Supreme Court Bubble Bath
Today’s case is about bubbles. Actually, it’s about bubbles inside bubbles. And the carving out of circles of “privacy” and “free speech” inside bubbles in bubbles.
Calgon take me away.
Hill vs. Colorado addresses Colorado’s “bubble law,” a 1993 statute creating an 8-foot bubble around anyone entering a “health care facility,” which, as Justice Scalia points out today, is code for “abortion clinic.” The statute prohibits abortion protesters from “knowingly approaching” patients with the purpose of counseling, distributing leaflets, or educating within 8 feet of anyone entering a clinic.
But such activities are only proscribed within a much larger “bubble”—the “buffer zone” that exists within a 100-foot radius of the entrance to a medical facility. To oversimplify the statute, protesters may leaflet inside the 100-foot bubble, but they can’t obstruct entry and exit from the building; within the 8-foot bubble they may not leaflet at all.
Regardless of how you feel about abortion, the case turns on whether you would privilege the rights of the protesters to pray and/or shriek, or the rights of the clients to not be prayed and/or shrieked at. Violating the law is a misdemeanor carrying up to six months in jail and a $750 fine.
Hill is shaped largely by two recent 5-4 decisions addressing the speech rights of abortion protesters, both authored by Chief Justice Rehnquist. The first was a 1994 case, Madsen vs. Women’s Health Center, in which the court picked and sorted through a ragbag of measures limiting the activities of Florida anti-abortion protesters. Madsen upheld the portion of an injunction permitting a 36-foot “buffer zone” around doorways to clinics but struck down a 300-foot “no-approach zone” around the clinic. The important part of Madsen, however, was the determination that the injunction was not viewpoint- or content-based (i.e., it would prevent pro-choice activists from protesting, too). Content-neutral regulations receive a lower level of constitutional scrutiny than “strict scrutiny.” (Recall from a previous Supreme Court dispatch that strict scrutiny = “go ask your father” = NO.)
The other case was a 1997 decision, Schenck vs. Pro-Choice Network. In Schenck the court upheld another “fixed buffer zone” but invalidated a New York injunction creating a 15-foot “floating bubble” around the patients. The bubble was struck down because protesters were more or less required to: 1) walk in the street to preserve the 15-foot bubble; and 2) sort of dive out of the way of oncoming “floating bubbles” even when they were doing nothing at all.
The U.S. Supreme Court sent the present case, Hill, back to the Colorado Supreme Court in the wake of its holding in Schenck. On the second pass, the Colorado Supreme Court found the statute constitutional, holding “no screaming at the floating bubbles.” So here we are.
The first attorney today represents the protesters. Jay Sekulow is almost immediately asked by Justice Breyer to address the shape and size of the bubble. “What is it you cannot say to me from a distance of 8 feet?” asks Breyer. “That’s the distance between me and Justice Kennedy.” Breyer adds that in Schenck the protester never knew where the bubble started or finished; they had to sort of leap out of its way or be prosecuted, but the Colorado statute corrected that problem.
Sekulow replies that there are a lot of things you can’t do from a distance of 8 feet. You can’t hand someone a leaflet. You can’t show them your Bible. (Unless it’s a really big Bible.) He says the difference between the 15-foot bubble invalidated in Schenck and the 8-foot bubble in Hill is irrelevant. Bubbles is bad.
Scalia asks Sekulow whether his protesters should be allowed to stand 2 inches from protesters, “nose to nose.” Sekulow repeats that size (of the bubble) isn’t the issue. The issue is that the bubble—even a really small bubble—prohibits speech and that violates the First Amendment.
Scalia drops to an eighth of an inch. His final offer? Chief Justice Rehnquist makes the nice point that the traditional notion of constitutionally protected speech involves a guy on a soapbox—not someone shouting at you from an eighth of an inch away.
Scalia is still working his way through his Zeno’s paradox—his hypothetical protester creeping closer and closer by half. “What if my nose touched your nose?” he asks.
