Amicus Curiae Brief — Hill v. Michigan Attorney Grievance Commission

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Supreme Court, U.S.

No. 98-1856 |: FILED

OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1999

LEILA JEANNE HILL, et ai.,

Petitioners,

STATE OF COLORADO, et ai.,

Respondents.

ON WRIT OF CERTIORARI

TO THE SUPREME COURT OF COLORADO

BRIEF AMICUS CURIAE OF

THE AMERICAN CIVIL LIBERTIES UNION

IN SUPPORT OF PETITIONERS

Steven R. Shapiro

(Counsel of Record)

American Civil Liberties Union

Foundation

125 Broad Street

New York, New York 10004

(212) 549-2500

TABLE OF AUTHORITIES

SO ina INTEREST OF AMICUS

. STATEMENT OF THE CASE

Pee ee, . COLORADO’S FLOATING BUFFER

‘oe ZONE IS, AT LEAST IN PART, A

vue CONTENT-BASED RESTRICTION ON

. THE DECISION BELOW MISAPPLIES

THE DISTINCTION BETWEEN _IN-

JUNCTIONS AND STATUTES ARTICU-

. COLORADO’S FLOATING BUFFER

BURDENS SUBSTANTIALLY MORE

SPEECH THAN NECESSARY AND

THUS CANNOT SURVIVE EVEN IN-

CONCLUSION

TABLE OF AUTHORITIES

Cases

Board of Airport Commissioners v.

Jews for Jesus,

483 U.S. S69 (1987) . 0. cece ce snseseneeeeee

Boos v. Barry,

48S U.S. 312 (19GB) . cece eussueeeeeeee

Buckley v. American Constitu-

tional Law Foundation,

525 U.S. _, 119 S.Ct. 636 (1999) ............

Church of the Lukumi Babalu Aye

v. City of Hialeah,

$06 U.S. $20 (1993) .. wc ecesvcsscsueneeee

Clark v. Community for Creative

Non-Violence,

468 U.S. 288 (1984) .. cee ewsesseeseueeee

Cohen v. California,

403 U.S. 15 (1971) .. «0.000005 cee 5, 20, 21

Edwards v. South Carolina,

372 U.S. 229 (IDES) «occ vc cccseus see

Frisby v. Schultz,

487 U.S. 474 (1968) .. ccc ccssesueeeeeeee

Gustaffson v. Alloyd Co.,

$13 US. 561 (1995) .. eu ccvecssue eee

Hague v. CIO,

307 U.S. 496 (1999) .. we cc vccseseuesue eee

Madsen v. Women’s Health Center, Inc.,

$12 U.S. 743 (1996) .. eevee eueeeeeeeee

Page

Members of the City Council v.

Taxpayers for Vincent,

Ce Sn oc cece cccccccees 22

Meyer v. Grant,

ee ccc ccc ccc cccccceces 21

NAACP v. Button,

Te cc cece 6, 9

Perry Education Ass'n v. Perry

Local Educators’ Ass'n,

ew. ccc ccc ccccces 5

Renton v. Playtime Theatres, Inc.,

EEE 13

Rowan v. Post Office Dep't,

EE 5

Sabelko v. City of Phoenix,

120 F.3d 161 (9th Cir. 1997) ................., 6, 15

Schenck v. Pro-Choice Network

of Western New York,

Ee ee ccc ccc cc cccceces passim

Schneider v. State,

EE 22

Teachers v. Hudson,

Teen e lcccene 18

Thornhill v. Alabama,

dl 21

United States v. Grace,

ccc ces 5, 22, 23

United States v. O'Brien,

ccc ccc ccn. 23

Page

United States v. X-Citement Video, Inc.,

SS Ge, GD 6's 00 606 0dbds6 née aseeene 15

Walker v. Birmingham,

re ee SD coe tebekeesseunbsaekere 18

Ward v. Rock Against Racism,

7 BF err 12, 19, 23

Statutes and Regulations

ate ) Peer 12

CRS. GG os ccecsccoces seubuncaden passim

Freedom of Access to Clinic

Entrances Act,

2.) Perret ]

INTEREST OF AMICUS '

The American Civil Liberties Union (ACLU) is a

nationwide, nonprofit, nonpartisan organization with nearly

300,000 members dedicated to the principles of liberty and

equality embodied in the Constitution and our nation’s civil

rights laws. Since its founding in 1920, the ACLU has vig-

orously defended the right to free speech on the public

streets, and has appeared before this Court on numerous oc-

casions in support of that principle, from Hague v. CJO, 307

U.S. 496 (1939), to Buckley v. American Constitutional Law

Foundation, 525 U.S. __, 119 S.Ct. 636 (1999).

At the same time, the ACLU has long been committed

to preserving a woman’s right to reproductive choice. The

ACLU has therefore participated in every major reproduc-

tive health care case decided by this Court over the past

forty years, beginning with Poe v. Ullman, 367 U.S. 497

(1961), and extending through Roe v. Wade, 410 U.S. 113

(1973), and its progeny. We have also consistently argued

in this context and in others that constitutional rights can

quickly become meaningless if they cannot be exercised

without running a gauntlet of violence, intimidation and

harassment. Accordingly, the ACLU supported passage of

the federal Freedom of Access to Clinic Entrances Act

(FACE), 18 U.S.C. §248. Likewise, we agreed with this

Court’s view in Schenck v. Pro-Choice Network of Western

New York, 519 U.S. 357 (1997), that specific clinic protes-

tors who had engaged in prior unlawful conduct could be

subject to a narrowly crafted injunction imposing reasonable

' Letters of consent to the filing of this brief have been lodged with the

Clerk of the Court pursuant to Rule 37.3. Pursuant to Rule 37.6, coun-

sel for amicus states that no counsel for a party authored this brief in

whole or in part and no person, other than amicus, its members, or its

counsel made a monetary contribution to the preparation or submission

of this brief.

time, place, and manner restrictions on their demonstration

activity.

