PAUL ZAMANINI: Good evening. My name is Paul Zamanini. And on behalf of the Board
of Student Advisors and Dean Clark, we welcome you to the
final round of the Ames Moot Court Upper Round Competition. The case before the court today,
written by Ames Fellow Trevor Farrow, presents a question
of the constitutionality of an Ames statute that
places restrictions on speech and leafletting in
the vicinity of health care facilities. The petitioners, Mary
Cameron and David Ray are represented by the
David H. Harney Memorial Team, who are Timothy J. Casey,
Jennifer C. Daskal, Derek T. Ho, oralist, Richard C.
Squire, oralist, Andrew M. Wilmar, and Robert B. Wolinsky. Respondent, the State
of Ames is represented by the Myra Bradwell
Memorial Team, who are Craig Cronheim, Jessica
Ellsworth, oralist, Danielle Leonard, Michael P. O'Shea,
Stacie Somers, and Robin M. Wall, oralists. Presiding as Chief Justice
is The Honorable David H. Souter, of the Supreme
Court of the United States. Joining him is The
Honorable Frank Easterbrook of the Court of Appeals
of the Seventh Circuit, and The Honorable
Judith W. Rogers of the Court of Appeals of the
District of Columbia Circuit. Please hold your applause
until all of the arguments have been completed, keeping in
mind that the petitioners have time for rebuttal. We would also ask you to refrain
from all flash photography. However, at the beginning
of the argument, the judges will pose
briefly behind their chairs so that you can take pictures. We would also like
to remind everybody to turn off their cell phones
or pagers if they have them. Good luck to both teams. And enjoy the arguments. Oyez, Oyez, Oyez. All persons having business
before the Honorable, the Supreme Court of
the United States, are admonished to draw near
and give their attention, for the court is now sitting. God save the United States
and this Honorable Court. Actually I think we've already
had a breach of protocol, because I recall we
were asked to pause for a minute for photographs,
and we did not pause. So you have a reprieve
of about 30 seconds. We will rise and pause. [LAUGHTER] DAVID SOUTER: We will hear
argument now in number 2000-10-03, Mary
Cameron and David Rath-- Ray, rather, against
the State of Ames. Mr. Squire. RICHARD SQUIRE:
Your Honors we would like to reserve five minutes
at the end for rebuttal please. DAVID SOUTER: So noted. RICHARD SQUIRE: Mr.
Chief Justice and may it please the Court, my
name is Richard Squire and I am counsel
for the petitioners. I will argue that
the Ames statute, under which petitioners
were convicted, is unconstitutional on its face. My co-counsel,
Derek Ho, will argue that the Ames statute
is unconstitutional as applied to petitioners. Your Honors, although the
language of the Ames statute may seem similar to the
language of the Colorado statute that this court recently
upheld in the case of Hill v. Colorado, petitioners
challenge is not a mere re-litigation
of that case. In Hill, this court
struck a delicate balance between state
interests, and promoting access to medical care,
and the free speech rights of individuals
in the public forum the Ames statute
upsets that balance. The state interests
motivating the Ames statute are no broader than those that
motivated the Colorado statute. However,-- DAVID SOUTER: Which were what? RICHARD SQUIRE: Your Honor,
the legislative history of the Colorado statute
indicated a primary emphasis upon promoting access
to medical care. In addition, this
court recognized that another harm was
implicated by the statute, which was the implication--
which was the, to use the language of the
court, potential physical and emotional harm that can
occur when a person delivers a message by approaching
physically at close range, i.e. within eight feet for
purposes of those statute. The state interests
implicated here are no broader than
they were in that case. However, they-- DAVID SOUTER: They include
both, including the protection from the emotional trauma. RICHARD SQUIRE: The
Ames legislature-- DAVID SOUTER: Would you agree? RICHARD SQUIRE: We are
willing-- we are not going to contest, Your
Honor, that both issues may be implicated here. Our contention is that even
if both issues are implicated here, the Ames
statute is still not narrowly tailored to
further that state interest. JUDITH ROGERS: I thought
your position was more that we were bound
by the legislature's actual determination of the
interests that was at stake, and that the court was not
free to move beyond that. RICHARD SQUIRE:
Our position is not the court is not free to ascribe
other interests to the state legislature. The state legislature did can
consider only the interest of, and only mentioned the interest
in the legislative history, of protecting access
to medical care. And it did not
find facts directly or make statements directly
on this other interest. Our point is simply that
even if this court were to acknowledge that interest
is also implicated here, as respondent has argued-- JUDITH ROGERS: So as
an implicit interest, even though not
specifically articulated? RICHARD SQUIRE: Yes, Your Honor,
the court in Hill for example mentioned the possibility
of other interests that were not necessarily
explicitly mentioned by the Colorado legislature. JUDITH ROGERS: So your
attack on respondents' brief, are you withdrawing
that somewhat? Where you say they come up
with a completely new state interest? RICHARD SQUIRE: No, Your
Honor, if the state interest is limited to simply promoting
access to medical care, the statute is clearly
not narrowly tailored to that interest. The Subsection 2 of the statute
effectively accomplishes that. Respondent has raised
another interest, and has not refuted our
argument that the statute is not narrowly tailored to that
more narrow state interest. FRANK EASTERBROOK: That very
argument was made in Hill, but made by a
dissenting opinion. RICHARD SQUIRE: That is true,
Your Honor, that is true, Your Honor, but the-- FRANK EASTERBROOK: What is
different between this statute and the one involved in Hill
with respect to Section 3, that is the approach section,
rather than the instruction section? RICHARD SQUIRE: In four
ways, section three is broader than the Ames statute
than it was in the Subsection 3 of the statute in
Hill, and thereby, it prevents much more than
close range approaches that are unwelcome and may cause
the potential physical harm to patients entering and
leaving medical facilities. First, the Ames statute uses
a 12-foot no-approach zone, which effectively
precludes dialogue and not just in-your-face speech. FRANK EASTERBROOK: Where
in the Constitution is there a difference
between 8 feet and 12 feet? RICHARD SQUIRE: Your
Honor, this court has recognized that
the right to have, or the free speech interest in
having conversation, or having the ability to
engage in dialogue, is central to the
First Amendment. Indeed, in Roth v.
United States this court held that to protect the
unfettered interchange of ideas between individuals was at the
core of the First Amendment's purpose. FRANK EASTERBROOK: I can
understand that argument. Indeed, I can understand
many of your arguments, in the sense they were
made in good faith by justices of
this court in Hill. But your obligation
now to say that there's some matter or
constitutional significance between 8 feet and 12 feet? How does one justify that? What everyone can say about the
great generalities of the First Amendment, it isn't
a measuring yard. RICHARD SQUIRE: That's
true, Your Honor, but this court did hold in the
case of Schenck v. Pro-Choice Network of Western New York
that one of the reasons why a provision of that statute,
which held people back 15 feet, had to be struck down
under the First Amendment, was because it put
individuals outside of conversational range. Similarly, it was a
holding in Hill v. Colorado that because that
statute kept people within conversational range,
that the statute was allowable. So the movement to 12 feet-- DAVID SOUTER: Are those
the only differences? Was that the only difference
between those two case? RICHARD SQUIRE: No,
Your Honor, there are other differences as well. And in considering
the burden upon speech that this statute creates,
it's important to consider all of the provisions
in combination. This statute also has a
higher consent requirement. DAVID SOUTER: So
I take it you're agreeing there's
nothing dispositive about the difference
between 8 and 12 feet. RICHARD SQUIRE: The
movement from 8 to 12 feet does place a burden upon speech. And-- DAVID SOUTER: But there's
nothing dispositive about it. You're saying, I think you're
saying it's simply one more factor to be considered
in determining whether the burden reaches
an impermissible point, is that right? RICHARD SQUIRE: Under the test
that both sides have agreed to apply, which is
the question would be does it place a
substantial burden upon speech that is not necessary to
further the state's interest. The question would be is
the movement from 8 to 12 in itself substantial. We contest it is, or
we allege that it is, but we do not believe that
that provision alone is what is creating the burden here. That, in combination with
the other provisions. DAVID SOUTER: So you've
got other differences that you want to emphasize. What are the other differences
that you want to [INAUDIBLE].. RICHARD SQUIRE: The clear
consent requirement, Your Honor. The use of the word
clear and consent, as opposed to in the
Colorado statute, which just used plain consent. As respondent has
acknowledged, that means that under this
statute a potential listener would have to engage in
some kind of affirmative act before a speaker may approach. JUDITH ROGERS: You
don't think that was implicit in the Hill statute? RICHARD SQUIRE: The
two statutes are similar, identical actually,
in terms of language, in many ways. For example, Subsections
1, 2, and 4 are identical. So the inference is that they
were drawn from the same cloth. So either there was a
deliberate insertion of the word clear by the Ames legislature,
or a deliberate removal of that word by the
Colorado legislature. But either way, the
intent was either to have a higher standard here
or a lower standard there. And because it is not the
common practice of individuals in the public forum to
affirmatively encourage the approach of strangers, this
makes it much more difficult for an individual
to get that consent. This works in combination
with a 12-foot requirement, because under this statute,
unlike the Colorado statute, individuals are
standing at the fringes of conversational distance,
and thus, might be yelling. In addition, the
12-foot barrier makes it more difficult
for an individual to get the attention
of a potential listener In order to obtain the
clear consent, which under the statute is required. This is because interactions in
the public square are fleeting. And especially because, as
you move an individual back to 12 feet, there's
a greater possibility that the clear line of
communication between the two will be obstructed. JUDITH ROGERS: The
fourth, I assume, is a difference in language. The fourth difference would
be, the statute in Hill, as to the particular activities. RICHARD SQUIRE: The difference
in language, the insertion of the word clear? JUDITH ROGERS:
Provide information. RICHARD SQUIRE: Yes, there's
the additional term, which is provide information
to, which is inserted here and is not listed-- JUDITH ROGERS: Well, how do you
respond to respondents that all of this is simply the
