SUPREME COURT, STATE OF COLORADO
February 16, 1999
No. 97SC630
LEILA JEANNE HILL; AUDREY HIMMELMANN; and EVERITT W. SIMPSON, JR.,
Petitioners,
v.
DAVID J. THOMAS, in his official capacity as District Attorney for the First Judicial District of the State of Colorado; CITY OF LAKEWOOD, COLORADO; KEN SALAZAR, in his official capacity as Attorney General of theState of Colorado; and THE STATE OF COLORADO, BILL OWENS,Governor,
Respondents.
Certiorari to the Colorado Court of Appeals
EN BANC JUDGMENT AFFIRMED
Roger W. Westlund
Thornton, Colorado
The American Center for Law & Justice
Jay Alan Sekulow
Lawrenceville, Georgia
James Matthew Henderson, Sr.
Washington, D.C.
Attorneys for Petitioners
No appearance on behalf of David J. Thomas, District Attorney forthe First Judicial District of the State of Colorado
Ken Salazar, Attorney General
Barbara McDonnell, Chief Deputy Attorney General
Michael E. McLachlan, Solicitor General
Patricia S. Bangert, Director of Legal Policy
Carol D. Angel, Senior Assistant Attorney General
Natural Resources Section
Denver, Colorado
Attorneys for Ken Salazar and State of Colorado
Gorsuch Kirgis L.L.C.
Roger W. Noonan
Maureen Herr Juran
Denver, Colorado
Attorneys for City of Lakewood
Planned Parenthood of the Rocky Mountains, Inc.
Kevin C. Paul
Denver, Colorado
Attorneys for Amici Curiae Planned Parenthood of the RockyMountains, Inc., and The Center for Reproductive Law &Policy, Inc.
City Attorney
Joseph N. de Raismes
Boulder, Colorado
Attorney for Amicus Curiae City of Boulder
JUSTICE SCOTT delivered the Opinion of the Court.
In this case we must decide whether a legislative enactmentdesigned to protect the privacy rights of citizens entering andleaving Colorado health care facilities unduly burdens the FirstAmendment rights of other citizens. We conclude that it doesnot.
We granted certiorari in Hill v. City of Lakewood , 949 P.2d107 (Colo. App. 1997), to determine whether a Colorado statutoryprovision, in particular, section 18-9-122(3), 6 C.R.S. (1998),can withstand scrutiny under a facial First Amendment challenge. Section 18-9-122(3) provides "[n]o person shall knowinglyapproach another person within eight feet of such person, unlesssuch other person consents, for the purpose of . . . counselingwith such other person in the public way or sidewalk area withina radius of one hundred feet from any entrance door to a healthcare facility." In light of the order of remand by the UnitedStates Supreme Court to the Colorado Court of Appeals, our reviewis necessarily informed by the Supreme Court's opinion in Schenckv. Pro-Choice Network , 519 U.S. 357 (1997). Nonetheless, we rely upon thestandard announced in Ward v. Rock Against Racism , 491 U.S. 781 (1989). In doing so, whilerecognizing that the statute creates a limited floating buffer zone, we hold that, on its face, thestatute does no more than place reasonable restrictions on speech that (1) are content-neutral; (2)are narrowly tailored to serve a significant government interest; and, (3) leave open amplealternative means for the communication of information petitioners seek to place into themarketplace of ideas. We so conclude because the standard announced in Ward permits greaterdeference for legislative enactments regulating speech than the Schenck standard, which placesgreater limitations upon the judicial regulation of speech through injunctive proceedings. Wetherefore uphold the statute against petitioners' facial attack and affirm the judgment of the courtof appeals.
I.
Petitioners, Leila Jeanne Hill, Audrey Himmelmann, and Everitt W. Simpson, Jr.(petitioners) filed a declaratory judgment action and requested injunctive relief in JeffersonCounty District Court (trial court) under a facial challenge to section 18-9-122(3), alleging thatit violated the First Amendment and was therefore unconstitutional. Respondents, David J.Thomas in his official capacity as District Attorney for the First Judicial District of the State ofColorado, the City of Lakewood, and other officials of the State of Colorado, (collectively, theState) filed a motion for summary judgment, asserting that section 18-9-122(3) was lawful as aconstitutional time, place, and manner regulation of speech under the First Amendment to theUnited States Constitution. Petitioners filed a cross-motion for summary judgment alleging thatsection 18-9-122(3) was (1) facially unconstitutional as a prior restraint; (2) a content-basedrestriction lacking justification; and (3) unconstitutionally overbroad and vague.
In granting the State's motion for summary judgment, the trial court applied the standardset forth by the United States Supreme Court in Ward v. Rock Against Racism , 491 U.S. 781(1989). Applying that standard, the trial court found that section 18-9-122(3) was content-neutral, was narrowly tailored to serve a significant governmental interest, and left open amplealternative means of communication.
Petitioners appealed to the court of appeals, which affirmed the trial court's ruling. See Hill v. City of Lakewood , 911 P.2d 670 (Colo. App. 1995) ( Hill I ). They then sought review inthis court, which we denied. After the United States Supreme Court announced its decision in Schenck v. Pro-Choice Network , 519 U.S. 357 (1997), petitioners obtained review by petition toour nation's high court. Without an opinion, however, the United States Supreme Court vacatedthe judgment of the court of appeals in Hill I , and remanded the case to the court of appeals forreconsideration in light of Schenck . See Hill v. Colorado , 117 S.Ct. 1077 (1997).
