HILL et al. v. COLORADO et al.

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
703 OCTOBER TERM, 1999
Syllabus
HILL et al. v. COLORADO et al.
certiorari to the supreme court of colorado
No. 98–1856. Argued January 19, 2000—Decided June 28, 2000
Colorado Rev. Stat. § 18–9–122(3) makes it unlawful for any person within
100 feet of a health care facility’s entrance to “knowingly approach”
within 8 feet of another person, without that person’s consent, in order
to pass “a leaflet or handbill to, displa[y] a sign to, or engag[e] in oral
protest, education, or counseling with [that] person . . . .” Claiming
that the statute was facially invalid, petitioners sought to enjoin its en-
forcement in state court. In dismissing the complaint, the District
Judge held that the statute imposed content-neutral time, place, and
manner restrictions narrowly tailored to serve a significant government
interest under Ward v. Rock Against Racism, 491 U. S. 781, in that
Colorado had not “adopted a regulation of speech because of disagree-
ment with the message it conveys,” id., at 791. The State Court of
Appeals affirmed, and the State Supreme Court denied review. This
Court vacated that judgment in light of its holding in Schenck v. Pro-
Choice Network of Western N. Y., 519 U. S. 357, that an injunctive provi-
sion creating a speech-free floating buffer zone with a 15-foot radius
violated the First Amendment. On remand, the Court of Appeals rein-
stated its judgment, and the State Supreme Court affirmed, distinguish-
ing Schenck, concluding that the statute was narrowly drawn to further
a significant government interest, rejecting petitioners’ overbreadth
challenge, and concluding that ample alternative channels of communica-
tion remained open to petitioners.
Held: Section 18–9–122(3)’s restrictions on speech-related conduct are
constitutional. Pp. 714–735.
(a) Each side has legitimate and important concerns. Petitioners’
First Amendment interests are clear and undisputed. On the other
hand, the State’s police powers allow it to protect its citizens’ health and
safety, and may justify a special focus on access to health care facilities
and the avoidance of potential trauma to patients associated with con-
frontational protests. Moreover, rules providing specific guidance to
enforcement authorities serve the interest in evenhanded application of
the law. Also, the statute deals not with restricting a speaker’s right to
address a willing audience, but with protecting listeners from unwanted
communication. Pp. 714–718.
(b) Section 18–9–122(3) passes the Ward content-neutrality test for
three independent reasons. First, it is a regulation of places where

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
704 HILL v. COLORADO
Syllabus
some speech may occur, not a “regulation of speech.” Second, it was
not adopted because of disagreement with the message of any speech.
Most importantly, the State Supreme Court unequivocally held that the
restrictions apply to all demonstrators, regardless of viewpoint, and the
statute makes no reference to the content of speech. Third, the State’s
interests are unrelated to the content of the demonstrators’ speech.
Petitioners contend that insofar as the statute applies to persons who
“knowingly approach” within eight feet of another to engage in “oral
protest, education, or counseling,” it is “content-based” under Carey v.
Brown, 447 U. S. 455, 462, because it requires examination of the content
of a speaker’s comments. This Court, however, has never held that it
is improper to look at a statement’s content in order to determine
whether a rule of law applies to a course of conduct. Here, it is unlikely
that there would often be any need to know exactly what words were
spoken in order to determine whether sidewalk counselors are engaging
in oral protest, education, or counseling rather than social or random
conversation. The statute is easily distinguishable from the one in
Carey, which prohibited all picketing except for picketing of a place of
employment in a labor dispute, thereby according preferential treatment
to expression concerning one particular subject. In contrast, § 18–9–
122(3) merely places a minor place restriction on an extremely broad
category of communications with unwilling listeners. Pp. 719–725.
(c) Section 18–9–122(3) is also a valid time, place, and manner regula-
tion under Ward, for it is “narrowly tailored” to serve the State’s sig-
nificant and legitimate governmental interests and it leaves open ample
alternative communication channels. When a content-neutral regula-
tion does not entirely foreclose any means of communication, it may
satisfy the tailoring requirement even though it is not the least restric-
tive or least intrusive means of serving the statutory goal. The 8-foot
zone should not have any adverse impact on the readers’ ability to read
demonstrators’ signs. That distance can make it more difficult for a
speaker to be heard, but there is no limit on the number of speakers or
the noise level. Nor does the statute suffer from the failings of the
“floating buffer zone” rejected in Schenck. The zone here allows the
speaker to communicate at a “normal conversational distance,” 519
U. S., at 377, and to remain in one place while other individuals pass
within eight feet. And the “knowing” requirement protects speakers
who thought they were at the proscribed distance from inadvertently
violating the statute. Whether the 8-foot interval is the best possible
accommodation of the competing interests, deference must be accorded
to the Colorado Legislature’s judgment. The burden on the distribu-
tion of handbills is more serious, but the statute does not prevent a
leafletter from simply standing near the path of oncoming pedestrians
and proffering the material, which pedestrians can accept or decline.

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
705 Cite as: 530 U. S. 703 (2000)
Syllabus
See Heffron v. International Soc. for Krishna Consciousness, Inc., 452
U. S. 640. Pp. 725–730.
(d) Section 18–9–122(3) is not overbroad. First, the argument that
coverage is broader than the specific concern that led to the statute’s
enactment does not identify a constitutional defect. It is precisely be-
cause the state legislature made a general policy choice that the statute
is assessed under Ward rather than a stricter standard. Second, the
argument that the statute bans virtually the universe of protected ex-
pression is based on a misreading of the statute and an incorrect under-
standing of the overbreadth doctrine. The statute does not ban any
forms of communication, but regulates the places where communications
may occur; and petitioners have not, as the doctrine requires, persuaded
the Court that the statute’s impact on the conduct of other speakers will
differ from its impact on their own sidewalk counseling, see Broadrick v.
Oklahoma, 413 U. S. 601, 612, 615. Pp. 730–732.
(e) Nor is § 18–9–122(3) unconstitutionally vague, either because it
fails to provide people with ordinary intelligence a reasonable opportu-
nity to understand what it says or because it authorizes or encourages
arbitrary and discriminatory enforcement, Chicago v. Morales, 527 U. S.
41, 56–57. The first concern is ameliorated by § 18–9–122(3)’s scienter
requirement. It is unlikely that anyone would not understand the com-
mon words used in the statute, and hypothetical situations not before
the Court will not support a facial attack on a statute that is surely
valid in the vast majority of its intended applications. The Court is
likewise unpersuaded that inadequate direction is given to law enforce-
ment authorities. Indeed, one of § 18–9–122(3)’s virtues is the specific-
ity of the definitions of the zones. Pp. 732–733.
(f) Finally, § 18–9–122(3)’s consent requirement does not impose a
prior restraint on speech. This argument was rejected in both Schenck
and Madsen v. Women’s Health Center, Inc., 512 U. S. 753. Further-
more, “prior restraint” concerns relate to restrictions imposed by official
censorship, but the regulations here only apply if the pedestrian does
not consent to the approach. Pp. 733–735.
973 P. 2d 1246, affirmed.
Stevens, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and O’Connor, Souter, Ginsburg, and Breyer, JJ., joined. Sou-
ter, J., filed a concurring opinion, in which O’Connor, Ginsburg, and
Breyer, JJ., joined, post, p. 735. Scalia, J., filed a dissenting opinion, in
which Thomas, J., joined, post, p. 741. Kennedy, J., filed a dissenting
opinion, post, p. 765.
Jay Alan Sekulow argued the cause for petitioners. With
him on the briefs were James M. Henderson, Sr., Walter M.

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
706 HILL v. COLORADO
Counsel
Weber, Joel H. Thornton, Thomas P. Monaghan, and Roger
W. Westlund.
Michael E. McLachlan, Solicitor General of Colorado, ar-
gued the cause for respondents. With him on the brief were
Ken Salazar, Attorney General, Felicity Hannay, Deputy
Attorney General, Carol D. Angel, Senior Assistant Attor-
ney General, and Maureen Herr Juran.
Deputy Solicitor General Underwood argued the cause for
the United States as amicus curiae urging affirmance.
With her on the brief were Solicitor General Waxman, Act-
ing Assistant Attorney General Lee, Beth S. Brinkmann,
David K. Flynn, and Louis E. Peraertz.*
*Briefs of amici curiae urging reversal were filed for the Ameri-
can Civil Liberties Union by Steven R. Shapiro; for Liberty Counsel by
Mathew D. Staver; and for People for the Ethical Treatment of Animals
by David N. Ventker.
Briefs of amici curiae urging affirmance were filed for the State of New
York et al. by Eliot Spitzer, Attorney General of New York, Preeta D.
Bansal, Solicitor General, Carol Fischer, Assistant Solicitor General, and
Jennifer K. Brown, Assistant Attorney General, and by the Attorneys
General for their respective States as follows: Janet Napolitano of Ari-
zona, Bill Lockyer of California, Richard Blumenthal of Connecticut, Earl
I. Anzai of Hawaii, Carla J. Stovall of Kansas, Andrew Ketterer of Maine,
J. Joseph Curran, Jr., of Maryland, Thomas F. Reilly of Massachusetts,
Jeremiah W. (Jay) Nixon of Missouri, Joseph P. Mazurek of Montana,
Frankie Sue Del Papa of Nevada, Patricia A. Madrid of New Mexico,
W. A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Sheldon
Whitehouse of Rhode Island, William H. Sorrell of Vermont, and Chris-
tine O. Gregoire of Washington; for the City of Boulder et al. by Daniel
E. Muse and James C. Thomas; for the American College of Obstetricians
and Gynecologists et al. by Carter G. Phillips, Mark E. Haddad, Ann E.
Allen, Michael L. Ile, and Leonard A. Nelson; and for the National Abor-
tion and Reproductive Rights Action League et al. by Lucinda M. Finley,
Jennifer C. Jaff, Martha F. Davis, Roslyn Powell, and Yolanda S. Wu.
Briefs of amici curiae were filed for the American Federation of Labor
and Congress of Industrial Organizations by Jonathan P. Hiatt and
Laurence Gold; and for the Life Legal Defense Foundation by Andrew
W. Zepeda.

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
707 Cite as: 530 U. S. 703 (2000)
Opinion of the Court
Justice Stevens delivered the opinion of the Court.
At issue is the constitutionality of a 1993 Colorado statute
that regulates speech-related conduct within 100 feet of the
entrance to any health care facility. The specific section of
the statute that is challenged, Colo. Rev. Stat. § 18–9–122(3)
(1999), makes it unlawful within the regulated areas for any
person to “knowingly approach” within eight feet of another
person, without that person’s consent, “for the purpose of
passing a leaflet or handbill to, displaying a sign to, or engag-
ing in oral protest, education, or counseling with such other
person . . . .” 1 Although the statute prohibits speakers from
1 The entire § 18–9–122 reads as follows:
“(1) The general assembly recognizes that access to health care facilities
for the purpose of obtaining medical counseling and treatment is impera-
tive for the citizens of this state; that the exercise of a person’s right to
protest or counsel against certain medical procedures must be balanced
against another person’s right to obtain medical counseling and treatment
in an unobstructed manner; and that preventing the willful obstruction of
a person’s access to medical counseling and treatment at a health care
facility is a matter of statewide concern. The general assembly therefore
declares that it is appropriate to enact legislation that prohibits a person
from knowingly obstructing another person’s entry to or exit from 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 health care facility.
“(3) No person shall knowingly approach another person within eight
feet of such person, unless such other person consents, 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 in the public way
or sidewalk area within a radius of one hundred feet from any entrance
door to a health care facility. Any person who violates this subsection (3)
commits a class 3 misdemeanor.
“(4) For the purposes of this section, ‘health care facility’ means any
entity that is licensed, certified, or otherwise authorized or permitted by
law to administer medical treatment in this state.
“(5) Nothing in this section shall be construed to prohibit a statutory
or home rule city or county or city and county from adopting a law for the

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
708 HILL v. COLORADO
Opinion of the Court
approaching unwilling listeners, it does not require a stand-
ing speaker to move away from anyone passing by. Nor
does it place any restriction on the content of any message
that anyone may wish to communicate to anyone else, either
inside or outside the regulated areas. It does, however,
make it more difficult to give unwanted advice, particularly
in the form of a handbill or leaflet, to persons entering or
leaving medical facilities.
The question is whether the First Amendment rights of
the speaker are abridged by the protection the statute pro-
vides for the unwilling listener.
I
Five months after the statute was enacted, petitioners
filed a complaint in the District Court for Jefferson County,
Colorado, praying for a declaration that § 18–9–122(3) was
facially invalid and seeking an injunction against its enforce-
ment. They stated that prior to the enactment of the stat-
ute, they had engaged in “sidewalk counseling” on the public
ways and sidewalks within 100 feet of the entrances to facili-
ties where human abortion is practiced or where medical
personnel refer women to other facilities for abortions.
“Sidewalk counseling” consists of efforts “to educate, coun-
sel, persuade, or inform passersby about abortion and abor-
tion alternatives by means of verbal or written speech,
including conversation and/or display of signs and/or distri-
bution of literature.” 2 They further alleged that such activ-
ities frequently entail being within eight feet of other per-
sons and that their fear of prosecution under the new statute
control of access to health 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 person who violates the provisions of this section shall be sub-
ject to civil liability, as provided in section 13–21–106.7, C. R. S.”
2 App. 17.

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
709 Cite as: 530 U. S. 703 (2000)
Opinion of the Court
caused them “to be chilled in the exercise of fundamental
constitutional rights.” 3
Count 5 of the complaint claimed violations of the right to
free speech protected by the First Amendment to the Fed-
eral Constitution, and Count 6 alleged that the impairment
of the right to distribute written materials was a violation
of the right to a free press.4 The complaint also argued that
the statutory consent requirement was invalid as a prior re-
straint tantamount to a licensing requirement, that the stat-
ute was vague and overbroad, and that it was a content-
based restriction that was not justified by a compelling state
interest. Finally, petitioners contended that § 18–9–122(3)
was content based for two reasons: The content of the speech
must be examined to determine whether it “constitutes oral
protest, counseling and education”; and that it is “viewpoint-
based” because the statute “makes it likely that prosecution
will occur based on displeasure with the position taken by
the speaker.” 5
In their answers to the complaint, respondents admitted
virtually all of the factual allegations. They filed a motion
for summary judgment supported by affidavits, which in-
cluded a transcript of the hearings that preceded the enact-
ment of the statute. It is apparent from the testimony of
both supporters and opponents of the statute that demon-
strations in front of abortion clinics impeded access to those
clinics and were often confrontational.6 Indeed, it was a
common practice to provide escorts for persons entering and
leaving the clinics both to ensure their access and to provide
3 Id., at 18–19.
4 Counts 1 through 4 alleged violations of the Colorado Constitution,
Count 7 alleged a violation of the right to peaceable assembly, and Counts
8 and 9 alleged violations of the Due Process and Equal Protection Clauses
of the Fourteenth Amendment.
5 Id., at 25–26.
6 The legislature also heard testimony that other types of protests at
medical facilities, such as those involving animal rights, create difficulties
for persons attempting to enter the facility. App. to Pet. for Cert. 40a.

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
710 HILL v. COLORADO
Opinion of the Court
protection from aggressive counselors who sometimes used
strong and abusive language in face-to-face encounters.7
There was also evidence that emotional confrontations may
adversely affect a patient’s medical care.8 There was no evi-
dence, however, that the “sidewalk counseling” conducted by
petitioners in this case was ever abusive or confrontational.
The District Judge granted respondents’ motion and dis-
missed the complaint. Because the statute had not actually
been enforced against petitioners, he found that they only
raised a facial challenge.9 He agreed with petitioners that
their sidewalk counseling was conducted in a “quintessen-
tial” public forum, but held that the statute permissibly im-
posed content-neutral “time, place, and manner restrictions”
that were narrowly tailored to serve a significant govern-
ment interest, and left open ample alternative channels of
communication.10 Relying on Ward v. Rock Against Rac-
7 A nurse practitioner testified that some antiabortion protesters “ ‘yell,
thrust signs in faces, and generally try to upset the patient as much as
possible, which makes it much more difficult for us to provide care in a
scary situation anyway.’ ” Hill v. Thomas, 973 P. 2d 1246, 1250 (Colo.
1999). A volunteer who escorts patients into and out of clinics testified
that the protesters “ ‘are flashing their bloody fetus signs. They are yell-
ing, “you are killing your baby.” [T]hey are talking about fetuses and
babies being dismembered, arms and legs torn off . . . a mother and her
daughter . . . were immediately surrounded and yelled at and screamed
at . . . .’ ” Id., at 1250–1251.
8 A witness representing the Colorado Coalition of Persons with Disabil-
ities, who had had 35 separate surgeries in the preceding eight years,
testified: “Each and every one is tough. And the night before and the
morning of any medical procedure that’s invasive is the toughest part of
all. You don’t need additional stressors [sic] placed on you while you’re
trying to do it. . . . We all know about our own personal faith. You don’t
need somebody standing in your face screaming at you when you are going
in for what may be one of the most traumatic experiences of your life
anyway. Why make it more traumatic?” App. 108.
9 App. to Pet. for Cert. 31a.
10 Id., at 32a.

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
711 Cite as: 530 U. S. 703 (2000)
Opinion of the Court
ism, 491 U. S. 781, 791 (1989), he noted that “ ‘[t]he principal
inquiry in determining content neutrality . . . is whether the
government has adopted a regulation of speech because of
disagreement with the message it conveys.’ ” He found that
the text of the statute “applies to all viewpoints, rather
[than] only certain viewpoints,” and that the legislative his-
tory made it clear that the State had not favored one view-
point over another.11 He concluded that the “free zone” cre-
ated by the statute was narrowly tailored under the test
announced in Ward, and that it left open ample alternative
means of communication because signs and leaflets may be
seen, and speech may be heard, at a distance of eight feet.
Noting that petitioners had stated in their affidavits that
they intended to “continue with their protected First
Amendment activities,” he rejected their overbreadth chal-
lenge because he believed “the statute will do little to deter
protected speech.” 12 Finally, he concluded that the statute
was not vague and that the prior restraint doctrine was inap-
plicable because the “statute requires no license or permit
scheme prior to speaking.” 13
The Colorado Court of Appeals affirmed for reasons simi-
lar to those given by the District Judge. It noted that even
though only seven percent of the patients receiving services
at one of the clinics were there to obtain abortion services,
all 60,000 of that clinic’s patients “were subjected to the same
treatment by the protesters.” 14 It also reviewed our then-
recent decision in Madsen v. Women’s Health Center, Inc.,
512 U. S. 753 (1994), and concluded that Madsen’s reason-
ing supported the conclusion that the statute was content
neutral.15
11 Id., at 32a–33a.
12 Id., at 35a.
13 Id., at 36a.
14 Hill v. Lakewood, 911 P. 2d 670, 672 (1995).
15 Id., at 673–674.

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
712 HILL v. COLORADO
Opinion of the Court
In 1996, the Supreme Court of Colorado denied review,16
and petitioners sought a writ of certiorari from our Court.
While their petition was pending, we decided Schenck v.
Pro-Choice Network of Western N. Y., 519 U. S. 357 (1997).
Because we held in that case that an injunctive provision
creating a speech-free “floating buffer zone” with a 15-foot
radius violates the First Amendment, we granted certiorari,
vacated the judgment of the Colorado Court of Appeals, and
remanded the case to that court for further consideration in
light of Schenck. 519 U. S. 1145 (1997).
On remand the Court of Appeals reinstated its judgment
upholding the statute. It noted that in Schenck we had
“expressly declined to hold that a valid governmental inter-
est in ensuring ingress and egress to a medical clinic may
never be sufficient to justify a zone of separation between
individuals entering and leaving the premises and protest-
ers” and that our opinion in Ward provided the standard for
assessing the validity of a content-neutral, generally applica-
ble statute. Under that standard, even though a 15-foot
floating buffer might preclude protesters from expressing
their views from a normal conversational distance, a lesser
distance of eight feet was sufficient to protect such speech
on a public sidewalk.17
The Colorado Supreme Court granted certiorari and af-
firmed the judgment of the Court of Appeals. In a thorough
opinion, the court began by commenting on certain matters
that were not in dispute. It reviewed the history of the
statute in detail and concluded that it was intended to pro-
tect both the “citizen’s ‘right to protest’ or counsel against
certain medical procedures” and also to ensure “that govern-
ment protects a ‘person’s right to obtain medical counseling
and treatment.’ ” 18 It noted that both the trial court and
the Court of Appeals had concluded that the statute was con-
16 App. to Pet. for Cert. 46a.
17 Hill v. Lakewood, 949 P. 2d 107, 109 (1997).
18 973 P. 2d, at 1249 (quoting § 18–9–122(1)).

