# Amicus Curiae Brief — Hill v. Michigan Attorney Grievance Commission

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0279%3A12

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1999
- **Citation:** 526 U.S. 1062

## Text

CLIRK

NOV 32 Iy¥y

Nl |

In THE

Supreme Court of the United States

LALIA JEANNE HILL, et al.,
Petitioners,

Vv.

COLORADO,
Respondent.

On Writ of Certiorari to the
Supreme Court of Colorado

BRIEF FOR THE AMERICAN FEDERATION OF LABOR
AND CONGRESS OF INDUSTRIAL ORGANIZATION
AS AMICUS CURIAE IN SUPPORT OF PETITIONERS

JONATHAN P. HIATT
815 15th Street, N.W.
Washington, D.C. 29006

LAURENCE GOLD *

805 15th Street, N.W.
Washington, D.C. 20005
(202) 842-2600

* Counsel of Record

EE ——————<s

WILSON-EPes Printinec Co., Inc. - (202) 789-0096 - WasHINGTON, D.C. 20001

\

ii

TABLE OF AUTHORITIES

Cases Page
Board of Airport Comm'rs v. Jews for Jesus, 482

UE, GED CHGIED cncccnccmncteieeiniiedatiieatina 2
Boos v. Barry, 485 U.S. 312 (1988) ....................... 15
City Council v. Taxpayers for Vincent, 466 U.S.

TED CRB) cccccstterenesietnitiiamanindit iain 12, 19
Clark v. Community For Creative Non-Violence,

468 UB. SEB (RBCS) ccmscectenicipetinicntn 9
DeBartolo v. Florida Gulf Coast Trades Council,

GBB UE. GR COR cccteccttectmsnnitaiintlininttinnnitins 2,17
Frisby v. Schultz, 487 U.S. 474 (1988) .................. 2
Grayned v. City of Rockford, 408 U.S. 104

6 ere Sa EP 14
Hague v. CIO, 307 U.S. 496 (1939) ......................... 2,17
Heffron v. ISKCON, 452 U.S. 640 (1981) ~............. 2,13
ISKCON v. Lee, 505 U.S. 672 (1992) ..................... 2,11
Jamison v. Texas, 318 U.S. 413 (1948) -............... 17
Lovell v. City of Griffin, 303 U.S. 446 (1938) ........ 17
Madsen v. Women’s Health Center, 512 U.S. 753

GUE ceitcccisssstsipidiiie ocensensenpinbinniiaditias 2, 20
NAACP v. Clairborne Hardware, 458 U.S. 903

CORI sictintesitiiotecd 18

Police Department v. Mosley, 408 U.S. 92 (1972).. 16
Schenck v. Pro-Choice Network of Western New

York, 519 U.S. 357 (1997) .........---ccecccceceeceeeesees 2, 16, 20
Schneider v. State, 308 U.S. 147 (1989) -~............. 2,17,18
Thomas v. Collins, 323 U.S. 516 (1945) ................ 2,18
Thornhill v. Alabama, 310 U.S. 88 (1940) ............. 2,18
Turner Broadcasting System v. FCC, 512 U.S. 622

(1994) 9

United States v. Kokinda, 497 U.S. 720 (1990).... 2,13
Ward v. Rock Against Racism, 491 U.S. 781
(1989) “ passim

In THE
Supreme Court of the United States

No. 98-1856

LALIA JEANNE HILL, et al.,

Petitioners,
Vv.

COLORADO,
Respondent.

On Writ of Certiorari to the
Supreme Court of Colorado

BRIEF FOR THE AMERICAN FEDERATION OF LABOR
AND CONGRESS OF INDUSTRIAL ORGANIZATION
AS AMICUS CURIAE IN SUPPORT OF PETITIONERS

INTEREST OF THE AMICUS CURIAE

This brief amicus curiae .. filed by the American Federa-
tion of Labor and Congress of Industrial Organizations,
a federation of 68 national and international unions rep-
resenting approximately 13,000,000 working men and
women, with the consent of the parties as provided for in
the Rules of this Court.

Historically, the AFL-CIO, and its affiliated unions,
have had a vital interest in the First Amendment rights

:

of citizens to disseminate their views on the public streets
by picketing, handbilling and other communicative means.
Indeed, many of the leading cases that this Court has de-
cided in the First Amendment area have involved the
efforts of union members to engage in such expressive
activities." That being so, the AFL-CIO has filed briefs
as an amicus curiae in a substantial number of *’:ir Court’s
recent cases involving the exercise of First Amendment
rights on the streets.* And, it is in furtherance of that in-
terest that the AFL-CIO files this brief amicus curiae in the
instant case.

