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.

Comments

[Sidney r finkel]

I have no quarrel with Prof. Volokh's position here, but if one defends the position on the basis for freedom of speech, one should also recognize that unwanted speech imposed upon a person can be a violation of a person's right to be free of threats, harassment, intimidation and such.

If a 250 pound person approaches me after I make it clear that I do not wish to engage that person and that person proceeds to harrangue me I should have the right to be free of that person once I have made it clear I do not wish to participate in a dialogue with him or her. So I would think that when a person such as Prof. Volokh takes his position, it is incumbent upon him to also explain what restraints he would accept on unwanted speech, and how he would protect individuals who value their privacy and have no wish to be verbally assaulted by individuals with a political message.

I cannot believe that Prof. Volokh is in favor of absolute unlimited rights of persons to force speech on others, so how would he balance the right to speak with the right not to be spoken to? But if he does not favor any restrictions then he has no right to complain when he is assaulted by a massive number of robo calls and con artists seeking to sell him an auto warranty, sell him insurance, obtain confidential information or bombard him with unsolicited sales pitches, wanted or unwanted in personor on a phone or other electronic device.

[Eugene Volokh]

As it happens, I've discussed this very issue at pp. 740-50 of my 2013 One-to-One Speech vs. One-to-Many Speech article. The short version is the law may often give people the power to say (in an enforceable way) "stop talking to me," once they've concluded that they aren't interest in the speaker's speech to them. But they don't have the power to enforceably say "stop talking about me" or "stop talking near me."

And of course that's true if the speech is about vaccination, or labor disputes, or abortion, or animal rights, or whatever else. (Naturally, this is an oversimplification of the 11 pages I spend on the subject.) This law, though, isn't focused on giving people such veto power, which is why I didn't get into that subject here.

[DaivdBehar]

Love this. Gov. Cuomo "harassed" multiple women, so says a diverse, a feminist, a lawyer. I believe the accusers. They never lie.

https://www.politico.com/news/2021/08/03/ag-cuomo-sexually-harassed-multiple-women-broke-state-and-federal-law-502274

[DaivdBehar]

Are the D word, the F word, the L word OK in the above comment? Everyone knows what they really mean.

[DaivdBehar]

You have to love the lawyer profession. Cuomo kills thousands in nursing homes and millions by starvation around the world by his lockdown. NY has the highest COVID death rate from his policies. Not a problem. Now, he needs to go because he got fresh with some Democrat, feminist hooers.

[DaivdBehar]

The proper remedy is to slap the impudent pig's face, and say, "I am not that type of girl." That would work, but it would cut lawyer fees, and worthless lawyer make work employment. So that remedy is inconceivable to the scumbag lawyer profession. We set up a commission. We investigate. We litigate. We appeal. Nice racket, lawyer scumbags.

[Sidney r finkel]

Very good and thanks for the reference.

[Jason Cavanaugh]

"If a 250 pound person approaches me after I make it clear that I do not wish to engage that person and that person proceeds to harrangue me I should have the right to be free of that person once I have made it clear I do not wish to participate in a dialogue with him or her."

You must've missed the part of the law where it criminalizes the actions BEFORE someone has bothered to make clear that they don't want to talk.

I'm not sure how you could miss such a clear distinction, as it's mentioned multiple times in his post, but you obviously did.

[NToJ]

"You must’ve missed the part of the law where it criminalizes the actions BEFORE someone has bothered to make clear that they don’t want to talk."

He didn't miss that. Did you read his post at all? It starts with: "I have no quarrel with Prof. Volokh’s position here..." His entire comment is about the broader implications, not just "the part of the law" we're talking about. Is English your second language?

[WuzYoungOnceToo]

He didn’t miss that. Did you read his post at all?

Did you? And by that I mean, did you make it past...

It starts with: “I have no quarrel with Prof. Volokh’s position here…”

...?

His entire comment is about the broader implications, not just “the part of the law” we’re talking about.

The broader implications of what? Prof. Volokh's post in no way implied that harassment (as that's reasonably defined in most legislation) or other unwanted speech was covered by 1A, in spite of Srf's misreading of it (or not actually reading it at all). In fact Prof. Volokh was quite clear that it isn't, and that the problem lies in the fact that the proposed legislation defines "harassment" in such a ridiculous way that it attempts to criminalize ordinary speech. He was also quite clear and detailed on why it would be unconstitutional.

Is English your second language?

Pot...kettle...etc.

[M L]

Why is their weight relevant? Threats, harassment, intimidation and such -- sounds like you are talking about plain old assault, not speech.

