ACLJ Fires Another Volley at Speech-Free Bubble Zones at the Supreme Court

The ACLJ has filed yet another brief at the U.S. Supreme Court asking the Court to overturn the notorious and discredited 2000 ruling in Hill v. Colorado. The latest filing is an amicus brief in Coalition Life v. City of Carbondale, a case out of Illinois. Let’s start with some background:

Decades ago, the ACLJ took on what appeared to be a straightforward free speech case, Hill v. Colorado. The state had passed a law aimed at pro-life sidewalk counselors that prohibited approaching within eight feet of another person “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.” The law applied to “the public way or sidewalk area within a radius of one hundred feet from any entrance door to a health care facility,” i.e., including an abortion facility. With this creation of “floating bubble zones” — speech-free zones that surround and float along with the audience — the state law targeted classic free speech in public places, which should have been held as a blatant violation of the First Amendment. Yet in a divided 2000 ruling, the Supreme Court upheld the floating bubble zone ordinance as constitutional. As even pro-abortion Harvard Law professor Laurence Tribe put it, the case was “slam-dunk simple and slam-dunk wrong.”

The Supreme Court itself probably recognized that the Hill ruling was indefensible, as in the succeeding years the Court never relied upon Hill for anything flowing from that case. Lower courts, however, were not free to say, “We think the Court blew it in Hill. In fact, we think the Court itself knows it blew it. So we’re not going to follow that case.” Instead, the lower courts again and again would express their reservations about the soundness of Hill but declare themselves bound by the precedent. And so, there have been repeated efforts to get the Court to reexamine Hill.

The ACLJ has been there every step of the way.

In 2014, the Supreme Court agreed to review McCullen v. Coakley, a pro-life challenge to a “fixed buffer zone” — a speech-free zone that declares a particular area off-limits to speakers but does not move with the audience. We urged the Court to use that case to overturn Hill. What the Court did instead was — tellingly — simply ignore Hill and strike down the buffer zone. That was a great victory, but it left Hill in place to tie the hands of lower courts. That meant more challenges were needed.

One such case was Price v. Chicago. We filed an amicus brief in 2019 urging the Supreme Court to grant review and reconsider Hill. The high Court declined. However, in 2022, the Court signaled that it may be willing to ditch Hill at last. In the landmark case of Dobbs v. Jackson Women’s Health Organization, the Supreme Court overruled the Roe v. Wade abortion decision and, along the way, pointed to Hill as a bad ruling.

As we explained previously:

[I]n Dobbs, the majority used that terrible [Hill] ruling as an illustration of how the Court’s abortion cases after Roe “have distorted First Amendment doctrines.” That means the Dobbs Court drew good out of a bad decision – using Hill against Roe – and in the process, plainly indicated that Hill is no longer valid as a First Amendment precedent.

But still, the Court had not officially overturned Hill. So in Vitagliano v. County of Westchester, we filed an amicus brief in 2023 supporting Supreme Court review and urging the overruling of Hill. Again, the Supreme Court demurred.

This year, there are two petitions pending on the Supreme Court’s docket challenging Hill v. Colorado. One is an ACLJ case, Turco v. City of Englewood, involving a fixed buffer zone. Curiously, the lower court chose to follow Hill instead of McCullen! See here and here. The Court may decide in late September whether to hear our Turco case.

Meanwhile, yet another floating bubble zone ordinance is under First Amendment attack in Coalition Life v. City of Carbondale. Here at the ACLJ, we are once more pleading with the Court to end Hill’s reign of silence:

This Court has before it petitions for certiorari seeking review of two separate lower court decisions upholding speech-free zones (one a fixed buffer zone, Turco v. City of Englewood, . . . and one a floating bubble zone, namely, the current Coalition Life case). Both cases reflect the malignant influence this Court’s decision in Hill v. Colorado . . . continues to exert on the constitutional law of free speech. This Court should therefore grant plenary review in one, the other, or both cases and place “a tombstone” on Hill “that no one can miss.” Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2275 (2024) (Gorsuch, J., concurring).

Importantly, we not only filed this case on behalf of our ACLJ supporters, but we also once again represent our former client, Mrs. Hill, of Hill v. Colorado. We await word from the Court whether it is willing, at long last, to consider formally overruling Hill v. Colorado. The ACLJ will never stop fighting to save the unborn and protect the free speech of pro-life advocates.