Hill v. Colorado, 530 U.S. 703, 45 (2000)

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Cite as: 530 U. S. 703 (2000)

Scalia, J., dissenting

An ordinance directed at the suppression of noise (and therefore "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 prohibition of facially content-based restrictions. "Selective exclusions from a public forum," we said, "may not be based on content alone, and may not be justified by reference to content 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 effects" of speech are directly addressed in subsection (2) of the statute, which makes it unlawful to obstruct, hinder, impede, or block access to a health care facility—a prohibition broad enough to include all physical threats and all physically threatening approaches. The purpose of subsection (3), however (according to the Court), is to protect "[t]he unwilling listener's interest in avoiding unwanted communication," ante, at 716. On this analysis, Colorado has restricted certain categories of speech—protest, counseling, and education—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 counselor"—who wishes to "educate" the woman entering an abortion clinic about the nature of the procedure, to "counsel" against it and in favor of other alternatives, and perhaps even (though less likely if the approach is to be successful) to "protest" her taking of a human life—will often, indeed usually, have what might be termed the "secondary effect" of annoying or deeply upsetting the woman who is planning

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