122(3) is overbroad because it “does not aim
specifically at evils within the allowable area of State control
but, on the contrary, sweeps within its ambit other activities
that in ordinary circumstances constitute an exercise of freedom
of speech or of the press.” Thornhill, 310 U.S. at 97 (emphasis
added). Such an “overbroad”"’ law “directly restricts protected
expression activity and does not employ means narrowly
tailored to serve a compelling governmental interest.” Munson,
467 U.S. at 965 n.13. Colorado’s statute flies in the face of
established doctrine: “Precision of regulation must be the
touchstone in an area so closely touching our most precious
freedoms.” Riley v. National Fed'n of the Blind, 487 U.S. 781,
801 (1988) (internal quotation marks and citation omitted).
17. The term “overbreadth” has two distinct meanings in constitutional law.
Munson, 467 U.S. at 965 n.13. Petitioners use the term to describe “a statute
that in all its applications directly restricts protected First Amendment
activity and does not employ means narrowly tailored to serve a compelling
governmental interest.” See id (citation omitted).
25
Such precision results only from careful legislative effort to
draw a statute narrowly to the service of a government interest.
A law is “narrowly tailored if it targets and eliminates no more
than the exact source of the ‘evil’ it seeks to remedy.” Frisby,
487 U.S. at 485 (citation omitted). By contrast, C.R.S. § 18-9-
122(3) is overbroad — not narrowly tailored — because “there is
no core of easily identifiable and constitutionally proscribable
conduct that the [law] prohibits.” Munson, 467 U.S. at 965-66.
C.R.S. § 18-9-122(3) bans virtually the universe of protected
expression, including displays of signs, distribution of
literature, and mere verbal statements. Cf Board of Airport
Comm'rs, 482 U.S. at 574 (regulation “reaches the universe of
expressive activity, and . . . prohibit[s] all protected
expression”).
An important signal that C.R.S. § 18-9-122(3) is overbroad
is that “the enforceable portion of the [statute] deals not with
core criminal conduct, but with speech.” City of Houston, 482
U.S. at 460. The “core” of Colorado’s statute is free
expression, and it is free expression that Colorado has treated
as a “targeted evil.” Nor is the statute narrowly drawn to
restrict only the bad acts of wrongdoers (as in the cases of an
injunction or a recidivism statute). See Pet. App. 10a n.7.
C.R.S. § 18-9-122(3) is much more sweeping than the
ordinances struck down in Houston and in Lewis v. City of New
Orleans, 415 U.S. 130 (1974). Houston’s ordinance only
prohibited speech that “‘in any manner . . . interrupt{s] an
officer.”” 482 U.S. at 461. New Orleans’ ordinance forbade
““any person wantonly to curse or revile or to use obscene or
opprobrious language toward or with reference to any member
of the city police while in the actual performance of his duty.’”
415 U.S. at 132. Incontrast, C.R.S. § 18-9-122(3) applies to ail
leafletting, all sign displays, and ai/ oral utterances which
26
constitute education, counsel or protest. “The Constitution
does not allow such speech to be made a crime.” City of
Houston, 482 U.S. at 462. Petitioners “are not quibbling over
fine-tuning of prophylactic limitations, but are concerned about
wholesale restriction of clearly protected conduct.” Federal
ElectionComm’n v. National Conservative PAC, 470 U.S. 480,
501 (1985).
C.R.S. § 18-9-122(3) is even more flagrantly unconstitutional
than the “floating,” consent-to-speak restrictions struck down
in two recent decisions by this Court. Schenck, 519 U.S. at
367; Madsen, 512 U.S. at 773-74. In Madsen, the provision
this Court struck down was limited so that the defendants in
that case were unable to approach “any person seeking the
services of the Clinic” without consent. 512 U.S. at 773. In
Schenck, the provision this Court struck down was limited so
that the defendants in that case were required to give way to
“persons entering or leaving, working at or using any services
at any facility at which abortions are performed” in the Western
District of New York. 514 U.S. at 367 (emphasis added).
Notably, the Madsen and Schenck injunctions only restricted
those persons whose previously adjudicated misconduct
warranted the entry of injunctive relief.'*
18. The court below fundamentally erred when it held, simplistically, that
identical restrictions in a statute face less demanding scrutiny than in
injunctions. True enough, Madsen directs that injunctive restrictions on
expressive activity face “a somewhat more rigorous standard,” 512 U.S. at
765-67; but cf. Madsen, 512 U.S. at 778 (Stevens, concurring and
dissenting) (concluding that, because “legislation is imposed on an entire
community, regardless of individual culpability,” “injunctive relief should
be judged by a more lenient standard than legislation”) (citation omitted).
But application of the standard also differs. An injunction, by its nature,
restricts only those already found to have engaged in (or threatened to
engage in) unlawful activity, while a statute restricts everyone, no matter
27
By contrast, in Colorado, a speech-free bubble envelopes
every man, woman, and child, regardless of their destination or
purpose, who passes within 100 feet of every entrance door to
every health care facility in Colorado. The bubble is not
limited to patients, families or companions of patients,
employees of such facilities, physicians, nurses, or other health
care personnel, or business associates. Instead, speech-free
bubbles enshroud all those present on the public ways or
sidewalks who happen to be within 100 feet of the entrance to
a “health care facility.” Businessmen walking to a lunch
counter, construction workers leaving a work site, families
taking a leisurely stroll to a popular landmark, all are enveloped
by zones that are purportedly designed to secure access to
health care facilities. Moreover, the obligation to obey the
statute and respect the speech-free bubbles applies to everyone,
whether they have engaged in any misconduct upon which
liability could be imposed or not. “[N]Jo conceivable
governmental interest would justify such an absolute
prohibition of speech.” Board of Airport Comm'rs, 482 U.S. at
575.
