Free Speech

California Law Would Define "Harass" to Include Approaching Within 30 Feet to Give Leaflets to Strangers, or to Try to Speak to Them

The bill—focused on speech outside vaccination centers (except labor protests)—just passed both houses of the Legislature, and is waiting for Governor Newsom's signature.

|

As I wrote about in early August, the California Legislature is set to enact a law providing such a definition, in a content-based, unconstitutionally broad restriction on speech outside vaccination centers. Since my post, the Assembly passed the bill as well, joining the Senate, though with a slight revision that changes the nature of the content discrimination—in a way that is even more definitively unconstitutional. The bill is now on the governor's desk.

[1.] The bill begins:

(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 within 100 feet of the entrance or exit of a vaccination site and is seeking to enter or exit a vaccination site, or any occupied motor vehicle seeking entry or exit to a vaccination site, for the purpose of obstructing, injuring, harassing, intimidating, or interfering with that person or vehicle occupant.

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 how "harassing" is defined:

(c)(1) "Harassing" means knowingly approaching, without consent, within 30 feet of another person or occupied vehicle for the purpose of passing a leaflet or handbill to, 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.

Such ordinary speech—familiar from a wide range of peaceful protests—would now be  criminal "harassment." Yet 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[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.] 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 was originally 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.

That subject-matter restriction has been removed, but a new one has been added:

It is not a violation of this section to engage in lawful picketing arising out of a labor dispute, as provided in Section 527.3 of the Code of Civil Procedure.

Yet First Amendment precedents make clear that this sort of exception makes a law content-based, and thus unconstitutional. Consider, for instance, Carey v. Brown (1981), which involved a restriction on residential picketing with a labor exception. In the later Frisby v. Schultz (1988), the Court upheld a content-neutral ban on all focused residential picketing, but in Carey the Court struck down the ban with the exception:

Nor can it be seriously disputed that in exempting from its general prohibition only the "peaceful picketing of a place of employment involved in a labor dispute," the Illinois statute discriminates between lawful and unlawful conduct based upon the content of the demonstrator's communication. On its face, the Act accords preferential treatment to the expression of views on one particular subject; information about labor disputes may be freely disseminated, but discussion of all other issues is restricted. The permissibility of residential picketing under the Illinois statute is thus dependent solely on the nature of the message being conveyed….

"[The government] may not vindicate its interest in preventing disruption by the wholesale exclusion of picketing on all but one preferred subject. Given what [the government] tolerates from labor picketing, the excesses of some nonlabor picketing may not be controlled by a broad ordinance prohibiting both peaceful and violent picketing. Such excesses 'can be controlled by narrowly drawn statutes,' focusing on the abuses and dealing evenhandedly with picketing regardless of subject matter." Yet here, under the guise of preserving residential privacy, Illinois has flatly prohibited all nonlabor picketing even though it permits labor picketing that is equally likely to intrude on the tranquility of the home.

And the Court cited Police Department of Chicago v. Mosley (1972), which likewise held that an exception from a school picketing ordinance for "peaceful picketing of any school involved in a labor dispute" is unconstitutionally content-based. Nor can the government justify these exceptions on the theory that labor speech is especially valuable: The Court has expressly "reject[ed] [the] proposition" "that labor picketing is more deserving of First Amendment protection than are public protests over other issues."

The only possible content-neutral rationale for the labor exception is that nonlabor picketers outside vaccination sites are more likely to be unvaccinated themselves, and are therefore have a higher risk of being infected and therefore contagious. But this sort of rough proxy ("people speaking on issue X rather than issue Y are more likely to be dangerous") has generally not been accepted, whether the premise is that certain picketers are more likely to become violent or loud or obstructive or contagious, at least outside the narrow area of zoning restrictions on pornographic theaters.

[3.] The Legislature tries to support the 30-foot zone with the finding that "Given the distance across which airborne infectious diseases spread, a 30-foot buffer zone is necessary to protect the health of Californians trying to access vaccination sites." But the law is obviously not tailored to that concern. The virus doesn't distinguish between subject matters of speech; to the extent the virus can be spread by some protesters, it can be spread by labor protesters just as much.