legislature limiting some of the tactics that
can be used, and that's it. That there's no ban, there's
no showing that these conversations, these
communications cannot continue and be effective, and that
you have no right to the most effective means
of communication? RICHARD SQUIRE: It's true,
as respondent points out, that the standard that
this court applies is not whether there are
some less restrictive means. The question has to be whether
there is a substantial burden upon speech. Although some speech may
occur, the First Amendment protects more than
one-way yelled or broadcasted communications. It protects exchanges of ideas. And this statute
places a severe burden on the possibility
of an exchange. JUDITH ROGERS: You
argue, in part, that the quality of the speech
is different in a labor protest than in the
anti-abortion protest. And suggest that your
right to petition government and your right to
challenge an employer's actions are implicated. Am I correct that
the record shows that, in fact, those
opportunities have been available to you and you
have attempted to exhaust them? RICHARD SQUIRE: Yes, that's
true, Your Honor, we tried-- JUDITH ROGERS: So
we're beyond that. RICHARD SQUIRE: That's right. JUDITH ROGERS: And
is your argument more that this is your
client's last effort, and therefore, having been
turned down at other stages, we ought to take
that into account in deciding whether these four
differences that you relied on are enough to tip the
balance in your favor? RICHARD SQUIRE: In terms of the
facial challenge, Your Honor, we would say that these
four differences in this-- I'm sorry, in terms of
the as applied challenge, we would say that
these four differences between this statute
and the Colorado statute actually aren't that relevant,
that our petitioners would have been unconstitutionally
prosecuted under even the Colorado statute. And my co-counsel will
address that more fully. Our point here is that the four
added provisions of the statute increase the burden upon speech,
but they don't have a broader state interest implicated. DAVID SOUTER: What's Your answer
to Judge Rogers' question, Justice Rogers' question? Is it relevant to
your case in any way that your clients have
exhausted other opportunities or made other attempts to change
the public mind about salaries and they failed? Is that relevant in any way? RICHARD SQUIRE: It
is relevant because under a narrow
tailoring analysis, we have to consider
whether alternative modes of communication are available. DAVID SOUTER: Well,
does it mean then that the statutes
constitutionality is going to sort of shift back
and forth, depending on the degree of effort that may
have been made before getting to the street demonstration? RICHARD SQUIRE: No,
Your Honor, even in-- DAVID SOUTER: Then
why is it relevant? RICHARD SQUIRE: The
relevance of the point is simply to demonstrate the
particular burden that was placed upon our petitioners. But it is true that
it is not relevant to the constitutional question
as applied to petitioners. The constitutional question
as applied to petitioners is whether it can
be constitutionally applied to them around
the Kennedy Building, in the vicinity of
the Kennedy Building. The fourth provision
of the statute which adds to the substantiality
of its burden upon speech, when looked at from
a facial perspective, is the fact that it
also reaches to 120 feet within all health
care facilities, as opposed to 100 feet
under the Colorado statute. This causes the statute to
sweep in more passers by and neighboring non-medical
establishments that do not share the state interests. And when you look at these for
broader provisions of the Ames statute, especially
in combination, they place a substantial
added burden upon speech. And because that burden is
not necessary to further the state's legitimate
interest in this case, which as then Justice Souter pointed out
in his concurrence in Hill-- FRANK EASTERBROOK:
How would we determine whether a particular
addition is substantial? What metric should we use
to measure substantiality? RICHARD SQUIRE: The question
would be before the court, and the way to
analyze substantiality would be the question of whether
the ability of petitioners to communicate their message in
the way that's most effective is diminished. FRANK EASTERBROOK: How
do we measure that? Is there some communications
efficiency index that can be compiled? Your argument, based on
the numbers, 8 versus 12, and 100 versus 120,
and so on, implies that if could go out and
measure something accurately, we would know the answer to
the constitutional question. Presumably, that's something we
would be measuring accurately, as communicative efficiency,
or something like that. I wonder how you think
we're to do that? Both in terms of what
is the objective factor, and then how do we assess it. Or is it just all off
the top of our heads? If it's the latter,
one wonders what basis it has in the Constitution. If it's the former, then there's
really something measurable, something concrete, I think
it's important to know what, in your view, that is,
what we should look for. RICHARD SQUIRE: The
concrete question that could be
looked at is looking at various modes of speech,
applying common experience, whether we think
that these numbers, these numerical movements,
place a substantial burden upon that speech, as we
commonly understand it. This court-- FRANK EASTERBROOK: What
does that mean concretely? What would we look for to
tell whether it's true or not? RICHARD SQUIRE: You would ask
whether under common experience in the public forum
we would normally expect individuals
to stand 12 feet away and to engage in dialogue. FRANK EASTERBROOK: I'd like
them to stand 8 feet away. We're trying to figure out
what the difference is. Your argument implies that
there is some difference some definable function. Yet, you're not really
defining what that it is. RICHARD SQUIRE: I
concede, Your Honor, that this cannot be rendered
simply to a quantum, and there's no kind of algorithm
that we can construct to tell us how much speech has been-- FRANK EASTERBROOK: Doesn't
there have to be in a way? We're being set aside the
judgement of a legislature that reasonable
people would feel more secure with a 12-foot
zone than an 8-foot zone. And your argument is that
that comes at too much cost. But if we don't have
a way of figuring out what the cost is,
then we end up just substituting our judgment
with that of the legislature, those issues. I'm really searching
for something that would allow the court
to decide the case based on something other than
just a Gestalt difference with the legislature. RICHARD SQUIRE: Your
Honor, I see that my time-- DAVID SOUTER: You may
respond to the question. RICHARD SQUIRE: Thank you. This court has in many
times, in many other cases looked at a time, place,
and manner restriction, and found that it burdened
substantially more speech. For example, in City of
Ladue v. Gilleo, when it found that alternative
means were not available for
individuals who put signs on their residential lawn, or
in the case of United States v. Grace, when it
struck down at a time, place, and manner
restriction as applied to the sidewalks around
the Supreme Court Building. In both of those cases,
it is fair to say that a more qualitative
analysis was done, and a judgment was made about
whether the substantiality of the speech, and the
burden on the speech, was necessary to further the
state's legitimate interests. And I think ultimately, it
is a qualitative analysis, and not a quantitative one. But the movement
from 8 to 12 feet here places a qualitative
restriction upon speech. DAVID SOUTER: Thank
you, Mr. Squire. RICHARD SQUIRE: Thank you. DAVID SOUTER: Mr. Ho. I can't get mine to stay
where I want it to either. DEREK HO: Hopefully you can hear
me Mr. Chief Justice and may it please the Court
my name is Derek Ho and I also represent the
petitioners in this action, Mary Cameron and David Ray. Even if this court finds
that the Ames statute is constitutional on its
face, it should strike it down as applied to petitioners. The state interest in
protecting patients does not justify
convicting petitioners for engaging in a peaceful
demonstration that was aimed not at patients,
but at the government, their employer, and
the public at large. DAVID SOUTER: You don't
make any claim, I take it, that the government
placed this clinic in the municipal
building, or the building housing, other
municipal services, simply for the sake
of insulating them in effect from picketing? DEREK HO: No, we did not claim
that the government did this intentionally. Though we do claim that
there is the possibility of this type of effect. DAVID SOUTER: Well, but if
there is such a possibility, is it anything that
we need to worry about in adjudicating this case? JUDITH ROGERS: Your
Honor, the possibility that this statute was applied
to cloak members of Ames Board of Nursing within the
ambit of protections that were designed for patients
is relevant to the question of narrow tailoring. DAVID SOUTER: Well,
but I don't know that it does get to
narrow tailoring, because if in any
given case there is a sound indication that
the placement of the clinic was made for the purposes
of insulating government from criticism, that in effect
would be the kind of content based, and indeed
viewpoint based, discrimination
which would preclude the application of a time,
place, manner analysis right at the threshold, wouldn't it? DEREK HO: If that were
the case, Your Honor, it would, but we do not-- DAVID SOUTER: Why don't
we then simply say that is simply a
non-issue here, and we will go to the time, place,
manner criteria as such? DEREK HO: I would agree with
that analysis, Your Honor, that that possibility does
not bring this case out of the time, place,
and manner context. But it does of course create
an exacerbating factor in the narrow
tailoring analysis, in that this law, which was
designed to protect patients, was applied in order to protect
different people altogether, not only-- DAVID SOUTER: Well, it's true. But I think given the
case as it comes to us, we've got to assume
that there is nothing illegitimate about the fact
that this particular building is being used for patients
and for non-patients. Therefore, I think
the first thing you've got to confront
in the argument that you're beginning
is, is there any way, is there any practical way that
the patients can be protected if the ambit of the statute
does not apply to approaches to non-patients as well,
simply because patients don't walk down the street
with signs on themselves. DEREK HO: Your
Honor, the state is free and indeed able
to protect patients even in the context of a
multipurpose office building, either by limiting
the statute to those who are seeking medical care. Indeed, that is what the-- DAVID SOUTER: How could
you enforce such a statute? DEREK HO: I'm sorry-- DAVID SOUTER: In other
words, every time the police would make an
attempt to enforce the statute on the street, their
actions in effect would be subject to some kind
of a condition subsequent when it was revealed at some
later time, maybe five minutes, or five days later,
that the person who was being approached,
whose approach appeared to be unlawful, was
in fact not a patient, was not somebody
seeking medical care. If your answer is,
well, the police have got to be certain of
that in the first place, then the statute is
absolutely unenforceable. DEREK HO: Your Honor, the
district courts in Madsen and Schenck did believe that
