Amicus Curiae Brief — Hill v. Michigan Attorney Grievance Commission

Supreme Court, U.S.

FILED

i | NOV 12 1999

©) | GERIOS OF THE OLERK

No. 98-1856

IN THE

Supreme Court of the United States

LEILA JEANNE HILL, et ai.,

Petitioners,

V.

THE STATE OF COLORADO, BILL

OWENS, GOVERNOR, et ai.,

Respondents.

On Writ of Certiorari to the

Colorado Supreme Court

BRIEF AMICUS CURIAE OF PEOPLE FOR THE

ETHICAL TREATMENT OF ANIMALS IN SUPPORT

OF PETITIONERS LEILA JEANNE HILL, ET AL.

David N. Ventker, Esq.

Huff, Poole & Mahoney, P.C.

4705 Columbus Street

Virginia Beach, VA 23462

Attorneys for Amicus Curiae

-

As PY

QUESTIONS PRESENTED

Colorado law makes it a crime to approach within eight

feet of any other person, on a public sidewalk, without that

person’s consent, for the purpose of engaging in expressive

activity toward that person — specifically, passing leaflets,

showing signs, or orally educating, counseling, or protesting—if

that person happens to be within 100 feet of the entrance to a

health-care facility. See Colo. Rev. Stat. § 18-9-122(3). The

consent requirement applies even if the person approached is

not seeking to enter the facility. See id. The general question

here is whether this Colorado criminal statute “abridges the

freedom of speech, or of the press” guaranteed by the First and

Fourteenth Amendments of the United States Constitution.

Specifically, this case presents the following questions:

1. Is § 18-9-122(3)’s consent requirement,

which vests in citizens absolute unfettered

discretion, enforceable by law, to restrict

speech by refusing to consent, an

unconstitutional prior restraint on speech?

Is § 18-9-122(3), which gives legally

enforceable consent to stifle speech to

anybody who happens to be within 100 feet

of a health-care facility entrance and which

imposes the consent restriction no matter

how deferential or nonthreatening the

speaker, narrowly tailored to advance the

statute’s ostensible purpose of protecting

access to health care facilities?

Is § 18-9-122(3), which requires speakers

to calculate eight feet and to guess, among

other things, whether moving one’s arm

toward a person to pass a leaflet constitutes

“approach[ing],” unconstitutionally vague?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ........cccccccccccccess i

ec c sce cceeesescces< Vv

cass cecescccecscscccese l

SUMMARY OF ARGUMENT ...................... 2

EERE GE eR ness ssccceescccescceces 5

I. COLORADO REVISED STATUTE § 18-9-122(3) IS

TARGETED AT SPEECH AND EXPRESSIVE

ACTIVITY IN PUBLIC FORA............... 5

Il. SECTION 18-9-122(3) OPERATES AS A PRIOR

RESTRAINT ON SPEECH THAT GIVES CITIZEN

CENSORS THE UNBRIDLED DISCRETION TO

RESTRICT SPEECH ON PUBLIC

ECs lieccheseececeséccccccce 7

A. Section 18-9-122(3) Vests Unbridled Discretion in

EEE ee 9

B. Section 18-9-122(3) Imposes no Time Limit for

EEE EE 11

C. Section 18-9-122(3) Lacks any Other Procedural

iv

Ill. SECTION 18-9-122(3) IS NOT NARROWLY

TAILORED BECAUSE IT TARGETS AND

ELIMINATES MUCH MORE THAN CONDUCT THAT

IMPEDES ACCESS TO COLORADO HEALTH

PAGTLITID . vc vccccccccccccccesessoscecesess 12

A. Section 18-9-122(3) Effectively Eliminates, Within

100 Feet of Colorado Health Care Facilities, All

Leafleting, A First Amendment Activity Which In

No Way Threatens Any Significant Government

BARRENS. cccccceccececeneeeeesceusece 14

B. Section 18-9-122(3) Suppresses Constitutionally

Protected Speech That Poses No Threat to the

Government’s Interest in Assuring Free Access to

Colorado Health Care Facilities ........... 17

IV. SECTION 18-9-122(3) IS UNCONSTITUTIONALLY

| Pe er ee ee ee 26

CRE onc dcecctceceseendntesedeeennauet 30

Vv

TABLE OF AUTHORITIES

Cases: Page(s)

Baggett v. Bullitt, 377 U.S. 360 (1964) ............... 26

Connally v. General Constr. Co.,

IE BB nice cniudgibedosdbeons 26

Evans v. Newton, 382 U.S. 296 (1966) .............. 4,8

Freedman v. Maryland, 380 U.S. 51 (1965) ........... 12

Frisby v. Schultz, 487 U.S. 474 (1988) ............... 13

FW/PBS, Inc. v. City of Dallas, 493 U.S. 215

PE Ss + cabs cde cpbap ide eendevadeccvocies 9,10, 11

Grayned v. City of Rockford, 408 U.S. 104 (1972) 26, 27, 29

Hague v. CIO, 307 U.S. 496 (1939) 0.00... cece ee eee 7

Hill v. Thomas, 973 P.2d 1246 (Colo. 1999)

NE he RE 1 RD 3, 6, 23, 24, 25

Houston v. Hill, 482 U.S. 451 (1987) ............. 18, 19

Hynes v. Mayor of Oradell, 425 U.S. 610 (1976) ....... 26

International Soc'y for Krishna Consciousness, Inc.

