LOCATION: Colorado State Legislature
DOCKET NO.: 98-1856
DECIDED BY: Rehnquist Court (1986-2005)
LOWER COURT: Colorado Supreme Court
CITATION: 530 US 703 (2000)
ARGUED: Jan 19, 2000
DECIDED: Jun 28, 2000
Barbara D. Underwood - Argued the cause for the United States, as amicus curiae, by special leave of court, supporting the respondents
Jay Alan Sekulow - Argued the cause for the petitioners
Michael E. McLachlan - Denver, Colorado, argued the cause for the respondents
Facts of the case
A Colorado statute makes it unlawful for any person within 100 feet of a health care facility's entrance to "knowingly approach" within 8 feet of another person, without that person's consent, in order to pass "a leaflet or handbill to, display a sign to, or engage in oral protest, education, or counseling with [that] person...." Leila Hill and others, sidewalk counselors who offer abortion alternatives to women entering abortion clinics, sought to enjoin the statute's enforcement in state court, claiming violations of their First Amendment free speech rights and right to a free press. In dismissing the complaint, the trial court held that the statute imposed content-neutral time, place, and manner restrictions narrowly tailored to serve a significant government interest and left open ample alternative channels of communication. The Colorado Court of Appeals affirmed, and the Colorado Supreme Court denied review. The U.S. Supreme Court vacated that judgment after holding that a provision creating a speech-free floating buffer zone with a 15-foot radius violated the First Amendment. On remand, the Colorado Court of Appeals reinstated its judgment. In affirming, the Colorado Supreme Court reiterated the lower court's conclusions. The court concluded that the statute struck a proper balance between a person's right to protest and a person's right to medical treatment.
Does Colorado's statutory requirement that speakers obtain consent from people within 100 feet of a health care facility's entrance before speaking, displaying signs, or distributing leaflets to such people violate the First Amendment rights of the speaker?
Media for Hill v. ColoradoAudio Transcription for Oral Argument - January 19, 2000 in Hill v. Colorado
Audio Transcription for Opinion Announcement - June 28, 2000 in Hill v. Colorado
William H. Rehnquist:
The opinion of the Court in No. 98-1856, Hill against Colorado will be announced by Justice Stevens.
John Paul Stevens:
This case comes to us on a writ of certiorari to the Supreme Court of Colorado.
At issue is the constitutionality of a 1993 Colorado statute that regulates speech-related conduct within 100-feet of the entrance to any healthcare facility in the State.
The challenged section of the statute makes it unlawful within the regulated areas for any person to “knowingly approach” within eight feet of another 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 such other person.”
Petitioners are opponents of abortion and engage in a practice that they call Sidewalk Counseling.
They regularly attempt to inform others about abortion and abortion alternatives outside of healthcare facilities through verbal speech, signs, and distribution of literature.
Although, the State of Colorado presented evidence that demonstrations in front of abortion clinics sometimes in TDEx as to those clinics and were often confrontational.
There was no evidence that the petitioners in this case were ever abusive or confrontational.
The basic question is whether the First Amendment rights of the petitioners are abridged by the protection the statute provides for the unwilling listener.
The Colorado Supreme Court unanimously upheld the constitutionality of the statute as a valid time, place, and manner restrictions.
For reason stated in an opinion filed with the Clerk, we affirm that decision.
We began by pointing out the significant difference between State restrictions on a speaker’s right to address a willing audience, and those that protect unwilling listeners from unwanted communication.
This statute deals only with the latter.
It is significant that the statute does not place any limit whatsoever on what maybe set or displayed more than eight feet from the listener and it doesn’t place any limit on what maybe said if the listener consents to the speaker coming within eight feet of the speaker.
The right to free speech of course includes the right to attempt to persuade others to change their views, and may not be curtailed simply because the speaker’s message maybe offensive to his audience, but the protection afforded to offensive messages does not always embrace speech that is so intrusive that the unwilling listener cannot avoid it.
In a case decided in 1921 in a very different context, Chief Justice Taft explained the interest of the unwilling listener in this language, “How far may men go in persuasion and communication, and still not violate the right of those whom they would influence?
In going to and from work, men have a right to as free a passage without obstruction as the streets afford, consistent with the right of others to enjoy the same privilege.
We are a social people, and the accosting by one of another in an inoffensive way and an offer by one to communicate and discuss information with a view to influencing the other's action are not regarded as aggression or a violation of that other's rights.
If, however, the offer is declined, as it may rightfully be, then persistence, importunity, following and dogging, become unjustifiable annoyance and obstruction which is likely soon to savor of intimidation.
From all of this the person sought to be influenced has a right to be free.”
The unwilling listener’s interest has been repeatedly identified in our cases.
It is an aspect of the broader right to be let on that one of our wisest Justice, Justice Brandeis characterized as “the most comprehensive of rights and the right most valued by civilized men.”
The Colorado Supreme Court was correct to conclude that this regulation is a content-neutral time, place, or manner restriction.
It was not adopted because the State disagreed with any particular message and the State’s interest in protecting access and privacy are unrelated to the content of the demonstrator’s speech.
Petitioners nevertheless argued that the statute is not content-neutral, because an individual near a healthcare facility who knowingly approaches a pedestrian to say good morning or to randomly reside a few lines from a novel would not be subject to the statute’s restriction of oral protest, education and counseling.
This argument is misplaced.
It is common in the law to examine the content of a communication to determine the speaker’s purpose, whether a particular statement constitutes a threat, blackmail, an agreement to fix prices, a copyright violation, a public offering of securities, or an offer to sell goods often depends on the precise content of the statement.
At most the necessary review under this statute need to be no more extensive than a simple determination of whether a general prohibition of picketing or demonstrating applies to innocuous speech, which we have never found constitutionally problematic.
The Colorado Statute’s regulation places no restrictions on and clearly does not prohibit either a particular viewpoint or any subject matter that may be discussed by a speaker.
It applies equally to used car salesmen, animal rights activists, fundraisers, environmentalists, and missionaries.