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
713 Cite as: 530 U. S. 703 (2000)
Opinion of the Court
tent neutral, that petitioners no longer contended otherwise,
and that they agreed that the question for decision was
whether the statute was a valid time, place, and manner re-
striction under the test announced in Ward.19
The court identified two important distinctions between
this case and Schenck. First, Schenck involved a judicial
decree and therefore, as explained in Madsen, posed “greater
risks of censorship and discriminatory application than do
general ordinances.” 20 Second, unlike the floating buffer
zone in Schenck, which would require a protester either to
stop talking or to get off the sidewalk whenever a patient
came within 15 feet, the “knowingly approaches” require-
ment in the Colorado statute allows a protester to stand still
while a person moving toward or away from a health care
facility walks past her.21 Applying the test in Ward, the
court concluded that the statute was narrowly drawn to fur-
ther a significant government interest. It rejected petition-
ers’ contention that it was not narrow enough because it ap-
plied to all health care facilities in the State. In the court’s
view, the comprehensive coverage of the statute was a factor
that supported its content neutrality. Moreover, the fact
that the statute was enacted, in part, because the General
19 “[P]etitioners concede that the test for a time, place, and manner re-
striction is the appropriate 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 test announced
in Ward, the ‘floating buffer zone’ created by section 18–9–122(3) is not
narrowly tailored to serve a significant government interest and that sec-
tion 18–9–122(3) does not provide for ample alternative channels of com-
munication. We disagree.” Id., at 1251.
“We note that both the trial court and the court of appeals found that
section 18–9–122(3) is content-neutral, and that petitioners do not contend
otherwise in this appeal.” Id., at 1256.
20 Madsen v. Women’s Health Center, Inc., 512 U. S. 753, 764 (1994).
21 973 P. 2d, at 1257–1258 (“What renders this statute less restrictive
than . . . the injunction in Schenck . . . is that under section 18–9–122(3),
there is no duty to withdraw placed upon petitioners even within the
eight-foot limited floating buffer zone”).

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
714 HILL v. COLORADO
Opinion of the Court
Assembly “was concerned with the safety of individuals
seeking wide-ranging health care services, not merely abor-
tion counseling and procedures,” added to the substantiality
of the government interest that it served.22 Finally, it con-
cluded that ample alternative channels remain open because
petitioners, and
“indeed, everyone, are still able to protest, counsel,
shout, implore, dissuade, persuade, educate, inform, and
distribute literature regarding abortion. They just can-
not knowingly approach within eight feet of an individ-
ual who is within 100 feet of a health care facility en-
trance without that individual’s consent. As articulated
so well . . . in Ward, [‘the fact that § 18–9–122(3)] may
reduce to some degree the potential audience for [peti-
tioners’] speech is of no consequence, for there has been
no showing that the remaining avenues of communica-
tion are inadequate.’ ” 23
Because of the importance of the case, we granted certio-
rari. 527 U. S. 1068 (1999). We now affirm.
II
Before confronting the question whether the Colorado
statute reflects an acceptable balance between the constitu-
tionally protected rights of law-abiding speakers and the in-
terests of unwilling listeners, it is appropriate to examine
the competing interests at stake. A brief review of both
sides of the dispute reveals that each has legitimate and im-
portant concerns.
The First Amendment interests of petitioners are clear
and undisputed. As a preface to their legal challenge, peti-
tioners emphasize three propositions. First, they accu-
22 Id., at 1258.
23 Ibid. (quoting Ward v. Rock Against Racism, 491 U. S. 781, 802
(1989)).

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
715 Cite as: 530 U. S. 703 (2000)
Opinion of the Court
rately explain that the areas protected by the statute encom-
pass all the public ways within 100 feet of every entrance to
every health care facility everywhere in the State of Colo-
rado. There is no disagreement on this point, even though
the legislative history makes it clear that its enactment was
primarily motivated by activities in the vicinity of abortion
clinics. Second, they correctly state that their leafletting,
sign displays, and oral communications are protected by the
First Amendment. The fact that the messages conveyed by
those communications may be offensive to their recipients
does not deprive them of constitutional protection. Third,
the public sidewalks, streets, and ways affected by the stat-
ute are “quintessential” public forums for free speech. Fi-
nally, although there is debate about the magnitude of the
statutory impediment to their ability to communicate effec-
tively with persons in the regulated zones, that ability, par-
ticularly the ability to distribute leaflets, is unquestionably
lessened by this statute.
On the other hand, petitioners do not challenge the legiti-
macy of the state interests that the statute is intended to
serve. It is a traditional exercise of the States’ “police pow-
ers to protect the health and safety of their citizens.” Med-
tronic, Inc. v. Lohr, 518 U. S. 470, 475 (1996). That interest
may justify a special focus on unimpeded access to health
care facilities and the avoidance of potential trauma to pa-
tients associated with confrontational protests. See Mad-
sen v. Women’s Health Center, Inc., 512 U. S. 753 (1994);
NLRB v. Baptist Hospital, Inc., 442 U. S. 773 (1979). More-
over, as with every exercise of a State’s police powers, rules
that provide specific guidance to enforcement authorities
serve the interest in evenhanded application of the law.
Whether or not those interests justify the particular regula-
tion at issue, they are unquestionably legitimate.
It is also important when conducting this interest analysis
to recognize the significant difference between state restric-

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
716 HILL v. COLORADO
Opinion of the Court
tions on a speaker’s right to address a willing audience and
those that protect listeners from unwanted communication.
This statute deals only with the latter.
The right to free speech, of course, includes the right to
attempt to persuade others to change their views, and may
not be curtailed simply because the speaker’s message may
be offensive to his audience. But the protection afforded
to offensive messages does not always embrace offensive
speech that is so intrusive that the unwilling audience cannot
avoid it. Frisby v. Schultz, 487 U. S. 474, 487 (1988). In-
deed, “[i]t may not be the content of the speech, as much as
the deliberate ‘verbal or visual assault,’ that justifies pro-
scription.” Erznoznik v. Jacksonville, 422 U. S. 205, 210–
211, n. 6 (1975) (citation and brackets omitted). Even in a
public forum, one of the reasons we tolerate a protester’s
right to wear a jacket expressing his opposition to govern-
ment policy in vulgar language is because offended viewers
can “effectively avoid further bombardment of their sensibili-
ties simply by averting their eyes.” Cohen v. California,
403 U. S. 15, 21 (1971).
The recognizable privacy interest in avoiding unwanted
communication varies widely in different settings. It is far
less important when “strolling through Central Park” than
when “in the confines of one’s own home,” or when persons
are “powerless to avoid” it. Id., at 21–22. But even the
interest in preserving tranquility in “the Sheep Meadow”
portion of Central Park may at times justify official re-
straints on offensive musical expression. Ward, 491 U. S.,
at 784, 792. More specific to the facts of this case, we have
recognized that “[t]he First Amendment does not demand
that patients at a medical facility undertake Herculean ef-
forts to escape the cacophony of political protests.” Mad-
sen, 512 U. S., at 772–773.
The unwilling listener’s interest in avoiding unwanted
communication has been repeatedly identified in our cases.
It is an aspect of the broader “right to be let alone” that one

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
717 Cite as: 530 U. S. 703 (2000)
Opinion of the Court
of our wisest Justices characterized as “the most comprehen-
sive of rights and the right most valued by civilized men.”
Olmstead v. United States, 277 U. S. 438, 478 (1928)
(Brandeis, J., dissenting).24 The right to avoid unwelcome
speech has special force in the privacy of the home, Rowan v.
Post Office Dept., 397 U. S. 728, 738 (1970), and its immediate
surroundings, Frisby v. Schultz, 487 U. S., at 485, but can
also be protected in confrontational settings. Thus, this
comment on the right to free passage in going to and from
work applies equally—or perhaps with greater force—to ac-
cess to a medical facility:
“How far may men go in persuasion and communica-
tion and still not violate the right of those whom they
would influence? In going to and from work, men have
a right to as free a passage without obstruction as the
streets afford, consistent with the right of others to
enjoy the same privilege. We are a social people and
the accosting by one of another in an inoffensive way
and an offer by one to communicate and discuss informa-
tion with a view to influencing the other’s action are
not regarded as aggression or a violation of that other’s
rights. If, however, the offer is declined, as it may
rightfully be, then persistence, importunity, following
and dogging become unjustifiable annoyance and ob-
struction which is likely soon to savor of intimidation.
From all of this the person sought to be influenced has
a right to be free, and his employer has a right to have
him free.” American Steel Foundries v. Tri-City Cen-
tral Trades Council, 257 U. S. 184, 204 (1921).
We have since recognized that the “right to persuade” dis-
cussed in that case is protected by the First Amendment,
Thornhill v. Alabama, 310 U. S. 88 (1940), as well as by fed-
24 This common-law “right” is more accurately characterized as an “in-
terest” that States can choose to protect in certain situations. See Katz
v. United States, 389 U. S. 347, 350–351 (1967).

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
718 HILL v. COLORADO
Opinion of the Court
eral statutes. Yet we have continued to maintain that “no
one has a right to press even ‘good’ ideas on an unwilling
recipient.” Rowan, 397 U. S., at 738. None of our decisions
has minimized the enduring importance of “a right to be
free” from persistent “importunity, following and dogging”
after an offer to communicate has been declined. While the
freedom to communicate is substantial, “the right of every
person ‘to be let alone’ must be placed in the scales with the
right of others to communicate.” Id., at 736. It is that
right, as well as the right of “passage without obstruction,”
that the Colorado statute legitimately seeks to protect. The
restrictions imposed by the Colorado statute only apply to
communications that interfere with these rights rather than
those that involve willing listeners.
The dissenters argue that we depart from precedent by
recognizing a “right to avoid unpopular speech in a public
forum,” post, at 771 (opinion of Kennedy, J.); see also post,
at 749–754 (opinion of Scalia, J.). We, of course, are not ad-
dressing whether there is such a “right.” Rather, we are
merely noting that our cases have repeatedly recognized the
interests of unwilling listeners in situations where “the degree
of captivity makes it impractical for the unwilling viewer or
auditor to avoid exposure. See Lehman v. [Shaker Heights,
418 U. S. 298 (1974)].” Erznoznik, 422 U. S., at 209. We
explained in Erznoznik that “[t]his Court has considered
analogous issues—pitting the First Amendment rights of
speakers against the privacy rights of those who may be un-
willing viewers or auditors—in a variety of contexts. Such
cases demand delicate balancing.” Id., at 208 (citations
omitted). The dissenters, however, appear to consider rec-
ognizing any of the interests of unwilling listeners—let alone
balancing those interests against the rights of speakers—to
be unconstitutional. Our cases do not support this view.25
25 Furthermore, whether there is a “right” to avoid unwelcome expres-
sion is not before us in this case. The purpose of the Colorado statute is
not to protect a potential listener from hearing a particular message. It

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
719 Cite as: 530 U. S. 703 (2000)
Opinion of the Court
III
All four of the state court opinions upholding the validity
of this statute concluded that it is a content-neutral time,
place, and manner regulation. Moreover, they all found sup-
port for their analysis in Ward v. Rock Against Racism, 491
U. S. 781 (1989).26 It is therefore appropriate to comment
on the “content neutrality” of the statute. As we explained
in Ward:
“The principal inquiry in determining content neutral-
ity, in speech cases generally and in time, place, or man-
ner cases in particular, is whether the government has
adopted a regulation of speech because of disagreement
with the message it conveys.” Id., at 791.
The Colorado statute passes that test for three independent
reasons. First, it is not a “regulation of speech.” Rather,
it is a regulation of the places where some speech may occur.
Second, it was not adopted “because of disagreement with
the message it conveys.” This conclusion is supported not
just by the Colorado courts’ interpretation of legislative his-
tory, but more importantly by the State Supreme Court’s
unequivocal holding that the statute’s “restrictions apply
equally to all demonstrators, regardless of viewpoint, and
the statutory language makes no reference to the content
of the speech.” 27 Third, the State’s interests in protecting
is to protect those who seek medical treatment from the potential physical
and emotional harm suffered when an unwelcome individual delivers a
message (whatever its content) by physically approaching an individual at
close range, i. e., within eight feet. In offering protection from that harm,
while maintaining free access to health clinics, the State pursues interests
constitutionally distinct from the freedom from unpopular speech to which
Justice Kennedy refers.
26 See App. to Pet. for Cert. 32a (Colo. Dist. Ct.); 911 P. 2d, at 673–674
(Colo. Ct. App.); 949 P. 2d, at 109 (Colo. Ct. App.); 973 P. 2d, at 1256
(Colo. Sup. Ct.).
27 Ibid. This observation in Madsen is equally applicable here: “There
is no suggestion in this record that Florida law would not equally restrain
similar conduct directed at a target having nothing to do with abortion;

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
720 HILL v. COLORADO
Opinion of the Court
access and privacy, and providing the police with clear guide-
lines, are unrelated to the content of the demonstrators’
speech. As we have repeatedly explained, government reg-
ulation of expressive activity is “content neutral” if it is justi-
fied without reference to the content of regulated speech.
See ibid. and cases cited.
Petitioners nevertheless argue that the statute is not con-
tent neutral insofar as it applies to some oral communication.
The statute applies to all persons who “knowingly approach”
within eight feet of another for the purpose of leafletting or
displaying signs; for such persons, the content of their oral
statements is irrelevant. With respect to persons who are
neither leafletters nor sign carriers, however, the statute
does not apply unless their approach is “for the purpose
of . . . engaging in oral protest, education, or counseling.”
Petitioners contend that an individual near a health care fa-
cility who knowingly approaches a pedestrian to say “good
morning” or to randomly recite lines from a novel would not
be subject to the statute’s restrictions.28 Because the con-
tent of the oral statements made by an approaching speaker
must sometimes be examined to determine whether the
knowing approach is covered by the statute, petitioners
argue that the law is “content-based” under our reasoning in
Carey v. Brown, 447 U. S. 455, 462 (1980).
Although this theory was identified in the complaint, it is
not mentioned in any of the four Colorado opinions, all of
which concluded that the statute was content neutral. For
that reason, it is likely that the argument has been waived.
Additionally, the Colorado attorney general argues that we
should assume that the state courts tacitly construed the
terms “protest, education, or counseling” to encompass “all
none of the restrictions imposed by the court were directed at the contents
of petitioner’s message.” 512 U. S., at 762–763.
28 See Brief for Petitioners 32, n. 23.

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
721 Cite as: 530 U. S. 703 (2000)
Opinion of the Court
communication.” 29 Instead of relying on those arguments,
however, we shall explain why petitioners’ contention is
without merit and why their reliance on Carey v. Brown is
misplaced.
It is common in the law to examine the content of a com-
munication to determine the speaker’s purpose. Whether
a particular statement constitutes a threat, blackmail, an
agreement to fix prices, a copyright violation, a public offer-
ing of securities, or an offer to sell goods often depends on
the precise content of the statement. We have never held,
or suggested, that it is improper to look at the content of an
oral or written statement in order to determine whether a
rule of law applies to a course of conduct. With respect to
the conduct that is the focus of the Colorado statute, it is
unlikely that there would often be any need to know exactly
what words were spoken in order to determine whether
“sidewalk counselors” are engaging in “oral protest, edu-
cation, or counseling” rather than pure social or random
conversation.
Theoretically, of course, cases may arise in which it is nec-
essary to review the content of the statements made by a
person approaching within eight feet of an unwilling listener
to determine whether the approach is covered by the statute.
But that review need be no more extensive than a determi-
nation whether a general prohibition of “picketing” or “dem-
onstrating” applies to innocuous speech. The regulation of
such expressive activities, by definition, does not cover so-
cial, random, or other everyday communications. See Web-
ster’s Third New International Dictionary 600, 1710 (1993)
(defining “demonstrate” as “to make a public display of senti-
ment for or against a person or cause” and “picket” as an
29 “The Colorado Supreme Court’s ruling confirms that the statutory lan-
guage should be interpreted to refer to approaches for all communication,
as Colorado has argued since the beginning of this case.” Brief for
Respondents 21.

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
722 HILL v. COLORADO
Opinion of the Court
effort “to persuade or otherwise influence”). Nevertheless,
we have never suggested that the kind of cursory examina-
tion that might be required to exclude casual conversation
from the coverage of a regulation of picketing would be
problematic.30
In Carey v. Brown we examined a general prohibition of
peaceful picketing that contained an exemption for picketing
a place of employment involved in a labor dispute. We con-
cluded that this statute violated the Equal Protection Clause
of the Fourteenth Amendment, because it discriminated
between lawful and unlawful conduct based on the content
of the picketers’ messages. That discrimination was im-
permissible because it accorded preferential treatment to
expression concerning one particular subject matter—labor
disputes—while prohibiting discussion of all other issues.
Although our opinion stressed that “it is the content of the
speech that determines whether it is within or without the
statute’s blunt prohibition,” 447 U. S., at 462, we appended a
footnote to that sentence explaining that it was the fact that
the statute placed a prohibition on discussion of particular
topics, while others were allowed, that was constitutionally
30 In United States v. Grace, 461 U. S. 171 (1983), after examining a fed-
eral statute that was “[i]nterpreted and applied” as “prohibit[ing] picket-
ing and leafletting, but not other expressive conduct” within the Supreme
Court building and grounds, we concluded that “it is clear that the prohibi-
tion is facially content-neutral.” Id., at 181, n. 10. Similarly, we have
recognized that statutes can equally restrict all “picketing.” See, e. g.,
Police Dept. of Chicago v. Mosley, 408 U. S. 92, 98 (1972) (“This is not
to say that all picketing must always be allowed. We have continually
recognized that reasonable ‘time, place and manner’ regulations of picket-
ing may be necessary to further significant governmental interests”), and
cases cited. See also Frisby v. Schultz, 487 U. S. 474 (1988) (upholding a
general ban on residential picketing). And our decisions in Schenck and
Madsen both upheld injunctions that also prohibited “demonstrating.”
Schenck v. Pro-Choice Network of Western N. Y., 519 U. S. 357, 366–367,
n. 3 (1997); Madsen, 512 U. S., at 759.

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
723 Cite as: 530 U. S. 703 (2000)
Opinion of the Court
repugnant.31 Regulation of the subject matter of messages,
though not as obnoxious as viewpoint-based regulation, is
also an objectionable form of content-based regulation.
Consolidated Edison Co. of N. Y. v. Public Serv. Comm’n of
N. Y., 447 U. S. 530, 538 (1980).
The Colorado statute’s regulation of the location of pro-
tests, education, and counseling is easily distinguishable from
Carey. It places no restrictions on—and clearly does not
prohibit—either a particular viewpoint or any subject mat-
ter that may be discussed by a speaker. Rather, it simply
establishes a minor place restriction on an extremely broad
category of communications with unwilling listeners. In-
stead of drawing distinctions based on the subject that the
approaching speaker may wish to address, the statute ap-
plies equally to used car salesmen, animal rights activists,
fundraisers, environmentalists, and missionaries. Each can
attempt to educate unwilling listeners on any subject, but
without consent may not approach within eight feet to do so.
The dissenters, nonetheless, contend that the statute is not
“content neutral.” As Justice Scalia points out, the vice
of content-based legislation in this context is that “it lends
itself ” to being “ ‘used for invidious thought-control pur-
poses.’ ” Post, at 743. But a statute that restricts certain
categories of speech only lends itself to invidious use if there
is a significant number of communications, raising the same
problem that the statute was enacted to solve, that fall out-
side the statute’s scope, while others fall inside. E. g., Po-
lice Dept. of Chicago v. Mosley, 408 U. S. 92 (1972). Here,
31 “It is, of course, no answer to assert that the Illinois statute does not
discriminate on the basis of the speaker’s viewpoint, but only on the basis
of the subject matter of his message. ‘The First Amendment’s hostility
to content-based regulation extends not only to restrictions on particular
viewpoints, but also to prohibition of public discussion of an entire topic.’ ”
Carey v. Brown, 447 U. S. 455, 462, n. 6 (1980) (quoting Consolidated Edi-
son Co. of N. Y. v. Public Serv. Comm’n of N. Y., 447 U. S. 530, 537 (1980)).