Nor does it distinguish between places of transmission: If it can spread outside vaccination sites, it can spread outside workplaces, schools, government buildings, police stations, and any other places people might want to protest. (It's true that people approaching vaccination centers are now particularly likely to be less than fully vaccinated; but that won't be true in likely several weeks, when booster shots or similar third shots of the vaccine are likely to be offered, and certainly even now there are plenty of non-fully-vaccinated Californians in other places as well.) And of course it can spread from people who are standing still as well as from people who are approaching.

I've never heard of public health agencies suggesting that social distancing of 30 feet, outdoors, is called for in order to prevent contagion. Again, the Legislature hasn't acted on this concern as to any other speech. It's hard to credit its rationale for the restriction here.

Likewise, a the 6/28/21 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—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 that exclude labor picketing, could be justified on these grounds.

[4.] 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.

UPDATE: The ACLU of California is opposing the bill, and will ask the Governor to veto it (though it had earlier said it was "neutral" on the then-existing version of the bill).

NEXT: Today in Supreme Court History: September 9, 1806

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. When all you want to do is just dictate the way things should be, representative governments are simply the worst. So inconvenient.

    1. When a vile feminist stares at me longer than 3 seconds, I feel bullied and intimidated.

  2. The labor picketing exemption leaped out at me, too.

    We can only hope there are separate laws against union reps “knowingly approach[ing] within 30 feet of any person while a person is within 100 feet of the entrance or exit of a vaccination site and is seeking to enter or exit a vaccination site, or any occupied motor vehicle seeking entry or exit to a vaccination site, for the purpose of obstructing, injuring, harassing, intimidating, or interfering with that person or vehicle occupant.”

  3. What else would you expect in our one-party state which only cares about speech consistent with that party’s political platform.

    1. Whining, faux libertarian clingers are among my favorite culture war casualties.

      1. Artie, aren’t you white, male and old? You need to be replaced by a diverse.

    2. RAK as usual mouths his usual brain vomit. How pathetic that the Consitituion means nothing to him.

      1. If you didn’t like partisan polemics you wouldn’t have devoted more than two minutes to this blog.

      2. I have to wonder if RAK is really the entity behind KAR on the other half of the site. I could definitely see it endorsing a position to, as the username states, “KillAllRednecks”.

  4. The CA legislature never disappoints. It’s fools and petty tyrants all the way down. But I repeat myself.

  5. “(except labor protests)”

    The part that proves it’s all bullshit.

    1. And makes the argument that it’s unconstitutional easiest. Try pretending it’s not content-based when the allowed content is explicitly called out.

  6. When society generally turns against free speech, the law cannot likely protect it for very long.

    1. “Society” hasn’t turned against free speech.

      The Left, whose ideas, plans, and programs are such utter garbage that even they know they can’t rationally defend them, has turned against free speech.

      Because totalitarian thugs are all the same under the skin, no matter what camouflage the carry

      1. Open wider, Greg J.

        Or not. Your comfort is a diminishing concern among America’s culture war winners.

        1. I remember when leftists preferred to deny that they were totalitarian thugs. I like Arthur’s approach. Transparency is better.

          I might miss the women’s sports though.

          1. I don’t think men, not even “trans women”, will be able to break into women’s gymnastics. The events differ greatly between the two sexes for good reasons.

            I’ll be sad to see women’s volleyball go away. it’s a different game, requiring more interesting (IMAO) skills, when the players can’t get so far above the net.

            Most of the rest of it? No big loss

          2. But I do think it will be interesting to see what happens to the suburban vote when mummy and daddy realize that Bethany can never get onto the Varsity Girls Soccer team, because she’s merely a girl, rather than a “trans girl”, so just can compete

            1. Chess club?
              Geeks were equal rights people long before it was cool.

  7. Pour a little out for the unfortunate Deputy AG who gets assigned to defend this law in court.

  8. (c)(1) “Harassing” means knowingly approaching, without consent, within 30 feet of another person or occupied vehicle for the purpose of passing a leaflet or handbill to, 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.

    If we could make that retroactive, and not content-based, it would be awesome.

    Because I’d love to throw every single left-wing “protester” who ever did that in jail.