such an injunction, which was limited in this
way, would be effective and the state may
very well decide that that is one tack that
they would like to take in order to protect patients. DAVID SOUTER: Do you
think it is relevant that in fact, in
this case, it is not the speech that is
being prohibited but simply the approach? DEREK HO: I don't
believe that it is relevant to the question
of whether a distinction between patients
and non-patients would be one feasible way for
the state to protect patients, even in this context. DAVID SOUTER: Well, is-- and this may not be, but
is it the implication of your argument then that
whenever a clinic is housed in a multi-purpose building,
a statute, such as the Hill statute, or such as the
one here in Ames, is, in practical terms,
wholly unenforceable? DEREK HO: If your honor believes
that this particular mode of narrowing the statute
is wholly unenforceable, there are other methods by
which the state could still protect patients. DAVID SOUTER: Well, that may
be, but that wasn't my question. My question is on
your view, is it the implication of
what you're saying that this statute
is unenforceable in a multi-use building situation? DEREK HO: Your Honor, I
believe that the statute could be enforced, perhaps,
for example, by including in the scienter
requirement something about whether or not the person
that is being approached is a patient. FRANK EASTERBROOK: Since
they don't come with labels, how would anyone know? The police don't know. The person approaching
doesn't know. I'm puzzled by your emphasis
on multi-use building. This is a very particular
subset of mutli-use buildings. It's a public building,
the functional equivalent of city hall. Why not just say, instead,
that statutes of this kind can't be enforced in traditional
public forums with respect to anyone. And therefore, if the city
wants to protect people attending a medical
clinic, it has the clinic not in a public forum. DEREK HO: We do
contests that by itself the fact that the
petitioners were protesting against the government at the
site of government activity, at the site of governmental
decision making, makes this law
unconstitutional as applied to them, as a separate-- FRANK EASTERBROOK:
This is, of course, a real distinction from Hill. There was no public
forum issue in Hill. People weren't trying to
approach a government building. DEREK HO: That's
quite right, and they were also not
attempting to approach a multi-purpose building. We would contest that
both factors independently are sufficient. FRANK EASTERBROOK: But
multi-purpose office building is still just an
office building. I'm puzzled at your reluctance
embrace the public forum analysis. It's not really in your brief. You seem reluctant
to take it now. DEREK HO: My reluctance
at taking the public forum analysis is less reluctance
and more an enthusiasm about the multi-purpose
office building argument. [LAUGHTER] DEREK HO: Which itself is-- FRANK EASTERBROOK: But your
audience is not nearly as enthusiastic as you are. [LAUGHTER] DEREK HO: I'd just
like to stress that this argument was
itself in some way presaged in Hill against Colorado. And the implication there
was that the application of a statute such as this
one to a multi-purpose office building, irrespective of
whether it's a government office building-- and
we do indeed forward that as a separate argument-- makes the law not
narrowly tailored, as respects that office
building, precisely because most of the
people who are in the area around that building do not-- FRANK EASTERBROOK:
I'm really puzzled by your tailoring argument. Most of the things that you
suggest for tailoring either are totally implausible,
or seem to make the statute content-based in some way. The virtue of the statute
in Hill, if it had a virtue, was it dealt with conduct,
that is coming close, rather than with the
reason you came close or the thing you said
if you came close. You seem to suggest
that tailoring has to do with the reason
you're coming close or the thing you say if you come close. But that would, under
our analysis in Hill, that would be the
very thing that would condemn the statute
as unconstitutional. Why in your view is
it a saving grace? DEREK HO: It's
not that tailoring has to do with the
content of the speech, tailoring has to do
with whether or not the people that are
being protected actually share in the interest that the
statute was designed to serve. DAVID SOUTER: No,
but if you take the-- and I share Justice
Easterbook's perplexity. If you take-- I think if you
take the argument that you are making here, and we
in effect were to say, yes, any statute with this
breath is unconstitutional, we would implicitly be
saying the only statute that can possibly survive
your tailoring argument is a statute
that would make its distinctions
on a content base, and would, therefore
be unconstitutional for that reason. Do you agree with us that
that's the implication of your argument? DEREK HO: No, Your
Honor, I don't. I believe that the statute
could be narrowly tailored by reducing the degree of
prophylaxis in some sense that this court blessed in Hill. In Hill, this court acknowledged
that the 8-foot buffer zone would preclude some harmless
demonstrations, as well as some harmful ones. DAVID SOUTER: Let me let me
try a slightly different tack. Counsel on the other
side have made a point in the brief based on a
science or a technology, which I think they
refer to as proxemics. And the proxemics evidence is
that even in situations which are not as emotionally
charged as abortion, anti-abortion
situations, people who are being intentionally
approached on the street by those who want to
engage in some kind of persuasive interaction
with them suffer in a way. Their blood pressures go up. And if those are people who in
fact are going to the doctor, they're going to
have a tough time. So if that argument
is sound, then it doesn't matter whether you're
running a labor protest, as opposed to someone else
running an abortion protest, the approach of
your people is going to have an effect, the same
kind of deleterious effect that the approach of any
other protesters will do. If you, therefore-- if we
accept that argument, and you, therefore, say
make a distinction between the kind of labor
protest that we've got and the kind of protest
that was involved in Hill, it seems to me we would
necessarily be making a distinction based on content. We would be seeing the labor
protesters can raise the blood pressure of the
potential patients, the abortion protesters cannot. Is that sound reasoning? DEREK HO: Your Honor, the
basis for not applying this law to petitioners
is not because of the content of their speech. It's not because they were
engaged in a labor protest or a government protest. It's because of the locational
nexus between their speech and the audience with whom they
were attempting to communicate. The petitioners chose
the Kennedy Building because it was uniquely suited
to their communicative needs, because it contained not
only their employer, but also the Ames Board of Nursing,
the regulatory agency. FRANK EASTERBROOK: If
we focus completely on the relation between--
if we focus completely on the relation between the
protesters and the building, which way does that cut? This is a distinctive building
because it's public forum, it's a public building. But these are
distinctive protesters because they are
public employees. Is it impermissible for
a local municipality to say we don't want our own
employees blocking the door. Whatever rights the public in
general may have to approach, people approaching the building. Why can't the municipality
say our staff will allow free access to building. DEREK HO: Your Honor,
I think it could. However the employees
in this case are actually not
public employees. The Ames City Health Clinic
is a private health clinic. So the petitioners are
not public employees, they are private employees. They're seeking to communicate
with their private employer at the only site where their
communication could really be effective. The fact that they would
have to severely curtail their speech within
the 120-foot zone, or go across the street, where
they would be effectively outside of visual
or oral distance, means that they would not be
able to effectively communicate with their audience at
the Kennedy Building. And it's this
locational nexus, again, that I think makes the Ames
statute unconstitutional as applied to them. Moreover, it's also
the fact that-- FRANK EASTERBROOK: Where
do we learn in the record that the Ames City Health Clinic
is a private organization. One would think with a
name like City Health Clinic in a public
building, it sounds public. DEREK HO: Your Honor, I believe
it's in the record at page 8, the ACHC is a nonprofit
community clinic that provides general
health care services, including abortions. JUDITH ROGERS: No
need though for you to accept the assumption
of the question either. DEREK HO: I'm sorry? JUDITH ROGERS: That if they
were government employees, they could be restricted in
their First Amendment rights. DEREK HO: We would not
contest that they could not. But that is not the case here. The two factors that make
this statute unconstitutional as applied to the
petitioners is the fact that a law that was
designed to protect patients is being used to protect
many more people than merely patients, but all
people who are entering into and out of the
multi-purpose Kennedy Building, as well as people
that are simply passing by the Kennedy
Building on their way to other locations in the city. DAVID SOUTER: But is it the
implication of your point that therefore here patients
cannot be protected? DEREK HO: The patients cannot
be protected through the same prophylactic measures
that this court-- that the state might generally
apply to other locations. DAVID SOUTER: It simply
cannot apply, you are saying, in a situation in which you have
government building, multi-use, various protests beyond abortion
or merely health related protests. You except that? DEREK HO: Mr. Chief Justice, I
see that my time has expired. DAVID SOUTER: You may
answer my question. DEREK HO: The state
could still, in our view, engage in sufficient
legislation to protect patients. It simply could not-- DAVID SOUTER: How? Tell me what it could do. DEREK HO: It could reduce
the range of the buffer zone, for example, to target precisely
the harm that the state has articulated, namely
in-your-face importuning that winds up intimidating,
and harassing, and causing these
horrible physical and psychological harms that
the state has suggested. We do not believe
that those harms arise at 8 feet, or even 12 feet. And the law in this
context should be narrowly tailored to that harm. DAVID SOUTER: Thank you, Mr. Ho. Mr. Wall. You may proceed. ROBIN WALL: Chief
Justice Souter, and may it please the Court. My name is Robin Wall,
and with my co-counsel I represent respondant,
the State of Ames. I will argue that
the Ames statute is a valid
content-neutral regulation of the time, place, and manner
of demonstration activity. My co-counsel,
Jessica Ellsworth, will continue the argument
and address the questions of over breadth and vagueness. This is a case about
the ability of the state to protect its citizens
right to obtain access to safe and effective
health care. Demonstration
activity in State of-- FRANK EASTERBROOK: Why does it
present that question at all? Why does the state need
to have a health care facility in a public building? ROBIN WALL: Your Honor,