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
724 HILL v. COLORADO
Opinion of the Court
the statute’s restriction seeks to protect those who enter
a health care facility from the harassment, the nuisance,
the persistent importuning, the following, the dogging, and
the implied threat of physical touching that can accompany
an unwelcome approach within eight feet of a patient by
a person wishing to argue vociferously face-to-face and
perhaps thrust an undesired handbill upon her. The statu-
tory phrases, “oral protest, education, or counseling,” distin-
guish speech activities likely to have those consequences
from speech activities (such as Justice Scalia’s “happy
speech,” post, at 743) that are most unlikely to have those
consequences. The statute does not distinguish among
speech instances that are similarly likely to raise the legiti-
mate concerns to which it responds. Hence, the statute can-
not be struck down for failure to maintain “content neutral-
ity,” or for “underbreadth.”
Also flawed is Justice Kennedy’s theory that a statute
restricting speech becomes unconstitutionally content based
because of its application “to the specific locations where
[that] discourse occurs,” post, at 767. A statute prohibiting
solicitation in airports that was motivated by the aggressive
approaches of Hare Krishnas does not become content based
solely because its application is confined to airports—“the
specific locations where [that] discourse occurs.” A statute
making it a misdemeanor to sit at a lunch counter for an hour
without ordering any food would also not be “content based”
even if it were enacted by a racist legislature that hated civil
rights protesters (although it might raise separate questions
about the State’s legitimate interest at issue). See ibid.
Similarly, the contention that a statute is “viewpoint
based” simply because its enactment was motivated by the
conduct of the partisans on one side of a debate is without
support. Post, at 768–769 (Kennedy, J., dissenting). The
antipicketing ordinance upheld in Frisby v. Schultz, 487 U. S.
474 (1988), a decision in which both of today’s dissenters

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
725 Cite as: 530 U. S. 703 (2000)
Opinion of the Court
joined, was obviously enacted in response to the activities of
antiabortion protesters who wanted to protest at the home
of a particular doctor to persuade him and others that they
viewed his practice of performing abortions to be murder.
We nonetheless summarily concluded that the statute was
content neutral. Id., at 482.
Justice Kennedy further suggests that a speaker who
approaches a patient and “chants in praise of the Supreme
Court and its abortion decisions,” or hands out a simple
leaflet saying, “ ‘We are for abortion rights,’ ” would not be
subject to the statute. Post, at 769. But what reason is
there to believe the statute would not apply to that indi-
vidual? She would be engaged in “oral protest” and “educa-
tion,” just as the abortion opponent who expresses her view
that the Supreme Court decisions were incorrect would be
“protest[ing]” the decisions and “educat[ing]” the patient on
the issue. The close approach of the latter, more hostile,
demonstrator may be more likely to risk being perceived
as a form of physical harassment; but the relevant First
Amendment point is that the statute would prevent both
speakers, unless welcome, from entering the 8-foot zone.
The statute is not limited to those who oppose abortion.
It applies to the demonstrator in Justice Kennedy’s ex-
ample. It applies to all “protest,” to all “counseling,” and
to all demonstrators whether or not the demonstration con-
cerns abortion, and whether they oppose or support the
woman who has made an abortion decision. That is the level
of neutrality that the Constitution demands.
The Colorado courts correctly concluded that § 18–9–
122(3) is content neutral.
IV
We also agree with the state courts’ conclusion that § 18–
9–122(3) is a valid time, place, and manner regulation under
the test applied in Ward because it is “narrowly tailored.”
We already have noted that the statute serves governmental
interests that are significant and legitimate and that the re-

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
726 HILL v. COLORADO
Opinion of the Court
strictions are content neutral. We are likewise persuaded
that the statute is “narrowly tailored” to serve those inter-
ests and that it leaves open ample alternative channels for
communication. As we have emphasized on more than one
occasion, when a content-neutral regulation does not entirely
foreclose any means of communication, it may satisfy the tai-
loring requirement even though it is not the least restrictive
or least intrusive means of serving the statutory goal.32
The three types of communication regulated by § 18–9–
122(3) are the display of signs, leafletting, and oral speech.
The 8-foot separation between the speaker and the audience
should not have any adverse impact on the readers’ ability
to read signs displayed by demonstrators. In fact, the sepa-
ration might actually aid the pedestrians’ ability to see the
signs by preventing others from surrounding them and im-
peding their view. Furthermore, the statute places no limi-
tations on the number, size, text, or images of the placards.
And, as with all of the restrictions, the 8-foot zone does not
affect demonstrators with signs who remain in place.
With respect to oral statements, the distance certainly can
make it more difficult for a speaker to be heard, particularly
if the level of background noise is high and other speakers
are competing for the pedestrian’s attention. Notably, the
statute places no limitation on the number of speakers or
the noise level, including the use of amplification equipment,
although we have upheld such restrictions in past cases.
See, e. g., Madsen, 512 U. S., at 772–773. More significantly,
this statute does not suffer from the failings that compelled
us to reject the “floating buffer zone” in Schenck, 519 U. S.,
at 377. Unlike the 15-foot zone in Schenck, this 8-foot zone
allows the speaker to communicate at a “normal conversa-
32 “Lest any confusion on the point remain, we reaffirm today that a
regulation of the time, place, or manner of protected speech must be nar-
rowly tailored to serve the government’s legitimate, content-neutral inter-
ests but that it need not be the least restrictive or least intrusive means
of doing so.” Ward v. Rock Against Racism, 491 U. S., at 798.

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
727 Cite as: 530 U. S. 703 (2000)
Opinion of the Court
tional distance.” Ibid. Additionally, the statute allows the
speaker to remain in one place, and other individuals can
pass within eight feet of the protester without causing the
protester to violate the statute. Finally, here there is a
“knowing” requirement that protects speakers “who thought
they were keeping pace with the targeted individual” at the
proscribed distance from inadvertently violating the statute.
Id., at 378, n. 9.
It is also not clear that the statute’s restrictions will nec-
essarily impede, rather than assist, the speakers’ efforts to
communicate their messages. The statute might encourage
the most aggressive and vociferous protesters to moderate
their confrontational and harassing conduct, and thereby
make it easier for thoughtful and law-abiding sidewalk coun-
selors like petitioners to make themselves heard. But
whether or not the 8-foot interval is the best possible accom-
modation of the competing interests at stake, we must accord
a measure of deference to the judgment of the Colorado Leg-
islature. See Madsen, 512 U. S., at 769–770. Once again, it
is worth reiterating that only attempts to address unwilling
listeners are affected.
The burden on the ability to distribute handbills is more
serious because it seems possible that an 8-foot interval
could hinder the ability of a leafletter to deliver handbills to
some unwilling recipients. The statute does not, however,
prevent a leafletter from simply standing near the path of
oncoming pedestrians and proffering his or her material,
which the pedestrians can easily accept.33 And, as in all
leafletting situations, pedestrians continue to be free to
decline the tender. In Heffron v. International Soc. for
33 Justice Kennedy states that the statute “forecloses peaceful leaf-
letting,” post, at 780. This is not correct. All of the cases he cites in
support of his argument involve a total ban on a medium of expression to
both willing and unwilling recipients, see post, at 780–787. Nothing in
this statute, however, prevents persons from proffering their literature;
they simply cannot approach within eight feet of an unwilling recipient.

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
728 HILL v. COLORADO
Opinion of the Court
Krishna Consciousness, Inc., 452 U. S. 640 (1981), we upheld
a state fair regulation that required a religious organization
desiring to distribute literature to conduct that activity only
at an assigned location—in that case booths. As in this case,
the regulation primarily burdened the distributors’ ability
to communicate with unwilling readers. We concluded our
opinion by emphasizing that the First Amendment protects
the right of every citizen to “ ‘reach the minds of willing lis-
teners and to do so there must be opportunity to win their
attention.’ Kovacs v. Cooper, 336 U. S. 77, 87 (1949).” Id.,
at 655. The Colorado statute adequately protects those
rights.
Finally, in determining whether a statute is narrowly tai-
lored, we have noted that “[w]e must, of course, take account
of the place to which the regulations apply in determining
whether these restrictions burden more speech than neces-
sary.” Madsen, 512 U. S., at 772. States and municipalities
plainly have a substantial interest in controlling the activity
around certain public and private places. For example, we
have recognized the special governmental interests sur-
rounding schools,34 courthouses,35 polling places,36 and pri-
vate homes.37 Additionally, we previously have noted the
unique concerns that surround health care facilities:
“ ‘Hospitals, after all, are not factories or mines or as-
sembly plants. They are hospitals, where human ail-
ments are treated, where patients and relatives alike
often are under emotional strain and worry, where
pleasing and comforting patients are principal facets of
the day’s activity, and where the patient and [her]
family . . . need a restful, uncluttered, relaxing, and
34 See Grayned v. City of Rockford, 408 U. S. 104, 119 (1972).
35 See Cox v. Louisiana, 379 U. S. 559, 562 (1965).
36 See Burson v. Freeman, 504 U. S. 191, 206–208 (1992) (plurality opin-
ion); id., at 214–216 (Scalia, J., concurring in judgment).
37 See Frisby v. Schultz, 487 U. S., at 484–485.

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
729 Cite as: 530 U. S. 703 (2000)
Opinion of the Court
helpful atmosphere.’ ” Ibid. (quoting NLRB v. Baptist
Hospital, Inc., 442 U. S., at 783–784, n. 12).
Persons who are attempting to enter health care facili-
ties—for any purpose—are often in particularly vulnerable
physical and emotional conditions. The State of Colorado
has responded to its substantial and legitimate interest in
protecting these persons from unwanted encounters, con-
frontations, and even assaults by enacting an exceedingly
modest restriction on the speakers’ ability to approach.
Justice Kennedy, however, argues that the statute
leaves petitioners without adequate means of communica-
tion. Post, at 780. This is a considerable overstatement.
The statute seeks to protect those who wish to enter health
care facilities, many of whom may be under special physical
or emotional stress, from close physical approaches by dem-
onstrators. In doing so, the statute takes a prophylactic
approach; it forbids all unwelcome demonstrators to come
closer than eight feet. We recognize that by doing so, it will
sometimes inhibit a demonstrator whose approach in fact
would have proved harmless. But the statute’s prophylactic
aspect is justified by the great difficulty of protecting, say, a
pregnant woman from physical harassment with legal rules
that focus exclusively on the individual impact of each in-
stance of behavior, demanding in each case an accurate char-
acterization (as harassing or not harassing) of each individual
movement within the 8-foot boundary. Such individualized
characterization of each individual movement is often diffi-
cult to make accurately. A bright-line prophylactic rule
may be the best way to provide protection, and, at the same
time, by offering clear guidance and avoiding subjectivity, to
protect speech itself.
As we explained above, the 8-foot restriction on an un-
wanted physical approach leaves ample room to communicate
a message through speech. Signs, pictures, and voice itself
can cross an 8-foot gap with ease. If the clinics in Colorado
resemble those in Schenck, demonstrators with leaflets

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
730 HILL v. COLORADO
Opinion of the Court
might easily stand on the sidewalk at entrances (without
blocking the entrance) and, without physically approaching
those who are entering the clinic, peacefully hand them
leaflets as they pass by.
Finally, the 8-foot restriction occurs only within 100 feet
of a health care facility—the place where the restriction is
most needed. The restriction interferes far less with a
speaker’s ability to communicate than did the total ban on
picketing on the sidewalk outside a residence (upheld in
Frisby v. Schultz, 487 U. S. 474 (1988)), the restriction of
leafletting at a fairground to a booth (upheld in Heffron v.
International Soc. for Krishna Consciousness, Inc., 452
U. S. 640 (1981)), or the “silence” often required outside a
hospital. Special problems that may arise where clinics
have particularly wide entrances or are situated within
multipurpose office buildings may be worked out as the stat-
ute is applied.
This restriction is thus reasonable and narrowly tailored.
V
Petitioners argue that § 18–9–122(3) is invalid because it is
“overbroad.” There are two parts to petitioners’ “over-
breadth” argument. On the one hand, they argue that the
statute is too broad because it protects too many people in
too many places, rather than just the patients at the facilities
where confrontational speech had occurred. Similarly, it
burdens all speakers, rather than just persons with a history
of bad conduct.38 On the other hand, petitioners also
contend that the statute is overbroad because it “bans vir-
tually the universe of protected expression, including dis-
plays of signs, distribution of literature, and mere verbal
statements.” 39
The first part of the argument does not identify a constitu-
tional defect. The fact that the coverage of a statute is
38 Brief for Petitioners 22–23.
39 Id., at 25.

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
731 Cite as: 530 U. S. 703 (2000)
Opinion of the Court
broader than the specific concern that led to its enactment is
of no constitutional significance. What is important is that
all persons entering or leaving health care facilities share
the interests served by the statute. It is precisely because
the Colorado Legislature made a general policy choice that
the statute is assessed under the constitutional standard set
forth in Ward, 491 U. S., at 791, rather than a more strict
standard. See Madsen, 512 U. S., at 764. The cases cited
by petitioners are distinguishable from this statute. In
those cases, the government attempted to regulate nonpro-
tected activity, yet because the statute was overbroad, pro-
tected speech was also implicated. See Houston v. Hill, 482
U. S. 451 (1987); Secretary of State of Md. v. Joseph H. Mun-
son Co., 467 U. S. 947 (1984). In this case, it is not disputed
that the regulation affects protected speech activity; the
question is thus whether it is a “reasonable restrictio[n] on
the time, place, or manner of protected speech.” Ward, 491
U. S., at 791. Here, the comprehensiveness of the statute
is a virtue, not a vice, because it is evidence against there
being a discriminatory governmental motive. As Justice
Jackson observed, “there is no more effective practical guar-
anty against arbitrary and unreasonable government than to
require that the principles of law which officials would im-
pose upon a minority must be imposed generally.” Railway
Express Agency, Inc. v. New York, 336 U. S. 106, 112 (1949)
(concurring opinion).
The second part of the argument is based on a misreading
of the statute and an incorrect understanding of the over-
breadth doctrine. As we have already noted, § 18–9–122(3)
simply does not “ban” any messages, and likewise it does not
“ban” any signs, literature, or oral statements. It merely
regulates the places where communications may occur. As
we explained in Broadrick v. Oklahoma, 413 U. S. 601, 612
(1973), the overbreadth doctrine enables litigants “to chal-
lenge a statute not because their own rights of free expres-
sion are violated, but because of a judicial prediction or

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
732 HILL v. COLORADO
Opinion of the Court
assumption that the statute’s very existence may cause oth-
ers not before the court to refrain from constitutionally
protected speech or expression.” Moreover, “particularly
where conduct and not merely speech is involved, we believe
that the overbreadth of a statute must not only be real, but
substantial as well, judged in relation to the statute’s plainly
legitimate sweep.” Id., at 615. Petitioners have not per-
suaded us that the impact of the statute on the conduct of
other speakers will differ from its impact on their own side-
walk counseling. Cf. Members of City Council of Los
Angeles v. Taxpayers for Vincent, 466 U. S. 789, 801 (1984).
Like petitioners’ own activities, the conduct of other protest-
ers and counselors at all health care facilities are encom-
passed within the statute’s “legitimate sweep.” Therefore,
the statute is not overly broad.
VI
Petitioners also claim that § 18–9–122(3) is unconstitution-
ally vague. They find a lack of clarity in three parts of the
section: the meaning of “protest, education, or counseling”;
the “consent” requirement; and the determination whether
one is “approaching” within eight feet of another.
A statute can be impermissibly vague for either of two
independent reasons. First, if it fails to provide people of
ordinary intelligence a reasonable opportunity to understand
what conduct it prohibits. Second, if it authorizes or even
encourages arbitrary and discriminatory enforcement. Chi-
cago v. Morales, 527 U. S. 41, 56–57 (1999).
In this case, the first concern is ameliorated by the fact
that § 18–9–122(3) contains a scienter requirement. The
statute only applies to a person who “knowingly” approaches
within eight feet of another, without that person’s consent,
for the purpose of engaging in oral protest, education, or
counseling. The likelihood that anyone would not under-
stand any of those common words seems quite remote.

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
733 Cite as: 530 U. S. 703 (2000)
Opinion of the Court
Petitioners proffer hypertechnical theories as to what the
statute covers, such as whether an outstretched arm consti-
tutes “approaching.” 40 And while “[t]here is little doubt
that imagination can conjure up hypothetical cases in which
the meaning of these terms will be in nice question,” Ameri-
can Communications Assn. v. Douds, 339 U. S. 382, 412
(1950), because we are “[c]ondemned to the use of words, we
can never expect mathematical certainty from our lan-
guage,” Grayned v. City of Rockford, 408 U. S. 104, 110
(1972). For these reasons, we rejected similar vagueness
challenges to the injunctions at issue in Schenck, 519 U. S.,
at 383, and Madsen, 512 U. S., at 775–776. We thus conclude
that “it is clear what the ordinance as a whole prohibits.”
Grayned, 408 U. S., at 110. More importantly, speculation
about possible vagueness in hypothetical situations not be-
fore the Court will not support a facial attack on a statute
when it is surely valid “in the vast majority of its intended
applications,” United States v. Raines, 362 U. S. 17, 23 (1960).
For the same reason, we are similarly unpersuaded by the
suggestion that § 18–9–122(3) fails to give adequate guidance
to law enforcement authorities. Indeed, it seems to us that
one of the section’s virtues is the specificity of the definitions
of the zones described in the statute. “As always, enforce-
ment requires the exercise of some degree of police judg-
ment,” Grayned, 408 U. S., at 114, and the degree of judg-
ment involved here is acceptable.
VII
Finally, petitioners argue that § 18–9–122(3)’s consent re-
quirement is invalid because it imposes an unconstitutional
“prior restraint” on speech. We rejected this argument
previously in Schenck, 519 U. S., at 374, n. 6, and Madsen,
512 U. S., at 764, n. 2. Moreover, the restrictions in this case
raise an even lesser prior restraint concern than those at
40 Brief for Petitioners 48.

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
734 HILL v. COLORADO
Opinion of the Court
issue in Schenck and Madsen where particular speakers
were at times completely banned within certain zones.
Under this statute, absolutely no channel of communication
is foreclosed. No speaker is silenced. And no message is
prohibited. Petitioners are simply wrong when they assert
that “[t]he statute compels speakers to obtain consent to
speak and it authorizes private citizens to deny petitioners’
requests to engage in expressive activities.” 41 To the con-
trary, this statute does not provide for a “heckler’s veto” but
rather allows every speaker to engage freely in any expres-
sive activity communicating all messages and viewpoints
subject only to the narrow place requirement imbedded
within the “approach” restriction.
Furthermore, our concerns about “prior restraints” relate
to restrictions imposed by official censorship.42 The regula-
tions in this case, however, only apply if the pedestrian does
not consent to the approach.43 Private citizens have always
retained the power to decide for themselves what they wish
to read, and within limits, what oral messages they want
to consider. This statute simply empowers private citizens
entering a health care facility with the ability to prevent a
speaker, who is within eight feet and advancing, from com-
municating a message they do not wish to hear. Further,
41 Id., at 29.
42 See Ward, 491 U. S., at 795, n. 5 (“[T]he regulations we have found
invalid as prior restraints have ‘had this in common: they gave public
officials the power to deny use of a forum in advance of actual expres-
sion’ ” (quoting Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546,
553 (1975) (emphasis added))).
43 While we have in prior cases found governmental grants of power to
private actors constitutionally problematic, those cases are distinguish-
able. In those cases, the regulations allowed a single, private actor to
unilaterally silence a speaker even as to willing listeners. See, e. g., Reno
v. American Civil Liberties Union, 521 U. S. 844, 880 (1997) (“It would
confer broad powers of censorship, in the form of a ‘heckler’s veto,’ upon
any opponent of indecent speech . . .”). The Colorado statute at issue
here confers no such censorial power on the pedestrian.

