Hill v. Colorado – Oral Argument – January 19, 2000

Media for Hill v. Colorado

Audio Transcription for Opinion Announcement – June 28, 2000 in Hill v. Colorado

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William H. Rehnquist:

We’ll hear argument now in No. 98-1856, Leila Jeanne Hill, et al. v. Colorado.

Mr. Sekulow.

Jay Alan Sekulow:

Mr. Chief Justice, and may it please the Court:

The Colorado statute at issue here, 18-9-122, section 3, converts protected speech into a crime.

The statute, which can be found at page 64a and 65a of the petition appendix, the last two pages, imposes an 8-foot floating bubble zone around every person who passes within a 100-foot radius of every entrance door to every health care facility in the State of Colorado.

Within that floating bubble zone, the statute criminalizes a knowing approach made for the purposes of engaging in constitutionally protected speech unless prior consent is obtained.

The consent provision alone invalidates the statute.

It makes the peaceful distribution of a leaflet, the display of a sign, and even specific oral communications in a traditional public forum a crime if prior consent is not obtained.

The statute targets only constitutionally protected speech.

There is no core or prescribable conduct which this statute reaches.

The bubble zone, with its consent provisions, attaches to every person who comes within a 100-foot radius of every health care facility in the State.

Ruth Bader Ginsburg:

Mr. Sekulow, am I correct in understanding that no speech, no words, are prohibited.

It’s only distance.

You can speak anything you want at an 8-foot distance.

Jay Alan Sekulow:

Outside of the zone, there is no restriction on speech.

It’s when you–

Ruth Bader Ginsburg:

But even in the zone, as long as you’re 8 feet away, you can speak.

Jay Alan Sekulow:

–Yes, but there… you have… there are two different zones here.

The 8-foot bubble zone comes into existence when someone is within a 100-foot area… radius of a health care facility.

The bubble zone which floats attaches to every person who enters that specific… specific zone.

So, you… once you’re within the 8-foot of someone, if you do not ask for consent, you do not… you’re not allowed to speak.

It’s a–

Stephen G. Breyer:

What is it… what is it that… I mean, 8 feet.

You’re 16 feet away from me.

8 feet is about the distance to Mrs. Underwood here.

What… what is it that she can’t tell me?

Jay Alan Sekulow:

–I think it’s–

Stephen G. Breyer:

What… what speech is it difficult for anyone to make when you’re about this 8 feet, say, the distance between me and Justice Kennedy?

Jay Alan Sekulow:

–Justice Breyer, I think it’s the same issues that the Court dealt with in Schenck, the distribution–

Stephen G. Breyer:

Well, in Schenck I suppose the problem was that you couldn’t… you didn’t know where the bubble started.

Stephen G. Breyer:

Somebody walking along the sidewalk… you carried the bubble with you.

They didn’t know where they’re supposed to be.

Now, there’s none of that problem here.

Jay Alan Sekulow:

–Well, I… I think there is, Justice Breyer.

I think the… the bubble zone floats.

There’s no doubt about that.

It attaches to everyone who is within… comes within the initial 100-foot area.

That bubble zone floats to… unless you–

Stephen G. Breyer:

That wasn’t… I thought the problem in the other case was that as the person walked along the sidewalk, people who were just standing on the sidewalk would have to get out of the way as the person carrying the bubble moved along.

But here anyone on the sidewalk simply stops.

There’s no problem.

They can come within 1 feet, but if the woman wants to avoid that person, the person can’t chase after her.

Jay Alan Sekulow:

–This–

Stephen G. Breyer:

Now, is… am I right about that factually?

Jay Alan Sekulow:

–I think that’s incorrect, Justice Breyer.

Stephen G. Breyer:

All right.

What–

Jay Alan Sekulow:

And here’s the reason why.

The zone here does float.

You are not allowed to enter that 8-foot zone unless there is prior consent.

Stephen G. Breyer:

–I’m… I’m sorry.

I didn’t… I wasn’t clear.

I didn’t say it didn’t float.

I said that a person standing on the sidewalk, as the woman approaches, if the person stands still, the person doesn’t have to do anything even if the woman comes within 6 inches.

Jay Alan Sekulow:

That’s–

Stephen G. Breyer:

But if in fact the woman decides she doesn’t want to go close to that person and walks around him, then he cannot chase her.

Now, that’s my understanding of how it worked physically.

Is that right?

Jay Alan Sekulow:

–That’s correct.

If you’re standing still and you’re there first.

Jay Alan Sekulow:

In… in that regard, it operates… the consent provision here operates exactly as the consent provision in Madsen.

In Madsen, you could stand still.

If you weren’t there first, you could stand still.

It prohibited a physical approach, which is exactly what this statute does here.

This statute actually combines the floating zone of Schenck with the no-approach zone that the Court prohibited in Madsen.

So, if you’re going to enter within 8-feet of a person, if you’re not there first… in other words, if you stand still, sure, you don’t violate it, just like in Madsen.

But the consent provision alone in Madsen invalidates the statute.

John Paul Stevens:

Well, that’s not like in Madsen.

In Madsen, at least the Court assumed they would have had to move out of the bubble.

That’s what I remember the Chief Justice’s opinion said, I think.

Jay Alan Sekulow:

Actually, Justice Stevens, in Madsen the… the prohibition that was at issue in the injunction prohibited a physical approach.

John Paul Stevens:

Well, didn’t the Chief Justice’s opinion interpret it as requiring the stand-by to move?

Jay Alan Sekulow:

Not in Madsen.

In Schenck that was the concern of the floating bubble zone.

John Paul Stevens:

Oh, okay.

Jay Alan Sekulow:

And in that… in that regard, here the concern was that the zone floats in Schenck.

It does here.

I mean, while the person moves, you have to move with them unless you have consent.

So, Justice Breyer, it’s the same.

Stephen G. Breyer:

Remind me… my original question was this, and it may just require reminding me of what these other cases said.

But if I’m standing still and I… people can approach me, and then I’m about the distance I am from Justice Kennedy.

Jay Alan Sekulow:

Yes.

Stephen G. Breyer:

And there’s a woman coming along.

What is it… because she can walk around me… that I can’t tell her?

Jay Alan Sekulow:

I think–

Stephen G. Breyer:

This is a speech case.

What’s the restriction on the speech?

Jay Alan Sekulow:

–The display of a leaflet, the showing someone written material.

In… in Schenck we talked about, Justice Breyer… we talked about the displaying of a Bible.

In Schenck, this Court at page 377 stated… and I’ll… I’ll quote it exactly… that the concern of the floating bubble zone was that it prevented defendants, except for two sidewalk counselors, while they are tolerated within the targeted zone, from communicating a message from a normal conversational distance or handing a leaflet to people and–

Ruth Bader Ginsburg:

What was the distance, Mr. Sekulow?

It was more than 8 feet.

Jay Alan Sekulow:

–That’s correct.

It was 15 feet there.

I don’t think the difference between 15 feet and 8 feet would make the constitutionality any different.

The standard is still the same.

You cannot display or hand out a leaflet, say, to someone 8 feet away without, again, asking for consent.

It was in Schenck this Court said that the leafleting and commenting on matters of public concern are protected speech, especially on traditional public forum.

William H. Rehnquist:

But the… but the distance must make some difference, Mr. Sekulow.

Perhaps the difference between 8 feet and 15 doesn’t, but if you got down to 3 feet, for example, it doesn’t seem to me there’s any message you can’t communicate at a distance of 3 feet.

The… the distance requirement would impede you.

Jay Alan Sekulow:

Well, interestingly in this particular case, the statute does prohibit impeding, blocking, or crowding, section 2, which is not challenged.

And I don’t think, Mr. Chief Justice, that it’s simply the location being 2 feet.

You could be 2 feet next to someone, as I am with co-counsel, and… and not cause any impeding.

You could be 1… about 5 feet in front of somebody and block them.

So, I don’t think it’s necessarily just distance.

It’s location as well, and… and this is distribution of literature.

Antonin Scalia:

It’s not just impeding.

It’s also intimidating.

It’s also threatening.

I… I suppose you would acknowledge that… what about 2 inches?

I mean, you know, going nose to nose to someone, thrusting your… your head right in their face.