"absolute unlimited rights of persons to force speech on others"

What does it mean to have someone's speech forced upon you? You may have to hear things you don't like when in a public forum, without getting the government to criminally punish the offensive speaker? Note that nobody has a constitutional right to speak to you on private property. And pretty sure robocalls can be regulated and banned so long as it's content neutral.

[Brett Bellmore]

The point of the weight is to smuggle in an element of physical intimidation, and then hope it will rub off on perfectly peaceful speech. That's all.

Sydney is aware that people just aren't that inclined to regard peaceful speech as threatening, so he's adding elements people WILL regard as threatening to the scenario, to make it seem reasonable to restrict the non-threatening conduct.

[Krayt]

"Because large people are intimidating, it shall be a felony for large people to speak in public about issues in politics."

There we go! First Amendment compliant. Hey, what are you doing with that gun. GET AWAY FROM ME!

[Krayt]

"Because speaking involves breathing, which may transmit Covid, you may not approach within 30 feet of someone to talk to them about vaccines or whether the president is doing a good job, but everything else is ok."

There's no limit to what those kind of heart and well-meaning can censor if your cause is righteous!

[tkamenick]

I couldn't disagree with you more. You have no such right, because what you are talking about is some kind of right to force somebody else to shut up. You are free to walk away or ignore the person. There is no right to "not be spoken to".

[NToJ]

"There is no right to “not be spoken to”."

A prominent First Amendment legal expert has put together an impressive list of cases in which federal courts have upheld laws restricting unwanted one-to-one speech.

[WuzYoungOnceToo]

A prominent First Amendment legal expert has put together an impressive list of cases in which federal courts have upheld laws restricting unwanted one-to-one speech.

Most reasonably intelligent people understand the difference between speaking to someone one time in public vs harassment and/or cyberstalking.

[Ben of Houston]

I believe that is the source of the 8 foot boundary that was considered constitutional. Harassment is not protected speech.

However, this goes beyond that, as it says you cannot approach within a large distance to hand out a pamphlet. A number half that distance was declared unconstitutional for abortion clinics. Given the term "non-consensual", this is a catch-22, as you clearly cannot discern desires of a stranger from such a distance. It's transparently designed to make protests impossible.

[DaivdBehar]

This is a really offensive weightism comment. It should be deleted. It is hurtful, mean spirited, and wrongly stereotypic.

[Stephen Lathrop]

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.

Professor Volokh your sense of analogy works differently than mine. In my analogy, speech is not even in question. I see the bill as an emergency measure to curtail the dangerous activity of attempting to frustrate or thwart administration of vaccine during a deadly pandemic.

Reflect on the popular nostrum that the remedy for bad speech is more speech. Perhaps that provides a useful basis for distinctions between speech and activity. If the contested conduct centers on speech, then its ability to be remedied by more speech suffices to identify it as speech. If the contested conduct causes damage which cannot be remedied by more speech, then that marks the conduct as activity, not speech.

This law strikes me as targeting conduct which is activity, not mere speech. If picketing vaccination sites intimidates or discourages unvaccinated people, then the risk of illness, loss of life, or subsequent contagion, are all beyond the ability of speech to remedy. That creates reasonable grounds to legislate against such dangerous activity. Otherwise, no amount of counter-speech can do anything to mitigate the harm.

[Noscitur a sociis]

You know, you're allowed to read the whole post before you comment.

[David Nieporent]

Shocker that Lathrop comes down against speech. That's unprecedented.

[Dr. Ed 2]

"the dangerous activity of attempting to frustrate or thwart administration of vaccine during a deadly pandemic."

Yes, like burning down buildings and physically attacking people, but merely engaging in speech *can* prevent the administration of vaccine? In what alternate dimension of reality?

It's like objecting to the WVA v Barnette case because the Nazis would win the war were children not saluting the flag. And a whole lot more Americans died in WWII....

[Dilan Esper]

This law strikes me as targeting conduct which is activity

Fundamentally, you don't know what "conduct" means in the context of 1st Amendment law.

Or to put it another way, if your definition of "conduct" were accepted, there would be very little of the First Amendment left and we would live in a society without free speech.

[SKofNJ]

As the courts have said many times, much speech requires physical activity. A picket line must be walked. A protest sign must be hoisted in the air. A book needs to be written and printed. The internet cannot be utilized as a forum without typing on a computer (or a similar device). Leaflets need to be handed out. But, the courts say, the fact that much (if not all) speech requires physical activity does not transform that speech into conduct that can be regulated.

