The tailoring of statutory bubble zones: balancing free speech and patients' rights.

• Author: Cowan, Kristen G.

Hill v. Colorado, 120 S. Ct. 2480 (2000)

1. INTRODUCTION

   In Hill v. Colorado,(1) the Supreme Court ruled on the constitutionality of a provision of a 1993 Colorado statute(2) restricting speech activity outside health care facilities. The statute's provision makes it unlawful to "knowingly approach" within eight feet of another individual to pass a pamphlet, show a sign, or engage in "oral protest, education, or counseling" without consent if the individual is within one hundred feet of a health care facility's entrance.(3) The Court upheld the statute and found that it was a content-neutral, narrowly tailored, valid time, place, and manner restriction that served significant governmental interests.(4)

   This case resolved the outstanding issue of whether a floating buffer zone implemented by statute, as opposed to by injunction, was constitutional. Prior Supreme Court cases had determined that injunctions specifying fixed buffer zones around a medical facility were constitutional,(5) but that a fifteen-foot floating zone around an individual required by a court-imposed injunction was not constitutional.(6)

   This Note argues that the Court's holding was correct under First Amendment precedent. Free speech is not an absolute right, and protected speech is subject to limitations.(7) The Supreme Court has previously found that expressive activity, even in public forums, is also "subject to reasonable time, place, or manner restrictions ... provided that they 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 ample alternative channels for communication of the information."(8) The Hill Court deemed the provision a restriction on place, and evaluating the provision using this standard, it appropriately found the restriction to be content-neutral because it did not restrict specific subject matters or viewpoints and served a legitimate purpose independent of the content.(9)

   In the case at hand, the restricted activity intrudes on the individual rights of others, including the safeguarding of citizens' health and safety, unobstructed access to health care facilities, and privacy interests. This Note contends that the Court should have explicitly extended the captive audience doctrine to patients attempting to access health care facilities and relied on the unwilling captive audience's interest, rather than focusing on unobstructed access and patient welfare.(10)

   Lastly, this Note argues that the Court correctly found that the statute is narrowly tailored, leaving available alternative means of communication,(11) and examines the potential impact of the decision on the drafting and enforceability of future buffer zone legislation.(12)

2. BACKGROUND

   1. THE SHIFT IN ABORTION DISCOURSE AND JUDICIAL/ LEGISLATIVE RESPONSES

      Few topics elicit greater controversy in the United States than abortion. While the Colorado statute does not specifically address abortion, abortion protestors, as likely targets for prosecution, challenged the statute.(13) Since 1992, the abortion controversy has shifted focus from the actual procedure itself to demonstrators' free speech.(14) Some argue that stifling discourse about legal restrictions on abortion has led to greater violence and that any further limitations will heighten the violence.(15) Others believe that clearly defined boundaries on demonstrations are necessary barriers to violence(16) and contend that "[p]rotecting the safety of patients at reproductive health care facilities is crucial because without access, the constitutional right to abortion will become a nullity."(17) Diana DeGette, a proponent of the Colorado statute, described the activity around abortion clinics as "in-your-face screaming, spitting on people, thrusting ghastly pictures right into their faces."(18)

      Courts have responded to violent and obstructive protest around abortion clinics by awarding injunctions.(19) These injunctions have included various combinations of fixed buffer zones, whereby demonstrators may not come within a specified radius of a clinic, and bubble zones, whereby demonstrators must remain a certain distance from individuals entering the clinic.(20) State legislatures and city councils have also responded, enacting numerous statutes and ordinances addressing the issue of abortion protests outside medical facilities in the past decade.(21) Additionally, in May 1994, Congress enacted the Freedom of Access to Clinic Entrances Act ["FACE"],(22) which focused on physical blockades and threats around abortion clinics. A 1999 clinic safety study reports that 32 percent of the 360 clinics surveyed were protected by some sort of buffer zone.(23) Furthermore, 39 percent of these clinics describe the enforcement of their buffer zones and injunctions as "strong."(24) This was nearly three times the number reported in 1998 (14 percent).(25)

