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101 HVLR 1856 Page 1101 Harv. L. Rev. 1856

Harvard Law Review

June, 1988

Note

*1856 TOO CLOSE FOR COMFORT: PROTESTING OUTSIDE MEDICAL FACILITIES

Copyright 1988 by the Harvard Law Review Association

Courts have long recognized that the right of free speech is not absolute. When speakers' interests conflict withthose of unwilling listeners, ‘the right of every person ‘to be let alone’ must be placed in the scales with the right of

others to communicate.' [FN1] Although courts generally strike this balance in favor of speakers, [FN2] they are

willing to protect listeners when ‘substantial privacy interests are invaded in an essentially intolerable manner.’

[FN3]

In protecting unwilling listeners from unwanted speech, courts sometimes rely on physical boundaries to define

the locus of privacy interests that merit protection. Thus, speech that intrudes beyond the walls of one's home [FN4]

or the lid of one's mailbox [FN5] can be regulated. Outside the home, however, courts have been more reluctant to

recognize a zone of privacy within which individuals may take shelter from unwanted speech. [FN6]

In recent years, listeners' privacy interests have come into sharp conflict with speakers' interests outside abortion

clinics. There, antiabortion protesters have engaged in a variety of protest activities that some lawmakers describe as

‘harassment’ and ‘intimidation.’ [FN7] Protesters have chased patients outside abortion clinics, waved dismembered

dolls splattered with red paint, and screamed epithets and threats at both patients and staff, [FN8] sometimes forcing

proximity on listeners to *1857 enhance the dramatic impact of their speech. [FN9] Clinic staff members have

testified that the stress induced by these encounters has endangered the health of abortion patients and interfered

with their care, [FN10] thus prompting judicial and legislative concern. [FN11]

One city, faced with aggressive protest activity outside abortion clinics, devised a novel approach to balance the

competing interests of speakers and unwilling listeners. In 1987, Boulder, Colorado passed an ordinance to protect

patients seeking abortions and other types of medical care from especially intrusive unwanted speech. Boulder's

‘bubble zone ordinance’ establishes a 100-foot buffer zone around every entrance to a licensed medical facility.

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.






communicative value. For example, ‘sidewalk counseling’—the attempt to engage individual listeners in discussion

[FN26] —might be much easier to initiate when counselors are free to approach potential listeners closely.

Leafleting, too, might be much more effective if leafleters can wave their pamphlets before the eyes of their targets.

The use of small visual aids—such as fetuses in glass jars [FN27] —also is likely to have greater communicative

impact the more closely these objects are displayed.

Forced proximity also might have communicative value as a form of ‘symbolic speech’ [FN28] that conveys a

message of its own. Although a speaker who raises her voice above the conversational level might become irritating

to listeners, she also might enhance the dramatic impact of her message. Similarly, a speaker who approaches closer

than is necessary to be seen or heard might underscore the intensity of her beliefs. In fact, the expressive value of

unnecessary proximity might be heightened when the proximity is forced, in part because forced proximity reflects

the speaker's willingness to risk a listener's hostile response.

Not all expressive conduct, however, is shielded by the first amendment. In order to prevent an unlimited range

of conduct from receiving*1861 first amendment protection, the Supreme Court extends protection only to

expressive conduct that is sufficiently ‘communicative.’ Under the test developed in Spence v. Washington, [FN29]

the Court requires not only that the actor intend her conduct to be expressive, but also that the listener be likely to

recognize the actor's intended message. [FN30] Forced proximity by leafleters, picketers, and oral advocates is

likely to satisfy this standard. Those engaged in such activity can argue persuasively that they intend to convey a

particular message by forcing proximity. [FN31] In addition, those witnessing forced proximity by leafleters,

picketers, and advocates are likely to recognize the protesters' proximity as at least somewhat expressive. [FN32] In

Community for Creative Non-Violence v. Watt , [FN33] the D.C. Circuit Court of Appeals applied the Spence test to

find that sleeping in a public park was communicative activity. Because the demonstration included tents, placards,

and verbal explanations, and because it was located across from the White House and Capitol grounds, the court

found that the demonstrators clearly intended to convey a message about *1862 the plight of the homeless and that

those who were likely to witness the demonstration probably would recognize its intended message. [FN34]

In sum, forced proximity combined with speech has expressive value. Because it might serve to transmit and

amplify speech, facilitate particular modes of expression, enhance the dramatic impact of speech, and convey

symbolic messages, it constitutes expressive activity that merits first amendment protection.

II. REGULATING FORCED PROXIMITY OUTSIDE MEDICAL FACILITIES

Although forced proximity has expressive value, it might at times pose harms that justify its




restriction. Although a substantial amount of forced proximity might be unavoidable in a densely populated society,

forced proximity by protesters outside medical facilities poses an especially serious threat to the privacy and health

interests of patients at those facilities.

Bubble zone protection outside medical facilities can be structed as a reasonable time, place, and manner

restriction of protected speech. [FN35] Boulder's bubble zone ordinance, in particular, satisfies three of the four

requirements for such restrictions: it serves substantial government interests, [FN36] singles out no specific

messages for *1863 suppression, [FN37] and leaves open ample alternative means of expression. [FN38] With one

small modification, the ordinance would satisfy the remaining requirement of narrow tailoring. [FN39] Thus, a

modified version of Boulder's bubble zone ordinance can survive constitutional scrutiny as a reasonable time, place,

and manner restriction of protected speech.

A. The Government's Interests

The Supreme Court permits the state to protect listeners who are ‘captive’ to unwanted speech—when speech

invades their privacy interests in an essentially intolerable manner. [FN40] Although the Court has not articulated

precisely which privacy interests trigger captive audience protection, [FN41] it appears to permit states to protect

two types of privacy interests: the interest in ‘repose’—freedom from unwanted intrusions [FN42] —and the interest

in autonomy or freedom of though. [FN43] Repose might, at times, serve the interest in autonomy: as Justice

Frankfurter wrote in his concurrence in Kovacs v. Cooper , [FN44] the state should be free to ‘safeguard the

steadily narrowing opportunities for serenity and reflection. Without such opportunities freedom of thought becomes

a mocking phrase, and without freedom of thought there can be no free society.’ [FN45]

Because of the weight of privacy interests at home, courts have proved more willing to protect listeners inside

their homes than outside. Outside the home, the burden usually falls on the listener to avoid unwanted speech.

[FN46] Nevertheless, courts have at times protected*1864 unwilling listeners on city buses, [FN47] in airport

ticket lines, [FN48] and on public streets, [FN49] finding privacy interests substantially threatened whenever

individuals cannot escape “bombardment of their sensibilities.” [FN50]

Forced proximity as a means of expression represents a form of ‘bombardment’ that is extremely difficult to

escape. Unwilling listeners might find it extremely difficult to walk away, avert their eyes, or block their ears from

speakers willing and able to pursue them at close proximity. Like speakers who mechanically amplify their speech

to a volume listeners are ‘practically helpless to escape,’ [FN51] speakers who pursue their targets at close

proximity ‘amplif y their speech beyond any reasonable means of avoidance.’ [FN52]




Patients outside medical facilities merit greater protection from forced proximity than do the average passers-by

on public streets, because the former are more vulnerable to capture than the latter. Patients seeking medical care

cannot avoid unwanted speech by avoiding the forum outside medical facilities; [FN53] they must pass through that

forum if they are to receive care from licensed providers. [FN54] In addition, unless patients can hide themselves in

large crowds of nonpatient passers-by, [FN55] they are easy to identify and single out for capture.