as petitioner has noted, I believe it was a
nonprofit community clinic in a public building. Why the government extended
a lease to that facility is not before us in the record. FRANK EASTERBROOK: But if one
is asking the question, how can such entities be protected,
while simultaneously preserving rights of access to
public buildings, and the right to picket
public organizations, the answer is put them
in separate buildings. Now I gather there's
no claim here that this clinic was put in
the building say to shield any government agency. But there is an easy
answer to the question how can you protect both rights. And why shouldn't
we say that that's what the Constitution requires? ROBIN WALL: As an
initial matter, with respect to the
facial constitutionality of the statute, we can
consider the placement of a medical
facility in a public building the outlier in Ames. There are no differences
in the record-- DAVID SOUTER: Maybe
it's an outlier that should in fact define the
limits of permissible state action consistent with
the First Amendment. So it may be that this will
be the definitive case saying there is absolutely no need to
stretch hard to preserve First Amendment rights here, just put
the thing in another building. ROBIN WALL: Your honor,
as a threshold matter, we argue that the
question of the as applied constitutionality
of Subsection 3 is not properly
before the court. It's certainly within the
court's discretion to-- DAVID SOUTER: Did
the trial court rule on an as applied challenge? ROBIN WALL: No, Your Honor. DAVID SOUTER: Did
you think it was ruling on as applied challenge? ROBIN WALL: No, Your Honor. The trial court-- DAVID SOUTER: Did the
trial court refer to it as applied challenge? ROBIN WALL: The trial
court answer the question whether or not
Subsection 3 could be applied to labor
protesters, given that its avowed model for the
demonstration tactics regulated were abortion and animal rights
protests in the State of Ames. With respect to whether or
not Subsection 3 applied in a content neutral
fashion to labor protests, the answer was in
the affirmative. However the trial court
was very careful to treat petitioners four arguments
before the court. Those were whether
or not the statute was content neutral, whether
it passed the Ward analysis. Further, whether
it was over broad, and whether it was vague. There was no mention of
an as applied challenge before the state courts. Further, the record00 DAVID SOUTER: And you think
none of those four issues can be litigated as an
as applied challenge? ROBIN WALL:
Certainly, Your Honor, it's within the court's
discretion to Rule 141A of the court's rules
of practice to consider those questions fairly included
within the questions for cert. However, we would argue that
those questions generally are subsumed legal questions,
and that the court should not permit petitioners to
smuggle in questions unrelated to the questions on
which this court granted cert. Additionally, if this
court does decide to consider the as
applied challenge, it's important to note that
petitioners have failed to meet the burden
that they would need to demonstrate
in order to win on the as applied challenge. They have neither
demonstrated they did not cause the harm that
Subsection 3 targets, that is that targeted confrontational
approaches of patients entering health care facilities will
raise serious health and safety concerns. Neither have they-- DAVID SOUTER: That goes
to the vagueness point. ROBIN WALL: Your Honor? DAVID SOUTER: That goes
to the vagueness point. You're saying they can't
raise a vagueness challenge because there's no question
about their coverage by the statute as written. ROBIN WALL: Certainly,
that is true, Your Honor. Additionally, they
have not demonstrated that Subsection 3 substantially
limits or impairs their ability to protest and demonstrate
in the plaza in front of the Kennedy Building. JUDITH ROGERS: Did the court
take any cognizance of the fact that the record
we have here is it starts out with
about 40 protesters. They disperse and
we're left with two. And that the statute
is being applied under those circumstances? How does that impact
on your argument? And also, just
the notion that we have two types of First
Amendment expression here, and does that make a difference? ROBIN WALL: Your
Honor, with respect to the second
question, with respect to leafleting and picketing,
neither method of communication is prescribed by Subsection 3. This court has held that
limiting one means or method of communication
does not itself arise to the level of an abridgement
of the First Amendment right to speech. And certainly,
petitioners still have an effective and
meaningful right of ability to picket and protest. They can position
themselves immediately next to the entrance to
the health care facility, and offer pamphlets
or leaflets to passers by in a conversational
tone of voice. What they are prescribed
from doing is-- DAVID SOUTER: If they want
to position themselves in a given place, they
can yell as loudly as they want to, can't they? ROBIN WALL: That is
certainly true, Your Honor. Additionally, at
the 12 feet, they can still address the passersby
in a conversational tone. What they cannot do is
engage in a dialogue when that passerby does not consent. Now with respect to
the first question, what is the relevance that these
were two demonstrators of 30-- FRANK EASTERBROOK: How
can you address somebody in a conversational
tone from 12 feet away on a busy public street? Now I can understand addressing
you in a conversational tone, though you're 12 feet away,
because the Marshal will take away anybody else in
here who makes a noise. All that chortling,
you're subjecting yourself to the Marshal. But that's not what
happens on a public street. A public street has lots
of noise and bustle. The idea of holding a
conversation or anything in a conversational
tone from 12 feet way seems quite difficult at best. ROBIN WALL: Justice Easterbrook,
we are more than 12 feet apart right now. And it is easy in the
hush of the courtroom to communicate at 12 feet. However, 12 feet is also
less than the distance, less than the length
of an average car. And certainly when on
opposite sides of a car, on a busy street, we still
converse with one another in conversational tones. Further, Subsection 3 does
not limit demonstrators-- FRANK EASTERBROOK:
Maybe I should ask you the same question
I asked Mr. Squire. You have just the opposite
perspective, or at least the opposite assertion
from him about how much speech is being squelched and
whether that's good or bad. How do we measure that question? Is it in the end
nothing but Gestalt, or is there some way of actually
addressing the question, whether speech is
being suppressed, and if so, how much is too much. ROBIN WALL: As this court
indicated in Greyned v. City of Rockford, substantiality
cannot be defined with mathematical
precision, Your Honor. FRANK EASTERBROOK:
I'm not asking for mathematical precision. Give me something within
two orders of magnitude. ROBIN WALL: Certainly
the Ames General Assembly chose 12 feet because
they determined that that was the distance that
passersby wanted to maintain between themselves and
confrontational, aggressive demonstrators. And certainly, the
science supports that 12 feet is an
appropriate distance at which to place that limit. DAVID SOUTER: Why don't
you take the position that in fact this statute,
for all practical purposes, precludes ambulatory speech by
demonstrators within that 120 foot radius, and
simply say there are however other
ways to address the people within 120 feet? That way, number one, we would
have at least some measure of what was being prevented. And number two, we
would get to what I think is ultimately the
guts of your argument, and that is that there is indeed
sufficient alternative here. And that even if
ambulatory speech is out in the 120 foot
range, the statute is still constitutional. ROBIN WALL: If I understand
Your Honor correctly, that interpretation would
prescribe approaches combined with any and all communication. DAVID SOUTER: I'm saying-- I guess what I am
suggesting is that in order to enforce this
statute practically, so little ambulatory speech
would in fact be allowable that it would be de minimus. We could forget it. Why don't we start
with the assumption that ambulatory speech
by the demonstrators is for practical purposes
forbidden within the 120 foot radius, and go on from there? JUDITH ROGERS: Seems that
Justice Souter's approach has the virtue of avoiding those
types of distinctions however, and shifts you just to
their ample alternatives. Otherwise, we're almost
back to the first prong of whether we
should even be doing this time, place, and manner. ROBIN WALL: Justice
Roger, Subsection 3 provides bright lines and clear
guidance for both passersby, demonstrators, as
well as for law enforcement officers, both the
12 foot line and the 120 foot line are easy to police. Furthermore, a police
officer on the beat is likely to recognize
consensual communication between passers by
and demonstrators, the types of fine distinctions
the fine line drawing is just not a problem
under Subsection 3. Furthermore, the experience
with the statute in place bears this out. Petitioners were the first
to violate Subsection 3 after its enactment, despite
a lengthy history of protest activity in the State of Ames,
that had arisen to violence, that forced clinics to lock
their doors against patients, and forced patients
to be accompanied by escorts to brave the
protesters and gain physical access to health care. It's important that
Ames General Assembly, it was important for the
Ames General Assembly to act and assure patients
access to health care, and meaningful and
safe care at that. Furthermore, Subsection
3 was careful to preserve a meaningful right to protest
on the parts of demonstrators. And this is clear in that
ample alternative channel. DAVID SOUTER: And the
meaningful right to protest is stationary protest, right? That's within the
120 foot radius, the meaningful
alternative is the protest of a stationary individual. DAVID SOUTER: Your Honor,
Chief Justice Souter, that is true, the demonstrators
may not approach passersby for the prescribed, for the
listed enumerated demonstration tactics, as Justice
Rogers named them. However, this is no more
limiting with respect to leafleting, for example,
than most the regulation in Heffron, in which this
court permitted solicitors to be confined to
booths on a fairground. DAVID SOUTER: But your
brothers on the other side pointed out that Heffron,
the very analysis in Heffron, assumed that if the individuals
with their brochures in the booth wanted
to leave the booth, and walk out onto the concourse,
and buttonhole people, and address them directly,
they could do so. And there's no such
alternative here. So I don't see that Heffron
is a safe harbor for you. ROBIN WALL: With
respect to Heffron, Subsection 3 is even more
[INAUDIBLE] with respect to leafletting specifically. That is that petitioners
may position themselves anywhere in the plaza, anywhere
within the 120 foot zone, and distribute leaflets
from those points. They're not confined to a
single predetermined location, as in a booth. DAVID SOUTER: But once
they get there, they can't move, for practical purposes. ROBIN WALL: They can move. They simply cannot target-- they cannot target passersby. FRANK EASTERBROOK: Why
are you so reluctant to say that it's perfectly
constitutional to tell them that they can't move? ROBIN WALL: Your Honor,