Certainly that could be prohibited.

That’s intimidating behavior.

Jay Alan Sekulow:

Well, Justice Scalia, this Court has recognized that when it comes to public debate, that it can be robust.

I think if someone is 2 inches away from somebody and they’re blocking access, they should be violating section 2.

Antonin Scalia:

No.

They’re just 2 inches away and not blocking access.

They just come up and thrust their… their face right in front of me, just like this.

Jay Alan Sekulow:

I don’t… first… first of all, this would not… that action would not violate the statute because this statute, section 3, does not prohibit simply an approach.

Jay Alan Sekulow:

It is an approach with speech, and it’s the speech that is the violation.

The way the statute works… and again, it’s on page 64a and 65a of the petition appendix in its entirety… it states that no person shall knowingly approach another person within 8 feet for the purpose… unless there’s consent, for the purpose of displaying a leaflet, displaying signs, handing out a leaflet, or for engaging in specific oral communications, oral protest, education–

John Paul Stevens:

Have you… I don’t think you’ve answered the question.

Supposing it said 1 foot.

Would that be bad too?

Jay Alan Sekulow:

–I… I think it suffers from the same constitutional problem.

I… I don’t think it’s–

John Paul Stevens:

It would be the same, okay.

Jay Alan Sekulow:

–Justice Stevens, I don’t think it’s simply the location because you could be 6 inches away from someone and not be blocking them at all.

You could be 3 feet and block somebody.

Antonin Scalia:

How about an eighth of an inch?

An eighth of an inch?

Jay Alan Sekulow:

Justice Scalia, I… I wouldn’t even want to give you the eighth of the inch.

Antonin Scalia:

Really, your client holds some very unreasonable territory.

Jay Alan Sekulow:

I… I don’t… I don’t think so because this is… this is speech on a public forum, and if you’re blocking somebody, that… that’s a different story.

William H. Rehnquist:

But speech on a public forum, the traditional concept is, you know, there’s somebody on a soapbox and a bunch of people gathered around them, not that you’re one on one with someone an eighth of an inch away.

Jay Alan Sekulow:

I… I think leafleting, Mr. Chief Justice, does require close contact.

When someone distributes a leaflet, usually it’s with a hand extended which if you were, by the way, 8 feet away from this particular person you were approaching, you’d violate that bubble with… with–

William H. Rehnquist:

Well, in Abrams against United States, they threw them out of a second story window… the leaflets.

Jay Alan Sekulow:

–Yes, and I… I take it, when it landed on the streets, it would be… have been protected speech at that point.

[Laughter]

Antonin Scalia:

Would you acknowledge, Mr. Sekulow… would you… no, I gather you would not acknowledge that it would be reasonable to have such a law which limited the bubble to a distance which is inherently intimidating.

You just… you just don’t acknowledge that there’s any distance at which you can talk to somebody which is inherently intimidating.

Jay Alan Sekulow:

I think that the danger in that is, because it’s so specific on facts and circumstances, in the context of a statute like this, that if the concern that’s being addressed is access or blocking, the way to handle it… the State of Colorado did it… and that is section 2.

A person commits a class 3 misdemeanor.

It’s the same offense.

7 months in jail.

If you obstruct, detain, hinder, or impede.

I would take it if you’re an eighth away–

Antonin Scalia:

I’m not obstructing, detaining, hindering.

Antonin Scalia:

I’m just intimidating.

I’m just… I’m just intimidating.

What if I… my nose touched your nose?

Oh, that would be okay even though I’m–

Jay Alan Sekulow:

–No.

It probably would be an assault at that point.

Antonin Scalia:

–What makes that okay?

Jay Alan Sekulow:

But under the statute–

Antonin Scalia:

What makes that okay?

Jay Alan Sekulow:

–Because of speech activity.

This… and interestingly, under your example, if you came up to someone or a protestor came up to someone and engaged in very intimidating facial expressions and made very intimidating gestures, they don’t violate this statute, but the petitioner here, Jeannie Hill, if she goes and approaches someone to hand them a leaflet or to engage in quiet conversation, a counseling, she violates the statute.

So, the intimidating conduct does not violate the statute.

The petitioner handing out a leaflet–

Sandra Day O’Connor:

Well, but you… you certainly can convey anything you want to convey orally from a distance of 8 feet.

It’s just not difficult.

You can speak in a normal conversational tone and be heard fully.

And to distribute a leaflet, it doesn’t matter if you’re 6 inches away or 8 feet away, the person receiving it, in order to receive it, has to accept it.

Jay Alan Sekulow:

–That’s correct.

Sandra Day O’Connor:

And so, this isn’t some unusual provision.

Jay Alan Sekulow:

But I… I think, Justice–

Sandra Day O’Connor:

You don’t… you don’t say that a person must accept the leaflet.

Jay Alan Sekulow:

–No.

They have absolutely… they do not have an obligation to accept it.

Sandra Day O’Connor:

No.

Jay Alan Sekulow:

But I think what… Your Honor, Justice O’Connor, what you wrote in Kokinda… and that is people that live in metropolitan areas know that one need not ponder the contents of a leaflet to mechanically take it out of someone’s hand or, for that matter, to reject it, but it’s that mechanical taking out of someone’s hand.

Traditional leafleting on public sidewalks, is the kind of situation where someone is out there approaching people.

People will come up and take it.

8 feet away is the same prohibition as a restriction on speech.

Sandra Day O’Connor:

Well, if the person to whom it’s offered wants to take it under this statute, they can and will.

I mean, it’s just–

Jay Alan Sekulow:

And the same–

Sandra Day O’Connor:

–And it would be the same if it were 1 foot or 8 feet.

Jay Alan Sekulow:

–And it… the same argument could have been and was made in Schenck, and this Court said there 15 feet was still a problem because the zone floats.

And it does, Justice Breyer–

David H. Souter:

Mr. Sekulow, on… on that, I understood you to answer Justice Breyer’s question by saying that the stationary speaker, so-called, could not even station… in a stationary position offer leaflets without violating the statute.

Did I understand you correctly?

Jay Alan Sekulow:

–If you’re standing still and you’re in… within that 8-foot zone before someone else is, you–

David H. Souter:

I’m standing still and somebody–

Jay Alan Sekulow:

–Approaches you?

David H. Souter:

–gets within 8 feet.

Jay Alan Sekulow:

It’s… that’s correct.

That’s not a problem.

It’s exactly the situation–

David H. Souter:

So, I can say to that person, will you take a leaflet, or just hold the leaflet out.

No problem.

Jay Alan Sekulow:

–If you’re there first.

David H. Souter:

Pardon me?

Jay Alan Sekulow:

If you’re there first.

David H. Souter:

If you’re there first and you’re stationary–

Jay Alan Sekulow:

Absolutely.

David H. Souter:

–you can do that.

Jay Alan Sekulow:

That operates exactly, Justice Souter, as the no-approach zone in Madsen.

Stephen G. Breyer:

Now, why then being that… if that’s the case, what’s exactly the problem?

I’m not just saying another case.

I’m trying to understand what the problem is.

I’m standing here.

I plunk myself down on the sidewalk in front of the abortion clinic.

Anyone who’s walking into that abortion clinic has to pass me, and I simply hold out the leaflet.

Now, if a woman wants the leaflet, she’ll take it, but if she walks around me, now she doesn’t want it.

So, what’s the problem if I can stand still, hand it out just like this, and she’d have to walk around in order to avoid taking it, but she’s free to walk around under this statute?

Stephen G. Breyer:

What’s the problem?

Jay Alan Sekulow:

The problem is the assumption, Justice Breyer, that you’re operating under is that you got there first, and if you got there first, you… and you stand still and someone approaches you and you’re not blocking them… of course, the… the dichotomy of all this is, if you’re standing still, you may well be blocking.

Generally protest activities, distribution of literature, speech, in the robust debate, people are moving, but if you’re standing still and you’re there first, it’s not a violation.

But in Madsen, this Court dealt with exactly the same situation.

It was a no-approach zone, no physical approaches.

If you were there first, if you were standing still, it wasn’t a violation.

And the Court in Madsen said that the consent provision alone invalidated the provision of the injunction in Madsen.

The same should apply here, especially since you have the combination of the floating zone in Schenck.

