California Law Would Define “Harass” to Include Approaching Within 30 Feet to Give Leaflets to Strangers, or to Try to Speak to Them
As I wrote about in early August, the California Legislature is set to enact a law providing such a definition, in a content-based, unconstitutionally broad restriction on speech outside vaccination centers. Since my post, the Assembly passed the bill as well, joining the Senate, though with a slight revision that changes the nature of the content discrimination—in a way that is even more definitively unconstitutional. The bill is now on the governor’s desk.
[1.] The bill begins:
(a) It is [a misdemeanor punishable by up to six months in jail and a fine of up to $1000] to knowingly approach within 30 feet of any person while a person is within 100 feet of the entrance or exit of a vaccination site and is seeking to enter or exit a vaccination site, or any occupied motor vehicle seeking entry or exit to a vaccination site, for the purpose of obstructing, injuring, harassing, intimidating, or interfering with that person or vehicle occupant.
Now that sounds modest: After all, it’s limited to approaching for the purpose of “obstructing” (defined as blocking access), “injuring,” “harassing,” “intimidating” (defined as making a true threat of physical harm), or “interfering with” (defined as restricting freedom of movement). Who can be in favor of that sort of behavior?
But wait—here’s how “harassing” is defined:
(c)(1) “Harassing” means knowingly approaching, without consent, within 30 feet of another person or occupied vehicle for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling with, that other person in a public way or on a sidewalk area.
Such ordinary speech—familiar from a wide range of peaceful protests—would now be criminal “harassment.” Yet the First Amendment of course protects speech on public sidewalks, including offering leaflets, displaying signs, or conveying oral messages to people who haven’t “consen” (whether because they haven’t thought about the matter, or even if they affirmatively don’t want to see the sign or hear the message).
In Hill v. Colorado (2000), the Court did uphold a restriction on “‘knowingly approach[ing]’ within eight feet of another person [near a medical facility], 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.'” But the majority stressed that this stemmed from 8 feet being such a short distance:
Unlike the 15-foot zone [struck down in Schenck v. Pro-Choice Network (1997)], this 8-foot zone allows the speaker to communicate at a “normal conversational distance.”
Thirty feet, on the other hand, is very far from a “normal conversation distance”; and in McCullen v. Coakley (2014), the Court struck down a 35-foot buffer zone outside a clinic in part because
[T]he zones … compromise petitioners’ ability to initiate the close, personal conversations that they view as essential to “sidewalk counseling.” For example, in uncontradicted testimony, McCullen explained that she often cannot distinguish patients from passersby outside the Boston clinic in time to initiate a conversation before they enter the buffer zone…. McCullen is often reduced to raising her voice at patients from outside the zone— a mode of communication sharply at odds with the compassionate message
Article from Latest – Reason.com