Based on this experience, the ACLU deeply believes

that the volatile issue of abortion clinic protest must not be

resolved by sacrificing either the right to _Teproductive

choice or the right to engage in peaceful political protest.

Rather, the burden in each case is to arrive at a solution that

accommodates both rights, and that does so in a principled

way that is consistent with our constitutional tradition. This

case once again poses the question of how that should be

done. Its proper resolution is thus a matter of substantial in-

terest to the ACLU and its members.

STATEMENT OF THE CASE

In 1993. Colorado’s General Assembly enacted a statute

designed to regulate protest activity outside "health care fa-

cilities" within the state.? The critical provision now before

the Court establishes an eight-foot floating buffer zone or

bubble that surrounds people walking within one hundred

feet of the entrance to a health care — Anyone who

. aproaches” closer than eight feet to someone

bre ay. sa area without consent is subject to both

civil and criminal penalties if, but only if, the purpose of the

person approaching is to hand out a leaflet, display a sign,

2 The full text of the statute, C.R.S. §18-9-122, is set forth at Pet.App.

64a-65a. Although this case has focused exclusively on abortion clinic

protests, the actual scope of the statute is not so limited. Specifically,

the term “health care facility” is broadly defined to include “any entity

that is licensed, certified, or otherwise authorized or permitted by law to

administer medical treatment .. ." §18-9-122(4).

> The statute explicitly states that it is intended to regulate protest activ-

ity “in the public way or sidewalk area." §18-9-122(3).

or engage in “oral protest, education, or counseling." C.R.S.

§18-9-122(3).

‘The Colorado Supreme Court has authoritatively con-

strued this language to mean that "the statute is not violated

if [protestors] stand still while inside the floating buffer

zone," Pet.App. 21a, even if their static position on the

street may occasionally bring them closer than eight feet to

clinic patients and staff. Whether standing or moving, how-

ever, anyone who "knowingly obstructs, detains, hinders,

impedes, or blocks another person’s entry to or exit from a

health care facility," §18-9-122(2), is subject to civil and

criminal penalties under a second provision of the law.

which was not challenged in this litigation.

The preamble to the statute makes clear that, in drawing

these lines, the Colorado legislature was attempting to bal-

ance "the right to protest or counsel against certain medical

procedures" against the "right to obtain medical counseling

and treatment in an unobstructed manner." §18-9-122(1).

As the preamble also makes clear, the legislature’s over-

riding goal in seeking to achieve this balance was to “pre-

vent{] the willful obstruction of a person’s access to medical

counseling and treatment at a health care facility." Jd

The statutory concern with "willful obstruction” reflec-

ted legislative testimony that the Colorado Supreme Court

characterized as "compelling." Pet.App. 9a. One particular

nurse practitioner whose testimony was cited by the majority

below described how anti-abortion protestors "yell, thrust

signs in faces, and generally try to upset the patient as much

as possible, which makes it much more difficult for us to

provide care..." Jd at 8a. Another witness testified how

a mother and daughter were "immediately surrounded" by

screaming protestorsas they tried to walk from their car to

the clinic entrance. /d at 9a.

At the same time, it is apparent from even the excerpted

legislative record contained in the opinion below that at

least some of legislative testimony was addressed to the con-

tent of the protestors’ message as much as it was to the

manner in which that message was delivered. For example,

the Colorado Supreme Court quotes one legislative witness

who stated, in part: "[The protestors] are flashing their

bloody fetus signs. They are yelling, ‘you are killing your

baby.”" /d.

Petitioners, who describe themselves as "sidewalk

counselors," brought suit soon after the statute went into ef-

fect complaining that its eight-foot floating buffer violated

their First Amendment right to engage in peaceful protest on

the public streets. Their request for declaratory and injunc-

tive relief was initially denied by the Colorado courts."

This Court then granted certiorari and remanded the case

for further consideration in light of the intervening decision

in Schenck, 519 U.S. 357. On rernand, the eight-foot float-

ing buffer was again upheld by the Colorado courts.

First, the Colorado Supreme Court emphasized that this

case involves review of a statute, not an injunction. Second,

it relied on language in Madsen v. Women's Health Center,

Inc., 512 U.S. 743 (1994), for the proposition that content-

neutral statutes regulating speech are entitled to a more def-

erential review than content-neutral injunctions regulating

speech. Third, applying intermediate scrutiny, it ruled that

the Colorado law represents a narrowly tailored response to

the state’s significant interest in safeguarding health that

leaves protestors with ample alternative channels for com-

munication. See Pet.App. la-29a.

* The trial court’s 1994 decision granting the state’s motion for summary

judgment, Pet.App. 30a-37a, was upheld by the Colorado Court of Ap-

peals, id. at 38a-45a. The Colorado Supreme Court denied discretionary

review in the first round of appeals. /d. at 46a.