B. Section 18-9-122(3) U itutional Pri
Restraint.
Section 18-9-122(3) is a prior restraint. As with any other
classic prior restraint, under the Colorado statute, speech can
proceed if permission is granted, but will result in criminal
liability if permission is denied. The statute restrains and
inhibits speech before it takes place, and subjects such speech
how innocent. As a consequence, just because a record of extraordinary
misconduct may justify exceptional restrictions on free speech (e.g., a “stay
away” order in a domestic dispute or stalking case), by no means would such
restrictions pass muster in a statute of general applicability, even under a
“less rigorous” test.
28
to the permission of a person deputized by the state.'? “Any
system of prior restraints of expression comes to this Court
bearing a heavy presumption against its constitutional validity.”
Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963).
Respondents have contended that the speech licensing system
C.R.S. § 18-9-122(3) imposes is not a prior restraint because
the challenged statute grants licensing authority to private
citizens.” Despite that contention — “whether ingenious[] or
19. This Court has held that “the 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.” Ward, 491 U.S. at
795 n.5 (internal quotation marks and citation omitted).
20. This Court has indicated that governmental grants of censorial power
to private actors are constitutionally problematic. In Reno v. American Civil
Liberties Union, 521 U.S. 844, 880 (1997), this Court rejected a narrowing
construction of the Communications Decency Act proffered by the
Government because “[i]t would confer broad powers of censorship, in the
form of a ‘heckler’s veto,’ upon any opponent of indecent speech who might
simply log on and inform the would-be discoursers that his 17-year-old
child, a ‘specific person . . . under 18 years of age,’ would be present.”
Reno, 521 U.S. at 880 (citation omitted). Cf Larkin v. Grendel's Den, 459
U.S. 116, 122, 127 (1982) (faulty state scheme to donate powers usually
exercised by state to churches for their “unilateral and absolute” use). Reno
and Larkin guide analysis of the present case, in which licensing powers
normally reserved to a governmental agency have been transferred over to
the unilateral and absolute power of private persons. See also Cooper v.
Aaron, 358 U.S. 1, 16-17 (1958) (“[t]he controlling legal principles are
plain. ... [CJonstitutional rights . . . can neither be nullified openly and
directly by state legislators or state executive or judicial officers, nor
nullified indirectly by them through evasive schemes . . . whether attempted
‘ingeniously or ingenuously’”) (quotation marks and citations omitted); cf.
Evans v. Newton, 382 U.S. 296, 299 (1966) (“[cJonduct that is formally
‘private’ may become so entwined with governmental policies or so
impregnated with a governmental character as to become subject to the
constitutional limitations placed upon state action”); Burton v. Wilmington
oda at _?
OE RE PT PES Pe oe
29
ingenuous[],” Cooper v. Aaron, 358 U.S. 1, 17 (1958) -—C.R.S.
§ 18-9-122(3) falls neatly within the prior restraint doctrine.
The statute compels speakers to obtain consent to speak and it
authorizes private citizens to deny petitioners’ requests to
engage in expressive activities. Behind that authority is the
State’s criminal law enforcement mechanism. With consent, all
is well for the would-be speaker. Without consent, petitioners
and other citizens leaflet, speak or display signs at the peril of
criminal prosecution for a class 3 misdemeanor.”'
Under the Constitution, Colorado’s statutory speech licensing
scheme is clearly defective. This scheme neither has nor is
capable of providing any of the procedural safeguards identified
by this Court as prerequisites to the imposition of an otherwise
unconstitutional prior restraint. Far from solving the
constitutional problems, Colorado’s attempt to circumvent prior
restraint doctrine by delegating censorship powers to
individuals makes matters worse by removing any possibility of
procedural safeguards.
1. The Statute Grants Unbridled Discretion to Speech
Licensors.
C.R.S. § 18-9-122(3) assigns to private citizens unlimited
power, enforced by the State, to grant or deny a request for
permission to distribute literature, display a sign, or engage in
oral protest, oral counseling, or oral education. “[A] law
Parking Authority, 365 U.S. 715, 726 (1961) (“when a State leases public
property in the manner and for the purpose shown to have been the case
here, the proscriptions of the Fourteenth Amendment must be complied with
by the lessee as certainly as though they were binding covenants written into
the agreement itself”).
21. In fact, Colorado has admitted that, under its statute regime, “signs,
pamphlets and/or literature” could constitute “the evidence of a violation”
because they were “used in the commission of the offense.” JA 280.
30
subjecting the exercise of First Amendment freedoms to the
prior restraint of a license, without narrow, objective, and
definite standards to guide the licensing authority, is
unconstitutional.” Shuttlesworth v. City of Birmingham, 394
U.S. 147, 150-51 (1969).” Nothing in the statute curtails its
application to protected speech; rather, C.R.S. § 18-9-122(3)
precisely and deliberately targets protected expression.
C.R.S. § 18-9-122(3) grants unbridled discretion to those
from whom speakers must obtain permission to speak. Under
the law, passersby may deny petitioners the right to speak
because of petitioners’ race, gender, content of their speech,
opinions, hair color, or for no reason at all. Colorado has
codified a speech licensing approach that other locales may
want to duplicate. Officials in Skokie, Illinois, or Cummings,
Georgia, may conclude that those who reside along a parade
route should have the right to decide whether a parade or
demonstration permit will be granted. Cf National Socialist
Party v. Village of Skokie, 432 U.S. 43 (1977); Forsyth County
v. Nationalist Movement, 505 U.S. 123 (1992). For that matter,
Colorado could cripple the initiative process by banning
circulators from approaching qualified voters without advance
consent. Cf Meyer v. Grant, 486 U.S. 414 (1988).
