Springfield Planned Parenthood v. Jones

There is no right to be left alone:

But it is difficult, indeed, to justify a prohibition on all uninvited approaches of persons seeking the services of the clinic, regardless of how peaceful the contact may be, without burdening more speech than necessary to prevent intimidation and to ensure access to the clinic. Absent evidence that the protesters' speech is independently proscribable (i.e., "fighting words" or threats), or is so infused with violence as to be indistinguishable from a threat of physical harm, see Milk Wagon Drivers, 312 U.S., at 292 -293, this provision cannot stand. "As a general matter, we have indicated that in public debate our own citizens must tolerate insulting, and even outrageous, speech in order to provide adequate breathing space to the freedoms protected by the First Amendment." Boos v. Barry, 485 U.S., at 322 (internal quotation marks omitted). The "consent" requirement alone invalidates this provision; it burdens more speech than is necessary to prevent intimidation and to ensure access to the clinic. 6

[Justice Scalia, dissenting in Hill] It is not without reason that Colorado claimed that, in attributing to this statute the false purpose of protecting citizens' right to be let alone, petitioners were seeking to discredit it. Just three Terms ago, in upholding an injunction against antiabortion activities, the Court refused to rely on any supposed " Śright of the people approaching and entering the facilities to be left alone.' " Schenck v. Pro-Choice Network of Western N. Y., 519 U.S. 357, 383 (1997). It expressed "doubt" that this "right Š accurately reflects our First Amendment jurisprudence." Ibid. Finding itself in something of a jam (the State here has passed a regulation that is obviously not narrowly tailored to advance any other interest) the Court today neatly re-packages the repudiated "right" as an "interest" the State may decide to protect, ante, at 11, n. 24, and then places it onto the scales opposite the right to free speech in a traditional public forum.

To support the legitimacy of its self-invented state interest, the Court relies upon a bon mot in a 1928 dissent (which we evidently overlooked in Schenck). It characterizes the "unwilling listener's interest in avoiding unwanted communication" as an "aspect of the broader Śright to be let alone' " Justice Brandeis coined in his dissent in Olmstead v. United States, 277 U.S. 438, 478. The amusing feature is that even this slim reed contradicts rather than supports the Court's position. The right to be let alone that Justice Brandeis identified was a right the Constitution "conferred, as against the government"; it was that right, not some generalized "common-law right" or "interest" to be free from hearing the unwanted opinions of one's fellow citizens, which he called the "most comprehensive" and "most valued by civilized men." Ibid. (emphasis added). To the extent that there can be gleaned from our cases a "right to be let alone" in the sense that Justice Brandeis intended, it is the right of the speaker in the public forum to be free from government interference of the sort Colorado has imposed here.

In any event, the Court's attempt to disguise the "right to be let alone" as a "governmental interest in protecting the right to be let alone" is unavailing for the simple reason that this is not an interest that may be legitimately weighed against the speakers' First Amendment rights (which the Court demotes to the status of First Amendment "interests," ante, at 9.) We have consistently held that "the Constitution does not permit the government to decide which types of otherwise protected speech are sufficiently offensive to require protection for the unwilling listener or viewer." Erznoznik v. Jacksonville, 422 U.S. 205, 210 (1975) (emphasis added). And as recently as in Schenck, the Court reiterated that "[a]s a general matter, we have indicated that in public debate our own citizens must tolerate insulting, and even outrageous, speech in order to provide adequate breathing space to the freedoms protected by the First Amendment." 519 U.S., at 383 (internal quotation marks omitted).

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