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No. 98-1856: Hill v. Colorado

No. 98-1856

In the Supreme Court of the United States

LEILA JEANNE HILL, ET AL., PETITIONERS
v.
STATE OF COLORADO, ET AL.

ON WRIT OF CERTIORARI
TO THE SUPREME COURT OF COLORADO

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING RESPONDENTS

SETH P. WAXMAN
Solicitor General
Counsel of Record
BILL LANN LEE
Acting Assistant Attorney
General
BARBARA D. UNDERWOOD
Deputy Solicitor General
BETH S. BRINKMANN
Assistant to the Solicitor
General
DAVID K. FLYNN
LOUIS E. PERAERTZ
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217





QUESTION PRESENTED

Colorado Revised Statute § 18-9-122(3) prohibits a person, within 100feet from any entrance door to a health care facility, from "knowinglyapproach[ing] another person within eight feet of such person, unless suchother person consents, for the purpose of passing a leaflet or handbillto, displaying a sign to, or engaging in oral protest, education, or counselingwith such other person in the public way or sidewalk area." The questionpresented is whether Section 18-9-122(3), on its face, violates the FirstAmendment.





In the Supreme Court of the United States

No. 98-1856
LEILA JEANNE HILL, ET AL., PETITIONERS
v.
STATE OF COLORADO, ET AL.

ON WRIT OF CERTIORARI
TO THE SUPREME COURT OF COLORADO

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING RESPONDENTS





INTERESTS OF THE UNITED STATES

Colorado Revised Statute § 18-9-122(3) (1998) [hereinafter "subsection(3)"] prohibits a person, within 100 feet from any entrance door toa health care facility, from "knowingly approach[ing] another personwithin eight feet of such person, unless such other person consents, forthe purpose of passing a leaflet or handbill to, displaying a sign to, orengaging in oral protest, education, or counseling with such other personin the public way or sidewalk area." Petitioners argue that this limitationon approaching violates the First Amendment.
The Attorney General of the United States has primary responsibility forenforcing the Freedom of Access to Clinic Entrances Act of 1994 (AccessAct), 18 U.S.C. 248. The Access Act prohibits, inter alia, the use or threatof force, or physical obstruction, to injure, intimidate, or interfere withany person because that person is, or has been, obtaining or providing reproductivehealth services, or to intimidate them from doing so in the future. 18 U.S.C.248(a)(1). The Access Act provides for criminal and civil enforcement bythe Attorney General, as well as private civil enforcement. Injunctive reliefis specified as a remedy available under that Act in civil actions broughtby the Attorney General, 18 U.S.C. 248(c)(2)(B), and the injunctive reliefobtained under the statute can include restrictions on the distance withinwhich protesters may approach persons near a health care facility.1 Theprinciples that the Court articulates in this case could influence the scopeof injunctive relief available under the Act. The United States thereforehas a significant interest in the resolution of this case.
The United States also has a significant interest in seeing that adequaterelief is available against those who impede access to medical clinics,as well as preserving the ability of citizens to exercise their First Amendmentrights in a manner compatible with the rights of others.






STATEMENT

1. On April 19, 1993, Colorado enacted Colorado Revised Statute § 18-9-122.See J.A. 16-17; App., infra, 1a-2a. In subsection (1), the state legislatureset forth its purpose:
The general assembly recognizes that access to health care facilities forthe purpose of obtaining medical counseling and treatment is imperativefor the citizens of this state; that the exercise of a person's right toprotest or counsel against certain medical procedures must be balanced againstanother person's right to obtain medical counseling and treatment in anunobstructed manner; and that preventing the willful obstruction of a person'saccess to medical counseling and treatment at a health care facility isa matter of statewide con- cern. * * *
To implement this purpose, subsection (2) makes it a misdemeanor if a person"knowingly obstructs, detains, hinders, impedes, or blocks anotherperson's entry to or exit from a health care facility," and subsection(3) establishes the approach limitation at issue here, making it a misdemeanorto "knowingly approach another person within eight feet of such person,unless such other person consents, for the purpose of passing a leafletor handbill to, displaying a sign to, or engaging in oral protest, education,or counseling with such other person in the public way or sidewalk areawithin a radius of one hundred feet from any entrance door to a health carefacility."
The House and Senate Judiciary Committees of the Colorado legislature devotedconsiderable attention, during the hearings that preceded enactment of subsection(3), to the question of balancing the need of patients for safe, unobstructedaccess to health care facilities against the right of others to engage inexpressive conduct. J.A. 58-216. Evidence was introduced at the hearingsdemonstrating that on numerous occasions, conduct by protesters outsidehealth care facilities providing abortion-related services included effortsto block access to the facility, as well as to harass and intimidate patientsand staff. J.A. 63, 66-71, 105. The legislature also learned that effortsto identify persons who committed physical assaults outside health carefacilities were unsuccessful because it was not possible to identify theassailants in the large crowd of people present. J.A. 94. In addition, witnessestestified that the presence of escorts for patients was insufficient topermit safe access to health care facilities. J.A. 70.
Evidence before the state legislature also established that, out of 60,000patients who obtained services at one of the health care facilities discussed,only seven percent were there to seek counseling or services related toabortions. Nevertheless, all patients were subjected to the same treatmentby protesters. J.A. 62. A witness, speaking on behalf of persons with disabilities,also testified about protests related to issues other than abortion, whichescalated beyond aggressive advocacy and led to assaults on two people withdisabilities. J.A. 155. The witness testified that protesters who use suchtactics create a particularly difficult situation for persons with physicaldisabilities who are seen as "easy to push around." Ibid.
Proponents of subsection (3) argued that it was a reasonable time, place,and manner restriction (J.A. 60, 114, 116, 123), noting that the eight-footapproach limitation is smaller than restrictions found in some other statutesand ordinances (J.A. 61, 116, 149). Opponents argued that while some protestersmay engage in obstructive or intimidating conduct, the pro-life movementis largely engaged in peaceful advocacy (J.A. 73, 96, 179, 181), and merelytries to provide information about alternatives to abortion (J.A. 73, 168,181).

