The Volokh Conspiracy

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Free Speech

California Bill Would Ban "Protest Activities" Within 300 Feet of Vaccination Site

But people have as much right to protest vaccination sites as they do to protest factories, stores, or abortion clinics.


It's SB742, and it has passed both the Senate Appropriations and Public Safety Committees:

(a) It is unlawful, except upon private property, for a person to engage in physical obstruction, intimidation, or picketing targeted at a vaccination site during the time period beginning one hour prior to the vaccination services beginning, and ending one hour after the conclusion of the vaccination services.

(b) A violation of subdivision (a) is punishable by a fine not exceeding one thousand dollars ($1,000), imprisonment in a county jail not exceeding six months, or by both that fine and imprisonment….

(1) "Intimidation" means to place a person in reasonable apprehension of bodily harm to themselves or to another.

(2) "Physical obstruction" means rendering ingress to or egress from a vaccination site, or rendering passage to or from a vaccination site, unreasonably difficult or hazardous to another person.

(3) "Picketing," for purposes of this section only, means protest activities engaged in by a person within 300 feet of a vaccination site.

(4) "Targeted at" means directed at or toward a person seeking, receiving, or providing vaccination services.

(5) "Vaccination services" means the medical service of administering to an individual a dose of vaccine or other immunizing agent.

(6) "Vaccination site" means the physical location where vaccination services are provided, including, but not limited to, a hospital, physician's office, clinic, or any retail space or pop-up location made available for vaccination services.

I can't see how on picketing the ban could be constitutional, given that McCullen v. Coakley (2014) struck down a much narrower (35-foot) bubble zone around abortion clinics. Nor does Burson v. Freeman (1992), which upheld a ban on electioneering within 100 feet of polling places, justify the law; indeed, the Court in McCullen distinguished Burson on grounds that would equally apply here:

[R]espondents' reliance on our decision in Burson v. Freeman is misplaced…. We approved the buffer zones as a valid prophylactic measure, noting that existing "[i]ntimidation and interference laws fall short of serving a State's compelling interests because they `deal with only the most blatant and specific attempts' to impede elections." Such laws were insufficient because "[v]oter intimidation and election fraud are … difficult to detect." Obstruction of abortion clinics and harassment of patients, by contrast, are anything but subtle.

We also noted in Burson that under state law, "law enforcement officers generally are barred from the vicinity of the polls to avoid any appearance of coercion in the electoral process," with the result that "many acts of interference would go undetected." Not so here…. The buffer zones in Burson were justified because less restrictive measures were inadequate. Respondents have not shown that to be the case here.