The Volokh Conspiracy

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Challenge to California's New Content-Based Restriction on Speech Outside Vaccination Centers


It was just filed Sunday by Michael Millen and by Catherine Short (of the Life Legal Defense Foundation), Aubin v. Bonta (N.D. Cal.):

On or about October 8, 2021, California enacted Senate Bill 742 …, creating Penal Code §594.39 … The Statute imposes various restrictions on First Amendment activity within 100 feet of the entrance to any "vaccination site," which is defined to include any space or site where vaccines are provided, including hospitals, physician's offices, clinics, and any retail space or pop-up location.  While parts of the law restrict activity that is already illegal anywhere, such as obstructing movement and threatening people, the heart of the law is a restriction on approaching within 30 feet of another person for the purpose of engaging in various forms of traditional sidewalk free speech.

In 2000, the United States Supreme Court upheld a law imposing a similar restriction on approaching within 8 feet of other person in certain public locations, but size matters.  SB742 is an unconstitutional restriction on free speech….

Public sidewalks are traditional public fora, which for "'time out of mind' … have been used for public assembly and debate." … Governmental bodies may regulate the time, place and manner of speech in traditional public fora, but only if such regulations "are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication." … A content-based exclusion may only be enforced if it serves a compelling government interest and is narrowly drawn to achieve that end.

[1.] The Statute is not content-neutral.

Section 594.39(d) expressly exempts "lawful picketing arising out of a labor dispute, as provided in Section 527.3 of the Code of Civil Procedure." Laws that exempt labor picketing are content-based restrictions on speech. Carey v. Brown (1980) (striking down residential picketing ordinance containing an exception for labor picketing); Police Department of Chicago v. Mosley (1972) (striking down ordinance banning picketing of schools, with an exception for labor picketing). Thus, the Statute must be enjoined unless it serves a compelling governmental interest and is narrowly drawn to serve that interest….

[E]ven if the State's interest in people receiving vaccines were a compelling interest, the Statute is not narrowly drawn to achieve that interest. The Statute bans approaches of any person seeking entry for any reason to any location where any vaccine is provided. Creating speech-free zones around every drug store, stand-alone health clinic, and supermarket in the state in order to re-assure the occasional customer seeking a vaccine of some kind is hardly a narrowly drawn restriction on speech. On the contrary, it is unconstitutionally overinclusive and overbroad….

[N]othing in the Findings and Declarations suggest why labor picketers are less likely to spread COVID or other airborne diseases to persons outside vaccination sites than are picketers on other topics.  Thus, even if the purported state interest were a compelling one, the restriction would be fatally underinclusive… "Underinclusiveness raises serious doubts about whether the government is in fact pursuing the interest it invokes, rather than disfavoring a particular speaker or viewpoint" ….

The Statute is also content-based and underinclusive because of its banning only those approaches made for the purposes of "oral protest, education, or counseling," as opposed approaching for any other reason, such as asking directions or panhandling. No compelling governmental interest supports this distinction….

[2.] The Statute is not narrowly tailored does nor does it leave open ample alternative channels of communication.

The language of §594.39(c)(1) comes virtually verbatim from a Colorado statute upheld by the Supreme Court in Hill v. Colorado, 530 U.S. 703 (2000), with the significant exception that the Colorado statute only prohibited unconsented approaches within eight feet. Considering a facial challenge to the Colorado law, the Supreme Court found that the restriction was narrowly tailored and left open ample alternative channels of communication. It did so by emphasizing the small size and minimal impact of the 8-foot no-approach zone: "… Unlike the 15-foot zone in Schenck v. Pro-Choice Network of N.Y. (1997), this 8-foot zone allows the speaker to communicate at a "normal conversational distance." … As we explained above, the 8-foot restriction on an unwanted physical approach leaves ample room to communicate a message through speech. Signs, pictures, and voice itself can cross an 8-foot gap with ease… [The State] enact[ed] an exceedingly modest restriction on the speaker's ability to approach."

The Court also emphasized that these speech activities were only impeded where the intended recipient of the leaflet had not consented to the approach.  However, as opposed to an 8-foot space, a 30-foot gap effectively precludes obtaining consent to approach at all and becomes a complete ban on approaching and therefore on leafleting and oral protest, education, counseling.

As a demonstrative exercise, substituting "30 foot" for "8 foot" throughout the Hill decision demonstrates how the greatly increased distance forecloses open ample alternative channels of communication and essentially negates the Supreme Court's teaching and reasoning that upheld the Colorado statute, e.g.:

  • "[T]his [30-foot] zone allows the speaker to communicate at a 'normal conversational distance.'"
  • "The [30-foot] separation between the speaker and the audience should not have any adverse impact on the readers' ability to read signs displayed by demonstrators."
  • "The [30-foot] restriction on an unwanted physical approach leaves ample room to communicate a message through speech."
  • "Signs, pictures, and voice itself can cross an [30-foot] gap with ease."
  • "Nothing in this statute, however, prevents persons from proffering their literature, they simply cannot approach within [thirty] feet of an unwilling recipient."

None of these revised statements make sense due to the widely differing effect of a 30 foot buffer zone versus a mere 8 foot zone and highlight why the Hill court would not approve of SB 742.

More recently than Hill, the Supreme Court struck down a Massachusetts law creating 35-foot speech-free buffer zones around the entrances to abortion clinics. McCullen v. Coakley (2014). The Court held that the law was not narrowly tailored and infringed on a core First Amendment activities of one-on-one conversation and leafleting: "It is thus no answer to say that petitioners can still be 'seen and heard' by women within the buffer zones.[]  If all that women can see and hear are vociferous opponents of abortion, then the buffer zones have effectively stifled petitioners' message."

The Court also noted that Massachusetts had failed to explain why its interests could not be protected and furthered by less drastic restrictions on speech, including simply enforcing existing criminal laws against "assault, breach of the peace, trespass, vandalism, and the like."   Repeat offenders could be enjoined in civil actions. "The point is [] that the Commonwealth has available to it a variety of approaches that appear capable of serving its interests, without excluding individuals from areas historically open for speech and debate."

The Court also found the Commonwealth's record of prior disruptive conduct purportedly justifying the buffer zones to be woefully deficient, as was the Commonwealth's record of having tried, without success, other means of addressing the problems that threatened its interests. "To meet the requirement of narrow tailoring, the government must demonstrate that alternative measures that burden substantially less speech would fail to achieve the government's interests, not simply that the chosen route is easier."

The Findings and Declarations of SB742 contain only one sentence setting out the perceived need for this law: "Protestors at vaccination sites continue to impede delay Californians' ability to access vaccination sites."  To establish that the Statute is narrowly tailored, Defendant Bonta will not only have to show that this problem has been substantial, that it continues, and that the government has tried other means of addressing the problem, without success.

The Court found the Massachusetts law unconstitutional because it "burden[ed] substantially more speech than necessary to achieve the Commonwealth's asserted interests."  The Statute at issue here also burdens substantially more speech than necessary to achieve the asserted interest of "blunt[ing] and stop[ping] infectious diseases" by ensuring "access" for residents to obtain vaccinations….

Looks like a winner to me. (Millen and Short, by the way, won Hoye v. City of Oakland (9th Cir. 2011), an important free speech content-based prosecution case—a victory for anti-abortion demonstrators, before Judge Marsha Berzon, Judge Stephen Reinhardt, and District Judge Louis Pollak [E.D. Pa.].)