SUMMARY OF ARGUMENT

: As this Court has repeatedly held, the public streets are

a “quintessential public forum for expressive activity."

Perry Education Ass'n v. Perry Local Educators’ Ass in, 460

U.S. 37, 45 (1983). See also United States y. Grace, 461

U.S. 171, 177 (1983). Indeed, long before the public forum

doctrine even developed as an analytic tool in First Amend-

ment cases, this Court famously observed that public streets

and parks “have immemorially been held in trust for the use

of the public and, time out of mind, have been used for pur-

poses of assembly, communicating thoughts between citi-

zens, and discussing public questions."

Se tee q Hague v. CIO, 307

Thus, this Court has always reacted with skepticism to

restrictions On speech that require the speaker to seek prior

permission from the audience in a public forum where anv-

one who does not want to hear the speaker’s message is free

to walk away. See Cohen v. California, 403 U.S. 15. 2)

(1971)("we are often ‘captives’ outside the sanctuary of the

home and subject to free speech"), quoting Rowan v. Post

Office Dep't, 397 U.S. 728, 738 (1970). Similarly, this

Court has made clear in the so-called "heckler’s veto" cases

that the hostile reaction of the crowd is generally not a con-

stitutionally adequate reason to silence the speaker in a pub-

~* = E.g., Edwards v. South Carolina, 372 U.S. 229

Those cases provide an instructive but not exact analogy

2 a Present controversy. The state’s interest in this case

in acquiescing to the hostile reaction of clinic patients

and staff, either because the state shares the ideological

views of the clinic patients and staff or because it fears the

clinic patients and staff will erupt into violence when con-

fronted with an unwanted message. Rather, the state’s as-

Serted interest, at least as expressed in the preamble to the

challenged statute, is to preserve the health and safety of

women seeking medical treatment in a "health care facility.

That interest is undoubtedly a significant one. But the

legitimacy of the state’s interest cannot and does not justify

whatever means the state may choose to enforce that inter-

est. When First Amendment rights are at stake, "[p]recision

of regulation must be the touchstone ... ." NAACP v. But-

ton, 371 U.S. 415, 438 (1963). For that reason, the Court

in Madsen struck down a portion of the injunction that

barred the named defendants and those acting in concert

with them from approaching any clinic patient within a three

hundred-foot radius of the clinic entrance without sent

sion. Altho recognizing the state’s interest in protectin

patients ee being "stalked" or "shadowed," the Court

concluded that the injunction as written was needlessly over-

broad. 512 U.S. at 773-74. Likewise, in Schenck, the Court

ruled that a fifteen-foot floating buffer could not be sus-

tained as part of the injunction in that case. 519 U.S. at

377-80.

To be sure, there are differences between the floating

buffer in this case and the floating buffers in Schenck and

Madsen. The floating buffer in Madsen extended three hun-

dred feet from the clinic entrance; here, it extends only one

hundred feet. Similarly, the floating buffer in Schenck cre-

ated a fifteen-foot bubble around anyone entering or leaving

the clinic; here, the bubble is only eight feet wide. The

Colorado statute also contains a scienter requirement 4 i.e.,

it only applies to protestors who "knowingly approach” clin-

ic patients and staff -- that helps to ameliorate the problem

of uncertain boundaries that so troubled the Schenck Court.

See also Sabelko v. City of Phoenix, 120 F.3d 161 (9th Cir.

1997). Thus here, unlike Schenck, protestors who stand still

while delivering their message cannot be forced to back off

whenever anyone within eight feet objects to their presence.

These distinctions do make some difference. But, they

do not resolve the fundamental flaw of the Colorado statute.

Like the invalidated provisions in Schenck and Madsen, it

makes even traditional First Amendment advocacy on the

public streets a matter of grace rather than right. In the

final analysis, therefore, this case is controlled by the par-

allel holdings in Schenck and Madsen. Contrary to the

opinion of the court below, the fact that Schenck and Mad-

sen involved review of an injunction rather than a statute is

not enough to save the Colorado law for at least three

reasons.

First, unlike the comparable provisions in Schenck and

Madsen, the floating buffer zone created by the Colorado

law cannot be described as content-neutral. On this issue,

the fact that Colorado proceeded by statute rather than by

injunction works against the state rather than in its favor. In

both Schenck and Madsen, this Court emphasized that the

challenged injunctions were directed against particular de-

fendants because of their prior misconduct and did not de-

pend in any way on the content of their future speech.

Here, by contrast, the floating buffer is generally applicable

to everyone who seeks to engage in "oral protest, education

or counseling," regardless of whether they have previously

engaged in past misconduct. Conversely, the floating buffer

can be penetrated with impunity by someone who is merely

seeking directions to the closest bus stop, for example. Es-

pecially when read in conjunction with the statute’s general

ban on obstructing or hindering entry to or exit from an

abortion clinic, the conclusion seems inescapable that the

focus on “oral protest, education or counseling" distin-

guishes among speakers based on what they are saying and

not on what they are doing. Such distinctions are plainly

content-based and trigger strict scrutiny, a standard that no

one has argued this statute can meet.

