The Volokh Conspiracy
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As I wrote about in September, the California Legislature enacted a law defining "harassing" as approaching within 30 feet to give leaflets to strangers, or to try to speak to them. 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.
And it defines "harassing" thus:
(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—has now been defined as 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). Remember: When you hear proposals to ban "harassment," always ask yourself how this "harassment" is going to be defined.
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.
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). Yet the new California law provides:
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.
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."
Indeed, on Saturday, Judge Dale Drozd issued a temporary restraining order blocking enforcement of the law (Right to Life of Central Cal. v. Bonta):
In the court's view, plaintiff is very likely to succeed in showing that SB 742 is content based. By its terms, SB 742 prohibits a person from knowingly approaching another person for the purpose of engaging in "oral protest"—unless that oral protest is about a labor dispute. The statute also prohibits a person from knowingly approaching another person for the purpose of displaying a sign to that person—unless that sign is held by a picketer displaying speech about a labor dispute.
Accordingly, plaintiff has shown that it will likely succeed in establishing that SB 742 is a content-based restriction on speech and is thus subject to strict scrutiny…. [And, applying strict scrutiny, e]ven assuming that the state's interest in ensuring Californians "can obtain and access vaccinations" is a compelling interest—an assumption this court would readily make with regard to access to COVID-19 vaccinations given this ongoing public health crisis and global pandemic—plaintiff has shown that it is likely to succeed in proving that SB 742 is not narrowly tailored to serve that interest….
Plaintiff argues that SB 742 is not narrowly tailored because it is both overbroad in that it prohibits speech beyond what Supreme Court precedent on buffer zones allow, and it is underinclusive in that it allows labor picketing—an activity that poses no less of a risk of endangerment to its stated interest. Plaintiff emphasizes that even under the less stringent standard of intermediate scrutiny, the Supreme Court has struck down: a 15-foot buffer zone around people entering and leaving abortion clinics that prevented "communicating a message from a normal conversational distance or handing leaflets to people entering or leaving the clinics who are walking on the public sidewalks," Schenck v. Pro-Choice Network of W. N.Y. (1997); and a 35-foot buffer zone around an entrance or exit to a reproductive health care facility that stifled messaging "through personal, caring, consensual conversations," emphasizing that "when the government makes it more difficult to engage in these modes of communication, it imposes an especially significant First Amendment burden," McCullen v. Coakley (2014).
In those cases, the asserted state interest was similarly to ensure access to those facilities. But the Supreme Court found that those buffer zone laws were too broad and placed too much of a burden on fundamental protected speech, and thus struck them down as not being narrowly tailored to the state's interest. In light of these precedents, plaintiff contends SB 742 is unquestionably overbroad and insufficiently tailored to survive strict scrutiny, in large part because a 30-foot floating buffer zone makes one-on-one conversations impossible and requires shouting that is "starkly at odds with the message [plaintiff] communicates," and importantly, because defendant has not provided any evidence or argument suggesting that the speech prohibited by SB 742 causes or contributes to the harm that it seeks to prevent (i.e., obstruction of access). Finally, plaintiff notes that there are several readily available and less restrictive alternatives to achieving the stated interest, yet the state has not tried to employ them, seriously considered them, or explained why they would not be expected to work, all of which is required to show that a law is narrowly tailored.
Defendant … relies on the Supreme Court's decision in Hill v. Colorado, in which the Court upheld a statute that prohibited a person within 100 feet of an entrance to a health care facility from knowingly approaching within 8 feet of another person to pass "a leaflet or handbill to, displa[y] a sign to, or engag[e] in oral protest, education, or counseling with [that] person." Defendant argues that like the statute in Hill, SB 742 allows a speaker "to remain in one place" and not violate the statute even if passersby happen to come within 30 feet of the speaker who is standing.
But defendant's argument ignores the Supreme Court's reasoning in Hill. Namely, the Court explained that "[u]nlike the 15-foot zone in Schenck, this 8-foot zone allows the speaker to communicate at a 'normal conversational distance.'" Defendant does not address plaintiff's common-sense argument that 30 feet is clearly not a conversational distance.
Moreover, defendant overlooks the Court's analysis in Hill with respect to leafletting, wherein the Court noted that "[t]he burden on the ability to distribute handbills is more serious because it seems possible that an 8-foot interval could hinder the ability of a leafletter to deliver handbills to some unwilling recipients," but ultimately concluded that passing pedestrians can easily accept a proffered pamphlet from an 8-foot distance. The same cannot reasonably be said of a distance of 30 feet as imposed by this statute….
Indeed, plaintiff asserts that "[n]avigating around a 30-foot bubble on a public sidewalk (or even on [plaintiff's] own property) to position oneself so that persons entering a vaccination site will pass close enough to engage in quiet conversation or accept a leaflet is far more difficult" than the maneuvering with the smaller 8-foot buffer zone permitted in Hill. At the hearing on the pending motion, defendant countered plaintiff's argument and suggested that individuals can walk around and be closer than 30 feet from another person, and even hand them a pamphlet or display a sign to them, but only if they do not "knowingly approach" that person to hand them that pamphlet or display that sign. This strained interpretation is at best confusing and at worst frivolous in the undersigned's view. For these reasons, the court is not persuaded by defendant's argument that SB 742 can and should be deemed narrowly tailored based upon the Supreme Court's decision in Hill.
For the reasons explained above, the court concludes that plaintiff is likely to show that SB 742 is not narrowly tailored to serve the state's interest of ensuring access to vaccination sites. Thus, plaintiff has shown a likelihood of success on the merits of its First Amendment freedom of speech claim….
The court orders that, pending a hearing on a motion for a preliminary injunction, … Defendant and any person acting in concert with him shall be restrained and enjoined from enforcing SB 742's prohibition on "harassing" as that term is defined in California Penal Code § 594.39, as applied to Right to Life and its agents, and facially as to any speaker ….
I'm not sure the California Attorney General's office will fight this further, but if they do, I expect they'll keep losing.