EGR, Fee Cs GH COND Fo cc cdcccccccccccs 15,17

vi

Kolender v. Lawson, 461 U.S. 352 (1983) ............. 26

Kovacs v. Cooper, 336 U.S. 77 (1948) ..........+. 16, 20

Lovell v. City of Griffin, 303 U.S. 444 (1938) ........ 6, 14

Madsen v. Women’s Health Ctr., Inc.,

SER UD, TED GISS co wccccccccccccesecses 18, 23, 24

Members of City Council of Los Angeles v. Taxpayers

for Vincent, 466 U.S. 789 (1984) ... 6... cee eee 7

Northeast Women's Ctr. v. McGonagle,

868 F.2d 1342, 1348 (1989)... 2... cece eee 3

Papachristou v. Jacksonville, 405 U.S. 156 (1972) ...... 27

Planned Parenthood v. Casey, 505 U.S. 833 (1992) ...... 3

Reno v. American Civil Liberties Union,

S34 ULB. GOO CHGS) «cc ccccccescccccccecess 4, 8, 11

Riley v. National Fed'n of the Blind, Inc.,

SU, HRD od catuecenseccesenetnsen 11, 26

Sabelko v. City of Phoenix, 120 F.3d 161

CF Cle. 1GDF) oo cccesccccccescccccceseccess 19, 20

Schenck v. Pro-Choice Network, Inc.,

519 U.S. 357 (1997) ........... 6, 7, 13, 15, 16, 23, 27

vii

Schneider v. New Jersey, 308 U.S. 147 (1939) ...... 14, 15

Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969) 10

Smith v. California, 361 U.S. 147 (1959) ............. 30

Smith v. Goguen, 415 U.S. 566 (1974) ............... 27

Southeastern Promotions, Ltd. v. Conrad,

ep ne edn bbs cdc weheceeec 9

Terminiello v. Chicago, 337 U.S. 1 (1949) ............. 4

Thornhill v. Alabama, 310 U.S. 88 (1940) ............ 25

United States v. Grace, 461 U.S. 171 (1983)......... 6, 25

United States v. Kokinda, 497 U.S. 720 (1990) ......... 17

Village of Hoffman Estates v. Flipside,

ER a ee 26

Ward v. Rock Against Racism, 491 U.S. 781 (1989) ..... 13

Statutes:

Colo. Rev. Stat. § 18-9-122(1) (1993) .............. 4,10

Colo. Rev. Stat. § 18-9-122(3) (1993) ............ passim.

Vili

Colo. Rev. Stat. § 18-9-122(4) (1993) ... 2.6... cece eee

Constitutional Provisions:

UB. Comet. Aamdt. Eo... ccscccsccvcccccccccvcsccess

U.S. Const. Amdt. XIV ....... ccc eevee cccccceenes

Other Materials:

American Heritage Dictionary 312

(2d College ed. 1991)... ... ccc eec cece eee eeenee

INTEREST OF AMICUS’

People for the Ethical Treatment of Animals, Inc. (“PETA”

or “Amicus”), is a nonprofit organization dedicated to

establishing and protecting the rights of al! animals. Its basic

tenet is that animals are not ours to eat, wear, experiment on, or

use for entertainment. PETA educates policy-makers and the

public about animal abuse and promotes an understanding of

the right of all animals to be treated with respect.

PETA pursues its goals in part by bringing to public

attention practices that it finds objectionable and that, it

believes, the public would find similarly objectionable if the

public were fully aware of them. One of the principal means of

making the public aware of such practices is by communicating

with the public. Such communication is achieved by speech in

its various forms, be it leafleting, showing signs, or objecting

orally. More typically, and most effectively, such

communication is achieved simply by talking to people, quietly

and at length, about the moral or ethical issue raised by the

practice in question.

The locus of PETA’s efforts to communicate is often where

the practices to which it objects are conducted. One of those

practices, experimentation on animals in the name of medical

science, frequently is conducted inside health care facilities as

“Counsel of Record for the parties in this case have

consented to filing this brief. This brief was authored in part by John

Tuskey, Laura B. Hernandez, and Shannon Demos Woodruff,

attorneys for the American Center for Law and Justice (ACLJ).

Other attorneys employed by the ACLJ represent petitioners in this

case. Amicus PETA represents that no monetary contribution to the

preparation of this brief was received from any person or entity other

than amicus curiae.

2

defined in Colo. Rev. Stat. § 18-9-122(4). The criminal

prohibition against expressive activity within 100 feet ofhealth-

care facilities if such activity is conducted on a public sidewalk

within eight feet of another person effectively prohibits the

most effective, the only truly lasting way, of communicating --

the face-to-face, person-to-person, mutual exploration of an

often complex and subtle moral and ethical issue.

The Colorado law thus substantially curtails PETA's ability

to exercise its right of speech as to one of the four principal

areas of its concern.

PETA emphasizes that it takes no view whatever on the

issue of abortion. Some members and supporters of PETA

support broad freedom of choice for women who seek abortion,

and some do not. The interests of PETA in this case relate

solely to the potential adverse impact on PETA of the Colorado

law.

SUMMARY OF ARGUMENT

Colorado Revised Statute § 18-9-122(3) makes it a crime

for any person located on a public sidewalk within 100 feet of

a “health-care facility"! to "knowingly approach" any other

person without that person’s consent "for the purpose of passing

a leaflet, or handbill to, displaying a sign to, or engaging in oral

protest, education, or counseling" with that other person. In

other words, Colorado has made it a crime to approach a person

"Health care facility’ means any entity that is licensed,

certified, or otherwise permitted by law to administer medical

treatment” in Colorado. Colo. Rev. Stat. § 18-9-122(4) (1993).

3

without his consent to engage in quintessential speech - for

example, to give information about animal testing or to hand a

person a leaflet advocating or opposing a proposed referendum

issue — in a traditional public forum.

The Colorado courts found no constitutional infirmity in §

18-9-122(3) despite the First and Fourteenth Amendments of

the United States Constitution, which prohibit states from

“mak[ing] [any] law abridging the freedom of speech or of the

press." One would think that the ability to at least attempt to

communicate with a person reasonably in a traditional public

forum falls within the freedom of speech. But the Colorado

Supreme Court rationalized Colorado’s extraordinary speech

restriction by finding that the right to free speech is merely one

right to be balanced against other rights. In essence, the

Colorado Supreme Court decided that § 18-9-122(3) survives

constitutional scrutiny because, on balance, it is more important

to allow persons to walk into health-care facilities unbothered

by speakers they care not to deal with than it is for persons near

health-care facilities to be able to approach others to

communicate in a public forum. See Hill v. Thomas, 973 P.2d

1246, 1259 (Colo. 1999),

In its opinion, the court noted that "the same constitution

that protects the . . . right to free speech . . . also protects

the . . . right to abortion services... ."_ Jd. at 1253 (quoting

Northeast Women’s Ctr. v. McGonagle, 868 F.2d 1342, 1348

(1989)). The court seems to have extrapolated from the right to

abortion a more general right to privacy that protects the right

to receive other medical services. But even granting the right

to abortion, and assuming the more general right to health care,

the court transmogrified the right to receive health care free of

undue government interference, see Planned Parenthood v.

