The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

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).