There is no workable means of curing such boundless
discretion by imposing an external review process because
“fe]ven if judicial review were relatively speedy, such review
cannot substitute for concrete standards to guide the decision
22. This Court has “previously identified two major First Amendment risks
associated with unbridled licensing schemes: self-censorship by speakers in
order to avoid being denied a license to speak; and the difficulty of
effectively detecting, reviewing, and correcting content-based censorship ‘as
applied’ without standards by which to measure the licensor’s action.” City
of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 759 (1988).
31
maker’s discretion.” City of Lakewood, 486 U.S. at 771.
2. Section 18-9-122(3) Lacks the Necessary Procedural
Safeguards
C.R.S. § 18-9-122(3) lacks the procedural safeguards
required of a licensing scheme. Such safeguards reflect the
significance of expressive freedoms. Cf Chicago Teachers
Union v. Hudson, 475 U.S. 292, 303 n.12 (1986) (“procedural
safeguards often have a special bite in the First Amendment
context. The purpose of these safeguards is to insure that the
government treads with sensitivity in areas freighted with First
Amendment concerns”) (citations omitted). The courts below
concluded that the statute did not impose a prior restraint upon
expression. Consequently, no effort was given to scrutinizing
the nature of the restraint imposed to determine whether the
constitutional requisites identified by this Court, see, e.g,
FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 223 (1990);
Freedman v. Maryland, 380 U.S. 51 (1965); Riley, 487 U.S. at
802, were included in the scheme.
In fact, it is doubtful that a workable system of restraints
employing private parties as licensors could be crafted that
would pass constitutional muster. In the present case, however,
it is clear that none of the requisite safeguards were included in
the prior restraint scheme imposed by C.R.S. § 18-9-122(3).
Thus, pap statute tile constitutional ny
1. C. RS. § 18-9-122(3) is content- based.
The challenged statute is content-based on its face with
regard to oral utterances. C.R.S. 18-9-122(3) applies to ail
leafletting and to all sign displays, but only applies to those
spoken exercises of the right to freedom of speech that
32
constitute “education,” “counseling,” or “protest.” No
prosecution arising from an unconsented oral utterance could
succeed without evidence being tendered of what a speaker had
said. Consequently, the content of oral speech must be taken
into account in determining whether the statutory ban was
violated.“ When “it is the content of the speech that
determines whether it is within or without the statute’s blunt
prohibition,” the law is plainly content-based, Carey v. Brown,
447 U.S. at 462. Thus, the statute is subject to strict scrutiny.
See, e.g., Turner Broadcasting System v. FCC, 512 U.S. 622,
23. For example, suppose two women march along a sidewalk within 100
feet of a health care facility, deliberately approaching within 8 feet of aman
headed to the facility to have a disfiguring wart removed. Without obtaining
consent, one says, “Good morning,” while the second tells passersby,
“Natural is best, don’t put plastic surgery to the test.” The second woman
would be violating Colorado law (if permission is not obtained), but not the
first woman — yet the only difference is the content of the message.
Or suppose two lab technicians on a coffee break while working at a
community hospital, are walking over to a smokers’ hospitality zone and,
while within 100 feet of the entrance to the hospital they deliberately
approach within 8 feet of a third person. Without first asking consent, one
man recites a few lines of Jabberwocky by Lewis Carroll, and the second
declares, “I object to the hospital board’s penurious treatment of staff.” The
second man would be guilty of uttering an oral protest, while the first man
presumably would not.
24. Colorado has contended that content is irrelevant to the statute’s
restriction on oral communications. JA 291-96. The only way that this
could be true would be if a// oral communication were deemed to be
“protest, education, or counseling.” Under this construction, the statute
would restrict “the universe of [oral] expressive activity,” Board of Airport
Comm'rs, 482 U.S. at 574, rendering the provision undeniably overbroad,
id. at 575.
cree er er
33
641-43 (1994).** The Colorado statute is also content-based, as
to leafletting, sign displays, and oral utterances, because it
subjects the right to free speech to the listener’s reaction.
Forsyth County, 505 U.S. at 134.
Not only does the statute embody direct content
discrimination as described above; by its omission of clear
standards prohibiting citizens from denying speakers the right
to speak based on disagreement with content or viewpoint,
C.R.S. § 18-9-122(3) authorizes private citizens to decide
whether expression may take place on the basis of content.
Criminal liability will hinge on whether consent is obtained.
The statute leaves it to private actors to decide whether consent
will be granted. In these circumstances, it is hard to imagine
that consent will turn on anything other than content and
viewpoint of the proposed expression. The State’s careless
deputization of private citizens permits content- and vie wpoint-
based discrimination. Thus, the statute is subject to strict
scrutiny.
2. Content-based restrictions are presumptively
unconstitutional
Content-based restrictions on leafletting, picketing, and oral
protest, counseling, or education fail to meet the strict
governing constitutional standards:
[A]bove all else, the First Amendment means that
government has no power to restrict expression because of
its message, its ideas, its subject matter, or its
content. ... The essence of this forbidden censorship is
25. C.R.S. § 18-9-122(3) also is “an absolute prohibition on . . . particular
type(s] of expression[,]” Grace, 461 U.S. at 178; thus, it is subject to strict
scrutiny. Moreover, that the statute discriminates on the basis of content
raises equal protection grounds for invalidation. See, e.g., Police Dep't v.
Mosley, 408 U.S. 92, 94 (1972).
34
content control... .
Necessarily, then, . .. government may not grant the use of
a forum to people whose views it finds acceptable, but deny
use to those wishing to express less favored or more
controversial views. ... Selective exclusions from a
public forum may not be based on content alone, and may
not be justified by reference to content alone.