SUMMARY OF ARGUMENT

Four aspects of the Colorado statute in question here
frame the constitutional issue:

First, although the articulated legislative purpose is
preventing “willful obstruction of a person’s access” to
medical facilities, the Statute applies whether or not the
individual whose speech is thus prohibited has in the past
obstructed or is currently obstructing, or threatening to ob-
struct, any other individual’s access to the medical facility.

Second, the Statute singles out speech for prophylactic
regulation.

1 See, e.g., Hague v. CIO, 307 496 (1989); Schneider v. State,
398 U.S. 147, 155 (1989) ; Thornhill v. Alabama, 310 U.S. 80 (1940) ;
Thomas v. Collins, 323 U.S. 516 (1945); NLRB v. Fruit Packers,
377 U.S. 58 (1954); DeBartolo v. Florida Gulf Coast Trades Coun-
cil, 486 U.S. 568 (1988).

2 See, e.g., Schencke v. Pro-Choice Network of Western New York,
519 U.S. 357 (1997); Madsen v. Women’s Health Center, 512 U.S.
752 (1994); International Society for Krishna Consciousness v.
Lee, 505 U.S. 672 (1992); United States v. Kokinda, 497 U.S. 720
(1990); Frisby v. Schultz, 487 U.S. 474 (1988); Board of Airvort
Commissioners v. Jews for Jesus, Inc., 483 U.S. 589 (1987); Heff-
ron v. International Society for Krishna Consciousness, 453 U.S. 540
(1981).

Third, the Statute entirely precludes normal handbilling
and leafletting.

Fourth, the Statute as it applies to oral communication
regulates speech on the basis of its content.

The Colorado Supreme Court viewed this case as one
raising only the validity of a limited time, place and man-
ner statutory restriction on speech in a public forum. And,
a “content-neutral” statutory regulation of speech in a
public forum, such as a public sidewalk, can pass First
Amendment muster if it furthers a substantial governmental
interest unrelated to the suppression of speech and is nar-
rowly tailored to that interest. The office of the narrow
tailoring requirement is to preclude regulation that “bur-
dens substantially more speech than is necessary to fur-
ther the government's legitimate interests,” Ward v. Rock
Against Racism, 491 U.S. 785,791 (1989).

The Statute in this case states the only government in-
terest Colorado has ever asserted: “preventing the willful
obstruction of a person’s access to medical counseling and
treatment at a health care faciilty.”. And, the handbilling,
leafletting, sign display and oral protest the statute restricts
do not in and of themselves involve physical obstruction
of access to the addressee’s destination whether the indi-
vidual engaged in the communicative activity approaches
within eight feet of the addressee or not. Any connection
between the prohibited speech activity and obstruction is
entirely contingent.

This Court has never sanctioned a purely contingent
connection of this kind as the basis for a prophylactic pro-
hibition of protected speech actiivty in a public forum.
To the contrary, where, as here, speech activity can be
carried out in a way that does not compromise a neutral
non-speech governmental interest or in a way that does
compromise the latter, the Court has approved a time,

4

place and manner restriction only where the regulation
restricts speech activity that in fact involves an actual in-
trusion on the non-speech government interest, and the
regulation does not restrict speech activity that does not

in fact involve an actual intrusion on the non-speech -
ernment interest. ani

The Statute here does not respect that limitation for it
enacts a general prophalactic restriction on public forum
speech actiivty that without limit or distruction applies to
speech activity that does not in fact involve any physical
obstruction of access. That being so the Statute fails the

narrow tailing requirement of the First Amendment time,
place and manner standard.

