Con Law: Hill V. Colorado Essay, Research Paper

Justice Doyle delivered the Opinion of the Court.

We granted certiorari in Hill v. Colorado in order to determine whether a section of a six-pronged Colorado statute, which prevents intimidation and potential obstruction outside, and around any health care facility entrance, conflicts with the First Amendment of the United States Constitution. The Petitioners Leila Jeanne Hill, Audrey Himmelmann, and Everitt W. Simpson, Jr., are sidewalk counselors who give information on abortion alternatives to women entering abortion clinics, contest section three of the Colorado statute 18-9-122, C.R.S.. The section provides that:

“ (3) No person shall knowingly approach another person within eight feet of such person, unless such other person consents, 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 in the public way or sidewalk area within a radius of one hundred feet from any entrance door to a health care facility.”

The Petitioners educate the people entering the clinics by distributing leaflets, displaying posters, and speaking to the people as they pass. They believe that since the passing of the third section of the statute the effectiveness of their efforts has greatly diminished, and their First Amendment rights have been violated.

The Colorado District Court found that the statute was valid by using the Ward test set out by this court in Ward v. Rock Against Racism, 491 U.S. 781 (1989). In using this test they found the statute to be content-neutral because “it does not govern the subject matter of the message.” Next they found the statute to be narrowly tailored to a significant governmental interest, finding that the statute protected those who were seeking access to the health care facility. Thirdly the Court found that it left open enough alternative methods of communication. The Colorado District Court also addressed the questions of the statute’s vagueness, over broadness, and being a prior restraint. The Court rejected all of the Plaintiffs arguments on these questions, and found the case not to be vague, over broad, or a prior restraint and dismissed the complaint placed by the Plaintiffs. Hill v. Thomas No. 93-CV-1984 (1994)

The case then went before the Colorado Court of Appeals which affirmed the trial court’s decision. The Court of Appeals cited this Court’s decision in Madsen v. Women’s Health Center, Inc., 512 U.S. 753 (1994). They found the statute to content-neutral because it was applied equally to demonstrators on both sides of the issue, and because it did not depend on the viewpoint of any demonstrator individually. Secondly, they found the statute to be narrowly tailored due to the fact that it was solely directed at depriving protestors the opportunity to make physical contact with, and intimidate the patients or the staff. They also found that the statute left ample alternative methods to convey their ideas to the people. The Court of Appeals found as did the District Court that the statute was not vague, over broad, or a prior restraint. Hill v. City of Lakewood, 911 P.2d 670 (1995)

After being remanded back to the Court of Appeals by this Court see Hill v. Colorado 117 S.Ct. 1077 (1997) in light of the Schenck v. Pro-Choice Network of Western New York, 519 U.S. 357 (1997) decision. The Court of Appeals utilized the Ward test as was approved in the decisions of Madsen and Schenck. The Court found that the statute differed from the injunction that was deemed invalid in Schenck. They concluded that it was reasonable to require demonstrators to keep a distance of eight feet away, so that someone with a physical disability would have unimpeded access to a medical clinic. And the protestors would still be able to vocally express their opinions in a normal conversational voice. Hill v. City of Lakewood 949 P.2d 107 (1997)

The case then went before the Colorado Supreme Court where the affirmed the Court of Appeals latest decision. The single focus before the Colorado Supreme Court was whether or not the Court of Appeals had erred in its decision holding the statute constitutional in light of Schenck. Although the Ward test requires that there need only be a substantial governmental interest to sustain the statute. The Colorado Supreme Court found the right of access to a medical facility to be a fundamental right relying on this Courts previous decisions that the right to privacy extends to medical decisions. The Colorado Supreme Court then reviewed our decision in Schenck, and concluded that the statute was valid for two reasons. First, as expressed in Madsen, the statute was to be judged on a less stringent Ward test. The Petitioners in this case conceded to this. Second, the statute was drawn more narrowly then the Schenck injunction, and it was a valid time, place, and manner restriction. Hill v. Thomas 973 P. 2d 1246 (1999)

This now leaves us where we are today. The questions being put forth before the Court is (1) whether the Colorado Supreme Court was correct in holding the statute constitutional as a reasonable statutory regulation of the time, place, or manner of expressive activity? (2) Is the statute unconstitutional due to vagueness, or being over broad? (3) Is the statute unconstitutional due to being a prior restraint?

