Blue state slapped with lawsuit over ban on speech near abortion clinics: ‘viewpoint discrimination’

Daily Caller News Foundation

A pro-life advocate is challenging a Colorado law that restricts speech outside of abortion centers — along with the Supreme Court’s 2000 decision upholding the law.

Wendy Faustin argues Colorado’s law, which prohibits approaching another person on sidewalks within a 100-foot radius of a medical facility “for the purpose of passing a leaflet or handbill” or “engaging in oral protest, education, or counseling,” violates the First Amendment. It makes sidewalk counseling “impossible,” targets one side of the debate on abortion and “unquestionably discriminates based on the content—and even the viewpoint—of speech,” Faustin’s lawsuit alleges.

“The government may not target life-affirming speech simply because it disagrees with the message,” Roger Byron, Senior Counsel for First Liberty Institute, said in a statement shared with the Daily Caller News Foundation. “That is unlawful viewpoint discrimination. It should not be a crime to lovingly and compassionately approach another person to tell them about alternatives to abortion.”

Faustin’s request for an injunction against the law runs contrary to current Supreme Court precedent. In its Hill v. Colorado decision, the Supreme Court ruled 6-3 that the law is a “regulation of the places where some speech may occur,” not a regulation of the speech itself.

Faustin, backed by the First Liberty Institute and the law firm Cooper & Kirk, PLLC., suggests the case was “wrongly decided.”

“[F]or the reasons explained by the dissents in that case and in later Supreme Court precedent, that case was wrongly decided, is irreconcilable with intervening precedent, and has severely ‘distorted First Amendment doctrines,’” the lawsuit states, referencing the Court’s June 2022 decision overturning Roe v. Wade

The late Justice Antonin Scalia, in a dissent to Hill v. Colorado joined by Justices Clarence Thomas and Anthony Kennedy, wrote that the First Amendment is “a dead letter” if protecting people from “unwelcome communications” serves a compelling state interest.

Byron told the Daily Caller News Foundation the case was “recognized at the time as bad First Amendment law.”

Colorado Gov. Jared Polis and the City of Denver did not immediately respond to requests for comment.

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