Content-neutrality and restrictions on protests

[Timothy Zick]

I think one of the weaknesses of the analysis in this area is the
courts' reluctance to review the context relating to enactments like
Colorado's, or St. Joseph's.  I find it hard to believe that the statute
in Hill was not designed to prevent abortion "sidewalk counselors" from
engaging patrons as they walked to the clinic.  Indeed, the statute uses
the word "counsel[]."  And, of course, there is a history of violence
near abortion clinics . . .  I realize there are always problems with
assessing legislative "motive," but this context seemingly ought to
count for something.  

 

With regard to the St. Joseph ordinance, it strikes me that a plausible
argument might be made that the interest is not "protecting people from
harmful speech" (which I think more closely applies to Hill than this
case) but preventing the disruption of what in most cases is meant to be
a very solemn ceremony.  "Pickets" and "protests" - regardless of
substance - might be said to undermine that interest.  And "protest,"
while usually connotative of dissent, is not always so.   

 

Tim Zick   

 

  

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Wednesday, January 04, 2006 12:55 PM
To: conlawprof at lists.ucla.edu
Subject: Content-neutrality and restrictions on protests

 

      I agree that Hill does support this argument in some measure,

but I wonder whether it suffices for that.  First, it's hard to see this

as protecting the interests Hill adduces -- "access" or "privacy" in the

sense of freedom from physical intrusion (or even the Frisby "privacy"

in the sense of freedom from the knowledge that someone is lurking

outside your home).  The interest here, which is protecting people from

offensive speech, seems to be not "unrelated to the content of the

demonstrators' speech."  (Of course, perhaps the same could be said in

some measure even in Frisby or in Hill, but I think it's much more clear

here.)

 

      Second, the ordinance in Hill covered "oral protest, education,

or counseling"; the Court stressed that "it is unlikely that there would

often be any need to know exactly what words were spoken in order to

determine whether 'sidewalk counselors' are engaging in 'oral protest,

education, or counseling' rather than pure social or random

conversation," and that "[i]t places no restrictions on -- and clearly

does not prohibit -- either a particular viewpoint or any subject matter

that may be discussed by a speaker."  The Court also rejected Kennedy's

argument that 

"a speaker who approaches a patient and 'chants in praise of the Supreme

Court and its abortion decisions, or hands out a simple leaflet saying,

'We are for abortion rights,'' would not be subject to the statute":

The Court suggested that the statute would apply, because the

pro-abortion speaker "would be engaged in 'oral protest' and

'education,' just as the abortion opponent who expresses her view that

the Supreme Court decisions were incorrect would be 'protest[ing]' the

decisions and 'educat[ing]' the patient on the issue."  The St. Joseph

ban on "protest" only would be narrower and, I think, more clearly

content-based, since it would apply to critics of the decedent but not

to his supporters (e.g., people who are standing outside holding signs

or symbols of sympathy).

 

      Again, maybe this just shows that the Court was wrong in Hill or

even in Frisby; but if the ordinances there were close to the

content-neutral/content-based line -- even if they were on the

content-neutral side -- this ordinance seems more clearly on the

content-based side.

 

      Eugene

 

Tim Zick writes:

 

I think Hill supports an argument that the ordinance is content-neutral,

which merely highlights the problem with "neutrality" analysis.

 

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