It does float.

If you’re not there first, Justice Breyer, it does float and it floats.

You have to stay unless you have obtained consent.

You have to maintain that 8-foot distance.

And I think showing someone a Bible verse, the display of a sign, all of that type of activity which is more intimate in its communication–

William H. Rehnquist:

How practically?

I mean, it’s not as if this were a parade, you know, of people marching double-file to get into the clinic where the question of whether you got there first might be very important.

I mean, certainly there are times when no one is coming to the clinic.

There a person has a perfect opportunity to get there first.

Jay Alan Sekulow:

–That’s right, if they got there before the event opened.

But this statute, which is not limited to abortion facilities, which has the floating bubble zone, applies to everyone in that 100-foot zone.

It’s not just–

John Paul Stevens:

Mr. Sekulow–

Jay Alan Sekulow:

–Yes.

John Paul Stevens:

–May… may I just ask kind of a general question?

And I think it was the Heffron case, the Court made a reference to the importance of getting access to the willing listener and the willing recipient.

Now, I think you’d probably agree that this ordinance doesn’t really restrict your ability to communicate with a woman who wants to receive your message.

It really does pose some limit on the leafleting to a woman who presumably doesn’t want the leaflet.

Jay Alan Sekulow:

Well, to anyone who doesn’t want the leaflet.

It’s not limited to people–

John Paul Stevens:

Well, I understand that.

Jay Alan Sekulow:

–seeking access to or egress from the clinic.

John Paul Stevens:

So… so, you… you have… it’s… there’s kind of a dilemma, it seems to me.

You either have to assume that the… that you have a right to make the unwilling listener take the leaflet, which doesn’t seem it would work in the real world–

Jay Alan Sekulow:

You don’t have the… you… you can’t require someone to take a leaflet, but I think Heffron is a good example of this.

John Paul Stevens:

–But… but you do have a constitutional right to give her an opportunity if she’s a willing recipient, either the doctor or the… to have that.

And doesn’t she have that… assuming it’s a willing person interested in the… in the leaflet?

Jay Alan Sekulow:

If there’s… consent is given, there’s no violation of the statute.

It’s the requirement of consent, we think, which caused the problem.

In Heffron, which was interesting, of course, the Court said it was not a traditional public forum.

The sidewalks in front of these medical health care facilities, which could even be an ophthalmologist’s office, the way the statute is written, has a provision in there that… it’s very specific.

If you enter that 8-foot zone, you have to obtain consent.

In Heffron, the Court found it not to be a traditional public forum and said that–

John Paul Stevens:

But see, what I’m trying to suggest is that you have to be a willing listener if you’re in the 8-foot zone.

And it seems to me if you’re not a willing listener, you’re not going to take the leaflet anyway.

Jay Alan Sekulow:

–It’s… it’s not simply leafleting.

I think it’s the… also the oral communication.

John Paul Stevens:

Well, I’m just concentrating on the leafleting now because, it seems to me, that’s your strongest argument.

Jay Alan Sekulow:

Well, the… the way the leafleting works is usually, in a… in a leafleting situation, people are close, closer than 8 feet.

They’re not asking may I… you know, this statute turns every literature distribution into a solicitation because you have to ask consent before you approach.

And interestingly, in Heffron the Court stated that, while finding it not to be a public forum, that in fact they did allow one-on-one, face-to-face communications to go on throughout the State fair without any restrictions.

That’s absolutely–

William H. Rehnquist:

Mr. Sekulow?

Jay Alan Sekulow:

–Yes.

William H. Rehnquist:

In Madsen, we said that an injunction would be judged by a more stringent standard than a statute, and here, of course, we… we have a statute, not an injunction.

Jay Alan Sekulow:

That’s correct.

William H. Rehnquist:

Yet, you frequently refer to Madsen as if the things were interchangeable.

Jay Alan Sekulow:

Well, in this context.

Number one, our position is that this is a content-based prohibition on speech.

So, it would be a higher standard than the Madsen standard.

It would be strict scrutiny because of the specific limitations on oral communications that constitute protest, education, or counsel.

And also this Court in Madsen–

Antonin Scalia:

Why don’t you talk about that one?

You’ve been just talking about your point that the mere… the mere consent requirement invalidates it.

You also contend that this is a… a content-based restriction.

How is that so?

Jay Alan Sekulow:

–Absolutely.

The prohibition here as… specifically on its… the face of the statute, section 3, requires consent if you’re going to engage in specific oral communication: protest, education, or counsel.

A prosecutor who’s bringing a criminal accusation for a violation of section 3 would have to establish through the presentation of evidence what exactly was said to determine if, in fact, it constitutes protest, education, or counsel.

Anthony M. Kennedy:

Can you… can you tell me?

Suppose someone wanted to encourage a… a patient to get a particular procedure.

Would that be barred by the statute?

Jay Alan Sekulow:

That… that’s interesting.

We… we have thought about that, and if it constitutes a form of protest, education, or counsel, it would.

Anthony M. Kennedy:

It’s… it’s not protest.

It’s… it’s–

Jay Alan Sekulow:

Encouragement?

Anthony M. Kennedy:

–encouraging the person.

Jay Alan Sekulow:

Oh, it… I think that that would not, but I think the State, if they were making an accusation, would probably say… they would argue that it may constitute a form a counseling, offering of guidance, the way they… they’ve drafted this.

But what is interesting here in that exact type of scenario, if a news reporter… say there was a protest going on at a particular health care facility, and a news reporter entered the 100-foot radius and then was going to approach someone, did not ask for consent, and asked a general question.

Anthony M. Kennedy:

How do you feel?

Jay Alan Sekulow:

How do you feel?

What do you think about health care in America today?

Probably not counsel, education, or protest.

If that same news reporter were to approach a person again without consent and say something like Congress was considering changes to the health care laws in the United States allowing for private lawsuits against HMO carriers.

What do you think?

That’s education and that would be a violation of the statute.

Stephen G. Breyer:

Well, but which is it?

I mean, I grant you it’s… you may not have a good answer to this because I have a hard time with the cases on this one.

But it seems to me if they… if the State tries to write a… one that covers more than just abortion clinics and tries to go beyond just as you’ve said… you said, well, this is terrible.

It… it gets innocent things like what time is it.

But then if they try to be more narrow, you say, well, it’s too… it’s too… it’s too… it’s narrow.

Stephen G. Breyer:

I mean, either they didn’t narrowly tailor it–

Jay Alan Sekulow:

Which I think they did not.

Stephen G. Breyer:

–or… or if they do narrowly tailor it, it’s content discrimination.

Jay Alan Sekulow:

And… and–

Stephen G. Breyer:

So… so, whenever the State would try to regulate anything, they’d fall into the one or the other.

Jay Alan Sekulow:

–Justice Breyer, I don’t think so.

The State has argued that they’re in the proverbial catch 22.

They’ve drafted a statute that we argue is overbroad and one that is content-based.

Anthony M. Kennedy:

Do you know of any precedent which defines narrow tailoring by whether or not it’s content-based?

Jay Alan Sekulow:

I… I think looking at it, no because the most realistic narrow tailoring case that fits this the Court found it to be content-neutral, which was United States v. Grace.

There’s never been a statute, though, written like this.

Ruth Bader Ginsburg:

Mr. Sekulow, I was reading your brief closely and trying to envision the statute that would be constitutional.

The Chief has reminded you that the Court has held that the statute, which is passed when it… we don’t know who the particular people are, requires less rigid review.

So, reading… reading your brief, I had the impression that no statute, other than the one that bars obstruction, would do in your judgment, that you could not have a… a statute like Madsen or Schenck had an injunction.

You simply couldn’t.

Jay Alan Sekulow:

I think that’s… that’s a correct position.

That’s the position we’re asserting.

And the reason, Justice Ginsburg, that that’s our position is that this is speech on a public sidewalk, and it does apply.

It’s a statute.

And I think the difficulty is… and far be it for me to draft Colorado’s statute–

Stephen G. Breyer:

Wait.

Go… go back for a second because certainly you would agree that you can write legislation in terms of categories like advertising or lawyer solicitation, counseling.

I mean, those aren’t all unconstitutional, are they?

Jay Alan Sekulow:

–Well, the way Colorado has drafted it, I think it is.

