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

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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.].)

NEXT: Does a Medieval English Statute Supersede the Second Amendment?

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  1. [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 right reply:

    “Discussion about labor picketers is irrelevant nonsense, as is the red herring that this measure is tailored to reduce contagion passed from anti-vaccination picketers to bystanders or visitors to vaccination sites. They are correct that theirs is a disfavored viewpoint. The state, in the midst of a public health emergency which can best be ameliorated by vaccinations, disapproves their speech and activity to persuade people who have decided to get vaccinated to instead do otherwise, and consequently put untold numbers of others at risk of death and serious injury. That disapproval and any consequent enforcement are within the state’s emergency powers.”

    It should go on to say:

    “Any right claimed to meddle in indispensable emergency measures during a pandemic is the same as a right would be to interfere with the military defense of the nation during a foreign invasion—which is to say, no right at all. If these vaccination protestors persist, they should expect to be jailed until the pandemic is at an end, or until they give their assurance that they will cease their interference.”

    It should conclude:

    “Note also that the government rejects in advance any claim that the court has legitimate power to prevent the government’s necessary and indispensable emergency actions to save lives. Regardless of the court’s decision, enforcement will end when the emergency is controlled, and not before then. To understand why the government takes this position, the court must consider that the risk of further development of the pandemic is unknowable and potentially grave, and consider also that any precedent set by its decision must withstand use during a more baleful future emergency—whether engendered by this pandemic or some other—which threatens credibly to kill a substantial fraction of everyone.”

    After that, or something like it, go on to discuss Justice Jackson’s famous dissent in Korematsu, and point out its continuing wisdom as a guide to the proper conduct of the courts during existential emergencies.

    1. The state, in the midst of a public health emergency which can best be ameliorated by vaccinations, disapproves their speech and activity to persuade people who have decided to get vaccinated to instead do otherwise, and consequently put untold numbers of others at risk of death and serious injury. That disapproval and any consequent enforcement are within the state’s emergency powers.

      To which the only necessary reply is Justice Jackson’s, from West Virginia v. Barnette:

      “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in matters of politics, nationalism, religion, or other matters of opinion[,] or force citizens to confess by word their faith therein.”

      I don’t like all the talk of “dictatorship” surrounding vaccine mandates. God knows I think vaccine protesters are selfish, sociopathic idiots.

      But if we were to repeal the basic principle that the government doesn’t get to control our thoughts because it is a pandemic, we really would lose a central freedom. People have the right to disagree with you, Stephen, and not only that, they have the right to go out on the street and persuade others of that, and if they succeed, that success is protected by the First Amendment. Because the framers of the Constitution specifically understood that Stephen Lathrop might be wrong about things and that nobody’s ideas should be proscribed as orthodoxy by the government.

      1. “I don’t like all the talk of “dictatorship” surrounding vaccine mandates. God knows I think vaccine protesters are selfish, sociopathic idiots.”

        Where you define “sociopathy” as a refusal to obey when the government gives you orders. That’s not a very good definition in a supposedly free society. People issuing orders always think they’re a good idea, that alone can’t justify demanding that people obey, or diagnosing them as mentally ill if they refuse.

        My concern here is that, if Covid justifies mandates, why would heart disease and cancer, comparable threats during Covid peaks, and much worse on average over the course of this pandemic, justify mandates?

        Why wouldn’t the reasoning behind a vaccine mandate equally serve for a diet and exercise mandate? A no grilling mandate? Why, there must be a long list of potential health related mandates that are as easily justified as demanding that the immunologically naive get vaccinated, and a hundred times more easily justified than demanding it, (As you do.) of those who’ve already had Covid.

        You can’t just assess the mandate in question, Dilan. You have to look at what the identical reasoning would permit, before you accept the reasoning. And this reasoning would permit us to end up leading very regimented lives indeed.

        1. Where you define “sociopathy” as a refusal to obey when the government gives you orders.

          No. Sociopathy is refusing to get vaccinated against a pandemic-level disease for no reason at all except that you hate the people who think you should be vaccinated. It has nothing to do with the government.

          why would heart disease and cancer, comparable threats during Covid peaks, and much worse on average over the course of this pandemic, justify mandates?

          Why wouldn’t the reasoning behind a vaccine mandate equally serve for a diet and exercise mandate?

          Heart disease, cancer, and bad nutrition/fitness are not communicable diseases. This has been yet another episode of Simple Answers to Stupid Questions.

    2. The state, in the midst of a public health emergency which can best be ameliorated by vaccinations, disapproves their speech and activity to persuade people who have decided to get vaccinated to instead do otherwise, and consequently put untold numbers of others at risk of death and serious injury. That disapproval and any consequent enforcement are within the state’s emergency powers.”

      Most people who (mis)quote the ‘fire in a crowded theater’ trope do so not realizing that it was actually used as an argument that the government could arrest people for arguing against the draft in wartime. Lathrop happily admits that he’s pro-censorship and that the government can arrest people for arguing against the draft in wartime.

