# 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%3A13

## Record

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

## Text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0279%3A13. Public record. Not legal advice.