Moreover, unwanted speech may be especially ‘intrusive’ in this setting, given patients' physical vulnerability to

stress. Forced proximity combined with unwanted speech threatens not only patients' *1865 repose and autonomy

[FN56] but their health as well. [FN57] The Supreme Court has recognized that certain types of speech, even in the

absence of badgering or harassment, can significantly interfere with the health and well-being of patients:

Hospitals, after all, are not factories or mines or assembly plants. They are hospitals, where human

ailments are treated, where patients and relatives alike are under emotional strain and worry, where pleasing

and comforting patients are principal facets of the day's activity, and where the patient and his family . . .

need a restful, relaxing, and helpful atmosphere, rather than one remindful of the tensions of the marketplace

in addition to the tensions of the sickbed. [FN58]

Even speech just outside of medical facilities threatens the health and care of patients inside those

facilities. Patients who are upset by speech as they approach a medical facility, for example, might remain upset

after they enter the facility to receive medical care. [FN59] Similarly, patients receiving care inside the facility might

become upset when they realize they will encounter stressful speech upon their departure. [FN60] Medical staff

members at abortion clinics, where protest activity has been especially aggressive in recent years, have testified that

such activity leaves patients crying and in great distress, [FN61] inducing *1866 stress that complicates their

counseling, [FN62] increases their health risks, [FN63] and prolongs their recovery time. [FN64]

Admittedly, it is difficult to measure just how much stress is caused by forced proximity combined with

speech. After all, many other aspects of protest activity might upset patients outside these clinics. Experts have

testified, however, that forced proximity interacts with other types of speech and behavior to magnify stress effects.

[FN65] Restricting forced proximity outside hospitals therefore would eliminate a significant threat to patients' well-

being.

Boulder's bubble zone ordinance is specifically designed to protect medical patients from the stressful effects of

forced proximity in combination with unwanted speech within 100 feet of the entrances to medical facilities. [FN66]

The ordinance thus protects patients against bombardment only where such protection is most needed—where




forced proximity is most likely to capture an audience especially vulnerable to the adverse effects of captivity.

[FN67]

B. Content Neutrality

Courts are extremely wary of restrictions that single out speech on the basis of its subject matter or

viewpoint. Such ‘content-based’ restrictions [FN68] are subject to heightened scrutiny [FN69] because they

threaten to undermine important first amendment values by treating speakers *1867 unequally, subjecting listeners

to paternalistic censorship, permitting government to discriminate against ideas, and distorting debate in the

marketplace. [FN70]

The version of bubble zone protection created by Boulder's bubble zone ordinance is content neutral [FN71] on

its face because it restricts speech by all protesters regardless of the subjects they address or the viewpoints they

advance. In protecting individual privacy and health interests, the ordinance aims not at the content of speech but at

the manner in which it is expressed.

Admittedly, the apparently content-neutral language of Boulder's bubble zone ordinance may may contain hints

of content bias. Because the ordinance restricts only certain types of speech in conjunction with forced proximity—

picketing, leafleting and oral advocacy [FN72] —it singles out speech that is likely to be provocative or

controversial. In addition, because the ordinance restricts forced proximity only around medical facilities, it arguably

singles out speech on subjects especially relevant to that forum.

Almost no restriction on speech, however, can ever be purely content neutral in effect; all restrictions are likely

to introduce some degree of distortion into the marketplace of ideas. [FN73] Even ‘reasonable time, place and

manner restrictions' distort the marketplace somewhat by burdening messages that may be especially well-suited to

the specific times, places and manners of expression subject to restriction. [FN74] The Court does not, however,

treat these restrictions as inherently content specific. The Court applies a lower level of scrutiny to time, *1868

place, and manner restrictions because they generally do not threaten the marketplace of ideas with the same degree

of distortion as viewpoint or subject-specific ordinances. [FN75]

Boulder's bubble zone ordinance similarly is unlikely to introduce a level of distortion sufficient to merit

heightened scrutiny. Although the ordinance singles out advocacy outside medical facilities, it restrains speech on a

variety of subjects equally. In addition, because the ordinance leaves open ample alternative means of expression




for those who wish to engage in advocacy outside medical facilities, it does not remove speakers or messages

entirely from that forum. [FN76] Thus, the ordinance restricts content no more than do permissible restrictions

aimed specifically at ‘demonstrations' and ‘picketing’ outside courthouses, jails, and other public facilities. [FN77]

Indeed, the ordinance can be viewed as improving rather than distorting the marketplace of ideas. It does not

introduce or force government preferences into the market; it simply permits listeners greater freedom to pick and

choose among competing ideas. The ordinance shields only unwilling listeners from intrusive speech; willing

listeners can continue to receive information conveyed by speakers' proximity outside medical facilities. [FN78] The

ordinance thus reflects the premise of the marketplace of ideas: that ideas should compete on the basis of their

‘appeal’ to listeners. [FN79]

Because any bubble zone ordinance is likely to be passed in response to specific protest activity, opponents of

such an ordinance might argue that its content-neutral language masks content-specific motives. In Boulder's case,

for example, the legislative record in Buchanan indicates that the Boulder City Council relied almost exclusively on

evidence related to anti-abortion protests at abortion *1869 clinics. [FN80] In addition, Boulder's City Attorney

stated in Buchanan that the City Council extended the ordinance to cover all medical facilities, not because there

was evidence of forced proximity outside other facilities, but because the city feared that the ordinance might

otherwise appear content based. [FN81]

The Supreme Court, however, appears to view legislative motive as largely irrelevant in free speech cases.

[FN82] As the Court noted in O'Brien, ‘It is a familiar principle of law that this Court will not strike down an

otherwise constitutional statute on the basis of an alleged illicit motive.’ [FN83] Although there is evidence that the

Court is resurrecting motive analysis in cases involving other constitutional claims, [FN84] it continues to defer to

the express motivation of legislatures in free speech cases. [FN85]

In addition, even if the Court resurrected motive analysis in free speech cases, the evidence regarding the

Boulder City Council's motives is inconclusive. That the Buchanan record refers almost exclusively to anti-abortion

protesters might reflect the fact that only those protesters had forced proximity on unwilling targets at that time.

[FN86] Although the Council therefore might have predicted that the ordinance would have a disproportionate

impact on anti-abortion protesters (at least in the short run), one cannot infer content bias from this observation

alone. To interpret initially disparate impact as conclusive evidence of content-specific motivation would permit any

group to insulate itself from otherwise legitimate restrictions by being the first group, and the only group at a given

time, to employ a particularly troubling means of expression. [FN87]




In fact, the Court permits legislature to anticipate problems that might arise if additional parties seek to engage

in the activity targetted for restriction. In Clark v. Community for Creative Non-Violence, [FN88] *1870 the Court

noted that a regulation prohibiting demonstrators from sleeping in a national park ‘need not be judged solely by

reference to the demonstration at hand. Absent the prohibition on sleeping, there would be other groups who would

demand permission to deliver an asserted message by sleeping in Lafayette Park.’ [FN89] Because the bubble zone

ordinance restricts speech outside all medical facilities, it is, in the long run, likely to affect protests on a variety of

subjects. Over the years, for example, medical facilities have been the focus of controversy on a wide range of

issues, including hospital working conditions, [FN90] clinic closing plans, [FN91] services for the elderly poor,

[FN92] and procedures for protecting the privacy of AIDS patients. [FN93] One commentator has suggested:

the critical motivational inquiry is not whether the government officials would have adopted the

restriction even if they did not disfavor the restricted speech, but whether they would have adopted it even if it had been directed at speech they themselves supported. The concern, in other words, . . . [is that] they

should act in an evenhanded manner and thus treat disfavored ideas with the same respect they would accord

to the ideas that they support. [FN94]

The City Council's willingness to extend the ordinance to all medical facilities, thereby constraining speakers

representing a variety of viewpoints, is additional evidence of the city's desire not to single out a specific message or

subject of speech for suppression. [FN95]

*1871 In any case, because the bubble zone ordinance leaves open ample alternative means of expression for

protesters outside these facilities, [FN96] courts are likely to disregard its potentially disparate impact. [FN97]

Restrictions that leave open ample alternative means of expression introduce only minimal distortion into the

marketplace. [FN98]

C. Ample Alternatives

The concept of bubble protection embodied in the bubble zone ordinance further meets the requirements of a

valid time, place, and manner restriction by leaving open ample alternative means for communicating with the same

audience in the same forum. When targets are willing to grant protesters proximity, the ordinance imposes no

restrictions on speech at all. It is only when targets are unwilling to grant proximity that protesters are constrained

by the ordinance, and then only in a minimal fashion: protesters are free to pursue even unwilling targets within the

buffer zone as long as they remain eight feet away.