   2. THE VALIDITY OF PRIOR BUFFER ZONES AND BUBBLE ZONES

      The Supreme Court previously has addressed the constitutionality of various buffer zones around health care facilities. In the 1994 case Madsen v. Women's Health Care Center, Inc.,(26) the Court examined a court-imposed injunction that included a smaller zone prohibiting picketing within thirty-six feet of the facility and a larger zone of three hundred feet in which only invited protestors were allowed.(27) The Supreme Court, however, upheld only part of the thirty-six-foot buffer zone.(28)

      Chief Justice Rehnquist, writing for the majority, examined the government's purpose in creating the restrictions, determined that they were not directed at the contents of the speech, and thus ruled the restrictions were content-neutral.(29) The Court noted that if the restriction had been statutory, the Ward v. Rock Against Racism standard(30) would apply.(31) However, examining the differences between injunctions and statutes, the Court concluded that the differences mandate a "more stringent application of general First Amendment principles in [the injunction] context."(32) Not only do ordinances represent the legislature's policy choices, but injunctions impose a greater risk of biased and discriminatory application compared with ordinances.(33) Rejecting the Ward test as too lenient for injunctions, the Court stated that "[w]e must ask instead whether the challenged provisions of the injunction burden no more speech than necessary to serve a significant government interest."(34)

      The Court thus upheld the thirty-six foot-buffer zone(35) surrounding the entrance and driveway because that restriction burdened only enough speech to serve the significant government interest of ensuring entry to the clinic as well as preventing blocked traffic on the road.(36) The state court had found that petitioners consistently impeded access to the clinic in the past, that a less restrictive initial injunction had failed to prevent this, that petitioners would not be forced to be further than ten to twelve feet from approaching cars, and that protestors forced to stand on the other side of the street could still be seen and heard from the parking lot of the clinic.(37)

      In contrast, the Court rejected the thirty-six-foot buffer zone on the back and side of the facility because it found that this part of the injunction did not address the relevant government interest of preserving access to the clinic: the protestors had not blocked that area and individuals did not need to cross that area to gain access to the clinic.(38) The Court also struck down an "images observable" provision because the ease with which a patient could avoid the message by simply averting her eyes made that restriction overly burdensome in its attempt to limit threats to patients.(39) In addition, the Court rejected the three-hundred-foot consent zone around the facilities because it burdened "more speech than necessary to prevent intimidation and to ensure access to the clinic."(40) Lastly, the Court struck down a three-hundred-foot zone around residences because this restriction was simply too large and would result in a general ban on marching through the neighborhood.(41)

      A few years later, in 1997, the Court again considered the constitutionality of buffer zones around medical clinics. In Schenck v. Pro-Choice Network of Western New York,(42) Chief Justice Rehnquist again wrote for the majority and recognized the significant governmental interests at issue, including: "ensuring public safety and order, promoting the free flow of traffic on streets and sidewalks, protecting property rights, and protecting a woman's freedom to seek pregnancy-related services."(43) The Court upheld a prohibition on "demonstrating" in a fifteen-foot fixed buffer zone around clinic entrances and driveways established through an injunction, finding it necessary to ensure access to the clinic.(44)

      The Court, however, struck down a provision creating a fifteen-foot floating bubble zone against demonstrations around persons and vehicles accessing the clinic because that provision burdened more speech than necessary to protect the governmental interests.(45) Chief Justice Rehnquist declared that the floating zones were "a broad prohibition," preventing the counselors "from 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."(46) The restriction required that a demonstrator maintain at all times a fifteen foot distance of separation from the individual, thus requiring the demonstrator to move as the individual moved.(47) In moving with one person, the demonstrator must remain cognizant of the locations of other individuals so as not to invade their fifteen-foot bubble.(48) The Court found that uncertainty would result, leading to an overburdening of speech.(49)

      Subsequent to these two Supreme Court cases, the Second Circuit upheld a floating...