5

ARGUMENT

CONSIDERED AS A TIME, PLACE AND MANNER
LIMITATION ON SPEECH IN A PUBLIC FORUM
THE COLORADO STATUTE IS UNCONSTITUTIONAL
IN THAT IT BURDENS SUBSTANIALLY MORE
SPEECH THAN IS NECESSARY TO FURTHER THE
GOVERNMENT'S LEGITIMATE, NON-SPEECH RE-
LATED INTERESTS.
A. The Colorado statue at issue in this case, Section
18-9-122 C.R.S. (1994 Cum. Supp.) (“the Statute”)

reads, as here relevant:

(1) The general assembly recognizes that access to
health care facilities for the purpose of obtaining
medical counseling and treatment is imperative for
the citizens of this state; that the exercise of a per-
son’s right to protest or counsel against certain med-
ical procedures must be balanced against another
person’s right to obtain medical counseling and treat-
ment in a nunobstructed 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 per-
sun from knowingly obstruction another person’s
entry to or exit from a health care facility.
* x *

(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 engag-
ing 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.

Four aspects of this criminal prohibition are particu-

larly significant for purposes of constitutional analysis:

6

First, although the articulated legislative purpose is
preventing “willful obstruction of a person’s access” to
medical facilities, the Statute applies whether or not the
individual whose speech is thus prohibited has in the
past obstructed or is currently obstructing, or threatening
to obstruct, any other individual's access to the medical
facility. The plaintiffs here, for example, were prevented
from coming closer than eight feet to pedestrians on public
sidewalks near medical clinics even though they “have not
engaged in, and do not intend to engage in, . . . dangerous
and harassing conduct.” Hill v. Thomas, 973 P.2d 1246,
1251 (Colorado S. Ct. 1999).

Thus, as this case illustrates, the Statute’s prohibition
obtains even though there is no basis for concluding that
activity of the kind proscribed, considered either indi-
vidually or in the aggregate, by its nature, or by habitual
practice, entails “obstruction of a person’s access” to a
medical facilty. And, to make the matter all the more
binding, the Statute’s prohibition obtains at ail health
care facilities, including many types of facilities at which
there has never been obstruction of access by any hand-
billers, leafletters, sign displayers or oral protestors.

Second, the Statute singles out speech for prophylactic
regulation, even though the articulated legislative purpose
is to prevent conduct that can occur with or without
speech, and even though it is not unusual for one indi-
vidual to come closer than eight feet to another individual
on the public streets without the latter’s express consent.

An individual can engage in conduct that obstructs
another individual’s access to a medical facility without
also engaging in leafletting, handbilling, sign display or
oral protest. And, individuals engaging in such obstructive
conduct would do so by approaching within eight feet of

7

the individuals seeking access to the facility. So far as
we are aware, however, neither this Statute, nor any other
Colorado statute, prevents individuals on public side-
walks 100 feet from medical facilities from coming closer
than eight feet to other individuals unless the approaching
individual is engaged in leafletting, handbilling, sign dis-
play or oral protest. With the one exception of this
Statute, then, Colorado regulates the behavior of persons
on the public streets in order to prevent obstruction of
access to medical facilities only by proscribing actual
obstruction.

Third, the Statute entirely precludes normal handbilling
and leafletting. Ordinarily, a handbiller or leafletter does
not stand in a location and wait to be approached by
passersby. Doing so is unlikely to attract many takers
for the simple reason that by and large individuals on
public streets are bound for a destination on a determined
course. That being so, a handbiller, after choosing a loca-
tion at which she can reach her intended audience, walks
a few steps toward individuals making their way to that
location, coming close enough to extend her arm and
make it possible for passersby to take the handbill by
simply extending their arms slightly without changing their
course. Since few people have arms that are four feet
long, the eight-foot limitation here precludes handbilling
in its normal sense.

The “consent” exception does not alter this conclusion.
Again, individuals who are on the public street are nor-
mally going somewhere. While such pedestrians may take
a proffered handbill and read it then, or later, if they
can do so without straying from their intended path, they
are unlikely in the extreme to cease their progress toward
their destination in order to consider a request from a hand-
biller standing eight feet away to permit the opportunity to

8
make the proffer. Indeed, by the time the handbiller is
able to intelligibly verbalize a request for consent to ap-
proach the addressee, the passerby is likely to be even fur-
ther away from the handbiller than originally, and even

less likely to halt or reverse direction in order to answer
the request and then receive the handbill.3

Fourth, the Statute as it applies to oral communication
regulates speech on the basis of its content. An individual
who approaches closer than eight feet to another indi-
vidual on a public street within 100 feet of a medical
facility to ask for directions or for the time, to conduct
a survey, to hand out free samples of a product and pitch
the product’s virtues, or to solicit funds for a charity is
not, in any ordinary use of the words, “engaging in oral
protest, education, or counseling.” Such an individual is
therefore free to approach other individuals near medical
facilities as elsewhere, whether the person approached has
consented to the conversation in advance or not.