[Stephen Lathrop]

SKofNJ, sure, I get that. I endorse that. Despite Nieporent's merely habitual heckling, I remain a strong advocate for speech freedom.

So before I wrote what I did above, I reflected on just the sorts of issues you raise, and asked myself if the case in this instance was a match for the kinds of protected speech you mention. I decided it is not a match. Perhaps you think otherwise. Instead of reciting conclusory generalizations, why don't you take up the question of similarity or difference in this particular case?

For instance, I think attempts to use picketing to intimidate would-be vaccinees is much like falsely shouting fire in a crowded theater. In both instances, the risk of deadly harm is not just present, but imminent. The would-be vaccinee who turns away because she is disinclined to confront opposition from anti-vaccination types—perhaps in a locale where anti-vaccination sentiment is not merely expressed vociferously by demonstrators at a vaccination site, but also more generally, as a predominant view in local society—is at risk of promptly contracting disease as a result, and perhaps of dying. That is not a speculative risk. Given the level of contagion now commonplace, grave harm is a likely outcome—and not just to the unvaccinee in question, but to everyone who may be infected by contagion she spreads subsequently. Even the possibility that she might subsequently be persuaded by "more speech" to go back and get vaccinated is not a sufficient remedy to prevent or undo harm that she and others may suffer in the interim.

Where in your list of legal analogies do you see an example to match that? In a comment above yours, Dilan Esper writes:

Or to put it another way, if your definition of “conduct” were accepted, there would be very little of the First Amendment left and we would live in a society without free speech.

That exaggerated concern can be turned around as easily as it can be made. In a society where all conduct involving speech was protected by a first amendment shield, almost nothing would be left of the police power. It cannot be all one, or all the other, and there need to be standards to settle case by case which reasoning prevails.

The fact is, very little speech delivers a credible threat of imminent harm. That justifies the customary legal position which bars too-readily equating speech with activity. Mostly, that is good law. Sometimes it isn't.

In this case, because the threat of imminent, unremediable harm is so great—and because that risk is not a subject where reasonable people can reasonably differ, or at least not do so in safety—this is a case where it isn't.

[tkamenick]

"In both instances, the risk of deadly harm is not just present, but imminent. "

I'd ask if you were joking, but I know you too well.

[Dr. Ed 2]

The true analogy would be someone shouting "there is no fire" in a theater which was actually burning, with flames clearly visible to the audience.

And the spurious claim that this would somehow prevent rational persons -- able to see said visible flames -- from leaving the theater.

[Dilan Esper]

Stephen, you aren't a supporter of free speech. You are an opponent.

Broad definitions of "harm" and "conduct" like you advocate are the tools of the censor.

[Krayt]

'member last summer when experts agreed, after being intimidated with cancellation, that historical wrongs to black people were so awful, it justified the risk of covid transmission, so blocking BLM protests for covid reasons should be a no no?

In summary:
1. Rationalize to ignore all this depending on goal.
2. Whine about intimidation as rationalization so you get to silence people over covid, when last summer they endured intimidation and were themselves silenced from silencing others to protect from covid.

How anybody can sit there having thought those ways then and the opposite now, and fancy themselves a thinker, much less an independent one, I don't know.

[Ben of Houston]

Except, Stephen, you have just taken a legal stance on a political position. Your statement is essentially "getting vaccinated is so necessary that objecting to it should be illegal". This is unconscionable.

I could even accept vaccination becoming mandatory before I could embrace your position, as this effectively criminalizes disagreement with government policy.

One thing I like to think of is that even NAMBLA and the Klan are allowed to protest. If you think something is so bad that you can't speak it, then you think that that thing is worse than those groups. I don't think that's a rational argument.

[Stephen Lathrop]

Your statement is essentially “getting vaccinated is so necessary that objecting to it should be illegal”.

Ben, not my statement.

Object all you want. Make up all the lies you want about vaccination, and publish them online. Picket the CDC. Vote for Trump. But getting vaccinated is so necessary that you should not be allowed personal confrontation with people attempting to get vaccinated, so you can intimidate them, persuade them not to get vaccinated, and maybe get them killed. That is my statement.

If you are such a big speech defender, you ought to be able to content yourself with the unlimited range of speaking possibilities which do not include personally opposing strangers while they take emergency action to save their own lives.

[Noscitur a sociis]

I'm certainly not disputing that anti-vaccine evangelists -- like holocaust deniers, communists -- are intellectually bankrupt, morally dubious, and to the extent that their message persuades, making the world a worse place.

