The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Last week, I wrote about SB 742, which seems on track to become California law (having passed the Senate 33-4, and the Assembly Public Safety Committee 6-2). The law would make it a crime to, among other things,
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 …
nonconsensual[ly] and knowing[ly] … 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 …
in connection with any vaccination services.
I opined that this would be clearly unconstitutional, for two reasons:
[1.] The First Amendment 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[ing]' 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.
[2.] 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 (1981) (holding that a residential picketing ban that applied only to nonlabor picketing was unconstitutionally content-based); Reed v. Town of Gilbert (2015) (holding that a sign ordinance that treated political signs, ideological signs, and signs giving directions to certain events differently was unconstitutionally content-based).
Now here's the development: Rachel Bluth (California Health Online) wrote about this on Friday, and she quoted, among others, Kevin Baker of ACLU California Action (a collaborative project of the ACLU California affiliates):
The American Civil Liberties Union said it has no issues with it as written.
"It's not necessarily the case that the freedom to express our views is unrestricted," said Kevin Baker …. "They can be balanced with important governmental objectives" like letting people get vaccinated in peace.
I e-mailed Baker to verify his position (and alluding to my contrary position) and got this reply:
It is certainly [an] interesting and novel question, and you may well be correct. Were we to write the law ourselves, we might draw a somewhat different line. But we feel pretty confident that the courts would uphold SB 742 based on the buffer zone/bubble case law largely drawn from the fairly analogous context of reproductive health services. To be clear, however, we are not supporting the bill—we are simply neutral.
I have to say that I don't see how the ACLU's view can be correct, for the two reasons I describe (that it's much broader than the 8-foot bubble upheld in Hill, and that it's content-based); but I thought I'd note the ACLU's perspective.