In contrast, anti-abortion protestors such as the plain-
tiffs here, workers seeking to inform patients of a labor
dispute at the medical facility and request support for a
boycott, animal rights protestors desiring to educate users
of a medical facility of the use of animals in experiments
and training so that the patients will complain to their

3 All of the foregoing is equally applicable to an individual on a
public forum who wishes to communicate her oral protest message
to passersby.

In contrast, signs can be made visible at a distance of eight feet,
and no further communication or interaction with the addressee
is needed to convey the sign displayer’s message. Thus, an eight
foot space limitation on the display of signs cannot by a parity
of reasoning, be said to preclude normal sign display in the same
manner as the limitation precludes handbilling. But the limitation,
we believe, does have a “material impact” on the sign display form
of communication by placing artificial constraints on a speech ac-
tivity that is protected by the First Amendment and that does not
intrude on any legitimate government interest. Cf. Ward v. Rock
Against Racism, 491 U.S. 781 (1989).

9

doctors, and other patients seeking to communicate with
fellow users of the facility concerning problems with the
services provided—not unusual in this era of discontent
with managed medical care—would all be subject to the
eight foot/consent limitation. By any measure, this regu-
lation of oral communication is regulation of speech on
the basis of its content.

Given these four characteristics, the Statute is, under
this Court’s precedents, unconstitutional, and cannot
stand—as we now show.

B. The Colorado Supreme Court viewed this case as
one raising only the validity of a limited time, place and
manner restriction on speech in a public forum. There
is, we believe, a substantial question as to whether that
is a proper characterization of the statute here. But be-
cause the Statute so clearly fails the time, place and
manner standard, we accept and proceed on the Colorado
Supreme Court’s premise rather than joining the issue at
this threshold point.

Other considerations aside, a “content-neutral” regula-
tion of speech in a public forum, such as a public side-
walk, can pass First Amendment muster if it furthers a
substantial governmental interest unrelated to the sup-
pression of speech and is narrowly tailored to that interest.
Turner Broadcasting System, Inc. v. Federal Communi-
cations System, Inc., 512 U.S. 622, 662 (1994), citing
Ward v. Rock Against Racism, supra. The office of the
narrow tailoring requirement is to preclude regulation
that

burdens substantially more speech than is necessary
to further the government’s legitimate interests. Gov-
ernment may not regulate expression in such a
manner that a substantial portion of the burden on

h does not serve to advance its goals. . . . [Ward,
491 US. at 799.]

10

Thus, although the time, place and manner intermediate
level of scrutiny regarding the “fit” between the govern-
mental interest and the breadth of regulation is less than
that applied in other First Amendment contexts, the
judicial inquiry into the relationship between means and
ends is a careful one, “focussing on the evils the [Gov-
ernment] seeks to eliminate” and asking whether the regu-
lation at issue “significantly restrict[s] a substantial quan-
tity of speech that does not create the same evils.” Ward,
491 US. at 799 n.7; see also Clark v. Community for
Creative Non-Violence, 468 U.S. 288, 297 (1984).

The Statute in this case recites in its body the only
government interest Colorado has ever asserted: “prevent-
ing the willful obstruction of a person’s access to medical
counseling and treatment at a health care facility.” Sec-
tion 18-9-122(1) C.R.S. (1994 Cum. Supp.). Focusing,
as this Court has directed, on that “evil,” it is apparent
that the Statute “significantly restricts a substantial quan-
tity of speech that does not involve the “willful obstruc-
tion of a person’s access to . . . a health care facility.”

Handbilling, leafletting, sign display and oral protest
do not in and of themselves involve physical obstruc-
tion of access to the addressee’s destination whether the
individual engaged in the communicative activity ap-
proaches within eight feet of the addressee or not. Rather,
the Legislature relied on the fact that “on occasion” indi-
viduals approaching a particular kind of medical facility—
those at which abortions are performed—have been
“physically assaulted [by anti-abortion protestors] while
entering or leaving” those health care facilities. 973 P.2d
at 1250. In other words, the connection between the pro-
hibited speech activity and obstruction is entirely contin-
gent: In some instances—“on occasion”—speech activ-
ities abutting on medical faciilties are associated with

11

obstruction through physical assaults or otherwise. In
other instances, by definition the majority, the handbillers/
protestors, like the petitioners in this case, never pose the
“evil” of obstruction of access through physical assault or
otherwise at which the Statute is aimed.‘

This Court has never sanctioned a purely contingent
connection of this kind as the basis for a prophylactic pro-
hibition of protected speech activity in a public forum.
Rather, the time, place and manner restrictions that the
Court has sanctioned have rested on a necessary connec-
tion between the speech activity regulated and the “evil”
the Government “seeks to eliminate.”