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
735 Cite as: 530 U. S. 703 (2000)
Souter, J., concurring
the statute does not authorize the pedestrian to affect any
other activity at any other location or relating to any other
person. These restrictions thus do not constitute an unlaw-
ful prior restraint.
* * *
The judgment of the Colorado Supreme Court is affirmed.
It is so ordered.
Justice Souter, with whom Justice O’Connor, Justice
Ginsburg, and Justice Breyer join, concurring.
I join the opinion of the Court and add this further word.
The key to determining whether Colo. Rev. Stat. § 18–9–
122(3) (1999) makes a content-based distinction between va-
rieties of speech lies in understanding that content-based dis-
criminations are subject to strict scrutiny because they place
the weight of government behind the disparagement or sup-
pression of some messages, whether or not with the effect of
approving or promoting others. United States v. Playboy
Entertainment Group, Inc., 529 U. S. 803, 812 (2000); R. A. V.
v. St. Paul, 505 U. S. 377, 382 (1992); cf. Police Dept. of Chi-
cago v. Mosley, 408 U. S. 92, 95–96 (1972). Thus the govern-
ment is held to a very exacting and rarely satisfied standard
when it disfavors the discussion of particular subjects,
Simon & Schuster, Inc. v. Members of N. Y. State Crime
Victims Bd., 502 U. S. 105, 116 (1991), or particular view-
points within a given subject matter, Carey v. Brown, 447
U. S. 455, 461–463 (1980) (citing Chicago, supra, at 95–96);
cf. National Endowment for Arts v. Finley, 524 U. S. 569,
601–602 (1998) (Souter, J., dissenting).
Concern about employing the power of the State to sup-
press discussion of a subject or a point of view is not, how-
ever, raised in the same way when a law addresses not the
content of speech but the circumstances of its delivery. The
right to express unpopular views does not necessarily immu-
nize a speaker from liability for resorting to otherwise im-

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
736 HILL v. COLORADO
Souter, J., concurring
permissible behavior meant to shock members of the speak-
er’s audience, see United States v. O’Brien, 391 U. S. 367, 376
(1968) (burning draft card), or to guarantee their attention,
see Kovacs v. Cooper, 336 U. S. 77, 86–88 (1949) (sound
trucks); Frisby v. Schultz, 487 U. S. 474, 484–485 (1988) (resi-
dential picketing); Heffron v. International Soc. for Krishna
Consciousness, Inc., 452 U. S. 640, 647–648 (1981) (soliciting).
Unless regulation limited to the details of a speaker’s deliv-
ery results in removing a subject or viewpoint from effective
discourse (or otherwise fails to advance a significant public
interest in a way narrowly fitted to that objective), a reason-
able restriction intended to affect only the time, place, or
manner of speaking is perfectly valid. See Ward v. Rock
Against Racism, 491 U. S. 781, 791 (1989) (“Our cases make
clear . . . that even in a public forum the government may
impose reasonable restrictions on the time, place, or manner
of protected speech, provided the restrictions ‘are justified
without reference to the content of the regulated speech,
that they are narrowly tailored to serve a significant govern-
mental interest, and that they leave open ample alternative
channels for communication of the information’ ” (quoting
Clark v. Community for Creative Non-Violence, 468 U. S.
288, 293 (1984))); 491 U. S., at 797 (“[O]ur cases quite clearly
hold that restrictions on the time, place, or manner of pro-
tected speech are not invalid ‘simply because there is some
imaginable alternative that might be less burdensome on
speech’ ” (quoting United States v. Albertini, 472 U. S. 675,
689 (1985))).
It is important to recognize that the validity of punishing
some expressive conduct, and the permissibility of a time,
place, or manner restriction, does not depend on show-
ing that the particular behavior or mode of delivery has no
association with a particular subject or opinion. Draft
card burners disapprove of the draft, see United States v.
O’Brien, supra, at 370, and abortion protesters believe abor-
tion is morally wrong, Madsen v. Women’s Health Center,

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
737 Cite as: 530 U. S. 703 (2000)
Souter, J., concurring
Inc., 512 U. S. 753, 758 (1994). There is always a correlation
with subject and viewpoint when the law regulates conduct
that has become the signature of one side of a controversy.
But that does not mean that every regulation of such distinc-
tive behavior is content based as First Amendment doctrine
employs that term. The correct rule, rather, is captured in
the formulation that a restriction is content based only if it
is imposed because of the content of the speech, see Ward,
supra, at 791 (“The principal inquiry in determining content
neutrality, in speech cases generally and in time, place, or
manner cases in particular, is whether the government has
adopted a regulation of speech because of disagreement with
the message it conveys”), and not because of offensive behav-
ior identified with its delivery.
Since this point is as elementary as anything in traditional
speech doctrine, it would only be natural to suppose that
today’s disagreement between the Court and the dissenting
Justices must turn on unusual difficulty in evaluating the
facts of this case. But it does not. The facts overwhelm-
ingly demonstrate the validity of subsection (3) as a content-
neutral regulation imposed solely to regulate the manner in
which speakers may conduct themselves within 100 feet of
the entrance of a health care facility.
No one disputes the substantiality of the government’s
interest in protecting people already tense or distressed
in anticipation of medical attention (whether an abortion
or some other procedure) from the unwanted intrusion of
close personal importunity by strangers. The issues divid-
ing the Court, then, go to the content neutrality of the regu-
lation, its fit with the interest to be served by it, and the
availability of other means of expressing the desired mes-
sage (however offensive it may be even without physically
close communication).
Each of these issues is addressed principally by the fact
that subsection (3) simply does not forbid the statement of
any position on any subject. It does not declare any view

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
738 HILL v. COLORADO
Souter, J., concurring
as unfit for expression within the 100-foot zone or beyond it.
What it forbids, and all it forbids, is approaching another
person closer than eight feet (absent permission) to deliver
the message. Anyone (let him be called protester, coun-
selor, or educator) may take a stationary position within the
regulated area and address any message to any person
within sight or hearing. The stationary protester may be
quiet and ingratiating, or loud and offensive; the law does not
touch him, even though in some ways it could. See Madsen,
supra, at 768–771 (injunction may bar protesters from 36-
foot zone around entrances to clinic and parking lot).
This is not to say that enforcement of the approach restric-
tion will have no effect on speech; of course it will make some
difference. The effect of speech is a product of ideas and
circumstances, and time, place, and manner are circum-
stances. The question is simply whether the ostensible rea-
son for regulating the circumstances is really something
about the ideas. Here, the evidence indicates that the osten-
sible reason is the true reason. The fact that speech by a
stationary speaker is untouched by this statute shows that
the reason for its restriction on approaches goes to the ap-
proaches, not to the content of the speech of those approach-
ing. What is prohibited is a close encounter when the per-
son addressed does not want to get close. So, the intended
recipient can stay far enough away to prevent the whispered
argument, mitigate some of the physical shock of the shouted
denunciation, and avoid the unwanted handbill. But the
content of the message will survive on any sign readable at
eight feet and in any statement audible from that slight dis-
tance. Hence the implausibility of any claim that an anti-
abortion message, not the behavior of protesters, is what is
being singled out.
The matter of proper tailoring to limit no more speech
than necessary to vindicate the public interest deserves a
few specific comments, some on matters raised by Justice
Kennedy’s dissent. Subsection (3) could possibly be ap-

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
739 Cite as: 530 U. S. 703 (2000)
Souter, J., concurring
plied to speakers unlike the present petitioners, who might
not know that the entrance to the facility was within 100
feet, or who might try to engage people within 100 feet of a
health facility other than a physician’s office or hospital, or
people having no business with the facility. These objec-
tions do not, however, weigh very heavily on a facial chal-
lenge like this. The specter of liability on the part of those
who importune while oblivious of the facility is laid to rest
by the requirement that a defendant act “knowingly.” See
Colo. Rev. Stat. § 18–1–503(4) (1999) (culpable mental state
requirement deemed to apply to each element of offense, ab-
sent clear contrary intent). While it is true that subsection
(3) was not enacted to protect dental patients, I cannot say
it goes beyond the State’s interest to do so; someone facing
an hour with a drill in his tooth may reasonably be protected
from the intrusive behavior of strangers who are otherwise
free to speak. While some mere passersby may be pro-
tected needlessly, I am skeptical about the number of health
care facilities with substantial pedestrian traffic within 100
feet of their doors but unrelated to the business conducted
inside. Hence, I fail to see danger of the substantial over-
breadth required to be shown before a statute is struck down
out of concern for the speech rights of those not before the
Court. Cf. Secretary of State of Md. v. Joseph H. Munson
Co., 467 U. S. 947, 964–965 (1984); Houston v. Hill, 482 U. S.
451, 458 (1987).
As for the claim of vagueness, at first blush there is some-
thing objectionable. Those who do not choose to remain sta-
tionary may not approach within eight feet with a purpose,
among others, of “engaging in oral protest, education, or
counseling.” Colo. Rev. Stat. § 18–9–122(3) (1999). While
that formula excludes liability for enquiring about the time
or the bus schedule within eight feet, “education” does not
convey much else by way of limitation. But that is not fatal
here. What is significant is not that the word fails to limit
clearly, but that it pretty clearly fails to limit very much at

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
740 HILL v. COLORADO
Souter, J., concurring
all. It succeeds in naturally covering any likely address by
one person approaching another on a street or parking lot
outside a building entrance (aside from common social greet-
ings, protests, or requests for assistance). Someone plan-
ning to spread a message by accosting strangers is likely to
understand the statute’s application to “education.” And
just because the coverage is so obviously broad, the discre-
tion given to the police in deciding whether to charge an
offense seems no greater than the prosecutorial discretion
inherent in any generally applicable criminal statute. Cf.
Grayned v. City of Rockford, 408 U. S. 104, 108 (1972) (noting
that “[v]ague laws may trap the innocent by not providing
fair warning” and that “if arbitrary and discriminatory en-
forcement is to be prevented, laws must provide explicit
standards for those who apply them”); Coates v. Cincinnati,
402 U. S. 611, 614 (1971). “[P]erfect clarity and precise guid-
ance have never been required even of regulations that re-
strict expressive activity.” Ward, 491 U. S., at 794.
Although petitioners have not argued that the “floating
bubble” feature of the 8-foot zone around a pedestrian is it-
self a failure of narrow tailoring, I would note the contrast
between the operation of subsection (3) and that of the com-
parable portion of the injunction struck down in Schenck v.
Pro-Choice Network of Western N. Y., 519 U. S. 357, 377–379
(1997), where we observed that the difficulty of administer-
ing a floating bubble zone threatened to burden more speech
than necessary. In Schenck, the floating bubble was larger
(15 feet) and was associated with near-absolute prohibitions
on speech. Ibid. Since subsection (3) prohibits only 8-foot
approaches, however, with the stationary speaker free to
speak, the risk is less. Whether floating bubble zones are
so inherently difficult to administer that only fixed, no-speech
zones (or prohibitions on ambulatory counseling within a
fixed zone) should pass muster is an issue neither before
us nor well suited to consideration on a facial challenge,
cf. Ward, supra, at 794 (“Since respondent does not claim

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
741 Cite as: 530 U. S. 703 (2000)
Scalia, J., dissenting
that city officials enjoy unguided discretion to deny the right
to speak altogether, it is open to question whether respond-
ent’s claim falls within the narrow class of permissible facial
challenges to allegedly unconstrained grants of regulatory
authority”).
Justice Scalia, with whom Justice Thomas joins,
dissenting.
The Court today concludes that a regulation requiring
speakers on the public thoroughfares bordering medical facil-
ities to speak from a distance of eight feet is “not a ‘regula-
tion of speech,’ ” but “a regulation of the places where some
speech may occur,” ante, at 719; and that a regulation di-
rected to only certain categories of speech (protest, educa-
tion, and counseling) is not “content-based.” For these rea-
sons, it says, the regulation is immune from the exacting
scrutiny we apply to content-based suppression of speech in
the public forum. The Court then determines that the regu-
lation survives the less rigorous scrutiny afforded content-
neutral time, place, and manner restrictions because it is nar-
rowly tailored to serve a government interest—protection
of citizens’ “right to be let alone”—that has explicitly been
disclaimed by the State, probably for the reason that, as
a basis for suppressing peaceful private expression, it is
patently incompatible with the guarantees of the First
Amendment.
None of these remarkable conclusions should come as a
surprise. 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. Madsen v. Women’s Health Center, Inc., 512 U. S.
753, 785 (1994) (Scalia, J., concurring in judgment in part
and dissenting in part). Having deprived abortion oppo-
nents of the political right to persuade the electorate that
abortion should be restricted by law, the Court today contin-

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
742 HILL v. COLORADO
Scalia, J., dissenting
ues and expands its assault upon their individual right to
persuade women contemplating abortion that what they are
doing is wrong. Because, like the rest of our abortion juris-
prudence, today’s decision is in stark contradiction of the
constitutional principles we apply in all other contexts,
I dissent.
I
Colorado’s statute makes it a criminal act knowingly to
approach within 8 feet of another person on the public way
or sidewalk area within 100 feet of the entrance door of a
health care facility for the purpose of passing a leaflet to,
displaying a sign to, or engaging in oral protest, education,
or counseling with such person. Whatever may be said
about the restrictions on the other types of expressive activ-
ity, the regulation as it applies to oral communications is ob-
viously 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 have no doubt that this regulation would
be deemed content based in an instant if the case before us
involved antiwar protesters, or union members seeking to
“educate” the public about the reasons for their strike. “[I]t
is,” we would say, “the content of the speech that determines
whether it is within or without the statute’s blunt prohibi-
tion,” Carey v. Brown, 447 U. S. 455, 462 (1980). But the
jurisprudence of this Court has a way of changing when
abortion is involved.
The Court asserts that this statute is not content based
for purposes of our First Amendment analysis because it nei-
ther (1) discriminates among viewpoints nor (2) places re-
strictions on “any subject matter that may be discussed by
a speaker.” Ante, at 723. But we have never held that the

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
743 Cite as: 530 U. S. 703 (2000)
Scalia, J., dissenting
universe of content-based regulations is limited to those two
categories, and such a holding would be absurd. Imagine,
for instance, special place-and-manner restrictions on all
speech except that which “conveys a sense of contentment
or happiness.” 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 Republi-
can Party—and would not discriminate on the basis of sub-
ject matter, since gratification could be expressed about any-
thing at all. Or consider a law restricting the writing or
recitation of poetry—neither viewpoint based nor limited to
any particular subject matter. Surely this Court would con-
sider such regulations to be “content based” and deserving
of the most exacting scrutiny.1
“The vice of content-based legislation—what renders it de-
serving of the high standard of strict scrutiny—is not that it
is always used for invidious, thought-control purposes, but
that it lends itself to use for those purposes.” Madsen,
1 The Court responds that statutes which restrict categories of speech—
as opposed to subject matter or viewpoint—are constitutionally worri-
some only if a “significant number of communications, raising the same
problem that the statute was enacted to solve, . . . fall outside the statute’s
scope, while others fall inside.” Ante, at 723. I am not sure that is
correct, but let us assume, for the sake of argument, that it is. The Court
then proceeds to assert that “[t]he statutory phrases, ‘oral protest, educa-
tion, or counseling,’ distinguish speech activities likely to” present the
problem of “harassment, . . . nuisance, . . . persistent importuning, . . .
following, . . . dogging, and . . . implied threat of physical touching,” from
“speech activities [such as my example of ‘happy speech’] that are most
unlikely to have those consequences,” ante, at 724. Well. That may
work for “oral protest”; but it is beyond imagining why “education” and
“counseling” are especially likely, rather than especially unlikely, to in-
volve such conduct. (Socrates was something of a noodge, but even he
did not go that far.) Unless, of course, “education” and “counseling” are
code words for efforts to dissuade women from abortion—in which event
the statute would not be viewpoint neutral, which the Court concedes
makes it invalid.

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
744 HILL v. COLORADO
Scalia, J., dissenting
supra, at 794 (opinion of Scalia, J.) (emphasis deleted). A
restriction that operates only on speech that communicates
a message of protest, education, or counseling presents ex-
actly this risk. When applied, as it is here, at the entrance
to medical facilities, it is a means of impeding speech against
abortion. The Court’s confident assurance that the statute
poses no special threat to First Amendment freedoms be-
cause it applies alike to “used car salesmen, animal rights
activists, fundraisers, environmentalists, and missionaries,”
ante, at 723, is a wonderful replication (except for its lack of
sarcasm) of Anatole France’s observation that “[t]he law, in
its majestic equality, forbids the rich as well as the poor to
sleep under bridges . . . .” J. Bartlett, Familiar Quotations
550 (16th ed. 1992). This Colorado law is no more targeted
at used car salesmen, animal rights activists, fundraisers, en-
vironmentalists, and missionaries than French vagrancy law
was targeted at the rich. We know what the Colorado legis-
lators, by their careful selection of content (“protest, educa-
tion, and counseling”), were taking aim at, for they set it
forth in the statute itself: the “right to protest or counsel
against certain medical procedures” on the sidewalks and
streets surrounding health care facilities. Colo. Rev. Stat.
§ 18–9–122(1) (1999) (emphasis added).
The Court is unpersuasive in its attempt to equate the
present restriction with content-neutral regulation of dem-
onstrations and picketing—as one may immediately suspect
from the opinion’s wildly expansive definitions of demonstra-
tions as “ ‘public display[s] of sentiment for or against a per-
son or cause,’ ” and of picketing as an effort “ ‘to persuade or
otherwise influence.’ ” Ante, at 721–722, quoting Webster’s
Third New International Dictionary 600, 1710 (1993). (On
these terms, Nathan Hale was a demonstrator and Patrick
Henry a picket.) When the government regulates “picket-
ing,” or “demonstrating,” it restricts a particular manner
of expression that is, as the author of today’s opinion has
several times explained, “ ‘a mixture of conduct and commu-

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
745 Cite as: 530 U. S. 703 (2000)
Scalia, J., dissenting
nication.’ ” Frisby v. Schultz, 487 U. S. 474, 497 (1988) (Ste-
vens, J., dissenting), quoting NLRB v. Retail Store Employ-
ees, 447 U. S. 607, 618–619 (1980) (Stevens, J., concurring in
part and concurring in result). The latter opinion quoted
approvingly Justice Douglas’s statement:
“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.” Bakery Drivers v. Wohl, 315
U. S. 769, 776–777 (1942) (concurring opinion).
As Justice Stevens went on to explain, “no doubt the
principal reason why handbills containing the same message
are so much less effective than labor picketing is that the
former depend entirely on the persuasive force of the idea.”
Retail Store Employees, supra, at 619. Today, of course,
Justice Stevens gives us an opinion restricting not only
handbilling but even one-on-one conversation of a particular
content. There comes a point—and the Court’s opinion
today passes it—at which the regulation of action intimately
and unavoidably connected with traditional speech is a regu-
lation of speech itself. The strictures of the First Amend-
ment cannot be avoided by regulating the act of moving one’s
lips; and they cannot be avoided by regulating the act of
extending one’s arm to deliver a handbill, or peacefully ap-
proaching in order to speak. All of these acts can be regu-
lated, to be sure; but not, on the basis of content, without
satisfying the requirements of our strict-scrutiny First
Amendment jurisprudence.
Even with regard to picketing, of course, we have applied
strict scrutiny to content-based restrictions. See Carey, 447
U. S., at 461 (applying strict scrutiny to, and invalidating,
an Illinois statute that made “permissibility of residential

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
746 HILL v. COLORADO
Scalia, J., dissenting
picketing . . . dependent solely on the nature of the message
being conveyed”). 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.
As for the Court’s appeal to the fact that we often “examine
the content of a communication” to determine whether it
“constitutes a threat, blackmail, an agreement to fix prices,
a copyright violation, a public offering of securities, or an
offer to sell goods,” ante, at 721, the distinction is almost
too obvious to bear mention: Speech of a certain content is
constitutionally proscribable. The Court has not yet taken
the step of consigning “protest, education, and counseling”
to that category.
Finally, the Court is not correct in its assertion that the
restriction here is content neutral because it is “justified
without reference to the content of regulated speech,” in the
sense that “the State’s interests in protecting access and
privacy, and providing the police with clear guidelines, are
unrelated to the content of the demonstrators’ speech.”
Ante, at 719–720 (emphasis added). That is not an accurate
statement of our law. The Court makes too much of the
statement in Ward v. Rock Against Racism, 491 U. S. 781
(1989), that “[t]he principal inquiry in determining content
neutrality . . . is whether the government has adopted a reg-
ulation of speech because of disagreement with the message
it conveys.” Id., at 791, quoted ante, at 719. That is indeed
“the principal inquiry”—suppression of uncongenial ideas is
the worst offense against the First Amendment—but it is
not the only inquiry. Even a law that has as its purpose
something unrelated to the suppression of particular content
cannot irrationally single out that content for its prohibition.