Second, even if Colorado’s floating buffer is described

as content-neutral, the lower court placed far too much

weight on the difference between injunctions and statutes. It

is, of course, true that Madsen holds that a content-neutral

injunction can burden no more speech than necessary to ac-

complish a significant government interest while a content-

neutral statute cannot burden substantially more speech than

necessary. Whether this two-tiered standard of review ul-

timately makes sense is itself an important question that has

already generated a great deal of commentary both inside

and outside the Court. However, it is not dispositive in this

case. Intermediate scrutiny under the First Amendment was

never intended to be a toothless standard. And, in applying

intermediate scrutiny, one cannot answer the question of

whether the state has burdened substantially more speech

than necessary without also examining the legitimate scope

of the state’s regulatory interest.

Only by asking what the state is trying to accomplish

can one understand whether the state has gone too far. The

standard of review inevitably affects that inquiry but it does

not resolve it. As Madsen itself illustrates, a thirty-six foot

buffer zone may be an appropriate injunctive response to the

misbehavior of particular defendants at a specified site. But

it does not follow that a statutory buffer zone of thirty-six

feet is therefore automatically valid even though it would be

assessed on the basis of a lower standard of review. Re-

gardless of which standard is invoked, a court cannot avoid

the essential task of weighing the relationship between

means and end. Moreover, in undertaking that task, a re-

viewing court must consider the possibility that a statutorily

imposed buffer burdens substantially more speech than nec-

essary precisely because its proscriptions apply to individ-

uals who may never have engaged in prior unlawful behav-

ior. The court below failed to grasp this critical point and,

accordingly, misapplied the intermediate scrutiny standard.

Third, the Colorado law cannot survive intermediate

scrutiny if properly applied. There is no doubt that the state

has a significant government interest in ensuring that women

(and men) have unimpeded access to health care facilities.

Indeed, the ACLU has vigorously advocated in favor of that

interest On numerous occasions in both the legislative and

judicial arenas. The portion of Colorado’s law ensuring un-

impeded access to health care facilities, however, has not

been challenged in this case. The floating buffer obviously

has some relationship to the same underlying interest. But,

it also goes further by penalizing advocacy within eight feet

that does not threaten to impede or obstruct persons entering

or leaving the clinic, including the simple act of handing out

a leaflet.

Colorado undoubtedly felt that a prophylactic rule --

which is what the floating buffer represents -- would be

easier to enforce and thus provide an added layer of protec-

tion against those who might abuse their First Amendment

rights. As this Court has repeatedly admonished, however,

"[b]road prophylactic rules in the area of free expression are

suspect." NAACP v. Button, 371 U.S. at 458. What was

true in Madsen is therefore equally true here: the fact that

some protestors might cross the line from protected advoca-

cy to unprotected harassment and intimidation does not "jus-

tify a prohibition on ali uninvited approaches ...." 512

U.S. at 774 (emphasis in original).

ARGUMENT

I. COLORADO’S FLOATING BUFFER ZONE IS,

AT LEAST IN PART, A CONTENT-BASED

RESTRICTION ON SPEECH

. In order to apply intermediate scrutiny and thus distin-

guish this case from Schenck and Madsen, both of which

struck down floating buffer zones, the Colorado Supreme

Court was first obliged to hold that Colorado’s floating

buffer is content-neutral. Unfortunately, that first step was

also a misstep.

To begin with, the language of the statute expressly dis-

tinguishes between lawful and unlawful conduct based on

the content of speech. A statute that created an eight-foot

bubble around clinic patients and staff that could not be in-

vaded without consent by any person for any purpose within

one hundred feet of the clinic entrance would be content-

neutral, even though it would undoubtedly be subject to

other constitutional attacks. See Point III, infra. That is not

the statute that Colorado has enacted, however. Instead, the

penalty provisions of Colorado’s law are only triggered if a

person "knowingly approaches" for one of three prohibited

purposes: (1) passing a leaflet or handbill; (2) displaying a

sign; (3) engaging in “oral protest, education or counseling."

Pet.App. 65a.

Even if the first two purposes could be described as

content-neutral, the ban on "oral protest, education or coun-

seling" within eight feet clearly turns on the content of what

is being said. The Colorado Supreme Court’s assertion that

"the statutory language makes no reference to the content of

the speech," id. at 22a, is both inexplicable and plainly

wrong. It is only by evaluating the content of speech that

a factfinder can determine, for example, whether a labor

picketer has entered the eight-foot floating buffer to ask for

the time or urge support for a hospital strike. The same is

true for an animal rights activist who might "knowingly ap-

proach" research staff at a health care facility to protest

animal experimentation or to engage a neighborhood ac-

quaintance in social conversation.

* The opinion below also asserts that petitioners waived any claim that

the statute is content-based. Amicus has no views on the merits of that

dispute other than to note that petitioners contend otherwise. Pet. Reply

Br. at 4.

Although the Colorado statute is not written in terms of

a specific subject, like abortion, the limit it places on pro-

test, education and counseling outside a health care facility

undeniably describes a "category of speech," Boos v. Barry,

485 U.S. 312, 319 (1988). Furthermore, it is a "category of

speech" that has clear subject matter consequences in the

context of this statute, as described above.

The inescapable need to refer to content in applyin

Colorado statute distinguishes this case from Schenck hae

Madsen. In both Schenck and Madsen, the injunctions had

nothing directly to do with the content of speech and every-

thing to do with the past misbehavior of the defendants.