2. Petitioners are three individuals who demonstrate on sidewalks and roadwaysoutside health care facilities where abortion counseling, services, andprocedures are provided. Pet. App. 10a. Petitioners use various methodsof communication to "educate, dissuade, inform and advise individualsabout abortion and abortion alternatives," including verbal communication,placards, leaflets, and other demonstrative devices. Ibid.
In October 1993, petitioners filed a complaint in state court seeking adeclaratory judgment that subsection (3) violates their federal constitutionalrights to freedom of speech, press, peaceable assembly, due process, andequal protection (J.A. 20-29) and seeking an injunction against enforcementof the statute by the State of Colorado and various state and local officialswho were sued in their official capacities (collectively "the State").Pet. App. 4a, 30a-31a. The trial court granted the State's motion for summaryjudgment, id. at 30a-37a, holding that subsection (3) is content-neutraland is a valid "time, place and manner" restriction, narrowlytailored to serve a significant government interest, i.e., preventing the"abuses that impede ingress and egress to medical facilities,"id. at 33a-34a. The trial court found that subsection (3) "leaves openample alternative means of communication" because at the eight-footdistance petitioners' signs and leaflets can be seen, and speech can beheard. Id. at 34a. The trial court also held that the statute is not overbroad,vague, or an unlawful prior restraint. Id. at 34a-36a.

3. The Colorado Court of Appeals affirmed, likewise holding that subsection(3) is a content-neutral restriction narrowly tailored to serve a significantgovernmental interest, "namely, to ensure the safety and unobstructedaccess for patients and staff entering and departing from health care facilities."Pet. App. 43a. The court emphasized that reasonable alternative means forcommunication remain available, because the eight-foot limitation on nonconsensualapproaches does not prevent the intended audience from hearing the oralcommunication or seeing the posters and signs. Ibid. The court also rejectedpetitioners' claims that the statute is vague and a prior restraint. Id.at 44a-45a. The Colorado Supreme Court denied discretionary review. Id.at 46a.

4. Petitioners sought review in this Court. While their petition for certiorariwas pending, the Court decided Schenck v. Pro-Choice Network, 519 U.S. 357(1997). In Schenck, the Court upheld, against First Amendment challenge,an injunction banning "demonstrating within fifteen feet from eitherside or edge of, or in front of, doorways or doorway entrances, parkinglot entrances, driveways and driveway entrances" to an abortion clinic(termed a "fixed buffer zone"), id. at 380-385,2 but invalidatedan injunction banning demonstrations "within fifteen feet of any personor vehicle seeking access to or leaving" a clinic (termed a "floatingbuffer zone"), id. at 377-380. The Court held that the fixed zone wasnecessary to ensure access by car and foot to the clinic entrances and parkinglots, id. at 380, but the floating zone burdened more speech than was necessaryand, because of the way it operated, made it difficult for a protester "whowishes to engage in peaceful expressive activities to know how to remainin compliance with the injunction," id. at 378.
On February 24, 1997, this Court granted petitioners' petition for certiorari,vacated the Colorado Court of Appeals' judgment, and remanded the case forfurther consideration in light of Schenck. Pet. App. 47a-48a; 519 U.S. 1145(1997).

5. a. On remand, the Colorado Court of Appeals again upheld subsection (3).Pet. App. 51a-57a. The court noted that Schenck "expressly declinedto hold that a valid governmental interest in ensuring ingress and egressto a medical clinic may never be sufficient to justify a zone of separationbetween individuals entering and leaving the premises and protestors."Id. at 55a. The court of appeals ruled that "the applicable analysisto assess the statute before us" (as opposed to the injunctions atissue in Schenck and in Madsen v. Women's Health Center, Inc., 512 U.S.753 (1994)), "is that adopted in Ward v. Rock Against Racism, 491 U.S.781 (1989)." Pet. App. 55a.
Applying the Ward standard, the court of appeals ruled that subsection (3)is constitutional. It emphasized that the eight-foot limitation imposedon nonconsensual approaches was justified by the governmental interests(supported by evidence that was before the legislature) in ensuring accessto medical care by all persons, not just those seeking abortion services,including "persons with disabilities who lack the physical abilityto move through crowds." Pet. App. 56a. The court also found that amplealternative channels for communication other than leafletting were availablewithin 100 feet of the entrance to health care facilities, including oralspeech, placards, and other visual items. Id. at 57a. The court rejectedpetitioners' contention that it was too difficult to maintain the necessarydistance from nonconsenting persons, emphasizing that the statute prohibitsonly nonconsensual approaches within eight feet that are made "knowingly,"so that a prosecution could not be based on an inadvertent violation. Ibid.
b. The Colorado Supreme Court granted review, limited to the question whethersubsection (3) is constitutional in light of Schenck. Pet. App. 58a-59a.The Court concluded that the statute at issue in this case should receivemore deference than the injunction at issue in Schenck, id. at 19a; thatthe statute is content-neutral and therefore properly analyzed under theWard standard; id. at 21a-22a, and that it constitutes a reasonable restrictionon the time, place, and manner of petitioners' speech, id. at 22a-28a.
The court found that subsection (3) furthers the significant governmentinterest in ensuring access to health care facilities to obtain medicalcounseling and treatment which, the legislative record established, wasbeing hampered by "harassing, confrontational, and violent conduct."Pet. App. 26a. The court also found that the statute is narrowly drawn tofurther that interest, distinguishing the restriction in Schenck on severalgrounds. First, the requirement of a "knowing[] approach"-includingboth a mens rea requirement ("knowingly") and an actus reus requirement("approach")-eliminates the risk that protesters could violatethe restriction inadvertently, or even by deliberately standing still whilean individual approaches the protester. Id. at 24a-25a. The court explained:
If one of the petitioners is standing still within the fixed buffer zone,and an individual walks toward him or her, the petitioner need not changehis or her physical positioning to maintain eight feet of distance and thusavoid violating the statute, even if the approaching individual comes withinless than eight feet of the petitioner. In other words, so long as the petitionerremains still, he or she cannot commit the actus reus of approaching, eventhough he or she may well have the requisite mens rea of "knowingly."Thus, in any scenario, petitioners are free to attempt to speak with whomeverthey wish and they will not violate the statute, so long as the mens reaand actus reus do not coincide. * * * Therefore, any risk of an inadvertentviolation involving an "innocent" passer-by is, at most, de minimus.
Ibid.; see also id. at 28a.
Second, the eight-foot limitation on approaches established by the Coloradostatute is small enough to allow protesters to communicate across that distancein normal conversational tones, unlike the fifteen-foot buffer zone in Schenck.Pet. App. 28a. The Colorado Supreme Court therefore did not believe that,"even under the Schenck test, [subsection] (3) burdens more speechthan is necessary." Ibid.
Finally, the Colorado Supreme Court held, subsection (3) allows ample alternatemeans of communication. Pet. App. 26a-28a. The court emphasized that "[p]etitioners,indeed, everyone, are still able to protest, counsel, shout, implore, dissuade,persuade, educate, inform, and distribute literature regarding abortion."Id. at 26a-27a. "On its face, there is nothing that prohibits protestersfrom being seen and heard by those accessing health care facilities as wellas passers-by." Ibid.