On remand, the court of appeals determined that the test announced in Schenck was notapplicable, and applied the standard announced by the Supreme Court in Ward . "Applying the Ward rationale here, we conclude that the statute meets constitutional muster." Hill v. City ofLakewood , 949 P.2d 107, 109-10 (Colo. App. 1997) ( Hill II ). Thus, the court of appeals onceagain held that section 18-9-122(3) did not violate petitioners' First Amendment rights. See id. at 110.
We granted certiorari to review the important First Amendment issues raised by thejudgment of the court of appeals. We now affirm that judgment.
II.
Shortly before 1993, many citizens seeking medical counseling and treatment at Coloradohealth care facilities were openly subjected to verbal abuse and on occasion, were physicallyassaulted while entering or leaving health care facilities. Confronted by these threats to publicsafety and open, hostile, and sometimes violent confrontations in public places, the ColoradoGeneral Assembly held public hearings to determine the nature and extent of the danger posed bysuch acts to public safety. As a consequence of the testimony of several witnesses that revealedwidespread, violent confrontations, the General Assembly undertook to develop a statuteintended to acknowledge a citizen's "right to protest" or counsel against certain medicalprocedures while assuring that government protects a "person's right to obtain medicalcounseling and treatment." 18-9-122(1), 6 C.R.S. (1998).
A.
In 1993, the General Assembly enacted section 18-9-122, entitled "Preventing passage toand from a health care facility--engaging in prohibited activities near facility" as part ofColorado's criminal code.
In subsection 18-9-122(1), the General Assembly set forth the public healthconsiderations of "access to health care facilities," which it characterized as "imperative" forColorado's citizens. "Balanc[ing]" the right to protest or counsel against certain medicalprocedures with another person's right to obtain medical counseling and treatment, the Coloradolegislature sought to prohibit anyone from "knowingly obstructing another person's entry to orexit from a health care facility." 18-9-122(1). Subsection 18-9-122(2) expressly classifiesconduct by which a person "knowingly obstructs, detains, hinders, impedes or blocks anotherperson's entry to or exist from a health care facility" as a "class 3 misdemeanor." 18-9 122(2).
Subsection 18-9-122(3), which is at issue here, creates a 100-foot radius zone around ahealth care facility, as a "fixed buffer zone." Within that fixed buffer zone only, no person mayknowingly approach another within eight feet for the purpose of displaying a sign, engaging inoral protest, educating, counseling, or passing leaflets or handbills, unless the other personconsents to such an approach. This eight-foot radius zone we call a "limited floating bufferzone."
Section 18-9-122 was enacted by the General Assembly in response to concernsregarding open access to health care counseling and treatment at Colorado health care facilities. While the legislation was pending, the Colorado House and Senate Judiciary Committees heardtestimony regarding abortion opponents' conduct at abortion clinics, including physicallyblocking entrances, intimidation, and harassment of individuals seeking services. A nursepractitioner who works at a clinic which provides, in part, abortion counseling and services,testified that anti-abortion protestors:
yell, thrust signs in faces, and generally try to upset the patient as much aspossible, which makes it much more difficult for us to provide care in a scarysituation anyway. . . We have had to place security doors where there is [sic]double locks. People have to be rung in. Each of the doors, we have magneticlocks that slide because we have had our locks glued shut. We have had bicyclelocks placed over handles so that we have had to remove some of the handles onthe doors.
Hearings on H.B. 93-1209 Before the House Judiciary Committee , 59th General Assembly, 1stReg. Sess. (Audio Tape 93-8, Feb. 12, 1993, at 7:42 a.m.). Another witness, a volunteer whoescorts patients into and out of abortion clinics because of the harassment those patients facefrom anti-abortion protestors, testified that as patients are entering the clinic:
the protestors are yelling and screaming. They are flashing their bloody fetussigns. They are yelling, "you are killing your baby." They are yelling at us asescorts that we are guards from Dachau [World War II Nazi concentration camputilized to commit atrocities against people of Jewish ancestry] . . . they aretalking about fetuses and babies being dismembered, arms and legs torn off. . . Ayoung black woman came for services yesterday. They called her "mammy."
Id. This same witness testified that:
a mother and her daughter had not heard the instructions from the clinic [to parkin the parking lot]. . . They parked on the street. [While walking towards theclinic], they were immediately surrounded and yelled at and screamed at. . . Theyoung woman was in tears. . . The mother looked at me and said, "I can't believethis happens in this country . . . my daughter was raped."
Id.
Testimony from various witnesses was compelling. With such a legislative history, it isobvious, and petitioners do not refute, that the General Assembly's actions were motivated by itsinterest in preserving the health and safety of Colorado's citizens. In particular, the GeneralAssembly enacted section 18-9-122 as a means of assuring a citizen's access to medical"counseling and treatment" at Colorado health care facilities.
B.
Petitioners are self-titled "sidewalk counselors." "Sidewalk counselors" engage in effortsto educate, dissuade, inform and advise individuals about abortion and abortion alternatives. Toaccomplish these goals, petitioners utilize verbal communication, placards printed with anti-abortion statements and/or photographs, leaflets, and various other demonstrative devices,including plastic replicas of fetuses at various stages of development. The term "sidewalk" refersto petitioners' practice of performing these activities while standing on sidewalks and roadwaysoutside health care facilities that provide abortion counseling, services, and procedures. Petitioners attempt to engage individuals entering the health care facility in conversation in orderto dissuade those individuals from entering the facility and, presumably, obtaining abortions.