Correspondingly, the defendants in Schenck and Madsen did

not expose themselves to sanctions because of what they

said but only because of what they did.

As this Court explained in Madsen:

[The trial court] imposed restrictions on

[defendants] incidental to their antiabortion

message because they repeatedly violated

the court’s original order. That [defen-

dants] all share the same viewpoint re-

garding abortion does not in itself demon-

strate that some invidious content- or

viewpoint-based purpose motivated the

issuance of the order. It suggests only that

those in the group whose conduct violated

the court’s order happen to share the same

opinion regarding abortions being per-

formed at the clinic. In short, the fact that

the injunction covered people with a par-

ticular viewpoint does not itself render the

injunction content or viewpoint based.

512 U.S. at 763 (emphasis in original).

The same cannot be said of Colorado’s law. Because

Colorado chose to proceed by statute, the law’s coverage is

not confined to those who have previously misbehaved.

And because Colorado chose to make the eight-foot bubble

impenetrable without consent only to those who engage in

"oral protest, education or counseling," it is impossible to

say that the challenged provision was enacted "without ref-

erence to the content of the regulated speech." Ward v.

Rock Against Racism, 491 U.S. 781, 791 (1989).

In reaching this conclusion, we have no reason to doubt

Colorado’s good faith or its genuine concern with the physi-

cal well-being of clinic patients and staff. As the Colorado

Supreme Court pointed out, see p.3, supra, the legislative

record contains disturbing accounts of harassment and intim-

idation by some antiabortion protestors. Those activities,

however, are already illegal under Colorado law.° In addi-

tion, an unchallenged portion of this statute creates new

criminal penalties for anyone who obstructs, hinders, or im-

pedes movement into or out of a health care facility. Pet.

App. 65a.’

Under these circumstances, there are two plausible ex-

planations for the eight-foot floating buffer. One is that it

simplifies enforcement by relieving the state of the burden

of proving obstruction or hindrance. The constitutional dif-

ficulties with this prophylactic approach in a First Amend-

ment context will be discussed more fully below. See Point

III, infra. The other possibility is that the state is trying to

shield clinic patients and staff from having to confront at

close range the protestors’ message and the anxiety it may

° See, e.g., C.R.S. §18-9-111 (making it a crime to follow a person in or

about a public place "with intent to harass, annoy or alarm").

’ Interestingly, the provisions of C.R.S. §18-9-122(2) are not limited by

the one hundred-foot boundary that applies to the floating buffer zone.

cause. For patients, in particular, that anxiety may have real

world consequences, such as heightened blood pressure, that

can complicate th» medical treatment they are hoping to ob-

tain. Still, it is impossible to avoid the hard choices that the

Constitution requires by mislabeling Colorado’s law as

content-neutral. As Justice O’Connor said in Boos, 485

U.S. at 312, and as this Court recently reiterated in Reno v.

ACLU, 521 U.S. 844, 868 (1997), a listener’s reaction to the

content of speech is a "primary" rather than a "secondary ef-

fect.". Compare Renton v. Playtime Theatres, Inc., 475 U.S.

41 (1986).

Content-based restrictions on speech in a public forum

are subject to "the most exacting scrutiny." Boos, 485 U.S.

at 321. For present purposes, it is sufficient to note that

neither the state nor the lower courts in this case have even

claimed that the statute could survive such scrutiny. This

Court’s decisions in Schenck and Madsen plainly indicate

otherwise.

Il. THE DECISION BELOW MISAPPLIES THE

DISTINCTION BETWEEN INJUNCTIONS

AND STATUTES ARTICULATED IN MADSEN

Twice within the past five years, this Court has been

asked to consider the constitutionality of floating buffer

zones that restricted protest activity outside abortion clinics.

Both times, the Court invalidated the challenged provision.

According to the Colorado Supreme Court, those cases are

distinguishable because they involved court-ordered injunc-

tions rather than statutes. While that distinction has been a

factor in this Court’s analysis, it does not support the differ-

ent result reached by the court below.

In Schenck, this Court struck down a fifteen-foot float-

ing buffer zone that surrounded people entering or leaving

plaintiffs’ health care facilities. 519 U.S. at 377-80. The

one exception was for two "sidewalk counselors" who were

allowed inside the fifteen-foot bubble but even they were re-

quired to "cease and desist" if the person they were targeting

objected. Writing for the majority, Chief Justice Rehnquist

concluded that the imprecise boundaries of the floating

buffer in Schenck made it constitutionally invalid. “[I}t

would be quite difficult," he wrote, “for a protestor who

wishes to engage in peaceful expressive activities to know

how to remain in compliance with the injunction." /d. at

378 (footnote omitted).

In Madsen, the Court also struck down a floating buffer

zone that enjoined defendants from approaching any clinic

patient within three hundred feet of the clinic entrance with-

out that person’s consent. 512 U.S. at 773-74. If anything,

the Madsen injunction was even less precise than the

Schenck injunction. Not only did it float -- moving as the

patient moved -- but it failed to inform defendants of how

close they could be to a patient within the three hundred-

foot area without violating the proscription against "physi-

cally approaching." /d. at 760. Nevertheless, the Madsen

Court did not rest its holding on vagueness grounds. In-

stead, the Court broadly declared that "[t]he ‘consent’ re-

quirement alone invalidates this provision." Jd. at 774.