Clearly, the ordinance burdens certain specific means of expression. Sidewalk counselors, leafleters, and other




speakers might find their communicative impact limited if forced to speak to potential listeners from eight or more

feet away. [FN99] Nevertheless, speakers do not have an absolute right to speak ‘whenever and however and

wherever they please.” [FN100] In fact, the substance of any message that can be conveyed by forced proximity

can be conveyed by other means from a distance of eight feet. Vocal speech can still be heard, signs can still be

read, and pamphlets and gestures can still be seen. Small objects can be photographed and enlarged for display on

picket signs. Even nonverbal symbolic speech can be translated into verbal or other nonverbal speech capable of

communication from a distance of eight feet. The bubble zone ordinance thus leaves protesters with an only

marginally diminished ability to reach the same audience with the same message. As the court in Buchanan noted, ‘

a ll the ordinance is *1872 going to do is clear a little space when a patient goes outside. The protesters are still

going to be out there picketing.’ [FN101]

D. Narrow Tailoring

Restrictions on speech must be narrowly tailed to advance the interests they are designed to serve. [FN102] A

bubble zone ordinance satisfies this requirement because it is the least restrictive means for serving the government's

interests. Existing legal protections might appear less restrictive, but they fail to reach all of the harmful conduct

covered by the bubble zone ordinance. Trespass ordinances, for example, protect targets only on private property;

they do not protect targets on public streets or sidewalks. [FN103] Assault statutes and similar ordinances prohibit

only forced proximity that leads to actual contact or fear of imminent contact; they do not proscribe forced

proximity that is merely upsetting or intrusive. Blocking ordinances protect targets only from forced proximity that

impedes their entry into or exit from the facilities. [FN104] Thus, even under trespass, assault, or blocking

ordinances, protesters legally could chase patients down sidewalks and into the streets, shouting within inches of

their ears.

Ordinances prohibiting disorderly conduct or breaches of the peace also fail to serve the government's interests

as well as the bubble zone ordinance serves them. Because these ordinances rely heavily on subjective assessments

by law enforcement officers, they are vulnerable to problems inherent in subjective standards. Overzealous law

enforcement officials might overenforce these restrictions [FN105] and underzealous officials might underenforce

them. In the end, enforcement overall might be highly inconsistent. [FN106] The bubble zone ordinance, *1873 by

creating eight-foot bubbles and one hundred-foot buffer zones, provides clearer rules to guide enforcement. [FN107]

Applying bubble zone protection as a form of injunctive relief is not an appealing alternative to a citywide

bubble zone ordinance. Although the use of injunctions would permit courts to apply bubble zone protection to

specific sites targetted by specific protestors, these injunctions probably would constitute ‘prior restraint,’ [FN108]




forcing those seeking injunctive relief to meet an especially high burden of persuasion. [FN109] In addition, only

clinics capable of bearing the financial burdens of litigation could obtain injunctive relief. Further, injunctive relief

might limit only a subset of protesters outside these clinics. In the abortion context, several courts enjoining speech

outside abortion clinics have enjoined only named individuals and their coconspirators, [FN110] leaving clinics

vulnerable to protesters not included within the scope of the injunctions. [FN111]

*1874 Although a bubble zone ordinance appears to be the least restrictive means possible for serving the

government's interests, [FN112] Boulder's bubble zone ordinance can be narrowed in one small way without

significantly altering its structure. Boulder's ordinance currently imposes bubbles around all targets of advocacy,

whether or not they affirmatively invoke them; it thus presumptively excludes all advocacy from within eight feet of

an individual until that individual affirmatively lifts her bubble. Because a protester violates the ordinance by

approaching a target too closely without the target's express oral consent, [FN113] the ordinance is likely todiscourage her attempt to test the receptivity of her target. [FN114] Slightly modifying the ordinance so that bubbles

exist only around those who affirmatively invoke them—for example, by making ‘such imperative statements as

‘stop,’ ‘withdraw,’ ‘back off,’ or ‘leave me alone” [FN115] —would leave protesters sufficient opportunity to test

the receptivity of their targets while leaving targets free to invoke their bubbles as needed.

*1875 III. CONCLUSION

Forced proximity by those engaged in otherwise protected speech constitutes expressive activity worthy of first

amendment protection. Nevertheless, when employed outside medical facilities to foist speech on unwilling

listeners, it threatens to undermine the special privacy and health interests of patients outside those facilities.

Boulder's bubble zone ordinance, if amended to provide bubble protection only when protection is affirmatively

invoked, would be a constitutional means of protecting patients outside medical facilities. The modified ordinance

would leave open ample alternative means of expression and would restrict speech as little as possible in order to

protect the captive audience of medical patients found outside these facilities. [FN116] It would therefore represent a

valid time, place, and manner restriction on protected speech. Although the realities of modern life might make it

impractical or inappropriate to extend bubble zone protection to all unwilling audiences found anywhere outside the

home, the special needs and vulnerability of the audience outside medical facilities suggests that Boulder's bubble

zone ordinance appropriately protects privacy interests where they are most vulnerable to invasion by unwanted

speech.

[FN1] Rowan v. United States Post Office Dep't, 397 U.S. 728, 736 (1970). Justice Brandeis once described ‘the

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right to be let alone’ as ‘the most comprehensive of rights and the most valued by civilized men.’ Olmstead v.

United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting).

[FN2] See, e.g., Erznoznik v. City of Jacksonville, 422 U.S. 205, 210-11 (1975) (noting that in most circumstances

the burden falls on the listener to avoid unwanted speech).

[FN3] Cohen v. California, 403 U.S. 15, 21 (1971).

[FN4] See, e.g., FCC v. Pacifica Found., 438 U.S. 726, 748 (1978); Rowan, 397 U.S. at 737.

[FN5] See Rowan, 397 U.S. at 736-37.

[FN6] Outside the home, ‘the burden normally falls upon the viewer to ‘avoid further bombardment of [his]

sensibilities simply by averting [his] eyes.’' Erznoznik , 422 U.S. at 210-11 (quoting Cohen, 403 U.S. at 21).

However, courts do permit states to protect listeners who cannot easily escape bombardment by unwanted speech.

See, e.g., Lehman v. City of Shaker Heights, 418 U.S. 298 (1973) (protecting listeners inside public buses from

political advertising); Kovacs v. Cooper, 336 U.S. 77 (1949) (protecting listeners in and outside their homes from

loud and raucous noise); International Soc'y for Krishna Consciousness, Inc. v. Rochford, 585 F.2d 263 (7th Cir.

1978) (protecting passengers in line at airport ticket counters from religious solicitation).

[FN7] See American College of Obstetricians & Gynecologists v. Thornburgh, 613 F. Supp. 656, 666 (E.D. Pa.

1985); Abortion Clinic Violence: Oversight Hearings Before the Subcomm. on Civil and Constitutional Rights of the

House Comm. on the Judiciary, 99th Cong., 1st & 2d Sess. 1, 3, 130 (1987) [hereinafter Oversight Hearings].

[FN8] See, e.g., Thornburgh, 613 F. Supp. at 661-63; Oversight Hearings, supra note 7, at 7-8, 23 (statements of

Heather Green, Director of Community Education, Hillcrest Clinics, Norfolk, Va. & Beverly Whipple, Executive

Director, Feminist Women's Health Center, Yakima, Wash.); ACLU REPRODUCTIVE FREEDOM PROJECT,

PRESERVING THE RIGHT TO CHOOSE: HOW TO COPE WITH VIOLENCE AND DISRUPTION AT

ABORTION CLINICS 7 n.14 (1986) [hereinafter ACLU, PRESERVING THE RIGHT TO CHOOSE].