SUMMARY OF ARGUMENT

Subsection (3) of Colorado Revised Statutes § 18-9-122 limits to eightfeet the distance within which a person can knowingly approach another personwho is within 100 feet of a health care facility, without that latter person'sconsent. The statute is intended to ensure safe, unobstructed access tohealth care facilities in the State. It is aimed at prohibiting the crowding,harassing, coercive, and threatening conduct in close proximity to patientswhich the legislative record demonstrated often accompanies communicationin front of health care facilities and impedes safe, unobstructed accessto them. Subsection (3) does not create a floating buffer zone or a speech-freezone. Petitioners remain free to engage in communicative conduct, such asoral persuasion, leafletting, and sign displays, within arms' length ofpersons entering and leaving a health care facility (as well as passers-by),while standing on the public way leading to health care facilities. Whatpetitioners cannot do within 100 feet of the entrance to a health care facilityis knowingly approach a person closer than eight feet without the person'sconsent.
Subsection (3) is a valid, content-neutral regulation of the time, place,and manner of speech. The fact that it applies to approaches for the purposeof engaging in oral protest, education, or counseling does not render itcontent-based. The limitation applies irrespective of the subject or theviewpoint. The statute also is not content-based merely because it leavesunregulated a small category of everyday communications or because it allowsa person to deny consent for a speaker to approach within eight feet.
The statute furthers the government's significant, indeed compelling, interestin ensuring its citizens the freedom to seek lawful medical services byproviding for safe, unobstructed access to health care facilities, withoutburdening more speech than necessary. The statute is narrowly tailored toaddress the problem of expressive conduct that threatens safe access tohealth care facilities, because the statute merely imposes a limitationon approaches to persons who do not want to be in close physical proximityto protesters. That tailored approach is particularly appropriate here wherethe majority of such persons are seeking medical services and frequentlyare vulnerable because of an illness, and may not be able to choose a differenthealth care provider because of limitations imposed by insurance or accessibility.The statute leaves open ample alternative means of communication. The eight-footlimitation on approaches does not prevent communication at closer rangeif the protestor is stationary and the distance is closed by the listener.And, even at eight feet, speech can be readily heard and placards clearlyseen.
Even if subsection (3) is analyzed as a content-based limitation, it survivesconstitutional scrutiny in light of the compelling government interest atstake and the narrowly tailored nature of the limitation on approaches.