The Colorado Supreme Court decision does not even

mention this aspect of Madsen, although it would seem to

bear directly on the constitutionality of the challenged pro-

vision in this case, which also contains a consent require-

* The ACLU submitted an amicus brief in Schenck urging the Court to

affirm the fifteen-foot fixed buffer zone based on the record developed

in that case. Brief of the American Civil Liberties Union, ef ai., in

Schenck v. Pro-Choice Network of Western New York, No. 95-1065.

The brief did not address the floating buffer zone except to note that it

had been remanded by the Second Circuit to the district court for a

further elaboration of its precise contours. /d. at 23 n.20.

ment for even peaceful advocacy in a public forum. Rather,

the Colorado Supreme Court focused exclusively on the

floating buffer in Schenck, perhaps because it was hearing

the case on remand from this Court "for further considera-

tion in light of Schenck." Pet.App. 48a.

The court below began its discussion of Schenck with

an acknowledgement of the “factual similarities" between

that case and this one. Pet.App. 18a.” However, it quickly

dismissed the significance of those similarities by noting that

content-neutral injunctions and content-neutral statutes are

subject to different standards of review after Madsen. Rely-

ing on that difference, the Colorado Supreme Court then ap-

plied what it regarded as the more lenient standard of re-

view applicable to legislative enactments to uphold the float-

ing buffer in this case.

It is undisputed, of course, that Madsen created a two-

tier standard of review under which even content-neutral in-

junctions can only be sustained if they burden no more

speech than necessary to achieve a significant government

* As previously noted, the Colorado Supreme Court also identified im-

portant dissimilarities between the floating buffer in Schenck and the

floating buffer in this case. Most significantly, the court stressed that

the addition of a scienter requirement in the Colorado law substantially

diminishes the vagueness and enforceability concerns that figured so

prominently in Schenck. Pet.App. 27a-28a. See also Sabelko v. City of

Phoenix, 120 F.3d 161 (9th Cir. 1997). We agree that the “knowingly

approach” language in the Colorado law makes this statute easier to en-

force and understand. Cf. United States v. X-Citement Video, Inc., 513

U.S. 64 (1994). For example, it means that protestors who have sta-

tioned themselves on the sidewalk do not have to constantly move as

new people enter or leave the targeted facility. Compare Schenck, 519

U.S. at 378. Vagueness, however, is not the only concern, as Madsen

makes clear. Even unambiguous statutes can be substantially overbroad.

See, e.g., Board of Airport Commissioners v. Jews for Jesus, 482 US.

569 (1987).

interest, while content-neutral statutes can be sustained so

long as they do not burden substantially more speech than

necessary to achieve a significant government interest. 512

U.S. at 764-68. But, contrary to the approach adopted be-

low, the standard for evaluating statutory restraints on

speech was never intended to be toothless. The question of

whether a statute burdens more speech than necessary can-

not be answered in a vacuum; it inevitably turns on the na-

ture of the interest the state is seeking to promote. And,

while the state is entitled to deference in defining those in-

terests, courts cannot avoid the responsibility (even under in-

termediate scrutiny) of deciding whether the state has chosen

a constitutionally appropriate means of achieving its stated

ends.

The Colorado Supreme Court failed to conduct in-

iry i i tial core of its

quiry in any meaningful way. The essen

holding that Colorado’s floating buffer does not burden sub-

stantially more speech than necessary is contained in the fol-

lowing passage:

Petitioners contend that section 18-9-

122(3) is not narrow because, although the

General Assembly declared its intent to

curtail threatening conduct, it only prohib-

its protected speech. We disagree. The

plain language of the statute indicates that

it regulates speech and the conduct of

"passing a leaflet or handbill," and display-

ing a sign.

Pet.App. 24a.

It is not at all clear what this passage _— The

fact that the statute regulates expressive activities like pass-

ing a leaflet or displaying a sign says nothing about whether

the statute burdens substantially more speech than necessary

to accomplish its declared goals. The fact that passing a

ee - ee

leaflet and displaying a sign combine elements of speech

and conduct in a single activity says nothing about whether

this statute is narrowly tailored "to curtail threatening con-

duct." And the fact that the statute may not “only prohibit[]

protected speech" says nothing about whether it prohibits

too much protected speech. In short, what is entirely miss-

ing is any discussion of how the statute’s ends and means

relate to one another.

The most plausible explanation for this curious omission

is the unspoken assumption that the fit between means and

ends is somehow less important when reviewing a statutory

restraint on speech. Nothing in Madsen supports that con-

clusion. Indeed, the fallacy becomes most apparent if one

thinks about the thirty-six foot fixed buffer zone in Madsen.

That fixed buffer was upheld even under the more stringent

injunction standard because the record demonstrated that it

was no broader than necessary to restrain particular defen-

dants who had engaged in documented misconduct at a par-

ticular geographic site. It simply does not follow, however,

that any thirty-six foot buffer zone enacted by statute is now

constitutionally invulnerable because it will be subject to

less stringent review. To the contrary, it is entirely possible

that a statutory buffer zone of even less than thirty-six feet

could be struck down as a violation of the First Amendment

depending upon the reasons for its enactment and its impact

on speech. Madsen, 512 U.S. at 778 (Stevens, J., concur-

ring in part and dissenting in part). Different questions may

need to be asked when reviewing a statute rather than an in-

junction, but the articulation of a lower standard merely

Starts the discussion; it does not end it, as the Colorado Su-

preme Court erroneously assumed.