[FN9] See, e.g., Thornburgh, 613 F. Supp. at 663 (describing incidents in which protesters jumped in front of cars

and blocked entrances to clinics); Bering v. Share, 106 Wash. 2d 212, 218, 721 P.2d 918, 923 (Wash. 1986)

(referring to incidents in which protesters grabbed patients and staff and blocked passage to and from the clinic);
























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Oversight Hearings, supra note 7, at 23 (statement of Beverly Whipple) (describing how protesters shoved picket

signs into the faces of some women entering an abortion clinic).

[FN10] See infra pp. 1865-66.

[FN11] Courts are divided over whether injunctions against protest activities outside abortion clinics violate the first

amendment. Compare Women's Suburban Clinic v. Melson, No. 84-0488 (Pa. Commw. Ct. July 30, 1987)

(restricting the number and location of protesters outside an abortion clinic) with Feminist Women's Health Center

v. Women Exploited by Abortion, No. 83-2-04142-8 (Wash. Super. Ct. 1984) (mem.) (restricting certain types of

protest activities outside an abortion clinic but refusing to limit the number of protesters or the content of their

speech). Several cases in which courts have considered enjoining protesters outside abortion clinics are described in

ACLU, PRESERVING THE RIGHT TO CHOOSE, cited above in note 8, at 43-48. Although Congress has held

public hearings to review the nature and scope of protest activity outside abortion clinics, it has not responded with

legislation. See Oversight Hearings, supra note 7.

[FN12] The statute reads in pertinent part:

(a) No first person seeking to pass a leaflet or handbill to or display a sign to or engage in oral protest,

education, or counseling with a second person, in the public way or sidewalk area within a radius of one

hundred feet from any entrance door to a health care facility, shall approach closer than eight feet from such

second person, unless such second person gives express oral consent to do so.

(b) Immediately upon request of a second person to whom a first person is seeking to pass a leaflet or

handbill or to display a sign or with whom a first person is seeking to engage in oral protest, education, or

counseling in the public way or sidewalk area within a radius of one hundred feet from any entrance door to a

health care facility, no such person shall fail to withdraw to at least eight feet from such second person or, in

the alternative, to discontinue all efforts at passing such leaflet or handbill or displaying such sign or

engaging in such protest, education, or counseling. Without limitation, such imperative statements as ‘stop,’

‘withdraw,’ ‘back off,’ ‘get away,’ or ‘leave me alone’ shall be sufficient to constitute a request under this

subsection.

BOULDER, COLO., REV. CODE § 5-3-10 (1981 & Supp. 1987) (‘Harassment Near Health Care Facility’).

Although in Boulder this ordinance is referred to colloquially as the ‘buffer zone ordinance,’ this Note refers to it as

the ‘bubble zone ordinance’ to distinguish it from other types of buffer zone restrictions that lack the mobile

‘bubble’ element described below at p. 1858. For examples of other types of buffer zones, see Boos v. Barry, 108 S.






Ct. 1157 (1988), which struck down a section of a Washington, D.C. ordinance prohibiting displays of signs that

cast ‘odium’ or ‘disrespect’ on a foreign government within 500 feet of a foreign embassy but upheld the ordinance's

ban on congregations of three or more persons within the 500-foot buffer zone, and Concerned Jewish Youth v.

McGuire, 621 F.2d 471, 474-75 (2d Cir. 1980), which upheld restrictions that limited protesters' activities within a

specified area outside the Soviet embassy to a 12-foot ‘bull pen.’

[FN13] BOULDER, COLO., REV. CODE § 5-3-10(b) (1981 & Supp. 1987). Private property within the buffer

zones is covered by local trespass laws. See id. § 5-4-3 (1981).

[FN14] Boulder's City Council apparently was inspired, in part, by social science research documenting the

existence of ‘personal space’—an emotionally charged zone surrounding each individual that regulates one's social

and physical interactions with others. See Hearing on Motion for Preliminary Injunction at 173-74, Buchanan v.

Jorgensen, No. 87-Z-213 (D. Colo. 1987) [hereinafter Buchanan Hearing] (argument of Joseph de Raismes, Boulder

City Attorney). Original conceptions of personal space, linking spatial needs to privacy, were developed by

anthropologist Edward T. Hall and psychologist Robert Sommer. See E. HALL, THE HIDDEN DIMENSION 126-

28, 129-33, 146-48 (1966) (attributing cross-cultural differences in definitions of personal space to different needs

for privacy); R. SOMMER, PERSONAL SPACE: THE BEHAVIORAL BASIS OF DESIGN viii, 26-29, 39-57

(1969). Professor Hall describes four distances that appear to govern spacing between Americans: ‘intimate

distance,’ within 1.5 feet of the body and within which intimate interaction occurs; ‘personal distance,’ 1.5 to 4 feet

from an individual and the distance at which people generally space themselves for informal contact; ‘social

distance,’ 4 feet to 12 feet from an individual and the normal distance at which general business and social contact

occurs; and ‘public distance,’ 12 or more feet from an individual and the distance at which only very formal or

public interaction takes place. See E. HALL, supra, at 107-22. For a discussion of the basis for Boulder's eight-foot

bubble, see note 112 below. Since Hall's and Sommer's books first appeared, a substantial body of experimental

research has confirmed that personal space exists and that deliberate invasions of this space can be threatening and

upsetting. See generally I. ALTMAN, THE ENVIRONMENT & SOCIAL BEHAVIOR 10-102 (1975); Altman &

Vinsel, Personal Space: An Analysis of E. T. Hall's Proxemics Framework , 2 HUM. BEHAV. & ENV'T 181 (1977);

Hayduk, Personal Space: Where We Now Stand , 94 PSYCH. BULL. 293 (1983).

[FN15] See BOULDER, COLO., REV. CODE § 5-3-10(a) (1981 & Supp. 1987).

[FN16] See id. § 5-3-10(b). Violators are subject to a maximum fine of $300, a maximum sentence of 90 days in jail,

or both. See id. § 5-2-4 (1981) ( ‘General Penalties').

Bubbles within these buffer zones exist only around those toward whom advocacy is directed. See Second











Findings of Fact and Legislative Conclusions Concerning Ordinance No. 4982 Nos. 2 & 4 (Mar. 3, 1986). Thus, a

person accompanying a patient into a clinic cannot invoke a bubble around herself in order to shield the patient from

a protester's approach. As long as the protester is addressing only the patient, only the patient can force the protester

to remain eight feet away. See Memorandum from Joseph N. de Raismes to James W. Piper, Linda S. Jourgensen,

and Members of the Boulder, Colo. City Council, on Interpretation of Ordinance No. 4982 (1986) Concerning

Harassment Near Health Care Facilities (Feb. 24, 1987). Thus, no person can exercise a mobile ‘heckler's veto’ by

approaching a protester in an attempt to move or silence her. In such situations, the protester can direct her advocacy

in another direction, away from the individual approaching her. Should the heckler attempt to shout down the

protester, the protester can invoke her own bubble to shield herself from unwanted ‘counter-advocacy’ by the

heckler.

[FN17] In February, 1987, anti-abortion protesters filed suit in federal district court seeking a temporary restrainingorder and a preliminary injunction to prevent enforcement of the ordinance, arguing that the ordinance was facially

invalid under the first amendment. See Plaintiff's Memorandum of Authorities and Argument, Buchanan v.

Jorgensen, No. 87-Z-213 (D. Colo. 1987).

[FN18] See Hearing on Preliminary Injunction: Bench Ruling, Buchanan v. Jorgensen, No. 87-Z-213 (D. Colo.

