Justice Thomas Calls Again for Overruling Hill v. Colorado
From Justice Thomas’s dissent from the denial of certiorari in Coalition Life v. City of Carbondale (Justice Alito also noted that he would have granted the petition):
In Hill v. Colorado (2000), this Court upheld a state law restricting peaceful speech within 100 feet of abortion clinics. It was clear at the time that Hill‘s reasoning “contradict[ed] more than a half century of well-established First Amendment principles.” A number of us have since described the decision as an “absurd,” “defunct,” “erroneous,” and “long-discredited” “aberration” from the rest of our First Amendment jurisprudence. See City of Austin v. Reagan Nat. Advertising of Austin, LLC (2022) (Thomas, J., joined by Gorsuch and Barrett, JJ., dissenting) (internal quotation marks omitted). We have long stopped applying Hill. And, a majority of this Court recently acknowledged that Hill “distorted [our] First Amendment doctrines.” Dobbs v. Jackson Women’s Health Organization (2022). Following our repudiation in Dobbs, I do not see what is left of Hill. Yet, lower courts continue to feel bound by it. The Court today declines an invitation to set the record straight on Hill‘s defunct status. I respectfully dissent.
Hill involved a 1993 Colorado statute that established “buffer zones” around abortion clinics. The law made it a crime for any person, within 100 feet of any “health-care facility” entrance, to “knowingly approach” within 8 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.” Put another way, Colorado’s law—still in effect today—prohibits unconsented “sidewalk counseling” within 100 feet of abortion clinics.
Shortly after the law’s enactment, a group of self-described sidewalk counselors who sought to peacefully “educate” and “counsel” “passersby about abortion and abortion alternatives” challenged the law under the First Amendment. This Court upheld the law as a content-neutral time, place, and manner restriction
Hill‘s errors were numerous. Whether Colorado’s law applies to a given speaker undeniably turns on “what he intends to say.” “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.” Nevertheless, the Court deemed the law content neutral on the theory that it does not prohibit a particular viewpoint or a particular subject matter. But, this Court had never—and since Hill, has never—taken such a narrow view of content-based speech restrictions. Buffer zones like the one at issue in Hill are “obviously and undeniably content based.”
As a result of this error, the Court purported to subject the Colorado law to so-called “intermediate scrutiny,” a standard far more lenient than the “strict scrutiny” we apply to content-based restrictions. And, the Court applied an unusually flexible ve
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