Petitioners argue that the Supreme Court's opinion in Schenck v. Pro-Choice Network ,519 U.S. 357 (1997), and its progeny, including Sabelko v. City of Phoenix , 120 F.3d 161 (9thCir. 1997), control. As a consequence, they argue, section 18-9-122(3) unconstitutionallyrestricts their First Amendment rights to protest outside of abortion clinics. In doing so,however, petitioners concede that the test for a time, place, and manner restriction is theappropriate measure of this statute's constitutionality. See Tape Recording of Oral Argument,Oct. 19, 1998, statement of James M. Henderson, Esq. Petitioners argue that pursuant to the testannounced in Ward , the "floating buffer zone" created by section 18-9-122(3) is not narrowlytailored to serve a significant government interest and that section 18-9-122(3) does not providefor ample alternative channels of communication. We disagree.
III.
Before addressing the petitioners' argument that their First Amendment rights have beenabridged, we discuss the nature of petitioners' First Amendment rights. Then, we also review the"imperative" interest the General Assembly acted to serve, the fundamental right of privacy,access to medical counseling and treatment, against which petitioners' First Amendment rightsmust be balanced in this case.
A.
Repeated so often in our jurisprudence that we know it by rote, the First Amendment tothe United States Constitution provides that "Congress shall make no law . . . abridging thefreedom of speech . . . ." U.S. Const. amend. I.
It is the purpose of the First Amendment to preserve an uninhibited marketplaceof ideas in which truth will ultimately prevail, rather than to countenancemonopolization of that market, whether it be by the Government itself or a privatelicensee . . . . It is the right of the public to receive suitable access to social,political, esthetic, moral, and other ideas and experiences . . . .
Red Lion Broad. Co. v. Federal Communications Comm'n , 395 U.S. 367, 390 (1969). "If themarketplace of ideas is to remain free and open, governments must not be allowed to choose'which issues are worth discussing or debating. . . .'" Consolidated Edison Co. of New York,Inc. v. Public Serv. Comm'n of New York , 447 U.S. 530, 537-538 (1980) (quoting Police Dep'tof Chicago v. Mosley , 408 U.S. 92, 96 (1972)). It is this very fundamental right, and its full andfree exercise, that requires that government permit open debate.
The First Amendment contemplates that ideas will be tested in the marketplace, and notscrutinized by government censors. With a view towards its egalitarian nature, empowering eventhe least powerful among us, some view "the 'central meaning' of the First Amendment [asbeing] equality." Laurence H. Tribe Constitutional Choices 188 (1985) (quoting Kenneth Karst,"Equality as a Central Principle in the First Amendment" 43 U. Chi. L. Rev. 20, 21 (1975)).
The First Amendment, in effect, limits the choices government may make in its efforts toregulate or prohibit speech. See Consolidated Edison Co. of New York, Inc. , 447 U.S. at 537-38("governments must not be allowed to choose which issues are worth discussing or debating").
However, the First Amendment is not an absolute prohibition and does not bar allgovernment attempts to regulate speech. See Madsen v. Women's Health Center, Inc. , 512 U.S.753, 770 (1994) (holding that an injunction establishing a thirty-six foot buffer zone aroundabortion clinic entrances does not violate protestor's First Amendment rights); see also People v.Baer , No. 97SA426, slip op. at 16 (Colo. Jan. 25, 1999) (upholding conviction for harassment bystalking and noting that at least forty-eight states have enacted similar statutes). This is, perhaps,especially true when the questioned government action results from a particularly difficultreconciliation or "accommodation" of the right of free speech with another right fundamental inour constellation of rights. See Burson v. Freeman , 504 U.S. 191, 210 (1992); Berring v.SHARE , 721 P.2d 918, 920 (Wash. 1986) ("No judicial task is more difficult than balancing theconstitutional rights and freedoms of citizens of this country against conflicting rights andfreedoms of their fellow citizens."). It is this reconciliation or effort to accommodate thefundamental right of privacy in section 18-9-122(3) that is before us today.
B.
Here, the fundamental right balanced against the First Amendment rights of petitioners isthe right that the General Assembly determined was "imperative," a citizen's right of access to"counseling and treatment" at Colorado medical facilities. At least one court has recognized that"the same constitution that protects the [anti-abortion protestors'] right to free speech alsoprotects the [clinic's] right to abortion services and the patients' rights to receive those services." Northeast Women's Center, Inc. v. McMonagle , 868 F.2d 1342, 1348 (3d Cir.), cert. denied , 493U.S. 901 (1989) (holding that anti-abortion protestors could be liable for violations under federalRacketeer Influenced and Corrupt Organizations (RICO) Act, 18 U.S.C. 1964(c)). "The FirstAmendment does not demand that patients at a medical facility undertake Herculean efforts toescape the cacophony of political protests." Madsen , 512 U.S. at 772-73.
The right to privacy was first recognized by Justice Brandeis in 1890 in an article he co-authored with Samuel D. Warren describing it as "the right to be let alone." Samuel D. Warren &Louis D. Brandeis, The Right to Privacy , 4 Harv. L. Rev. 193, 214-18 (1890). Justice Brandeislater expanded that statement when he explained that, "the right to be let alone [is] the mostcomprehensive of rights and the right most valued by civilized [individuals]." Olmstead v.United States , 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting), rev'd on other grounds , 389U.S. 347 (1967).
The Supreme Court has recognized the right to privacy as one existing under the"penumbras" emanating from several different provisions contained within our federalconstitution's Bill of Rights, specifically the First, Third, Fourth, Fifth, and Ninth Amendments,as well as the Fourteenth Amendment. See Griswold v. Connecticut , 381 U.S. 479, 484-85(1965). In Eisenstadt v. Baird , the Supreme Court explained that "[i]f the right of privacy meansanything, it is the right of the individual, married or single, to be free from unwarrantedgovernmental intrusion into matters so fundamentally affecting a person as the decision whetherto bear or beget a child." 405 U.S. 438, 453 (1972) (holding that a ban on distribution ofcontraceptive devices to unmarried persons violated the Equal Protection Clause); see also Skinner v. Oklahoma , 316 U.S. 535, 541 (1942) (holding that statute directing involuntarysterilization on criminal defendant violated Equal Protection Clause, since "[m]arriage andprocreation are fundamental to the very existence and survival of the race").