If you want to make the case that the speech is so dangerous that restraining it is justified, go ahead and do so. (As a philosophical matter, of course: there's no serious question about the First Amendment issue.) But if your position is that the government should put people in jail for their speech because people might actually be persuaded by it, you are not, in fact, "a strong advocate for speech freedom."

[Stephen Lathrop]

Noscitur a sociis, for this discussion, anti-vaccine "evangelists," are not a bit like holocaust deniers or communists. Those latter do not create imminent danger when they speak. For that reason I have no problem protecting their speech, however repugnant, from government interference. Like most free speech advocates, I recognize that the reason to permit bad speech is not because better speech would not be preferable, but because it is too dangerous to let government decide which is which.

Of late, I have been this blog's strongest and most repetitive advocate against government interference with speech, while a great many others, including even Eugene Volokh, have advocated government interference with private online publishers. Do you number yourself in that group? I hope not. It would be ironic indeed to be lectured on free speech principles by someone of that ilk.

Note also that like others attempting to oppose my view here, you felt it necessary first to build a false summary to attack, one which is not my view at all. You say, "But if your position is that the government should put people in jail for their speech because people might actually be persuaded by it, you are not, in fact, “a strong advocate for speech freedom.”

That is your distorted summary, not my advocacy. My advocacy is that government may put people in jail when they commit illegal acts which create imminent deadly danger. Nothing at all about whether people are persuaded. I presume that targets of anti-vaccine protestors who gave up the attempt would do so because of intimidation, not persuasion. For instance, because they feared being photographed, and having a picture put online, where their crazy anti-vax husband or boyfriend might see it. Or they feared having their license plate numbers recorded and publicized. I presume creation of fears such as those, and not persuasion, would be the principal motivation to mount the demonstrations. Are you such an innocent that you do not understand that? If you are trying to accomplish a rhetorical case of persuasion, why would you choose personal confrontation of strangers, instead of publishing your views more broadly?

But whatever the motivation, the key fact remains. Someone thwarted from vaccination has been imminently endangered, as has society at large. It is on that basis, and nothing to do with persuasion, that leads me to suggest conduct directed toward thwarting vaccinees can be outlawed. I am not advocating any penalties for legitimate attempts at anti-vaccine persuasion, however crazy they may be.

[Brett Bellmore]

"I presume that targets of anti-vaccine protestors who gave up the attempt would do so because of intimidation, not persuasion."

Then prohibit intimidation, not persuasion. As long as you favor measures that prohibit persuasion, I can only conclude that's your goal.

[Stephen Lathrop]

If you show up in person to try to thwart would-be vaccine recipients one-by-one, I can only conclude intimidation is your goal.

See Brett, it works for me just like it works for you. Try to get substantive, why don't you. I said I restricted my advocacy to prohibiting conduct which creates imminent danger, including deadly risk, among would-be vaccine recipients. Refute that. Don't change the subject.

[Brett Bellmore]

The problem here is that you're defining attempts to persuade people to disagree with you as "intimidation".

If I were going to attempt to thwart vaccinations, (I wouldn't, I rather favor vaccination for diseases somebody hasn't already contracted.) I'd do it by reasoned persuasion, not threats of violence.

This law doesn't ban threats of violence, implied or otherwise. It bans attempts at communication.

And you want to define communicating things you disagree with as some kind of violence.

[WuzYoungOnceToo]

The problem here is that you’re defining attempts to persuade people to disagree with you as “intimidation”.

Speech is violence!

[Toranth]

Speaking "antivax propaganda" does not present an "imminent" danger to anyone, and it absurd to pretend that it does so you can use force against the people you disagree with.
Your proposed chain of causation is so tenuous as to be impossible to determine:
Speaker speaks -> Listener believes -> listener decides not to get vaccinated -> listener becomes infected (through some vector that would NEVER put you at risk AND would have had zero chance of bypassing vaccination) -> listener, while infected, comes into close contact with you -> you become infected provably by that specific listener -> you have therefore suffered harm.

At the very least, you have 4 weeks between your initial act and you "imminent harm" you want to use violence to prevent. On a more reasonable level, you can't even prove the chain of events, much less prove the conditionals were met to eliminate other possibilities.
The more general "harm to society" is even less possible to demonstrate - you can't even define the term objectively.

You are afraid of COVID, we get that. But your unreasonable fears do NOT mean you can override the rights of people.

[Hank Ferrous]

'I have been this blog’s strongest and most repetitive advocate against government interference with speech,' even if this were true, you've put yourself completely in the other camp with this argument.

