Supreme Court appears leery of Colorado’s buffer-zone law

Thursday, January 20, 2000

The Supreme Court seemed skeptical yesterday of a Colorado law aimed at restricting aggressive demonstrations around abortion clinics and other health-care facilities.

The justices appeared concerned that the broadly worded statute might criminalize a wide range of communication in too many areas where expression should be allowed.

The 1993 law says that on public sidewalks and roads within 100 feet of the entrance of any health-care facility in Colorado, anyone seeking to leaflet, protest or educate must seek consent before entering an eight-foot zone around a targeted person. The law was aimed at aggressive demonstrations outside abortion clinics, but applies to all medical facilities — ranging from hospitals to a mere doctor’s office — and to all types of unsolicited communication.

“You’re curtailing a lot of other activity,” Chief Justice William Rehnquist said at one point. “If you’re restricting speech, you can’t be vague.”

Jay Sekulow, chief counsel of the American Center for Law and Justice, poked holes in the law with some success, positing that a pizza company employee seeking to hand pedestrians discount coupons outside a Denver hospital would be committing a crime under the law. “The Colorado statue converts protected speech into a crime,” he said.

But many justices seemed to resist his argument that the law posed a significant burden on First Amendment rights. Several noted that keeping an eight-foot distance between demonstrator and target would not prevent much communication at all. “You can convey anything you want at eight feet,” said Justice Sandra Day O’Connor. “What’s the problem?” Justice Stephen Breyer asked more than once.

But when Colorado Solicitor General Michael McLachlan rose to defend the statute, the nature of the “problem” became apparent to several justices.

Justice Anthony Kennedy asked how the law would work if a doctor’s office were on the sixth floor of a seven-floor building, and all the other businesses were not health-related.

McLachlan replied matter-of-factly that the law would apply to anyone entering such a building, so long as a public sidewalk or thoroughfare was within 100 feet of the entrance.

“Then the law seems whimsical and imprecise,” Kennedy replied with disdain.

The discussion turned briefly to other topics, but one by one, the justices came back to the hypothetical. Breyer, Antonin Scalia, John Paul Stevens, David Souter, and even Rehnquist seemed stunned at the idea that the presence of a single doctor’s office in a Colorado skyscraper would turn the building entrance into a zone where a wide range of expression would be criminalized.

Stevens, perhaps feeling sympathy for McLachlan, asked whether the Colorado Legislature or any court had ever considered or discussed Kennedy’s hypothetical situation. No, was his answer. Stevens then offered, “There probably hasn’t been an abortion protest outside the Empire State Building,” to which McLachlan replied, “We don’t have the Empire State Building in Colorado.”

The comment drew laughter, but McLachlan still seemed to be in trouble.

The Colorado law could be used to target labor protesters, or any kind of unwelcomed expression at all, in areas that had little to do with health care or protecting patients.

“In a public forum, can we have a law to turn off unwelcome speech?” asked Scalia.

The main hope for advocates of the law may be concerns voiced by Breyer and Rehnquist during yesterday’s oral argument. Both wondered aloud whether the court’s First Amendment doctrine has left legislators in a Catch-22. Colorado may have written its law broadly, they suggested, because the court has said that laws restricting speech must be viewpoint-neutral. But now the law can be attacked as overly broad.

Sekulow said states can legislate in this area by barring intimidation and obstruction, as another section of Colorado’s law does. But a law that punishes anyone who approaches another person for the purpose of education or protest or handing out a leaflet, Sekulow said, reaches too far.

Deputy U.S. Solicitor General Barbara Underwood also argued briefly in defense of the Colorado law. “Petitioners are free to say and show anything they want,” she said. “They can shout and they can speak in normal terms.”

A rare moment of humor in the arguments came when Scalia was ruminating aloud about the kind of communication the Colorado statute would restrict, if he were speaking from an eight-foot distance. McLachlan interrupted and said to Scalia, “Everyone you communicate with is a willing listener.” To which O’Connor countered, “Don’t be too sure.”

The case is Hill v. Colorado, 95-1905