4

Casey, 505 U.S. 833, 846 (1992), into a right to receive such

care without being bothered by unwanted speech from private

citizens pointing out the consequences of that care - or for that

matter on any other subject - on sidewalks near health-care

facilities.

Upholding § 18-9-122(3) flies in the face of this Court’s

free speech jurisprudence. By making the right to approach

another person on a public sidewalk to speak depend on that

person’s consent, § 18-9-122(3) effectively deputizes citizens

to censor unwanted speech and thus operates as a prior restraint

on speech. And by providing no safeguards to ensure that the

citizen-censor does not withhold consent based on the

anticipated content or viewpoint of the speech, § 18-9-122(3)

encodes into Colorado law the properly-repudiated heckler’s

veto (or, more precisely here, heckler’s license). See Reno v.

American Civil Liberties Union, 521 U.S. 844, 880 (1997)

(citation omitted); see generally Terminiello v. Chicago, 337

U.S. 1 (1949); Evans v. Newton, 382 U.S. 296 (1966).

Moreover, even if the consent provision does not operate as

a prior restraint, § 18-9-122(3) restricts far more speech than is

necessary to protect Colorado’s asserted interest in protecting

"access to health care facilities." See Colo. Rev. Stat. § 18-9-

122(1) (1998). Far from being the narrowly tailored time,

place, and manner restriction the Colorado Supreme Court

found it to be, § 18-9-122(3) is a blunderbuss restriction of

quintessential speech in a public forum - including speech that

in no way threatens access to health care. Section 18-9-122(1)

is not aimed at threats or harassment; rather, the statute operates

no matter how calm, quiet, respectful, and non- ing a

speaker may be. Also, § 18-9-122(3) empowers anyone who

happens to be within 100 feet of a health-care facility entrance

5

- not just those seeking to enter the facility - to be a citizen

censor. And, as the Colorado Court of Appeals freely admitted,

§ 18-9-122(3) in essence prohibits ai/ unconsented leafleting

within 100 feet of a health-care facility. See Pet. App. at 56(a)-

57(a).

Section 18-9-122(3)’s vagueness exacerbates its lack of

narrow tailoring. For example, when does speech constitute

"protest," "education," or "counseling"? And, short of an

express "You may come talk to me," or a "Yes" to a request to

approach, what constitutes "consent"? Not knowing how to

answer these questions, the speaker’s only recourse if he or she

wants to be sure to avoid criminal sanctions is self-censorship.

The Colorado courts’ and legislature’ s tone-deafness to First

Amendment concerns was exemplified when the trial court

characterized the speech restricted by § 18-9-122(3) - every

day First Amendment activities such as leafleting - as "the

offensive and disturbing conduct taking place outside health-

care facilities." Pet. App. at 33a. Despite the trial judge’s

belief, the First Amendment does not allow states to treat non-

threatening and non-harassing speech as “offensive and

disturbing conduct" subject to criminal sanctions simply

because the targeted listener does not want to hear the speech.

The Colorado Supreme Court’s decision upholding § 18-9-

122(3) violates the First Amendment and must be reversed.

ARGUMENT

I. COLORADO REVISED STATUTE § 18-9-122(3) IS

TARGETED AT SPEECH AND EXPRESSIVE

ACTIVITY IN PUBLIC FORA.

6

Despite the Colorado Supreme Court’s intimations

otherwise, § 18-9-122(3) is aimed like a laser beam at speech

and other expressive activity in public fora. Section 18-9-

122(3) restricts 1) "passing a leaflet or handbill"; 2) "displaying

a sign"; and 3) “engaging in oral protest, education, or

counseling." This Court repeatedly has recognized that the First

Amendment protects all these activities. See, e.g., Schenck v.

Pro-Choice Network, Inc., 519 U.S. 357, 377 (1997) (leafleting

and commenting on matters of public concern); United States

v. Grace, 461 U.S. 171, 176-77 (1983); Lovell v. City of Griffin,

303 U.S. 444, 452 (1938).

That § 18-9-122(3) expressly prohibits "approaching"

another person does not change this. This facile distinction,

suggested by the Colorado Supreme Court, 973 P.2d at 1257, is

too clever by half. Section 18-9-122(3) does not prohibit

approaching gua approaching. Instead, § 18-9-122(3) prohibits

approaching another person only "for the purpose of" engaging

in the listed expressive activities. A person within 100 feet of

a health-care facility who approaches within eight feet of

another to, say, orally lobby that person violates § 18-9-122(3);

a person who approaches that same other person for any reason

other than engaging in the listed expressive activity does not

violate § 18-9-122(3).

As the State and the trial court both conceded, the public

streets and sidewalks to which § 18-9-122(3) applies are

"quintessential" public fora. See, e.g., Pet. App. at 32(a); JA at

277. This Court’s precedent mandates these concessions. As

7

this Court stated in Hague v. CJO, 307 U.S. 496, 515 (1939)

(plurality opinion):

[wherever the title of streets and parks may rest, they

have immemorially been held in trust for the use of the

public and, time out of mind, have been used for

purposes of assembly, communicating thoughts between

citizens, and discussing public questions. Such use of

the streets and public places has, from ancient times,

been part of the privileges, immunities, rights, and

liberties of citizens.

Thus, "[o}]ne who is rightfully on a street open to the public

‘carries with him there as elsewhere his constitutional right to

express his views in an orderly fashion.’"" Members of City

Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789,

810 (1984) (citations omitted); see also 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"). Section 18-9-122(3) unconstitutionally restricts the

right to "express [one’s] views in an orderly fashion" on public

sidewalks near health-care facilities.

Il. SECTION 18-9-122(3) OPERATES AS A PRIOR

RESTRAINT ON SPEECH THAT GIVES

CITIZEN CENSORS THE UNBRIDLED

DISCRETION TO RESTRICT SPEECH ON

PUBLIC SIDEWALKS.

Section 18-9-122(3), by empowering all persons within 100

feet of health-care facilities to refuse consent to speakers’

attempts to communicate with them, operates as a prior restraint

8

on speech. For example, the right to even attempt to hand a

person a leaflet depends on that person’s consent; if the person

does not consent, the leafleter must either halt his efforts or face

criminal prosecution. And criminal prosecution lies not on any

harm or potential harm the leaflet might cause (for example, the

leaflet’s threatening nature); it lies simply because the leafleter

has dared to attempt to leaflet without obtaining consent. This

is the hallmark of a classic prior restraint.