Stephen G. Breyer:

No, no.

But I mean, to talk about a category called advertising is okay, isn’t it?

Our cases are filled with that.

Jay Alan Sekulow:

Commercial speech would–

Stephen G. Breyer:

That isn’t content-based because you–

Jay Alan Sekulow:

–That’s–

Stephen G. Breyer:

–treat advertising differently from… all right.

So–

Jay Alan Sekulow:

–Although it does bring up an interesting scenario here, Justice Breyer, and that is the way that this statute works… let’s say someone talking about advertising, to take your example.

If someone was handing out discount pizza coupons on a public sidewalk in front… front of Denver General Hospital and failed to ask for consent before they approached someone to distribute them the free discount coupon, they violate this statute.

That’s how broad the statute is written.

It prohibits–

William H. Rehnquist:

–Well, you… you argue… my colleagues admitted you argue, on one hand, the statute is too broad and, on the other hand, it’s too narrow.

I mean, that’s like the old arguments we used to get here about the Establishment Clause.

If… if a… if the State tried to regulate the expenditure of funds for parochial schools, then it was said to be too much entangled, and there… under that line of thinking, there was nothing the State could do.

Are you saying, in effect, that the State can’t draft a statute, any kind of a statute, to cover what it conceives to be this problem here?

Jay Alan Sekulow:

–No, I think the State can.

And… and, Mr. Chief Justice–

William H. Rehnquist:

Well… go ahead.

Jay Alan Sekulow:

–What I would… what I would have drafted if I was the… the State here–

William H. Rehnquist:

You were the State.

Jay Alan Sekulow:

–Yes, but I’m not.

[Laughter]

Is a statute that–

William H. Rehnquist:

That’s why you should use the subjunctive.

[Laughter]

Jay Alan Sekulow:

–Yes.

And in the… in the… in this particular case, the State’s concerns, the asserted interests here are to prevent intimidation, crowding, and threatening conduct.

This statute does not do that.

They need to draft a statute that targets the precise concerns–

Ruth Bader Ginsburg:

They have that statute.

They have–

Jay Alan Sekulow:

–Section 2.

Ruth Bader Ginsburg:

–Yes, and I asked you before and you, I thought, were quite candid in saying that’s all they can do.

Jay Alan Sekulow:

I think that’s–

Ruth Bader Ginsburg:

–section 2 and there’s no other statute that would satisfy your test.

Jay Alan Sekulow:

–I think that… that–

Ruth Bader Ginsburg:

It could not go beyond that.

Jay Alan Sekulow:

–because section 2 would satisfy my test, Justice Ginsburg.

Ruth Bader Ginsburg:

Yes, but I asked you if there was any statute that tried to replicate–

Jay Alan Sekulow:

What they’ve done here.

Ruth Bader Ginsburg:

–or controls the injunctions that we have permitted–

Jay Alan Sekulow:

I don’t think so, and let me clarify my position and the reason why.

I don’t think so because in Madsen and in Schenck, despite the somewhat more rigorous standard that was given there… in Madsen and in Schenck, the concern over leafleting and uninvited approaches, even if they’re peaceful being prohibited… the Madsen concern… the Schenck concern about literature distribution, both of those cases dealt with… the Court relied on Boos v. Barry in… in Madsen and Boos v. Barry and United States v. Grace in Schenck… were both statutory cases.

Those were not injunction cases, and it was the concern of literature distribution and… and one-on-one advocacy that was the concern.

Ruth Bader Ginsburg:

–But as I remember Boos at least, that was a one viewpoint.

You couldn’t picket against the embassy, but you could… no… there was no prohibition on doing something they were of.

And here, the statute is written in neutral terms.

It says you can’t counsel about either side.

Jay Alan Sekulow:

And this Court–

Ruth Bader Ginsburg:

You can’t educate about either side.

Jay Alan Sekulow:

–Justice Ginsburg, the… this Court in Madsen and Schenck, in dealing with the issues, said that the injunctions were content-neutral and–

Sandra Day O’Connor:

Well, this… this statute makes me think, in a way, of the City of Renton case where the concern was the secondary effects of the conduct.

It was First Amendment activity, the adult theater.

Jay Alan Sekulow:

–I–

Sandra Day O’Connor:

But there were secondary effects being addressed, and maybe–

Jay Alan Sekulow:

–Justice–

Sandra Day O’Connor:

–that’s the situation here, that the… the State doesn’t care on which side of the message it is, but is concerned about the secondary effects of intimidation… intimidating conduct near a medical facility.

Jay Alan Sekulow:

–If that’s… based on your question and… and comment, Justice O’Connor, they need to draft a statute that prohibits intimidation, crowding, or violence which I think… or threatening conduct, which I think they did in section 2.

Anthony M. Kennedy:

But we–

Jay Alan Sekulow:

This isn’t–

Anthony M. Kennedy:

–we take the case, I think, on the assumption that Colorado has tried to do that and cannot enforce it if there are crowds.

The problem here is crowds.

And so, what they want to do is to have a… a zone where we know who is coming up to push or pinch or shove, and that’s all they’re trying to do.

Is that a… is that a fair assessment of what the purpose of the statute was?

Maybe they failed, maybe they… maybe they succeeded.

Jay Alan Sekulow:

–I think they set the purpose out of the statute in section 1, which states that the General Assembly recognizes access to health care facilities for the purposes of obtaining medical counsel and treatment that’s imperative for citizens, that the exercise of a person’s right to protest or counsel against certain medical procedures must be balanced against another person’s right to obtain medical counseling.

To me that points very closely to content-based–

John Paul Stevens:

Mr. Sekulow, can I ask… I’m really seeking information here on your position.

I thought there was some tension between your quoting the engaging in oral protest, education, or counseling as being content-based and not viewpoint-neutral on the one hand and saying that those words would cover the delivery of a pizza solicitation.

Jay Alan Sekulow:

–The pizza solicitation would be the distribution of literature prohibition which applies to all literature distribution.

John Paul Stevens:

I see.

That is not… that is not content-based–

Jay Alan Sekulow:

We… we think it’s content-based from the standpoint that it provides an opportunity for… because of the prior consent requirement, to allow for content-based determinations.

But the distribution of literature prohibition is because of the prohibition of literature.

Mr. Chief Justice, I’d like to reserve the remainder of my time for rebuttal.

William H. Rehnquist:

–Very well, Mr. Sekulow.

Mr. McLachlan, we’ll hear from you.

Michael E. McLachlan:

Thank you, Mr. Chief Justice, and may it please the Court:

The Colorado legislature acted to protect sick, disabled, and vulnerable people on their way to and from its hospitals and doctor’s offices.

And it designed the statute to keep our–

Antonin Scalia:

Excuse me.

Just sick, disabled, or vulnerable people?

Is that… is the only–

Michael E. McLachlan:

–That’s what I said, Your Honor.

Antonin Scalia:

–It only protects those people?

Michael E. McLachlan:

No.

The statute was designed to protect medical patients who are often sick, disabled, and who are vulnerable–

Antonin Scalia:

But it doesn’t cover just medical patients.

How many… what… what percentage of the people going in and out of… of these facilities do you think are sick… what was it… sick, vulnerable and… and whatnot?

Michael E. McLachlan:

–No, Your Honor–

Antonin Scalia:

I mean, that’s a very small percentage of the… of the universe covered by this thing, isn’t it?

Michael E. McLachlan:

–Your Honor, the… the statute covers all persons within 100 feet of a medical facility, and a great percentage of those people are… are either treating individuals who are sick and vulnerable and disabled or persons who are seeking treatment from these–

Anthony M. Kennedy:

Well, in… in that respect, how does this statute work?

Suppose there’s a seven-story building and on the sixth floor there are doctors’ offices.

On… on the… all of the other floors, there are other businesses.

Anthony M. Kennedy:

I take it this statute operates with respect to anyone who engages in the prohibited activity outside the main entrance to the building?

Michael E. McLachlan:

–The statute operates to the extent that it is covered, public sidewalk or a public way.

And so if there’s a 20-story building–

Anthony M. Kennedy:

So, if–

Michael E. McLachlan:

–a story of any type, it would be the entrance to the building which contained the medical facility–

Anthony M. Kennedy:

–So–

Michael E. McLachlan:

–and the public right-of-way.

