In response to protesting at abortion clinics, Colorado legislated that protesters within 100 feet of any healthcare facility may not approach within 8 feet of any other person without consent for the purpose of protest, education, distribution of literature, or counseling.
The First Amendment right to free speech is not violated by a state law limiting protest, education, distribution of literature, or counseling within 8 feet of a person entering a healthcare facility.
A Colorado statute makes it unlawful for any person to “knowingly approach” within 8 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” within 100 feet of the entrance to any health care facility.
The statute does not require a speaker to move away from anyone passing by, not does it place any restriction on the content of any message that anyone may wish to communicate to anyone else, either inside or outside the regulated areas. It does, however, make it more difficult to give unwanted advice, particularly in the form of a handbill or leaflet, to persons entering or leaving medical facilities.
Does the Colorado statute violate the First Amendment rights of citizens outside healthcare facilities?
No, the Colorado statute does not violate the First Amendment rights of citizens outside healthcare facilities.
The regulation here is not content-neutral, given that it is being applied only to abortion clinics and anti-abortion messages. Further, the “right to be let alone” is not a compelling state interest.
To say that one citizen can approach another to ask the time or the weather forecast but not to initiate discussion on one of the most basic moral and political issues in all of contemporary discourse, is an astonishing view of the First Amendment.
Further, the statute’s vagueness in the terms “protest,” “counseling,” “education,” and “consent” cause it to be overbroad. The only sure way to avoid violating the law is to refrain from picketing, leafleting, or oral advocacy altogether. Our precedents do not permit content censoring to occur in this way. The statute is a classic example of a proscription not narrowly tailored and resulting in restrictions of far more speech than necessary to achieve the legislature’s objective.
The legislation seeks to prevent unwanted approaching, not speech.
The Colorado statute’s restrictions on speech-related conduct are constitutional because the statute is not a regulation of speech. Rather, it is a regulation of the places where some speech may occur. Although the statute prohibits speakers from approaching unwilling listeners, it does not require a standing speaker to move away from anyone passing by. Nor does it place any restriction on the content of any message that anyone may wish to communicate to anyone else, either inside or outside the regulated areas. Citizens may still yell, hold signs, and attempt to educate from 8 feet away. It does, however, make it more difficult to give unwanted advice, particularly in the form of a handbill or leaflet, to persons entering or leaving medical facilities. Nevertheless, the unwilling listener’s interest in avoiding unwanted communication has been repeatedly identified in previous Court decisions.