Section 18-19-122(3) throttles expressive activity before it

occurs. The statute makes it a crime to "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 within a radius of one hundred feet from any

entrance door to a health-care facility." Colo. Rev. Stat. § 18-

19-122(3) (1998) (emphasis added). The Colorado legislature

has placed the state’s full police power behind the individual,

unchecked decisions of private citizen censors. The mere fact

that these censors are private citizens does not place this statute

beyond constitutional scrutiny. As this Court has held, "when

private individuals or groups are endowed by the State with

powers or functions governmental in nature, they become

agencies or instrumentalities of the State and subject to its

constitutional limitations." Evans v. Newton, 382 U.S. 296, 299

(1966); cf Reno v. American Civil Liberties Union, 521 U.S.

844, 880 (1997).

9

Section 18-19-122(3) does exactly what Evans forbids: it

empowers private individuals, backed by the force of law, to

censor protected expressive activity in a manner that would be

forbidden to government officials. Rather than just being able

to walk away from unwanted speech, these citizen censors have

the authority to criminalize the mere attempt to engage in

protected expressive activity within eight feet of them.

"While ‘[p}rior restraints are not unconstitutional per se . .

. [any system of prior restraint . . . comes to this Court bearing

a heavy presumption against its constitutional validity.’"

FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 225 (1990)

(omissions in original) (citation omitted). Prior restraints bear

this heavy burden because of a "theory deeply etched in our

law: a free society prefers to punish the few who abuse rights

of speech after they break the law than to throttle them and all

others beforehand." Southeastern Promotions, Ltd. v. Conrad,

420 U.S. 546, 559 (1975) (emphasis in original).

The prior restraint created by § 18-9-122(3) violates the

First Amendment in three ways. First, § 18-9-122(3) vests

unbridled discretion in the citizen censors it empowers.

Second, § 18-9-122(3) does not limit the time in which citizen

censors must act to deny consent. Finally, § 18-9-122(3) does

not contain the procedural safeguards required for a licensing

A. Section 18-9-122(3) Vests Unbridled Discretion in

Citizen Censors.

10

"[A] law subjecting the exercise of First Amendment

freedoms to the prior restraint of a license, without narrow,

objective, and definite standards to guide its licensing authority,

is unconstitutional." Shuttlesworth v. City of Birmingham, 394

U.S. 147, 150-51 (1969). Section 18-9-122(3) provides no

standards to guide the citizen censors’ decisions.

As this Court has noted, unbridled discretion is dangerous

because exercising this discretion can result in censorship.

FW/PBS, Inc., 493 U.S. at 225-26. And in the case of § 18-9-

122(3), the censorship is likely to be content-based and

viewpoint-based. The Colorado legislature tacitly

acknowledged this likelihood when it stated that a person's

"right to protest or counsel against certain medical procedures

must be balanced against another person’s right to obtain

medical counseling and treatment in an unobstructed manner.

_.." Colo. Rev. Stat. § 18-9-122(1) (1993) (emphasis added).

Evidently, the Colorado legislature anticipated that the

discretion it was granting to the citizen censors created by § 18-

9-122(3) would be used to silence persons protesting against

certain medical procedures. Such censorship is both content-

based (speech concerning certain medical procedures) and

viewpoint-based (speech against certain medical procedures).

Section 18-9-122(3) places the State’s full police power

behind the citizen censors’ decisions and provides no guidelines

by which to make those decisions. Consent to approach can be

refused for any reason. Placing the power to criminalize

speech in the hands of people who happen to be within 100 feet

of a health-care facility creates a variation of the heckler’s veto:

a heckler’s license. In the past, this Court has refused to

interpret a federal statute so narrowly that the construction

would "confer broad powers of censorship, in the form of a

‘heckler’s veto,” upon any opponent of indecent speech. .. ."

Reno v. American Civil Liberties Union, 521 U.S. 844, 880

(1997) (citation omitted). If government cannot confer a

heckler’s veto on those objecting to indecent speech, certainly

Colorado cannot confer a heckler’s license on those objecting

to normal conversation and expressive activity on a public

sidewalk in front of a health-care facility.

B. Section 18-9-122(3) Imposes no Time Limit

for Consenting.

Another evil a system of prior restraint must avoid is a lack

of a limit on the "time within which the decision maker must

issue the license." FW/PBS, Inc., 493 U.S. at 226. Section 18-

9-122(3) possesses this evil as well. The statuie imposes no

time limit on when a citizen censor must decide. Thus,

protected expressive activity is prohibited indefinitely.

In Riley v. National Fed'n of the Blind, Inc., 487 U.S. 781

(1988), this Court stated that the delay caused by a licensing

scheme regarding professional fundraisers "compel{led] the

speaker's silence." Riley, 487 U.S. at 802. Under those

circumstances, the "licensing provision [could not] stand." /d.

The same is true of § 18-9-122(3). It cannot stand because it

allows citizen censors to compel silence indefinitely.

12

C. Section 18-9-122(3) Lacks any Other Procedural

Safeguards.

In Freedman v. Maryland, 380 U.S. 51 (1965), this Court

held that a film licensing scheme was invalid because it did not

contain adequate procedural safeguards. Jd. at 60. The Court

identified three necessary safeguards: first, the censor must

prove that the expression is unprotected; second, before judicial

review, restraint must be limited to maintaining the status quo;

and third, any procedure must include a "prompt final judicial

decision, to minimize the deterrent effect of an interim and

possibly erroneous denial of a license." Jd. at 58-59.

Section 18-9-122(3) contains none of these procedural

safeguards. To the contrary, the citizen censors bear no burden

of showing that the speech they wish to prohibit is unprotected,

and the deterrent effect of the licensing scheme is not

minimized by prompt final judicial decision. The citizen

censors possess unbridled discretion to censor protected

expressive activity absent any time limit or procedural

safeguard. Section 18-9-122(3) is thus an unconstitutional prior

restraint on First Amendment protected activity.