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
747 Cite as: 530 U. S. 703 (2000)
Scalia, J., dissenting
An ordinance directed at the suppression of noise (and there-
fore “justified without reference to the content of regulated
speech”) cannot be applied only to sound trucks delivering
messages of “protest.” Our very first use of the “justified
by reference to content” language made clear that it is a
prohibition in addition to, rather than in place of, the prohi-
bition of facially content-based restrictions. “Selective ex-
clusions from a public forum,” we said, “may not be based on
content alone, and may not be justified by reference to con-
tent alone.” Police Dept. of Chicago v. Mosley, 408 U. S. 92,
96 (1972) (emphasis added).
But in any event, if one accepts the Court’s description of
the interest served by this regulation, it is clear that the
regulation is both based on content and justified by reference
to content. Constitutionally proscribable “secondary ef-
fects” of speech are directly addressed in subsection (2) of
the statute, which makes it unlawful to obstruct, hinder, im-
pede, or block access to a health care facility—a prohibition
broad enough to include all physical threats and all physi-
cally threatening approaches. The purpose of subsection
(3), however (according to the Court), is to protect “[t]he un-
willing listener’s interest in avoiding unwanted communica-
tion,” ante, at 716. On this analysis, Colorado has restricted
certain categories of speech—protest, counseling, and educa-
tion—out of an apparent belief that only speech with this
content is sufficiently likely to be annoying or upsetting as
to require consent before it may be engaged in at close range.
It is reasonable enough to conclude that even the most gentle
and peaceful close approach by a so-called “sidewalk coun-
selor”—who wishes to “educate” the woman entering an
abortion clinic about the nature of the procedure, to “coun-
sel” 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

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
748 HILL v. COLORADO
Scalia, J., dissenting
the abortion. But that is not an effect which occurs “with-
out reference to the content” of the speech. This singling
out of presumptively “unwelcome” communications fits pre-
cisely the description of prohibited regulation set forth in
Boos v. Barry, 485 U. S. 312, 321 (1988): It “targets the direct
impact of a particular category of speech, not a secondary
feature that happens to be associated with that type of
speech.” (Emphasis added.2 )
In sum, it blinks reality to regard this statute, in its appli-
cation to oral communications, as anything other than a
content-based restriction upon speech in the public forum.
As such, it must survive that stringent mode of constitu-
tional analysis our cases refer to as “strict scrutiny,” which
requires that the restriction be narrowly tailored to serve
a compelling state interest. See United States v. Playboy
Entertainment Group, Inc., 529 U. S. 803, 813 (2000); Perry
Ed. Assn. v. Perry Local Educators’ Assn., 460 U. S. 37, 45
(1983). Since the Court does not even attempt to support
the regulation under this standard, I shall discuss it only
briefly. Suffice it to say that if protecting people from un-
2 The Court’s contention that the statute is content neutral because it is
not a “ ‘regulation of speech’ ” but a “regulation of the places where some
speech may occur,” ante, at 719 (quoting Ward v. Rock Against Racism,
491 U. S. 781, 791 (1989)), is simply baffling. First, because the proposi-
tion that a restriction upon the places where speech may occur is not a
restriction upon speech is both absurd and contradicted by innumerable
cases. See, e. g., Madsen v. Women’s Health Center, Inc., 512 U. S. 753
(1994); Burson v. Freeman, 504 U. S. 191 (1992); Frisby v. Schultz, 487
U. S. 474 (1988); Boos v. Barry, 485 U. S. 312 (1988); Heffron v. Interna-
tional Soc. for Krishna Consciousness, Inc., 452 U. S. 640 (1981); Carey v.
Brown, 447 U. S. 455 (1980); Grayned v. City of Rockford, 408 U. S. 104
(1972); Police Dept. of Chicago v. Mosley, 408 U. S. 92 (1972). And sec-
ond, because the fact that a restriction is framed as a “regulation of the
places where some speech may occur” has nothing whatever to do with
whether the restriction is content neutral—which is why Boos held to be
content based the ban on displaying, within 500 feet of foreign embassies,
banners designed to “ ‘bring into public odium any foreign government.’ ”
485 U. S., at 316.

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
749 Cite as: 530 U. S. 703 (2000)
Scalia, J., dissenting
welcome communications (the governmental interest the
Court posits) is a compelling state interest, the First Amend-
ment is a dead letter. And if (as I shall discuss at greater
length below) forbidding peaceful, nonthreatening, but unin-
vited speech from a distance closer than eight feet is a “nar-
rowly tailored” means of preventing the obstruction of en-
trance to medical facilities (the governmental interest the
State asserts), narrow tailoring must refer not to the stand-
ards of Versace, but to those of Omar the tentmaker. In the
last analysis all of this does not matter, however, since as I
proceed to discuss neither the restrictions upon oral commu-
nications nor those upon handbilling can withstand a proper
application of even the less demanding scrutiny we apply to
truly content-neutral regulations of speech in a traditional
public forum.
II
As the Court explains, under our precedents even a
content-neutral, time, place, and manner restriction must be
narrowly tailored to advance a significant state interest, and
must leave open ample alternative means of communication.
Ward, 491 U. S., at 802. It cannot be sustained if it “bur-
den[s] substantially more speech than is necessary to further
the government’s legitimate interests.” Id., at 799.
This requires us to determine, first, what is the significant
interest the State seeks to advance? Here there appears to
be a bit of a disagreement between the State of Colorado
(which should know) and the Court (which is eager to specu-
late). Colorado has identified in the text of the statute itself
the interest it sought to advance: to ensure that the State’s
citizens may “obtain medical counseling and treatment in an
unobstructed manner” by “preventing the willful obstruction
of a person’s access to medical counseling and treatment at
a health care facility.” Colo. Rev. Stat. § 18–9–122(1) (1999).
In its brief here, the State repeatedly confirms the interest
squarely identified in the statute under review. See, e. g.,
Brief for Respondents 15 (“Each provision of the statute was

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
750 HILL v. COLORADO
Scalia, J., dissenting
chosen to precisely address crowding and physical intimi-
dation: conduct shown to impede access, endanger safety
and health, and strangle effective law enforcement”); id., at
14 (“[T]his provision narrowly addresses the conduct shown
to interfere with access through crowding and physical
threats”). The Court nevertheless concludes that the Colo-
rado provision is narrowly tailored to serve . . . the State’s
interest in protecting its citizens’ rights to be let alone from
unwanted speech.
Indeed, the situation is even more bizarre than that. The
interest that the Court makes the linchpin of its analysis was
not only unasserted by the State; it is not only completely
different from the interest that the statute specifically sets
forth; it was explicitly disclaimed by the State in its brief
before this Court, and characterized as a “straw interest”
petitioners served up in the hope of discrediting the State’s
case. Id., at 25, n. 19. We may thus add to the lengthening
list of “firsts” generated by this Court’s relentlessly proabor-
tion jurisprudence, the first case in which, in order to sustain
a statute, the Court has relied upon a governmental interest
not only unasserted by the State, but positively repudiated.
I shall discuss below the obvious invalidity of this statute
assuming, first (in Part A), the fictitious state interest that
the Court has invented, and then (in Part B), the interest
actually recited in the statute and asserted by counsel for
Colorado.
A
It is not without reason that Colorado claimed that, in at-
tributing to this statute the false purpose of protecting citi-
zens’ right to be let alone, petitioners were seeking to dis-
credit it. Just three Terms ago, in upholding an injunction
against antiabortion activities, the Court refused to rely on
any supposed “ ‘right of the people approaching and entering
the facilities to be left alone.’ ” Schenck v. Pro-Choice Net-
work of Western N. Y., 519 U. S. 357, 383 (1997). It ex-
pressed “doubt” that this “ ‘right’ . . . accurately reflects our

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
751 Cite as: 530 U. S. 703 (2000)
Scalia, J., dissenting
First Amendment jurisprudence.” Ibid. Finding itself in
something of a jam (the State here has passed a regulation
that is obviously not narrowly tailored to advance any other
interest), the Court today neatly repackages the repudiated
“right” as an “interest” the State may decide to protect,
ante, at 717, n. 24, and then places it onto the scales opposite
the right to free speech in a traditional public forum.
To support the legitimacy of its self-invented state inter-
est, the Court relies upon a bon mot in a 1928 dissent (which
we evidently overlooked in Schenck). It characterizes the
“unwilling listener’s interest in avoiding unwanted communi-
cation” as an “aspect of the broader ‘right to be let alone’ ”
Justice Brandeis coined in his dissent in Olmstead v. United
States, 277 U. S. 438, 478. The amusing feature is that even
this slim reed contradicts rather than supports the Court’s
position. The right to be let alone that Justice Brandeis
identified was a right the Constitution “conferred, as against
the government”; it was that right, not some generalized
“common-law right” or “interest” to be free from hearing the
unwanted opinions of one’s fellow citizens, which he called
the “most comprehensive” and “most valued by civilized
men.” Ibid. (emphasis added). To the extent that there
can be gleaned from our cases a “right to be let alone” in the
sense that Justice Brandeis intended, it is the right of the
speaker in the public forum to be free from government in-
terference of the sort Colorado has imposed here.
In any event, the Court’s attempt to disguise the “right to
be let alone” as a “governmental interest in protecting the
right to be let alone” is unavailing for the simple reason that
this is not an interest that may be legitimately weighed
against the speakers’ First Amendment rights (which the
Court demotes to the status of First Amendment “interests,”
ante, at 714). We have consistently held that “the Constitu-
tion 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.” Erz-

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
752 HILL v. COLORADO
Scalia, J., dissenting
noznik v. Jacksonville, 422 U. S. 205, 210 (1975) (emphasis
added). And as recently as in Schenck, the Court reiterated
that “[a]s a general matter, we have indicated that in public
debate our own citizens must tolerate insulting, and even
outrageous, speech in order to provide adequate breathing
space to the freedoms protected by the First Amendment.”
519 U. S., at 383 (internal quotation marks omitted).
The Court nonetheless purports to derive from our cases
a principle limiting the protection the Constitution affords
the speaker’s right to direct “offensive messages” at “unwill-
ing” audiences in the public forum. Ante, at 716. There is
no such principle. We have upheld limitations on a speak-
er’s exercise of his right to speak on the public streets when
that speech intrudes into the privacy of the home. Frisby,
487 U. S., at 483, upheld a content-neutral municipal ordi-
nance prohibiting picketing outside a residence or dwelling.
The ordinance, we concluded, was justified by, and narrowly
tailored to advance, the government’s interest in the “protec-
tion of residential privacy.” Id., at 484. Our opinion rested
upon the “unique nature of the home”; “the home,” we said,
“is different.” Ibid. The reasoning of the case plainly as-
sumed the nonexistence of the right—common law or other-
wise—that the Court relies on today, the right to be free
from unwanted speech when on the public streets and side-
walks. The home, we noted, was “ ‘the one retreat to which
men and women can repair to escape from the tribulations
of their daily pursuits.’ ” Ibid. (quoting Carey, 447 U. S.,
at 471). The limitation on a speaker’s right to bombard
the home with unwanted messages which we approved in
Frisby—and in Rowan v. Post Office Dept., 397 U. S. 728
(1970), upon which the Court also relies—was predicated on
the fact that “ ‘we are often ‘captives’ outside the sanctuary
of the home and subject to objectionable speech.’ ” Frisby,
supra, at 484 (quoting Rowan, supra, at 738) (emphasis
added). As the universally understood state of First
Amendment law is described in a leading treatise: “Outside

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
753 Cite as: 530 U. S. 703 (2000)
Scalia, J., dissenting
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.3
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 Amer-
ican Steel Foundries v. Tri-City Central Trades Council,
257 U. S. 184 (1921), an opinion in which the Court held that
the Clayton Act’s prohibition of injunctions against lawful
and peaceful labor picketing did not forbid the injunction in
that particular case. The First Amendment was not at
issue, and was not so much as mentioned in the opinion, so
the case is scant authority for the point the Court wishes to
make. The case is also irrelevant because it was “clear from
the evidence that from the outset, violent methods were pur-
sued from time to time in such a way as to characterize the
attitude of the picketers as continuously threatening.” Id.,
at 200. No such finding was made, or could be made, here.
More importantly, however, as far as our future labor cases
3 I do not disagree with the Court that “our cases have repeatedly recog-
nized the interests of unwilling listeners” in locations, such as public con-
veyances, where “ ‘the degree of captivity makes it impractical for the
unwilling viewer or auditor to avoid exposure,’ ” ante, at 718 (quoting Erz-
noznik 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. Erznoznik itself, of course, invalidated a prohibition on
the showing of films containing nudity on screens visible from the street,
noting that “the burden normally falls upon the viewer to ‘avoid further
bombardment of [his] sensibilities simply by averting [his] eyes.’ ” Id., at
210–211 (quoting Cohen v. California, 403 U. S. 15, 21 (1971).

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
754 HILL v. COLORADO
Scalia, J., dissenting
are concerned: If a “right to be free” from “persistence, im-
portunity, following and dogging,” id., at 204, short of actual
intimidation, was part of our infant First Amendment law in
1921, I am shocked to think that it is there today. The
Court’s assertion that “[n]one of our decisions has minimized
the enduring importance of ‘a right to be free’ from persist-
ent ‘importunity, following and dogging’ after an offer to
communicate has been declined,” ante, at 718, is belied by
the fact that this passage from American Steel Foundries
has never—not once—found its way into any of the many
First Amendment cases this Court has decided since 1921.
We will have cause to regret today’s injection of this irrele-
vant anachronism into the mainstream of our First Amend-
ment jurisprudence.
Of course even if one accepted the American Steel Found-
ries dictum as an accurate expression of First Amendment
law, the statute here is plainly not narrowly tailored to pro-
tect the interest that dictum describes. Preserving the
“right to be free” from “persisten[t] importunity, following
and dogging” does not remotely require imposing upon all
speakers who wish to protest, educate, or counsel a duty to
request permission to approach closer than eight feet. The
only way the narrow-tailoring objection can be eliminated is
to posit a state-created, First-Amendment-trumping “right
to be let alone” as broad and undefined as Brandeis’s Olm-
stead dictum, which may well (why not, if the Court wishes
it?) embrace a right not to be spoken to without permission
from a distance closer than eight feet. Nothing stands in
the way of that solution to the narrow-tailoring problem—
except, of course, its utter absurdity, which is no obstacle in
abortion cases.
B
I turn now to the real state interest at issue here—the one
set forth in the statute and asserted in Colorado’s brief: the
preservation of unimpeded access to health care facilities.
We need look no further than subsection (2) of the statute to

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
755 Cite as: 530 U. S. 703 (2000)
Scalia, J., dissenting
see what a provision would look like that is narrowly tailored
to serve that interest. Under the terms of that subsection,
any person who “knowingly obstructs, detains, hinders, im-
pedes, or blocks another person’s entry to or exit from a
health care facility” is subject to criminal and civil liability.
It is possible, I suppose, that subsection (2) of the Colorado
statute will leave unrestricted some expressive activity that,
if engaged in from within eight feet, may be sufficiently har-
assing as to have the effect of impeding access to health care
facilities. In subsection (3), however, the State of Colorado
has prohibited a vast amount of speech that cannot possibly
be thought to correspond to that evil.
To begin with, the 8-foot buffer zone attaches to every per-
son on the public way or sidewalk within 100 feet of the
entrance of a medical facility, regardless of whether that per-
son is seeking to enter or exit the facility. In fact, the State
acknowledged at oral argument that the buffer zone would
attach to any person within 100 feet of the entrance door of
a skyscraper in which a single doctor occupied an office on
the 18th floor. Tr. of Oral Arg. 41. And even with respect
to those who are seeking to enter or exit the facilities, the
statute does not protect them only from speech that is so
intimidating or threatening as to impede access. Rather, it
covers all unconsented-to approaches for the purpose of oral
protest, education, or counseling (including those made for
the purpose of the most peaceful appeals) and, perhaps even
more significantly, every approach made for the purposes of
leafletting or handbilling, which we have never considered,
standing alone, obstructive or unduly intrusive. The sweep
of this prohibition is breathtaking.
The Court makes no attempt to justify on the facts this
blatant violation of the narrow-tailoring principle. 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

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
756 HILL v. COLORADO
Scalia, J., dissenting
though it is not the least restrictive or least intrusive means
of serving the statutory goal.” Ante, at 726. The implica-
tion is that the availability of alternative means of communi-
cation permits the imposition of the speech restriction upon
more individuals, or more types of communication, than nar-
row tailoring would otherwise demand. The Court assures
us that “we have emphasized” this proposition “on more than
one occasion,” ibid. The only citation the Court provides,
however, says no such thing. Ward v. Rock Against Rac-
ism, 491 U. S., at 798, quoted ante, at 726, n. 32, says only
that narrow tailoring is not synonymous with “least restric-
tive” alternative. It does not at all suggest—and to my
knowledge no other case does either—that narrow tailoring
can be relaxed when there are other speech alternatives.
The burdens this law imposes upon the right to speak are
substantial, despite an attempt to minimize them that is not
even embarrassed to make the suggestion that they might
actually “assist . . . the speakers’ efforts to communicate
their messages,” ante, at 727. (Compare this with the
Court’s statement in a nonabortion case, joined by the author
of today’s opinion: “The First Amendment mandates that we
presume that speakers, not the government, know best both
what they want to say and how to say it.” Riley v. National
Federation of Blind of N. C., Inc., 487 U. S. 781, 790–791
(1988).) The Court displays a willful ignorance of the type
and nature of communication affected by the statute’s re-
strictions. It seriously asserts, for example, that the 8-foot
zone allows a speaker to communicate at a “normal conversa-
tional distance,” ante, at 726–727. I have certainly held con-
versations at a distance of eight feet seated in the quiet of
my chambers, but I have never walked along the public side-
walk—and have not seen others do so—“conversing” at an
8-foot remove. The suggestion is absurd. So is the sugges-
tion that the opponents of abortion can take comfort in the
fact that the statute “places no limitation on the number of
speakers or the noise level, including the use of amplification