    I do love that the State whose laws led to the PruneYard decision, telling malls they can not prevent people from “passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling with” people on their private property, now wants to make it a crime to do the same on public property.

    What is it about Trump’s Covid vaccine that makes leftists so utterly insane?

    1. Greg,
      It is not “Trump’s Covid vaccine.” That is pathetic politicization.

      1. Its really “Trump’s Covid vaccines” since there are multiple ones.

        1. It is not Trump’s. It is yours and mine. We paid for it.

          1. WE paid for it

            but we only had a chance to pay for it because of the decisions Trump made.

            Decisions that Biden, or Hillary, or Obama, would never have made

            1. Umm, no dem would have made decisions that helped the vaccine development? This is pure tribalism.

              1. Not the same decisions and not as effective. Leftist radicals, et. al., in the Democratic Party would not have allowed anyone (that was not explicitly supportive of their ideology) to get guaranteed payments on vaccines that weren’t even developed yet. It would have been better to have more people die than give even one penny to “Big Pharma”.

      2. The only reason why we had those vaccines available in quantity is because President Trump created Operation Warp Speed.

        He did this with no Democrat support. To the contrary, Democrats like Biden and Harris repeatedly attacked the “Trump vaccines”, and I read lots of Democrats attacking Operation Warp Speed as a corporate giveaway.

        Without Trump, we might now be getting some mass production of covid vaccine.

        So yes, “Trump’s Covid vaccines” is the correct term

  9. “Now there is of course a hot debate about whether knowing lies about medical matters are constitutionally punishable.”

    Cool!
    https://pubmed.ncbi.nlm.nih.gov/33042552/
    “Hydroxychloroquine (HCQ) has shown efficacy against coronavirus disease 2019 (COVID-19) in some but not all studies. We hypothesized that a systematic review would show HCQ to be effective against COVID-19, more effective when provided earlier, not associated with worsening disease and safe. We searched PubMed, Cochrane, Embase, Google Scholar and Google for all reports on HCQ as a treatment for COVID-19 patients. This included preprints and preliminary reports on larger COVID-19 studies. We examined the studies for efficacy, time of administration and safety. HCQ was found to be consistently effective against COVID-19 when provided early in the outpatient setting. It was also found to be overall effective in inpatient studies. No unbiased study found worse outcomes with HCQ use. No mortality or serious safety adverse events were found. HCQ is consistently effective against COVID-19 when provided early in the outpatient setting, it is overall effective against COVID-19, it has not produced worsening of disease and it is safe.”

    So, anyone who speaks out against HCQ can be thrown in jail?

  10. This is an extremely important law to stop something that is only happening in the minds of delusional progressives

    1. Oops,
      Artie is at it again. Pity the poor mindless “Rev.”

  11. Virus-flouting, lethally reckless, superstitious, disaffected culture war casualties have rights, too.

  12. Geez, I only thought it was the People’s Duma (legislature) in the People’s Republic of NJ that could possibly be that idiotic…..knowingly passing a law they know to be unconstitutional.

    I guess Einstein was right….genius is finite, but stupidity is infinite.

    Well done, CA.

    1. C_XY,
      Einstein was a genius. He definitely got that correct. Although he never lived in CA, he did live in NJ.

  13. The worst example of a labor-gets-to-do-damaging-stuff-noone-else-can-do decisiopn is https://en.wikipedia.org/wiki/United_States_v._Enmons .

    Is this still good law? Is it still not a RICO violation for union thugs to shoot high powered rounds at working substation transformers, as long as the motivation is to win a better contract?

    -dk

  14. “100 feet of the entrance or exit of a vaccination site ”

    So, no protests within 100 feet of a pharmacy?

    That should be fun to enforce in San Francisco and Berkeley.

    1. here in Texas you can get vaccinated at every walgreens, CVS, tom thumbs, kroger, etc along with most every medical office. I have yet to see anyone protesting.

      Nice to have a law against something that is not happening.

    2. Maybe that’s part of the intent.

      Most of the large supermarkets in my area include a pharmacy that offers vaccines (including COVID-19 vaccines). These markets are also a favorite place for petition circulators to collect signatures for initiatives and recalls.