in the immediate vicinity of health care facilities, it
is perfectly constitutional to say exactly that. To say that you cannot
invade the personal space of a passerby-- FRANK EASTERBROOK:
It's not clear that anything turns on
health care facilities. Suppose the Congress
enacted a statute, saying that on the grounds
of the Supreme Court people can't engage
in picketing. They may be able
to stand peaceably, but they can't
engage in picketing. Would there be any
constitutional problem with that law? ROBIN WALL: Justice Easterbrook,
both the narrow tailoring analysis and the
over breadth analysis has been context
specific for this court. And certainly, the
health care facility-- the context of health
care facilities presents particular
concerns that aren't present with
respect to a courthouse. As in Burson v. Freeman, this-- FRANK EASTERBROOK: So you
think there would be a problem with that statute for court. ROBIN WALL: Certainly there
is a problem with limiting demonstration activity
near a courthouse, as was demonstrated by this
court's holding in US v. Grace, in which it did
limit the ability-- FRANK EASTERBROOK:
On the sidewalk. The assumption of all
the participants in Grace was the limits on the
plaza of the court, which is a lot bigger than
120 feet, were fine. But that the sidewalk was
different from a plaza. ROBIN WALL: Justice
Easterbrook, this Subsection 3 is identical to the
Hill-- to the statute at issue in Hill v.
Colorado, in that both prescribe demonstration tactics
on a sidewalk or a public way. FRANK EASTERBROOK:
I understand that. I'm just trying to
see if I understand the source of your
reluctance to say that there is a problem with
telling people not to move. We see lots of statutes, not
like the one involved in Grace. There's the residential
picketing statute in Frisby. There's the statute involving
foreign embassies in Boos. And one might think
if you're coming back to here, a government
building, that a statute making it hard for people to obstruct
the entrance to a government building, to pester people
coming to a government building, but allowing them to
stand in place and put up signs might have a lot
to recommend it. It's hard to see why it would
be a constitutional problem. ROBIN WALL: Well
certainly, the evidence before the Ames General
Assembly would not justify such a restriction
on your ability to speak in front of
those public buildings. The evidence before
Ames General Assembly was the specific problem
the demonstrations had [INAUDIBLE] health care
access in the state of Ames. Furthermore, there was
a public safety issue present before Ames
General Assembly, and that was that these
demonstrations had arisen to violence on occasion. And at this too had
frustrated, and even deterred patients from seeking
health care all together. Now there's an important
additional interest that was recognized by this
court in Hill v. Colorado. And that is that patients
are a captive audience. They're captive both
to medical necessity and perhaps to demands of their
HMO or insurance provider. They simply cannot choose-- FRANK EASTERBROOK: What
is the significance of this captive
audience business? Suppose the city said the
people who ride on our subway are a captive audience. They're generally
low income people, they don't own their own cars. So we're going to
exclude from the subway all the kinds of
things they might not like to see, like advertisement
for abortion clinics. Could they do that? ROBIN WALL: Your
Honor, this court has upheld the prescription
of political advertisements in public transportation. And certainly it was
clear in Erzonznik v. The City of Jacksonville that when
an audience is sufficiently-- FRANK EASTERBROOK:
I asked a question about abortion clinics. Could they forbid in public
transportation advertisements for things that might
upset some of the riders? One can understand
excluding politics in much the same way the city,
or many cities and states apply the Hatch Act
to their employees, and say they can't
engage in politics. But now, I'm interested in
something that would just be upsetting to many people. ROBIN WALL: Your Honor,
Subsection-- that prescription would be content based,
perhaps viewpoint based, and would face strict scrutiny
under the court's analysis. However, Subsection 3 does not
aim at the impact of speech on passersby. It aims at the impact of
invasions of personal space on passersby. FRANK EASTERBROOK: I must
say, I have some trouble with this idea that you have
12 feet of personal space, a radius of 12 feet of
personal space around you when you're walking
on the public ways. Most sidewalks are not more
than six to eight feet wide. Very common for
four or five people to walk together or
passing one another. So where does one get 12
feet of personal space on a public sidewalk? ROBIN WALL: Admittedly, in the
hustle and bustle of the city street, passersby
will pass one another, and may pass very
close to one another. However, there is a
significant difference between that kind
of casual contact and the targeted confrontational
and often sustained approach of a
demonstrator in front of a health care facility. When the patients are in a
particular state of mind, whether they're facing surgery,
or the results of a biopsy, or an HIV test, the
Ames General Assembly has determined that it is
permissible to provide them a safety zone in which they
know that passersby will not approach. DAVID SOUTER: Thank
you, Mr. Wall. Ms. Ellsworth. JESSICA ELLSWORTH:
Chief Justice Souter, and may it please the Court. My name is Jessica Ellsworth. And I will continue the argument
on behalf of respondant. Under the Ames statute,
all individuals, including petitioners,
are free to say and to show anything
they want to others near a health care facility. They can shout or
speak in a normal tone. They can offer
literature and hold up signs readable to
their target audience. Under the statute, they simply
cannot move towards a target once the distance between
them is 12 feet or less. DAVID SOUTER: What does that
do to undercut, if at all, the justification that you
put forward for the statute? Because your justification
is essentially a justification about
the emotional response that patients have
to being addressed. And I think you
argue, and we probably would agree as matter
of common sense, that the emotional
response is going to be greatest if
someone is approaching in a specific
person-to-person way. But what you're describing
here, it sounds to me, you know, shouting and screaming at
people within this narrow zone, I presume is itself going
to be very upsetting. And in fact, if
this is allowable, doesn't it rather
undercut the argument about the ultimate state
protective interest which is being served
by the statute? JESSICA ELLSWORTH: We don't
believe that it undercuts the argument, Justice Souter. In this case, Ames was very
concerned with the approaches, because the approaches were
perceived as intimidating and caused harms. But the State of Ames was
also concerned with preserving the rights of demonstrators. And it sought to enact
a modest restriction that would allow those passersby
and those entering a health care facility to feel as
though they had a cushion, or as though there was
a fence between them and the demonstrators. So that as they walked in,
they could avert their eyes or avert their ears
if they were unwilling listeners, and know that
they would not be approached. It is the approach and
the manner of delivery, as opposed to the
content of the speech that the state was
concerned with. JUDITH ROGERS: So
I really thought, reading the record
here, that what the state was concerned
with was preserving access to these facilities. So the fact that
12 feet away people are screaming what may be
disturbing to the patients who are going to the
health care facility is a fact that the legislature
was willing to live with. They simply didn't want
people physically impeded or so psychologically impeded. And that's all. That they appreciated
the fact that there might be this harm, nevertheless. But that was the balance
the legislature struck. JESSICA ELLSWORTH:
That is the balance that the legislature struck. JUDITH ROGERS: But in your
argument, as I understand it, you brought in
this other aspect, and it seems to me makes
it more difficult for you, for the reasons Justice
Souter suggested. JESSICA ELLSWORTH: Well,
certainly the State of Ames was concerned with
access and also concerned with giving effective
medical care to its citizens. And in reacting to problems
of access, the State of Ames chose a two-prong solution. In Subsection 2 of the
statute, they prohibited actual physical blockades. And in Subsection 3, what
the state targeted are the types of
constructive blockades that could also deter access. And for those patients
who aren't deterred, would inhibit the ability to
give as effective medical care. In reacting to those
problems however, the state wanted to ensure
that its citizens could also voice their protests
and their concerns about all matters of social
concern in the State of Ames. And to do so, they enacted
this modest restriction on the type of
delivery of speech that could and could not occur
in the unique context of health care. This court has recognized-- FRANK EASTERBROOK: Your
brief spends a good deal of time discussing medical
literature, which the Chief Justice has already mentioned. I'm interested in that. How do we know whether
this is good science? JESSICA ELLSWORTH:
Well, Your Honor, we believe that it is
good science because-- FRANK EASTERBROOK:
Well, what lawyers believe about good
science may be different from what scientists
believe about good science. How do we know whether
it's good science? JESSICA ELLSWORTH: Well,
Your Honor, in part it is good science
because it is published in reputable medical journals. FRANK EASTERBROOK: How do we
know whether these journals are reputable? I'm not really acquainted with
Volume 30 of Fam Plan Pers. I assume that's Family
Planning Perspectives. I'm not completely
up on the blue book citation of medical stuff. How do we know these
are reputable journals? JESSICA ELLSWORTH:
Well, we believe that they are reputable-- FRANK EASTERBROOK: The
fact that you believe it, the fact that a lawyer
believes it, is not helping me. JESSICA ELLSWORTH:
Your Honor, I believe that if the science
were questioned, or if the science were in
some way disreputable, as you suggest, there would also
be things in the literature, in the medical literature,
that would suggest as such. There is nothing in the
medical literature that would contradict anything that was-- FRANK EASTERBROOK:
Most quackery is ignored by serious scientists. The fact that a
strain of literature has drawn no notice by
many serious scientists may suggest that it's quackery. This is a very serious
question about how laypeople like ourselves can
assess scientific arguments. Some scientific arguments
may be sufficiently within our ken to evaluate. But arguments based on
psychological claims of this kind may
be extremely hard, especially when
they haven't been done in controlled
ways that would test some of the questions
in this litigation. Take the Chief
Justice's question. Which is worse, being
approached within 12 feet by somebody who would like
you a literature, a piece of literature, or
having somebody stand 13 feet away from
you, screaming obscenities and with bloody dolls. Has that literature tried
to address that question? JESSICA ELLSWORTH:
Your Honor, I would suggest that Hill v.