ARGUMENT


COLORADO REVISED STATUTE § 18-9-122(3) IS NOT FACIALLY INVALID UNDERTHE FIRST AMENDMENT

A. Subsection (3) Is A Reasonable Regulation Of The Time, Place, And MannerOf Speech Rather Than Its Content

1. Subsection (3)'s prohibition on an approach at a distance closer thaneight feet, within 100 feet of the entrance to a health care facility, regulatesthe conduct of speakers and not their message. There is no message thatpetitioners are prevented from communicating to people entering, leaving,or passing by a health care facility. Nor does the statute create a speech-freezone around persons who enter, leave, or pass by a health care facility,like the zone disapproved by this Court in Schenck.
First, what is prohibited within eight feet of a targeted listener is notspeech, but only a "knowing[] approach." If the distance betweenspeaker and audience is closed by the listener and not by the speaker, therecan be no violation of the statute. Thus, petitioners may station themselveson the public way or sidewalk leading to a health care facility, includingnear the entrance, in a location that must be passed by anyone enteringor leaving the facility, and there petitioners may engage in any mannerof communication directed toward those entering, leaving, or passing bythe facility-including speaking, leafletting, and sign displays-even ifthey are only a few feet from such persons.
Second, if protesters are not successful in stationing themselves closerthan eight feet to their audience without making a prohibited approach,the eight-foot limitation on approaches created by the statute is sufficientlymodest to permit protesters to deliver their message in normal conversationaltones, and to display signs and posters that can easily be seen and read.See Madsen, 512 U.S. at 770 (demonstrators could "still be seen andheard" at a distance of 10 to 12 feet). The only thing petitionersmay not do is pursue within striking distance of their audience. Eight feetis close enough to deliver a message, but not close enough to obstruct accessor to deliver a blow.
Thus, it is not true, as petitioners' amici claim (American Federation ofLabor and Congress of Industrial Organization (AFL-CIO) Br. 7), that thestatute "entirely precludes normal handbilling and leafletting."What it precludes is an unconsented approach at a distance of less thaneight feet. For example, some persons entering or leaving the facility mayseek to maximize the physical distance between themselves and petitioners.In that circumstance, the limitation on approaching prohibits protestersfrom following or pursuing the person at a distance closer than eight feet.More generally, the limitation prohibits protesters from closing the distancebetween themselves and others, including in some instances, in a targetedmanner that can easily resemble an assault or quickly lead to obstructivebehavior.
In Schenck the Court expressly reserved the possibility that governmentinterests could "justify some sort of zone of separation between individualsentering the clinics and protesters, measured by the distance between thetwo." 519 U.S. at 377. Colorado has carefully avoided the deficienciesthis Court identified in Schenck as fatal to the zone created in that case.First, unlike in Schenck, what is prohibited here is not speech but an "approach,"and, therefore, there is no zone that "floats" with the listenerin a way that lets him or her push a speaker into the street or into violationof the law by walking near the speaker. And second, the eight-foot limitationon approaches created here, unlike the 15-foot zone struck down in Schenck,is narrowly tailored to the purpose of preventing assaults, intimidation,and obstruction without unduly burdening speech.