Anthony M. Kennedy:

–So, with respect to all of the businesses in those buildings, the press, lawyers, business people, people engaged in manufacturing that might affect the environment, this statute happens to apply just because there’s a doctor’s office there.

Isn’t that right?

Michael E. McLachlan:

No.

Yes, because there’s entrance to a medical facility.

Anthony M. Kennedy:

It seems to me that that’s… that that’s whimsical and imprecise and inconsistent with our speech precedents.

Michael E. McLachlan:

Your Honor, it was… it’s narrowly designed to affect only the 100 feet within a medical facility or a hospital.

Anthony M. Kennedy:

But we’ve just discussed the hypothetical in which it is not.

Michael E. McLachlan:

Well, if a doctor’s office is contained within a… a private building, the statute would not be operative because it doesn’t involve a public way or a public sidewalk.

The statute requires–

Anthony M. Kennedy:

I… I… my hypothesis is a private building that has an entry off a public sidewalk–

Michael E. McLachlan:

–That’s–

Anthony M. Kennedy:

–which I assume most buildings do.

Michael E. McLachlan:

–That’s correct, Your Honor.

That would operate in those circumstances to the extent that it involves 100 foot of the entrance and a public sidewalk, and also I don’t think, as… as ordinary course, Your Honor, that we would have a situation where persons would be protesting within the building.

Stephen G. Breyer:

Sorry.

I didn’t… I didn’t pick this up in the briefs.

So, what is the definition of a medical facility?

If you have the… the Russell Building which is 20 floors high, and on floor 18 there’s a doctor, and on all the other floors it’s a lawyer, is the whole Russell Building a medical facility under this statute?

I mean, if that… if that’s the problem with this, I’m surprised that I didn’t pick it up in the brief.

Michael E. McLachlan:

The statute uses the term, Justice Breyer, health care facility, and it states that a health care facility means any entity that is licensed, certified, or otherwise authorized or permitted by law to administer medical treatment in the State.

Stephen G. Breyer:

So, I guess that… that floor 18 or… has office number 1806 is the medical facility.

Is the whole building a medical facility?

Michael E. McLachlan:

No, Your Honor, it would not be.

Michael E. McLachlan:

It’s only as to the entrance of that medical facility.

Antonin Scalia:

Right.

The crucial provision is the entrance… is the entrance provision.

How does that read?

To what does the 100-foot restriction apply?

Michael E. McLachlan:

The provision states–

Antonin Scalia:

Within 100 feet of what?

Michael E. McLachlan:

–Within 100 feet of a medical… of the entrance to a medical facility.

Antonin Scalia:

Of the entrance to a medical facility.

Now, do you consider that to be the entrance to the building and not the entrance to the… to the office in which the… in… in a large building the facility is contained?

Michael E. McLachlan:

Your Honor, the statute only operates within 100… of a medical… 100 feet of a… entrance to a medical facility and on a public sidewalk.

William H. Rehnquist:

Now, Mr…. Mr. McLachlan, in section 2 on page 65a, it uses the term health care facility.

You said medical facility.

Is that the word used somewhere else, or is that just a synonym for health care facility?

Michael E. McLachlan:

I believe they’re synonymous, Your Honor.

And I… I read the narrow statutory definition of health care facility which is in the statute.

William H. Rehnquist:

Where… where you reading from?

Michael E. McLachlan:

I was… Your Honor, the best location of the statute is appendix to the Solicitor General’s brief where the entire statute is set out verbatim on pages–

Stephen G. Breyer:

Is… am I… where… where does this issue that Justice Kennedy just raised fit in this case, that the reason that it’s too broad is it would cover offices that are located within some large, downtown office building that don’t have doctors in it?

Now, has that suddenly… what’s your… what’s… what’s the reaction to that issue in the context of–

Michael E. McLachlan:

–Your Honor, it’s narrowly drawn because the statute only operates in conjunction with entrance to a medical facility and a public side-way or walkway.

So, if there’s a public–

Anthony M. Kennedy:

–I don’t want to distract the Court on an issue that wasn’t briefed, but it seems to me that this is troublesome and I would read the statute… and I thought… and I think that’s your answer, that it applies to anybody on the… on the sidewalk of that building.

But the point… the reason I brought it up at the point that I did was it indicates that your opening statement, which is that this is for the… for the vulnerable and the sick, is not a ground on which we can sustain a statute.

The… the statute… there’s nothing in the record that says there’s a high percentage of these people that… that are on these sidewalks fit that category.

I think you would have to make a different argument to sustain the statute.

Michael E. McLachlan:

–Your Honor, the statute is predicated upon a finding by the Colorado legislature that it is imperative to protect access to health care facilities and that the relationship between that… that location and a public sidewalk is the object of the… of the regulation.

Those two operating together–

William H. Rehnquist:

But–

Michael E. McLachlan:

–are the circumstances in which it would apply.

William H. Rehnquist:

–Mr. McLachlan, now as I recall in Madsen, it was a free-standing clinic.

You know, we had diagrams and so forth, and the… the clinic was the only operation in… in the building.

In Justice Kennedy’s hypothesis, you’re really… you’re curtailing a lot of other activity that would otherwise take place that may be not at all related to the health care facility.

Michael E. McLachlan:

Well, Your Honor, again because the statute only operates as to a public sidewalk or… or way… public way, I think, as a practical matter, the statute operates outside the facility within… within a–

Anthony M. Kennedy:

But that’s… that’s the whole point.

There are all kinds of people with all kinds of views and all kinds of messages and all kinds of purposes on a public sidewalk.

Michael E. McLachlan:

–That’s correct, Your Honor.

David H. Souter:

Well, Mr…. Mr. McLachlan, I thought a moment ago your answer to the 18-story building hypothesis was that the medical facility was the office up on… whatever it was… the 16th floor.

It was not the whole building.

Michael E. McLachlan:

That’s correct, Your Honor.

David H. Souter:

All right.

Now–

Michael E. McLachlan:

But the entrance is located in conjunction with the public sidewalk and the public way.

David H. Souter:

–So that if there is one doctor’s office on the 16th floor, the whole sidewalk and entrance is subject to this regulation by the statute as if the entire building were filled with doctors’ offices?

Michael E. McLachlan:

No, not as if, Your Honor.

It… it would constitute an entrance to the health care facility if the building contained–

David H. Souter:

No, but you’re saying that if there’s a doctor’s office on any floor of the skyscraper, that the entrance and the sidewalk is subject to regulation under the statute.

Michael E. McLachlan:

–That’s correct, Your Honor.

Ruth Bader Ginsburg:

Mr. McLachlan, if there’s a–

–May I ask if any Colorado judge or anybody in the legislature ever discussed this hypothetical?

Michael E. McLachlan:

No, Your Honor.

Ruth Bader Ginsburg:

And it’s not for you to say.

It’s for the Colorado Supreme Court to answer that hypothetical, and they have not, have they?

Michael E. McLachlan:

That’s correct, Your Honor.

That hypothetical has not been discussed by the legislature nor has it been discussed by the court.

William H. Rehnquist:

But if… if you’re talking about a statute that abridges freedom of speech or is alleged to, it… it can’t be vague.

I mean, we’ve… you’ve got to be able to tell from reading the statute just where it applies.

Now, you’ve given… given an interpretation and we’ve often accepted the statement of the State solicitor general in the absence of any decision from… from a Colorado court on the subject.

Michael E. McLachlan:

Thank you, Your Honor.

Stephen G. Breyer:

Is that the case that you want us to do, that we… we now accept as the… to turn this case on your interpretation of a matter that hasn’t come up before I gather, and that you’re saying officially in your role as a representative of the State that it does apply to an 18-story office building on the… on the sidewalk where there’s nobody but one doctor up on the 18th floor and stops everybody else from speaking about anything?

Michael E. McLachlan:

I’m not… I’m not asking the… the Court to accept my interpretation.

I’m simply pointing out that the Colorado Supreme Court has not looked at this issue, but the Colorado Supreme Court has reviewed the statute otherwise and has upheld it.

David H. Souter:

Well, has the statute ever been applied–

–You don’t… you don’t want us to accept the opposite interpretation either, do you?

