California Law Would Limit Free Speech at Vaccination Sites

( Reason )

A new bill in California would limit free speech in the vicinity of COVID-19 vaccination sites. Violators could be punished by six months in jail and/or a $1,000 fine.

The measure (SB 742) would make it a crime to "approach within 30 feet of any person while a person is making the approach within 100 feet of the entrance of a vaccination site and is seeking to enter or exit a vaccination site, or any occupied motor vehicle seeking entry or exit, for the purpose of obstructing, injuring, harassing, intimidating, or interfering with that person or vehicle occupant in connection with any vaccination services." But prohibited actions here wouldn't just be what we think of typically as harassment or intimidation; they would also include "the nonconsensual and knowing approach within 30 feet of another person or occupied vehicle for the purpose of passing a leaflet or handbill, displaying a sign to, or engaging in oral protest, education, or counseling with that other person in a public way or on a sidewalk area."

That means protesters and pamphleteers would be required to have the express permission of everyone they encountered around the vaccination site or else be in violation of the law.

This is "clearly unconstitutional," opines legal scholar and blogger Eugene Volokh at The Volokh Conspiracy. "The First Amendment protects speech on public sidewalks, including offering leaflets, displaying signs, or conveying oral messages to people who haven't 'consen[ted]' (whether because they haven't thought about the matter, or even if they affirmatively don't want to see the sign or hear the message)."

The Supreme Court has allowed a Colorado law banning "'knowingly approach[ing]' within eight feet of another person [near a medical facility], without that person's consent, '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.'"

But this ban was much shorter in distance—8 feet, versus the 30 feet proposed in the California bill—and in its 2000 decision, the Court specifically contrasted this to a 15-foot anti-speech zone it struck down in a 1997 case (Schenck v. Pro-Choice Network). More recently, in the 2014 case McCullen v. Coakley, the Court struck down a 35-foot free speech buffer zone around abortion clinics.

The Colorado law was also content neutral—that is, it applied outside any type of medical facility, not just vaccination sites. "Such subject-matter restrictions are unconstitutional, see, e.g., Carey v. Brown (1981) (holding that a residential picketing ban that applied only to nonlabor picketing was unconstitutionally content-based); Reed v. Town of Gilbert (2015) (holding that a sign ordinance that treated political signs, ideological signs, and signs giving directions to certain events differently was unconstitutionally content-based)," notes Volokh.

In the past, the American Civil Liberties Union (ACLU) has gone to bat against these types of restrictions, but "the American Civil Liberties Union said it has no issues with it [SB 742] as written," California Healthline reported.

Kevin Baker, ACLU California Action's director of governmental relations, told Volokh: "Were we to write the law ourselves, we might draw a somewhat different line. But we feel pretty confident that the courts would uphold SB 742 based on the buffer zone/bubble case law largely drawn from the fairly analogous context of reproductive health services. To be clear, however, we are not supportin/g (sic) the bill—we are simply neutral."

The bill is on track to full passage soon, having already passed the California Senate 33–4 and cleared the Assembly's public safety committee.

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