'Egregiously wrong' again? SCOTUS urged to junk precedent widely used to suppress pro-life speech

When the Supreme Court junked five decades of federal abortion rights and returned the issue to the states by overruling Roe v. Wade, the Dobbs majority criticized its subsequent abortion rulings including 2000's Hill v. Colorado, which "distorted First Amendment doctrines." 

But the high court did not overrule Hill, which upheld a Colorado law that requires so-called sidewalk counselors to stay eight feet away from anyone entering an abortion facility – a distance that repeatedly shows up in similar "buffer zone" laws – as a time, place and manner restriction protecting an "unwilling listener's interest in avoiding unwanted communication."

Pro-life activists are now trying to get SCOTUS to formally repeal Hill, arguing that subsequent First Amendment precedents have rendered it what lawyers call a zombie precedent – alternately described by the late Justice Antonin Scalia as a "ghoul in a late-night horror movie that repeatedly sits up in its grave" even as the court's rulings tacitly rebuke it.

The Centennial State's more recent targeting of pro-life views for suppression – invoking a ban on "pins or apparel expressing political statements" in the Capitol galleries to evict a man in pro-life clothing during floor debate on legislation against pro-life pregnancy centers – could get it sued by a free speech group and give the high court more reason to revisit Hill.

The Foundation for Individual Rights and Expression sent a legal threat letter to the state's House and Senate sergeants-at-arms on behalf of Jeffrey Hunt on the same day the Thomas More Society and former Solicitor General Paul Clement, allegedly the most frequent arguer before the high court since 2000, petitioned SCOTUS on behalf of Coalition Life.

The downstate Illinois pro-life group cannot engage in sidewalk counseling in Carbondale under the city council's decision to copy "Colorado’s draconian law nearly verbatim as a response to Dobbs … openly invok[ing] Hill as a justification," the petition reads. 

"As the city correctly predicted, the lower courts had no choice but to uphold that law simply and solely because they remain bound by Hill," according to Coalition Life, noting the pattern was set when the 7th U.S. Circuit Court of Appeals upheld Chicago's eight-foot buffer zone in 2019.

Hill is "hard to reconcile" with subsequent rulings but remains binding precedent, and "we would open a circuit split if we allowed this facial challenge to move forward" since the 3rd Circuit upheld Pittsburgh's 8-foot buffer, according to that three-judge panel, which included future Justice Amy Coney Barrett. SCOTUS declined to take that case four years ago this month.

Scalia penned a snarky dissent in Hill joined by Justice Clarence Thomas, marveling that the late Justice John Paul Stevens invoked a basis to uphold the Colorado buffer zone "explicitly … disclaimed by the State, probably for the reason that, as a basis for suppressing peaceful private expression, it is patently incompatible with the guarantees of the First Amendment."

He's not surprised by these "remarkable conclusions," however.

"What is before us, after all, is a speech regulation directed against the opponents of abortion, and it therefore enjoys the benefit of the 'ad hoc nullification machine' that the Court has set in motion to push aside whatever doctrines of constitutional law stand in the way of that highly favored practice," Scalia wrote.

In his own dissent, Justice Anthony Kennedy claimed the Stevens majority not only "contradicts more than a half century of well-established First Amendment principles" but "strikes at the heart of the reasoned, careful balance" the court reached in 1989's Casey ruling, which narrowed Roe and created the "undue burden" standard for abortion restrictions.

"For the first time, the Court approves a law which bars a private citizen from passing a message, in a peaceful manner and on a profound moral issue, to a fellow citizen on a public sidewalk," forcing activists whose only recourse is to "debate the issue in its moral dimensions" to use a bullhorn rather than a "peaceful, face-to-face exchange of a leaflet," Kennedy wrote.

"Hill was egregiously wrong the day it was decided, and virtually all of its reasoning has been explicitly repudiated in subsequent decisions," Coalition Life argues, echoing Justice Samuel Alito's majority in Dobbs that compared Roe to discredited rulings upholding separate-but-equal racial segregation, Japanese-American internment and criminal conviction by split juries.

"And the city’s actions make clear beyond all doubt that Hill is not some harmless relic, but a proverbial 'loaded weapon ready for the hand of any authority' that wants to distort important public debates or protest this Court’s decisions," the petition says, quoting the late Justice Robert Jackson's dissent in Korematsu, the World War II-era internment decision. 

"The whole point of Dobbs was to return debate about the sensitive questions surrounding abortion to the people," but buffer-zone laws let one side "fight freestyle, while requiring the other to follow Marquis of Queensberry rules," according to Coalition Life, quoting a dissent-free SCOTUS ruling by the inimitable Scalia against a "Bias-Motivated Crime Ordinance."

Pro-life activist Hunt, who led Colorado Christian University's Centennial Institute and its annual Western Conservative Summit at the time, was "silently" wearing the university's "Pro-Life U" sweatshirt in the Colorado Senate gallery March 21, 2023, when Sergeant-At-Arms Ben Trujillo told him to remove it, FIRE's letter says. Hunt left CCU to become a talk radio host in February.

Chief Sergeant-At-Arms Frank Lombardi, who received FIRE's letter along with Trujillo, backed up his subordinate's view that the apparel was political. Hunt left his CCU colleagues in the gallery rather than "sacrifice his First Amendment rights," FIRE said.

"We have registered CCU as Pro-Life U. It is our name," Hunt wrote on X, then Twitter, questioning the "political statement" basis for his removal. "No rainbow shirts? No Planned Parenthood shirts? No Mom's [sic] Demand Action shirts?"

Like the ban on "political apparel" in polling places that SCOTUS prohibited in 2018, the gallery rule doesn't specify what qualifies as political, such as "Support Our Troops" or "#MeToo" shirts, giving "unbridled discretion" to sergeants-at-arms, FIRE told the officials.

This is apparent from the officials' tolerance for dozens of students wearing "Angels Against Gun Violence" shirts weeks earlier on what Denverite called "a lobby day to advocate for stricter gun laws," the letter says.

Secretary of the Senate Cindi Markwell gave a "post hoc explanation to reporters," found "nowhere in the text of the rule, on the website" or "posted outside the galleries," after Hunt threatened to sue, FIRE told the officials.

Markwell told Westword the rule is intended to "protect its process and the senators" while they debate a given subject. The students in gun-control shirts came on a day when "there were no gun bills being heard that day on the Senate floor or in committee," Markwell said.

She claimed it also aims to "avoid conflict between opposing sides on any particular issue," but another gallery rule prevents disturbances and the SCOTUS Vietnam War-era precedent Tinker prohibits public schools from limiting "silent, passive expression" such as antiwar armbands, FIRE's letter says.

State officials have yet to respond to the letter, whose requested response deadline is July 30, a FIRE spokesperson told Just the News on Wednesday. Emails to Markwell and House Chief Sergeant-At-Arms Stephen Rosenthal, whose contacts are listed in the letter, were not returned.