Do… are you willing to say that it does not apply to the… to the entrance of a facility where there’s a doctor’s office on the 16th floor?

Michael E. McLachlan:

I think it does apply in conjunction–

Antonin Scalia:

You think it does.

Michael E. McLachlan:

–If it’s… if it’s in connection with a public way and a public sidewalk.

Antonin Scalia:

You think it does, and although you’re not willing… you’re not willing to say authoritatively that it does?

Michael E. McLachlan:

No.

Excuse me, Your Honor.

I… I didn’t mean to use the word in a haphazard fashion.

I… there’s no question in the position of the State of Colorado–

Antonin Scalia:

That it does.

Michael E. McLachlan:

–that it applies to the entrance of a health care facility in connection with a public sidewalk or a public way.

David H. Souter:

And that is so even if the health care facility on the 18th floor is more than 100 feet away from the sidewalk.

Vertically.

Yes.

Michael E. McLachlan:

That’s correct, Your Honor, because the focus of the statute is with 100 feet of the entrance.

David H. Souter:

Has the statute ever been applied in the fashion you… you maintain it would apply?

Has there ever been a prosecution–

Michael E. McLachlan:

No, Your Honor.

As we point out in our brief–

David H. Souter:

–The answer is no.

Michael E. McLachlan:

–there has never been a prosecution under the statute.

The statute–

David H. Souter:

For anybody.

Michael E. McLachlan:

–has never been enjoined.

There’s never been a civil complaint for damages, nor has there been a criminal complaint filed pursuant to the statute.

John Paul Stevens:

But even in the case–

John Paul Stevens:

–There’s probably never been an abortion protest outside the Empire State Building either.

Michael E. McLachlan:

That’s correct, Your Honor.

We don’t also have the Empire State Building in Colorado.

[Laughter]

Antonin Scalia:

Is… excuse me.

Is this statute just addressed to abortion protests?

Is… is that–

Michael E. McLachlan:

To the contrary, Your Honor.

It covers all–

Antonin Scalia:

–I didn’t think it was.

Michael E. McLachlan:

–all conduct of the subject matter of the statute which occurs within 100 feet of a health care facility.

Antonin Scalia:

It would be bad if it was addressed just to abortion protests, wouldn’t it?

Michael E. McLachlan:

Absolutely, Your Honor.

It would violate content neutrality.

Anthony M. Kennedy:

So… so it applies to labor picketing?

Michael E. McLachlan:

It would apply to labor picketing under the circumstances present in this case if you were within 100–

Anthony M. Kennedy:

So, a labor organization has a different rule if it’s in front of a health facility than it’s… if it’s in front of a manufacturing plant.

Michael E. McLachlan:

–That’s correct, Your Honor.

Anthony M. Kennedy:

That’s… is that content-based?

Michael E. McLachlan:

No, Your Honor, it’s not because again the purpose of the statute and the scope of the statute is to govern all… all forms of–

Stephen G. Breyer:

But I suppose the NLRB, if it turned out to be a labor problem, could preempt any effect of Colorado’s State law in respect to the labor unions, couldn’t it?

Michael E. McLachlan:

–That… that may well be the result, Justice Breyer, that the operation of the Federal law would… would affect the statute that way.

John Paul Stevens:

What–

–Except in the labor law, we said there are different rules apply to medical facilities than apply to other facilities.

Michael E. McLachlan:

That’s correct, Your Honor.

In… and in those cases, the Court recognized that the… that the patients are entitled to consideration under… under the rule and that in this particular case our statute is also designed to protect the patients.

Antonin Scalia:

I’m curious.

You know, I’m sure there… there has been violence in… in some abortion protests.

Are you aware that there’s been more violence in that context than in labor picketing, for example?

I mean, the number… the number of people killed or the number of people intimidated in in labor protests annually.

Antonin Scalia:

Do you think it’s–

Michael E. McLachlan:

I’m not aware of that, Your Honor.

I am aware that–

Antonin Scalia:

–I’m just wondering why… you know, why this is a… a great… this particular area is of… is of great concern to the… I don’t know.

People going into supermarkets that are being picketed… are they… are they any less… what… vulnerable and… I forget what your other adjectives were.

It’s curious that this need to protect the innocent and vulnerable from… from being approached is… is felt only in this one… one area.

Michael E. McLachlan:

–Your Honor, the Colorado legislature, in its review of the statute, first of all, we’ve never employed the term innocent.

We’ve simply determined that they are ill, that they are vulnerable, and that they are, as medical patients, entitled to consideration under the statute.

Antonin Scalia:

I just wonder whether the statute is… is, you know, although facially applicable to anybody who… who approaches this kind of facility, I think… I think we know what it’s aimed at, which is abortion protests.

And I just wonder what justification there is for singling them out as being particularly intimidating as opposed to, let’s say, labor picketing.

Michael E. McLachlan:

Your Honor, what the statute singles out and what the statute focuses upon is the approach in a… in a circumstance which can arise and become, as this Court recognized in… in the Schenck case, a constructive obstruction.

Antonin Scalia:

In other words–

–You could… you could at least apply this rationale that you’re defending here… you acknowledge that it could be applied to labor picketing.

If… if you had a similar finding by the legislature that labor picketing can be intimidating, you could require all labor pickets to… within 100 feet of whatever they’re picketing, to stay 8 feet away from people.

Michael E. McLachlan:

I think the reason this has a different under… under-support than labor picketing is because it focuses solely on people within 100 feet of a health care facility.

Antonin Scalia:

No.

I understand, but–

Michael E. McLachlan:

And that these people are entitled to special protection as found by our legislature.

Ruth Bader Ginsburg:

–And it would apply to labor people who were trying to educate the public about a labor union matter, people who were objecting to the facility charging too much money, people who were objecting to the facility’s use of animals in experimenting.

They would all come under the same rules.

Michael E. McLachlan:

That is correct, Your Honor.

That is correct.

It… it would apply–

Ruth Bader Ginsburg:

What–

Michael E. McLachlan:

–It applies to both sides or all the multiple sides of the debate because it is a content-neutral statute.

Sandra Day O’Connor:

–Would you tell us what this portion of the statute accomplishes that subsection 2 does not?

Michael E. McLachlan:

Subsection 2 only deals with, in our… in our view, physical contact between persons and–

Sandra Day O’Connor:

Well, it… it deals with knowingly obstructing, detaining, impeding, and so forth.

Now, it’s… it’s hard for me to know what this covers that that wouldn’t also cover.

Michael E. McLachlan:

–What this covers by the establishment of the 8-foot zone of separation is it allows a normal conversation to occur.

Michael E. McLachlan:

It is a speech inducing, it’s a speech allowing, it’s a speech endorsement, and that is… that is what this statute allows that the other statute doesn’t address.

Stephen G. Breyer:

But–

Michael E. McLachlan:

The other section just deals with physical… physical contact and… and physical obstruction without… without regard to the proximity between the… the willing listener and… and the demonstrator.

William H. Rehnquist:

–We don’t ordinarily think that to… to be able to speak you have to have State authorization or permission to speak.

The… the view is almost to the contrary that you can speak unless there’s valid prohibition against speech.

Michael E. McLachlan:

That’s correct, Your Honor, and I think it’s important for us to point out again in front of this Court that from 8 feet away all forms of expression, irrespective of their content, are… are encouraged, allowed, and permitted under the statute–

Antonin Scalia:

Well, you… you could say that from… from 100 feet if you use a… you know, a bullhorn, but… but you can’t… what the… what these abortion protestors, which is what this is directed at, generally do is… is… like to say, you know, my dear, have you really considered the consequences?

Are you going to shout this?

My dear, have you really considered?

It’s a totally different… it’s a totally different enterprise when you do it from 8 feet away.

You can’t really seriously say that there’s no difference between approaching someone quietly, confidentially and speaking in… in that kind of a manner and shouting whatever you want to do from 8 feet away.

You… you really assert that there’s no difference?

Michael E. McLachlan:

–Your Honor, 8 feet is a normal conversational tone.

Antonin Scalia:

It is?

Michael E. McLachlan:

Yes, it is, Your Honor.