In Roe v. Wade , the Supreme Court held that the fundamental right of privacy "is broadenough to encompass a woman's decision whether or not to terminate her pregnancy." 410 U.S.113, 153 (1973). In so doing, the Court recognized the potential harm to those exercising thisright due to unwarranted interference by others. See id. The Court concluded that, because ofthe extensive history of the right to privacy and because of its support in our Constitution andcase law, only a compelling reason would justify government interference with its exercise. See id. at 155-56.
In consideration of the foregoing fundamental rights, we therefore take great care inreviewing government action challenged as impermissible under the First Amendment. However, we conclude that the First Amendment can accommodate reasonable governmentaction intended to effectuate the free exercise of another fundamental right, an individual's rightto privacy, here represented by access to medical counseling and treatment.
IV.
We turn now to the principal issue upon which this case will be resolved: Whethersection 18-9-122(3) is constitutional in light of the United States Supreme Court's decision in Schenck v. Pro-Choice Network , 519 U.S. 357 (1997). We conclude that the test used todetermine the constitutionality of the injunction imposed in Schenck is inapplicable to the instantcase. We further conclude that the appropriate test to be applied in this case is found in Ward v.Rock Against Racism , 419 U.S. 781 (1989). We hold that section 18-9-122(3) is a reasonabletime, place, and manner restriction and, hence, does not violate the proscriptions of the FirstAmendment. See n.8, supra (recognizing that the First Amendment is applied to the State ofColorado by virtue of the Fourteenth Amendment).
A.
In Schenck , health care providers sought and obtained a preliminary injunction againstanti-abortion protestors who engaged in allegedly illegal efforts to prevent individuals fromobtaining abortions. See Schenck , 519 U.S. at 362. The Schenck injunction issued by thedistrict court generally restricted the anti-abortion protestors' activities.
In Schenck , the protestors challenged the injunction claiming that three aspects of theinjunction unconstitutionally restricted their First Amendment rights. In particular, the protestorschallenged (1) the "floating" fifteen-foot buffer zone around people and vehicles accessing theclinics; (2) the "fixed" fifteen-foot buffer zone around the clinic's doorways, driveways andparking lot entrances; and, (3) the "cease and desist" provision that forced anti-abortion protestorswithin the buffer zones to retreat fifteen feet from the targeted person. Schenck , 519 U.S. at 371. The Supreme Court held that, while the fixed buffer zone was constitutionally permissible, thefloating buffer zone was unconstitutional. See id. at 377, 380. Applying the test it established in Madsen , 512 U.S. at 765, for evaluating content-neutral injunctions that restrict speech, the Courtheld that the floating buffer zones burdened more speech than was necessary to serve thegovernmental interests underlying the issuance of the injunction. See Schenck , 519 U.S. at 377-79.
While we recognize certain factual similarities between Schenck and the instant case, thatis, they both involve anti-abortion protestors' free speech claims regarding medical facilitieswhich offer abortion counseling and they both create floating buffer zones, upon closeexamination, we cannot conclude that the test applied in Schenck is the appropriate standard bywhich to determine whether section 18-9-122(3) meets constitutional scrutiny. Our inability toagree with petitioners' reliance upon Schenck is based on an important distinction readily drawnbetween the two cases in the nature of the government regulation. Schenck involved a judiciallycreated preliminary injunction drawn solely for the parties before the Court under thecircumstances then existing. Here, to the contrary, section 18-9-122(3) is not the creature of ourjudiciary, but, instead, is a statute crafted by a coordinate branch of government, and is a rule ofgeneral application representing the public policy choices of the General Assembly of the Stateof Colorado.
As explained by the Supreme Court in Madsen , 512 U.S. at 763, one of the differencesbetween judge-drawn injunctions and statutes crafted in the political process is that,"[i]njunctions . . . carry greater risks of censorship and discriminatory application than do generalordinances." As such, the General Assembly's enactment of section 18-9-122(3), which is notpremised upon an evidentiary record for identifiable parties to litigation, but, instead intended forgeneral application reaching all citizens, is entitled to greater deference than the judge-madeinjunction in Schenck . See Madsen , 512 U.S. at 763 (applying "a somewhat more stringentapplication of general First Amendment principles" when determining the constitutionality of aninjunction). Thus, we conclude that to apply the appropriate standard for determining theconstitutionality of a content-neutral statute, we rely upon Ward and not Schenck .
B.
Petitioners also urge us to rely on the Ninth Circuit's decision in Sabelko v. City ofPhoenix , 120 F.3d 161 (9th Cir. 1997). We decline to do so. As here, Sabelko was decidedpursuant to a Supreme Court remand in light of Schenck . In response to the conduct of anti-abortion protestors outside abortion facilities, Phoenix had enacted a city ordinance whichcreated an eight-foot floating buffer zone and required counselors to withdraw upon request. SeeSabelko , 120 F.3d at 162-63. Using the Ward test, the Ninth Circuit held the ordinanceunconstitutional, concluding that it was not narrowly tailored. See Sabelko 120 F.3d at 165.
First, we note that authority from the Ninth Circuit, or any other lower federal court, isnot controlling precedent for Colorado courts.
Although the Supremacy Clause demands that state law yield to federal law,neither federal supremacy nor any other principle of federal law requires that astate court's interpretation of federal law give way to a federal court'sinterpretation other than that of the United States Supreme Court. Thus, we arenot bound by . . . decisions of the lower federal courts.