(1) In some instances, the non-speech governmental
interest is “intrinsic” to each exercise of a speech activity,
so that the unregulated speech activity is “naturally in-
compatible with a large, multipurpose forum.” Interna-
tional Society for Krishna Consciousness v. Lee, 505 U.S.
672, 690 (1992) (O’Connor, J. concurring). For ex-
ample, in Ward, supra, the regulation at issue dealt with
the “evil” of “excessive and inadequate sound amplifica-
tion” at concerts in a public park. That regulation gov-
erned only concerts that were sound amplified and the
regulation did so not by “ban[ning] all [such] concerts,
or even all rock concerts, but instead by focus[ing] on
the source of the evils the city seeks to eliminate—exces-
sive and inadequate sound amplification—and eliminates
them without at the same time restricting a substantial
quantity of speech that does not create the same evils.”
491 US. at 799, n.7.5

4 This is particularly true because the Statute applies to all medi-
cal facilities, while the instances that led to legislative concern
appear to have been protests at abortion facilities.

5 The Court in Ward, indeed, explicitly contrasted the impact of
the regulation in that case with the impact of a ban on handbilling,

12

Similarly, in City Council of Los Angeles v. Taxpayers
for Vincent, 466 U.S. 789 (1984), the government in-
terest served by the challenged restriction was elimination
of visual clutter. By banning signs attached to utility
poles, “the City did no more than eliminate the exact
source of the evil it sought to remedy.” 466 U.S. at
808. In explaining this conclusion, the Court contrasted
such an “intrinsic” connection between a governmental
interest and a mode of communication with a contingent
connection, making clear that the former but not the
latter meets the narrow tailoring aspect of the time, place
and manner standard:

It is true that the esthetic interest in preventing
the kind of litter that may result from the distribu-
tion of leaflets on the public streets and sidewalks
cannot support a prophylactic prohibition against
the citizens’ exercise of that method of expressing his

views. . . . Schneider v. State, 308 U.S. 147
(1939) ... The rationale of Schneider is inapposite
in the context of the instant case . . . [T]here is no

constitutional impediment to “the punishment of
those who actually throw paper on the streets. . . .”
With respect to signs posted by appellees, however,
it is the tangible medium of expressing the message
that has the adverse impact on the appearance of the
landscape. In Schneider, an anti-littering statute
could have addressed the substantive evil without
prohibiting expressive activity . . . . Here, the sub-
stantive evil—visual blight—is not merely a possible
by-product of the activity but is created by the

noting that the latter “of course, would suppress a great quantity
of speech that does not cause the evils that it seeks to eliminate ... .
[and] would be substantially broader than necessary to achieve the
interests justifying it.” Jd. As noted above and discussed further
below, the Statute in this case amounts as a practical matter to a
ban on handbilling near a medical facility.

13

medium of expression itself. In contrast to Schneider,
therefore, the application of ordinance in this case
responds precisely to the substantive problem which
legitimately concerns the City. [466 U.S. at 808-810,
emphasis supplied. ]®

Here, in contrast, there is nothing intrinsically obstructive
in the leafletting, handbilling, sign display, and oral pro-
test modes of communication at less than eight feet from
the intended addressee; only when the speaker also en-
gages in physically obstructive conduct are the two
conjoined.

(2) Where a speech activity on a public forum and the
non-speech “evil” the Government “seeks to eliminate” are
only contingently connected, the Court has recognized that
the regulation is valid only where it is confined to prohibit-
ing speech that is in fact conjoined with that evil.

6 Heffron v. International Society for Krishna Consciousness, 452
U.S. 640 (1981)—which upheld a prohibition on “roving solicita-
tion” and the related distribution of literature at a state fair
based on the special concern with the “orderly movement of the
crowd” at the fairgrounds—is in this line. 452 U.S. at 451. The
Heffron Court proceeded on the theory that roving solicitation as
a class of speech activity has an inherent adverse effect on the
state’s “important concern with managing the flow of the crowd.”
Id. at 452.

