Content Regulation / Censorship, Freedom of Association and Assembly / Protests, Hate Speech, Political Expression
Brandenburg v. Ohio
Closed Mixed Outcome
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The U.S. Supreme Court upheld a Colorado statute that prohibited any person within 100 feet of a healthcare facility to knowingly approach an individual within eight feet with a purpose to educate, pass a leaflet, display a sign, engage in oral protest, or counsel. The petitioners who filed suit engaged in “sidewalk counseling” with individuals entering health facilities to try and dissuade them from obtaining an abortion. The Court reasoned that the statute was a proper time, place, and manner restriction on free speech and that it was content neutral since it banned all protestors in a certain area regardless of their message.
Colorado enacted a statute which made it unlawful within certain areas for any person to “‘knowingly approach’ within eight feet of another person, 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. …’”1
Hill, the petitioners’ party, filed suit seeking an injunction against enforcement of the statute and arguing that the statute was invalid on its face. The petitioners were individuals who engaged in “sidewalk counseling” for individuals who enter health facilities. “Sidewalk counseling” includes persuasion and distribution of leaflets to try to dissuade individuals from obtaining an abortion.
The District Court granted the state’s motion to dismiss, finding that because the statute had not yet been enforced against the petitioners, they could only raise a facial challenge, and the court found the statute to be facially constitutional. The Colorado Court of Appeals affirmed. The Supreme Court of Colorado denied review. The petitioners then appealed to the Supreme Court.
The Supreme Court vacated the decision of the Colorado Court of Appeals and remanded the case for a decision in accordance with Schneck v. Pro-Choice Network of Western N.Y.,2 which was decided concurrently. The Court of Appeals again upheld the statute. This was affirmed by the Colorado Supreme Court. This was again appealed to the Supreme Court, which again granted certiorari. The Supreme Court affirmed the Court of Appeals.
Stevens, J., delivered the opinion of the Supreme Court.
The Court recognized the importance of freedom of speech, and how that right must be balanced with the right to be left alone, which is also of paramount importance in a democratic society.
The Court found that the lower Colorado courts correctly found this statute to be a proper time, place, and manner restriction on speech, and that it was content neutral. The Court found that the statute did not regulate speech itself, but rather, limited where speech could occur. The statute was not aimed at a particular message or viewpoint, and applied to all speech neutrally. Finally, the statute aimed to protect patrons of these clinics by creating a buffer zone; it did not aim to restrict speech.
Hill, the petitioners’ party, argued that the statute was not content-neutral because it specifically targets leaf-letters and individuals holding signs. The Court disagreed, finding that a prohibition on all leaf-letters and sign holders was distinguishable from a prohibition on speech regarding certain topics while allowing speech on others. The statute at issue did not prohibit anti-abortion protesters while allowing other protesters to distribute pamphlets. Rather, it banned all protesters and distributors in a certain area. Individuals were still allowed to convey their message, but at a distance that did not interfere with the safety and well being of the patrons of these clinics.
Furthermore, the Court found the statute to be narrowly tailored to further a significant government interest. Here, the government interest was protecting patrons of abortion clinics, and the statute was narrowly tailored to accomplish that goal.
Petitioners also argued that the statute was overbroad for protecting too many people, burdening all speakers, and banning all protected expression. The Court was unconvinced, finding that although the statute unquestionably burdened protected speech, this was a valid time, place, and manner restriction on protected speech. The Court also enunciated that this statute does not ban signs, literature, and statements, but simply regulated where these can be placed or take place.
Petitioners also argued that the statute was vague, as it did not define “protest, education or counseling,” nor did it define what was meant by “approaching” an individual. The Court noted the standard for finding a statute void for vagueness can be derived from one of two standards: “First, if it fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits. Second, if it authorizes or even encourages arbitrary and discriminatory enforcement.”1 The Court found that, because the statute had a requirement of “knowingly” and the plain meaning of the words was clear, the statute was not void for vagueness.
Finally, the petitioners argued the the statute was an unconstitutional prior restraint, which the court rejected for reasons already addressed in Schenck and Madsen.2 Mainly, the statute does not restrict speech itself, but only reasonably restricts the time, place and manner of that speech.
Souter, J., Concurring Opinion: The concurrence opinion, written separately from the majority opinion to emphasize that this statute was not aimed at the content of the message, nor was it aimed at restricting protesters from conveying their message. The statute only limited the distance the protesters must stay from the patrons.
Scalia, J., Dissenting Opinion: Scalia dissented, finding that the statute was content-based because it was specifically aimed at the protesters, and was therefore subject to strict scrutiny. Scalia would have found that the statute impermissibly infringes on freedom of speech.
Kennedy, J., Dissenting Opinion: Kennedy also would have found that the statute was content-based, and would have additionally found the statute unduly vague and overbroad. Accordingly, Kennedy would have found the statute unconstitutional.
p. 732. ↩
U.S., Schenck v. Pro-Choice Network of Westerny N.Y., 519 U.S. 357 (1997); and U.S., Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753 (1994). ↩
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case provides a mixed outcome. Although it does place some burdens on speech, it does so through a constitutionally valid time, place, and manner restriction, which is content-neutral and places minimal restrictions on the right to freedom of speech. Although the statute restricts all speech-related activities in a certain area, it does so in a content-neutral manner to further a substantial government interest: protecting the privacy of patrons of abortion clinics by limit opportunities for harassment.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
As a decision of the Supreme Court, this decision binds all lower courts in the United States.
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