Coalition Life v. Carbondale

1 Cite as: 604 U. S. ____ (2025)
T
HOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
COALITION LIFE v. CITY OF CARBONDALE,
ILLINOIS
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
No. 24–57. Decided February 24, 2025
The petition for a writ of certiorari is denied. JUSTICE
ALITO would grant the petition for a writ of certiorari.
J
USTICE THOMAS, dissenting from the denial of certiorari.
In Hill v. Colorado, 530 U. S. 703 (2000), this Court up-
held a state law restricting peaceful speech within 100 feet
of abortion clinics. It was clear at the time that Hill’s rea-
soning “contradict[ed] more than a half century of well-es-
tablished First Amendment principles.” Id., at 765 (Ken-
nedy, J., dissenting); see also id., at 742 (Scalia, J., joined
by T
HOMAS, J., dissenting). A number of us have since de-
scribed 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, 596 U. S. 61, 86–
87, 92, 103–104 (2022) (T
HOMAS, J., joined by GORSUCH and
B
ARRETT, JJ., dissenting) (internal quotation marks omit-
ted). We have long stopped applying Hill. See, e.g., City of
Austin, 596 U. S., at 76. And, a majority of this Court re-
cently acknowledged that Hill “distorted [our] First Amend-
ment doctrines.” Dobbs v. Jackson Women’s Health Organ-
ization, 597 U. S. 215, 287, and n. 65 (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 de-
funct status. I respectfully dissent.
I
Hill involved a 1993 Colorado statute that established

2 COALITION LIFE v. CARBONDALE
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HOMAS, J., dissenting
“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 pur-
pose of passing a leaflet or handbill to, displaying a sign to,
or engaging in oral protest, education, or counseling with
such other person.” Colo. Rev. Stat. §18–9–122(3) (2024).
Put another way, Colorado’s law—still in effect today—pro-
hibits unconsented “sidewalk counseling” within 100 feet of
abortion clinics.
Shortly after the law’s enactment, a group of self-de-
scribed sidewalk counselors who sought to peacefully “edu-
cate” and “counsel” “passersby about abortion and abortion
alternatives” challenged the law under the First Amend-
ment. Hill, 530 U. S., at 708, 710 (internal quotation marks
omitted). This Court upheld the law as a content-neutral
time, place, and manner restriction. Id., at 725.
Hill’s errors were numerous. Whether Colorado’s law ap-
plies to a given speaker undeniably turns on “what he in-
tends to say.” Id., at 742 (Scalia, J., dissenting) (emphasis
in original). “A speaker wishing to approach another for the
purpose of communicating any message except one of pro-
test, education, or counseling may do so without first secur-
ing the other’s consent.” Ibid. Nevertheless, the Court
deemed the law content neutral on the theory that it does
not prohibit a particular viewpoint or a particular subject
matter. Id., at 723. 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.” Id., at
742 (Scalia, J., dissenting); accord, id., at 767 (Kennedy, J.,
dissenting).
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 ap-
ply to content-based restrictions. And, the Court applied an

3 Cite as: 604 U. S. ____ (2025)
T
HOMAS, J., dissenting
unusually flexible version of intermediate scrutiny. Ordi-
narily, any content-neutral burden on protected speech
must be narrowly tailored to serve a significant state inter-
est, and it must leave open ample alternative means of com-
munication. See id., at 749 (Scalia, J., dissenting). The Hill
majority first minimized the burden imposed on First
Amendment rights by demoting the right to speak in public
forums to a mere “interest.” Id., at 714. The Court then
declared that Colorado had a substantial interest in pro-
tecting its citizens’ “right to avoid unwelcome speech.” Id.,
at 717. But, as Justice Scalia explained, the State had ex-
pressly disclaimed that interest in its briefs before the
Court. Id., at 750 (dissenting opinion). And with good rea-
son, because “[w]e have consistently held that ‘the Consti-
tution does not permit government to decide which types of
otherwise protected speech are sufficiently offensive to re-
quire protection for the unwilling listener or viewer.’ ” Id.,
at 751 (quoting Erznoznik v. Jacksonville, 422 U. S. 205,
210 (1975); emphasis in original). Nevertheless, that ex-
pressly disclaimed state interest became the “linchpin” of
the Court’s analysis. Hill, 530 U. S., at 750 (Scalia, J., dis-
senting).
Justice Scalia could identify only one explanation for the
majority’s anomalous decision: “[T]he jurisprudence of this
Court has a way of changing when abortion is involved.”
Id., at 742. Hill reflects “the ‘ad hoc nullification machine’”
that this Court “set[s] in motion to push aside whatever doc-
trines” happen to “stand in the way” of abortion. Id., at 741.
Hill’s abortion exceptionalism turned the First Amend-
ment upside down. As Hill’s author once explained, the
First Amendment reflects a “‘profound national commit-
ment’ to the principle that ‘debate on public issues should
be uninhibited, robust, and wide-open.’” NAACP v.
Claiborne Hardware Co., 458 U. S. 886, 913 (1982) (major-
ity opinion of Stevens, J.). That principle applies with per-