      Perhaps Democrats figure that if they could have shut down circulators who were outside many supermarkets gathering signatures for the California Gubernatorial Recall, Newsom wouldn’t be facing the voters unexpectedly.

  15. But it’s hard to see how a bill limited to vaccination sites, and to approaches that exclude labor picketing, could be justified on these grounds.

    Let me try anyway. I insist that no other state interest exists which is as compelling as the interest to suppress contagion during a deadly pandemic. That difference strikes me as sufficient to defeat the precedents.

    Under the California bill, any valid competing expressive interest remains protected, insofar as it can be published, discussed academically, or otherwise put before the public without an actual attempt to defeat a would-be vaccination in progress. It dismays me that California proposes to tolerate that conduct at a distance of 30-feet, let alone closer.

    You cannot on the one hand convincingly posit an actually deadly emergency, and on the other hand elevate less urgent competing interests above it. To rule that free speech—not free speech per se, mind you, but maximal free speech—must take precedence over public health emergency measures necessary to preserve lives, unacceptably trivializes the power to protect public health. By doing so, it encourages exactly the deadly neglect and contempt for pandemic counter-measures which are right now needlessly killing more than a thousand Americans every day. If government does not act as if it fully believes a pandemic is actually deadly, how can it expect to recruit the support of a necessarily large fraction of the populace to support the premise?

    As always, my take on these issues insists that it is unwise to use Covid-19 as a sole standard. Covid-19 is too quirky a pandemic to guide public health policy making generally, because it spares too many people too predictably, while concentrating its ravages among a smallish minority demographic. That skews politics in an unhealthy way—with “unhealthy,” chosen advisedly. Instead, the premise for public health policy should always be a hypothetical pandemic with a demonstrated potential to kill a notable fraction of everyone. I have previously suggested weaponized smallpox as the appropriate example.

    Put EV’s free speech optimization advocacy against that premise, and at least to me it looks politically unsupportable. The experience of public response to pandemics throughout history suggests the same.

    1. “That difference strikes me as sufficient to defeat the precedents. ”

      LOL Like you know anything about law.

      1. Bob, do any of the cited precedents address deadly pandemic contagion and public health specifically? I know enough about the law to know you are allowed to try to distinguish inapplicable analogies.

    2. At first I was going to point out the sheer evil of your comment, but then I realized that it would be great to get as many Californians vaccinated as possible, since the vaccines will eventually kill most of them through ADE (or other similar evolutionary process) while those of us who survived COVID naturally will inherit the earth. Therefore, go right ahead, please.

      Or maybe you should rethink this? ????????????

      1. jjsaz, go ahead. Point out the sheer evil of my comment. Like most people, I am reluctant to publish sheer evil, even by accident, so help me out.

        See if you can make a case for that. Please take care to cite what I said accurately, not change the subject, and address the particulars of my argument forthrightly, as I presented them.

      2. ” but then I realized that it would be great to get as many Californians vaccinated as possible, since the vaccines will eventually kill most of them through ADE (or other similar evolutionary process) while those of us who survived COVID naturally will inherit the earth ”

        These are your followers, Prof. Volokh. The vaccines kill while COVID is a blessing. That, and the usual multifaceted bigotry. You have certainly cultivated quite a class of conservative commenters.

        Do you expect UCLA, or any other strong law school, to hire more conservatives for faculty positions? Why would a dean who winces at your blog, when not apologizing for your conduct, want another conservative on the faculty?

    3. I think you’re on to something. Since heart disease killed twice as many people as Covid-19 in 2020, we should ban advertising from fast food restaurants, supermarkets, potato chip manufacturers, etc. If we could prevent a single heart attack, isn’t that worthy of placing limits on speech? And don’t get me started on cancer deaths, almost double those of Covid-19. We definitely need to ban any advertising for products known to the state of California to cause cancer.

    4. I insist that no other state interest exists which is as compelling as the interest to suppress contagion during a deadly pandemic.

      You can insist on it, but it isn’t so. It is compelling, but not uniquely so. Pandemics happen — if liberal democracy were abandoned with the first pandemic, they could hardly be said to exist.