2. a. Subsection (3)'s limitation on the distance within which a personcan approach for the purpose of certain specified types of expressive conductdoes not depend on the content of that expression. With respect to the displayof signs or the passing of a leaflet or handbill, the content-neutralityof the statute cannot fairly be disputed. See Pet. Br. 9 (noting that eight-footlimit on nonconsensual approaches within 100 feet of health care clinicapplies to pizzeria employee distributing coupons, nurse distributing flyerabout working conditions, and evangelist distributing religious tracts).Thus, it is clear that the constitutionality of those limitations underthe First Amendment is properly decided by determining whether they arereasonable time, place, or manner restrictions. Ward v. Rock Against Racism,491 U.S. 781, 790-791 (1989).3
Petitioners claim (Br. 32, 34) that when the limitation is applied to unconsentedoral protest, education, or counseling, it becomes content-based and, thus,subject to a higher level of constitutional scrutiny. That is incorrect.To begin with, subsection (3)'s limitation on approaches is not based onthe subject matter or viewpoint of the communication. It applies to personswho knowingly approach for the purpose of protesting, educating, or counselingabout animal testing, labor issues, religion, politics, or any other subject.And it applies to persons who approach for the purpose of protesting, educating,or counseling about any side of any issue. Indeed, subsection (3) appliesnot only to protesters, but also to escorts at a health care facility who,like all others, cannot, within 100 feet of the door of a facility, knowinglyapproach within eight feet of someone for the purpose of protesting, educating,or counseling, unless they obtain the consent of that person. Thus, theconduct limitation here is far different from the viewpoint and subject-matterdistinctions at issue in cases such as Rosenberger v. Rector & Visitorsof University of Virginia, 515 U.S. 819 (1995); Simon & Schuster, Inc.v. Members of the New York State Crime Victims Board, 502 U.S. 105, 115-118(1991); R.A.V. v. City of St. Paul, 505 U.S. 377, 381-385 (1992), and therestrictions placed on speech because of listeners' reactions in cases suchas Reno v. American Civil Liberties Union, 521 U.S. 844, 868 (1997); ForsythCounty v. Nationalist Movement, 505 U.S. 123, 133-135 (1992); and Boos v.Barry, 485 U.S. 312, 321 (1988).
The history of subsection (3) confirms that it prohibits a person from knowinglyapproaching within eight feet of another person irrespective of whetherthe person is an opponent or proponent of abortion rights, animal rights,Medicaid regulations, or labor issues. A witness before the Colorado legislature,speaking on behalf of persons with disabilities, testified about instancesin which animal rights activists and anti-Medicaid protesters engaged inassaultive, obstructive, and intimidating conduct that impeded the accessof those with disabilities to medical facilities. J.A. 107-108. The legislatorwho proposed what became subsection (3) expressly referred to that testimonyin describing the "overall purpose of this Bill, which is not directedsolely toward [any] type[] of clinic[], but, rather, towards the right ofany patient to seek the medical treatment they need." J.A. 113. Thus,there is no evidence that the State "adopted a regulation of speechbecause of disagreement with the message it conveys." Ward, 491 U.S.at 791.4
Rather than being aimed at any particular speech content, subsection (3)is aimed at the conduct that the legislative record demonstrated often accompaniescommunication in front of health care facilities and impedes safe, unobstructedaccess to them. That conduct includes crowding, harassing, threatening,and coercive conduct in close proximity to patients.
The Colorado legislature had a substantial basis to conclude that expressiveconduct near the State's health care facilities often leads precipitouslyto obstructive and assaultive conduct. Several persons who escorted patientsfrom their cars into reproductive health care facilities testified beforethe legislature that protesters surrounded vehicles and patients from thetime they entered the parking lot until the entrance of health care facilitiesin order to prevent patients' access to the facilities. J.A. 70-71, 98-99,105. One escort testified about her experiences before the enactment ofa Denver ordinance that placed an eight-foot buffer between protesters andpatients:
Being an escort at that time was truly a frightening experience. We weren'tafraid of signs, we weren't afraid of pamphlets, we weren't afraid of words.We were afraid of being physically assaulted, which we were numerous times.We were sorely afraid for our physical safety.
J.A. 93. Another escort testified that she had "been hit by men twice[her] size" while trying to escort patients into a health care facility.J.A. 105.
b. Petitioners are understandably vague about the nature of the allegedcontent discrimination about which they complain. They note only (Pet. Br.32 n.23) that the greeting "good morning," or the recitation ofa few lines of literature, would not be subject to the statute. Petitioners'amici similarly emphasize (American Civil Liberties Union (ACLU) Br. 10;AFL-CIO Br. 8) that subsection (3) allows a person to approach another personwithin eight feet to ask for directions or for the time, regardless of whetherthey are within 100 feet of the entrance to a health care facility. Admittedly,such fleeting, ordinary communications do not appear to constitute the sortof "protest, education, or counseling" that is the subject ofthe statute. But those trivial exceptions do not render subsection (3) thesort of content-based statute to which this Court has ordinarily appliedstrict scrutiny.
The statute does not except such communications because of some legislativepreference for their content. It is simply that such everyday communicationsare much less likely than protest, education, or counseling to implicatethe concerns that prompted the Colorado legislature to act. Such communicationsare generally random and fleeting and rarely, if ever, are accompanied bythe sort of obstruction, hounding, or other coercive conduct that reasonablycould be perceived as threatening. Moreover, that the statute merely leavesunregulated a small category of everyday communications does not renderit content-based. The limitation in this case is as content-neutral as wasthe provision at issue in United States v. Grace, 461 U.S. 171 (1983), wherethe Court considered a statutory ban, on the grounds of the Supreme Court,on the display of a "flag, banner, or device designed or adapted tobring into public notice any party, organization, or movement." Id.at 176. The Court interpreted the statute to apply to signs, picketing,and leaflets. Ibid. And, although that statute technically was not obliviousto content because it banned the specified expressive conduct only if itwas "designed or adapted to bring into public notice [a] party, organization,or movement," the Court concluded that it encompassed "almostany" sign or leaflet carrying a communication, ibid., and treated theban as a "facially content-neutral" prohibition, id. at 181 n.10,that was properly analyzed under the time, place, and manner standard. Id.at 181-184.5
c. Petitioners (Br. 33) and their amici (ACLU Br. 12) are incorrect whenthey argue that, because the statute allows a person to determine if a protestermay approach within eight feet of the person by deciding whether to giveconsent to an approach, it is content-based. The Court rejected the sameargument in Schenck. In Schenck, 519 U.S. at 384, the Court upheld a portionof the injunction that applied to the two protesters who were allowed toremain in the 15-foot fixed buffer zone around the clinic, and requiredthem to cease and desist and to back away 15 feet whenever a targeted personindicated that he or she did not want the counseling they offered. The Courtrejected the contention that the provision was content-based even though"it allows a clinic patient to terminate a protester's right to speakbased on, among other reasons, the patient's disagreement with the messagebeing conveyed." Ibid.
Similarly, in Heffron v. International Society for Krishna Consciousness,Inc., 452 U.S. 640 (1981), a religious group had argued that a restrictionwas content-based because it limited the distribution and sale of writtenmaterial and charitable solicitations at a state fair to a booth and, thusit required that they "await expressions of interest from fair patrons"before engaging in the specified expressive conduct. Id. at 649 n.12. TheCourt rejected the claim that the restriction was content-based simply becauseit "prefer[red] listener-initiated exchanges to those originating withthe speaker." Ibid. The Court reasoned that that aspect of the restrictionwas "inherent in the determination to confine [such expressive conduct]to fixed locations," it applied alike to all such expressive conduct,and thus did not "invalidate the [restriction] as a reasonable time,place, and manner regulation." Ibid.
Petitioners' similar argument should fare no better here. The Colorado statuteleaves petitioners free to communicate their message at a distance of eightfeet, or closer if no knowing approach is involved.