1987) [hereinafter Buchanan Bench Ruling] (concluding that the ordinance was likely to satisfy the requirements for

a valid time, place, and manner restriction). The court applied the test articulated in United States v. O'Brien, 391

U.S. 367 (1968), for incidental restrictions on speech. Although this test is generally similar to the test for time,

place, and manner restrictions on speech, an explanation of why O'Brien technically is the wrong test to apply

appears below in note 35.

[FN19] See United States v. Grace, 461 U.S. 171, 176-77 (1983) (recognizing that ‘as a general matter peaceful

picketing and leafletting are expressive activities involving ‘speech’ protected by the First Amendment').

[FN20] In this case, the ordinance probably would have been viewed as a restriction on conduct that only

‘incidentally’ burdened speech. See infra note 35.

[FN21] See Saia v. New York, 334 U.S. 558 (1948) (protecting mechanical loudspeakers because they were

‘indispensable instruments of effective public speech’).

[FN22] See Kovacs v. Cooper, 336 U.S. 77, 88 (1949) (permitting a city to ban ‘objectionably amplified sound’ by

















loudspeaker); Saia 334 U.S. at 563 (Frankfurter, J., dissenting) (characterizing mechanical amplification as

affording ‘too easy[ ] opportunities for aural aggression’).

[FN23] See Buchanan Hearing, supra note 14, at 83-84 (testimony of Dr. Edward T. Hall, Professor Emeritus of

Anthropology, Northwestern University); see also E. HALL, supra note 14, at 116-17; Altman & Vinsel, supra note

14, at 184-86.

[FN24] See Buchanan Hearing, supra note 14, at 136 (testimony of Dr. Marianne LaFrance).

[FN25] See id. at 87 (testimony of Dr. Edward T. Hall); id. at 112-14 (testimony of Dr. Marianne LaFrance,

Assistant Professor of Psychology, Boston College, Boston, Mass.).

[FN26] See J. SCHEIDLER, CLOSED: 99 WAYS TO STOP ABORTION 19-24 (1985) (describing sidewalk

counseling).

[FN27] See Carlson, Please Don't Kill Your Baby, Wash. Post Magazine, March 20, 1988, at 24, 27, 30.

[FN28] See generally M. NIMMER, NIMMER ON FREEDOM OF SPEECH § 3.06, at 3-37-3-73 (student ed.

1984).

[FN29] 418 U.S. 405 (1974) (per curiam).

[FN30] See id. at 409-11. Thus, symbolic speech with both expressive and nonexpressive elements merits first

amendment protection as long as it is ‘sufficiently imbued with elements of communication.’ Id. at 409.

[FN31] Those who force proximity on targets for purely nonexpressive purposes, such as to harass, assault, or block

a target, are likely to be regulated by assault statutes or other ordinances. See, e.g., BOULDER, COLO., REV.

CODE § 5-3-1 (1981) (‘Assault in the Third Degree’) (‘No person shall recklessly cause bodily injury to another’);

id. § 5-3-3 (‘Physical Harassment’) (‘No person shall, with intent to harass or annoy another, strike, shove, kick or

otherwise subject an individual to physical contact’); id. § 5-3-4 (‘Threatening Bodily Injury’) (‘No person shall

knowingly, by threat or physical action, place another in fear of imminent bodily injury’); id. § 5-3-5(a)

(‘Obstructing Public Streets, Places or Building’) (‘No person shall without legal privilege knowingly obstruct

vehicular or pedestrian movement in a public place’).







http://international.westlaw.com/Find/Default.wl?rs=WLIN1.0&vr=2.0&FindType=Y&SerialNum=1974127233

















[FN32] When forced proximity is not combined with otherwise protected speech, those forcing proximity may have

more difficulty satisfying the Spence test because their targets might not recognize their ‘silent’ messages.

However, targets might have trouble recognizing the expressive content of forced proximity even when

combined with speech if the speech is hostile. In such circumstances, targets might interpret forced proximity as an

assault or a threat. Cf. Buchanan Hearing, supra note 14, at 89 (testimony of Dr. Edward T. Hall) (‘[A]n approach,

if you don't know the person, is normally interpreted as a threat.’); id. at 119 (testimony of Dr. Marianne LaFrance)

(‘[C]lose interpersonal distance . . . tends to create an arrousal [sic] context in which the content of the message may

not be heard.’). Nevertheless, it is difficult to imagine situations in which forced proximity combined with speech is

so frightening or distracting that it lacks all communicative value. Such situations are likely to be limited by assault

statutes or similar ordinances such as those described in note 31 above.

[FN33] 703 F.2d 586 (D.C. Cir. 1983), rev'd sub nom., Clark v. Community for Creative Non-Violence, 468 U.S.

288 (1984). In reversing the lower court's decision, the Supreme Court assumed arguendo that the sleeping was

expressive but found that the ordinance nevertheless could be upheld as a reasonable time, place, and manner

restriction of protected expression. See 468 U.S. at 293-94. The Court also upheld the ordinance under the O'Brien

test for incidental restrictions on symbolic speech. See id. at 294.

[FN34] See Clark , 703 F.2d at 593-94.

[FN35] The Court's traditional test for reasonable time, place, and manner restrictions can be found in Perry Educ.

Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983). One might initially be inclined to apply the O'Brien

test, which scrutinizes restrictions aimed at conduct in which “speech' and ‘nonspeech’ elements are combined,' to

evaluate the bubble zone ordinance. United States v. O'Brien, 391 U.S. 367, 374 (1968). Restrictions pass the

O'Brien test if they regulate conduct that is within the state's constitutional power to regulate (independent of first

amendment considerations), and if they are narrowly tailored to further substantial government interests that are

unrelated to the suppression of speech. See id. at 377.

However, the O'Brien test applies only to restrictions that ‘incidentally’ (not ‘directly’) affect protected speech.

In practice, this means that O'Brien applies only when restrictions do not single out conduct specifically when it is

‘expressive’ or connected to otherwise protected speech. In O'Brien itself, for example, the Court applied this test to

a restriction that banned draft card burning regardless of its connection with expressive activity. Similarly, in Clark ,

the Court applied O'Brien to a regulation that prohibited camping in designated park areas whether or not the

camping was related to expressive activity. However, because the bubble zone ordinance specifically restricts forced

proximity only by those who are simultaneously engaged in protected speech, it is disingenuous to argue that the


































ordinance only ‘incidentally’ restricts protected expression.

In any event, the bubble zone ordinance would have no more difficulty satisfying the O'Brien test than it has

satisfying the Perry test for time, place, and manner restrictions. In comparing the two tests, the Court has observed

that there is ‘little, if any differen[ce]’ between them, see Clark , 468 U.S. at 298; id. at 308 n.6 (Marshall, J.,

dissenting), and that ‘[i]t would be odd to insist on a higher standard for limitations aimed at regulable conduct and

having only an incidental impact on speech.’ 468 U.S. at 298 n.8.





[FN40] See Cohen v. California, 403 U.S. 15, 21 (1971).

[FN41] Cf. Haiman, Speech v. Privacy: Is There a Right Note to Be Spoken To?, 67 NW. U.L. REV. 153 (1972)

(attempting to identify which aspects of privacy are, or should be, protected by captive audience doctrine).

[FN42] See, e.g., Kovacs v. Cooper, 336 U.S. 77, 87 (1949) (recognizing a need to preserve ‘quiet and tranquility’);

see also Comment, A Taxonomy of Privacy: Repose, Sanctuary, and Intimate Decision, 64 CALIF. L. REV. 1447,

1451-56 (1976) (describing the privacy interest in repose and noting protection of that interest by captive audience

doctrine).

