Hill v. Colorado, 530 U.S. 703, 55 (2000)

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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 amplification 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 development?" 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 organizer 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 outstretched hand. That simply is not how it is done, and the

757

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