Colorado, the American Medical Association cited this
same scientific research in their brief. And I certainly think that the
American Medical Association may have a better ability to
decipher the medical knowledge and the reputation of
that medical research than perhaps you or I do. But they felt confident
in relying on that and making the argument
that approaches-- FRANK EASTERBROOK: A
more accurate statement would be the American
Medical Association's lawyers cited it in their brief. JESSICA ELLSWORTH:
That's correct. I would assume that the brief
was written by their lawyers. FRANK EASTERBROOK: We're
back to my problem. JESSICA ELLSWORTH:
But what is important in this statute is that the
ample alternative channels, the ample avenues of
access for demonstrators to communicate their messages-- FRANK EASTERBROOK: I could
ask the question one more way. Often, if there's a new
line of medical evidence, something like the American
Medical Association will put together an expert
panel, a consulting group, or a federal agency will, to
inquire into the reliability of that strain of evidence. Has that been done here? JESSICA ELLSWORTH:
We are not aware and the record is unclear. FRANK EASTERBROOK: And no
Nobel Prizes for it yet? JESSICA ELLSWORTH: No. But in this case, petitioners,
as with all other demonstrators in the State of Ames have access
to a variety of other means of conveying their message. This regulation does not render
a single demonstrator silent who wants to protest, even
outside the doors of a health care clinic. In doing so, the state
preserves the speakers' rights in a public forum to
communicate their messages. And as this court
held in Ward, the fact that reducing one
means of communication may reduce access to one
part of your audience does not render a
statute unconstitutional when simple alternative
avenues exist. JUDITH ROGERS: Their
argument, though, is that you've deprived them
of their most effective means. And even if you don't
want to take them up on that, that in order
to counsel someone at 12 feet about a very
personal decision and try to persuade someone,
is simply impossible. JESSICA ELLSWORTH:
Justice Rogers, one thing under the statute
that is important to note is that the statute does not
require that demonstrators and individuals accessing
the health care facility be 12 feet away at all times. If a demonstrator or
someone who wants to counsel chooses to stand
in such a position that the person walks
closer than 12 feet, the demonstrator can attempt
to engage the person, attempt to catch
their attention. And if that person is
a willing listener, that person is free to consent
to either be approached, or also to approach the
demonstrator him or herself. In that way, the statute
protects the rights of listeners, who are interested
in receiving this information to approach and get it,
and protects the rights of unwilling listeners, who are
captive to medical necessity to gain entrance to the
health care facility. FRANK EASTERBROOK: The
front of this building is about 30 feet wide? JESSICA ELLSWORTH: Excuse me? FRANK EASTERBROOK:
The front entrance to the building, the
community building, is about 30 feet wide? JESSICA ELLSWORTH:
Yes, Your Honor. FRANK EASTERBROOK: As you
understand the statute, would there be any
problem under the statute of spacing 10 demonstrators
three feet apart in front of the building? JESSICA ELLSWORTH:
The only problem that would arise, Your Honor-- FRANK EASTERBROOK:
Standing rock still. JESSICA ELLSWORTH: Right. It would depend, Your Honor. That might possibly be a
violation of Subsection 2. FRANK EASTERBROOK: Only for
a particularly obese patient. JESSICA ELLSWORTH: Right. I mean, it is possible. And it is entirely justifiable
under this statute for there to be a number of demonstrators
who are standing still in the plaza, and
then the person attempting to enter the health
care facility simply can walk-- FRANK EASTERBROOK:
Doesn't that then raise the question of what this
statute accomplishes? If you can place this line
of people three feet apart, and they're all--
each, presumably, would have his hand
out with a leaflet, or engaging in an
effort, then your 12 foot zone of personal space is
being automatically invaded. It's cut down to about
a foot and a half of either side of the person
you're passing through. And they're be a hand
right close to you. So long as the
person isn't moving, it looks like the statute
hasn't been violated. And yet the objectives,
as you articulate them, aren't being achieved either. JESSICA ELLSWORTH: Actually,
Your Honor, I would disagree. I think the objectives
are being achieved. The objective is
to allow someone to gain entrance without an
in-your-face intrusive approach by someone they don't
want to be confronted by. Under this statute-- FRANK EASTERBROOK: I
don't understand how, if the picket line is
there, and these people are three feet apart-- so when you pass between
them, you're a foot and a half from each, less your
body width, that you can avoid what
amounts to being right in the face of the protester. JESSICA ELLSWORTH:
But if you imagine the difference, Your Honor,
walking into a building, walking between two parked
cars, versus walking between two cars that
are rolling toward you, it is certainly a
different experience. What this statute does is-- FRANK EASTERBROOK:
Depends on whether the car has a hand-bill. [LAUGHTER] JESSICA ELLSWORTH: What this
statute does, Your Honor, is it prevents the approach. That is what the State of
Ames was concerned with. In particular, because
these approaches in the past have escalated into
violence at times. These approaches, these
confrontational exchanges to express political, or
social, or ideological messages and impose them on an unwilling
recipient who's trying to get health care, are a problem. And the State of Ames is
justified in using its police power to enforce a statute
that protects the health and safety of its citizens. The State of Ames has chosen
to do that in this manner. This statute also, as
petitioners describe it, is overbroad and vague. We contend that neither of those
challenges can succeed either. First the statute
is not overbroad. JUDITH ROGERS: Can I just
interrupt, counsel, and ask you to go back. What's your response
to the argument that, well, if the
city, the state, wants to protect
in that manner, it ought to move all of its
health care facilities out of its municipal
office buildings, so persons, such
as petitioner, can exercise their First
Amendment right in the traditional manner. JESSICA ELLSWORTH: Your
Honor, because this statute is a modest restriction that
allows petitioners and anyone else to continue to demonstrate
in any number of ways, we don't believe that
the State of Ames is required to mandate
its health care facilities move to other locations. Health care facilities
choose to position themselves wherever they do to serve the
individuals in that community who need health care. And it seems an unfair burden
to place on the health care facilities to force
them to move elsewhere, when what this statute
does is accomplish a mild-- through a mild restriction,
it accomplishes protection for those patients. The statute, by protecting those
patients, whether the facility is in a multipurpose building,
or as a standalone building, protects all of the
patients seeking health care in the State of Ames. When addressing the
similar statute in Hill, this court held that the statute
did not protect too many people in too many places. There is no reason
for this court to assume that the situation of
health care facilities in Ames would be significantly different
from health care facilities in Colorado or any other state. DAVID SOUTER: No, but
that's not the distinction that is being suggested. The distinction that
is being suggested is not between health
facilities one place and health facilities in another. The distinction suggested
is between health facilities in buildings that have 27 other
tenants, perhaps many of whom are municipal or governmental,
and health facilities that are either in a standalone
building or in a building at least with fewer neighbors. And if we're coming down to the
question of narrow tailoring, it may be that we
cannot avoid that issue. So I think that's what
you get to confront, not whether there's a difference
between health care facilities in one place or another. JESSICA ELLSWORTH: On this
very issue, Justice Souter, in your concurrence in Hill,
you expressed great skepticism that the number of health
care facilities located in these large multi-purpose
buildings would be very big. DAVID SOUTER: Well,
that was last June. [LAUGHTER] A lot of people have had a
lot to say on this subject since last June. FRANK EASTERBROOK:
And as you can see, there's been a big
turnover in the court now. [LAUGHTER] JESSICA ELLSWORTH:
Certainly, all this is true, and certainly the interests
are somewhat different when there is a health care facility
in a multipurpose building. But the state cannot protect the
individuals seeking health care at the Ames City Health Clinic
unless it protects the entire building. DAVID SOUTER: If we make the
assumption in the first place that it is irrelevant
to the analysis that the health care
facility is placed in this governmental
multi-use building. And I don't know why we
should make that assumption. Because what is sufficiently
narrow tailoring, it seems to me, has got
to take into consideration alternatives. JESSICA ELLSWORTH: And we
would argue that it is exactly those alternatives
that continue to make the statute constitutional. Because demonstrations and
the rights of speakers are minimally restricted in
this one particular way, it doesn't follow that
they cannot demonstrate, that they cannot picket,
that they cannot raise public concern on the issues that are
centrally important to them to communicate on. They can. And they can communicate
with any passerby from a stationary position. And they can communicate
with any willing individual whom consents to an approach. They simply cannot
intrude on the personal space of individuals who don't
want to be intruded upon. DAVID SOUTER:
Well, but they can, because in answer to Justice
Easterbrook's question, you recognize that if they
want to stand three feet apart, they can be just as
in-your-face and confrontation as they want to be, and they're
doing it at pretty close range. The only thing that this statute
prevents, it seems to me, is the ambulating protester. and what it does with respect
to the ambulating protester, as a practical matter,
is to prevent all speech within the 120 foot radius. So the statute, in