Ill. SECTION 18-9-122(3) IS NOT NARROWLY

TAILORED BECAUSE IT TARGETS AND

ELIMINATES MUCH MORE THAN

CONDUCT THAT IMPEDES ACCESS TO

COLORADO HEALTH CARE FACILITIES.

Even if § 18-9-122(3) is not a prior restraint of speech, the

statute still unconstitutionally restricts far more speech than is

13

necessary to serve Colorado’s ostensible goal of ensuring access

to health care facilities. Section 18-9-122(3) is not a narrowly

tailored time, place, and manner restriction; rather, it is a

blunderbuss restriction that effectively prevents both quiet

communication at a normal conversational distance and

leafleting, both “classic forms of speech that lie at the heart of

the First Amendment.” Schenck v. Pro-Choice Network, Inc.,

519 U.S. 357, 377 (1997). Nothing about these two

constitutionally-protected activities poses an inherent threat to

the government’s goal of ensuring unimpeded access to

Colorado medical facilities.

A generally applicable ordinance imposing time, place and

manner restrictions passes scrutiny under the First Amendment

only when it is “justified without reference to the content of the

regulated speech, . . . [is] narrowly tailored to serve a significant

government interest, and . . . leave[s] open ample alternative

channels for communication of the information.” Ward v. Rock

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

requires that the means chosen do not “burden substantially

more speech than is necessary to further the government’s

legitimate interests.” Jd. at 799. A law is narrowly tailored

only “if it targets and eliminates no more than the exact source

of the ‘evil’ it seeks to remedy.” Frisby v. Schultz, 487 U.S.

474, 485 (1988) (citation omitted).

Even assuming the time, place, and manner standard is the

proper standard to apply, § 18-9-122(3) fails that standard.

Section 1 8-9-122(3) imposes criminal liability on anyone within

100 feet of the entrance door to a health-care facility who,

without first obtaining permission to do so, approaches within

14

eight feet of any other person (not just those trying to enter the

facility), to pass a leaflet to, display a sign to, or direct oral

protest, counseling or education to that other person. Not only

does § 18-9-122(3) eliminate much more than “the exact source

of evil it seeks to remedy,” the statute actually has very little to

do with the exact source of evil the Colorado legislature

targeted. Section 18-9-122(3) cannot even be called “loosely

tailored.” It is akin to performing surgery with a chainsaw.

A. Section 18-9-122(3) Effectively Eliminates,

Within 100 Feet of Colorado Health-Care

Facilities, All Leafleting, A First Amendment

Activity Which In No Way Threatens Any

Significant Government Interest.

The right to distribute leaflets and pamphlets promoting

opinions on public issues occupies a cherished position in the

history of First Amendment jurisprudence:

The liberty of the press . . . necessarily embraces pamphlets

and leaflets. These indeed have been historic weapons in

the defense of liberty, as the pamphlets of Thomas Paine

and others in our own history abundantly attest. The press

in its historic connotation comprehends every sort of

publication which affords a vehicle of information and

opinion. What we have had recent occasion to say with

respect to the vital importance of protecting this essential

liberty from every sort of infringement need not be repeated

_.. Liberty of circulating is as essential to that freedom as

liberty of publishing.

Lovell v. City of Griffin, 303 U.S. 444, 452 (1938) (citations

omitted); see also Schneider v. New Jersey, 308 U.S. 147, 160

15

(1939). In both Schneider and Lovell, this Court struck down

ordinances prohibiting the distribution of pamphlets and

circulars without a license. In Schneider, this Court rejected

the argument that those who wished to distribute handbills

could do so in places other than streets and alleys. “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.” 308 U.S. at 163.

In International Soc'y for Krishna Consciousness, Inc. v.

Lee, 505 U.S. 672 (1992), this Court struck down a ban on

handbilling even though the ban applied in a nonpublic forum.

Applying the reasonableness standard of review operative

where speech restrictions occur in nonpublic fora, this Court

held a ban on leafleting “unreasonable.” “It is difficult to point

to any problems intrinsic to the act of leafleting that would

make it naturally incompatible with the purposes of [the

nonpublic forum].” /d. at 690 (O’Connor, J., concurring).

In Schenck v. Pro-Choice Network, Inc., 519 U.S. 357

(1997), this Court struck down the portion of an injunction that

established floating buffer zones near certain abortion

businesses, in part because the injunction prohibited peaceful

leafleting. /d. at 361. The floating zones were imposed against

anti-abortion activists who allegedly obstructed public passages,

engaged in harassing conduct, and otherwise persistently

disregarded New York criminal laws. /d. at 362-66.

The Court explained the operation of the floating zones in

Schenck as follows: “The floating buffer zones prevent

16

Defendants -- except for two sidewalk counselors, while they

are tolerated by the targeted individual — from communicating

a message from a normal conversational distance or handing

leaflets to people entering or leaving the clinics who are

walking on the public sidewalks.” Jd. at 377. Observing that

these floating buffer zones constituted a “broad prohibition,

both because of the type of speech restricted and the nature of

the location,” the Court held the floating buffer zones

unconstitutional. Jd. at 377. The restrictions operated “in

public areas” where speech “is at its most protected on public

sidewalks, a prototypical example of a traditional public

forum.” /d. (citation omitted).

The eight foot buffer zone imposed by § 18-9-122(3)

effectively prevents leafleting and handbilling absent consent.

The Colorado Court of Appeals admitted as much when it

stated that “with reference to the fact that leafleting may not

take place within 100 feet of the entrances to the medical clinic

unless consent is given, we view the significant government

interest here sufficient to warrant the requirements of the

statute.” Pet. App. 56a. Once the buffer is invoked, it would be

nearly impossible to distribute any leaflet, short of tossing the

leaflet to the intended recipient and hoping she catches it.

Attempts to pass leaflets to two or more people walking

together could be thwarted by one person’s refusal to consent,

even if the others with him might otherwise at least glance at

the material. The First Amendment does not guarantee willing

listeners but it does protect the opportunity to win their

attention. See Kovacs v. Cooper, 336 U.S. 77, 87 (1948).

17

In this respect, § 18-9-122(3) is not narrowly tailored to

further the government's interest in hindering access to health

care or preventing threatening or harassing behavior toward

incoming patients. Leafleting is not inherently harassing or

threatening, and this Court already has rejected the notion that

peaceful leafleting is necessarily obstructive. United States v.

