Antonin Scalia

“ It is something else to assume that all those who wish to speak outside health care facilities across the State will similarly abuse their rights if permitted to exercise them. The First Amendment stands as a bar to exactly this type of prophylactic legislation. I cannot improve upon the Court's conclusion in Madsen that "it is difficult, indeed, to justify a prohibition on all uninvited approaches of persons seeking the services of the clinic, regardless of how peaceful the contact may be, without burdening more speech than necessary to prevent intimidation and to ensure access to the clinic. ”

“ For those who share an abiding moral or religious conviction (or, for that matter, simply a biological appreciation) that abortion is the taking of a human life, there is no option but to persuade women, one by one, not to make that choice. And as a general matter, the most effective place, if not the only place, where that persuasion can occur is outside the entrances to abortion facilities. ”

“ It is reasonable enough to conclude that even the most gentle and peaceful close approach by a so-called "sidewalk counselor"—who wishes to "educate" the woman entering an abortion clinic about the nature of the procedure, to "counsel" against it and in favor of other alternatives, and perhaps even (though less likely if the approach is to be successful) to "protest" her taking of a human life—will often, indeed usually, have what might be termed the "secondary effect" of annoying or deeply upsetting the woman who is planning the abortion. ”

“ As discussed above, the prohibition here is content based: Those who wish to speak for purposes other than protest, counsel, or education may do so at close range without the listener's consent, while those who wish to speak for other purposes may not. This bears no resemblance to a blanket prohibition of picketing—unless, of course, one uses the fanciful definition of picketing ("an effort to persuade or otherwise influence") newly discovered by today's opinion. ”

“ I know of no precedent for the proposition that time, place, and manner restrictions are not subject to the doctrine of overbreadth. Our decision in Grace, supra, demonstrates the contrary: Restriction of speech on the sidewalks around the Supreme Court was invalidated because it went further than the needs of security justified. Surely New York City cannot require a parade permit and a security bond for any individual who carries a sign on the sidewalks of Fifth Avenue. ”

“ Whatever may be said about the restrictions on the other types of expressive activity, the regulation as it applies to oral communications is obviously and undeniably content based. A speaker wishing to approach another for the purpose of communicating any message except one of protest, education, or counseling may do so without first securing the other’s consent. Whether a speaker must obtain permission before approaching within eight feet—and whether he will be sent to prison for failing to do so—depends entirely on what he intends to say when he gets there. ”

“ I do not disagree with the Court that "our cases have repeatedly recognized the interests of unwilling listeners" in locations, such as public conveyances, where "'the degree of captivity makes it impractical for the unwilling viewer or auditor to avoid exposure,'" ante, at 718 (quoting Erznoznik v. Jacksonville, 422 U.S. 205, 209 (1975) ) . But we have never made the absurd suggestion that a pedestrian is a "captive" of the speaker who seeks to address him on the public sidewalks, where he may simply walk quickly by. ”

“ What is before us, after all, is a speech regulation directed against the opponents of abortion, and it therefore enjoys the benefit of the "ad hoc nullification machine" that the Court has set in motion to push aside whatever doctrines of constitutional law stand in the way of that highly favored practice. ”

“ But those who would accomplish their moral and religious objectives by peaceful and civil means, by trying to persuade individual women of the rightness of their cause, will be deterred; and that is not a good thing in a democracy. This Court once recognized, as the Framers surely did, that the freedom to speak and persuade is inseparable from, and antecedent to, the survival of self-government. ”

“ Picketing by an organized group is more than free speech, since it involves patrol of a particular locality and since the very presence of a picket line may induce action of one kind or another, quite irrespective of the nature of the ideas which are being disseminated. Hence those aspects of picketing make it the subject of restrictive regulation. ”

“ That is good enough, I suppose, for "protesting"; but the Court must know that most of the "counseling" and "educating" likely to take place outside a health care facility cannot be done at a distance and at a high-decibel level. The availability of a powerful amplification system will be of little help to the woman who hopes to forge, in the last moments before another of her sex is to have an abortion, a bond of concern and intimacy that might enable her to persuade the woman to change her mind and heart. ”

“ The Court today rotates that essential safety valve on our democracy one-half turn to the right, and no one who seeks safe access to health care facilities in Colorado or elsewhere should feel that her security has by this decision been enhanced. ”