[FN43] See, e.g., Rowan v. United States Post Office Dep't, 397 U.S. 728, 738 (1970) (‘[N]o one has a right to press

even ‘good’ ideas on an unwilling recipient.'); Kovacs, 336 U.S. at 97 (Frankfurter, J., concurring) (arguing for

limits on noisy expression that interferes with freedom of thought); cf. Taylor, ‘ I'll Defend to the Death Your Right

to Say It . . . But Not to Me’—The Captive Audience Corollary to the First Amendment , 1983 S. ILL. U.L.J. 211,

215-16 (describing captive audience protection as necessary to protect autonomy and freedom of thought).

[FN44] 336 U.S. 77 (1949).




































[FN45] Id. at 97 (Frankfurter, J., concurring).

[FN46] See, e.g., FCC v. Pacifica Found., 438 U.S. 726, 749 n.27 (1978) (noting that ‘[o]utside the home, the

balance between the offensive speaker and the unwilling audience may sometimes tip in favor of the speaker,

requiring the offended listener to turn away.’)

[FN47] See Lehman v. City of Shaker Heights, 418 U.S. 298 (1973).

[FN48] See International Soc'y for Krishna Consciousness, Inc. v. Rochford, 585 F.2d 263 (7th Cir. 1978).

[FN49] See Kovacs v. Cooper, 336 U.S. 77 (1949).

[FN50] Erznoznik v. City of Jacksonville, 422 U.S. 205, 211 (1975) (quoting Cohen v. California, 403 U.S. 15, 21

(1971)).

[FN51] Kovacs, 336 U.S. at 87.

[FN52] Taylor, supra note 43, at 216 (describing sound trucks that blare messages and speakers that block listeners'

paths); cf. Haiman, supra note 41, at 183-84 (arguing that a protester who follows his target ‘on his heels and calls at

him the whole time’ is more intrusive than a leafleter simply handing out leaflets). Even when not combined with

other forms of protected speech, forced proximity as symbolic speech might be viewed as ‘bombarding’ the target's

sensibilities. ‘Silent’ speakers at very close proximity bombard their targets with sensory input—‘[s]ight (often

distorted), olfaction, heat from the other person's body, sound, smell, and feel of the breath’—that ‘may at times be

overwhelming.’ See E. HALL, supra note 14, at 110.

[FN53] Lehman v. City of Shaker Heights, 418 U.S. 298, 307 (1973) (Douglas J., concurring) (describing city bus

riders as a captive audience, in part because they lacked realistic alternative means of transportation). But see

Haiman, supra note 41, at 194 (arguing that the voluntariness of one's entry into a forum should be irrelevant to an

assessment of captivity).

[FN54] Certain types of medical care, for example, are not realistically available in the home. Moreover, even if

home care were easily available, a patient who wished to keep such care confidential would find it difficult to hide

from family, neighbors, or friends.




































[FN55] In Buchanan, Boulder's attorney argued that patients enter and leave Boulder's facilities ‘at a slow rate’ and

thus can be singled out easily by protesters. Buchanan Hearing, supra note 14, at 186 (argument by Joseph de

Raismes, Boulder City Attorney).

[FN56] Forced proximity is especially threatening to autonomy interests when it interferes with the listener's

engagement in essentially private activity. Cf. Comment, A Taxonomy of Privacy: Repose, Sanctuary and Intimate

Decision, 64 CALIF. L. REV. 1447, 1466-78 (1976) (describing the individual's autonomy interest in making

important ‘intimate’ decisions). Thus, protesters in Boulder arguably interfere with listeners' autonomy by

interfering with their essentially private decisions regarding abortion and medical care. Cf. Roe v. Wade, 410 U.S.

113, 154 (1973) (describing the right of personal privacy as including a right to an abortion free from unwarranted

state interference); id. at 219-20 (Douglas, J., concurring) (referring to the ‘right of privacy—the right to care for

one's health and person and to seek out a physician of one's own choice protected by the Fourteenth Amendment’).

[FN57] Alternatively, one might view the physical vulnerability of medical patients not as evidence of the greater

‘intrusiveness' of unwanted speech but as an additional interest supporting the case for restrictions on speech. The

Court has considered the weight of such additional interests in deciding whether to protect a captive audience. See,

e.g., FCC v. Pacifica Found., 438 U.S. 726, 748-51 (1978) (upholding a restriction on offensive speech broadcast

over the radio because of the need to protect the privacy interests of unwilling listeners, the well-being of children,

and the right of parents to exercise authority in their householders); Rowan v. United States Post Office Dep't, 397

U.S. 728, 736-38 (1970) (upholding restrictions on unwanted erotic mail in order to serve similar interests).

[FN58] Beth Israel Hosp. v. NLRB, 437 U.S. 483, 509 (1978) (Blackmun, J., concurring), quoted in NLRB v.

Baptist Hosp., 442 U.S. 773, 783-84 n.12 (1979). In both of these cases, the Court upheld hospital restrictions on

speech designed to shield patients from upsetting speech.

[FN59] See, e.g., Buchanan Hearing, supra note 14, at 143 (testimony of Dr. Warren Hern, Director, Boulder

Abortion Clinic).

[FN60] See id. at 51-52, 73.

[FN61] See id. at 143-46 (testimony of Dr. Warren Hern, Director, Boulder Abortion Clinic); American College of

Obstetricians & Gynecologists v. Thornburgh, 613 F. Supp. 656, 663 (E.D. Pa. 1985).




























[FN62] See Thornburgh, 613 F. Supp. at 662-63; Oversight Hearings, supra note 7, at 9 (testimony of Heather

Green, Director of Community Education, Hillcrest Clinics, Norfolk, Va.).

[FN63] See, e.g., C. Pearson, Minimal Dilation Techniques (April 1983) (unpublished paper presented at the annual

meeting of the National Abortion Federation) (on file at the Harvard Law Review) (identifying higher complication

rates at clinics subject to aggressive protest activity); see also Buchanan Hearing, supra note 14, at 143-45

(testimony of Dr. Warren Hern, Director, Boulder Abortion Clinic) (describing some of the physiological symptoms

of protest-induced stress that can complicate abortion care).

[FN64] See Thornburgh, 613 F. Supp. at 662; Oversight Hearings, supra note 7, at 9 (testimony of Heather Green,

Director of Community Education, Hillcrest Clinics, Norfolk, Va.).

[FN65] See Buchanan Hearing, supra note 14, at 116-18 (testimony of Dr. Edward T. Hall); id. at 155 (testimony of

Dr. Marianne LaFrance).

In addition, because medical patients have heightened expectations of privacy, they are particularly sensitive to

invasions of their personal space. See id. at 117 (testimony of Dr. Marianne LaFrance).

[FN66] BOULDER, COLO., REV. CODE § 5-3-10 (1981 & Supp. 1987).

[FN67] One need not infer from the foregoing analysis that the state has a substantial interest in protecting all

individuals from forced proximity by protesters in all settings. Not all unwilling listeners are as vulnerable to capture

by forced proximity as are patients outside medical facilities, nor are all invasions of personal space as intrusive of

important privacy and health interests as are invasions of patients' personal space outside medical facilities.

[FN68] See, e.g., Boos v. Barry, 108 S. Ct. 1157, 1163 (1988); Consolidated Edison v. Public Serv. Comm'n, 447

U.S. 530, 537 (1980).

[FN69] See e.g., Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983) (describing a stricter

standard of scrutiny for content-based restrictions on speech).

[FN70] See Stone, Content Regulations and the First Amendment , 25 WM. & MARY L. REV. 189, 198-233 (1983) .



































[FN71] Even if the bubble zone ordinance is viewed as content based, it is not necessarily invalid. Content-based

restrictions on speech can survive scrutiny if they are narrowly tailored to serve interests that are not merely

‘substantial’ but ‘compelling.’ See Perry, 460 U.S. at 45. By protecting a captive audience from speech that

threatens important privacy, autonomy, and health interests, the bubble zone ordinance serve interests that are just as

compelling as others that the Court has found sufficient to justify content-based restrictions on speecy. For example,

in FCC v. Pacifica Foundation, 438 U.S. 726 (1978), the Court found that state's interests in protecting captive

listeners and children from ‘offensive speech’ sufficiently compelling to justify an explicitly content-based

restriction on speech over the radio. See id. at 748-51. In comparison, the bubble zone ordinance imposes a far less

burdensome restriction on speech to protect a captive audience from speech that is equally, if not more, intrusive and

harmful.