Kokinda, 497 U.S. 720, 734 (1990) (“One need not ponder the

contents of a leaflet or pamphlet in order mechanically to take

it out of someone’s hand.”). Moreover, § 18-9-122(3)

“protects” not just people seeking to enter a health-care facility,

but all people who happen to be 100 feet from the facility

entrance. And, unlike the individuals subject to the injunction

in Schenck, the leafleters, § 18-9-122(3) targets need not ever

have engaged in threatening or harassing conduct in the course

of their expressive activities. No legitimate government interest

is furthered in so constraining the First Amendment rights of

law-abiding citizens. If a ban on leafleting is unreasonable in

anonpublic forum such as an airport terminal, see Lee, 505 U.S.

at 690, it is indefensible in a public forum such as the sidewalks

outside health-care facilities.

B. Section 18-9-122(3) Suppresses Constitutionally

Protected Speech That Poses No Threat to the

Government’s Interest in Assuring Free Access

to Colorado Health Facilities.

Section 18-9-122(3) also is not narrowly tailored because

it curtails the speech of all persons within 100 feet of any

medical facility in the State of Colorado. It grants unfettered

license to all passersby — not just people seeking to enter health

care facilities — to censor others’ speech for any reason. In

18

prohibiting demonstrators from approaching within eight feet of

all other -persons, it effectively eliminates much normal

conversational speech and severely curtails protestors’ rights to

quietly pass on their message to others.

In Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753

(1994), this Court struck down a portion of an injunction

remarkably similar to § 18-9-122(3). The injunction in Madsen

ordered protesters to “refrain from physically approaching any

person seeking services of the clinic ‘unless such person

indicates a desire to communicate’ in an area within 300 feet of

the clinic.” Jd at 773. The Madsen provision, like the one here,

allowed the prospective counselee to control the prospective

counselor’s opportunity to engage in protected expression. This

Court held that the consent requirement alone invalidated the

provision: “[I]t 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 at 774. Unless such a

restriction is limited to speech that either is “independently

proscribable,” such as “‘fighting words’ or threats,” “or is so

infused with violence as to be indistinguishable from a threat of

physical harm,” such a “provision cannot stand.” Jd. In

Madsen, the Court reaffirmed “‘that in public debate our own

citizens must tolerate insulting, and even outrageous, speech in

order to provide adequate breathing space to the freedoms

protected by the First Amendment.”” /d. (citation omitted).

In Houston v. Hill, 482 U.S. 451 (1987), this Court

invalidated a municipal ordinance which made it “unlawful for

19

any person to assault, strike or in any manner oppose, molest,

abuse or interrupt any policeman in the execution of his duty, or

any person summoned to aid in making the arrest.” Jd. at 455.~

The majority held that the provision was overbroad. Noting

that state law had preempted the provisions dealing with

assaulting and striking, the Court found that “the enforceable

portion of the ordinance deals not with core criminal conduct,

but with speech.” Jd. at 460. The Court stated that the freedom

“verbally to oppose or challenge police action without thereby

risking arrest is one of the principal characteristics by which we

distinguish a free nation from a police state” and found that the

ordinance was “not narrowly tailored to prohibit only disorderly

conduct or fighting words.” /d. at 462-63. “[A]lthough we

appreciate the difficulties of drafting precise laws, we have

repeatedly invalidated laws that provide the police with

unfettered discretion to arrest individuals for words or conduct

that annoy or offend them.” Jd. at 465. This Court concluded:

“The Constitution does not allow such speech to be made a

crime.” Jd. at 462.

In Sabelko v. City of Phoenix, 120 F.3d 161 (9th Cir. 1997),

on remand from Sabelko v. City of Phoenix, 519 U.S. 1144

(1997) (mem.), the Court of Appeals for the Ninth Circuit

struck down an ordinance that is similar to § 18-9-122(3). The

ordinance in Sabelko imposed eight foot floating buffer zones

around all those who were within 100 feet “of an exterior wall

or entryway” of a “health-care facility.” The buffer zones only

became operative when “invoked.” Jd. In other words, within

100 feet of the facility, a speaker could approach within eight

feet of another for purposes of handing a leaflet, engaging in

oral advocacy, or displaying signs. The speaker was only

20

required to withdraw after the person so requested. Thus, under

the ordinance, the speaker at least had the opportunity to win

the person’s attention. See Kovacs v. Cooper, 336 U.S. at 87.

After this Court remanded the case to the Ninth Circuit for

reconsideration in light of Schenck, the Ninth Circuit held that

the ordinance was not narrowly tailored. Applying Schenck, the

Ninth Circuit determined:

The Phoenix ordinance suffers the same defects as the

injunction in Schenck. It contains a broad prohibition

on speech with which it is difficult to comply without

risking a violation of the ordinance. An individual

within the access area to a clinic can invoke the

eight-foot floating buffer zone, effectively preventing

handbilling and normal conversation. Demonstrators

who attempt communication with an individual must

constantly monitor themselves to ensure that they don’t

encroach upon that individuals’s or another individual’s

floating buffer zone. Further, the demonstrators are

faced with the problem of determining which people

within the access area have invoked the protection

offered by the buffer zone.

Sabelko, 120 F.3d at 165.

Section 18-9-122(3) does not target precisely proscribable

evils. The statute restricts all attempts to speak in a normal

conversational tone with any person in those public places

within the scope of the statute. The statute does not regulate

only contact between speakers and patients or employees of

medical facilities (though this still would be overbroad).

Instead, anyone who is walking down a public street, within 100

ed

21

feet of the entrance door to a medical facility, is given the

power to restrict whether anyone else may speak, leaflet, or

display signs.

Even worse, if a speaker seeks to approach two or more

people to communicate with them, any one of them can thwart

the attempt by withholding consent, even if his companions do

consent. Arguably, a person would not violate § 18-9-122(3) if

he approaches two or more people with the intent to

communicate with only one of those people (who consents) and

that person’s companions do not consent. In reality, however,

it is unlikely that a person seeking to communicate with one

member of a group will not be seeking to communicate with the

other members. Moreover, it will likely not be apparent that the

speaker is seeking to communicate with only the consenting

member. It very well may appear to a police officer enforcing

the statute that the speaker is violating the statute, wich could

well lead to the officer arresting the speaker. The speaker may

ultimately be found not guilty, but he will have been silenced.