[WuzYoungOnceToo]

so you can intimidate them, persuade them not to get vaccinated, and maybe get them killed. That is my statement

In other words, your statement had absolutely nothing at all to do with constitutionally protected speech, and therefor nothing at all to do with the subject at hand.

[Dilan Esper]

But getting vaccinated is so necessary that you should not be allowed personal confrontation with people attempting to get vaccinated, so you can intimidate them, persuade them not to get vaccinated, and maybe get them killed.

Personal confrontation is pretty central to the right of free speech. You think speech is only free if it follows debate society rules.

The same rules that could be used against a vaccine skeptic can also be used against a Black Lives Matter protester.

Fundamentally, you don't believe in free speech. You like to think you do, because nobody likes to think of themselves as an authoritarian. But you don't actually believe in it. What you believe in is state censorship of people who don't protest in exactly the way Stephen Lathrop thinks they should protest.

[Stephen Lathrop]

The same rules that could be used against a vaccine skeptic can also be used against a Black Lives Matter protester.

Dilan, once again, the ground of debate shifts, so you can justify a point which has nothing to do with my advocacy. I am not talking about, "vaccine skeptics." I do not advocate laws to criminalize the conduct of, "vaccine skeptics." Their speech is none of my concern.

I am talking, at least hypothetically, about people who show up for in person confrontations at vaccine clinics, with an eye to driving away would-be vaccine recipients. Those are the ones who bring imminent harm into the discussion. Try to address that, if you can.

[Brett Bellmore]

So, you're focusing relentlessly on a hypothetical law that we aren't actually discussing, instead of the actual law everybody else is talking about?

[David Nieporent]

The fact is, very little speech delivers a credible threat of imminent harm.

Very true. But lots of speech leads to claims of a threat of imminent harm. Like handing out leaflets opposing conscription, which is what the fire-in-a-crowded-theater line actually refers to.

[Bob from Ohio]

"emergency measure to curtail the dangerous activity of attempting to frustrate or thwart administration of vaccine during a deadly pandemic."

Does the bill have a sunset? Once the "emergency" ends?

An "emergency" fueling permanent restrictions is an old, old concept.

[Stephen Lathrop]

Perhaps a good point, Bob. I thought it would be evident that a bill protecting vaccination during a public health emergency would be without effect in the absence of a public health emergency. But if it makes skeptics feel better to sunset the bill when public health status is back to normal, that would not bother me.

[Brett Bellmore]

Can we have an objective definition of "when public health status is back to normal", that doesn't just devolve into, "When the government says so"?

The general problem with emergency measures is that if the government enjoys the powers it gets from them, it becomes reluctant to admit the emergency has ended. Some of the 'emergencies' the government exercises power under thanks to the NEA have been going on for decades!

Even if circumstances don't change, at some point an "emergency" stops being emergent, and should be dealt with in normal order.

[Cal Cetín]

What's the law in California about animal-rights protests?

[Brett Bellmore]

Apparently you can't protest a farm anymore, since the animals typically do get vaccinated there.

[Noscitur a sociis]

I think the definition section makes it pretty clear that it only applies to human vaccination.

[M L]

(transpeciesphobe)

[Brett Bellmore]

I think I could train a cow to identify as human, if I tried.

[WuzYoungOnceToo]

I think I could train a cow to identify as human, if I tried.

{Insert Joy Behar joke here.}

[arbitrary aardvark]

Do we know an elected offical who could request an Attorney General Opinion? https://oag.ca.gov/opinions

[mulch]

I've got an opinion about the Attorney General. Does that count?

[Dr. Ed 2]

What the Fire trUCK are they trying to hide?!?!?

Above and beyond how patently unconstitutional this is -- I'm thinking of Martha Coakley's overturned abortion clinic speech ban -- but what is it that they don't want said????

What could possibly be put on a pamphlet that would be a threat?

Either they are psychotic -- which is possible -- or there's some deep, dark, secret that they are terrified might become public.

I gotta wonder what it might be...

[Krayt]

As I frequently point out, the benefit of the First Amendment isn't that there's high value in every last thing a yokel barfs out, but in forbidding use of a nascent dictator's greatest tool.

Every time this subject comes up, people argue value of this or that speech, i.e. about how many angels dance on the point of a pin, when it has nothing to do with why there should not be censorship.

The Bill of Rights is a wonderful tour of things tyrant kings do to maintain their power.

[Dr. Ed 2]

Agreed -- but what *is* it that the dictator wishes to hide?

Assuming that it is a rational fear, there is *something* that they are terrified that the public might learn -- and hence my wondering *what* it might be....