[FN72] The ordinance does not, for example, restrict forced proximity by nonspeakers or by those hawkingnewspapers or asking for spare change.

[FN73] Although content-based restrictions pose many dangers, see supra pp. 1866-67, the Court appears to react

most strongly to the particular threat of distortion. Cf. Stone, supra note 70, at 200 (suggesting that ‘[t]he uniquely

powerful distorting effect of such content-based restrictions . . . goes a long way towards explaining the content-

based/content-neutral distinction’).

[FN74] See Stone, supra note 70, at 199-200, 218; cf. Pacifica, 438 U.S. at 774 (Brennan, J., dissenting) (observing

that ‘in many cases, the medium may well be the message’).

[FN75] See Stone, supra note 70, at 200-07, 217-24. Professor Stone observes that viewpoint and subject-matter

restrictions burden a narrower range of messages and this introduce more precise distortion than do restrictions not

aimed at either specific viewpoints or subjects. See id. at 223-24.

[FN76] Cf. id. at 217 (arguing generally that restrictions that leave open ample alternative means of expression

distort the marketplace less than those that leave open no alternative means of expression).

[FN77] See, e.g., Adderley v. Florida, 385 U.S. 39 (1966) (upholding restrictions on speech outside a jail); Cox v.

Louisiana, 379 U.S. 559 (1964) (upholding a ban on picketing near a courthouse).

[FN78] The bubble zone ordinance is in this respect far less restrictive, paternalistic, or distorting than restrictions




































that impose government preferences on the marketplace by shielding both willing and unwilling listeners from

speech. See, e.g., FCC v. Pacifica Found., 438 U.S. 726 (1978) (banning indecent language from the radio waves

during certain times of the day and evening); Lehman v. City of Shaker Heights, 418 U.S. 298 (1974) (banning

political advertisements entirely from inside city buses).

[FN79] See Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting) arguing that ‘the ultimate

good desired is better reached by free trade in ideas' and that ‘the best test of truth is the power of the thought to get

itself accepted in the competition of the market’).

[FN80] See, e.g., Partial Transcript, Meeting of the Boulder City Council (May 20, 1986).

[FN81] See Buchanan Hearing, supra note 14, at 176 (argument of Joseph de Raismes, Boulder City Attorney).

[FN82] See United States v. O'Brien, 391 U.S. 367, 383 (1968); see also L. TRIBE, AMERICAN

CONSTITUTIONAL LAW § 12-5, at 816-19 (2d ed. 1988) (describing motive analysis in free speech cases

generally).

[FN83] O'Brien, 391 U.S. at 383.

[FN84] See Stone, supra note 70, at 227.

[FN85] See L. TRIBE, supra note 82, § 12-5, at 817; Stone, supra note 70, at 227.

[FN86] See Buchanan Hearing, supra note 14, at 176 (argument of Joseph de Raismes, Boulder City Attorney).

[FN87] See Clark v. Community for Creative Non-Violence, 468 U.S. 288, 295 (1984) (treating restrictions on

camping in national parks as content neutral even though the Court identified only advocates for the homeless as

having engaged in such activity for expressive purposes); cf. O'Brien, 391 U.S. at 382-86 (treating a restriction on

draft card multilation as unrelated to the suppression of speech, even though the Court identified only antiwar

protesters as having multilated their cards for expressive purposes).

[FN88] 468 U.S. 288 (1984).





























[FN89] Id. at 296-97 (citation omitted).

[FN90] See, e.g., Pennsylvania's Nurses End 9-Day Walkout , N.Y. Times, Feb. 1, 1986, at 8, col. 6 (describing end

of nurses' strike against 140 state-run hospitals, clinics, and prisons).

[FN91] See, e.g., Hispanics Vow Fight Over Closing of Clinic They Feel is Their Own , Boston Globe, June 17,

1987, at 47, col. 5 (describing Hispanic opposition to the closing of a Boston clinic for Spanish-speaking patients).

[FN92] See, e.g., MGH Accused of Failing the Elderly Poor , Boston Sunday Globe, Mar. 23, 1986, at 46, col. 1

(describing senior citizens group's criticism of a Boston hospital's medical services for the elderly poor).

[FN93] See, e.g., Hospital Hit on AIDS Law, Boston Globe, Sept. 24, 1987, at 25, col. 6 (highlighting state attorney

general's reprimand of a Worcester, Mass. hospital for failing to guard the identities of its AIDS patients).

[FN94] Stone, supra note 70, at 232.

[FN95] Had the ordinance applied only to abortion clinics, concerns about content specificity might have appeared

more substantial. For example, the city could not have relied on the more generic interest of protecting the captive

audience outside medical facilities without evidence that abortion patients are more vulnerable to capture or more

injured by invasions of personal space than are other medical patients. Cf. id. at 203-07 (describing cases in which

the under-inclusiveness of restrictions served to impeach the credibility of the government's asserted interests). In

addition, the array of subjects and viewpoints constrained by an abortion-facility ordinance is far narrower, thus

threatening more specific distortion than that posed by an ordinance aimed at all medical facilities. Nevertheless, a

court might treat even this type of ordinance as content neutral, given that it is aimed at the manner and not the

content of speech and that it leaves open ample alternatives for speech outside those facilities. See supra pp. 1867-

68; infra pp. 1869-70.

In addition, a content-based abortion-facility ordinance might be justified by characterizing a city's interest in

protecting the combined privacy and health interests of abortion patients as not just substantial but compelling. A

city could rely on the Court's special recognition of the constitutional right to an abortion, see Roe v. Wage, 410

U.S. 113 (1973), to support this characterization, which in turn would justify singling out abortion facilities from

other medical facilities.
















[FN97] See Stone, supra note 70, at 222-23.

[FN98] See id.

[FN99] See supra p. 1860.

[FN100] United States v. Grace, 461 U.S. 171, 177-78 (1983) (quoting Adderley v. Florida, 385 U.S. 39, 47-48

(1966)).

[FN101] See Buchanan Bench Ruling, supra note 18, at 6.

[FN102] See, e.g., Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983).

[FN103] See, e.g., BOULDER, COLO., REV. CODE § 5-4-3 (1981) (‘Trespass') (‘No person shall: (a) [e]nter or

remain upon land or premises other than a dwelling of another in defiance of a legal request or order by the owner or

some other authorized person; or (b) [e]nter into or upon land or a building other than a dwelling that is posted,

locked or otherwise fenced or enclosed in such a manner that a reasonably prudent person would understand that the

owner does not want any such person on the land or in the building.’).

[FN104] For a description of Boulder's assault and blocking ordinances, see note 31 above.

[FN105] Cf. L. TRIBE, supra note 82, § 12-10, at 854-55 & n.24 (citing cases in which courts overturned breach of

peace and similar convictions of civil rights and anti-war protesters because of feared excessive enforcement by law

enforcement officials).

[FN106] Cf. Oversight Hearings, supra note 7, at 9 (testimony of Heather Green, Director of Community Education,Hillcrest Clinics, Norfolk, Va.) (noting that reliance on subjective assessments by law enforcement officers leads to

inconsistent enforcement of restrictions of protect activity outside abortion clinics). In addition, prosecutors might

hesitate to prosecute disorderly conduct violations by protesters for fear of triggering vagueness challenges. See

ACLU, PRESERVING THE RIGHT TO CHOOSE, supra note 8, at 38.