      Even if it were uniquely compelling, there are three prongs to the test: compelling government interest, narrow tailoring, least restrictive. Restrictions of passing out pamphlets within 100 feet of something that happens every few hundred feet fail laughably on the other two prongs.

      Under the California bill, any valid competing expressive interest remains protected, insofar as it can be published, discussed academically, or otherwise put before the public without an actual attempt to defeat a would-be vaccination in progress.

      The argument “there is always some other way of communicating your idea” is a dodge. This particular means is chosen — both by the people who use it and the people who ban it — because it works.

      You cannot on the one hand convincingly posit an actually deadly emergency, and on the other hand elevate less urgent competing interests above it.

      Your idea is that the ban is performative? That unless we abandon vital rights then nobody will take the emergency seriously?

      OK, how about “If the pandemic is serious, then the Governor won’t go out to dinner at crowded restaurants”? Would that demonstrate we were serious?

      Or how about this one: “If the pandemic is serious, then we shut down all the mosques.” That will show how serious things are: we are totally demolishing freedom of religion! Everybody will believe us now!

      Point out the sheer evil of my comment.

      You are, to paraphrase Franklin, trying to convince people to give up essential Liberty, to purchase a little temporary Safety — and you are not even ponying up the Safety! This law, even if it somehow managed to get enforced, will not prevent a single case of COVID. All it would do is reinforce the notion that freedom is a luxury we can do without.

      1. Malvolio, you are entangled in self-contradiction. You assert that personal confrontation is selected by its practitioners because it works. Which in this context must mean it would persuade (or intimidate) some would-be vaccine seekers to go unvaccinated. Then you say if the confrontations were ended by enforcement it would not prevent a single case of COVID. Those assertions together make sense only in the context of an absurd and unsupportable assumption that the vaccines do not work at all. Are you in fact an anti-vaxxer?

        More generally, your reasoning is founded on exaggeration—in two directions. To correct your maximizing exaggerations, the proposal is not to abandon liberal democracy. The proposal is not to abandon vital rights. The proposal is not to give up essential Liberty (whether capitalized or not). The proposal is to prioritize suppression of contagion as an emergency measure during a pandemic crisis, and during that interval give those vital rights reduced salience. And then to restore everything to the status quo ante when the crisis has passed.

        To correct one other exaggeration, a minimizing one, your characterization of anti-vaccination demonstrations as, “passing out pamphlets,” is far too benign. The risk—amounting to near-certainty—is confrontation, embarrassment, intimidation, the deliberate creation of fear of personal publicity, invasion of medical privacy, the exposure of a vaccine-seeking wife to the wrath of her anti-vax husband—at the possible cost of her life, or even at the cost of creating a renewed chain of contagion which could engulf thousands or millions of others. Whether or not the probability is low, the risk is so high, and so often repeated, that it is folly to minimize it, as you do.

        Your advocacy—like a great deal of so-called libertarian advocacy—seeks to cripple an entire range of collective actions which have in fact enabled most of the life-preserving benefits medical science has yet delivered. Public health measures, far more than case-by-case medical practice, are what have extended human life expectancy during the past century. The most foolish libertarians oppose the very principle of public health for no reason except infatuation with individualistic ideology, and mindless hostility to all collective actions coordinated by government policy. The root of such libertarians’ fear is transparently not that the actions they oppose are harmful—they are not, they are often beneficial, and in the case of public health emergencies sometimes indispensable—but that collective actions might prove successful and popular, and embarrass their ideology.

        Libertarianism is not even a theory of government. It is, at best, a fertile source of interesting critiques of particular government failings. But it cannot aspire even to that degree of success when it is practiced by cranks who prioritize ideology above all else.

        1. To correct one other exaggeration, a minimizing one, your characterization of anti-vaccination demonstrations as, “passing out pamphlets,” is far too benign. The risk—amounting to near-certainty—is confrontation, embarrassment, intimidation, the deliberate creation of fear of personal publicity, invasion of medical privacy, the exposure of a vaccine-seeking wife to the wrath of her anti-vax husband—at the possible cost of her life, or even at the cost of creating a renewed chain of contagion which could engulf thousands or millions of others. Whether or not the probability is low, the risk is so high, and so often repeated, that it is folly to minimize it, as you do.