Community Hosp. v. Fail , No. 97SC558, slip op. at 4 (Colo. Nov. 30, 1998); see also Lockhart v.Fretwell , 506 U.S. 364, 375 (1993) (Thomas, J., concurring) ("[N]either federal supremacy norany other principle of federal law requires that a state court's interpretation of federal law giveway to a (lower) federal court's interpretation.").
Second, we conclude that Sabelko is factually distinguishable from the instant case. In Sabelko , anti-abortion protestors were required to withdraw from an approaching person, even ifthe protestor remained standing still, upon request. See 120 F.3d at 164. In other words, underthe Sabelko ordinance, if a protestor stood still and an individual came within eight feet, theprotestor would have violated the ordinance. Section 18-9-122(3), in contrast, imposes no suchduty upon petitioners because of the "knowingly approaches" requirement, discussed below. Indeed, under our interpretation of its language, and as both parties conceded at oral argument,the statute is not violated if petitioners stand still while inside the floating buffer zone. Hence, apetitioner who does not act to approach a person going into or coming out of a health care facilitydoes not violate section 18-9-122(3), even if an individual comes within eight feet of him or her,as long as the petitioner does not "approach" the individual. See Part V. D., infra .
C.
While the protections afforded by the First Amendment are broad, they are also notlimitless. "The First Amendment does not guarantee the right to communicate one's views at alltimes and places or in any manner that may be desired ." Heffron v. ISKCON , 452 U.S. 640, 647(1981) (emphasis added). For example, if restriction of speech is facilitated by a content-neutralstatute, "[e]xpression, whether oral or written or symbolized by conduct, is subject to reasonabletime, place and manner restrictions." Clark v. Community for Creative Non-Violence , 468 U.S.288, 293 (1984); see also 7250 Corp. v. Board of County Comm'rs , 797 P.2d 917, 923-25 (Colo.1990).
Because government cannot favor one idea over another, its regulation of speech must becontent-neutral. See Mosley , 408 U.S. at 95. A statute is content-neutral if it is "'justifiedwithout reference to the content of the regulated speech.'" Ward , 491 U.S. at 791 (quoting Community for Creative Non-Violence , 468 U.S. at 295). "A regulation that serves purposesunrelated to the content of expression is deemed neutral, even if it has an incidental effect onsome speakers or messages but not others." Ward , 491 U.S. at 791. In other words, a restrictionon speech is content-neutral if the government makes no attempt to control the content of thespeech protected and regulated thereby. See 7250 Corp. , 799 P.2d at 925.
We note that both the trial court and the court of appeals found that section 18-9-122(3) iscontent-neutral, and that petitioners do not contend otherwise in this appeal. Further, our reviewof that section satisfies us that it is, indeed, content-neutral. The restrictions apply equally to alldemonstrators, regardless of viewpoint, and the statutory language makes no reference to thecontent of the speech. Thus, we conclude that section 18-9-122(3) is content-neutral, and,therefore, we shall apply the test announced in Ward .
V.
A.
Before applying that standard, however, we first review the Supreme Court's holding in Ward . In Ward , New York City promulgated what it termed "Use Guidelines" (guidelines) in anattempt to regulate the sound amplification systems used by Rock Against Racism (RAR), anorganization sponsoring musical concerts to convey a message on New York City property. See Ward , 491 U.S. at 787. RAR in turn filed a successful motion for an injunction againstenforcement of particular aspects of the guidelines. See id. at 788. RAR also sought damagesand a declaratory judgment striking down the guidelines as facially invalid. See id. The districtcourt, applying the three-part test for determining the constitutionality of time, place or mannerrestrictions, found the guidelines valid. See id. at 789. On appeal, the Second Circuit Court ofAppeals reversed, based on its conclusion that the city could have used less restrictive means ofregulating the volume of RAR's concert. See id.
The Supreme Court reversed the federal appellate court and upheld the constitutionality of thecity's regulation of speech. In so doing, the Court utilized a two-part test for determining whether thecontent-neutral guidelines were constitutional. First, the Court inquired into whether the regulation was"'narrowly tailored to serve a significant governmental interest.'" Id. at 796 (quoting Community forCreative Non-Violence , 468 U.S. at 293). Here, we note that the Court emphasized that the SecondCircuit erred in holding that the regulation had to be "'the least intrusive means' of achieving the desiredend." Id. at 797. Rather, the Court explained, "our cases quite clearly hold that restrictions on time,place or manner of protected speech are not invalid 'simply because there is some imaginable alternativethat might be less burdensome on speech.'" Id. (quoting United States v. Albertini , 472 U.S. 675, 689(1985)). The Court then clarified,
[l]est any confusion on the point remain, we reaffirm today that a regulation of thetime, place, or manner of protected speech must be narrowly tailored to serve thegovernment's legitimate, content-neutral interests but that it need not be the leastrestrictive or least intrusive means of doing so.
491 U.S. at 798.
The Court then proceeded to the second, and final, requirement for finding a legislativelyimposed restriction on speech constitutional, that the restriction leave ample alternative channelsof communication open. See id. at 802. Here the Court explained the precise nature ofpermissible restriction of speech by stating, "[t]hat the city's limitations on volume may reduceto some degree the potential audience for respondent's speech is of no consequence, for there hasbeen no showing that the remaining avenues of communication are inadequate." Id. Thus,absent a showing that the resultant, permissible means of communicating information areinadequate for petitioners to express themselves, section 18-9-122(3) will be deemed to have leftopen ample alternatives, and therefore, should be upheld as constitutional.
Applying the standard set forth in Ward here, we hold that section 18-9-122(3) is areasonable restriction on the time, place, and manner of petitioners' speech and, therefore, isvalid under the First Amendment for the reasons set forth below.
