The Capitve Audience Doctrine and Floating Buffer Zones: An Analysis of Hill v. Colorado

AuthorRobert D. Nauman

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I Introduction

In Hill v. Colorado,1 the United States Supreme Court dealt with a challenge to the constitutionality of COLO. REV. STAT. 18-9-122.2 The statute was enacted in 1993 to prevent persons from interfering with those seeking access to health care facilities, an issue that has become of vital importance in the state due to the conduct of those protesting outside of Colorado's abortion clinics.3 The petitioner's challenge primarily concerned the statute's subsection three, which made it illegal for any person to knowingly approach within eight feet of another person, without that person's consent, for the purposes of protesting, educating, counseling, displaying signs, or passing literature.4 The statute applied the restriction to persons in the public way or sidewalk area within a radius of one hundred feet from any entrance door to a health care facility.5 Plaintiffs brought a facial challenge to the statute's constitutionality before the Court, seeking an injunction against its enforcement on the grounds that the statute's restrictions were based on the content of the speaker's message, were unconstitutionally overbroad, and were vague in their terms. Moreover, Plaintiffs allege the consent requirement constitute an impermissible prior restraint on speech.6

In rendering its decision, the Court touched upon two important First Amendment considerations. First, the Court resurrected the "floating buffer zone" as a constitutional method for controlling the time, place, and manner of speech around health care facilities.7 Secondly, and perhapsPage 770 more strikingly, the Court recognized that the state has a significant and legitimate interest in protecting a citizen's "right to be let alone" on the public sidewalks, a forum which heretofore had been recognized as a "quintessential public forum" where the protection of free speech is a primary concern.8 Concerning the "right to be let alone," the Court left unclear as to when or where it will generally apply, and to what extent it will affect future First Amendment cases. The Court's opinion can be read as substantially broadening the government's power to assert this interest, or the Court may have simply clarified its position consistent with prior decisions. Thus, the Court has cleared up the controversy surrounding the constitutionality of the "floating buffer zone," and the recognition of a "right to be let alone" in a public forum. However, lack of clarity concerning the limits of its application makes the amorphous and elastic concept that is the "captive audience" doctrine even less coherent as a principle of First Amendment jurisprudence.

First, this Note will include a brief description of the history and development of the principles considered by the Court in Hill, as well as prior cases considered by the Court that intertwine and lead up to the decision rendered in Hill. Additionally, the opinions of the majority and dissent will be reviewed, with particular emphasis on the Court's recognition of the aforementioned "right to be let alone." Finally, this note will analyze the Court's reasoning regarding "floating buffer zones" as well as the "right to be let alone," and more importantly the implications of the Court's holding for the future.

II Background
A The First Amendment

The First Amendment to the United States Constitution provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people to peaceably assemble, and to petition the Government for a redress of grievances."9 Although the amendments to the Federal Constitution originally restricted only the Federal Government, the due process clause of the Fourteenth Amendment applies most protections found in the Bill of Rights to the several states. This includes the protections found in the First Amendment.10 One of the recognized goals of the First Amendment is "to assure unfetteredPage 771 interchange of ideas for the bringing about of political and social changes desired by the people."11

Despite the admonition found in the First Amendment that "Congress shall make no law. . . abridging freedom of speech, or of the press,"12 the Supreme Court has not held that the First Amendment gives absolute protection from all government regulation of speech.13 Although the First Amendment is fundamental to our concept of freedom, there was surprisingly little adjudication of First Amendment issues prior to the twentieth century.14 However, in the early twentieth century, the rise of organized labor15 and the "red scare",16 coupled with government attempts to stifle such movements, gave the Court fertile ground on which to plant the seeds of modern First Amendment jurisprudence. Since these early years, the Court has placed entire categories of speech outside the protection of the First Amendment, while giving others a lesser quantum of protection than other forms of speech. Some examples include libel,17obscenity,18 and commercial speech.19

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B Time, Place, and Manner Restrictions

In addition to the categorical approach, where the Court holds that entire types of speech may be restricted,20 the Court has held that the government may restrict any speech based on the time, manner, or place where the speech occurs.21 This concept is based on the idea that when speech and conduct are intertwined, the government may have a strong interest in regulating the conduct.22 Some examples of constitutional state restrictions on the time, manner, and place of speech include prohibitions on excessive noise,23 prevention of obstructions to traffic,24 and prevention of intrusions into the privacy of homes.25 Hill v. Colorado dealt directly with the issue of whether Colorado's restrictions on the ability of individuals to protest and educate outside of health care facilities constituted a valid time, place, or manner restriction in light of the purposes and protections of the First Amendment.26

The analytical test used by the Court in Hill v. Colorado was the standard of intermediate scrutiny set forth by the Court in Ward v. Rock Against Racism.27 In Ward, the sponsor of a musical event which was to take place at a city park band shell brought suit against the City of New York, challenging the constitutionality of the city's guidelines as to the use of sound amplification devices.28 As a threshold matter, the Court stated that:

[e]ven in a public forum the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open amplePage 773 alternative channels for communication of the information.29

If a time, manner, or place regulation is based on the content of the speaker's message, it will receive the court's strictest scrutiny. The government then must prove that the means are necessary to achieve a compelling state interest in order for the restriction to survive.30 For time, place, and manner cases, the principal inquiry as to whether a regulation is content based is "whether the government has adopted a regulation of speech because of disagreement with the message it conveys."31 Thus, the Court held, "[a] regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others."32 Additionally, the Court held that although the regulation be "narrowly tailored," this does not mean that the means employed by the government must be the least restrictive available.33 The Court held, "our cases quite clearly hold that restrictions on the time, place, or manner of protected speech are not invalid 'simply because there is some imaginable alternative that might be less burdensome on speech.'"34 Furthermore, the requirement that a regulation be narrowly tailored is met, "so long as the. . . regulation promotes a substantial government interest that would be achieved less effectively absent the regulation."35 In Ward, finding that the City's interest in controlling noise levels was a substantial interest and that the regulation did not cut off alternative communication, the Court upheld the cityPage 774 egulation as a constitutional exercise in sound control, despite the fact that it may have impacted the speech of Rock Against Racism.36

The standard of scrutiny articulated by the Court in Ward differs noticeably from the Court's strictest scrutiny,37 as well as from the Court's most deferential standard of...

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