The Volokh Conspiracy

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Free Speech

Cal. Legislature on Track to Define "Harass" to Mean "Approach to Speak to," and …

to ban such "nonconsensual and knowing approach[es] within 30 feet of another person ... for the purpose of passing a leaflet ..., displaying a sign to, or engaging in oral protest, education, or counseling" "in connection with any vaccination services."


That's what SB 742 would do; it passed the California Senate 33-4, and the Assembly Public Safety Committee 6-2, so it seems on track to passage. It starts:

(a) It is [a misdemeanor punishable by up to six months in jail and a fine of up to $1000] to knowingly approach within 30 feet of any person while a person is making the approach within 100 feet of the entrance of a vaccination site and is seeking to enter or exit a vaccination site, or any occupied motor vehicle seeking entry or exit, for the purpose of obstructing, injuring, harassing, intimidating, or interfering with that person or vehicle occupant in connection with any vaccination services.

Now that sounds modest: After all, it's limited to approaching for the purpose of "obstructing" (defined as blocking access), "injuring," "harassing," "intimidating" (defined as making a true threat of physical harm), or "interfering with" (defined as restricting freedom of movement). Who can be in favor of that sort of behavior?

But wait—here's what "harassing" is defined to mean:

(c)(4) "Harass" means the nonconsensual and knowing approach within 30 feet of another person or occupied vehicle for the purpose of passing a leaflet or handbill, displaying a sign to, or engaging in oral protest, education, or counseling with that other person in a public way or on a sidewalk area.

So approaching within 30 feet of someone who's about to enter a vaccination site, for the purpose of speaking to the person "nonconsensual[ly]" "in connection with any vaccination services" will be a crime, if the bill is passed. Such ordinary speech would now be "harassment."

This is clearly unconstitutional. The First Amendment of course protects speech on public sidewalks, including offering leaflets, displaying signs, or conveying oral messages to people who haven't "consen[ted]" (whether because they haven't thought about the matter, or even if they affirmatively don't want to see the sign or hear the message).

In Hill v. Colorado (2000), the Court did uphold a restriction on "'knowingly approach' within eight feet of another person [near a medical facility], without that person's consent, '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.'" But the majority stressed that this stemmed from 8 feet being such a short distance:

Unlike the 15-foot zone [struck down in Schenck v. Pro-Choice Network (1997)], this 8-foot zone allows the speaker to communicate at a "normal conversational distance."

Thirty feet, on the other hand, is very far from a "normal conversation distance"; and in McCullen v. Coakley (2014), the Court struck down a 35-foot buffer zone outside a clinic in part because

[T]he zones … compromise petitioners' ability to initiate the close, personal conversations that they view as essential to "sidewalk counseling." For example, in uncontradicted testimony, McCullen explained that she often cannot distinguish patients from passersby outside the Boston clinic in time to initiate a conversation before they enter the buffer zone…. McCullen is often reduced to raising her voice at patients from outside the zone— a mode of communication sharply at odds with the compassionate message she wishes to convey.

And on top of that, Hill stressed that the 8-foot no-approach zone was content-neutral (even though it mostly affected anti-abortion protests, given that it was limited to speech outside medical facilities). The California bill is expressly limited to speech "in connection with any vaccination services"—someone approaching people to hand out leaflets in connection with a labor dispute wouldn't be covered by the law, while someone approaching people to hand out leaflets in connection with vaccination would be. Such subject-matter restrictions are unconstitutional, see, e.g. Carey v. Brown (1980).

Now there is of course a hot debate about whether knowing lies about medical matters are constitutionally punishable. Almost certainly merely negligent misstatements (by ordinary citizens, not by doctors counseling their patients) can't be restricted (see Winter v. GP Putnam & Sons (9th Cir. 1991), and the cases it cites). Perhaps knowing lies could be: Obviously, if the opinions are about a particular person, and they just damage the person's reputation, that could lead to a successful libel lawsuit even when the person is a public figure. One could argue the same should apply when the harm is not to a named person's reputation, but to people's health more broadly. On the other hand, in U.S. v. Alvarez (2012), the Stolen Valor Act case, five Justices broadly agreed that

[T]here are broad areas in which any attempt by the state to penalize purportedly false speech would present a grave and unacceptable danger of suppressing truthful speech…. Laws restricting false statements about philosophy, religion, history, the social sciences, the arts, and the like raise such concerns, and in many contexts have called for strict scrutiny. But this case does not involve such a law.

(That's from Justice Breyer's two-Justice concurrence, but Justice Alito's three-Justice dissent took the same view, adding "The point is not that there is no such thing as truth or falsity in these areas or that the truth is always impossible to ascertain, but rather that it is perilous to permit the state to be the arbiter of truth." And given the logic of Justice Kennedy's four-Justice plurality, I doubt that any of the Justices would have disagreed.) I think it's likely that the Justices would take the same view about statements about the physical and life sciences, and about medicine.

But all that is beside the point here, because the bill wouldn't be limited to lies, but would criminalize approaching people to say anything in connection with vaccination services, including constitutionally protected true statements, expressions of opinion, expressions of religious belief, and so on.

Finally, a legislative analysis of the bill offers the following argument:

Oral protests, shouting, chanting, singing, and other forms of verbal communication all pose the risk of transmission of virus and disease. While a person may choose to attend a rally and expose themselves to political speech, in large part they cannot choose where they receive medical services. This bill would limit all political advocacy within a 30-foot radius of a person in order to protect their, and the public's, safety by preventing the transmission of disease.

And if the bill banned all approaches for "oral protests, shouting, chanting, singing, and other forms of verbal communication" (and presumably not silent display of signs or leafletting) within some number of feet of a person—including at labor picket lines, civil rights protests outside government buildings, and so on—that rationale might be plausible, though I doubt that 30 feet would be a justifiable limit. But it's hard to see how a bill limited to vaccination sites, and to approaches "in connection with any vaccination services" could be justified on these grounds.