It is worthy of note in this regard that Heffron involved speech
at a state fairgrounds, not on a public forum, and arose before this
Court’s tripartite forum analysis had fully chrystallized. It is far
from clear that a similar regulation of public streets would be valid.
See, United States v. Kokinda, 497 U.S. 720 (1990) (approving limi-
tation on solicitation on sidewalk abutting post office only after
concluded that the particular sidewalk was a non-public forum, and
that a “reasonableness” standard rather than “narrowly tailored”
standard applied.)

And, be that as it may, there is no basis for the proposition that
public forum leafletting, handbilling, sign displays and oral protests
are, as classes of speech activity, inherently or intrinsively obstruc-
tive activities and subject to government restriction as <1ch.

14

Thus, for example, in Grayned v. City of Rockford,
408 U.S. 104 (1972), a city concerned with preventing
school disturbances passed an ordinance providing that:

“[N]o person, while on public or private grounds
adjacent to any building in which a school or any
class thereof is in session, shall willfully make or
assist in the making of any noise or diversion which
disturbs or tends to disturb the peace or good order
of such school session or class thereof. . . .” Code
of Ordinances, c. 28, 19.2(a) [408 U.S. at 108.]

The Court in upholding that ordinance stressed that the
required “disturbance” element was essential to the valid-
ity of the ordinance as a constitutionally acceptable time,
place and manner restriction:

Without interfering with normal school activities, day-
time picketing and handbilling on public grounds
near a school can effectively publicize those griev-
ances to pedestrians, school visitors, and delivery-
men, as well as to teachers, administrators, and
students, some picketing to that end will be quiet
and peaceful, and will in no way disturb the normal
functioning of the school. For example, it would be
highly unusual if the classic expressive gesture of the
solitary picket disrupts anything related to the school,
at least on a public sidewalk open to pedestrians. On
the other hand, schools could hardly tolerate boister-
ous demonstrators who drown out classroom con-
versation, make studying impossible, block entrances,
or incite children to leave the schoolhouse. . . . [408
U.S. at 119-120, footnotes omitted.]

The Grayned ordinance, consequently, was valid precisely
because it was limited to situations in which there was
actual disturbance of the educational process by reason of
the manner in which the protest was carried out, and
because it permitted peaceful expressive activity which was
not loud or raucous enough to cause such a disturbance:

15

Far from having an impermissibly broad prophylactic
ordinance, Rockford punishes only conduct which
disrupts or is about to disrupt normal school activi-
ties. That decision is made, as it should be, on an
individualized basis, given the particular fact situa-
tion. Peaceful picketing which does not interfere
with the ordinary functioning of the school is per-
mitted. And the ordinance gives no license to punish
anyone because of what he is saying. [408 U.S. at
120, footnotes omitted, emphasis added. ]
Similarly, in Boos v. Barry, 485 U.S. 312, 330-331
(1988), this Court concluded that a statute proscribing
assemblies near foreign embassies “did not reach a sub-
stantial amount of constitutionally protected conduct”
only after construing the statute so that it “does not pro-
hibit peaceful congregation . . . [but] is limited to group
posing a security threat.” 485 U.S. at 331.

In short, where, as here, speech activity can be carried
out in a way that does not compromise a neutral non-
speech governmental interest or in a way that does com-
promise the latter, the Court has approved a time, place
and manner restriction only where the regulation restricts
speech activity that in fact involves an actual intrusion
on the non-speech government interest—here, actual ob-
struction of access to medical facilities—and the regula-
tion does not restrict speech activity that does not in fact
involve an actual intrusion on the non-speech government
interest

The lesson of the foregoing for the instant case is this.
The Statute here is a general phophylactic regulation of
speech activity on a public forum that Colorado justifies
by the legitimate government interest in preventing willful
obstructions of access. But the Statute’s prohibitions apply
without limit or distinction to speech activity on that
forum that is not intrinsically conjoined with obstructive

16

conduct and that does not in fact involve any physical
obstruction of access. The Statute thus regulates expression
“in such manner that a substantial portion of the burden
on speech does not serve to advance the [regulatory] goals.”
Ward, 491 U.S. at 799 (emphasis added). That kind of
overbroad regulation is the very antithesis of the “narrow
tailoring” the First Amendment time, place and manner
standard requires.’