The Court recently found an ordinance banning protests that attempt to ‘intimidate, coerce, threaten, or harass a














foreign official . . . or obstruct [him] in the performance of his duties' to be a less restrictive alternative to one

section of a Washington, D.C. ordinance that banned signs casting ‘public odium’ or ‘public disrepute’ onto a

foreign government. See Boos v. Barry, 108 S. Ct. 1157, 1160, 1165-68 (1988). The Court reasoned that the District

of Columbia's interest in protecting the ‘dignity’ of foreign governments could be served adequately by the

antiharassment ordinance. See id. at 1168. However, a similar ordinance banning harassment and intimidation

outside medical facilities would not adequately serve the interests served by the bubble zone ordinance. First,

concerns about subjective enforcement of disorderly conduct and breach of the peace ordinances also apply to

ordinances that restrict ‘intimidation, coercion, or harassment.’ Cf. Note, Abortion, Protest and Constitutional

Protection —Bering v. Share, 106 W.2d [sic] 212, 721 P.2d 918 (1986), 62 WASH. L. REV. 311, 332 (1987)

(describing problems associated with enforcement of injunctions prohibiting threats, assault, intimidation, and

coercion). Second, although bombardment by unwanted speech at close proximity arguably constitutes ‘harassment’

by definition, there is no guarantee that a court would construe ‘harassment’ this broadly in the absence of express

legislative guidance. In any event, the Court's decision in Boos reflects a comparison between an antitharassment

ordinance and a no-speech buffer zone, and therefore does not preclude the possibility that bubble zone protection

outside medical facilities would satisfy narrow tailoring requirements.

[FN107] Cf. Note, supra note 106, at 331 (defending ‘place restrictions' on protesters as easily enforceable ‘bright

line’ restrictions that promote the state's interest in ensuring access to abortion clinics).

[FN108] Cf. Bering v. Share, 106 Wash. 2d at 212, 254-55, 721 P.2d 918, 942 (1986) (Dore, J., dissenting)

characterizing an injunction proscribing picketing outside an abortion clinic as a prior restraint), cert. denied , 107 S.

Ct. 940 (1987). Generally speaking, the Court is far less willing to accept prior restraints on speech (such as

injunctions that prohibit speech before it occurs) than punishment of speech. See M. NIMMER, supra note 28, §§

4.03-4.04, at 4-14-4-25 (providing an overview and analysis of prior restraint doctrine).

[FN109] Cf. Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 558 (1975) (‘The presumption against prior

restraints is heavier—and the degree of protection broader—than that against limits on expression imposed by

criminal penalties.’); see also M. NIMMER, supra note 28, § 4.02 at 4-12.

[FN110] See, e.g., Womancare v. Dorman Owens, No. 527445 (Super. Ct. San Diego, Cal. Sept. 28, 1984) (order

for preliminary injunction); Bering v. Share, No. 85-200796-9 (March 18, 1985) (order granting permanent

injunction), aff'd in part, rev'd in part , 106 Wash. 2d 212, 721 P.2d 918 (1986), cert. denied , 107 S. Ct. 940 (1987).

[FN111] In Collins v. Womancare, No. 86-1694-G(M) (S.D. Cal. May 5, 1987) for example, a clinic detained





































protesters not named under an injunction granted it in Dorman Owens, for violating the terms of that injunction. The

court interpreted the Dorman Owens injunction as requiring evidence of concerted action between the named parties

and other protesters. See Findings of Fact and Conclusions of Law at 5, Collins. The clinic, unable to prove

concerted action, was eventually ordered to pay the protecters $59,000 in compensatory and punitive damages for

violation of their first amendment rights. See Collins v. Womancare No. 86-1694-G(M) (Super. Ct. San Diego, Cal.

Sept. 23, 1987) (judgment after jury trial).

[FN112] The ordinance appears more narrowly tailored than similar buffer zone restrictions that have been upheld

outside other facilities, such as those prohibiting all expressive activity within buffer zones, see, e. g., Share, 106

Wash. 2d 212, 721 P.2d 918, or that ban congregations of three or more people within buffer zones, see e.g., Boos v.

Barry, 107 S. Ct. 1157, 1170 (1988), or that confine protesters to specific areas within buffer zones, see, e.g.,

Concerned Jewish Youth v. McGuire, 621 F.2d 471, 473 (2d Cir. 1980) . Unlike these other restrictions, the bubblezone ordinance permits protesters substantial mobility within the buffer zone.

The appropriate dimensions of any bubble zone ordinance depend on the specific facts of each case. On

examination of the particular configuration of clinics and pedestrian traffic in Boulder, for example, one might

conclude that smaller bubbles or buffer zones than those provided for in the bubble zone ordinance would serve the

government's interests adequately. The Boulder City Council, in fact, initially considered four-foot bubbles, the

boundary between Professor Hall's ‘personal distance’ and ‘social distance,’ see supra note 14, but settled on eight-

foot bubbles because it thought they would be easier to enforce. See Buchanan Hearing, supra note 14, at 174, 184-

85 (argument of Joseph de Raismes, Boulder City Attorney). Although one might quarrel with the specific distances

chosen by the Boulder City Council, a de novo assessment of all the facts in Boulder is beyond the scope of this Note. In any event, smaller bubbles or buffer zones would not alter this Note's analysis of forced proximity as

regulable expressive activity.

[FN113] BOULDER, COLO., REV. CODE § 5-3-10(a) (1981 & Supp. 1987).

[FN114] Cf. Taylor, supra note 43, at 220-23 (describing the importance of permitting speakers to test the receptive

of their targets).

[FN115] BOULDER, COLO., REV. CODE § 5-3-10(b) (1981 & Supp. 1987). Modifying Boulder's ordinance in

this way would mean eliminating subsection (a) of the Ordinance. See supra note 12.

[FN116] Protesters could challenge bubble zone protection on overbreadth grounds, arguing that when the ordinance

provides bubble protection to nonpatients, it restricts speech without serving the government's asserted interests.














Overbreadth, however, is not fatal unless it is both ‘real’ and ‘substantial,’ see Broadrick v. Oklahoma, 413 U.S.

601, 615-18 (1973), and the Court is generally reluctant to invalidate statutes on overbreadth grounds unless ‘the

identified overbreadth is incurable and would taint all possible applications of the statute,’ Brockett v. Spokane

Arcades, Inc., 472 U.S. 491, 503 (1985).

Indeed, a city can can avoid overbreadth problems by tailoring the size of its buffer zone to minimize the

number of nonpatients who ‘unnecessarily’ will be granted bubble zone protection. Where large numbers of

nonpatients are present outside medical facilities, a smaller buffer zone might suffice because patients just outside

the buffer zone is so large that it protects a substantial number of nonpatients, this protection is related to the state's

asserted interests; by shielding number of nonpatients, this protection is related to the state's asserted interests; by

shielding both patients and nonpatients within the zone, it camouflages the identity of the patients and thus makes it

more difficult for protestors to single them out once they leave the buffer zone. One could, perhaps, further tailor the

ordinance by limiting bubbles only to those who identify themselves as patients, but doing so would make patients

easier to identify and thus capture once outside the buffer zone. The outer limit of the buffer zone should represent

the point at which patients no longer need bubble zone protection in order to evade capture by unwanted speech.

In any event, the Court often appears to ignore overbreadth created by restrictions that, although designed to

shield captive audiences from unwanted speech, also include noncaptive audiences in their scope. See, e.g., FCC v.

Pacifica Found., 438 U.S. 726 (1978) (shielding willing and unwilling listeners from offensive language on radio

airwaves even though only one listener formally complained); Lehman v. City of Shaker Heights, 418 U.S. 298

(1973) (shielding willing and unwilling bus riders from political advertisements inside city buses). But see Martin v.

Struthers, 319 U.S. 141 (1943) (striking down a ban on all door-to-door solicitation because it precluded willing

listeners from receiving information at their doors).

101 Harv. L. Rev. 1856

END OF DOCUMENT























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