Mosley, 408 U.S. at 95-96; accord Carey, 447 U.S. at 462-63.”
The ban on oral protest, counseling or education is openly
content-based. The lawfulness of a given utterance in the first
instance depends on whether its content constitutes oral
education, oral protest, or oral counseling.
This is raw censorship for which the interest in access to
health care facilities cannot be sufficient. Under this Court’s
decisions striking down content-discriminatory statutes, see,
e.g., Carey, Boos, and Reno, C.R.S. § 18-9-122(3) is grossly
unconstitutional because it discriminates on the basis of the
content of speech in public places.
3. No conceivable government interest, let alone one that
is compelling, justifies Colorado’s decision to secure
access to health care facilities by suppressing freedom
of expression in the traditional public forum.
The State’s ostensible interest in protecting access to health
care facilities does not justify the raw censorship which C.R.S.
§ 18-9-122(3) imposes.
The Colorado General Assembly enacted C.R.S. § 18-9-122
purportedly to balance “the exercise of a person’s right to
26. This Court concluded that the injunctions in Madsen and Schenck were
not content-based. The difference between the present statute and those
injunctions is that the injunctions were crafted, albeit ineptly, to remedy the
continuing problems of persons adjudicated to have engaged in continuing
misconduct. Madsen, 512 U.S. at 763; Schenck, 519 U.S. at 380.
35
protest or counsel against certain medical
procedures . . . against another person’s right to obtain medical
counseling and treatment in unobstructed manner,” C.R.S. § 18-
9-122(1). The Colorado Supreme Court also identified the right
to privacy of persons seeking treatment as the purpose of C.R.S.
§ 18-9-122(3). See Pet. App. 14a-16a. These same purposes
animated the floating bubble zone at issue in Schenck and the
no approach zone in Madsen.”’ Despite comparable interests,
described in Schenck as significant, id. at 376, this Court struck
down the floating bubble zone, Schenck, 519 U.S. at 377, just
as it had done with the “consent to speak” provision of the
Madsen injunction, 512 U.S. at 773-74. No other result can be
justified here.
Moreover, the interest Colorado asserts and that the court
below found sufficient in “balancing” away free speech rights
is not legitimate for purposes of constitutional review:
¢ the interest is not unrelated to suppressing expression, see
United States v. O'Brien, 391 U.S. 267, 377 (1968), but rather
targets speech directly and deliberately.
* the right to privacy — which only protects against
government action — is not jeopardized by the expressive
activities of private citizens communicating to passersby in the
traditional public forum, see Bray v. Alexandria Women’s
Health Clinic, 506 U.S. 263, 278 (1993);” cf Erznoznik v. City
27. See Schenck, 519 U.S. at 360-65, 367, 369, 376; Madsen, 512 U.S. at
757-59, 767-68.
28. As this Court explained in Schenck, 519 U.S. at 383:
“{w]e doubt that the District Court’s reason for including that
provision—‘to protect the right of the people approaching and entering
the facilities to be left alone’—accurately reflects our First Amendment
jurisprudence in this area. Madsen sustained an injunction designed to
secure physical access to the clinic, but not on the basis of any
36
of Jacksonville, 422 U.S. 205, 208-12 (1975) (concluding that
privacy rights of passersby did not justify ordinance restricting
all public theatrical displays of motion pictures containing
scenes with nudity).
¢ the suppression of even peaceful speech in a public forum
cannot qualify as a legitimate interest. Grace, 461 U.S. at 182.
Hence, no relevant, valid interest supports the Colorado
statute.”
4. Even if securing access to health care facilities
constitutes a compelling government interest, C.R.S. §
18-9-122(3) is not narrowly drawn to serve that interest.
Even short of a total ban, regulation of speech activity in
public fora is “subject to the highest scrutiny.” ISKCON v. Lee,
505 U.S. 672, 678 (1992); accord United States v. Kokinda,
497 U.S. 720, 726 (1990) (plurality). A restriction on
leafletting, picketing, or meaningful oral expression is therefore
unconstitutional unless it can satisfy the “stringent standards”
governing “restrictions on speech in traditional public fora.”
Frisby, 487 U.S. at 481. In particular, a “content-based
exclusion,” is impermissible unless the government can “show
that its regulation is necessary to serve a compelling interest
and that it is narrowly drawn to achieve that end.” Jd. (internal
quotation marks and citation omitted). Despite the assertion
generalized right ‘to be left alone’ on a public street or sidewalk.”
29. Freedom of speech cannot be made subject to prevailing notions of taste
or to preferences for particular forms of expression: “so long as the means
are peaceful, the communication need not meet standards of acceptability.”
Organization for a Better Austin, 402 U.S. at 419. Just as Colorado is
without power to “protect” private citizens from “offensive” or controversial
speech, so too is it without power to prohibit speech to avoid disharmony.
Cf Boos, 485 U.S. at 321 (“[t}he emotive impact of speech on its audience
is not a ‘secondary effect”).
37
that C.R.S. § 18-9-122(3) is necessary to ensure access to
health care facilities, the statute is not confined to obstructive
conduct, or to expressive activities that are unprotected and
obstructive. Cf Madsen, 512 U.S. at 774 (“[t]he ‘consent’
requirement . . . burdens more speech than is necessary to
prevent intimidation and to ensure access to the clinic”);
Schenck, 519 U.S. at 377 (“because this broad prohibition on
speech ‘floats,’ it cannot be sustained on this record”).
The use of a consent to speak provision demonstrates that the
statute is not narrowly drawn to any valid state interest, see
supra § IV(A). The statute rests the ultimate decision on
consent, and the consequent determination of whether speech
is criminal or free, on the judgment of the prospective listener.