C. It is of the essence here that the weight of the Stat-
ute’s overbroad prohibitions is brought to bear on the
most basic and sensitive free speech rights.

(1) As this Court has long recognized, “leafletting and
commenting on matters of public concern are classic
forms of speech that lie at the heart of the First Amend-
ment... .” Scheneck, 519 U.S. at 377. Indeed, distribu-
tion of literature in the public streets is at the core of the

7 Our demonstration in text that the Statute does not meet the
“narrow tailoring” requirement is sufficient to require its invali-
dation on constitutional grounds without more. But there is more
and we would be remiss if we did not briefly elaborate on an addi-
tional ground of invalidity we foreshadowed at the outset—the
statute’s regulation of ora! communication is infected with uncon-
stituitonal content discrimination. The Satute singles out from
the universe of discourse “oral protest, education or counseling”
and burdens only public forum communication of an oral protest/
education/counseling message. And the Statute does so in the face
of this Court’s admonition that

above 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 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 contro-
versial views. . . . Selective exclusions from a public forum
may not be based on content alone, and may not be justified
by reference to content alone. [Police Department v. Mosley,
408 U.S. 92, 95-96 (1972).]

Plainly then this aspect of the Statute can not stand.

17

constitutional guarantees of both freedom of speech, ¢.g.,
Jamison v. Texas, 318 U.S. 413, 416 (1943), and free-
dom of the press, e.g., Lovell v. City of Griffin, 303 US.
444, 452 (1938). And the protection that has been ac-
corded this form of expression stems precisely from the
recognition that “pamphlets have proved most effective
instruments in the dissemination of opinion.” Schneider
v. State, 308 U.S. 147, 164 (1939). Thus, as the Court
said in Jamison:
[O]ne who is rightfully on a street which the state
has left open to the public carries with him there as
elsewhere the constitutional right to express his views
in an orderly fashion. This right extends to the
communication of ideas by handbills and literature as
well as by the spoken word. [318 U.S. at 416.]

All this being true, from its seminal opinion in Lovell,
supra—in which the Court struck down a municipal ordi-
nance under which a Jehovah’s Witness had been prose-
cuted for distributing religious tracts without permission
from the city authorities—the Court has accorded con-
stitutional protection to the activities of persons who were
prosecuted or threatened with prosecution by local au-
thorities for distributing handbills or leaflets addressing
labor disputes, Hague v. C.1.0., 307 U.S. 496 (1939);
Schneider, 308 U.S. at 155-57, political and social con-
cerns, Schneider, 308 U.S. at 154-55; Schenck, supra, and
religious causes, Lovell, supra; Schneider, 308 U.S. at
157-59; Jamison, supra; Lee v. International Society for
Krishna Consciousness, Inc., 505 U.S. 830 (1992) (per
curiam). See also, e.g., DeBartolo Corp v. Florida Gulf
Coast Trades Council, 485 U.S. 568 (1988) (construing
National Labor Relations Act to allow certain handbill-
ing actiivty in order to avoid serious constitutional issue
under First Amendment).

18

In so doing the Court has made it plain that communi-
cation on the streets is protected when it persuades to ac-
tion as well as when it simply provides information or
abstract thoughts. The First Amendment extends

to more than abstract discussion, unrelated to action.
. .. “Free trade in ideas” means free trade in the op-
portunity to persuade to action, not merely to describe
facts. [Thomas v. Collins, 323 516, 537 (1945.)]

And, persuasive speech at the site at which a responsive
action is requested, rather than on a remote unconnected
street corner, comes within this constitutional protection.
See Thornhill v. Alabama, 310 U.S. 88, 91-92, 105-106
(statute forbidding protestors from going “near . . . the
. .. place of business of any persons . . . for the purpose of
. . . inducing other persons not to trade with . . . such per-
sons” as “limited or restricted in its application to such ac-
tion as takes place at the scene of the labor dispute” is un-
constitutional); NAACP v. Claiborne Hardware, 458 U.S.
886, 903, 909-910 (1982).

In sum, the right to distribute handbills, pamphlets,
leaflets, or other literature in public places at issue here
is a core First Amendment activity that is an integral
component of the concepts of freedom of speech and free-
dom of the press the authors of that Amendment sought
to protect. Like other aspects of these freedoms, the con-
stitutional protection afforded the right to express one’s
views through the public dissemination of literature “re-
flects the belief of the framers of the Constitution that
exercise of the[se] rights lies at the foundation of free
government by free men.” Schneider, 308 U.S. at 161.