      Of course, he will rant and rave about how he isn’t pro-censorship and challenge me to cite any examples of where he is, but then when I do he will run away and hide like an intellectual coward. The truth is, Lathrop favors only the speech of publishers and editors, and despises all other free speech. (To be more precise, he pretends that his favored speech of editors/publishers is something entirely different because it’s “press” instead of speech, inventing a non-existent legal distinction.)

    3. The state, in the midst of a public health emergency which can best be ameliorated by vaccinations, disapproves their speech and activity to persuade people who have decided to get vaccinated to instead do otherwise, and consequently put untold numbers of others at risk of death and serious injury. That disapproval and any consequent enforcement are within the state’s emergency powers.

      How about this:
      “In the aftermath of the 1/6/21 insurrection, we are in the midst of a public order emergency. It can best be ameliorated by shutting people up. The state disapproves of any speech or activity aimed to persuade people that last year’s election was stolen. That disapproval and any consequent enforcement are within the state’s emergency powers.”
      Would you sign on to this? I have a feeling you would…

      1. He absolutely would. He has argued that it’s sovereignty something something treason something to question an election result after it’s been certified.

        I mean, the people claiming the election was stolen are liars, frauds, and loons, but that doesn’t vitiate their free speech rights.

      2. Ed Grinberg, No. Maybe you have been listening to Nieporent, and thus have no idea what I have been saying.

    4. Again….1984 was a warning, not a how-to guide.

    5. The state, in the midst of a public health emergency which can best be ameliorated by vaccinations, disapproves their speech and activity to persuade people who have decided to get vaccinated to instead do otherwise, and consequently put untold numbers of others at risk of death and serious injury. That disapproval and any consequent enforcement are within the state’s emergency powers.”

      would be to interfere with the military defense of the nation during a foreign invasion—which is to say, no right at all. If these vaccination protestors persist, they should expect to be jailed until the pandemic is at an end, or until they give their assurance that they will cease their interference.”

      So the executive can outlaw any speech at anytime…

      “Note also that the government rejects in advance any claim that the court has legitimate power to prevent the government’s necessary and indispensable emergency actions to save lives. Regardless of the court’s decision, enforcement will end when the emergency is controlled, and not before then.

      …and the executive will refuse to abide by any court decision finding against its claimed authority.

      What could go wrong?

    6. The state, in the midst of a public health emergency which can best be ameliorated by vaccinations, disapproves their speech … That disapproval and any consequent enforcement are within the state’s emergency powers.

      One wonders if the author is even thinking this through just two chess moves ahead, to say nothing of thinking all the way to the end game. Suppression of speech is “within the state’s emergency powers”?

      Well, in communist countries it is.

      1. DaveM, emergency powers are for existential crises, not otherwise. They are not intended to become norms. And the unreliability of intentions cuts both ways.

        In existential crisis situations, because what will follow destruction cannot be predicted, use of emergency powers can become, at least aspirationally, a choice to protect rights. It hopes to avoid a worse possibility—by negligence allowing rights and all hope of their preservation to be annihilated amidst general destruction.

        Because a choice to suspend rights is inherently perilous, no sensible person would choose emergency powers and suspension of rights unless the cost of doing otherwise seemed more perilous, and more threatening to preservation of rights long term. And of course, there will always be differences of opinion about how dangerous the future may be. It is not a simple picture.

        One consideration to make the picture less imposing is that a proposal to suspend rights may not be general, but only narrowly targeted, as in the instance under discussion. Contrary to what you may fear, history does not show that temporary suspension of one right necessarily implies destruction of all rights. In the long term, Lincoln’s controversial suspension of habeas corpus turned out to serve expansion of liberty, albeit unconstitutionally.

        Neither is it a simple picture to choose adamant determination never to suspend any rights. Complete freedom to publish military information during a foreign invasion could prove to be an agency for the destruction of all rights, if invaders hostile to rights triumph.

        Likewise, deadly contagion has repeatedly, throughout history, brought thriving civilizations to the brink of collapse, or pushed them over the brink. A right to attack the means to suppress such contagion could prove self-canceling. At a minimum, such a right risks inflicting death on innocents who are not party to the controversy, and, at a maximum, risks doing so on a massive scale. Mass death is about as far from the preservation of liberty as you can go. It is the end game in fact.

        Your advocacy looks complacent, and over-confident. The eye of chaos presents an unblinking stare. Just as a lackadaisical defense of liberty may prove perilous, a blinkered reliance on stability may prove unwise.

        1. In the long term, Lincoln’s controversial suspension of habeas corpus turned out to serve expansion of liberty, albeit unconstitutionally.

          How so? Lincoln suspended habeas in 1861 and those arrested (but never charged) were almost universally peaceful opposition to either the war or its execution not anything that actually threatened the war effort.

          They literally arrested a newspaper editor for criticizing the suspension of habeas and Lincoln’s ignoring of the Supreme Court!

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