Unfettered discretion is not evidence that a statute has been
drawn narrowly. The prospective listener will likely decide
whether speech may be uttered for reasons far removed from
the government’s purportedly compelling interest. Instead,
decisions will turn, unsurprisingly, on whether the speech is
welcome or unwelcome. Such a regime cannot be squared with
the Constitution.
E. CRS. § 18-9-122(3) does not Survive Scrutiny as a
Regulation of Time, Place and Manner of Speech.
Even if time, place and manner analysis provides the
appropriate standard, C.R.S. § 18-9-122(3) cannot qualify as a
reasonable time, place and manner regulation.
1. The ban on all unconsented oral protest, counsel and
education, on all unconsented sign displays, and on all
unconsented leafletting is not reasonable.
In Madsen, 512 U.S. at 773-74, this Court struck down an
injunctive provision that barred the defendants in that case from
approaching persons seeking access to the facility to speak with
them without first receiving from such persons an indication of
38
their “desire to communicate.” In that case, the trial court had
confronted demonstrators whose persistent conduct obstructed
access to an abortion clinic. Jd. at 758-59. Nonetheless, this
Court concluded that the “consent to speak provision” was
untenable because “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.” Jd.
Here, Colorado has identified obstructing access to health
care facilities as the evil it sought to avert by enactment of
C.R.S. § 18-9-122(3). See Pet. App. 64a-65a. But C.R.S. § 18-
9-122(3) does not restrict obstructive conduct. Nor is the
statute limited to expression accompanied by obstructive
conduct. Nor is it drawn only to limit fighting words or threats,
which are independently proscribable. Cf Madsen, 512 U.S. at
774. Colorado has set out a standard for engaging in protected
expressive activities that requires petitioners to assume a death-
mask of passivity... The judgment of the Colorado General
Assembly, embodied in C.R.S. § 18-9-122(3), was simply
unreasonable and untenable.
Indeed, the challenged provision is counter productive to its
supposed justification. By imposing a consent-to-communicate
requirement, Colorado converts every meaningful
communication into, at first, a solicitation of consent. As a
30. The Colorado Supreme Court construed C.R.S. § 18-9-122(3) to be
inapplicable to leafletting, sign displays, and oral communications so long
as “petitioners stand still while inside the floating buffer zone.” Pet. App.
21a. But if petitioners communicate without having consent and their
movement within eight feet of another constitutes a knowing approach while
arrest and prosecution under the statute. Such burdening of communication
makes a parody of free speech.
39
consequence, pristine expression normally considered
undisruptive and nonthreatening is converted into a transaction
that disrupts passage. Cf Kokinda, 497 U.S. at 734 (“{a]s
residents of metropolitan areas know from daily experience
confrontation by a person asking for money disrupts passage
and is more intrusive and intimidating than an encounter with
a person giving out information”).
2. The ban on freedom of expression is not narrowly
tailored.
Other than a ban on “all First Amendment activities,””’ it is
difficult to imagine a law less narrowly tailored than C.R.S. §
18-9-122(3). The court below erred in concluding otherwise.
See supra § TV(A).
First, C.R.S. § 18-9-122(3) restricts speech, not conduct. The
Colorado Supreme Court concluded that the General Assembly
adopted C.R.S.§ 18-9-122(3) out of concern for public safety
issues regarding the conduct of some protesters at various
health care clinics that was directed at both patients and staff.
Pet. App. 14a-15a. C.R.S. § 18-9-122(3), however, prohibits
only constitutionally significant speech and expression; that
provision leaves unfettered obstructive and threatening conduct.
See C.R.S. § 18-9-122(3) (“passing a leaflet or handbill to,
displaying a sign to, or engaging in oral protest, education, or
counseling”). Thus, although the court below concluded that
the general assembly acted to prohibit obstructive conduct, the
statute imposes direct restrictions only on protected speech.
C.R.S. § 18-9-122(3) does “not aim specifically at evils within
the allowable area of [Colorado’s] control but, on the contrary,
sweeps within its ambit other activities that . . . constitute an
exercise of freedom of speech or of the press.” Thornhill, 310
31. Board of Airport Comm'rs, 482 U.S. at 570 (regulation prohibiting all
“First Amendment” activities in airport terminal overbroad).
40
U.S. at 97. Because the statute restricts expression rather than
obstruction, it is not narrowly tailored.” Supra §IV(A). “The
‘consent’ requirement alone invalidates this provision; it
burdens more speech than is necessary to prevent intimidation
and to insure access to the clinic.” Madsen, 512 U.S. at 774.
Second, the requirement of obtaining consent to speak is not
limited to health care patients and their families, staff, and those
with business at health care facilities. Petitioners’ expressive
activities are not limited to one-on-one communications.
Rather, their leafletting, sign displays, and oral communications
are directed to all passersby as well as to women seeking
abortions and their companions. JA 49-51, 997, 10, 12-13; JA
53, 4% 7-9; JA 55, 9J 6-8. Respondents may argue that
petitioners are not required to seek consent from everyone in
their vicinity in order to speak, asserting that the only persons
from whom consent must be obtained are the individual targets
of petitioners’ expressive activity. Under that construct,
however, petitioners, because they seek to communicate
generally to the public, see JA 49-51, #9 7, 10, 12-13; JA 53, %f
7-9; JA 55, 9¥ 6-8, are required to obtain consent from every
passerby or bystander before coming within eight feet of them
because every one of them is the target of petitioners’
communications. Neither Madsen’s “consent to speak”
provision nor Schenck’s “floating bubble zone” were so
overbroad, yet both were held to violate the Constitution.