(2) It follows from the foregoing that overbroad re-
strictions on public forum speech activity cut directly, and
deeply, against the First Amendment grain.

19

Such restrictions, first of all, silence protected free speech
at the Amendment’s core and do so without justification in
a legitimate government non-speech interest.

Moreover, as this Court has emphasized:

“A like threat [to licensing discretion] is inherent
in a penal statute, like that in question here, which
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 cir-
cumstances constitute an exercise of freedom of speech
or of the press. The existence of such a statute, which
readily lends itself to harsh and discriminatory en-
forcement by local prosecuting officials, against par-
ticular groups deemed to merit their displeasure, re-
sults in a continuous pervasive restraint on all freedom
of discussion that might reasonably be regarded as
within its purview.” [Taxpayers For Vincent, 466
U.S. at 798 n.16 quoting Thornhill, 310 U.S. at
97-98.]

By the same token such overbroad restrictions provide
a ready means to legislate against the activities of particu-
lar groups that in ordinary circumstances and absent the
legislation constitute an exercise of free speech. The back-
ground made to the Statute here set out in the Colorado
Supreme Court’s opinions, for example, provide the strong-
est indication that this Statute is aimed at silencing the
message of anti-abortion speakers and not simply at pre-
venting physical obstructions and like improper conduct
by anti-abortion activists.

Invalidation of the overbroad restrictions on public
forum free speech activity here on First Amendment
grounds is thus called for both by the time, place and
manner narrow tailoring requirement and the free speech

principles expressed and safeguarded by that requirement.

20

D. The burden of our argument is that on a straight-
forward application of this Court’s jurisprudence govern-
ing statutory time, place and manner restrictions on
speech in a public forum, the Statute here is invalid on its
face. It has been suggested, nevertheless, that this Court’s
decisions in Schenck, supra, and Madsen v. Women's
Health Center, Inc., 512 U.S. 753 (1944)—somehow
validate the Statute. That is to profoundly misread
Schenck and Madsen.

Both cases concerned the validity of forward-looking
injunctive restrictions on the speech activity of persons
who had engaged, and were engaging, in speech activity
conjoined with physically obstructive conduct. In that
context, the Madsen Court explained that speech restric-
tions imposed by injunction require a “somewhat more
Stringent application of general First Amendment prin-
ciples” than speech restrictions imposed by statutes of gen-
eral application. Madsen, 512 U.S. at 764-765. (The in-
junctive restrictions are tested by asking “whether the chal-
lenged provisions of the injunction burden no more speech
than necessary to serve a significant government interest.”
Id. at 765. As we have seen, in the statutory context the
inquiry is whether the restriction “burden{s] substantially
more speech than is necessary to further the government’s
legitimate interests.” Ward, 491 U.S. at 799.

These are closely brigaded standards and their nuanced
differences hardly bespeak a carte blanche for general pro-
phylactive statutory restrictions on public forum free speech
activity . Any doubt on that score is resolved by the indis-
putable point that Madsen and Schenck did not raise—
and the Madsen and Schenck decisions do not address—
any questions concerning the validity of speech restrictions
—injunctive or statutory—that run against persons who
have not engaged, and are not engaging, in public forum

ee ee

21

leafletting, handbilling, sign display or oral protect activity
conjoined with any kind of physical obstructive or like
abusive conduct. Those cases in other words do not con-
sider the validity of public forum speech restrictions that
have no predicate in the speaker's past or present obstruc-
tive or like abusive conduct . And given the qualitative dif-
ference between such restrictions and restrictions so pred-
icated, Madsen and Schenck most certainly do not suggest
that a prophylactic statutory speech restriction of that kind
does, or should, pass muster under the basic time, place
and manner standard by which public forum statutory
speech restrictions are normally tested.

CONCLUSION

Thus we return to where we began—that the Statute
here judged under the basic time, place and manner stand-
ard is unconstitutional as we have shown.

JONATHAN P. HIATT
815 15th Street, N.W.
Washington, D.C. 20006

LAURENCE GOLD *

805 15th Street, N.W.
Washington, D.C. 20005
(202) 842-2600

* Counsel of Record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0279%3A12. Public record. Not legal advice.