B.
First, section 18-9-122(3) is sufficiently narrowly drawn to further a significantgovernment interest. The statute mandates that an individual can only be convicted of criminalconduct under specified circumstances. Specifically, section 18-9-122(3) prohibits an individualfrom knowingly approaching another person within eight feet: (1) for the purpose of oral protest,counseling, education, leafletting, or displaying a sign to that person; (2) within 100 feet of ahealth care facility entrance; (3) without that person's consent.
Petitioners contend that section 18-9-122(3) is not narrow because, although the GeneralAssembly declared its intent to curtail threatening conduct , it only prohibits protected speech . We disagree. The plain language of the statute indicates that it regulates speech and the conductof "passing a leaflet or handbill," and "displaying a sign." Petitioners also contend that becausetheir speech is directed to everyone, including "innocent" passers-by on the sidewalk who are notentering the health care facility, the statute unduly restricts speech that is intended to be onlydirected towards passers-by. Again, we disagree.
In rather simple but straight-forward language, the statute prohibits individuals from" knowingly approaching " a person within eight feet without that person's consent. Under section18-9-122(3), a criminal statute, two requirements must be met to constitute a violation: (1) themens rea requirement, "knowingly"; and (2) the actus reus requirement, "approaches." If one ofthe petitioners is standing still within the fixed buffer zone, and an individual walks toward himor her, the petitioner need not change his or her physical positioning to maintain eight feet ofdistance and thus avoid violating the statute, even if the approaching individual comes withinless than eight feet of the petitioner. In other words, so long as the petitioner remains still, he orshe cannot commit the actus reus of approaching, even though he or she may well have therequisite mens rea of "knowingly." Thus, in any scenario, petitioners are free to attempt to speakwith whomever they wish and they will not violate the statute, so long as the mens rea and actusreus do not coincide. See Cooper v. People , No. 97SC662, slip op. at 13-14 (Colo. Jan. 11,1999). Therefore, any risk of an inadvertent violation involving an "innocent" passer-by is, atmost, de minimus.
Admittedly, under the statute, petitioners may not "knowingly approach" an individualwithin eight feet unless the petitioner has obtained the individual's consent. What renders thisstatute less restrictive than both the injunction in Schenck and the ordinance in Sabelko is thatunder section 18-9-122(3), there is no duty to withdraw placed upon petitioners even within theeight-foot limited floating buffer zone. Thus, an inadvertent violation caused by a third party isnot a legitimate threat here, as all parties conceded at oral arguments.
Petitioners also contend that the statute is not narrow enough because it applies to allhealth care facilities in Colorado. The fact that the statute may apply to persons entering healthcare facilities beyond those providing abortion counseling does not render the statute overlyrestrictive of speech. Rather, simply and purposefully, that fact renders the statutecomprehensive. Indeed, the applicability of the statute to situations other than anti-abortionprotesting is one reason we conclude that the statute is content-neutral. And we decline anyinvitation on this record to conclude that a facet of a statute that renders it content-neutralnecessarily renders it overly broad.
C.
Second, we also hold that the statute furthers a significant government interest. Afteropen public hearings that provide support for its public policy action we review today, theGeneral Assembly declared in section 18-9-122(1) that "access to health care facilities for thepurpose of obtaining medical counseling and treatment is imperative for the citizens of thisstate." Indeed, the statute was enacted, in part, through the General Assembly's police power,and by a General Assembly that was concerned with the safety of individuals seeking wide-ranging health care services, not merely abortion counseling and procedures. See Hearings onH.B. 93-1209 Before the House Judiciary Committee , 59th General Assembly, 1st Reg. Sess.(Audio Tape 93-8, Feb. 12, 1993, at 7:42 a.m.); see also part II. A., supra . Clearly, a fair readingof the legislative record reflects a legislative response to conduct that subjected citizens inColorado to harassing, confrontational, and violent conduct. See part II. A., supra . We concludethat that this express purpose furthers a significant government interest. See Schenck , 519 U.S.at 374-76 (holding that unimpeded access to clinics is a significant governmental interest); Madsen , 512 U.S. at 767 (holding that the government has a substantial interest "in protecting awoman's freedom to seek lawful medical or counseling services in connection with herpregnancy"); Sabelko , 120 F.3d at 164 (same). Moreover, we note that it has long beenacknowledged that government "may properly assert important interests in safeguarding health." Roe v. Wade , 410 U.S. at 150; see also Cox v. Louisiana , 379 U.S. 559, 562 (1965).
D.
Finally, turning to the last requirement under Ward , that ample alternative channels ofcommunication be left open, we similarly conclude that section 18-9-122(3) passes muster. Section 18-9-122(3) does not prohibit verbal communication, as petitioners contend. While theauthority to regulate in some instances may include the power to deny, here petitioners'argument is not persuasive. Petitioners, indeed, everyone, are still able to protest, counsel, shout,implore, dissuade, persuade, educate, inform, and distribute literature regarding abortion. Theyjust cannot knowingly approach within eight feet of an individual who is within 100 feet of ahealth care facility entrance without that individual's consent. As articulated so well by theSupreme Court in Ward , "[t]hat [section 18-9-122(3)] may reduce to some degree the potentialaudience for [petitioners'] speech is of no consequence, for there has been no showing that theremaining avenues of communication are inadequate." Ward , 491 U.S. at 802. In fact, althoughleafleting is deterred under the statute, petitioners have failed to offer any credible evidence thatnormal conversation or the communication of their message through demonstrative devices, suchas placards and photographs, limits communication of their message. Moreover, becausepetitioners may knowingly approach up to eight feet of any person, in the parking lot, on thesidewalk, and even at the health care facility door, under the statute at issue here, we fail to seehow petitioners' audience is diminished at all. On its face, there is nothing that prohibitsprotestors from being seen and heard by those accessing health care facilities as well as passers-by.