In fact, in this courtroom–

Antonin Scalia:

My goodness, I… I rarely stand 8 feet away from somebody that I’m talking to.

I don’t stand an eighth of an inch, and… and if that’s what the distance was, I… I’d have no problem here.

But 8 feet?

Michael E. McLachlan:

–I understand, Your Honor, but everybody that you communicate with is a willing listener.

[Laughter]

Antonin Scalia:

Oh, I… I think not.

Don’t be so sure.

[Laughter]

Michael E. McLachlan:

But if I may, Your Honor–

Sandra Day O’Connor:

Don’t be too sure.

[Laughter]

Michael E. McLachlan:

–Yes, ma’am.

But if I may, Your Honor, 8 feet is the precise distance… on an earlier occasion, we were permitted by the Marshal to measure the distances in this courtroom and 8 feet is the distance from this podium to the edge of the Court where the Chief Justice sits.

Anthony M. Kennedy:

Why isn’t this a content-based statute if what it does is foreclose discussion of all the issues Justice Ginsburg was mentioning with relation to the health… health care system?

Michael E. McLachlan:

I’m sorry, Your Honor.

Anthony M. Kennedy:

Why isn’t this content-based because it has… imposes a special burden on people who want to discuss issues, all of the ones Justice Ginsburg raised and more, HMO cost, et cetera, with reference to the health system?

Michael E. McLachlan:

It’s not content-based because it allows… it takes no side on the debate.

It… it simply designates a–

Anthony M. Kennedy:

It forecloses all debate on that subject.

Michael E. McLachlan:

–All… all debates on the… no subject.

Anthony M. Kennedy:

Well, on the subject of health care.

That’s the whole justification for the statute or how the health care facilities are being operated.

Michael E. McLachlan:

Again, within the 100… 100-foot from an entrance of a facility, it allows completely for both uninhibited debate on all topics and it allows it if the listener wants–

Anthony M. Kennedy:

You’re saying the statute is not content-based if it forecloses discussions on both sides of… of a particular subject.

Michael E. McLachlan:

–It doesn’t foreclose discussions, Your Honor.

Anthony M. Kennedy:

That’s not my definition of content–

Michael E. McLachlan:

All discussions can occur from 8 feet, and if the… if the listener is willing to allow a… a person to approach… and again, one of the reasons for the 8 feet is a very common sense thing.

John Paul Stevens:

–This would cover a protest over the death penalty as well as something to do with health care, wouldn’t it?

Would this statute apply to somebody who wants to speak about the death penalty?

Michael E. McLachlan:

If it… yes, yes, it would.

John Paul Stevens:

So, I mean, not only point of view, but also a wide range of subject matter can be spoken in… in this kind of activity.

Michael E. McLachlan:

That’s correct, Your Honor, if it meets the statutory definition, oral protest, education, or–

Anthony M. Kennedy:

If you’re interested in health care issues, do you go to a health care facility or to the zoo?

Michael E. McLachlan:

–I think probably you would go to your insurance carrier, if you have one, or you would go to your doctor and you would want to make sure that you would have access to your doctor because the Colorado legislature has provided that you will have that access through the operation of the statute.

Antonin Scalia:

Why… why wouldn’t it suffice for the concerns of the State here to… to prohibit any intimidating approach by speech or otherwise?

I mean, what the State has prohibited here is speech.

It’s the only thing that is prohibited is speech, not intimidation, not approaching.

Why wouldn’t prohibiting an intimidating approach suffice?

Michael E. McLachlan:

Again, Your Honor, it’s our position that there is no prohibition.

There is simply a minimal restriction, a minimal burden with inside of the 8 feet.

William H. Rehnquist:

Thank you, Mr. McLachlan.

Ms. Underwood, we’ll hear from you.

Barbara D. Underwood:

Thank you.

Mr. Chief Justice, and may it please the Court:

Barbara D. Underwood:

Under this statute, petitioners are free to say and to show anything they want to people near a health care facility.

They can shout or they can talk in normal tones.

They can offer literature and hold up signs and pictures that can be seen by their target audience.

They can station themselves where the patients will have to pass by much closer than 8 feet.

They just can’t move toward the target without consent once the distance between them is 8 feet or less.

Antonin Scalia:

Ms. Underwood–

–If… if that is so reasonable, I assume it… it could apply… could be applied to normal labor picketing at any facility.

I mean, it’s so reasonable.

You can say whatever you want.

You can… you think it would be constitutional applied to normal labor picketing?

Barbara D. Underwood:

No, not a general… not… not a general statute like–

Antonin Scalia:

Why not?

Barbara D. Underwood:

–Well, Colorado was responding to a particular need.

If the same need existed, which is–

Antonin Scalia:

Well, there’s violence in… you… you unaware that there… that there have occurred instances of violence and intimidation in labor picketing?

Barbara D. Underwood:

–Well, the Court has–

Antonin Scalia:

We can make the same finding they have here and say all… all picketing… you know, we apply it generally to all… all commercial establishments.

Barbara D. Underwood:

–Colorado hasn’t made that finding that… I don’t think that finding would be supported.

And we do expect… we have a tradition of people being of rather more robust activity–

Antonin Scalia:

So, there is some problem about… about not letting somebody come closer than 8 feet.

You’re not–

Barbara D. Underwood:

–There is a First Amendment issue.

I don’t think there’s a problem with this statute.

William H. Rehnquist:

–Not a real–

–So, you’re saying, Ms. Underwood, that… you know, supposing Colorado on the basis of things that happened out there in the early 20th century… read Moyer against Peabody if you want to find out about it.

And there is violence in labor picketing.

We’re going to impose this same regulation.

You say that would be judged by a different standard, or that it would… that it would fail, whereas this would succeed?

That’s a very strange position.

Barbara D. Underwood:

No.

Barbara D. Underwood:

What I meant to say was that if… if exactly the same findings and exactly the same need were found, then the same statute would be upheld.

But it–

Stephen G. Breyer:

Well, it might or might… wouldn’t it be for the labor board in the labor case… the constitutional issue has to presuppose that the labor board made findings like Colorado and then, as a labor law matter, laid it down.

And the question would be is that unconstitutional if the labor board did it.

Is that right?

Barbara D. Underwood:

–That’s right.

William H. Rehnquist:

Well, why… why do you say that’s right in this very peripheral discussion?

I mean, let’s suppose Colorado passes a statute affecting labor picketing this same way and it is simply challenged on a First Amendment basis.

The labor board doesn’t even get into it.

I take it that the answer you gave to my question is… is the correct one.

Barbara D. Underwood:

If Colorado made findings that… that there was a problem of violence and intimidation that arose out of one-to-one close… close approaches of the sort here and that was not capable of being dealt with in any other way, as Colorado had tried to do here and that a statute like this was the least restrictive or at least the… was the most appropriate way of dealing with the problem, then such a statute would be upheld.

There is no such finding and there is–

Sandra Day O’Connor:

Is it necessary that there be hearings and findings in order to sustain a statute like this?

Barbara D. Underwood:

–It is necessary that the judgment be supported.

This Court reviews the judgments of legislatures with some deference when a factual matter is concerned and hearings and findings are helpful, but the Court has never prescribed a particular method for… for–

Sandra Day O’Connor:

But is there… there is Federal legislation, is there not?

Barbara D. Underwood:

–Yes.

Sandra Day O’Connor:

A Federal Freedom of Access to Clinic Entrances Act?

Barbara D. Underwood:

Yes, there is.

Sandra Day O’Connor:

And how does that differ from this?

And was that factored into the hearings and the findings, the effect of that Federal act?

Barbara D. Underwood:

Well, this statute was passed before the Federal Access to Clinics Act was passed, about a year before.

Under the Federal Access to Clinics Act, an injunction can issue and, in at least one case that we’ve called to the Court’s attention, has issued, that imposes a similar sort of restriction.

There are differences, obviously, between the way injunctions are judged and the way statutes are judged, but that some evidence that under the Federal statute it has been found necessary by courts, pursuant to the statute, to impose a no-approach… a small no-approach zone in order to protect against intimidation and… and threats.

This is not the floating bubble of Schenck or the no-approach rule of Madsen for several reasons.

As… as has been noted, the target can’t create a violation here.

The distance in question is 8 feet rather than 15.