4 COALITION LIFE v. CARBONDALE
T
HOMAS, J., dissenting
haps its greatest force to speech that society finds “offen-
sive” or “disagreeable.” Texas v. Johnson, 491 U. S. 397,
414 (1989). Yet, Hill manipulated this Court’s First
Amendment jurisprudence precisely to disfavor “opponents
of abortion” and their “right to persuade women contem-
plating abortion that what they are doing is wrong.” 530
U. S., at 741–742 (Scalia, J., dissenting).
II
It is unclear what, if anything, is left of Hill. As lower
courts have aptly observed, Hill is “incompatible” with our
more recent First Amendment precedents. Price v. Chi-
cago, 915 F. 3d 1107, 1117 (CA7 2019) (opinion of Sykes, J.,
joined by Barrett, J.).
Start with McCullen v. Coakley, 573 U. S. 464 (2014).
There, this Court unanimously held unconstitutional a
Massachusetts law that prohibited anyone from entering a
35-foot buffer zone around an abortion facility. Id., at 471–
472, 497. In doing so, the Court determined that the law
was content neutral because—rather than targeting certain
kinds of speech such as protest, education, and counsel-
ing—the law prohibited virtually any speech within the
buffer zone. Id., at 479. The Court made clear, however,
that the law “would be content based if it required ‘enforce-
ment authorities’ to ‘examine the content of the message’”
to determine whether the law applied. Ibid. That position
is irreconcilable with Hill, which the Court did not even
bother to cite.
Hill is likewise at odds with Reed v. Town of Gilbert, 576
U. S. 155 (2015). Reed involved a First Amendment chal-
lenge to a town’s sign code that regulated various categories
of signs based on “the type of information they convey.” Id.,
at 159. Relying on Hill, the Ninth Circuit concluded that
the sign code was content neutral, reasoning that the town
“ ‘did not adopt its regulation of speech because it disagreed

5 Cite as: 604 U. S. ____ (2025)
T
HOMAS, J., dissenting
with the message conveyed’” and its “‘interests in regu-
lat[ing] temporary signs are unrelated to the content of the
sign.’” 576 U. S., at 162. That court then applied a lower
level of scrutiny and upheld the code. Ibid. We reversed,
holding that a speech regulation is content based—and thus
“presumptively unconstitutional”—if it “draws distinctions
based on the message a speaker conveys.” Id., at 163.
McCullen and Reed “establish that strict scrutiny is the
proper standard of review when a law targets a ‘specific
subject matter . . . even if it does not discriminate among
viewpoints within that subject matter.’” Bruni v. Pitts-
burgh, 592 U. S. ___ (2021) (T
HOMAS, J., statement respect-
ing denial of certiorari). That proposition presents “glaring
tension” with Hill. 592 U. S., at ___; see also Price, 915
F. 3d, at 1118 (“In the wake of McCullen and Reed, it’s not
too strong to say that what Hill explicitly rejected is now
prevailing law”).
Our post-Reed decisions have firmly established Hill’s di-
minished status. In City of Austin, for example, the major-
ity ran as far as it could from Hill, even though Hill was the
one “case that could possibly validate the majority’s aber-
rant analysis” on the constitutionality of restrictions on bill-
board advertising. 596 U. S., at 86, 102 (opinion of T
HOMAS,
J.). The majority nonetheless insisted that any alleged sim-
ilarity was “a straw man,” rejecting the notion that its opin-
ion had “‘resuscitat[ed]’” Hill, and reminding readers that
it did “not cite” the decision at all. 596 U. S., at 76.
Our latest word on Hill—expressed in a majority opinion
joined by five Members of this Court—is that the decision
“distorted [our] First Amendment doctrines.” Dobbs, 597
U. S., at 287, and n. 65. If Hill’s foundation was “deeply
shaken” before Dobbs, see Price, 915 F. 3d, at 1119, the
Dobbs decision razed it.
This trajectory calls to mind the story of Lemon v. Kurtz-
man, 403 U. S. 602 (1971), which had created a three-part
test to determine whether a law violated the Establishment