fact, is not doing what you claim it is doing. JESSICA ELLSWORTH:
Chief Justice Souter, I disagree that the stationary
protester who holds out a leaflet conveys the same
in-your-face tactic as someone who closes the gap
and approaches you from 12 feet to
right up in your face in order to convey
that same message. There's a different
psychological impact when one is stationary
versus when one is moving. In conclusion, Your
Honor, this statute imposes a minimal restriction
that does not protect-- that does not infringe
on the First Amendment rights of speakers, and
allows a degree of protection for unwilling listeners
in this unique context. Thank you. DAVID SOUTER: Thank you,
very much Ms. Ellsworth. Mr. Squire, you have five
minutes for rebuttal. RICHARD SQUIRE: Thank
you, Your Honor. There are three
points to keep in mind and at this point in the case. First, contrary to
respondants' claim, a statute that prohibits
ambulatory movements is a significant restriction
on First Amendment rights. Second, petitioners
have preserved their as applied challenge. And third, their as
applied challenge could be achieved in the
sense that the state could have written a content
neutral statute that would protect patients outside
a place such as the Kennedy Building, but would
not sweep in speech, such as petitioners, that
was not directed at them. First, this court
has held previously that restrictions on the
ability of an individual to move are a burden on speech,
and are significant. For example, in Madsen
v. Women's Health Center, Incorporated, that statue
contained a provision that made it
illegal for a person to approach another within 300
feet of a medical facility. Sorry, there was an
injunction in that case that made it illegal to
approach within 300 feet. There wasn't even a requirement
that the person was doing that for purposes of communication. But this court
still held that that was unconstitutional
under the First Amendment. Putting a restriction on
the ability of individuals to move also severely
burdens the ability of small numbers
of demonstrators, such as one individual, to
get his or her message across. It would require,
as was suggested, larger numbers of
people to cover the area in which the relevant
audience is present. The ability of just
a few demonstrators to have their message
forwarded would be restricted in that way,
because they could not move around to try to engage
with individuals who don't happen to be passing within
their chosen frozen spot that they would have to
have, and they could not talk to such people or hand
them a leaflet once they happen to pass within arm's length. Therefore, it's a
significant restriction. As far as the preservation
of the as applied challenge, there's two quick
points I'd like to bring up from the record. First of all,
defendants, petitioners, but defendants at
that point, said that the legislation,
if held to apply in the circumstances
of this case, violates the First
Amendment rights. That's on the Joint
Appendix, page 10, point 32. In response, the
court held that there was no unconstitutional
application to the activities of defendant,
on page 11, paragraph 37. In addition, the order granting
the writ for certiorari, or the writ granting
certiorari, granted the issue of whether a
time, place, and manner-- whether this was a
permissible time, place, and manner regulation. Of course a time, place,
and manner regulation includes within it an
as applied challenge. So it was both argued and
preserved below, and included in writ of certiorari. DAVID SOUTER: I
think we understand your position on as applied. Will you go to
point number three? RICHARD SQUIRE: Yes, Your Honor. In Madsen, the injunction
that was issued in Madsen, there is part five of
that injunction, which made it illegal for
a person to encircle, surround, harass, threaten, or
physically abuse individuals. And that part of the injunction
was upheld by this court. Such language precisely
targets the harm that the state is
concerned with here and does it in a
content neutral way. And so the statute-- I'm sorry, the state,
in the context-- FRANK EASTERBROOK: That argument
requires us to overrule Hill, does it not? RICHARD SQUIRE: No, Your Honor. FRANK EASTERBROOK: It was a very
powerful argument [INAUDIBLE].. Your argument here is that
section two of this statute goes the job. But it's not a proposal
to redraft something like Section 3. It's a proposal to
rely on Section 2. RICHARD SQUIRE: Hill just ruled
on the facie constitutionality of that statute. And this court
recognized that there may be constitutional
problems as applied to multi-purpose
office buildings, or with buildings with
particularly wide entrances. So that exact fact pattern
is before the court now in an as applied basis. And by bringing this
language up from Madsen, I am suggesting that
in such a situation, that the state still
could have protected individuals in a content-- protected patients, in
a content neutral way. It's important in this case,
both in the facie and the as applied aspects, to
consider the totality of the circumstances, the
combination of factors that create the burden. Again, on the facie
side, there are four factors that in
combination increase the burden upon speech. Your Honor, Justice Easterbrook,
I've been thinking more about your question,
and I'm sure I'll think about it for a long time,
about the way that the state could do, with
the way this court can decide ways in which
substantiality is determined. One way that's
presented here would be to ask whether a typical
category, an entire category of typical speech,
or of First Amendment protected speech is
effectively precluded. This case effectively, or
this statute effectively precludes the entire category
of initiating dialogue. Because it does not allow-- DAVID SOUTER: Doesn't
category of speech refer to some kind of content? RICHARD SQUIRE: I'm sorry, I'm
not meaning it in that way. I see my time has expired. May I finish? DAVID SOUTER: You may finish. RICHARD SQUIRE:
Thank you, thank you. What I was referring to here
was a mode of expression, such as initiating and
engaging in dialogue. And because that
is foreclosed here, the statute places substantial
burden upon speech, not necessary to forward
the state's interest. And so it's unconstitutional
upon it's face. FRANK EASTERBROOK:
Does that really answer the substantially question? When I was young,
Kellogg's used to hand out deeds in boxes of cereal to
one square inch of Alaska. Now suppose statute is passing
saying in that square inch, you cannot engage in picketing
and approaching somebody. Would you be saying,
well, this let out a whole category
of activity that is dealing with that square inch. Well, we wouldn't think
it's important, would we. Your Honor, that's true. I don't know if it's
possible to engage in picketing in a square
inch, but I think that-- but I take the import
of your question to be that we must also
consider the degree to which the spatial requirement is met. But here, the space is far
enough so that the targeted audience cannot be addressed
upon one type of communication or one, what I've called
a mode of communication, within that area. For these reasons, we
encourage this court to strike down the Ames statute
as unconstitutional on its face or as applied. Thank you. DAVID SOUTER: Thank
you, Mr. Squire. We will take a recess. [APPLAUSE] STAFF: --In the John Chipman
Gray Room immediately following the argument, in honor of
the judges, the participants, and their guests. The judges will be out shortly. DAVID SOUTER: I
remember saying here once before on an
occasion like this that there are basically
two kinds of opinions. One tells you what
the problem is, goes on at complete
length discussing the problems, the pros
and cons of authority. And at the last line, tells
you how the case comes out. The other philosophy
is to tell you what the problem is, tell
you how it comes out, then go on with the
explanation, which you can either read or not. We are of the second
school in this case. So we will start
with the judgment, and then go on
into explanations. We have three judgments
to render, as you know. The first is a judgment
about the best oral advocate before the court this evening. And our judgment is that the
best of the very excellent four advocates was Miss Ellsworth. [APPLAUSE] DAVID SOUTER: This court has
the least effective bailiffs I have ever seen. [LAUGHTER] Our second judgment
goes to the issue of which of the sets of
briefs were the best. And in our judgment,
the respondants' briefs were the best briefs,
the read brief. And our final judgment-- [APPLAUSE] Our final judgment is
best overall team effort. And that goes to the respondant. [APPLAUSE] There is one difficulty
with our judgment, and it is a difficulty which
judges face day in and day out. And it is worth noting here. And that is, in this
particular case, not in all, there was not in effect
a divided judgment, with one team
getting one bouquet, another team getting another. The reality of most litigation
is that somebody wins and somebody loses. So in one sense, this is life. One thing that is
not life, as it were, at least we, as we working
judges know it is not life, and that is, in fact, to
have such a good match. And we did have a
good match tonight. The people involved here
as writers of briefs and as advocates
up at the podium were credits to
Harvard Law School, both teams, all four advocates. That's pretty high praise. Still somebody has to
win, somebody has to lose. But it was a good case. And it was a good Ames. We, each of us on
the bench, have a few further and slightly
more specific remarks to make. And we'll go on
with them, beginning with Judge Easterbrook. FRANK EASTERBROOK: I first heard
a moot court about 29 years ago at the University of Chicago. Justice Blackmun
presided over it. During the whole
argument, he sat silent, asking only whether the briefs
had been printed in accordance with the Supreme Court rule. The answer was
yes, they had been. He actually hadn't
fully understood the implications of the rule. But he then said at the end,
in this time, a major surprise to everybody, that the reason
why he hadn't said much during the argument
is because he was so impressed by the
quality of the advocates, that he sat in the
Supreme Court every day and he listened to
these arguments, and then he came here
to his law school, and it was such a shock that
the advocates, third year law students, were doing better than
the advocates in the Supreme Court. And he thought that
was very high praise, and he wanted to
pass that along. Well, I was in the audience. And I was sure he was just