“ By upholding these restrictions on speech in this place the Court ratifies the State's attempt to make even that task an impossible one.
Those whose concern is for the physical safety and security of clinic patients, workers, and doctors should take no comfort from today's decision. Individuals or groups intent on bullying or frightening women out of an abortion, or doctors out of performing that procedure, will not be deterred by Colorado's statute; bullhorns and screaming from eight feet away will serve their purposes well. ”

“ As the universally understood state of First Amendment law is described in a leading treatise: "Outside the home, the burden is generally on the observer or listener to avert his eyes or plug his ears against the verbal assaults, lurid advertisements, tawdry books and magazines, and other 'offensive' intrusions which increasingly attend urban life." L. Tribe, American Constitutional Law §12–19, p. 948 (2d ed. 1988) . The Court today elevates the abortion clinic to the status of the home. ”

“ Stenberg rejects the State's assertion of the very meaning of its antiabortion law, and declares instead a meaning that will render the law unconstitutional. The present case rejects overbreadth challenges to a proabortion law that regulates speech, on grounds that have no support in our prior jurisprudence and that instead amount to a total repudiation of the doctrine of overbreadth. Stenberg applies overbreadth analysis to an antiabortion law that has nothing to do with speech, even though until eight years ago overbreadth was unquestionably the exclusive preserve of the First Amendment. ”

“ The public forum involved here—the public spaces outside of health care facilities—has become, by necessity and by virtue of this Court's decisions, a forum of last resort for those who oppose abortion. The possibility of limiting abortion by legislative means—even abortion of a live-and-kicking child that is almost entirely out of the womb—has been rendered impossible by our decisions from Roe v. ”

“ Precision of regulation must be the touchstone in an area so closely touching our most precious freedoms." 371 U.S., at 438) . If the Court were going to make this concession, it could simply have dispensed with its earlier (unpersuasive) attempt to show that the statute was narrowly tailored. So one can add to the casualties of our whatever-it-takes proabortion jurisprudence the First Amendment doctrine of narrow tailoring and overbreadth. ”

“ This "happy speech" limitation would not be "viewpoint based"—citizens would be able to express their joy in equal measure at either the rise or fall of the NASDAQ, at either the success or the failure of the Republican Party—and would not discriminate on the basis of subject matter, since gratification could be expressed about anything at all. Or consider a law restricting the writing or recitation of poetry—neither viewpoint based nor limited to any particular subject matter. ”

“ Instead, it flirts with the creation of yet a new constitutional "first" designed for abortion cases: " [W] hen," it says, "a content-neutral regulation does not entirely foreclose any means of communication, it may satisfy the tailoring requirement even though it is not the least restrictive or least intrusive means of serving the statutory goal." Ante, at 726. The implication is that the availability of alternative means of communication permits the imposition of the speech restriction upon more individuals, or more types of communication, than narrow tailoring would otherwise demand. ”

“ The Court's suggestion, ante, at 730, that the restrictions imposed by the Colorado ban are unobjectionable because they "interfer [e] far less with a speaker's ability to communicate" than did the regulations involved in Frisby v. Schultz, 487 U.S. 474 (1988) , and Heffron, and in cases requiring "silence" outside of a hospital (by which I presume the Court means Madsen v. Women's Health Center, Inc., 512 U.S. 753 (1994) ) , misses the point of narrow-tailoring analysis. ”

“ A leafletter, whether he is working on behalf of Operation Rescue, Local 109, or Bubba's Bar-B-Que, stakes out the best piece of real estate he can, and then walks a few steps toward individuals passing in his vicinity, extending his arm and making it as easy as possible for the passerby, whose natural inclination is generally not to seek out such distributions, to simply accept the offering. ”

“ To begin with, the 8-foot buffer zone attaches to every person on the public way or sidewalk within 100 feet of the entrance of a medical facility, regardless of whether that person is seeking to enter or exit the facility. ”

“ There is apparently no end to the distortion of our First Amendment law that the Court is willing to endure in order to sustain this restriction upon the free speech of abortion opponents. The labor movement, in particular, has good cause for alarm in the Court's extensive reliance upon American Steel Foundries v. ”