6 COALITION LIFE v. CARBONDALE
T
HOMAS, J., dissenting
Clause. While this Court had not by any one statement
overruled Lemon, for many years it either “expressly de-
clined to apply the test” or “simply ignored it.” American
Legion v. American Humanist Assn., 588 U. S. 29, 49 (2019)
(plurality opinion) (collecting cases). We were never shy
about Lemon’s “shortcomings” and “daunting problems.”
588 U. S., at 49, 51. And, we eventually faulted lower
courts for failing to notice that the “‘shortcomings’ associ-
ated with th[e] ‘ambitiou[s],’ abstract, and ahistorical”
Lemon test had “bec[o]me so ‘apparent’ that this Court long
ago abandoned” it. Kennedy v. Bremerton School Dist., 597
U. S. 507, 534 (2022) (second alteration in original). In
other words, we explained, Lemon had long been disman-
tled by our precedents, and lower courts should have recog-
nized its demise. Given that prior to Kennedy, a decision of
the Court had never outright condemned Lemon as a “dis-
tort[ion],” Dobbs, 597 U. S., at 287, and n. 65, Hill’s aban-
donment is arguably even clearer than Lemon’s.
To be sure, this Court has not uttered the phrase “we
overrule Hill.” For that reason, some lower courts have felt
compelled to uphold Hill-like buffer zones around abortion
clinics. See, e.g., Vitagliano v. County of Westchester, 71
F. 4th 130, 141 (CA2 2023). This case is another prime ex-
ample of that trend, and “[o]ne can hardly blame [lower
courts] for misunderstanding” when “[w]e [have] created
. . . confusion.” Gee v. Planned Parenthood of Gulf Coast,
Inc., 586 U. S. 1057, 1059 (2018) (T
HOMAS, J., dissenting
from denial of certiorari). We are responsible for resolving
that confusion, and we should have done so here.
III
Six months after this Court decided Dobbs, the city coun-
cil of Carbondale, Illinois, passed Ordinance No. 2023–03,
a buffer-zone restriction that copied nearly verbatim the
Colorado law at issue in Hill. See Carbondale, Ill., City
Code §14–4–2(H) (2023). The city council explicitly invoked

7 Cite as: 604 U. S. ____ (2025)
T
HOMAS, J., dissenting
Hill as a justification for enacting the ordinance. See Coa-
lition for Life St. Louis v. Carbondale, No. 3:23–cv–1651
(SD Ill.), Doc. 1–1, p. 3.
Petitioner Coalition Life is a Missouri nonprofit that or-
ganizes sidewalk counselors to counsel, educate, pray, dis-
play signs, and distribute literature outside abortion clin-
ics. Their goal is to engage in “one-on-one conversation in
a calm, intimate manner,” as they find that approach most
effective. Complaint in No. 3:23–cv–1651, p. 3, ¶10. The
organization prohibits its counselors from engaging in in-
timidating or threatening behavior.
Until the passage of Ordinance No. 2023–03, Coalition
Life counselors engaged in sidewalk counseling outside
abortion facilities in Carbondale. But, the new ordinance
“severely hinder[ed]” their ability to do so. Id., at 11, ¶48.
The newly enacted 100-foot buffer zone meant that Coali-
tion Life counselors were forced to stand far away from
those with whom they wished to speak. In some cases, side-
walk counselors had nowhere to stand but in the middle of
busy roads, rendering intimate counseling activities effec-
tively impossible.
Coalition Life sued the city of Carbondale, alleging,
among other things, that the ordinance violates the First
Amendment. When Carbondale moved to dismiss the suit
under Hill, Coalition Life responded that over the years
Hill has been eroded, but it nevertheless conceded that its
claims were foreclosed insofar as Hill remains good law.
The District Court dismissed the suit on the ground that
Hill and binding Seventh Circuit precedent controlled. Co-
alition for Life St. Louis v. Carbondale, 2023 WL 4681685,
*1 (SD Ill., July 6, 2023). The Seventh Circuit affirmed on
the same ground, acknowledging the plaintiffs’ assertion
that Carbondale’s buffer zone was “‘modeled after and
nearly identical’” to the one upheld in Hill. 2024 WL
1008591, *1 (Mar. 8, 2024). Because Hill was the exclusive
basis for both decisions below, this case clearly and cleanly

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HOMAS, J., dissenting
presents the question of Hill’s viability.*
This Court has received a number of invitations to make
clear that Hill lacks continuing force. Some of those invita-
tions have arisen in cases with thorny preliminary issues or
other obstacles to our review. See, e.g., Bruni, 592 U. S. ___
(opinion of T
HOMAS, J.). But, no such obstacles are present
here. It is undisputed that Carbondale’s ordinance is iden-
tical to Colorado’s law in all material respects. It is likewise
undisputed that both the District Court and the Seventh
Circuit dismissed Coalition Life’s suit exclusively on the
ground that those courts felt bound by Hill. This case would
have allowed us to provide needed clarity to lower courts.
* * *
Hill has been seriously undermined, if not completely
eroded, and our refusal to provide clarity is an abdication of
our judicial duty. “We are responsible for the confusion
among the lower courts, and it is our job to fix it.” Gee, 586
U. S., at 1059 (opinion of T
HOMAS, J.). I would have taken
this opportunity to explicitly overrule Hill. For now, we
leave lower courts to sort out what, if anything, is left of
Hill’s reasoning, all while constitutional rights hang in the
balance. I respectfully dissent.
——————
*Carbondale repealed Ordinance 2023–03 in the summer of 2024. See
An Ordinance Repealing Ordinance No. 2023–03, Carbondale, Ill., Ordi-
nance No. 2024–__ (July 13, 2024). But, this fact is not fatal to peti-
tioner’s claims. The ordinance was in effect for over a year and a half,
and Coalition Life sought nominal damages for the infringement of First
Amendment rights. A plaintiff ’s request for nominal damages can sat-
isfy the redressability requirement for Article III standing and keep an
otherwise moot case alive. See Uzuegbunam v. Preczewski, 592 U. S. 279,
293 (2021).