saying that to be kind. Maybe he was even
pulling everybody's leg, it was some kind
of private joke. How could third
year law students rival the advocates who
appear in the Supreme Court of the United States on
the great cases of the day? Well, I then went
on to a clerkship and went on to practice
before the Supreme Court of the United States. And it took about
two arguments for me to realize that Justice
Blackmun had been telling the absolute truth. And not simply because, as
Chief Justice Berger recognized, although this wasn't the
exact phrase he used, but half of all advocates
are worse than average. The point was that a lot of
people get to the Supreme Court and get to the Court of
Appeals not fully prepared, not having taken the
time that is implied by the importance of the case. And in many event, not being
very good appellate advocates. I want to pass on Justice
Blackmun's word of praise, because it applies here too. The lawyers who you've seen
today not only took the time, not only prepared this
case to the gills, but also displayed what I think
is the most important quality of oral advocacy, and in many
ways the most difficult one. And that is being able to
engage in a conversation with the judges. Judges are sitting up here
in their black robes, higher. They have the power to
decide the case in the end. It's often very hard
to conceive of engaging in a conversation with them. But that's what good
advocacy is about. There's been a monologue before. It's in the brief. We've listened to this
uninterrupted flow of words. Questions keep occurring. The oral argument is the time
when the judges get the chance to turn their marginalia
into questions and probe what is troubling
them about the case. There's really only
one way to respond. And it's not the way
of college debate. It's not the way
of many advocates to say, oh, Your Honor, that's
a hypothetical question, leading the judge to wonder,
hello, what case am I in? Do you think I don't know the
difference between this case and a hypothetical case? The only thing to do is engage,
because the judge is interested not so much in
what happens today, but what happens tomorrow, what
principles are on the line, how do you explore
those principles. Having a conversation with the
judge about an issue of law is, I think, the most difficult
task an advocate can do. And the praise I have
for these is that they all engaged in that enterprise. So I thank you very much. I have one caution. And I think you could
probably see it from some of the questions on the bench. By the time a case gets
to the Supreme Court, there's a reason to think
that the justices may have large concerns
as well as small. And often it's well to
show up at oral argument not simply with here
are my distinctions from the last case, but I
now have a point of principle which I think is
large, and I would like to persuade you of that point. I may have my fallbacks
of distinctions if I can't persuade
you with that point. And you could see
some of the questions from the bench asking,
well, maybe there's something special
that would require the separation of
facilities, maybe there's something special about
this being a public agency. Those may turn out to be
large points of principle that would sway the case. And in a real oral argument
in the Supreme Court, there would probably be more-- tilted more toward
that direction and less toward the
individual distinctions. But that's a fine
point of choice. And I don't want it to
detract from the praise I have previously given. So thank you very much. DAVID SOUTER: Judge Rogers. JUDITH ROGERS: Thank you. Well, thank you all
for inviting me. I've enjoyed this. And it's been a
privilege for me. Justice Souter is so gracious,
and Justice Easterbrook very humorous and gracious. And I join him in my
praise for all four of you and the fine work you've done, I'll tell two quick stories
based on my own experience. The first being that I
did a lot of litigation and then I became
an appellate judge. And all of a sudden, after
having argued before the court that my client should win for
say the following five reasons, as a judge I had to decide
which of those reasons, if you were to win, would
be the one we chose, or the two, or the
three we chose, and why. Recently, we had an
argument in the court involving a government agency,
a very difficult issue. I think all three judges
were very troubled by it. And we kept pressing each side
to give us a theory by which to adopt their interpretation. And when the argument was
over and we conferenced, all three of us were convinced
that basically neither side had given us a theory. So we would come up with one. But the point is, it's
really your opportunity at oral argument
for all the reasons that Justice Easterbrook
just mentioned. And so I encourage
you to remember that. Because the justices
are not only asking questions of their own
in areas they're troubled about, but they're listening
to the questions asked by their colleagues and
engaging in it as well. So take advantage of
that, I would simply say. The second point is sort
of a reality of life that you probably all
know, and if you don't, you will soon find out. There's many briefs
that are filed in court, and I will except the Supreme
Court of the United States, but certainly the lower
courts are by and large written by associates,
senior associates, partners, but probably not
the senior partner who's going to argue the case. And I've been told
by my colleagues, and I've seen it for
myself, that the brief is satisfactory in the sense
that the partner who's going to argue the
case is satisfied that all of the points are made,
that the issues are properly preserved, nothing
has been omitted. But when that partner comes into
the court to argue the case, he has, if he's good,
a larger perspective. And that is immensely
helpful to the court. It's something to think about. And I think that's what we're
sort of pressing you with. My final comment
would be, as you may have noticed
from my questions, I think you ought
to take advantage of the facts in
the case and argue in support of your principles. I mean, there's some
interesting facts in this case. The record's very sparse. But there's some
interesting facts that to me cry out for
some of the principles that some of the
questions addressed. So with that brief comment,
congratulations to all of you. DAVID SOUTER: I can't
dissent from anything that has been said so far. And I have a certain
temptation to amplify. But I won't do that. What I will do is perhaps speak
in slightly different terms, but I think in the
main to the same point that each of my
colleagues has made. I'm going to structure what
I say to give me a chance to pass on to you one of my
favorite quotations, which I hope if you
remember nothing else specifically from this
evening, you will remember it, because it will stand
you in very good stead. The first-- the assumption
upon which any argument has got to be structured, on which any
set of briefs has got to be structured, when the briefs
and the arguments are addressed to an appellate court
of final jurisdiction, where the doctrinal
lines are made clear, is the point that if the case is
really worth getting that far, it is a point-- it is a case rather, without a
ready made doctrinal solution. This is not the
quote I have in mind. But I'll give you
two quotes tonight. The most important question
perhaps in the law, or as in most of life, is the
question compared to what. When we get to a, as it
were, the final stage in any appellate structure,
presumably the errors have been corrected, if
there are any errors. And the issue that
is left at that point is an issue of drawing a
line where a line has not, prior to that time, been drawn. The line is going to be drawn
by taking into consideration, in effect, not principle,
but two principles-- well, maybe more than two. And the question is
not what the answer may be in accordance
with settled principle, as far as it goes, whether
on one side of a case or on the other. The case is going to
be decided, in effect, on saying there are
good reasons to choose one principle over another,
and to draw a line, as it were, to the
right of center or to the left of
center, the center being the point of
existing intersection. I think you can
keep this in mind if you remember a
quotation, which I was told the first day
I started practicing law. And it was a remark
which addressed the relationship between
lawyers and their clients. But it's a remark that
also should address the relationship between
counsel before a court, such as this one,
and the court itself. The ranking senior
partner of my firm said, the first rule for
success in the practice of law is to remember Lord
McNaughton's great statement. Thirsty men want beer,
not explanations. Courts want something
more than doctrine. And if you look at
the arguments tonight, the beer, as it were,
the ingredient that wasn't here before this
case got into court, is in fact the ingredient
to which several of us alluded in the course
of questioning. And that was the-- I'll get it wrong-- the science of, what is it-- proxemics. It may or may not be science. But there are people out there
who are publishing material on the effect of approaching
other people on the streets and in other places. This new material
came up in the course of the respondants' brief. When I got to read the brief
and came upon that material, just like Judge
Easterbrook, I said, I don't know whether
this is any good or not. But it's something new. It is a new ingredient,
which if sound, gives me a reason for
analyzing the case one way rather than another way. It's not in the
existing case law. It's not there. And suddenly, I said, you
know, there's the beer. There's the beer in this case. Ultimately, I do not in fact,
any more than my brother here, know whether it is sound or not. But it was at least, as an
ingredient, a reason in effect to modify the debate. And it was a reason,
which if accepted, was a reason to say we may,
in fact, apply the Hill principle in this situation,
despite other factual distinctions in the case. It may not ultimately have
been a sufficient reason, but it was a good
and relevant reason. So the reason I at least voted
in favor of the respondants' brief as the winner
in the group was that it really did
sort of respond to the McNaughton injunction. There were loads of
doctrinal reasons in there. But there was some
beer in there too. With that thought,
it crosses my mind that there is beer elsewhere
in this institution. And we shall stand adjourned
to take advantage of it. [APPLAUSE]
