In a 6-3 opinion by Justice Stevens, the Supreme Court upheld a 1993 Colorado statute that regulates speech-related conduct within 100 feet of the entrance to any health care facility, which includes abortion facilities, making it unlawful within the regulated 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 ....” Petitioners argued that this prevents them from counseling, educating, or persuading woman entering abortion clinics, which violates their First Amendment rights of free speech. Further, the impairment of their ability to pass out leaflets violates their First Amendment right of free press. The Court concluded that the restrictions in the statute do not constitute a “regulation of speech” in violation of the Amendment, but rather they are “a regulation of the places where some speech may occur.” Such speech directed at unwilling listeners violates their broad putative “right to be let alone.” The statute serves the government interest of protecting those entering facilities from potential “physical and emotional harm,” and the restrictions articulated in the statute are content-neutral and narrowly tailored to serve those interests.
This case is activist because the judges abuse precedent by reinforcing grave errors. The so-called “right to be let alone” was recognized as a mere regulable “interest” in Katz and had otherwise been relegated to the musings of a dissenting opinion by Justice Brandeis. Yet the Court cites it as if it were dispositive, without even attempting to ground it in any constitutional provision.
The conclusion reached in this case also nullifies the right to free speech, in sharp divergence from First Amendment precedent. In his dissent, Justice Scalia argued that the statute was consistent with what the Court has normally deemed to be “content-based,” despite what the majority tries to argue. The statute specifically restricted speech activities that are known to be used by abortion protestors: speech for the purposes of “protest, education, and counseling." Scalia aptly observes in his dissent, “I have no doubt that this regulation would be deemed content-based in an instant if the case before us involved antiwar protesters, or union members seeking to ‘educate’ the public about the reasons for their strike… But the jurisprudence of this Court has a way of changing when abortion is involved.”