3. The constitutionality of a statutory content-neutral time, place, ormanner restriction is assessed under the standard set forth in Ward v. RockAgainst Racism, 491 U.S. 781 (1989), and similar cases. Madsen, 512 U.S.at 764. A content-neutral restriction on speech is consistent with the FirstAmendment if it furthers a legitimate, content-neutral governmental interest,is narrowly drawn to accomplish that interest, and leaves open ample alternativesfor communication. Ward, 491 U.S. at 797-799 (citing United States v. O'Brien,391 U.S. 367, 377 (1968)). Put another way, such a statute is constitutionalif it does not burden "substantially more speech than is necessaryto further the government's legitimate interests." Ward, 491 U.S. at799.
a. Subsection (3) meets that test. It furthers Colorado's significant, indeedcompelling, interest in ensuring its citizens the freedom to seek lawfulmedical or counseling services by providing for their safe access to healthcare facilities, which the state legislature described as "imperative."Pet. App. 64a. The State undoubtedly has a substantial interest in protectingpersons in need of medical care from invasive, unwanted physical approaches.Cf. Florida Bar v. Went For It, Inc., 515 U.S. 618, 624 (1995) (upholdingagainst First Amendment challenge state bar rule that prohibited personalinjury lawyers from sending targeted direct mail solicitations to victimsand their relatives within 30 days of an accident or disaster); NationalLabor Relations Bd. v. Baptist Hosp., Inc., 442 U.S. 773, 783 n.12, 784(1979) (approving no-solicitation rule not only in patient-care areas ofhospital, but also in more common areas where patients, families, and doctorsare frequently present, "often during times of crisis," and noting"the importance of maintaining a peaceful and relaxed atmosphere withinhospitals"). Subsection (3) was enacted against a background of "widespread,violent confrontations" (Pet. App. 6a), and furthers the State's interestin ensuring public safety and order and promoting the free flow of trafficon public streets and sidewalks. The combination of those interests fullyjustifies an appropriately tailored statute. Cf. Schenck, 519 U.S. at 376(injunction provisions justified by governmental interest in ensuring publicsafety and order, including concern about "the fights that threatenedto (and sometimes did) develop," and in promoting the free flow oftraffic at such locations); see also Madsen, 512 U.S. at 767-768.
b. (i) Subsection (3) is narrowly drawn to accomplish the governmental interestsat stake. It is tailored to address the particular problem that was beforethe Colorado legislature--overly close, harassing, and coercive conductthat threatened the safe, unimpeded access to health care facilities. Evidencebefore the state legislature demonstrated that less restrictive alternativeshad not been successful in achieving that goal. Medical staff personnelwho escorted patients to clinics in the presence of protesters testifiedthat their presence did not prevent obstructive, intimidating, and assaultiveactivity. J.A. 67, 69-71, 93-94, 98-99, 105-106, 108-109. Also, the statelegislature had before it evidence that a local city ordinance that reliedon an eight-foot limitation had been shown to provide the space necessaryto ensure unimpeded access to a health care facility. J.A. 71, 154. Theevidence indicated that enforcement of assault laws was hampered by theinability to identify assailants in the large crowd of people present, seeJ.A. 94. Cf. Schenck, 519 U.S. at 382 (noting that "a prophylacticmeasure was even more appropriate" because defendants' harassment ofpolice "hampered the ability of the police to respond quickly to aproblem"); see also Burson v. Freeman, 504 U.S. 191, 206-207 (1992)(plurality opinion) (noting that other means of prohibiting intimidationat polls were not adequate because acts of interference at polls would goundetected since law enforcement officers are generally barred from thevicinity to avoid appearance of coercion in election process).
As explained above (pp. 11-13), subsection (3) imposes a limitation on approaches,not a prohibition on all speech within a particular zone. Petitioners remainfree to station themselves along the public way leading to a health carefacility and communicate their message in any manner within arms' lengthof all those who pass. Thus, the limitation of subsection (3) applies principallywhere the target of the speech does not want to be in close physical proximityto protesters. Even then, the limitation is tailored so that the personwho does not consent to the approach is able to avoid only the physicalproximity of the speaker, not speech which he or she can both see and hearat eight feet.
The narrowly drawn limitation of subsection (3) is wholly consistent withthe recognition by this Court in certain situations that the First Amendmentdoes not provide an unlimited right to force speech upon unwilling listenerswho take steps to avoid the speech. The Court has long recognized that thereis no right to make a passer-by take a leaflet. See Kovacs v. Cooper, 336U.S. 77, 86-87 (1949) (plurality opinion); Schneider v. New Jersey, 308U.S. 147, 160 (1939) (protesters could not "insist upon a constitutionalright to form a cordon across the street and to allow no pedestrian to passwho did not accept a tendered leaflet"); Members of the City Councilv. Taxpayers for Vincent, 466 U.S. 789, 810 (1984) (passer-by may acceptor reject written material offered to him). That recognition is particularlyimportant here, where the State was prompted to act by evidence that citizenswere being denied the ability to turn away or avoid unwanted speech becauseof the accompanying coercive and threatening conduct. Moreover, the intendedaudience consists in large part of persons seeking medical care or counselingwho, in many instances, are ill or in a physically weakened condition andmay not be able to choose a different health care provider because of limitationsimposed by insurance or accessibility. The statute is narrowly drafted toshield them not from the message proffered by protesters-the speech-butfrom a close physical approach that would be threatening, intimidating,or otherwise physically harmful. Cf. Frisby v. Schultz, 487 U.S. 474, 484-485(1988) (recognizing the government's interest in protecting people fromunwanted speech in their homes where they are captive and cannot avoid speechthey do not want to hear); Rowan v. Post Office Dep't, 397 U.S. 728, 738(1970) (same).
(ii) The eight-foot limitation on nonconsensual approaches within 100 feetof the entrance to a health care facility is substantially less restrictivethan the 36-foot buffer zone on public property around clinic entrancesupheld in Madsen in which all "congregating, picketing, patrolling,[and] demonstrating" was banned. 512 U.S. at 768-770. Subsection (3)is also more narrowly tailored than the 15-foot buffer zone around clinicentrances, which permitted only two protesters therein and which was upheldin Schenck. 519 U.S. at 380-381 & n.11. Moreover, the record underlyingenactment of subsection (3) is similar to the evidence on which this Courtrelied in Schenck to uphold the ban on all demonstrations (except for twocounselors subject to a cease-and-desist requirement) within 15 feet ofentrances to medical facilities. The Court emphasized (id. at 381-382) that