To avoid this situation, the safe course for the speaker when

confronted with non-consent from other group members will be

to avoid the approach altogether -- in other words, self-

censorship. Thus, even when a person does not technically

violate § 18-9-122(3) by approaching a consenting listener who

is accompanied by non-consenting companions, § 18-9-122(3)’s

practical effect will be to allow the non-consenting companions

to prevent speech with the willing listener.

Like the injunction in Madsen, § 18-9-122(3) bars all

approaches to patients who withhold consent. Also, as in

Madsen, the statutory restriction is not limited to proscribable

22

speech. It restricts peaceful, nonthreatening leafleting, sign

displays, and “oral protest,” “education,” and “counseling.”

That the buffer zone in this case is eight feet rather than 300

feet as in Madsen is immaterial. It is impossible to engage in

the kind of quiet, personal counseling that Petitioners conduct

from a distance of eight feet. At a distance of eight feet,

Petitioners would likely have to shout to be heard above

ambient street noise, thereby dramatically reducing, if not

eliminating, the possibility that any incoming patient would

consent to speak with them.

Section 1 8-9-122(3) encroaches even further upon protected

First Amendment rights than did the ordinance invalidated in

Sabelko. At least under the Sabelko ordinance, a speaker could

approach an incoming patient and attempt to win her attention.

No such attempt is permitted under § 18-9-122(3). Speakers are

relegated to shouting at people from eight feet with only the

patently absurd hope that incoming patients will invite someone

shouting at them to draw nearer. As in Sabelko, demonstrators

cannot be expected to precisely and instantaneously calculate an

eight foot distance while moving. Further, the demonstrators

are faced with the problem of determining whom within the

access area has consented to speech and who has invoked the

protection offered by the buffer. The statute does not define

consent. Thus, the speaker is left to guess whether a silent nod

suffices or whether there must be a clear verbal invitation to

approach. Faced with the threat of criminal prosecution,

speakers will not want to risk the wrong guess. In sum, if the

ordinance in Sabelko could not survive reconsideration in light

of Schenck, § 18-9-122(3) should certainly fail.

23

Section 18-9-122(3) is also substantially broader than the

buffer zone struck down in Schenck, which was limited to

persons “entering or leaving the clinics,” 519 U.S. at 377, as

well as the “no approach” zone struck down in Madsen, which

was limited to “person[s] seeking services of the clinic,” or

patients. 512 U.S. 773. By contrast, § 18-9-122(3) applies to

all persons within one hundred feet of a healthcare facility.

Although the Colorado Supreme Court suggested that the

Statute was designed to protect the privacy rights of citizens

“entering and leaving Colorado health care facilities,” 973 P.2d

at 1247-48, the statute contains no such limitation. Section 18-

9-122(3) sweeps much wider and includes passersby who are

not even traveling to the facility.

In addition, as was true in Houston v. Hill, § 18-9-122(3)

effectively provides the police with unfettered discretion to

arrest demonstrators because they engaged in speech that

offended others. In the volatile context of demonstrations

outside abortion clinics (or some other health care facilities, for

example, a teaching and research hospital which animal rights

activists are picketing because of experiments on animals taking

place in the hospital), it is all too easy for demonstrators’ speech

to annoy or offend others. If a demonstrator misjudges eight

feet, or a person’s consent, § 18-9-122(3) provides police the

facile opportunity to arrest demonstrators on manufactured

a oe oe eanapaee of

In the Colorado Supreme Court’s view, Schenck was not

dispositive because “Schenck involved a judicially created

preliminary injunction drawn solely for the parties before the

24

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.” 973 P.2d

at 1254. It is true that this Court has applied different

standards of review to injunctions and ordinances. See Madsen,

512 U.S. at 765; but see id. at 778-779 (Stevens, J., concurring

in part and dissenting in part) (explaining why statutes, which

are aimed at all citizens, should be subjected to more stringent

scrutiny then injunctions, which are aimed only at lawbreakers

to remedy and prevent violations of law). But it is absurd to

suggest that Madsen permits the legislative branch to squash

more First Amendment rights than the judicial branch.

Whatever the distinction between the two standards of review,

nothing in this Court’s jurisprudence supports the Colorado

court’s view that proven lawbreakers have more constitutional

rights than law-abiding citizens.

Finally, the chilling effect § 18-9-122(3) had on Petitioners’

exercise of their First /.mendment rights demonstrates the

statute’s overbreadth. Before the statute was enacted,

Petitioners spoke against human abortion on public sidewalks

and ways within 100 feet of the entrances to abortion facilities.’

They advised women near abortion businesses about

alternatives to abortion. They spoke without fear of censorship’

Pet. App. 4, 112-14, 148-49, 151-53.

*Pet. App. 4, 112-14, 148-49, 151-53.

25

or prosecution.* When § 18-9-122(3) became law, Petitioners

stopped or altered their activities out of fear of prosecution.

Simpson completely discontinued his expressive activities

within 100 feet of abortion facility entrances.’ Hill and

Himmelmann changed their activities to avoid prosecution.°

These changes have made their efforts more risky, more

difficult, and less effective. They have found it impossible, at

times, to remain on the sidewalk, keep at least eight feet away

from others and continue to speak, display signs, or otherwise

protest or counsel.’

The floating buffer zones at issue here are not narrowly

tailored to achieve Colorado’s interest in “assuring a citizen’s

access to medical counseling and treatment at Colorado health

care facilities.” See 973 P.2d at 1250. The buffer zones do not

“aim specifically at evils within the allowable areas of State

control but, on the contrary, sweep[] within [their] ambit other

activities that in ordinary circumstances constitute an exercise

of freedom of speech or of the press.” Thornhill v. Alabama,

310 U.S. 88, 98 (1940). Such a broad ban as the one created by

§ 18-9-122(3) is not “necessary for the maintenance of peace

and tranquility on the public sidewalks surrounding the

building.” United States v. Grace, 461 U.S. 171, 182 (1983)

(emphasis added).

“Pet. App. 4, 112-14, 148-49, 151-53.

*Pet. App. 153.

“Pet. App. 114, 149.

"Pet. App. 113, 149, 153.

a TS ee ee

26

IV. SECTION 18-9-122(3) IS

UNCONSTITUTIONALLY VAGUE.