In answering the first question before this court we affirm the decision of the Colorado Supreme Court. The decision of this Court is to follow the test set-up and used in Ward. In that case they revised the test set up in United States v. O’Brien 391 U.S. 367 (1968). In the O’Brien case they decided that in order for a statute to be valid it must be content-neutral, further a important or substantial governmental interest, and must involve an incidental restriction on alleged First Amendment freedoms that is no greater than is essential to the furtherance of that interest.

Ward revised that decision to say that the expression is subject to reasonable time, place, or manner restrictions. That it must be content-neutral, which it is narrowly tailored to serve a significant government interest, and it must leave open ample alternative methods of communication of the information. We feel that it is appropriate to use the Ward test due to the fact that, as it was written in Madsen, legislative statutes and ordinances should be subject to a less stringent test than that of a court-ordered injunction. This Court feels that because they apply more generally than does an individual, or group before a court, they create lesser risks of discrimination or censorship.

When using the Ward test we must first and foremost conclude whether or not the statute is content neutral by nature. In this Courts opinion this statute is primarily aimed at preventing the idea of threatening demonstrators crowding and physically intimidating patients trying to proceed to medical facility. This statute, does not seem to prevent the communication of any particular set of beliefs or ideas. Through much testimony from witnesses it seems clear that this legislation is truly intended on preventing the hostile and threatening speech that has occurred at some of these demonstrations. And it is extremely important that this speech be kept at a sufficient distance from its intended recipient because of the intimidation and fear that can arise from such speech. Whether or not eight feet is the proper distance is not the question. It is a question of whether or not there should be some distant kept between protesters and patients at all.

The answer to this question is yes, there should be some distance kept between the parties at these scenes for the safety of the individuals. Because the patient has the ability to agree to receiving the information the Petitioners want to give, makes this case similar to one of our previous decisions. In Rowan v. United States Post Office 397 U.S. 728 (1970) this Court ruled that different individuals have different opinions of what offensive is, so ultimately the decision should be up to the individual to decide if they want the information or not. Free speech does not mean that you can say whatever you want, to whoever you want. With all of this I believe, as does the Court, that this is a content neutral statute that should have its validity tested under Ward.

The Colorado statute requires a speaker, when within one hundred feet of an entrance of a medical facility, to receive permission to approach that passerby within eight feet of that person. The State argues that the statute is necessary in order to correct the continuing problem of aggressive, sometimes violent demonstrations that obstruct safe access to health care facilities. They noted testimony from several witnesses who personally experienced uncontrolled demonstrators outside medical facilities in Colorado. These witnesses described crowds that blocked access, and pushed, shoved, punched, and bit patients trying to enter these facilities. These demonstrators harassed twelve and thirteen year old patients, and physically assaulted the kid’s escorts into the building. In Ward Justice Kennedy wrote for the Court that “narrow tailoring is satisfied so long as the regulation promotes a substantial governmental interest that would be achieved less effectively absent of the regulation.” Because of these reasons just laid down, and the interpretation of the Court in Ward, the third section of the Colorado statute, in addressing the problems that arose out of demonstrations in proximity to the entrance of medical facilities, clearly is sufficiently narrow for this Court to accept the rational of the State.

The second part of the test is whether or not there existed a sufficient, significant governmental interest for the State to take the legislative actions that they have. While the main purpose of the legislature was to ensure safe access to medical facilities, the legislature also points out that there were other reasons that they strived to achieve with this statute. As mentioned above the protection of the patients trying to access these medical clinics is also a primary concern. Along with these concerns is the concern of social order. The Colorado Police Departments benefit from this statute as well, by helping them prevent out of control demonstrations and violent protestors from making an already hostile environment become almost critical. These reasons, as well as the fact that many of the problems that were faced in Schenck and Madsen are not faced by this Court today. In those cases the problems of a floating buffer zones and no-approach requirements that were struck down by the stricter tests, do not apply in this situation. It does not apply here for many reasons. One being the fact that an eight foot buffer zone can be considered a normal conversation distance, as apposed to the fifteen-foot distance required in Madsen. Also this statute only applies to knowingly approaching a person. This slight difference limits the possibility of accidental violation of the statute. All these reasons when looked at do nothing but justify the States argument, and support our decision that there is a sufficient governmental interest thereby answering the question above.

The third prong of the test pronounces the need for the restriction to leave available ample alternative means of communication. In Ward Justice Kennedy wrote that the lower Courts “should not have shifted through all available or imaginable” alternative methods of communication. He said “Our cases quite clearly hold that restrictions on the time, place, or manner of protected speech are not invalid simply because there is some imaginable alternative that might be less burdensome on speech . . . a regulation of the time, place, or manner of protected speech must be narrowly tailored to serve the government’s legitimate content neutral interests but that it need not be the least-restrictive or least-intrusive means of doing so.”