[Liberator Lickpenny]

Professor V: this seems like they are trying to emulate similar speech restrictions at polling places. Assuming that you could make an argument that the two are similar enough (I'm not sure that they are, but let's assume they are), does this affect your analysis? Curious to hear your thoughts here.

I agree that this will certainly suppress all manner of speech in the roaming 30 foot zone within the 100 foot zone. Even assuming the polling places analogy is apt (again, I'm not sure it is), this does not seem to pass the "objective workable standard" threshold mentioned in Minnesota Voters v Mansky.

[Eugene Volokh]

Here's what the Court said in McCullen, rejecting the polling places analogy as to a 35-foot-radius bubble zone outside an abortion clinic:

[R]espondents' reliance on our decision in Burson v. Freeman is misplaced. There, we upheld a state statute that established 100-foot buffer zones outside polling places on election day within which no one could display or distribute campaign materials or solicit votes. 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. Again, the police maintain a significant presence outside Massachusetts abortion clinics. The buffer zones in Burson were justified because less restrictive measures were inadequate. Respondents have not shown that to be the case here.

[Milhouse]

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,”

Is that specifically in Tennessee, or is it common for states to have such a law? I can tell you that not only does NY have no such law, but exactly the opposite: The police bring the keys to open all the voting equipment in the morning, there is a policeman stationed at each polling place throughout the day, and the police take the sealed ballot boxes away after the site closes down. And yes, there is a 100-foot no-campaigning zone; violations are to be brought to the attention of the policeman on duty.

[Liberator Lickpenny]

Thanks! That is helpful.

[Roman Moroni]

I’m not a lawyer so maybe I’m missing the fine nuances of this decision, but it seems to me that a ruling basically saying: “laws against intimidation aren’t enough to prevent intimidation, so we need laws restricting constitutionally protected speech” kind of opens you up to similar dubious arguments in many other cases.

I’m sure some clever lawyer could come up with an equally compelling argument for this law regarding vaccination clinics. I mean if it’s impossible for law enforcement to effectively enforce intimidation laws - without this added prophylactic anti-speech law - at far fewer polling places than there are vaccination clinics, and on one frigging day... how can we expect them to effectively enforce intimidation laws at vaccination clinics that are open every day, unless they have a similar speech condom to protect everyone?

[Dr. Ed 2]

And then we have this:
https://www.masslive.com/news/2021/08/police-suing-protesters-ny-county-considers-protecting-first-responders-under-human-rights-law.html

[DaivdBehar]

I thought claims by first responders were precluded by the common law. Otherwise, I could become a police officer to become a billionaire. All my calls are to respond to carelessness and intentional torts.

[Dr. Ed 2]

Try reading the article -- they are taking the interesting approach of defining first responders as a protected group (i.e. protected minority) and then using the anti-discrimination laws.

[sparkstable]

Does the law specify which side of the debate speech concerning vaccinations covers?

If not, then texturally it has outlawed pamphlets etc that would seek to encourage people to get vaccines.

If they do not enforce the law equally against both sides of the debate... what then?

[Eugene Volokh]

sparkstable: It would indeed bar approaching people in order to argue for vaccination -- but presumably the Legislature is fine with that, since the people who are coming to the vaccination site are likely already in favor of vaccination, and if they have any doubts, those doubts can be assuaged by people inside the vaccination site.

[Dr. Ed 2]

Not in practice.

At least in Massachusetts, they are having "pop up" vaccination clinics -- in one case, a vaccination "train" parked at commuter railroad stations. The stated goal was to encourage random bystanders to get vaccinated and this was particularly directed at minority communities, including the use of languages other than English.

Hence they inherently were "approaching people in order to argue for vaccination" --- their stated goal was to do just that.

Not that the left has really ever cared about the concept of "content neutrality"....

[Roman Moroni]

I guess that is kind of an interesting technical point.

Would a mobile vaccination clinic, going around like an ice cream truck trying to persuade people to get vaccinated, be in violation of the law every time it got within 30 of anyone, or only if those people were already walking towards the truck or getting out of their cars and facing the direction of the truck?

Would a pop up vaccination station have to be careful not to be within 30 feet of anyone already in the area when they are first setting up?

[Roman Moroni]

Or I guess even in a stationary brick and mortar vaccination clinic you couldn’t have any employees outside even leaning in the direction of anyone heading towards the clinic. I imagine employees wear some kind of shirt or name tag implying endorsement of vaccinations.