More generally, the issue of whether a lower standard

of review should be applied to statutory restraints on speech

is an interesting and important one that may need to be re-

examined in a future case. As the majority pointed out in

Madsen, the general applicability of a content-neutral statute

offers some assurance that it is not targeted against disfa-

vored groups. 512 U.S. at 764. On the other hand, even

facially neutral statutes may be discriminatorily applied, and

experience shows that the facially neutral language of a stat-

ute may nonetheless mask a discriminatory intent. See, e.g.,

Church of the Lukumi Babalu Aye v. City of Hialeah, 508

U.S. 520 (1993). Likewise, while it is true that someone

accused of violating an injunction is subject to contempt

proceedings rather than the full due process safeguards of a

criminal trial, see Walker v. Birmingham, 388 U.S. 307

(1967), it is also true that a judge issuing an injunction is

bound by due process constraints that do not apply to the

political process. Finally, the reach of an injunction is

generally limited to past violations of the law, while a stat-

ute that does impose restraints on speech reaches "the com-

munity at large," Teachers v. Hudson, 475 U.S. 292, 309-10

n.22 (1986), and thus its burdens are more widespread.

These competing considerations create a complex calcu-

lus but it is not one that needs to be unraveled here. Meas-

ured against its stated objectives, Colorado’s floating buffer

cannot survive even intermediate scrutiny.

Ill. COLORADO’S FLOATING BUFFER BUR-

DENS SUBSTANTIALLY MORE SPEECH

THAN NECESSARY AND THUS CANNOT

SURVIVE EVEN INTERMEDIATE

SCRUTINY

To survive intermediate scrutiny under this Court’s cur-

rent test, a statute regulating speech must be content-neutral,

it must be narrowly tailored to advance a significant govern-

ment interest, and it must leave open ample alternative ave-

nues of communication. See, e.g., Clark v. Community for

Creative Non-Violence (CCNV), 468 U.S. 288, 293 (1984).

wee

As noted above, we do not believe that the challenged pro-

vision in this case is, in fact, content-neutral. Even as-

suming the statute is content-neutral, however, it is plainly

not narrowly tailored. Accordingly, it is unnecessary to de-

cide whether petitioners have been left with other, adequate

Opportunities for expression.

The narrow tailoring requirement of intermediate scruti-

ny does not require the state to pursue its goals through the

least restrictive alternative. On the other hand, a statute that

"burden[s] substantially more speech than is necessary to

further the government's legitimate interests" is not narrow-

ly tailored. Ward v. Rock Against Racism, 491 U.S. at 799.

In this case, the state’s purposes are openly declared in

the preamble to the statute. It states, in its entirety:

The general assembly recognizes that ac-

cess to health care facilities for the purpose

of obtaining medical counseling and treat-

ment is imperative for the citizens of [Col-

orado]; that the exercise of a person’s right

to protest or counsel against certain medi-

cal procedures must be balanced against

another person’s right to obtain medical

counseling and treatment in an unobstruc-

ted manner; and that preventing the willful

obstruction of a person’s access to medical

counseling and treatment at a health care

facility is a matter of statewide concern.

The general assembly therefore declares

that it is appropriate to enact legislation

that prohibits a person from knowingly ob-

structing another person’s entry to or exit

from a health care facility.

Pet.App. 64a-65a.

Subsection (2) of the statute, which has not been chal-

lenged in this litigation, is directly responsive to those

concerns. Under its terms, any person who "knowingly ob-

structs, detains, hinders, impedes, or blocks another person’s

entry to or exit from a health care facility" is subject to

criminal prosecution. /d. at 65a.

By contrast, the floating buffer zone created by subsec-

tion (3) of the statute makes no reference to physical ob-

struction. Nor can it easily be construed as limited to physi-

cal obstruction without making its coverage completely re-

dundant of the preceding section in violation of the tradi-

tional rules of statutory interpretation. Gustaffson v. Alloyd

Co., 513 U.S. 561, 574 (1995)."°

As written, therefore, the floating buffer zone prohibits

even peaceful protest activity within the designated area --

whether that activity takes the form of leafletting or oral ad-

vocacy -- unless the subject of that advocacy first grants her

consent. Of course, an eight-foot buffer zone is not the

same as a total ban. Patients and staff approaching the

'° In contrast to Colorado’s consent requirement, some floating buffers

have incorporated a "cease and desist" provision that requires the pro-

testor to back off once the listener expresses an unambiguous desire to

be left alone. As Chief Justice Rehnquist observed in Schenck, there is

no general right "to be left alone" on a public street. 519 U.S. at 383.

Unlike a consent requirement, however, a cease and desist provision can

far more easily be interpreted as the functional equivalent of a harass-

ment statute and thereby designed to ensure what Justice Harlan assumed

as a predicate for the Court’s First Amendment holding in Cohen v. Cal-

ifornia, 403 U.S. 15 -- namely, the ability to walk away from unwel-

come speech in a public forum. See ACLU amicus brief in Schenck,

n.8, supra, at 25-29. On the other hand, as Schenck recognized, 519

U.S. at 378, a cease and desist provision may increase the risk that one

listener can effectively veto face-to-face communication with others in-

side the same floating bubble.

clinic entrance can still see protest signs and hear protest

messages from eight feet away. Moreover, a protestor who

stands still may wind up closer than eight feet to clinic pa-

tients and staff. But the fact that an eight-foot buffer zone

falls short of a total ban does not mean that its impact on

speech can or should be regarded as constitutionally negli-

gible.