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
757 Cite as: 530 U. S. 703 (2000)
Scalia, J., dissenting
equipment,” ante, at 726. 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 amplifica-
tion 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 counselor may wish to walk alongside and to
say, sympathetically and as softly as the circumstances allow,
something like: “My dear, I know what you are going
through. I’ve been through it myself. You’re not alone and
you do not have to do this. There are other alternatives.
Will you let me help you? May I show you a picture of what
your child looks like at this stage of her human develop-
ment?” The Court would have us believe that this can be
done effectively—yea, perhaps even more effectively—by
shouting through a bullhorn at a distance of eight feet.
The Court seems prepared, if only for a moment, see ante,
at 727–728, to take seriously the magnitude of the burden the
statute imposes on simple handbilling and leafletting. That
concern is fleeting, however, since it is promptly assuaged by
the realization that a leafletter may, without violating the
statute, stand “near the path” of oncoming pedestrians and
make his “proffe[r] . . . , which the pedestrians can easily
accept,” ante, at 727. It does not take a veteran labor orga-
nizer to recognize—although surely any would, see Brief for
American Federation of Labor and Congress of Industrial
Organizations as Amicus Curiae 7–8—that leafletting will
be rendered utterly ineffectual by a requirement that the
leafletter obtain from each subject permission to approach,
or else man a stationary post (one that does not obstruct
access to the facility, lest he violate subsection (2) of statute)
and wait for passersby voluntarily to approach an out-
stretched hand. That simply is not how it is done, and the

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
758 HILL v. COLORADO
Scalia, J., dissenting
Court knows it—or should. 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.
Few pedestrians are likely to give their “consent” to the ap-
proach of a handbiller (indeed, by the time he requested it
they would likely have passed by), and even fewer are likely
to walk over in order to pick up a leaflet. In the abortion
context, therefore, ordinary handbilling, which we have in
other contexts recognized to be a “classic for[m] of speech
that lie[s] at the heart of the First Amendment,” Schenck,
519 U. S., at 377, will in its most effective locations be ren-
dered futile, the Court’s implausible assertions to the con-
trary notwithstanding.
The Colorado provision differs in one fundamental respect
from the “content-neutral” time, place, and manner restric-
tions the Court has previously upheld. Each of them rested
upon a necessary connection between the regulated expres-
sion and the evil the challenged regulation sought to elimi-
nate. So, for instance, in Ward v. Rock Against Racism, the
Court approved the city’s control over sound amplification
because every occasion of amplified sound presented the evil
of excessive noise and distortion disturbing the areas sur-
rounding the public forum. The regulation we upheld in
Ward, rather than “ban[ning] all concerts, or even all rock
concerts, . . . instead focus[ed] on the source of the evils the
city seeks to eliminate . . . and eliminates them without at
the same time banning or significantly restricting a substan-
tial quantity of speech that does not create the same evils.”
491 U. S., at 799, n. 7. In Members of City Council of Los
Angeles v. Taxpayers for Vincent, 466 U. S. 789, 808 (1984),
the Court approved a prohibition on signs attached to utility
poles which “did no more than eliminate the exact source of

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
759 Cite as: 530 U. S. 703 (2000)
Scalia, J., dissenting
the evil it sought to remedy.” In Heffron v. International
Soc. for Krishna Consciousness, Inc., 452 U. S. 640, 652
(1981), the Court upheld a regulation prohibiting the sale
or distribution on the state fairgrounds of any merchandise,
including printed or written material, except from a fixed
location, because that precisely served the State’s interest in
“avoiding congestion and maintaining the orderly movement
of fair patrons on the fairgrounds.”
In contrast to the laws approved in those cases, the law
before us here enacts a broad prophylactic restriction which
does not “respon[d] precisely to the substantive problem
which legitimately concern[ed]” the State, Vincent, supra, at
810—namely (the only problem asserted by Colorado), the
obstruction of access to health facilities. Such prophylactic
restrictions in the First Amendment context—even when
they are content neutral—are not permissible. “Broad pro-
phylactic rules in the area of free expression are suspect. . . .
Precision of regulation must be the touchstone in an area so
closely touching our most precious freedoms.” NAACP v.
Button, 371 U. S. 415, 438 (1963). In United States v. Grace,
461 U. S. 171 (1983), we declined to uphold a ban on certain
expressive activity on the sidewalks surrounding the Su-
preme Court. The purpose of the restriction was the per-
fectly valid interest in security, just as the purpose of the
restriction here is the perfectly valid interest in unob-
structed access; and there, as here, the restriction furthered
that interest—but it furthered it with insufficient precision
and hence at excessive cost to the freedom of speech. There
was, we said, “an insufficient nexus” between security and
all the expressive activity that was banned, id., at 181—just
as here there is an insufficient nexus between the assurance
of access and forbidding unconsented communications within
eight feet.4
4 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

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
760 HILL v. COLORADO
Scalia, J., dissenting
Compare with these venerable and consistent descriptions
of our First Amendment law the defenses that the Court
makes to the contention that the present statute is over-
broad. (To be sure, the Court is assuming its own invented
state interest—protection of the “right to be let alone”—
rather than the interest that the statute describes, but even
so the statements are extraordinary.) “The fact,” the Court
says, “that the coverage of a statute is broader than the spe-
cific concern that led to its enactment is of no constitutional
significance.” Ante, at 730–731. That is true enough ordi-
narily, but it is not true with respect to restraints upon
speech, which is what the doctrine of overbreadth is all
about. (Of course it is also not true, thanks to one of the
other proabortion “firsts” announced by the current Court,
with respect to restrictions upon abortion, which—as our de-
cision in Stenberg v. Carhart, post, p. 914, exemplifies—has
been raised to First Amendment status, even as speech op-
posing abortion has been demoted from First Amendment
status.) Again, the Court says that the overbreadth doc-
trine is not applicable because this law simply “does not ‘ban’
any signs, literature, or oral statements,” but “merely regu-
lates the places where communications may occur.” Ante,
at 731. 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
in Frisby v. Schultz, 487 U. S. 474 (1988), and Heffron, and in cases requir-
ing “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. We do not compare restrictions on
speech to some Platonic ideal of speech restrictiveness, or to each other.
Rather, our First Amendment doctrine requires us to consider whether
the regulation in question burdens substantially more speech than neces-
sary to achieve the particular interest the government has identified and
asserted. Ward, 491 U. S., at 799. In each of the instances the Court
cites, we concluded that the challenged regulation contained the precision
that our cases require and that Colorado’s statute (which the Court itself
calls “prophylactic,” ante, at 729) manifestly lacks.

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
761 Cite as: 530 U. S. 703 (2000)
Scalia, J., dissenting
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.
The Court can derive no support for its approval of Colora-
do’s overbroad prophylactic measure from our decision in
Schenck. To be sure, there we rejected the argument that
the court injunction on demonstrating within a fixed buffer
zone around clinic entrances was unconstitutional because it
banned even “ ‘peaceful, nonobstructive demonstrations.’ ”
519 U. S., at 381. The Court upheld the injunction, however,
only because the “District Court was entitled to conclude,”
“[b]ased on defendants’ past conduct” and “the record in
[that] case,” that the specific defendants involved would, if
permitted within the buffer zone, “continue to do what they
had done before: aggressively follow and crowd individuals
right up to the clinic door and then refuse to move, or pur-
posefully mill around parking lot entrances in an effort to
impede or block the progress of cars.” Id., at 381–382. It
is one thing to assume, as in Schenck, that a prophylactic
injunction is necessary when the specific targets of that
measure have demonstrated an inability or unwillingness to
engage in protected speech activity without also engaging in
conduct that the Constitution clearly does not protect. 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 prophy-
lactic legislation. I cannot improve upon the Court’s conclu-
sion in Madsen that “it is difficult, indeed, to justify a prohi-
bition 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. Ab-
sent evidence that the protesters’ speech is independently

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
762 HILL v. COLORADO
Scalia, J., dissenting
proscribable (i. e., ‘fighting words’ or threats), or is so infused
with violence as to be indistinguishable from a threat of
physical harm, this provision cannot stand.” 512 U. S., at
774 (citation omitted).
The foregoing discussion of overbreadth was written be-
fore the Court, in responding to Justice Kennedy, aban-
doned any pretense at compliance with that doctrine, and
acknowledged—indeed, boasted—that the statute it ap-
proves “takes a prophylactic approach,” ante, at 729, and
adopts “[a] bright-line prophylactic rule,” ibid.5 I scarcely
know how to respond to such an unabashed repudiation of
our First Amendment doctrine. Prophylaxis is the antithe-
sis of narrow tailoring, as the previously quoted passage
from Button makes clear (“Broad prophylactic rules in the
area of free expression are suspect. . . . Precision of regula-
tion 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 tai-
loring and overbreadth. R. I. P.
* * *
Before it effectively threw in the towel on the narrow-
tailoring point, the Court asserted the importance of taking
5 Of course the Court greatly understates the scope of the prophylaxis,
saying that “the statute’s prophylactic aspect is justified by the great dif-
ficulty of protecting, say, a pregnant woman from physical harassment
with legal rules that focus exclusively on the individual impact of each
instance of behavior,” ante, at 729. But the statute prevents the “phys-
ically harassing” act of (shudder!) approaching within closer than eight
feet not only when it is directed against pregnant women, but also ( just
to be safe) when it is directed against 300-pound, male, and unpregnant
truck drivers—surely a distinction that is not “difficult to make accu-
rately,” ibid.

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
763 Cite as: 530 U. S. 703 (2000)
Scalia, J., dissenting
into account “ ‘the place to which the regulations apply in
determining whether these restrictions burden more speech
than necessary.’ ” Ante, at 728 (quoting Madsen, supra, at
772). A proper regard for the “place” involved in this case
should result in, if anything, a commitment by this Court
to adhere to and rigorously enforce our speech-protective
standards. The public forum involved here—the public
spaces outside of health care facilities—has become, by ne-
cessity 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. Wade, 410 U. S. 113 (1973), to Stenberg v. Carhart,
post, p. 914. For those who share an abiding moral or reli-
gious conviction (or, for that matter, simply a biological ap-
preciation) 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. 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 com-
fort 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. 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

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
764 HILL v. COLORADO
Scalia, J., dissenting
of self-government. 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 Colo-
rado or elsewhere should feel that her security has by this
decision been enhanced.
It is interesting to compare the present decision, which
upholds an utterly bizarre proabortion “request to ap-
proach” provision of Colorado law, with Stenberg, post, p. 914,
also announced today, which strikes down a live-birth abor-
tion prohibition adopted by 30 States and twice passed by
both Houses of Congress (though vetoed both times by the
President). The present case disregards the State’s own as-
sertion of the purpose of its proabortion law, and posits in-
stead a purpose that the Court believes will be more likely to
render the law constitutional. Stenberg rejects the State’s
assertion of the very meaning of its antiabortion law, and
declares instead a meaning that will render the law unconsti-
tutional. 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 pre-
serve of the First Amendment. See Janklow v. Planned
Parenthood, Sioux Falls Clinic, 517 U. S. 1174, 1177–1181
(1996) (Scalia, J., dissenting from denial of certiorari); Ada
v. Guam Soc. of Obstetricians & Gynecologists, 506 U. S.
1011, 1013 (1992) (Scalia, J., dissenting from denial of
certiorari).
Does the deck seem stacked? You bet. As I have sug-
gested throughout this opinion, today’s decision is not an iso-
lated distortion of our traditional constitutional principles,
but is one of many aggressively proabortion novelties an-
nounced by the Court in recent years. See, e. g., Madsen v.
Women’s Health Center, Inc., 512 U. S. 753 (1994); Schenck

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
765 Cite as: 530 U. S. 703 (2000)
Kennedy, J., dissenting
v. Pro-Choice Network of Western N. Y., 519 U. S. 357 (1997);
Thornburgh v. American College of Obstetricians and Gyne-
cologists, 476 U. S. 747 (1986). Today’s distortions, however,
are particularly blatant. Restrictive views of the First
Amendment that have been in dissent since the 1930’s sud-
denly find themselves in the majority. “Uninhibited, robust,
and wide open” debate is replaced by the power of the State
to protect an unheard-of “right to be let alone” on the public
streets. I dissent.
Justice Kennedy, dissenting.
The Court’s holding contradicts more than a half century
of well-established First Amendment principles. For the
first time, the Court approves a law which bars a private
citizen from passing a message, in a peaceful manner and on
a profound moral issue, to a fellow citizen on a public side-
walk. If from this time forward the Court repeats its grave
errors of analysis, we shall have no longer the proud tradi-
tion of free and open discourse in a public forum. In my
view, Justice Scalia’s First Amendment analysis is correct
and mandates outright reversal. In addition to undermin-
ing established First Amendment principles, the Court’s
decision conflicts with the essence of the joint opinion in
Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S.
833 (1992). It seems appropriate in these circumstances to
reinforce Justice Scalia’s correct First Amendment conclu-
sions and to set forth my own views.
I
The Court uses the framework of Ward v. Rock Against
Racism, 491 U. S. 781 (1989), for resolution of the case. The
Court wields the categories of Ward so that what once were
rules to protect speech now become rules to restrict it.
This is twice unfortunate. The rules of Ward are dimin-
ished in value for later cases; and the Ward analysis ought
not have been undertaken at all. To employ Ward’s com-

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
766 HILL v. COLORADO
Kennedy, J., dissenting
plete framework is a mistake at the outset, for Ward applies
only if a statute is content neutral. Colorado’s statute is a
textbook example of a law which is content based.
A
The statute makes it a criminal offense to “knowingly ap-
proach another person within eight feet of such person, un-
less such other person consents, 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
in the public way or sidewalk area within a radius of one
hundred feet from any entrance door to a health care facil-
ity.” Colo. Rev. Stat. § 18–9–122(3) (1999). The law im-
poses content-based restrictions on speech by reason of the
terms it uses, the categories it employs, and the conditions
for its enforcement. It is content based, too, by its predict-
able and intended operation. Whether particular messages
violate the statute is determined by their substance. The
law is a prime example of a statute inviting screening and
censoring of individual speech; and it is serious error to
hold otherwise.
The Court errs in asserting the Colorado statute is no dif-
ferent from laws sustained as content neutral in earlier
cases. The prohibitions against “picketing” and/or “leaflet-
ing” upheld in Frisby v. Schultz, 487 U. S. 474 (1988), United
States v. Grace, 461 U. S. 171 (1983), and Police Dept. of Chi-
cago v. Mosley, 408 U. S. 92 (1972), the Court says, see ante,
at 722, and n. 30, are no different from the restrictions on
“protest, education, or counseling” imposed by the Colorado
statute. The parallel the Court sees does not exist. No ex-
amination of the content of a speaker’s message is required
to determine whether an individual is picketing, or distribut-
ing a leaflet, or impeding free access to a building. Under
the Colorado enactment, however, the State must review
content to determine whether a person has engaged in crimi-
nal “protest, education, or counseling.” When a citizen

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
767 Cite as: 530 U. S. 703 (2000)
Kennedy, J., dissenting
approaches another on the sidewalk in a disfavored-speech
zone, an officer of the State must listen to what the speaker
says. If, in the officer’s judgment, the speaker’s words stray
too far toward “protest, education, or counseling”—the
boundaries of which are far from clear—the officer may de-
cide the speech has moved from the permissible to the crimi-
nal. The First Amendment does not give the government
such power.
The statute is content based for an additional reason: It
restricts speech on particular topics. Of course, the enact-
ment restricts “oral protest, education, or counseling” on any
subject; but a statute of broad application is not content neu-
tral if its terms control the substance of a speaker’s message.
If oral protest, education, or counseling on every subject
within an 8-foot zone present a danger to the public, the stat-
ute should apply to every building entrance in the State. It
does not. It applies only to a special class of locations: en-
trances to buildings with health care facilities. We would
close our eyes to reality were we to deny that “oral protest,
education, or counseling” outside the entrances to medical
facilities concern a narrow range of topics—indeed, one topic
in particular. By confining the law’s application to the spe-
cific locations where the prohibited discourse occurs, the
State has made a content-based determination. The Court
ought to so acknowledge. Clever content-based restrictions
are no less offensive than censoring on the basis of content.
See, e. g., United States v. Eichman, 496 U. S. 310 (1990). If,
just a few decades ago, a State with a history of enforcing
racial discrimination had enacted a statute like this one, reg-
ulating “oral protest, education, or counseling” within 100
feet of the entrance to any lunch counter, our predecessors
would not have hesitated to hold it was content based or
viewpoint based. It should be a profound disappointment to
defenders of the First Amendment that the Court today re-
fuses to apply the same structural analysis when the speech
involved is less palatable to it.

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
768 HILL v. COLORADO
Kennedy, J., dissenting
The Court, in error and irony, validates the Colorado stat-
ute because it purports to restrict all of the proscribed
expressive activity regardless of the subject. The even-
handedness the Court finds so satisfying, however, is but
a disguise for a glaring First Amendment violation. The
Court, by citing the breadth of the statute, cannot escape the
conclusion that its categories are nonetheless content based.
The liberty of a society is measured in part by what its
citizens are free to discuss among themselves. Colorado’s
scheme of disfavored-speech zones on public streets and side-
walks, and the Court’s opinion validating them, are antitheti-
cal to our entire First Amendment tradition. To say that
one citizen can approach another to ask the time or the
weather forecast or the directions to Main Street but not
to initiate discussion on one of the most basic moral and
political issues in all of contemporary discourse, a question
touching profound ideas in philosophy and theology, is an as-
tonishing view of the First Amendment. For the majority
to examine the statute under rules applicable to content-
neutral regulations is an affront to First Amendment
teachings.
After the Court errs in finding the statute content neutral,
it compounds the mistake by finding the law viewpoint neu-
tral. Viewpoint-based rules are invidious speech restric-
tions, yet the Court approves this one. The purpose and
design of the statute—as everyone ought to know and as its
own defenders urge in attempted justification—are to re-
strict speakers on one side of the debate: those who protest
abortions. The statute applies only to medical facilities, a
convenient yet obvious mask for the legislature’s true pur-
pose and for the prohibition’s true effect. One need read no
further than the statute’s preamble to remove any doubt
about the question. The Colorado Legislature sought to re-
strict “a person’s right to protest or counsel against certain
medical procedures.” Colo. Rev. Stat. § 18–9–122(1) (1999).
The word “against” reveals the legislature’s desire to restrict

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
769 Cite as: 530 U. S. 703 (2000)
Kennedy, J., dissenting
discourse on one side of the issue regarding “certain medical
procedures.” The testimony to the Colorado Legislature
consisted, almost in its entirety, of debates and controversies
with respect to abortion, a point the majority acknowledges.
Ante, at 715. The legislature’s purpose to restrict unpopu-
lar speech should be beyond dispute.
The statute’s operation reflects its objective. Under the
most reasonable interpretation of Colorado’s law, if a speaker
approaches a fellow citizen within any one of Colorado’s thou-
sands of disfavored-speech zones and chants in praise of the
Supreme Court and its abortion decisions, I should think
there is neither protest, nor education, nor counseling. If
the opposite message is communicated, however, a prosecu-
tion to punish protest is warranted. The antispeech dis-
tinction also pertains if a citizen approaches a public official
visiting a health care facility to make a point in favor of abor-
tion rights. If she says, “Good job, Governor,” there is no
violation; if she says, “Shame on you, Governor,” there is.
Furthermore, if the speaker addresses a woman who is con-
sidering an abortion and says, “Please take just a moment to
read these brochures and call our support line to talk with
women who have been in your situation,” the speaker would
face criminal penalties for counseling. Yet if the speaker
simply says, “We are for abortion rights,” I should think this
is neither education nor counseling. Thus does the Court
today ensure its own decisions can be praised but not con-
demned. Thus does it restrict speech designed to teach that
the exercise of a constitutional right is not necessarily con-
comitant with making a sound moral choice. Nothing in our
law or our enviable free speech tradition sustains this self-
serving rule. Colorado is now allowed to punish speech be-
cause of its content and viewpoint.
The Court time and again has held content-based or
viewpoint-based regulations to be presumptively invalid.
See McIntyre v. Ohio Elections Comm’n, 514 U. S. 334, 345–
346 (1995); R. A. V. v. St. Paul, 505 U. S. 377, 382 (1992);

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
770 HILL v. COLORADO
Kennedy, J., dissenting
Simon & Schuster, Inc. v. Members of N. Y. State Crime
Victims Bd., 502 U. S. 105, 116 (1991) (“ ‘Regulations which
permit the Government to discriminate on the basis of the
content of the message cannot be tolerated under the First
Amendment’ ” (quoting Regan v. Time, Inc., 468 U. S. 641,
648–649 (1984))). Here the statute “suppresses expression
out of concern for its likely communicative impact.” Eich-
man, 496 U. S., at 317. Like the picketing statute struck
down in Boos v. Barry, 485 U. S. 312 (1998), this prohibition
seeks to eliminate public discourse on an entire subject and
topic. The Court can cite not a single case where we sus-
tained a law aimed at a broad class of topics on grounds
that it is both content and viewpoint neutral. Cf. McIntyre
v. Ohio Elections Comm’n, supra, at 345 (“[E]ven though
this provision applies evenhandedly to advocates of differ-
ing viewpoints, it is a direct regulation of the content of
speech”); Boos, supra, at 319 (“[A] regulation that ‘does not
favor either side of a political controversy’ is nonetheless
impermissible because the ‘First Amendment’s hostility to
content-based regulation extends . . . to prohibition of public
discussion of an entire topic’ ” (quoting Consolidated Edison
Co. of N. Y. v. Public Serv. Comm’n of N. Y., 447 U. S. 530,
537 (1980))); see also First Nat. Bank of Boston v. Bellotti,
435 U. S. 765, 784–785 (1978) (invalidating statute which per-
mitted corporations to speak on political issues decided by
referenda, but not on other subjects). Statutes which im-
pose content-based or viewpoint-based restrictions are sub-
jected to exacting scrutiny. The State has failed to sustain
its burden of proving that its statute is content and view-
point neutral. See United States v. Playboy Entertainment
Group, Inc., 529 U. S. 803, 816 (2000) (“When the Govern-
ment restricts speech, the Government bears the burden of
proving the constitutionality of its actions”). The Ward
time, place, and manner analysis is simply inapplicable to this
law. I would hold the statute invalid from the very start.