“That would be assault,” replies Sekulow. Opening up the possibility of a whole new field of torts known as nose-batteries.
Sekulow says the regulation is content-based because it proscribes “protest, education, and counseling.” To which Breyer responds that he’s now posited a double-edged sword: If the statute prohibits you from saying anything, it’s constitutionally overbroad. But if you narrow it, it’s content regulation. Sekulow agrees there’s a Catch-22 here. But then, hey, he didn’t write the Constitution.
Sekulow grabs more ground than he needs, continuing to insist that no statute regulating any kind of protest speech could be constitutional. (Given that the court has already upheld several regulations, why take this position?) He says someone handing out pizza coupons could be charged under the statute. Um, right. But only if he is trying to hand me a pizza coupon on my way to an abortion. Arguably a less-than-ideal pizza moment.
Colorado Solicitor General Michael McLachlan looks like he could use a pizza. Or something. Someone someplace has told him that a good way to handle oral argument is to keep asserting the same point over and over again until the justices want to throttle you. Justice Kennedy offers a hypo that not only derails McLachlan’s whole argument, but actually throws him, screaming, from the train.
Kennedy begins with a simple question: Does this statute apply only to free-standing clinics or to a clinic on the sixth floor of a commercial building? McLachlan asserts that it applies to “health care facilities.” “Thank you,” says Breyer, but is the 18th floor office the medical facility or is it the whole building?
McLachlan says the statute applies to the medical facility and sidewalk. Scalia, Rehnquist, Breyer, and Kennedy each ask some variant on this same question, and McLachlan confidently asserts that the statute applies to the medical facility and sidewalk. Kennedy explains that lots of people with lots of viewpoints congregate on sidewalks outside big office buildings. Breyer, exasperated, asks McLachlan whether he really wants the court to decide this case based on a hypothetical office-building case that “hasn’t come up.” McLachlan feels comfortable answering “no” to this question.
Kennedy, not done with the hemlock hypos, begins a new line of questions about whether this law would also apply to labor picketing. (This is why the American Civil Liberties Union and People for the Ethical Treatment of Animals have filed amicus briefs in support of the abortion protesters.) McLachlan hangs himself on this remaining scrap of rope but scores an assist on the big laugh of the day. In response to Scalia’s observation that, “I rarely stand 8 feet from someone I talk to,” McLachlan zings back, “But everyone you communicate with is a willing listener, your honor.”
To which Justice O’Connor quips: “Don’t be too sure …” as Scalia literally shakes with laughter.
Who’s McLachlan now?
Barbara Underwood, the Department of Justice’s deputy solicitor general, can’t quite seem to get hold of her own arguments today. While she won’t let herself get pinned under a heavy hypothetical, as did McLachlan, she reacts to the labor picketing hypothetical with what can only be described as, well, grouchiness. And when Kennedy hits her with a hypo about angry protesters outside used-car lots, all she can spit out is, “Legislatures are not required to solve problems that don’t exist. If I’m required to hypothesize a world where people close in on people buying cars and show them photos of auto accidents, then yes the legislature should deal with that.”
There’s fighting the hypo, there’s ducking the hypo, and then there’s ripping the hypo’s head off in a fit of pique. I’m gonna guess this court does not encourage the last.
Two differences between this case and Schenck: This case involves a statute, as opposed to a federal injunction, and both the Madsen and Schenck opinions foreshadowed a more deferential standard of review to a statute. The other difference is that, unlike the floating bubble in Schenck, this bubble is smaller and cannot attack a protester like a hungry Rottweiler. I’m guessing another 5-4 decision with a blistering dissent by Kennedy that has something to do with 18-story buildings.
The real bubble in this case happens where my right to speak overlaps with an unwilling listener’s right not to listen. The First Amendment is predicated on the notion that no one should live in a bubble and that everyone benefits from a babble of conflicting voices. But the real question for the court today will be whether free speech includes the right to kick in someone else’s bubble and shout at them, even when they’ve made it clear they don’t want to listen.