The right to engage in "interactive communication" on

the public streets about political issues lies at the "core" of

the First Amendment, Meyer v. Grant, 486 U.S. 414, 422

(1988). Such interaction is undeniably complicated when

the state insists that a speaker and listener stay a certain

distance apart. At an even more basic level, it is impossible

to hand a leaflet to someone who is standing eight feet

away.

We realize that the concept of "interactive communica-

tion" may seem strained in this context since it ordinarily

presumes a willing speaker and a willing listener. The pro-

tections of the First Amendment, however, are not limited to

speech between like-minded people. See Thornhill v. Ala-

bama, 310 U.S. 88 (1940)(protecting labor picketers). If the

message is unwelcome, as it often will be outside abortion

clinics, the constitutionally appropriate response in a public

forum is for the listener to walk away -- with adequate pro-

tection against being obstructed or hindered, as subsection

(2) of the Colorado statute provides -- and not to enlist the

power of the state to silence the speaker. See Frisby v.

Schultz, 487 U.S. 474, 484 (1988): Cohen v. California, 403

U.S. at 21.

We appreciate the state’s understandable concern, based

on numerous incidents that have occurred outside abortion

clinics around the country, that some protestors may cross

the line from peaceful advocacy to physical obstruction and

potentially other forms of unlawful behavior if permitted to

approach clinic patients and staff without their consent. The

floating buffer zone, however, represents both an under- and

Over-inclusive response to that problem.

First, §18-9-122 already deals with obstruction in

another section. Second, the floating buffer zone does not

actually prevent a protestor from getting much closer than

eight feet to a patient or staff member so long as the protes-

tor is not moving or does not engage in any of the expres-

Sive activities described in the statute. Third, and most sig-

nificantly, the First Amendment does not permit the state to

restrict the free speech rights of all protestors because some

protestors may take advantage of the situation to violate the

law. Madsen, 512 U.S. at 774.

The unconstitutional breadth of Colorado’s floating

buffer is clear when the statute is compared to other time,

place, and manner restrictions that this Court has considered.

For example, in Members of the City Council v. Taxpayers

for Vincent, 466 U.S. 789, 810 (1984), the Court upheld a

Los Angeles ordinance that prohibited the posting of signs

on public property, but only after concluding that the ordi-

nance "responds precisely to the substantive problem [of vis-

ual blight] that concerns the City.". The same cannot be said

of Colorado’s floating buffer, which far more closely resem-

bles the anti-littering law struck down in Schneider v. State,

308 U.S. 147 (1939). There, as here, the state "could have

~ addressed the substantive evil without prohibiting expressive

activity," or adopting a "prophylactic rule." Vincent, 466

U.S. at 810.

Similarly, in United States v. Grace, 461 U.S. 171, the

Court refused to uphold a statutory ban on certain expres-

sive activity on the Supreme Court grounds. In rejecting the

government's defense of the statute as a time, place, or

manner regulation, Justice White explained that the statute

was constitutionally invalid because it had "an insufficient

nexus with any of the public interests that may be thought

to undergird [it].". /d. at 181. Like Colorado’s floating

buffer, the purpose of the challenged statute in Grace was to

protect the security of the Supreme Court building and the

safety of its personnel. The legitimacy of that interest was

never questioned. Nevertheless, the Court noted that

"[t]here is no suggestion . . . that appellees’ activities in any

way obstructed the sidewalks or access to the building,

threatened injury to any person or property, or in any way

interfered with the orderly administration of the building or

other parts of the grounds." /d. at 182. Colorado’s statute

suffers from precisely the same flaw by converting even

nonthreatening comments and silent leafletting on the public

streets into a criminal offense.

Finally, the holdings in Ward and CCNV also assume a

fit between means and ends that is lacking here. Thus, in

Ward, an ordinance requiring that New York City employ-

fes operate any sound amplification equipment used for

bandshell concerts in Central Park was upheld because it di-

rectly advanced the city’s interest in controlling noise levels

in midtown Manhattan. 491 U.S. at 800. Likewise, in

CCNV, a federal regulation that barred political protestors

from sleeping in Lafayette Park was upheld because, in the

Court’s view, it "narrowly focuse[d] on the Government’s

substantial interest in maintaining the parks in the heart of

our Capitol in an attractive and intact condition." 468 U.S.

at 296.

The underlying theme in all these cases is that a state

must craft its statutes narrowly when regulating speech, and

the interests it seeks to advance must be unrelated to the

Suppression of expression. See United States v. O'Brien,

391 U.S. 367 (1968). Colorado has identified its interest as

access to health care facilities for patients and staff. Unfor-

tunately, the floating buffer is not narrowly tailored to pro-

mote that interest. Instead, it focuses directly on expressive

activities. It thus burdens substantially more speech than

necessary to accomplish the state’s goal and cannot be sus-

tained, even under intermediate scrutiny.

CONCLUSION

For the reasons stated herein, the judgment of the

Colorado Supreme Court should be reversed.

Respectfully submitted,