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
771 Cite as: 530 U. S. 703 (2000)
Kennedy, J., dissenting
B
In a further glaring departure from precedent we learn
today that citizens have a right to avoid unpopular speech
in a public forum. Ante, at 716–717. For reasons Justice
Scalia explains in convincing fashion, neither Justice Bran-
deis’ dissenting opinion in Olmstead v. United States, 277
U. S. 438, 478 (1928), nor the Court’s opinion in American
Steel Foundries v. Tri-City Central Trades Council, 257
U. S. 184 (1921), establishes a right to be free from unwel-
come expression aired by a fellow citizen in a traditional pub-
lic forum: “The Fourteenth Amendment does not permit a
State to make criminal the peaceful expression of unpopular
views.” Edwards v. South Carolina, 372 U. S. 229, 237
(1963).
The Court’s reliance on Rowan v. Post Office Dept., 397
U. S. 728 (1970), and Erznoznik v. Jacksonville, 422 U. S. 205
(1975), is inapt. Rowan involved a federal statute allowing
individuals to remove their names from commercial mailing
lists. Businesses contended the statute infringed upon their
First Amendment right to communicate with private citi-
zens. The Court rejected the challenge, reasoning that the
First Amendment affords individuals some control over
what, and how often, unwelcome commercial messages enter
their private residences. 397 U. S., at 736, 738. Rowan did
not hold, contrary to statements in today’s opinion, see ante,
at 718, that the First Amendment permits the government
to restrict private speech in a public forum. Indeed, the
Court in Rowan recognized what everyone, before today, un-
derstood to be true: “[W]e are often ‘captives’ outside the
sanctuary of the home and subject to objectionable speech
and other sound . . . .” 397 U. S., at 738.
In Erznoznik, the Court struck down a municipal ordi-
nance prohibiting drive-in movie theaters visible from either
a public street or a public place from showing films contain-
ing nudity. The ordinance, the Court concluded, imposed a
content-based restriction upon speech and was both too

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
772 HILL v. COLORADO
Kennedy, J., dissenting
broad and too narrow to serve the interests asserted by the
municipality. 422 U. S., at 211–215. The law, moreover,
was not analogous to the rare, “selective restrictions” on
speech previously upheld to protect individual privacy. Id.,
at 208–209 (citing and discussing Rowan, supra, and Lehman
v. Shaker Heights, 418 U. S. 298 (1974)). The Court did not,
contrary to the majority’s assertions, suggest that govern-
ment is free to enact categorical measures restricting tradi-
tional, peaceful communications among citizens in a public
forum. Instead, the Court admonished that citizens usually
bear the burden of disregarding unwelcome messages. 422
U. S., at 211 (citing Cohen v. California, 403 U. S. 15, 21
(1971)).
Today’s decision is an unprecedented departure from this
Court’s teachings respecting unpopular speech in public fora.
II
The Colorado statute offends settled First Amendment
principles in another fundamental respect. It violates the
constitutional prohibitions against vague or overly broad
criminal statutes regulating speech. The enactment’s fatal
ambiguities are multiple and interact to create further im-
precisions. The result is a law more vague and overly broad
than any criminal statute the Court has sustained as a per-
missible regulation of speech. The statute’s imprecisions
are so evident that this, too, ought to have ended the case
without further discussion.
The law makes it a criminal offense to “knowingly ap-
proach another person within eight feet of such person, un-
less such other person consents, 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 in
the public way or sidewalk area within a radius of one hun-
dred feet from any entrance door to a health care facility.”
Colo. Rev. Stat. § 18–9–122(3) (1999). The operative terms
and phrases of the statute are not defined. The case comes

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
773 Cite as: 530 U. S. 703 (2000)
Kennedy, J., dissenting
to us from the state court system; and as the Colorado courts
did not give the statute a sufficient narrowing construction,
questions of vagueness and overbreadth should be addressed
by this Court in the first instance. See Coates v. Cincin-
nati, 402 U. S. 611, 613–614 (1971).
In the context of a law imposing criminal penalties for
pure speech, “protest” is an imprecise word; “counseling” is
an imprecise word; “education” is an imprecise word. No
custom, tradition, or legal authority gives these terms the
specificity required to sustain a criminal prohibition on
speech. I simply disagree with the majority’s estimation
that it is “quite remote” that “anyone would not understand
any of those common words.” Ante, at 732. The criminal
statute is subject to manipulation by police, prosecutors, and
juries. Its substantial imprecisions will chill speech, so the
statute violates the First Amendment. Cf. Kolender v.
Lawson, 461 U. S. 352, 358, 360 (1983); Herndon v. Lowry,
301 U. S. 242, 263–264 (1937).
In operation the statute’s inevitable arbitrary effects
create vagueness problems of their own. The 8-foot no-
approach zone is so unworkable it will chill speech. Assume
persons are about to enter a building from different points
and a protester is walking back and forth with a sign or
attempting to hand out leaflets. If she stops to create the
8-foot zone for one pedestrian, she cannot reach other per-
sons with her message; yet if she moves to maintain the 8-
foot zone while trying to talk to one patron she may move
knowingly closer to a patron attempting to enter the facility
from a different direction. In addition, the statute requires
a citizen to give affirmative consent before the exhibitor of
a sign or the bearer of a leaflet can approach. When dealing
with strangers walking fast toward a building’s entrance,
there is a middle ground of ambiguous answers and mixed
signals in which misinterpretation can subject a good-faith
speaker to criminal liability. The mere failure to give a re-
action, for instance, is a failure to give consent. These ele-

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
774 HILL v. COLORADO
Kennedy, J., dissenting
ments of ambiguity compound the others. Finally, as we all
know, the identity or enterprise of the occupants of a build-
ing which fronts on a public street is not always known to
the public. Health care providers may occupy but a single
office in a large building. The Colorado citizen may walk
from a disfavored-speech zone to a free zone with little or no
ability to discern when one ends and the other begins. The
statute’s vagueness thus becomes as well one source of its
overbreadth. The only sure way to avoid violating the law
is to refrain from picketing, leafletting, or oral advocacy alto-
gether. Scienter cannot save so vague a statute as this.
A statute is vague when the conduct it forbids is not ascer-
tainable. See Chicago v. Morales, 527 U. S. 41, 56 (1999).
“[People] of common intelligence cannot be required to guess
at the meaning of the enactment.” Winters v. New York,
333 U. S. 507, 515 (1948). The terms “oral protest, educa-
tion, or counseling” are at least as imprecise as criminal pro-
hibitions on speech the Court has declared void for vague-
ness in past decades. In Coates v. Cincinnati, 402 U. S. 611
(1971), the Court encountered little difficulty in striking
down a municipal ordinance making it a criminal offense for
“three or more persons to assemble . . . on any of the
sidewalks . . . and there conduct themselves in a manner
annoying to persons passing by . . . .” Ibid. The Court
held the ordinance to be unconstitutionally vague because
“it subject[ed] the exercise of the right of assembly to an
unascertainable standard, and [was] unconstitutionally broad
because it authorize[d] the punishment of constitutionally
protected conduct.” Id., at 614. Vagueness led to over-
breadth as well in Houston v. Hill, 482 U. S. 451 (1987),
where the Court invalidated an ordinance making it “ ‘un-
lawful for any person to . . . in any manner oppose . . . or
interrupt any policeman in the execution of his duty.’ ”
Id., at 455. The “sweeping” restriction, the Court rea-
soned, placed citizens at risk of arrest for exercising their

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
775 Cite as: 530 U. S. 703 (2000)
Kennedy, J., dissenting
“freedom . . . to oppose or challenge police action,” a right
“by which we distinguish a free nation from a police state.”
Id., at 462–463.
The requirement of specificity for statutes that impose
criminal sanctions on public expression was established well
before Coates and Hill, of course. In Carlson v. California,
310 U. S. 106 (1940), a unanimous Court invalidated an ordi-
nance prohibiting individuals from carrying or displaying
any sign or banner or from picketing near a place of business
“for the purpose of inducing or influencing, or attempting to
induce or influence, any person to refrain from entering any
such works, or factory, or place of business, or employment.”
Id., at 109. The statute employed imprecise language, pro-
viding citizens with no guidance as to whether particular ex-
pressive activities fell within its reach. The Court found
that the “sweeping and inexact terms of the ordinance dis-
close the threat to freedom of speech inherent in its exist-
ence,” a result at odds with the guarantees of the First
Amendment. Id., at 112.
Rather than adhere to this rule, the Court turns it on its
head, stating the statute’s overbreadth is “a virtue, not a
vice.” Ante, at 731. The Court goes even further, praising
the statute’s “prophylactic approach; it forbids all unwelcome
demonstrators to come closer than eight feet.” Ante, at 729.
Indeed, in the Court’s view, “bright-line prophylactic rule[s]
may be the best way to provide protection” to those individ-
uals unwilling to hear a fellow citizen’s message in a public
forum. Ibid. The Court is quite wrong. Overbreadth is a
constitutional flaw, not a saving feature. Sweeping within
its ambit even more protected speech does not save a crimi-
nal statute invalid in its essential reach and design. The
Court, moreover, cannot meet the concern that the statute
is vague; for neither the Colorado courts nor established
legal principles offer satisfactory guidance in interpreting
the statute’s imprecisions.

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
776 HILL v. COLORADO
Kennedy, J., dissenting
III
Even aside from the erroneous, most disturbing assump-
tions that the statute is content neutral, viewpoint neutral,
and neither vague nor overbroad, the Court falls into further
serious error when it turns to the time, place, and manner
rules set forth in Ward.
An essential requirement under Ward is that the regula-
tion in question not “burden substantially more speech than
is necessary to further the government’s legitimate inter-
ests.” 491 U. S., at 799. As we have seen, however, Colo-
rado and the Court attempt to justify the law on just the
opposite assumption.
I have explained already how the statute is a failed at-
tempt to make the enactment appear content neutral, a dis-
guise for the real concern of the legislation. The legislature
may as well have enacted a statute subjecting “oral protest,
education, or counseling near abortion clinics” to criminal
penalty. Both the State and the Court attempt to sidestep
the enactment’s obvious content-based restriction by prais-
ing the statute’s breadth, by telling us all topics of conversa-
tion, not just discourse on abortion, are banned within the
statutory proscription. The saving feature the Court tries
to grasp simply creates additional free speech infirmity.
Our precedents do not permit content censoring to be cured
by taking even more protected speech within a statute’s
reach. The statute before us, as construed by the majority,
would do just that. If it indeed proscribes “oral protest,
education, or counseling” on all subjects across the board, it
by definition becomes “substantially broader than necessary
to achieve the government’s interest.” Id., at 800.
The whimsical, arbitrary nature of the statute’s operation
is further demonstration of a restriction upon more speech
than necessary. The happenstance of a dental office being
located in a building brings the restricted-speech zone into
play. If the same building also houses an organization dedi-

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
777 Cite as: 530 U. S. 703 (2000)
Kennedy, J., dissenting
cated, say, to environmental issues, a protest against the
group’s policies would be barred. Yet if, on the next block
there were a public interest enterprise in a building with no
health care facility, the speech would be unrestricted. The
statute is a classic example of a proscription not narrowly
tailored and resulting in restrictions of far more speech than
necessary to achieve the legislature’s object. The first time,
place, and manner requirement of Ward cannot be satisfied.
Assuming Colorado enacted the statute to respond to inci-
dents of disorderly and unlawful conduct near abortion clin-
ics, there were alternatives to restricting speech. It is be-
yond dispute that pinching or shoving or hitting is a battery
actionable under the criminal law and punishable as a crime.
State courts have also found an actionable tort when there is
a touching, done in an offensive manner, of an object closely
identified with the body, even if it is not clothing or the body
itself. See, e. g., Fisher v. Carrousel Motor Hotel, Inc., 424
S. W. 2d 627, 630 (Tex. 1967) (“Personal indignity is the es-
sence of an action for battery; and consequently the defend-
ant is liable not only for contacts which do actual physical
harm, but also for those which are offensive and insulting”
(citing Prosser, Insult & Outrage, 44 Calif. L. Rev. 40 (1956))).
The very statute before us, in its other parts, includes a pro-
vision aimed at ensuring access to health care facilities.
The law imposes criminal sanctions upon any person who
“knowingly obstructs, detains, hinders, impedes, or blocks
another person’s entry to or exit from a health care facility.”
Colo. Rev. Stat. § 18–9–122(2) (1999). With these means
available to ensure access, the statute’s overreaching in the
regulation of speech becomes again apparent.
The majority insists the statute aims to protect distraught
women who are embarrassed, vexed, or harassed as they at-
tempt to enter abortion clinics. If these are punishable acts,
they should be prohibited in those terms. In the course of
praising Colorado’s approach, the majority does not pause to
tell us why, in its view, substantially less restrictive means

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
778 HILL v. COLORADO
Kennedy, J., dissenting
cannot be employed to ensure citizens access to health care
facilities or to prevent physical contact between citizens.
The Court’s approach is at odds with the rigor demanded by
Ward. See 491 U. S., at 799 (“Government may not regulate
expression in such a manner that a substantial portion of the
burden on speech does not serve to advance its goals”).
There are further errors in the Court’s novel, prophylactic
analysis. The prophylactic theory seems to be based on a
supposition that most citizens approaching a health care fa-
cility are unwilling to listen to a fellow citizen’s message and
that face-to-face communications will lead to lawless behav-
ior within the power of the State to punish. These premises
have no support in law or in fact. And even when there is
authority to adopt preventive measures, of course, the First
Amendment does not allow a speech prohibition in an impre-
cise or overly broad statute. Cf. Thornhill v. Alabama, 310
U. S. 88, 105 (1940) (“The power and the duty of the State to
take adequate steps to preserve the peace and to protect the
privacy, the lives, and the property of its residents cannot be
doubted. But no clear and present danger of destruction of
life or property, or invasion of the right of privacy, or breach
of the peace can be thought to be inherent in the activities
of every person who approaches the premises of an employer
and publicizes the facts of a labor dispute involving the lat-
ter”). The Court places our free speech traditions in grave
jeopardy by licensing legislatures to adopt “bright-line pro-
phylactic rule[s] . . . to provide protection” to unwilling
listeners in a quintessential public forum. Ante, at 729.
The Court’s lack of concern with the statute’s flaws is ex-
plained in part by its disregard of the importance of free
discourse and the exchange of ideas in a traditional public
forum. Our precedents have considered the level of protec-
tion afforded speech in specific locations, but the rules for-
mulated in those decisions are not followed today. “To
ascertain what limits, if any, may be placed on protected
speech,” our precedents instruct “we have often focused on

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
779 Cite as: 530 U. S. 703 (2000)
Kennedy, J., dissenting
the ‘place’ of that speech, considering the nature of the forum
the speaker seeks to employ. . . . [T]he standards by which
limitations on speech must be evaluated ‘differ depending on
the character of the property at issue.’ ” Frisby v. Schultz,
487 U. S., at 479 (quoting Perry Ed. Assn. v. Perry Local
Educators’ Assn., 460 U. S. 37, 44 (1983)). The quoted lan-
guage was part of our holding in an important free speech
case; and it is a holding the majority disregards.
Frisby upheld a municipal ordinance restricting targeted
picketing in residential areas. The primary purpose of the
ordinance, and a reason the Court sustained it, was to pro-
tect and preserve the tranquility of private homes. The pri-
vate location at which respondents sought to engage in their
expressive activities was stressed throughout the Court’s
opinion. See 487 U. S., at 483 (“[W]e construe the ban to be
a limited one; only focused picketing taking place solely in
front of a particular residence is prohibited”). “Although in
many locations,” the Court reasoned, “we expect individuals
simply to avoid speech they do not want to hear, the home
is different. ‘That we are often “captives” outside the sanc-
tuary of the home and subject to objectionable speech . . .
does not mean we must be captives everywhere.’ ” Id., at
484 (quoting Rowan v. Post Office Dept., 397 U. S., at 738).
The Colorado law does not seek to protect private resi-
dences. Nor does the enactment impose a place restriction
upon expressive activity undertaken on property, such as
fairgrounds, designated for limited, special purposes. See,
e. g., Heffron v. International Soc. for Krishna Conscious-
ness, Inc., 452 U. S. 640, 655 (1981). The statute applies to
public streets and sidewalks, traditional public fora which
“ ‘time out of mind, have been used for purposes of assembly,
communicating thoughts between citizens, and discussing
public questions.’ ” See Boos, 485 U. S., at 318 (quoting
Hague v. Committee for Industrial Organization, 307 U. S.
496, 515 (1939) (opinion of Roberts, J.)). Given our traditions
with respect to open discussion in public fora, this statute,

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
780 HILL v. COLORADO
Kennedy, J., dissenting
which sweeps so largely on First Amendment freedoms, can-
not be sustained.
The statute fails a further test under Ward, for it does not
“ ‘leave open ample alternative channels for communication
of the information.’ ” 491 U. S., at 791 (quoting Clark v.
Community for Creative Non-Violence, 468 U. S. 288, 293
(1984)). Frisby again instructs us. A second reason we
sustained the ordinance banning targeted residential picket-
ing was because “ample alternativ[e]” avenues for communi-
cation remained open:
“ ‘Protestors have not been barred from the residential
neighborhoods. They may enter such neighborhoods,
alone or in groups, even marching. . . . They may go
door-to-door to proselytize their views. They may dis-
tribute literature in this manner . . . or through the
mails. They may contact residents by telephone, short
of harassment.’ ” 487 U. S., at 483–484 (quoting Brief
for Appellants in No. 87–168, O. T. 1987, pp. 41–42).
The residential picketing ordinance, the Court concluded,
“permit[ted] the more general dissemination of a message”
to the targeted audience. 487 U. S., at 483.
The same conclusion cannot be reached here. Door-to-
door distributions or mass mailing or telephone campaigns
are not effective alternative avenues of communication for
petitioners. They want to engage in peaceful face-to-face
communication with individuals the petitioners believe are
about to commit a profound moral wrong. Without the abil-
ity to interact in person, however momentarily, with a clinic
patron near the very place where a woman might elect to
receive an abortion, the statute strips petitioners of using
speech in the time, place, and manner most vital to the pro-
tected expression.
In addition to leaving petitioners without adequate means
of communication, the law forecloses peaceful leafletting, a
mode of speech with deep roots in our Nation’s history and

