Hill v Colorado

[Michael McConnell]

I am teaching Hill v. Colorado, and find myself unable to explain the
Court's overbreadth holding. For purposes of analysis, let us assume that
the government has a legitimate interest in protecting people about to
receive medical care from annoying speech. But the law in Hill v. Colorado
applies all speech (that is, to all picketing, leafletting, and counselling)
on all subjects outside of all buildings in which medical facilities are
located. Thus, if there is a dentist's office on the 10th floor of a bank
building, the law would prohibit the NAACP from distributing handbills on
the sidewalk protesting the bank's discriminatory lending practices.

It seems clear that the law is overbroad with respect to its purpose, and
that the overbreadth is substantial. The Court seems to reason that the
overbreadth is permissible because the broad sweep of the law eliminates the
necessity of making more discriminating judgments. I quote from the majority
opinion:

"'[T]he statute takes a prophylactic approach; it forbids all unwelcome
demonctrators to come closer than eight feet. We recognize that by doing so,
it will sometimes inhibit a demonstrator whose appraoch in fact would have
proved harmless. But the statute's prophylactic aspect is justified by the
great difficult of protecting, sya, a pregnant woman from physical
harassment with legal reules that focus exclusively on the individual impact
of each individual movement within the 8-foot boundary. Such individualized
characterization of each individual movement is ofetn difficult to make
accurately. A bright-line prophylactic rule may be the best way to provide
protection, and, at the same time, by offering clear guidance and avoiding
subjectivity, to protect speech itself."

Am I wrong in thinking that this "prophylactic approach" is precisely what
the overbreadth doctrine ordinarily would condemn? Is there any way to
explain the holding in this case?


Michael W. McConnell
University of Utah College of Law
332 S. 1400 East Room 102
Salt Lake City, UT 84112



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