In Hill the Colorado State Legislature created a statute that they felt was the most appropriate way to handle the situation at hand without creating too great a burden on the free expression of speech. The statute calls for a buffer zone of eight-feet between the protestor and the patient without receiving consent from the patient or passerby. The distance chosen, eight feet, leaves numerous and considerably adequate means of communicating the expressed beliefs or ideas that the petitioners want to convey. Entering the eight-foot zone would do nothing less than create anxiety or physical intimidation on the behalf of the passerby. The zone around a person is known as someone’s personal space. It is important because inside this zone a person naturally feels vulnerable in most circumstances, let alone one where the person is hostile and angry at you. So in light of all this, we feel that this statute has left available ample alternative means of communication.

So in answering the first question that was posed before this court we of the Court feel the Colorado Supreme Court was correct in using a less stringent Ward test as was expressed in Madsen in concluding that the statue created by the State legislature was constitutionally sound. The next question that needs to be addressed by this Court is whether or not the statute is unconstitutional due to vagueness, or being over broad. The question of a statute’s vagueness comes from whether or not the statute is too unspecified as to make a reasonable person question what he or she can do without violating the law in the manner it was expressly designed for.

In Hill the law in no way in our opinion becomes too vague as to leave a person questioning what they can do. The Colorado statute clearly lays out all of the actions that the state legislature wants to regulate and prohibit. The statute writes that “no person shall knowingly approach another person within eight feet of such person, unless such other person consents, for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest . . . ” To me and to the rest of this Court, there are very few other meanings that this statute could have. The actions that the legislature feel is inappropriate, and is concerned with, are laid out and described as clearly as any person needs to know what they can and cannot do in regards to this statute.

The definition of a statute being over broad is that the statute reaches too far as to encompass areas that are protected and unrestrained by ways of legislative actions. In Madsen this Court invalidated a part of the Florida state court order that prohibited the protestors from physically approaching any person seeking services from a medical facility. That determined that the restriction would necessarily have infringed on some of the protesters freedoms. In that case the restriction created a “no approach zone” within three-hundred feet (300) of the medical facility. In Hill the statute only restricts the protester from coming within eight feet of the person. This difference creates what we feel is enough of a difference to keep this statute valid and constitutional.

Another question of over breadth is whether the statute is based on a mistaken presence. As in Secretary of State v. Joseph H. Munson Co., 467 U.S. 947 (1984), where the court found that a predilection that charitable expense limits would lead to less fraud. They believed that too high of expense percentages would mean that there was fraud. While this case is not necessarily similar to State v. Munson, the concern is a similar one. In Hill the foundation of information that they base their ideas upon are more sound than the far reaching ideas in State v. Munson. The reality of the dangers that exist in front of and around medical facilities today with all of the protests and demonstrations that occur is real and serious. It is this reality that the Colorado state legislature based their reasoning on, and we agree with that rational. So in answering the question of the statutes over broadness we conclude that the statute is not over broad and is valid and constitutional.

The final issue that we feel needs to be addressed is the question of whether or not the Colorado statute is a prior restraint. According to this Court’s definition, a prior restraint is a regulation that gives public officials censorship powers. See Southeastern Promotions Ltd. v. Conrad 420 U.S. 546 (1975). In Schenck this Court also stated that there is no prior restraint if “alternative method of communication are left open.” As we noted before the Colorado state legislature did what they felt, and we agreed with, was the least restrictive way of solving the dilemma that faced them. The eight-foot buffer zone with consent option requirement leaves numerous possibilities of alternative methods of communication. Because of this, the demonstrators are still completely free to hand out leaflets, picket, and protest their ideas and beliefs. The idea of this statute being classified as a prior restraint seems somewhat far reaching. Due to the ample alternatives that are available to the protestors who want to express their ideas we must conclude that the Colorado statute in no way is a prior restraint.

At the start of this case the Court set out to answer the three questions posed before. Was the Colorado Supreme Court correct in its decision of holding this statute to be constitutional? Should the statute be deemed unconstitutional because of it being too vague, too broad, or a prior restraint? In the opinion of this Court we have addressed the questions that were put before us and we feel the Colorado Supreme Court made the correct interpretation of the laws in upholding the statute as being constitutional and valid. We affirm.