The injunction in Schenck only applied in the vicinity of
32. The restriction on leafletting adequately evidences the fact that C.R.S.
§ 18-9-122(3) is not narrowly tailored. Time and again, this Court has
warned against even time, place and manner restrictions on that activity.
See, e.g., Ward, 491 U.S. at 799 n.7 (“[a] ban on handbilling, of course,
would suppress a great quantity of speech that does not cause the evils that
it seeks to eliminate”).
41
abortion facilities in the Western District of New York.
Schenck, 519 U.S. at 367. C.P.S. § 18-9-122(3) is not so
limited. The statute creates floating speech free zones outside
every hospital, every doctor’s office (whether general
practitioners or specialists), every ambulatory surgical center,
every public health facility, every urgent care business, every
diagnostic services or laboratory services facility, in Colorado.”
Nor is the Statute’s scope limited to the foregoing matters.
The Schenck injunction offered its limited protection only to
those seeking to use or provide the services of the protected
medical facilities. Schenck, 519 U.S. at 367 n.3.* Colorado’s
statute creates speech-free, floating bubbles around every
human being within 100 feet of the entrance to any health care
facility in Colorado. These zones surround tradesmen walking
to local lunch counters, simply because of the happenstance that
their routes pass near the doorway to dentists’ offices or county
health departments. These zones surround out-of-state tourists
walking to the United States Mint in Denver, simply because
they parked in a garage that exits onto a sidewalk running
adjacent to a health care facility. These zones surround
vehicles driving nearby when petitioners or others walk along
a sidewalk at curbside in order to display their signs to those
driving past. The list of those covered by this statute —
because it is disconnected from the provision of or need for
33. Morever, unlike Schenck, 519 U.S. at 360-65, where an adjudicated
record of misconduct by identified parties led to imposition of injunctive
restrictions in places for which demonstrable problems of access existed,
C.R.S. § 18-9-122(3) restricts petitioners’ (and everyone else’s) rights in the
absence of any record evidence of misconduct by them at all.
34. Similarly, the injunctive floating bubble zone in Madsen was limited in
its protective scope to those seeking access to the Aware Women’s Health
Center in Melbourne, Florida. See Madsen, 512 U.S. at 773.
42
health care services — is as long as the list of those who live in,
or visit, Colorado.
Moreover, if C.R.S. § 18-9-122(3) is intended to secure
access to health care facilities, imposing on speakers a
requirement that they obtain consent from all persons who are
in the vicinity of health care facilities is certainly not narrowly
tailored. For example, in Schenck, the floating bubble zone
only enveloped and protected those persons entering or leaving
the medical facilities. 519 U.S. at 367 n.3. Unlike the Schenck
injunction, floating speech-free zones engulf every person who
passes by any health care facility in the State within 100 feet of
its entrance doors. These zones absorb persons whose presence
is not a function of health care needs or the provision of health
care services. Rather, because the challenged statute is
indiscriminate, its speech-free zones envelope everyone who,
by happenstance of geography, employment or otherwise,
passes near health care facilities without any intent to use them.
Third, another provision of the same statute demonstrates that
C.R.S. § 18-9-122(3) is not narrowly tailored to secure access
to health care facilities. C.R.S. § 18-9-122(3) is but one
provision of the legislation enacted by the General Assembly.
The General Assembly also enacted C.R.S. § 18-9-122(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.”
Unlike C.R.S. § 18-9-122(3), the offense described by C.R.S.
§ 18-9-122(2) actually addresses — and seeks to ensure — access
to health care facilities. Given the direct ban on conduct that
“obstructs, detains, hinders, impedes, or blocks another
person’s entry to or exit from a health care facility,” the
superfluity of C.R.S. § 18-9-122(3) as a means of securing
access to health care facilities is patent. Thus, the statute is
- <n
43
demonstrably not narrowly drawn because other means already
protect the interest the State ostensibly seeks to protect.
3. C.R.S. § 18-9-122(3) does not leave open ample
alternative channels of communication.
No alternative channel of communication exists allowing
petitioners effectively to express their messages to, and
associate with, those members of the public who are seeking
access to the very health care facilities whose operations
concern petitioners. The Colorado Court of Appeals clearly
understood one implication of the statute, namely that ail
handbilling within one hundred feet of the entrance doors to
every Colorado health care facility would be banned under the
statute. Pet. App. 56a-57a (“[flinally, with reference to the fact
that leafletting may not take place within 100 feet of the
entrance to the medical clinic unless consent is given, we view
the significant governmental interest here as sufficient to
warrant the requirements of the statute”). Nonetheless, that
court upheld the statute’s constitutionality and, in its turn, the
Colorado Supreme Court affirmed that judgment. Pet. App. 3a.
The judgment affirmed below had concluded that the statute
left open “ample alternative channels of communication other
than leafletting,” including “speech for those without hearing
disabilities, placards for those with hearing deficiencies, and
other visual items for the sighted patients and staff.” Pet. App.
57a. This conclusion is wrong, and the cavalier analysis that
led to it is unprecedented. In essence, the court below justifies
the substantial burdens of the statute by telling picketers to use
their voices, speakers to use signs, leafletters to call out from a
distance, and everyone to relinquish that most sacred archetype
of free speech and free press, the hand-to-hand distribution of
free literature.
Whatever the meaning of “ample alternative channels of
ae
communication,” the constitutional principle is well-
established: “as we have said, the streets are natural and proper
places for the dissemination of information and opinion; and
one is not to have the exercise of his liberty of expression in
appropriate places abridged on the plea that it may be exercised
in some other place.” Schneider v. State, 308 U.S. 147, 160-61
(1939).