[Michael P]

Strong advocate of speech freedom progsplains why is okay to ban this speech because it shouldn't really count as speech. With bonus shout out to retracted dicta from an overruled case.my state does not have a law specifically about it, but the general practice is to not have police officers present at looking places, encouraged by groups like the ACLU: https://www.aclu.org/press-releases/aclu-virginia-asks-county-halt-plan-armed-uniformed-police-polling-places

[Michael P]

Please ignore the first half of that comment. I meant not to post it 🙁

[Brett Bellmore]

"but the general practice is to not have police officers present at looking places,"

I assume you mean "voting places", but that hasn't been general practice anywhere I've lived, even if the ACLU would prefer that it not happen.

[Roman Moroni]

Maybe police shouldn’t be allowed outside of vaccination clinics since their presence could imply persuasive support for what the clinic is doing, and thereby putting putting them in clear violation of this law if they get within 30 feet of anyone going in.

[Greg J]

The Left are the biggest group of religious lunatics in America.

All this to demand that people take the Trump vaccine

[Lee Moore]

Just out of interest, is this really a thing ?

Are there really people picketing vaccination centers ? I've heard of people not wanting to get vaccinated themselves, but I hadn't heard of people wanting to stop other, willing, people from getting vaccinated.

[Liberator Lickpenny]

I was wondering this too and was able to find one high profile incident from January 2021 in LA:

https://www.latimes.com/california/story/2021-01-30/dodger-stadiums-covid-19-vaccination-site-shutdown-after-dozens-of-protesters-gather-at-entrance

I am not in Cali though, so I can't say how common this is. The article says no arrests were made, though it is possible that arrests could have been made, but were not for one reason or another.

[Brett Bellmore]

From the description, it sounds like the shutdown was a bit of theater; At no point do the protesters seem to have actually been obstructing anything.

But if you shut down an event when protesters show up, you can imply that the protesters were responsible for shutting it down, making them look bad.

Not that these particular idiots needed much help in that regard.

[Ben of Houston]

I will agree. Not only wasn't there a single protestor at the rodeo hall either time that I went to get my vaccination, but I haven't seen a single one at any CVS, Wallgreens, or any other location.

From personal observation, the people who refuse to get a vaccination typically are either "I already got it, there's no point", "it's insufficiently tested and has signficant side effects", or "the government protests too much, and we know from the Harris incident that some high level politicians haven't taken it. I'll take my chances". None of these push to protests.

[Brett Bellmore]

In a nation of 330 million people, you'll find somebody with just about any conceivable cause, but, I agree, there are very few people indeed who would protest somebody voluntarily getting this vaccine.

Maybe they're anticipating protests when they mandate it?

[Dr. Ed 2]

Protesters could actually comply with this as their goals would be to be visible to third parties. Hence blocking sidewalks *beyond* the buffer zone, being out far enough into streets to create traffic jams (particularly during rush hours) -- a lot of the stuff that was done along "Abortion Mile" in Brookline, notwithstanding the unConstitutional buffer zone law.

Assuming that there isn't some deep, dark, secret that they are trying to hide, and assuming that Cali law authorizes pharmacies to give vaccinations, their fear is that the various pharmacy chains (and both big box & grocery stores with pharmacies in them) will decline to participate out of fear of the hassle.

Particularly if the current financial incentive -- the cash per shot -- were decreased.

Which makes me think that we are looking at annual shots...

Or it could be the petty bureaucrat not willing to suffer dissent.

[Brett Bellmore]

Seems like overkill for that purpose, given how few people actually would protest the vaccine merely being available.

Now, if they mandated it, THAT would cause massive protests. And where else would you stage them except at vaccination sites? As well, the state could always just hold a vaccination drive anywhere else it wanted to block protests.

[David Nieporent]

but, I agree, there are very few people indeed who would protest somebody voluntarily getting this vaccine.

Given the large number of Trumpkin assholes who protest other people wearing masks, it's not exactly a stretch to see them protesting vaccination as well. The loons who oppose vaccination often have crazy ideas about "shedding" vaccine.

[Brett Bellmore]

"Given the large number of Trumpkin assholes who protest other people wearing masks,"

I haven't seen anybody protesting other people wearing masks. Where have you seen these protests?

Or perhaps you're engaging in a bit of equivocation, and you don't mean actual public protests, but just disagreeing with mask wearing?

[Roman Moroni]

I don’t know of any organized protests either, but maybe he’s talking about those videos we see of non-maskers yelling at masked people, calling them sheep and whatnot. I suppose this is at least anecdotal evidence that there is an angry attitude amongst some anti-maskers towards maskers. If they’re worth angrily confronting at Walmart maybe they’re worth protesting... or something like that.