It is important to emphasize that in Schenck the Supreme Court did not strike down all"floating" buffer zones per se, as the petitioners essentially contend. In striking down the floatingbuffer zones created by the injunction in Schenck , the Court recognized that "there may well beother ways to both effect . . . separation and yet provide certainty (so that speech protected by theinjunction's terms is not burdened) . . . ." 519 U.S. at 378-79. In fact, it was the uncertainty ofhow to comply with the injunction about which the Supreme Court appeared most concerned. The Court stated that because the protestor would have to move with the individual, and becausethe clinic sidewalks were only seventeen-feet wide, "it would be quite difficult for a protestorwho wishes to engage in peaceful expressive activities to know how to remain in compliancewith the injunction. This lack of certainty leads to a substantial risk that much more speech willbe burdened than the injunction by its terms prohibits." Id. at 378.
Here, in contrast, the statute is so narrowly drawn that these concerns are alleviated. First, protestors must only maintain a distance of eight feet, not fifteen, which allows for normalconversational tones. Second, where in Schenck a protestor could have easily violated theinjunction merely by standing still if, for example, an individual approached a protestor, then thatprotestor would violate the injunction. Here, in contrast, the mens rea "knowingly" requirementensures that scenario will not be possible. Even if a protestor is approached by an individual, theprotestor will only violate the statute if, along with the several other requirements of the statute,he or she "knowingly approaches" the individual for the purpose of passing a leaflet or engagingin oral protest. The inadvertent violation, or at least the possibility of such a violation, issubstantially avoided by the plain terms of the statute. In Schenck , in order to avoid violating theinjunction, the protestors were obligated to maintain sufficient separation of fifteen feet at alltimes. There, the movement of a third party could place the protestors in the position of havingviolated the injunction. Here, to the contrary, petitioners may actually stand still and thoughindividuals may approach within eight feet of petitioners, the requisite actus reus of"approach[ing]" is not met. Thus, we do not believe that, even under the Schenck test, section18-9-122(3) burdens more speech than is necessary.
VI.
In sum, we hold that section 18-9-122(3) represents a fair legislative balancing of the"right to protest or counsel against certain medical procedures" while protecting "a person's rightto obtain medical counseling and treatment." In addition, we find the General Assembly'sstatutory response a fair accommodation of two fundamental rights. We also conclude that "theright to be let alone," Olmstead , 277 U.S. at 478, is consistent with the well-accepted notion that"[t]he First Amendment does not guarantee the right to communicate one's views . . . in anymanner that may be desired ." Heffron , 452 U.S. at 647 (emphasis added).
Thus, we hold that section 18-9-122(3) is a valid time, place and manner restriction, apermissible legislative response designed to assure safety and order for citizens entering andleaving Colorado health care facilities. It is content-neutral, is narrowly tailored to serve asignificant governmental interest, and leaves open ample alternative channels of communication. Accordingly, we affirm the judgment of the court of appeals.
The issue upon which we granted certiorari was:
Whether the court of appeals erred in holding that section 18-9-122, 6 C.R.S.(1997), was constitutional upon the United States Supreme Court's remand to thecourt of appeals to reconsider the statute under Schenck v. Pro-Choice Network ,519 U.S. 357 (1997).
Petitioners' complaint alleged the statute was unconstitutional under both a facial and an as-applied challenge. However, as the statute had not yet been enforced, the trial court correctlyruled that the challenge was facial only. See High Gear & Toke Shop v. Beacom , 689 P.2d 624,628 (Colo. 1984). Therefore, our review here is limited to reviewing the facial challenge.
When originally filed, Gale Norton, as Attorney General, and Roy Romer, as Governor, wereofficers of the state of Colorado, sued in their official capacities. However, in January 1999, BillOwens and Ken Salazar succeeded to the offices of Governor and Attorney General. Hence, byoperation of law they are nominal parties in this proceeding, representing the State of Coloradoin their official capacities only. See C.A.R. 43(c)(1) ("When a public officer is a party to anappeal or other proceedings in the appellate court in his official capacity and during its pendencydies, resigns, or otherwise ceases to hold office, the action does not abate and his successor isautomatically substituted as a party.").
Comprised of six subsections, section 18-9-122 provides:
(1) The general assembly recognizes that access to health care facilities for thepurpose of obtaining medical counseling and treatment is imperative for thecitizens of this state; that the exercise of a person's right to protest or counselagainst certain medical procedures must be balanced against another person'sright to obtain medical counseling and treatment in an unobstructed manner; andthat preventing the willful obstruction of a person's access to medical counselingand treatment at a health care facility is a matter of statewide concern. Thegeneral assembly therefore declares that it is appropriate to enact legislation thatprohibits a person from knowingly obstructing another person's entry to or exitfrom a health care facility.
(2) A person commits a class 3 misdemeanor if such person knowingly obstructs,detains, hinders, impedes, or blocks another person's entry to or exit from a healthcare facility.
(3) No person shall knowingly approach another person within eight feet of suchperson, unless such other person consents, for the purpose of passing a leaflet orhandbill to, displaying a sign to, or engaging in oral protest, education, orcounseling with such other person in the public way or sidewalk area within aradius of one hundred feet from any entrance door to a health care facility. Anyperson who violates this subsection (3) commits a class 3 misdemeanor.
(4) For the purposes of this section "health care facility" means any entity that islicensed, certified, or otherwise authorized or permitted by law to administermedical treatment in this state.