In City of Ladue v. Gilleo, 512 U.S. 43, 55-56 (1994), this
Court rejected a ban on signs displayed on one’s own property.
The City defended its ordinance on the basis that “residents
remain{ed] free to convey their desired messages by other
means, such as hand-held signs, letters, handbills, flyers,
telephone calls, newspaper advertisements, bumper stickers,
speeches and neighborhood or community meetings.” 512 U.S.
at 56. This Court was not “persuaded that adequate substitutes
exist for the important medium of speech that Ladue had closed
off.” Id.
Here, “adequate substitutes” do not exist for the oral
communications, sign displays, and hand-to-hand distribution
of leaflets that the State of Colorado has closed off. Cf
Linmark Associates v. Township of Willingboro, 431 U.S. 85,
93 (1977) (leafletting, sound trucks, demonstrations, and the
like, are less likely to reach intended audience and are less
effective than the real estate “For Sale” signs prohibited under
the challenged ordinance); Metromedia, Inc. v. City of San
Diego, 453 U.S. 490, 516 (1981) (same). The appeals court’s
“ample alternative channels” conclusion flies in the face of the
constitutional rights of free expression: “That [a regulation]
leave open ‘more burdensome’ avenues of communication,
does not relieve its burden on First Amendment expression.”
Meyer v. Grant, 486 U.S. 414, 424 (1988). This is so because,
“{t]he First Amendment protects [speakers’] right not only to
45
advocate their cause but also to select what they believe to be
the most effective means for so doing.” Jd.
The courts below erred in concluding that the statute
preserved ample alternative channels of communication.
C.R.S. § 18-9-122(3) is unconstitutional because it employs
terms that are so “vague that men of common intelligence must
necessarily guess at [their] meaning and differ as to [their]
application.” Connally v. General Constr. Co., 269 U.S. 385,
391 (1926). C.R.S. § 18-9-122(3) does not “give the person of
ordinary intelligence a reasonable opportunity to know what is
prohibited, so that he may act accordingly.” Grayned, 408 U.S.
at 108. While all laws must be reasonably clear, laws which
regulate or restrict free speech, such as § 18-9-122(3), must
satisfy “a more stringent vagueness test,” Village of Hoffman
Estates, 455 U.S. at 499 (footnote omitted).
Moreover, because of this statute’s ambiguous breadth, the
concern arises that violations will be defined by subjective,
varying, ad hoc judgments. That concern is exacerbated here,
where private citizens are empowered to license speech.
Grayned, 408 U.S. at 108-09. “Precision of regulation must be
the touchstone in an area so closely touching our most precious
freedoms.” Riley, 487 U.S. at 801 (internal quotation marks
and citations omitted). This Court has counseled:
[vjague laws offend several important values.
First, . . . [vjague laws may trap the innocent by not
providing fair warning. Second, . . . [a] vague law
impermissibly delegates basic policy matters to policemen,
judges, and juries for resolution on an ad hoc and
subjective basis, with the attendant dangers of arbitrary and
discriminatory applications. Third, . . . where a vague
statute abuts upon sensitive areas of basic First Amendment
46
freedoms, it operates to inhibit the exercise of those
freedoms.
Grayned, 408 U.S. at 108-09 (footnotes and editing marks
omitted). Accord Village of Hoffman Estates, 455 U.S. at 498.
Applying C.R.S. § 18-9-122(3) to peaceful sign displays, to
leafletting, or to oral communications, on a public sidewalk
raises a host of thorny interpretive questions. No arbitrary, post
hoc response by the State can remedy the very practical but
hopelessly intractable ambiguities that result from the decision
to subject the right to freedom of speech and of the press to the
undefined duty to obtain consent before speaking in public
places and in public ways.”
C.R.S. § 18-9-122(3) forbids only such oral utterances as
constitute “protest,” “counseling,” or “education.” But what
counts as “protest”?*° As “education”? As “counseling”? The
expression, “Down with Dr. Smith,” for example, is presumably
a protest. But what about “Pray for Dr. Smith” or “Please
change your mind, Miss Jones”? Does the statement, “We can
help you find a naturopathic treatment for your illness,” count
as “counseling”? Does a warning about the side effects or
35. Atthis juncture, the vagueness of C.R.S. § 18-9-122(3) cannot be cured
by deferring to the Colorado courts. Having had the opportunity to clarify
the statute, the Colorado Court of Appeals refused to do so. Pet. App. 44a.
The Colorado Supreme Court declined to consider the vagueness issue. Pet.
App. 46a.
36. Petitioners argued below that the term “protest” indicates that the
viewpoint expressed will determine the lawfulness of the speech, because the
usual meaning of that term includes only speech in opposition to something.
The Colorado Court of Appeals held that “protest” in the statute includes all
speech about a medical procedure, not only speech in opposition to
something. Pet. App. 44a. While that construction, implausible as it is,
cured the statute of one of the viewpoint-based defects its suffers, it also
significantly expands the scope of an already overbroad statute.
4
:
/
47
aftermath of abortion constitute “education”? What about
alerting the abortion-bound woman to the possible link between
abortion and increased risk of breast cancer?”’ Does “May I
help you?” or “Can I help you keep your baby?” count as
“counseling”? No ready answers appear to these highly
practical questions petitioners must face on pain of criminal
liability. The meanings of “protest,” “counseling,” and
“education” are “so vague that men of common intelligence
must necessarily guess at [their] meaning[s] and differ as to
[their] application[s],” Connally, 269 U.S. at 391; hence, a
restriction based on such terms is unconstitutional. Grayned,
408 U.S. at 108-09. Petitioners are forced to proceed at their
own peril — or to censor their speech out of fear of prosecution.
