In a nationally published news story for American Lawyer Media, journalist Tony Mauro reported January 19 that the U.S. Supreme Court appeared ready to strike down a Colorado state law—a “bubble zone” law designed to restrict demonstrations or protests (read sidewalk counseling) at “health care facilities.” In the article Mauro ventured “if the law goes down, credit a creative hypothetical from Justice Anthony Kennedy for its demise, more than any lawyer’s oral advocacy.”
The case being argued before the Court was Hill v. Colorado, 98 – 1856. LLDF submitted a brief amicus curiae (“friend of the court”) arguing that the law, C.R.S.§18-9-22(3), should be struck down as an unconstitutional restriction on speech. The statute makes it unlawful for any person within 100 feet of the entrance to a “health care facility” to approach within eight feet of another person, “for the purpose of passing a leaflet or handbill to, displaying a sign, or engaging in oral protest, education or counseling” unless the approached person “consents.”
Colorado is backed by some eighteen states which, along with United States Justice Department, filed amicus briefs in support of the law. The demonstrators are backed by the ACLU and the AFL-CIO, whose brief states that unions have a “vital interest” in preserving citizens’ free speech rights.
The 1993 law was immediately challenged by Leila Hill, Audrey Himmelman, and Everett Simpson, sidewalk counselors whose efforts to provide women with information about alternatives to abortion has been severely hampered by the statute. They have been represented by the American Center for Law and Justice throughout their seven-year effort to have the law struck down, culminating in their appearance before the Supreme Court. At the hearing before the Court, Justice Antonin Scalia challenged Colorado Solicitor General McLachlan’s argument that the law was neutrally written. “I think we all know what it’s aimed at, which is abortion protesters,” Scalia said, adding that counseling someone to consider the consequences of abortion is “a totally different entity when you do it from eight feet away.”
The “creative hypothetical” posed by Justice Kennedy concerned the problem of how the law would be enforced if a doctor’s office were on the sixth floor of a seven-floor building, and none of the other offices were medical facilities. A protester protesting one of these other businesses would run afoul of the law. Several other justices joined in peppering the Solicitor General with questions about enforcement of the law in that situation, and were evidently not satisfied with the Solicitor General’s response that a single doctor’s office would create a “bubble zone” around the entire building.
“You’re curtailing a lot of other activity,” Rehnquist remarked. “If you’re restricting speech, you can’t be vague.”
It was precisely the vagueness of various portions of the statute which LLDF targeted in its brief. In discussing one particular section, LLDF wrote:
d) “within a radius of one hundred feet from any entrance door to a health care facility”
First, this provision contains no requirement that the approaching person knows that he or she is within one hundred feet of the entrance door to a health care facility. Thus, before leafleting for any purpose on any public sidewalk, an individual must ascertain the nature of all of the surrounding businesses, vertically as well as horizontally, to determine whether the area is subject to the restrictions of §18-9- 122. The presence of a single chiropractic office or optometric outlet creates a noapproach zone applicable to all potential speakers . . .Third, “health care facility” is defined as “any entity that is licensed, certified, or otherwise authorized or permitted by law to administer medical treatment in this state.” By this definition, doctors, nurses, optometrists, dentists, etc. are themselves “health care facilities.” Thus, an individual must ascertain what is the “entrance door” to one of these professionals.
At first glance, the easiest answer would be that the doors to a doctor’s office are his entrance doors. However, in the case of multi-tenant office buildings, vagueness returns. Is the “entrance door” the door to the building or the door to a particular office within the building? How is the speaker to know the extent of the doctor’s leasehold within the building, e.g., that, while the doctor’s main office is on the fifth floor at the back, he also rents space for a lab on the first floor in the front?*…Section 18-9-22 creates literally thousands of zones in the state of Colorado where expressive activity is restricted. Coincidence? Perhaps. But we at LLDF would like to think that, if the Colorado law goes down, we can “credit a creative hypothetical” from Life Legal Defense Foundation. * Emphasis added.