(5) Nothing in this section shall be construed to prohibit a statutory or home rulecity or county or city and county from adopting a law for the control of access tohealth care facilities that is no less restrictive than the provisions of this section.
(6) In addition to, and not in lieu of, the penalties set forth in this section, a personwho violates the provisions of this section shall be subject to civil liability, asprovided in section 13-21-106.7, C.R.S.
The penalty for committing a class 3 misdemeanor is a fine between fifty and one hundred fiftydollars, and up to seven months imprisonment. See 18-1-106, 6 C.R.S. (1998).
While the statute creates a floating buffer zone, we take care to make clear the following. Thestatute's limited floating buffer zone exists only within the 100 foot fixed buffer zone thatprotects entrances to health care facilities. Hence, there is no limitation placed upon a citizen'sFirst Amendment conduct under the questioned statute outside the fixed buffer zone or more than100 feet from the entrance. Thus, so long as a person intending to enter or exit a health carefacility is more than 100 feet from the entrance, individuals exercising their First Amendmentrights may engage in speech within eight feet of the person using the health care facility.
Although the legislative history of section 18-9-122 attributes intimidating and violent conductto anti-abortion protestors generally, we assume, for purposes of this facial challenge to thestatute, that petitioners have not engaged in, and do not intend to engage in, such dangerous andharassing conduct. We further note that instances of violence, including bombings of abortionclinics and other life threatening violence perpetrated against doctors and other medicalpersonnel who provide abortion counseling and services, are not speech but, rather, constituteillegal conduct not protected by the First Amendment.
By force of the Civil War Amendments, in particular the Fourteenth Amendment, the FirstAmendment applies to the states via the Due Process Clause of the Fourteenth Amendment. See 44 Liquormart, Inc. v. Rhode Island , 517 U.S. 484, 489 n.1 (1996); Walker v. Colorado SpringsSun, Inc. , 188 Colo. 86, 99, 538 P.2d 450, 457 (1975), overruled on other grounds by DiversifiedManagement, Inc. v. Denver Post, Inc. , 653 P.2d 1103, 1106 (Colo. 1982). "'The freedom ofspeech . . . [is] among the fundamental personal rights and liberties which are secured to allpersons by the Fourteenth Amendment against abridgment by a state.'" Burson v. Freeman , 504U.S. 191, 196 (1992) (quoting Thornhill v. Alabama , 310 U.S. 88, 95 (1940)).
This egalitarian nature of the First Amendment was evinced by the Civil Rights Era of the1950's through the 1970's including (1) peaceful demonstrations and marches, some of whichwere lead by Rev. Dr. Martin Luther King, Jr., and (2) the work of the NAACP and the NAACPLegal Defense Fund, Inc., among others. See NAACP v. Claiborne Hardware , 458 U.S. 886(1982) (boycott seeking desegregation of public facilities, improved government services inblack neighborhoods, and hiring of African Americans as police officers, social workers, andstore clerks upheld against state tort laws). Influenced by Ghandi's philosophy of nonviolence,Dr. King led nonviolent demonstrations that helped lead to the passage of the Civil Rights Act of1964 and the Voting Rights Act of 1965. A recipient of the Nobel Peace Prize, Dr. King wasfelled by the violence of an assassin's bullet. Dr. King's birthday is a national holiday observedin Colorado and throughout the United States.
The injunction provided:
Defendants, the officers, directors, agents, and representatives of defendants, andall other persons whomsoever, known or unknown, acting in their behalf or inconcert with them, and receiving actual or constructive notice of this Order, are:
1. Enjoined and restrained in any manner or by any means from:
(a) trespassing on, sitting in, blocking, impeding, or obstructing access to, ingressinto or egress from any facility, including, but not limited to, the parking lots,parking lot entrances, driveways, and driveway entrances, at which abortions areperformed in the Western District of New York;
(b) demonstrating within fifteen feet from either side or edge of, or in front of,doorways or doorway entrances, parking lot entrances, driveways and drivewayentrances of such facilities, or within fifteen feet of any person or vehicle seekingaccess to or leaving such facilities, except that the form of demonstrating knownas sidewalk counseling by no more than two persons as specified in paragraph (c)shall be allowed;
(c) physically abusing, grabbing, touching, pushing, shoving, or crowding personsentering or leaving, working at or using any services at any facility at whichabortions are performed; provided, however, that sidewalk counseling consistingof a conversation of a non-threatening nature by not more than two people witheach person or group of persons they are seeking to counsel shall not beprohibited. Also provided that no one is required to accept or listen to sidewalkcounseling, and that if anyone or any group of persons who is sought to becounseled wants to not have counseling, wants to leave, or walk away, they shallhave the absolute right to do that, and in such event all persons seeking to counselthat person or group of persons shall cease and desist from such counseling, andshall thereafter be governed by the provisions of paragraph (b) pertaining to notdemonstrating within fifteen feet of persons seeking access to or leaving a facility. In addition, it is further provided that this right to sidewalk counseling as definedherein shall not limit the right of the Police Department to maintain public orderor such reasonably necessary rules and regulations as they decide are necessary ateach particular demonstration site;
(d) using any mechanical loudspeaker or sound amplification device or makingany excessively loud sound which injures, disturbs, or endangers the health orsafety of any patient or employee of a health care facility at which abortions areperformed, nor shall any person make such sounds which interfere with the rightsof anyone not in violation of this Order;
(e) attempting, or inducing, directing, aiding, or abetting in any manner, others totake any of the actions described in paragraphs (a) through (d) above.
Schenck , 519 U.S. at 366-67.
We emphasize here that this floating buffer zone exists only within 100 feet of the entrance andnot outside the fixed buffer zone, such as parking lots and sidewalks outside the 100 foot fixedbuffer zone.