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
781 Cite as: 530 U. S. 703 (2000)
Kennedy, J., dissenting
traditions. In an age when vast resources and talents are
commanded by a sophisticated media to shape opinions on
limitless subjects and ideas, the distribution of leaflets on a
sidewalk may seem a bit antiquated. This case proves the
necessity for the traditional mode of speech. It must be re-
membered that the whole course of our free speech jurispru-
dence, sustaining the idea of open public discourse which is
the hallmark of the American constitutional system, rests to
a significant extent on cases involving picketing and leaflet-
ting. Our foundational First Amendment cases are based
on the recognition that citizens, subject to rare exceptions,
must be able to discuss issues, great or small, through the
means of expression they deem best suited to their purpose.
It is for the speaker, not the government, to choose the best
means of expressing a message. “The First Amendment,”
our cases illustrate, “protects [citizens’] right not only to ad-
vocate their cause but also to select what they believe to be
the most effective means for so doing.” Meyer v. Grant, 486
U. S. 414, 424 (1988). The Court’s conclusion that Colorado’s
8-foot no-approach zone protects citizens’ ability to leaflet or
otherwise engage in peaceful protest is untenable.
Given the Court’s holding, it is necessary to recall our
cases protecting the right to protest and hand out leaflets.
In Lovell v. City of Griffin, 303 U. S. 444 (1938), the Court
invalidated an ordinance forbidding the distribution of litera-
ture of any kind without the written permission of a city
official. “The liberty of the press,” the Court explained, “is
not confined to newspapers and periodicals.” Id., at 452.
“It necessarily embraces pamphlets and leaflets. These in-
deed have been historic weapons in the defense of liberty, as
the pamphlets of Thomas Paine and others in our own his-
tory abundantly attest. The press in its historic connotation
comprehends every sort of publication which affords a vehi-
cle of information and opinion.” Ibid.
In Schneider v. State (Town of Irvington), 308 U. S. 147
(1939), reinforcing Lovell, the Court struck down a series of

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
782 HILL v. COLORADO
Kennedy, J., dissenting
municipal ordinances prohibiting the distribution of handbills
on public streets on the rationale of preventing littering.
Schneider made clear that while citizens may not enjoy a
right to force an unwilling person to accept a leaflet, they do
have a protected right to tender it. The Court stressed a
basic First Amendment precept: “[T]he streets are natural
and proper places for the dissemination of information and
opinion; and one is not to have the exercise of his liberty of
expression in appropriate places abridged on the plea that it
may be exercised in some other place.” 308 U. S., at 163.
The words of the Court more than a half century ago demon-
strate the necessity to adhere to those principles today:
“Municipal authorities, as trustees for the public, have
the duty to keep their communities’ streets open and
available for movement of people and property, the pri-
mary purpose to which the streets are dedicated. So
long as legislation to this end does not abridge the con-
stitutional liberty of one rightfully upon the street to
impart information through speech or the distribution of
literature, it may lawfully regulate the conduct of those
using the streets. For example, a person could not ex-
ercise this liberty by taking his stand in the middle of
a crowded street, contrary to traffic regulations, and
maintain his position to the stoppage of all traffic; a
group of distributors could not insist upon a constitu-
tional right to form a cordon across the street and to
allow no pedestrian to pass who did not accept a ten-
dered leaflet; nor does the guarantee of freedom of
speech or of the press deprive a municipality of power
to enact regulations against throwing literature broad-
cast in the streets. Prohibition of such conduct would
not abridge the constitutional liberty since such activity
bears no necessary relationship to the freedom to speak,
write, print or distribute information or opinion.
“This court has characterized the freedom of speech
and that of the press as fundamental personal rights and

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
783 Cite as: 530 U. S. 703 (2000)
Kennedy, J., dissenting
liberties. The phrase is not an empty one and was not
lightly used. It reflects the belief of the framers of the
Constitution that exercise of the rights lies at the foun-
dation of free government by free men. It stresses, as
do many opinions of this court, the importance of pre-
venting the restriction of enjoyment of these liberties.
“In every case, therefore, where legislative abridg-
ment of the rights is asserted, the courts should be as-
tute to examine the effect of the challenged legislation.
Mere legislative preferences or beliefs respecting mat-
ters of public convenience may well support regulation
directed at other personal activities, but be insufficient
to justify such as diminishes the exercise of rights so
vital to the maintenance of democratic institutions.
And so, as cases arise, the delicate and difficult task falls
upon the courts to weigh the circumstances and to ap-
praise the substantiality of the reasons advanced in sup-
port of the regulation of the free enjoyment of the
rights.” Id., at 160–161 (footnote omitted).
After Lovell and Schneider the Court gave continued, ex-
plicit definition to our custom and practice of free and open
discourse by picketing and leafletting. In Thornhill v. Ala-
bama, 310 U. S. 88 (1940), the Court considered a First
Amendment challenge to a statute prohibiting “ ‘[l]oitering
or picketing’ ” near “ ‘the premises or place of business of
any . . . firm, corporation, or association of people, engaged
in a lawful business.’ ” Id., at 91. Petitioner was arrested,
charged, and convicted of violating the statute by engaging
in peaceful picketing in front of a manufacturing plant. Id.,
at 94–95. The Court invalidated the Alabama statute. The
breadth of Alabama’s speech restriction was one reason for
ruling it invalid on its face, just as it should be for the statute
we consider today:
“[Alabama Code § ] 3448 has been applied by the state
courts so as to prohibit a single individual from walking

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
784 HILL v. COLORADO
Kennedy, J., dissenting
slowly and peacefully back and forth on the public side-
walk in front of the premises of an employer, without
speaking to anyone, carrying a sign or placard on a staff
above his head stating only the fact that the employer
did not employ union men affiliated with the American
Federation of Labor; the purpose of the described activ-
ity was concededly to advise customers and prospective
customers of the relationship existing between the em-
ployer and its employees and thereby to induce such cus-
tomers not to patronize the employer.” Id., at 98–99
(footnote omitted).
The statute, in short, prohibited “whatever the means used
to publicize the facts of a labor dispute, whether by printed
sign, by pamphlet, by word of mouth or otherwise . . . so
long as it occurs in the vicinity of the scene of the dispute.”
Id., at 101.
The Court followed these observations with an explication
of fundamental free speech principles I would have thought
controlling in the present case:
“It does not follow that the State in dealing with the
evils arising from industrial disputes may impair the ef-
fective exercise of the right to discuss freely industrial
relations which are matters of public concern. A con-
trary conclusion could be used to support abridgment of
freedom of speech and of the press concerning almost
every matter of importance to society.
“The range of activities proscribed by § 3448, whether
characterized as picketing or loitering or otherwise,
embraces nearly every practicable, effective means
whereby those interested—including the employees di-
rectly affected—may enlighten the public on the nature
and causes of a labor dispute. The safeguarding of
these means is essential to the securing of an informed
and educated public opinion with respect to a matter
which is of public concern. It may be that effective ex-

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
785 Cite as: 530 U. S. 703 (2000)
Kennedy, J., dissenting
ercise of the means of advancing public knowledge may
persuade some of those reached to refrain from entering
into advantageous relations with the business establish-
ment which is the scene of the dispute. Every expres-
sion of opinion on matters that are important has the
potentiality of inducing action in the interests of one
rather than another group in society. But the group in
power at any moment may not impose penal sanctions
on peaceful and truthful discussion of matters of public
interest merely on a showing that others may thereby
be persuaded to take action inconsistent with its inter-
ests.” Id., at 104.
Carlson v. California, 310 U. S. 106 (1940), is in accord.
In the course of reversing Carlson’s conviction for engaging
in a peaceful protest near a construction project in Shasta
County, California, the Court declared that a citizen’s right
to “publiciz[e] the facts of a labor dispute in a peaceful way
through appropriate means, whether by pamphlet, by word
of mouth or by banner, must now be regarded as within that
liberty of communication which is secured to every person by
[the First Amendment through] the Fourteenth Amendment
against abridgment by a State.” Id., at 113.
The principles explained in Thornhill and Carlson were
reaffirmed a few years later in the context of speech on reli-
gious matters when an individual sought to advertise a meet-
ing of the Jehovah’s Witnesses by engaging in a door-to-door
distribution of leaflets. Martin v. City of Struthers, 319
U. S. 141 (1943). The petitioner was convicted under a city
ordinance which prohibited individuals from “distributing
handbills, circulars or other advertisements” to private resi-
dences. Id., at 142. The Court invalidated the ordinance,
reinforcing the vital idea today’s Court ignores:
“While door to door distributers of literature may be
either a nuisance or a blind for criminal activities, they
may also be useful members of society engaged in the

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
786 HILL v. COLORADO
Kennedy, J., dissenting
dissemination of ideas in accordance with the best tra-
dition of free discussion. The widespread use of this
method of communication by many groups espousing
various causes attests its major importance. ‘Pam-
phlets have proved most effective instruments in the
dissemination of opinion. And perhaps the most effec-
tive way of bringing them to the notice of individuals is
their distribution at the homes of the people.’ ” Id., at
145 (quoting Schneider, 308 U. S., at 164).
The Court’s more recent precedents honor the same princi-
ples: Government cannot foreclose a traditional medium of
expression. In City of Ladue v. Gilleo, 512 U. S. 43 (1994),
we considered a challenge to a municipal ordinance prohibit-
ing, inter alia, “such absolutely pivotal speech as [the display
of] a sign protesting an imminent governmental decision to
go to war.” Id., at 54. Respondent had placed a sign in a
window of her home calling “For Peace in the Gulf.” Id.,
at 46. We invalidated the ordinance, finding that the local
government “ha[d] almost completely foreclosed a venerable
means of communication that is both unique and important.”
Id., at 54. The opinion, which drew upon Lovell, Martin,
and Schneider, was also careful to note the importance of the
restriction on place imposed by the ordinance in question:
“Displaying a sign from one’s own residence often carries a
message quite distinct from placing the same sign someplace
else, or conveying the same text or picture by other means.”
512 U. S., at 56. So, too, did we stress the importance of
preserving the means citizens use to express messages bear-
ing on important public debates. See id., at 57 (“Residential
signs are an unusually cheap and convenient form of commu-
nication[,] [e]specially for persons of modest means or lim-
ited mobility . . .”).
A year later in McIntyre v. Ohio Elections Comm’n, 514
U. S. 334 (1995), we once more confirmed the privileged sta-
tus peaceful leafletting enjoys in our free speech tradition.
Ohio prohibited anonymous leafletting in connection with

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
787 Cite as: 530 U. S. 703 (2000)
Kennedy, J., dissenting
election campaigns. Invalidating the law, we observed as
follows: “ ‘Anonymous pamphlets, leaflets, brochures and
even books have played an important role in the progress of
mankind.’ ” Id., at 341 (quoting Talley v. California, 362
U. S. 60, 64 (1960)). We rejected the State’s claim that the
restriction was needed to prevent fraud and libel in its elec-
tion processes. Ohio had other laws in place to achieve
these objectives. 514 U. S., at 350. The case, we concluded,
rested upon fundamental free speech principles:
“Indeed, the speech in which Mrs. McIntyre engaged—
handing out leaflets in the advocacy of a politically con-
troversial viewpoint—is the essence of First Amend-
ment expression. That this advocacy occurred in the
heat of a controversial referendum vote only strength-
ens the protection afforded to Mrs. McIntyre’s expres-
sion: Urgent, important, and effective speech can be no
less protected than impotent speech, lest the right to
speak be relegated to those instances when it is least
needed. No form of speech is entitled to greater consti-
tutional protection than Mrs. McIntyre’s.” Id., at 347
(citations omitted).
Petitioners commenced the present suit to challenge a
statute preventing them from expressing their views on
abortion through the same peaceful and vital methods ap-
proved in Lovell, Schneider, Thornhill, Carlson, and McIn-
tyre. Laws punishing speech which protests the lawfulness
or morality of the government’s own policy are the essence
of the tyrannical power the First Amendment guards
against. We must remember that, by decree of this Court
in discharging our duty to interpret the Constitution, any
plea to the government to outlaw some abortions will be to
no effect. See Planned Parenthood of Southeastern Pa. v.
Casey, 505 U. S. 833 (1992). Absent the ability to ask the
government to intervene, citizens who oppose abortion must
seek to convince their fellow citizens of the moral imperative

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
788 HILL v. COLORADO
Kennedy, J., dissenting
of their cause. In a free society protest serves to produce
stability, not to undermine it. “The right to speak freely
and to promote diversity of ideas and programs is therefore
one of the chief distinctions that sets us apart from totalitar-
ian regimes.” Terminiello v. Chicago, 337 U. S. 1, 4 (1949).
As Justice Brandeis observed: “[The Framers] recognized
the risks to which all human institutions are subject. But
they knew that order cannot be secured merely through fear
of punishment for its infraction; that it is hazardous to
discourage thought, hope and imagination; that fear breeds
repression; that repression breeds hate; that hate menaces
stable government; that the path of safety lies in the oppor-
tunity to discuss freely supposed grievances and proposed
remedies; and that the fitting remedy for evil counsels is
good ones. Believing in the power of reason as applied
through public discussion, they eschewed silence coerced by
law—the argument of force in its worst form.” Whitney
v California, 274 U. S. 357, 375–376 (1927) (concurring
opinion).
The means of expression at stake here are of control-
ling importance. Citizens desiring to impart messages to
women considering abortions likely do not have resources
to use the mainstream media for their message, much less
resources to locate women contemplating the option of abor-
tion. Lacking the aid of the government or the media, they
seek to resort to the time honored method of leafletting and
the display of signs. Nowhere is the speech more important
than at the time and place where the act is about to occur.
As the named plaintiff, Leila Jeanne Hill, explained, “I en-
gage in a variety of activities designed to impart information
to abortion-bound women and their friends and families. . . .”
App. 49. “In my many years of sidewalk counseling I have
seen a number of [these] women change their minds about
aborting their unborn children as a result of my sidewalk
counseling, and God’s grace.” Id., at 51.

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
789 Cite as: 530 U. S. 703 (2000)
Kennedy, J., dissenting
When a person is walking at a hurried pace to enter a
building, a solicitor who must stand still eight feet away can-
not know whether the person can be persuaded to accept the
leaflet or not. Merely viewing a picture or brief message on
the outside of the leaflet might be critical in the choice to
receive it. To solicit by pamphlet is to tender it to the per-
son. The statute ignores this fact. What the statute re-
stricts is one person trying to communicate to another, which
ought to be the heart of civilized discourse.
Colorado’s excuse, and the Court’s excuse, for the serious
burden imposed upon the right to leaflet or to discuss is that
it occurs at the wrong place. Again, Colorado and the Court
have it just backwards. For these protesters the 100-foot
zone in which young women enter a building is not just the
last place where the message can be communicated. It
likely is the only place. It is the location where the Court
should expend its utmost effort to vindicate free speech, not
to burden or suppress it.
Perhaps the leaflet will contain a picture of an unborn
child, a picture the speaker thinks vital to the message.
One of the arguments by the proponents of abortion, I had
thought, was that a young woman might have been so unin-
formed that she did not know how to avoid pregnancy. The
speakers in this case seek to ask the same uninformed
woman, or indeed any woman who is considering an abortion,
to understand and to contemplate the nature of the life she
carries within her. To restrict the right of the speaker to
hand her a leaflet, to hold a sign, or to speak quietly is for
the Court to deny the neutrality that must be the first princi-
ple of the First Amendment. In this respect I am in full
agreement with Justice Scalia’s explanation of the insult
the Court gives when it tells us these grave moral matters
can be discussed just as well through a bullhorn. It would
be remiss, moreover, not to observe the profound difference
a leaflet can have in a woman’s decisionmaking process.

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
790 HILL v. COLORADO
Kennedy, J., dissenting
Consider the account of one young woman who testified be-
fore the Colorado Senate:
“Abortion is a major decision. Unfortunately, most
women have to make this decision alone. I did and I
know that I’m not the only one. As soon as I said the
word ‘pregnant,’ he was history, never to be heard of,
from again. I was scared and all alone. I was too em-
barrassed to ask for help. If this law had been in effect
then, I would not have got any information at all and
gone through with my abortion because the only people
that were on my side were the people at the abortion
clinic. They knew exactly how I was feeling and what
to say to make it all better. In my heart, I knew abor-
tion was wrong, but it didn’t matter. I had never taken
responsibility for my actions so why start then. One of
the major reasons I did not go through with my sched-
uled abortion was a picture I was given while I was
pregnant. This was the first time I had ever seen the
other side of the story. I think I speak for a lot of
women, myself included, when I say abortion is the only
way out because of [sic] it’s all I knew. In Sex Educa-
tion, I was not taught about adoption or the fetus or
anything like that. All I learned about was venereal
diseases and abortion. The people supplying the pam-
phlet helped me make my choice. I got an informed
decision, I got information from both sides, and I made
an informed decision that my son and I could both live
with. Because of this picture I was given, right there,
this little boy got a chance at life that he would never
have had.” Id., at 167–168.
There are, no doubt, women who would testify that abortion
was necessary and unregretted. The point here is simply
that speech makes a difference, as it must when acts of last-
ing significance and profound moral consequence are being
contemplated. The majority reaches a contrary conclusion

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
791 Cite as: 530 U. S. 703 (2000)
Kennedy, J., dissenting
only by disregarding settled free speech principles. In
doing so it delivers a grave wound to the First Amendment
as well as to the essential reasoning in the joint opinion in
Casey, a concern to which I now turn.
IV
In Planned Parenthood of Southeastern Pa. v. Casey, the
Court reaffirmed its prior holding that the Constitution pro-
tects a woman’s right to terminate her pregnancy in its early
stages. The majority opinion in Casey considered the wom-
an’s liberty interest and principles of stare decisis, but took
care to recognize the gravity of the personal decision:
“[Abortion] is an act fraught with consequences for others:
for the woman who must live with the implications of her
decision; for the persons who perform and assist in the proce-
dure; for the spouse, family, and society which must confront
the knowledge that these procedures exist, procedures some
deem nothing short of an act of violence against innocent
human life; and, depending on one’s beliefs, for the life or
potential life that is aborted.” 505 U. S., at 852.
The Court now strikes at the heart of the reasoned, careful
balance I had believed was the basis for the opinion in Casey.
The vital principle of the opinion was that in defined in-
stances the woman’s decision whether to abort her child was
in its essence a moral one, a choice the State could not dic-
tate. Foreclosed from using the machinery of government
to ban abortions in early term, those who oppose it are re-
mitted to debate the issue in its moral dimensions. In a
cruel way, the Court today turns its back on that balance.
It in effect tells us the moral debate is not so important after
all and can be conducted just as well through a bullhorn from
an 8-foot distance as it can through a peaceful, face-to-face
exchange of a leaflet. The lack of care with which the Court
sustains the Colorado statute reflects a most troubling abdi-
cation of our responsibility to enforce the First Amendment.

530US2 Unit: $U83 [11-21-01 16:28:00] PAGES PGT: OPIN
792 HILL v. COLORADO
Kennedy, J., dissenting
There runs through our First Amendment theory a con-
cept of immediacy, the idea that thoughts and pleas and peti-
tions must not be lost with the passage of time. In a fleeting
existence we have but little time to find truth through dis-
course. No better illustration of the immediacy of speech,
of the urgency of persuasion, of the preciousness of time, is
presented than in this case. Here the citizens who claim
First Amendment protection seek it for speech which, if it is
to be effective, must take place at the very time and place a
grievous moral wrong, in their view, is about to occur. The
Court tears away from the protesters the guarantees of the
First Amendment when they most need it. So committed is
the Court to its course that it denies these protesters, in the
face of what they consider to be one of life’s gravest moral
crises, even the opportunity to try to offer a fellow citizen a
little pamphlet, a handheld paper seeking to reach a higher
law.
I dissent.