          Shocker. Lathrop comes down against speech in yet another context.

    5. “Covid-19 is too quirky a pandemic to guide public health policy making generally, because it spares too many people too predictably, while concentrating its ravages among a smallish minority demographic.”
      That is patent nonsense Stephen. The disease is far from quirky, unless you say that about all disease. ANd the melodrama of ravishing a small minority is likewise a gross exaggeration at best.
      Try sticking with the facts like a good reporter should

      1. Don Nico, I presume you understood my remark to mean Covid-19 has proved overwhelmingly more deadly among the nation’s oldest cohort than among others. I think you understand that distinguishes Covid-19 from other diseases which may kill a percentage as great or greater among the elderly, but comparatively speaking also kill far more people in younger age groups. There is a long list of such diseases, and I presume you know which they are as well or better than I do. So I am baffled by your criticism. Care to say more?

    6. “Let me try anyway. I insist that no other state interest exists which is as compelling as the interest to suppress contagion during a deadly pandemic. That difference strikes me as sufficient to defeat the precedents. “

      You know, that claim lost out during the AIDS epidemic, when it was decided that “gay rights” was more important than stopping AIDS.

      And it lost out during Obama’s Ebola fun, where no one was forced to quarantine after coming back from Ebola sites in Africa.

      And it lost out last year, when we were told that the George Floyd riots, I mean “mostly peaceful protests” were more important than stopping Covid.

      So, bzzt, no, you lose

    7. Let me try anyway. I insist that no other state interest exists which is as compelling as the interest to suppress contagion during a deadly pandemic. That difference strikes me as sufficient to defeat the precedents.

      This is literally the textbook definition of special pleading.

  16. “Yet First Amendment precedents make clear that this sort of exception makes a law content-based, and thus unconstitutional. Consider, for instance, Carey v. Brown (1981), which involved a restriction on residential picketing with a labor exception. In the later Frisby v. Schultz (1988), the Court upheld a content-neutral ban on all focused residential picketing, but in Carey the Court struck down the ban with the exception:”

    So Prof. Blackman links to Code section 527.3 dealing with labor protests, but declines to discuss literally the first noted decision in Westlaw for that section… a 2012 decision called Ralph’s Grocery (55 Cal.4th 1083) in which the California Supreme Court explained that “it is well settled that statutory law—state and federal—may single out labor-related speech for particular protection or regulation, in the context of a statutory system of economic regulation of labor relations, without violating the federal Constitution.”

    SCOTUS denied cert.

    C’mon man! You can pitch your argument without straw men. You’d fail a law student for such incomplete analysis.

    1. Dang it — wrong author. I meant Prof. Volokh, not Blackman. Apologies.

      1. You should also apologize for citing a case that supports Prof. Volokh as if it contradicted him. The Ralph’s Grocery case is typical California sophistry,¹ and probably doesn’t survive Cedar Point Nursery v. Hassid and Town of Gilbert v. Reed, but it has nothing to do with this situation. Quoting from the above statute:

        “Harassing” means knowingly approaching, without consent, within 30 feet of another person or occupied vehicle for the purpose of passing a leaflet or handbill to, 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.

        And what do we see if we read Ralph’s Grocery?

        [Carey is] distinguishable, however, as both involved laws that restricted speech in a public forum; by contrast, neither the Moscone Act nor section 1138.1 restricts speech, and the speech at issue here occurred on private property that is not a public forum for purposes of the federal Constitution’s free speech guarantee.

        ¹It contends that protecting only one form of speech is meaningfully different than banning all other forms of speech. It would be like saying that a law saying, “Jews can pray in the vestibule of churches regardless of the wishes of those churches” does not actually forbid Mormons from doing so, and therefore Mormons couldn’t challenge such a rule as discriminatory.

  17. The state could avoid the Constitutional issues by leaving enforcement to individual citizens through civil suits. What is good for the goose (Texas and abortion) is good for the gander (California and speech, gun control, etc. ).

    1. Are you really so pathetically ignorant that you’re unaware that the TX law is the one using the Left’s “Goose” laws against them?

Please to post comments