[WuzYoungOnceToo]

Given the large number of Trumpkin assholes who protest other people wearing masks

Cite?

[Roman Moroni]

I think you’re probably right that there aren’t many people who want to force anyone to not get a shot, or physically intimidate them. But in some places there is judgement of vaccinated people with real world consequences. Kind of a vaccination cancel culture. I just read some article about people in very anti-vax areas getting vaccinated in disguise or only heading to the clinic at times they’re pretty sure no one they know will see them. Some of these people fear being shunned by their neighbors or even losing employment.

Of course these fears could mostly be without merit, or at least highly exaggerated... but I don’t doubt that there is a non-trivial amount of anti-vaxers who do care, to whatever practical extent, and do judge harshly when others get the jab.

I suppose it should go without saying that this kind of judgment with real world consequences is more true on the other side of the vaccination issue.

[Magister]

I saw a report that people in Missouri were disguising themselves to get vaccinated because of anti-vaccine people in their lives.

[Roman Moroni]

I posted my comment above before seeing yours. So yeah, there probably is judgement of the vaccinated in some areas, possibly even with some real world consequences. Not sure how prevalent actual protests of vaccination clinics are. But I’m sure it’s happened somewhere. Pretty much everything does.

[Bored Lawyer]

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

This part of Prof. Volokh's post deserves emphasis. "Harassment" has a common meaning that is NOT the definition in the statute.

This is yet another manifestation of Orwellian double-speak. Who could be against a law banning "harassment?" The fact that "harassment" is defined in a way that is not harassment as commonly understood is simply a means of deliberately misleading the public.

If a commercial entity did this, it would be illegal as misleading advertising. Both the FTC and competitors could sue to enjoin it. That legislators resort to it is a damning indictment of them.

[jimc5499]

Since when has California payed attention to the Constitution?

[ReaderY]

Separate from the various other issues, the favt that the FDA has not seen fit to give vaccines full approval is probably some evidence that skepticism shouldn’t be considered by the courts to be a lie, still less of the sort that can be criminally punishable.

[ReaderY]

That said, there are various old Supreme Court cases upholding pubishment for interfering with the draft etc., which could be done by speech alone. Has Brandenberg v. Ohio really overruled them all? Or does government have more of a compelling interest during an emergency?

Agter all, the resson for the specific reference to vaccination is that it’s analogous to a draft in a war. If there’s compelling interest, it would be content-based and hence justify not being content-neutral.

We haven’t been in a situation thought to actually threaten society as a whole in a long time. The concept of compelling interest has been watered down to pretty much whatever things the Justices feel really strongly about.

But what about actual compelling interest? Do the old cases apply? If you can punish interfering with the operations of the military in a war even if done entirely by speech, can you punish interfering with vaccinations in a pandemic even if done entirely by speech?

[Roman Moroni]

Well, the only similar law that I can think of which has passed scrutiny of the courts is the polling place buffer zone.

But that one seems like it’s based on a pretty dubious rationale that could probably be similarly argued in favor of this vaccination buffer zone, or an abortion clinic buffer zone. If I understand correctly, based on Eugene’s comment above, it’s that they can’t prevent intimidation with anti-intimidation laws alone, so they need a law against otherwise constitutionally protected speech as an added “prophylactic.”

If that applies to polling places I’m not sure why it would categorically not apply to these other places. Seems like a bad precedent to me.

[NToJ]

Your overall analysis seems sound. However:

"And if the bill banned all approaches for "oral protests, shouting, chanting signing, 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."

I think the idea is that since vaccination sites are where people are going to protect themselves from the virus, they are the only public place that a person must go to in order to get protection from COVID. A person can avoid COVID by staying home and not going to a civil rights protest. But a person has to go to "vaccination sites" or places "in connection with vaccination services" to get the vaccine, right?

[Roman Moroni]

I think maybe the problem you’re running into is a subjective judgement of the activity itself, and of those who would protest such an activity.

Just to be clear, I’m sure I agree with your subjective opinion on the subject, but for the purposes of constitutionally protected speech, we have to look at it in a position neutral way. Those people protesting - as nutty as we might think they are - are just as convinced that their actions are for the greater good as we are that they’re wrong. Now obviously that doesn’t give them the right to use violence or the threat of violence to get their way. But their speech must be tolerated no matter how awful we think it is... for many reasons, but one that we should never forget is that one day even the brilliant and eternally wise WE might actually be mistaken about something, and we will need the usually stupid THEY to have the freedom to persuade us that we got it wrong.