Section 18-9-122(3)’s vagueness exacerbates its over-

breadth. This Court repeatedly has struck down laws that are

phrased “in terms 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). See also Kolender v. Lawson, 461 U.S. 352, 357

(1983). While all laws must be reasonably clear, laws that

regulate or restrict free speech, must satisfy “a more stringent

vagueness test.” Village of Hoffman Estates v. Flipside, 455

U.S. 489, 499 (1982). See also Hynes v. Mayor of Oradell, 425

U.S. 610, 620 (1976) (“[t}]he general test of vagueness applies

with particular force in review of laws dealing with speech”).

“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).

On numerous occasions, this Court has delineated the

dangers presented by vague laws. “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 application.”

Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972). In

Grayned, this Court cautioned that “[uJncertain meanings

inevitably lead citizens to ‘steer far wider of the unlawful zone.

_. than if the boundaries of the forbidden areas were clearly

marked.” Jd. at 109 (quoting Baggett v. Bullitt, 377 U.S. 360,

372 (1964)). The Court held that “because we assume that man

is free to steer between lawful and unlawful conduct, we insist

? Ore

Se LINED NI LS PET

27

that laws give the person of ordinary intelligence a reasonable

Opportunity to know what is prohibited, so that he may act

accordingly.” Jd. at 108. See also Papachristou v.

Jacksonville, 405 U.S. 156 (1972) (holding vagrancy ordinance

unconstitutionally vague because it failed to give fair notice that

contemplated conduct was prohibited, and because it

encouraged “arbitrary and erratic arrests and convictions.”).

Where legislation fails to provide such minimal guidelines, it

creates “a standardless sweep [that] allows policemen,

prosecutors, and juries to pursue their personal predilections.”

Smith v. Goguen, 415 U.S. 566, 575 (1974).

In Schenck, 519 U.S. 357 (1997), this Court struck down a

portion of an injunction imposing a floating buffer zone, in part,

because its terms created substantial ambiguity and lack of

certainty about how to comply with the injunction and thus

created a substantial risk that more speech would be burdened

than the injunction prohibited. 519 U.S. at 359.

Section 18-9-122(3) is vague in its use of the terms

“knowingly approach,” “consent,” “protest,” “counseling,” and

“education.” That these words are used commonly in the

English language does not assist a person of ordinary

intelligence in discerning what the statute permits and what it

prohibits. For example, the statutory term “knowingly

approach” presents a would-be speaker with his or her first

dilemma. While the state court construction of “knowingly

approach” avoids inadvertent violations caused by a third party,

it does not answer the question of what constitutes the actus

reus requirement, “approaches.” The Colorado Supreme Court

held that a speaker could stand still and engage in a full range

28

of expressive activities. The question remains, however,

whether extending a hand to a passerby to give him a leaflet is

“approaching”? What if a speaker bends or leans toward a

person while keeping his feet in place?

Section 18-9-122(3) also prohibits approaching within eight

feet of a person for the purpose of protest, education, and

counseling. The words “education,” and “counseling” alone

include expression of almost every stripe imaginable. Any

expression that conveys information unknown to the recipient

is arguably “education.” How can a speaker be expected to

know in advance what information a person possesses?

Suppose, for example, that a speaker approaches within eight

feet of a person to inform him that the facility performs

laboratory experiments on animals. If the person is not aware

of that fact, will the speaker have engaged in “education” under

the statute? If the person was previously aware of the health

facility’s experiments, is the statute not violated? The term

“counseling” is similarly vague. Is “please, don’t experiment

on animals” counseling or a simple plea? Or, is it a protest?

Finally, it is unclear what constitutes “consent.” Does

“consent” mean “to be of the same mind or opinion,” American

Heritage Dictionary 312 (2d College ed. 1991), or does

“consent” mean a passive acquiescence? Jd There are an

infinite number of ambiguous utterances and non-verbal signs.

And what of those who do not respond to a request for

permission to approach? Is nonresponsiveness the legal

equivalent of permission or denial? What if a leafleter

approaches two people walking together and receives consent

from one but not the other? Whose response controls the

29

leafleter’s right te approach? It can even be unclear whether a

person’s nod is addressed to the speaker or to the person’s

companion. Given the minimal movement arguably necessary

to “approach,” coupled with the ambiguity surrounding what

constitutes “consent,” the only way to safely comply with the

statute is to stand perfectly still.

Section 18-9-122(3) creates substantial uncertainty about

how to comply with its terms. All the uncertainty surrounding

the meaning of the statute’s terms will certainly deter speakers

from approaching because the price of misunderstanding is

criminal prosecution. Section 18-9-122(3) subjects speakers to

criminal prosecution for doing nothing more than

misunderstanding a verbal or nonverbal indication. Section 18-

9-122(3) also provides the police with discretion to make

arbitrary arrests. If the police do not like a speaker’s message

or his tie for that matter, they can trump up charges that a

speaker approached a bystander for the purpose of leafleting

without that person’s “consent.” Similarly, § 18-9-122(3)’s

vagueness creates the potential for convictions that are

inconsistent throughout the state. The statute fails to give “fair

warning as to what is prohibited” and does not “‘define[]

boundaries sufficiently distinct’ for citizens, policemen, juries,

and appellate judges.” Grayned, 408 U.S. at 114.

Section 18-9-122(3) imposes vague prohibitions, forcing

Petitioners to risk charges or censor their speech to avoid them.

Section 18-9-122(3) leaves enforcement to the unfettered

discretion of private citizens by defining criminal speech

according to the ad hoc judgments of private citizens. Free

speech must not be left to the good will of others; otherwise,

30

“the free dissemination of ideas [will be] the loser.” Smith v.

California, 361 U.S. 147, 149 (1959).

CONCLUSION

Section 18-9-122(3) is a vague. overbroad prior restraint on

every day expressive activity on public sidewalks that certainly

“abridges the freedom of speech." This Court should reverse

the Colorado Supreme Court's judgment in this case.

Respectfully submitted,

David N. Ventker, Esq.

Huff, Poole & Mahoney, P.C.

a 4705 Columbus Street

( )| Virginia Beach, VA 23462

\ Attorneys for Amicus Curiae

People for The Ethical Treatment

of Animals, Inc.