the District Court was entitled to conclude that some of the defendantswho were allowed within 5 to 10 feet of clinic entrances would not merelyengage in stationary, non-obstructive demonstrations but would continueto do what they had done before: aggressively follow and crowd individualsright up to the clinic door and then refuse to move, or purposefully millaround parking lot entrances in an effort to impede or block the progressof cars.
In light of the evidence before the Colorado legislature of threateningconduct that escalated to assaults, the legislature was entitled to concludethat, if approaching protesters were not kept a short distance from thosewho take steps to avoid the protesters, such assaultive or threatening behaviorwould recur.
Petitioners attempt (Br. 37) to equate subsection (3) to the 300-foot injunctionprovision struck down in Madsen which restricted demonstrators from approachingany person seeking services at the clinic unless that person indicated adesire to communicate. Subsection (3) is different from that injunctionprovision in several significant respects. First, the limitation on approachesensures that the speech will still be heard by the intended audience becausethe approacher can remain within a eight-foot distance from which his orher speech can be heard and any displayed sign or placard seen. Thus, patientsand passers-by still must tolerate any speech they believe to be "insulting,and even outrageous." See Madsen, 512 U.S. at 774. Second, the consentprovision applies only to approaches that are knowing. Third, the limitationhere specifies the prohibited distance of approach, curing the uncertaintypresent in Madsen. Fourth, the eight-foot limitation on nonconsensual approachesapplies only within 100 feet of a health care facility, one-third of thedistance in Madsen.
(iii) Petitioners (Br. 25-26, 43-44) and their amici (AFL-CIO Br. 7; ACLUBr. 21) argue that subsection (3) cannot pass constitutional muster becausethe eight-foot limitation on nonconsensual approaches prohibits "normalhandbilling and leafletting." But, as explained above (pp. 11-12),traditional leafletting is only minimally affected by the statute. The statutedoes not restrict a leafletter from stationing himself in one location andhanding out leaflets to persons walking by that location. It merely limitsa leafletter situated within 100 feet of the entrance to a health care facilityfrom knowingly approaching within eight feet of a person who declines topass closely by or to give consent for a closer approach. Within the 100-footarea, leaflets can be seen and offered in non-obstructive, non-violent,ways, including by persons standing on the public way itself. When the limiton approaches applies, if a protester shows the leaflet to a person at eight-feetand the person wants the leaflet, it takes only a step or two from eitherperson for the leaflet to be handed over.
The Court has held that a much broader restriction on the distribution ofleaflets is permissible as a time, place, and manner restriction. In Heffronv. International Society for Krishna Consciousness, Inc., 452 U.S. 640 (1981),the Court upheld a state agency rule that made it a misdemeanor to, interalia, distribute any printed or written material at a state fair from anylocation other than a stationary booth. The Colorado statute's limitationon nonconsensual approaches within eight feet of another person for purposesof distributing leaflets is far less of a restriction than the limitationin Heffron.
(iv) When determining whether a statute is narrowly tailored, the Courtdoes not "sift[] through all the available or imagined alternativemeans" of regulation, but instead finds that requirement satisfied"so long as the . . . regulation promotes a substantial governmentinterest that would be achieved less effectively absent the regulation."Ward, 491 U.S. at 797-799 The determination by the Colorado legislaturethat an eight-foot distance was the appropriate limitation to ensure safe,unobstructed access to state health care facilities satisfies that standardand should be accorded deference. In Burson, 504 U.S. at 381, the Courtdeferred to the determination of a state legislature that had enacted arestriction on all campaigning speech within 100 feet of polling places.The Court specifically rejected the state supreme court's decision that25 feet would suffice, as opposed to the 100 feet imposed by the legislature,holding that the legislature did not make an unconstitutional choice inforcing its citizens to walk an additional 75 feet. See also Schenck, 519U.S. at 377 (although "one might quibble about whether 15 feet is toogreat or too small a distance if the goal is to ensure access," theCourt "defer[red] to the District Court's reasonable assessment ofthe number of feet necessary to keep the entrances clear"); Madsen,512 U.S. at 769-770 ("some deference must be given to the state court'sfamiliarity with the facts and the background of the dispute between theparties even under our heightened review").
Contrary to the arguments of petitioners (Br. 42-43) and their amici (ACLUBr. 20), Colorado should not be limited to ensuring access to clinics onlythrough enforcement of its statutes prohibiting obstruction, violence, orharassment. As this Court noted in Schenck, 519 U.S. at 381-382, it hasrejected that notion in cases such as Burson: "Intimidation and interferencelaws fall short of serving a State's compelling interests because they dealwith only the most blatant and specific attempts to impede elections."504 U.S. at 206-207 (internal quotation marks omitted). Colorado determinedthat its laws prohibiting obstruction and harassment were insufficient toprotect the interest in ensuring access to medical care. That finding isreasonable and supported by the legislative record. See p. 20, supra.
c. The Colorado statute leaves open ample alternative means of communication.Indeed, subsection (3) does not ban any speech, protests, demonstrations,placards, or signs from any sidewalks or other areas. Petitioners can communicateany message they want to all persons entering or exiting a health care facilityor passing by. Petitioners are able to protest, educate, counsel, or engagein any other expressive conduct on the public way or sidewalk outside ahealth care facility, within arms' length of persons entering and leaving,while standing in one place. Only when a person denies consent for petitionersto approach him or her within eight feet does the eight-foot approach limitationapply. And, even at a distance of eight feet, speech can easily be heardand placards clearly seen. See Madsen, 512 U.S. at 770 (where demonstratorsallowed to get within only ten to 12 feet of their intended audience, demonstratorscould "still be seen and heard").


