Hill v. Colorado, 530 U.S. 703, 51 (2000)

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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 American 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 pursued 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 recognized the interests of unwilling listeners" in locations, such as public conveyances, where " 'the degree of captivity makes it impractical for the unwilling viewer or auditor to avoid exposure,' " ante, at 718 (quoting Erznoznik 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).

753

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