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Where You Can't Speak Your Mind

© Frank Monaldo

"You say that freedom of utterance is not for time of stress, and I reply with the sad truth that only in time of stress is freedom of utterance in danger... Only when freedom of utterance is suppressed is it needed, and when it is needed it is most vital to justice.''   -   William Allen Wright, 1924.

In 1993, Colorado passed a law making it illegal for anyone to approach within eight feet of someone in the vicinity of medical facilities "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..." The law was instigated in the wake of protests around abortion facilities.

After the passage of the law, Leila Jeanne Hill, Audrey Himmelmann, and Everitt W. Simpson, Jr. filed a complaint in District Court and requested an injunction against the enforcement of the law. The case worked its way through the federal courts. Finally, in the case of Hill v. Colorado, the US Supreme Court ruled 6 to 3 that the Colorado law is a constitutionally permissible regulation of the manner of speech and is not a violation of First Amendment protections.

If a government wishes to regulate the "time, place, and manner" of speech in a "content neutral" way, the guiding constitutional test is whether such regulation reasonably balances speech rights against other state interests. For example, a government might for purposes of security and safety limit access to a park for protests on the basis of a permit system. This regulation passes constitutional muster, if the permits are granted in a content neutral way.

On the other hand, if the regulation applies differently depending upon the content of the speech, then in order for a law to be constitutional, it must survive a much higher level of judicial scrutiny. Such a regulation might for example, prohibit speech that poses a "clear and present danger" to the community. It is constitutionally permissible for the government to prevent the publication or announcement of troop movements in time of war.

Content neutrality is crucial here, because it permits Colorado to balance speech rights against a "right to be left alone." Writing, for the majority, Justice Stevens insists that the Colorado law is content neutral because it applies whether the forbidden protest or education or counseling is to persuade or dissuade people on the issue of abortion. However, it still remains legal to approach people for other purposes: to say "Hello", to encourage people to patronize a particular restaurant, or simply to recite romantic love poetry. The content of the speech is still crucial.

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