B. Even If Subsection (3) Is Analyzed As A Content-Based Limitation, ItSurvives Constitutional Scrutiny

As demonstrated above, subsection (3) is not content-based, but even ifit were, it would survive constitutional scrutiny. A content-based restrictionon speech is valid if it is necessary to serve a compelling state interestand is narrowly tailored to serve that end.
Burson v. Freeman, 504 U.S. 191 (1992); McIntyre v. Ohio Elections Comm'n,514 U.S. 334, 347 (1995). Subsection (3) withstands the test.
As discussed above, subsection (3) furthers a compelling state interestin ensuring the safe access of its citizens to health care facilities sothat they can obtain medical care and counseling. That interest is of paramountimportance because safe access is central to the health and well-being ofthe State's citizens. Subsection (3) also furthers the necessarily-includedstate interest in safe access of a particular group of persons to a particulartype of health care, i.e., "protecting a woman's freedom to seek pregnancy-relatedservices." Schenck, 519 U.S. at 376.
The statute accomplishes those objectives without burdening any more speechthan necessary. The Colorado statute is narrowly tailored to serve the compellingstate interests at stake. In Burson v. Freeman, this Court upheld a plainlycontent-based ban on campaigning (including the display or distributionof written campaign materials) within 100 feet of election polls as justifiedby the governmental interests in preventing voter intimidation and fraud.504 U.S. at 211 (plurality opinion); id. at 216 (opinion of Scalia, J.,concurring in the judgment). That ban was far broader than the restrictionat issue here, which only limits to eight feet the distance within whicha person can approach another person, without consent, for purposes of communicationwithin 100 feet of the entrance to a health care facility. Unlike the 100-footcampaigning-free zone imposed in Burson, the eight-foot distance imposedhere does not create any speech-free zone and, even where the limitationon approaches applies, it still permits the communication to be heard andseen by the intended audience.6



CONCLUSION

The judgment of the Supreme Court of Colorado should be affirmed.

Respectfully submitted.

SETH P. WAXMAN
Solicitor General
BILL LANN LEE
Acting Assistant Attorney
General
BARBARA D. UNDERWOOD
Deputy Solicitor General
BETH S. BRINKMANN
Assistant to the Solicitor
General
DAVID K. FLYNN
LOUIS E. PERAERTZ
Attorneys

DECEMBER 1999




1 See United States v. Scott, 187 F.3d 282 (2d Cir. 1999) (upholding injunctionprohibiting an individual with a record of harassment and violation of courtorders from demonstrating within 14 feet of a clinic or positioning himselfwithin five feet of persons who have indicated unwillingness to receiveliterature or speech from him).

2 The injunction permitted two sidewalk counselors to continue their activitieson condition they would back off to a distance of 15 feet if the targetof the counseling so requested. 519 U.S. at 367.

3 There appears to be no dispute that the public way and sidewalk areascovered by subsection (3) are areas that the Court has traditionally treatedas a public forum.

4 Indeed, that subsection (3) was not enacted to regulate disfavored speechis confirmed by the fact that it does not protect any patient, doctor, orpasser-by from hearing and seeing any protester's message, however offensiveto them, and at most keeps the speaker eight feet from the listener.

5 Amici AFL-CIO suggests (Br. 8), without citing any support in state law,that the approach limitation of subsection (3) ordinarily would not applyto the solicitation of funds for a charity, the promotion of free samplesof a commercial product, or the conduct of a survey. Whether or not thatis so, those are different "types of expressive conduct" and theCourt has not viewed prohibitions that distinguish among such types of speechas raising content discrimination issues. See Grace, 461 U.S. at 181 n.10(prohibition on certain communicative displays held to be content-neutraldespite fact that it did not purport to prohibit oral expression); Heffronv. International Soc'y for Krishna Consciousness, Inc., 452 U.S. 640, 648-649(1981) (restriction only on distribution and sale of written materials andsolicitation of funds held to be content-neutral because it applied evenhandedlyto all who engaged in that type of expressive conduct).

6 The Court should reject petitioners' contention (Br. 27-31) that the statuteis a prior restraint because it "subjects * * * speech to the permissionof a person deputized by the state," id. at 27-28, and petitioners'argument (Br. 45-50) that subsection (3) is unconstitutionally vague, forreasons similar to those on which it relied in Madsen, 512 U.S. at 763-764n.2 (prior restraint); id. at 775-776 (vagueness), and Schenck, 519 U.S.at 374 n.6 (prior restraint), id. at 383 (vagueness). Petitioners also argue(Br. 22-27) that subsection (3) is unconstitutionally "overbroad,"in the sense that it is "a statute that in all its applications directlyrestricts protected First Amendment activity and does not employ means narrowlytailored to serve a compelling governmental interest." Br. 24 n.17.For the reasons discussed above, subsection (3) is not such a statute.





APPENDIX

Section 18-9-122 of the Colorado Revised Statutes provides:

18-9-122. Preventing passage to and from a health care facility - engagingin prohibited activities near facility. (1) The general assembly recognizesthat access to health care facilities for the purpose of obtaining medicalcounseling and treatment is imperative for the citizens of this state; thatthe exercise of a person's right to protest or counsel against certain medicalprocedures must be balanced against another person's right to obtain medicalcounseling and treatment in an unobstructed manner; and that preventingthe willful obstruction of a person's access to medical counseling and treatmentat a health care facility is a matter of statewide concern. The generalassembly therefore declares that it is appropriate to enact legislationthat prohibits a person from knowingly obstructing another person's entryto or exit from a health care facility.
(2) A person commits a class 3 misdemeanor if such person knowingly obstructs,detains, hinders, impedes, or blocks another person's entry to or exit froma health care facility.
(3) No person shall knowingly approach another person within eight feetof such person, unless such other person consents, for the purpose of passinga 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 sidewalkarea within a radius of one hundred feet from any entrance door to a healthcare facility. Any person who violates this subsection (3) commits a class3 misdemeanor.
(4) For the purposes of this section, "health care facility" meansany entity that is licensed, certified, or otherwise authorized or permittedby law to administer medical treatment in this state.
(5) Nothing in this section shall be construed to prohibit a statutory orhome rule city or county or city and county from adopting a law for thecontrol of access to health care facilities that is no less restrictivethan the provisions of this section.
(6) In addition to, and not in lieu of, the penalties set forth in thissection, a person who violates the provisions of this section shall be subjectto civil liability, as provided in section 13-21-106.7, C.R.S.