The Constitution forbids such government-imposed guessing
games. Grayned, 408 U.S. at 108-09.
And what of the statutory requirement of “consent[]”? The
statute restricts protected expression within eight feet of
another person unless that other person “consents.” While it
may be clear to the /istener whether he or she consents to the
speech, it is often far from clear to the speaker. Is the apparent
acquiescence of the auditor or recipient sufficient? A nod ora
shrug? An audible grunt or groan? An obvious pause in the
listener’s pace? If the sullen boyfriend of an abortion-bound
woman tells one of the petitioners to shut up, does that
command operate as a denial of consent for all covered
expression? For such expression directly targeting the father of
the soon-to-be aborted baby? The abortion-bound woman? If
37. Cf Kindley, The Fit Between the Elements for an Informed Consent
Cause of Action and the Scientific Evidence Linking Induced Abortion with
Increased Breast Cancer Risk, 1998 Wis. L. REV. 1595; Loose, Antiabortion
Message Gets Free Ride on Metro System; Ads Linking Procedure, Breast
Cancer Disputed, Washington Post, Jan. 22, 1996, at Al.
48
a loitering youth flashes a rude hand gesture, will picketers be
criminally liable for failing to hide their signs from public view
as they walk past the youth?
Moreover, although the statute restricts “knowingly
approaching” others, the statute does not indicate whether
approaches are measured from the body or from the limbs or
from personal property in the physical possession of the
speaker, such as signs, leaflets, or pamphlets. Will the
stretching outward of an arm constitute “approaching”? Will
the tendency of an orator to rock forward on the balls of his feet
as he speaks transform otherwise protected expression into a
crime? The court below was satisfied to observe that persons
seeking to exercise fundamental rights of expression could do
so if they “stand still while inside the floating buffer zone,” Pet.
App. 2la. But this touches only the tip of the vagueness
iceberg. The statute does not clarify in a constitutionally
sufficient manner whether the motion of a hand, intentionally
extended toward another person while the pamphleteer stands
still, violates the statute.
“[S]tricter standards of permissible statutory vagueness may
be applied to a statute having a potentially inhibiting effect on
speech; a man may the less be required to act at his peril here,
because the free dissemination of ideas may be the loser.”
Smith v. California, 361 U.S. 147, 149 (1959). This Court has
reiterated this more stringent scrutiny of vague laws that
impinge on first amendment rights. Hynes v. Mayor of Oradell,
425 U.S. 610, 620 (1976) (“general test of vagueness applies
with particular force in review of laws dealing with speech”).
Stringent scrutiny, together with specificity in legislation,
preclude the chill on free speech that results from vague laws:
[t]hese freedoms are delicate and vulnerable, as well as
supremely precious in our society. The threat of sanctions
49
may deter their exercise almost as potently as the actual
application of sanctions. Because First Amendment
freedoms need breathing space to survive, government may
regulate in the area only with narrow specificity.
Button, 371 U.S. at 433 (citations omitted). C.R.S. § 18-9-
122(3) fails to establish a definite standard of conduct; thus, it
violates due process because “everyone is entitled to know
what a statute requires or forbids.” Hynes, 425 U.S. at 620.
C.R.S. § 18-9-122(3) is vague in yet another respect. The
statute leaves enforcement too much to the unfettered discretion
of private citizens deputized by Colorado to enforce the law:
“laws must provide explicit standards for tnose who apply
them. A vague law impermissibly delegates basic policy
matters to policemen, judges, and juries for resolution on an ad
hoc and subjective basis... .” Grayned, 408 U.S. at 108-09.
Just as Cincinnati could not constitutionally regulate conduct
“through the enactment and enforcement of an ordinance whose
violation may entirely depend on whether or not a policeman is
annoyed[,]” Coates, 402 U.S. at 614, Colorado is barred from
elevating those personal predilections to a constitutional stature
greater than the free speech right itself.
The statute provides no objective guidelines for permitting
sign displays, leafletting, or the utterance of educational,
counseling, or protest speech. Auditors may decide, from their
own values, whether a person’s constitutionally protected
expression will be permitted. The right to free speech cannot
depend on the good will or eccentricities of those enforcing the
law. Such was the case in Coates, 412 U.S. at 615-16, where
this Court noted that a statute that prohibits “annoying conduct”
is an open and “obvious invitation to discriminatory
enforcement.” Subjective application of C.R.S. § 18-9-122(3)
creates a real danger that citizens will be “chilled” in the
50
exercise of their rights of free speech, press and assembly. This
is intolerable. Not only those who protest abortion will be
silenced: “the free dissemination of ideas [will be] the loser.”
Smith, 361 U.S. at 149.
CONCLUSION
C.R.S. § 18-9-122(3) preconditions freedom of expression on
the consent of passersby. It directly restricts constitutional
rights. While purporting to serve an interest in securing access
to health care facilities, it does not prohibit obstructive conduct
at all. Instead, it suppresses freedom, without a close fit
between expressive activities and the asserted interest in
ensuring access to health care facilities.
The judgment below should be reversed.
/) Respectfully submitted,
THOMAS P. MONAGHAN JAY ALAN SEKULOW
AMERICAN CENTER FOR Counsel of Record
LAW & JUSTICE JAMES M. HENDERSON, SR.
6375 New Hope Road WALTER M. WEBER
New Hope, KY 40052 JOEL H. THORNTON
(502) 549-7020 AMERICAN CENTER FOR
Law & JUSTICE
ROGER W. WESTLUND 1000 Thos. Jefferson St. NW
12000 N. Washington, #207 Suite 609
Thornton, CO 80241 Washington, DC 20007
(303) 450-0833 (202) 337-2273
Attorneys for Petitioners
November 12, 1999
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.