In Madsen, while there was a no-approach rule that the Court rejected, there was in the same case a 36-foot absolute ban which covered most of the approach to the… to the facility that the Court… that the Court upheld.

The matter… there was a discussion about whether this is content-based.

This Court has found many similar bans to be content-neutral.

Barbara D. Underwood:

I understand there’s an argument that there is some speech that’s covered and some not.

But the Court in Grace held that the ban on displays was content-neutral; in Heffron, that the ban on demonstrating… that the ban on distributing written materials was content-neutral.

And in fact, in Schenck and Madsen, it found that those injunctions were content-neutral.

Antonin Scalia:

Excuse me.

In the two cases you mentioned, did those bans refer to the content of the speech as this one does?

It’s only that speech that educates, that counsels, and so forth.

Barbara D. Underwood:

The ban in Grace around the Supreme Court is on flags and devices that call attention to an organization, a movement, or… there clearly… there’s a communicative requirement there that’s quite similar to this.

Presumably a work of art on a flag would not qualify.

And the bans in… in Schenck and Madsen, the ones that were upheld, as well as the ones that were struck down, were on demonstrating, which again is… is essentially what this language captures.

And on the question whether we can look behind the… the words to its purpose, Justice Scalia, you spoke about the purpose of this.

First of all, the clear purpose of the Colorado legislature was to reduce the risk of violence and intimidation at health care facilities, not just at reproductive health care facilities and not just from those with one particular viewpoint.

While it’s true that the anti-abortion protests generated much of the activity that led to the statute, the legislature was clearly aware of and concerned about both reciprocal violence by pro-abortion protestors–

Anthony M. Kennedy:

If there were a sudden interest in the automobile industry, could Colorado have these speech regulatory zones around every auto dealership?

Barbara D. Underwood:

–This isn’t a… first, if exactly the same findings were made, obviously, it seems to me–

Anthony M. Kennedy:

You don’t like that term speech regulatory zone?

That’s what this is.

Barbara D. Underwood:

–No.

It’s an approach regulatory zone, and I’d like to take issue with this–

Anthony M. Kennedy:

But what about the hypothetical?

Approach regulatory zone?

Barbara D. Underwood:

–Yes.

What this statute prohibits is moving in on somebody.

It doesn’t–

Antonin Scalia:

It’s not an approach… you can approach as close as you like so long as you don’t speak.

Barbara D. Underwood:

–No, that’s not right.

You have the purpose–

Antonin Scalia:

It’s only the person who approaches to speak or to… or to hand a leaflet–

Barbara D. Underwood:

–With… with that–

Antonin Scalia:

–who is prohibited.

Barbara D. Underwood:

–With that purpose.

Barbara D. Underwood:

Actually I’d like to just on the words of the statute… what has to happen is an approach.

The… the advocacy aspect of the statute is the purpose.

You don’t have to get as–

Antonin Scalia:

Approach with the intention of.

Barbara D. Underwood:

–With the intent.

You can approach without intent–

Antonin Scalia:

Right.

With the intention of speaking.

Barbara D. Underwood:

–without getting to the point of speaking.

Anthony M. Kennedy:

Or you could do this just for auto dealerships–

Barbara D. Underwood:

If there were–

Anthony M. Kennedy:

–or law offices.

How about lawyers?

Any law office?

No.

Barbara D. Underwood:

–If there were a problem–

Anthony M. Kennedy:

And what I’m… what I’m trying to find out is if this isn’t a basis to say that this is content-controlled and not content… that obviously underlies the question.

That’s what I’d like you to address.

Barbara D. Underwood:

–No, it’s not content control.

It is facility protective.

There is a problem at health care facilities, a problem of intimidation and violence, that Colorado–

Anthony M. Kennedy:

Because of the message that goes on there.

Barbara D. Underwood:

–No.

Actually with respect to a great many messages, although there’s one that perhaps is more common than others.

There is a problem.

The legislature is not required to act with respect to problems that don’t exist.

And if you’re hypothesizing a world in which people are intimidating people from buying cars by coming up close to them in their face and… and showing them pictures of automobile accidents, then perhaps Colorado would want to do something and could do something like what it did here, which is to permit them to show those pictures and to permit them to give those messages, but to require them not to move in on somebody closer than 8 feet.

Antonin Scalia:

Ms. Underwood, what about… what about the consent requirement?

Now, you know, we… we allow people to prevent unwelcome speech in their homes.

You can cancel, you know… require mail not to be delivered.

Antonin Scalia:

You can have a city ordinance saying I don’t want any… you need consent before hawkers can come to the door.

But in the public forum outside in the street, can… can we have a law that… that enables people to… to turn off unwelcome speech?

Barbara D. Underwood:

Not to turn off unwelcome… may I answer, Mr. Chief Justice?

Not to turn off unwelcome speech.

To repel unwanted close approaches.

This is about a close approach and not about speech at all.

William H. Rehnquist:

Thank you, Ms. Underwood.

Mr. Sekulow, you have 3 minutes remaining.

Jay Alan Sekulow:

Thank you, Mr. Chief Justice.

With regard to the Free Access to Clinic Entrances Act, Justice O’Connor, it specifically exempts First Amendment activities.

With regard to reliance on United States v. Grace, on page 176 of this Court’s opinion… I’m quoting… we also accept the Government’s contention not contested by appellees about the content of the speech.

We are contesting that here.

Ruth Bader Ginsburg:

Mr. Sekulow–

Jay Alan Sekulow:

Yes.

Ruth Bader Ginsburg:

–am I wrong in thinking that there… there’s legislation that establishes quiet zones around hospitals, around schools, which would be much more restrictive than what’s involved here, based on the character of the facility?

Is that not so?

Jay Alan Sekulow:

You often see signs even that say quiet zones.

I think the difference is here a silent approach without any words to distribute a leaflet requires consent.

Stephen G. Breyer:

Well, is it–

Jay Alan Sekulow:

And it’s not a quiet zone here that they’re talking about.

There’s nothing… no prohibition here that says you can’t talk loud.

Stephen G. Breyer:

–But… but given the fact that there is a history of women in a very vulnerable, emotionally charged state, in a difficult physical condition, and given the fact that using words like you can’t harass and you can’t… whatever those words are in section 2… are very hard to interpret, could you say that having 8 feet as the limit between my fist and your face, so to speak, helps the First Amendment?

It makes clear what you can do and what you can’t do–

Jay Alan Sekulow:

No.

Stephen G. Breyer:

–rather than every time getting into an argument about what constitutes harassment.

Jay Alan Sekulow:

Justice Breyer, this case… this particular statute is a criminal statute.

It requires precision of regulation.

An 8-foot prohibition here requiring consent we believe violates the First Amendment.

There is not a First Amendment health care exception.

I am sure–

Stephen G. Breyer:

That’s my very point.

Why isn’t it more precise to say 8 feet than to say in each case we’ll… we’ll litigate whether my waving my arm or something like that did or did not constitute harassment?

Jay Alan Sekulow:

–I think for the exact same reason that this Court in Madsen and in Schenck rejected the health care exception to the First Amendment.

I think it points to the situation in NAACP v. Clayborne Hardware.

I’m sure the… the gentleman that ran Clayborne Hardware would have rather not had those protestors out in front of his stores.

And maybe he had a heart condition, and if he did, I don’t think you can carry a sign that says I’ve got a heart condition, don’t approach you.

Ruth Bader Ginsburg:

But, Mr. Sekulow, isn’t there something different about a hospital, I mean, wholly apart from the question of abortion clinics?

Haven’t there been restrictions on speech activity around schools?

I mean, mostly the problem was not that they… you couldn’t have the restriction, but you couldn’t favor one speaker.

Jay Alan Sekulow:

But this Court has also said in those same contexts… Mr. Chief Justice, my time is expired.

Would the Court like me to respond?

William H. Rehnquist:

Briefly.

Jay Alan Sekulow:

The difference is there the question was was the conduct going to aggravate what was going on inside, and because the courts there gave a narrowing construction that only when it… it violates what’s going on inside or causes a problem, that there would be a violation.

That’s not the case here.

Thank you, Mr. Chief Justice.

William H. Rehnquist:

Thank you, Mr. Sekulow.

The case is submitted.