Free speech jurisprudence has rested on shaky ground for decades in this country. Looking back at cases like Hill v. Colorado, Austin v. Reagan National Advertising of Austin, and Dobbs v. Jackson Women’s Health have left a confusing and contradictory morass of precedence, most of it contradicting the Constitution of the United States. With the recent case Coalition Life v. City of Carbondale, Illinois, the court had the opportunity to set the record straight. Instead, the court whiffed, declining to even hear the case.

Background
As always, the best place to start is at the beginning.

Petitioner Coalition Life is a Missouri nonprofit that organizes sidewalk counselors to counsel, educate, pray, display signs, and distribute literature outside abortion clinics. Their goal is to engage in “one-on-one conversation in a calm, intimate manner,” as they find that approach most effective. . . . The organization prohibits its counselors from engaging in intimidating or threatening behavior.
— Coalition Life v. City Of Carbondale, Illinois

Sounds to me like a simple example of exercising the right to peaceably assemble, but if it were that simple, I wouldn’t be writing about it here.

Until the passage of Ordinance No. 2023–03, Coalition Life counselors engaged in sidewalk counseling outside abortion facilities in Carbondale. But, the new ordinance “severely hinder[ed]” their ability to do so. The newly enacted 100-foot buffer zone meant that Coalition Life counselors were forced to stand far away from those with whom they wished to speak . . . rendering intimate counseling activities effectively impossible.
— Coalition Life v. City of Carbondale, Illinois

Imagine being told that you cannot come within 100 feet of a location simply because you disagree with its stated purpose and wish to discuss that fact with their customers. Again, we aren’t talking about intimidating behavior. And if someone prevented someone from entering said business, I believe that would be criminal as well. But according to the complaint, none of that ever happened with members of Coalition Life.

Coalition Life sued the city of Carbondale, alleging, among other things, that the ordinance violates the First Amendment. Problem number one for Coalition Life: this ordinance cannot violate the First Amendment because it wasn’t passed by Congress.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech . . .
— U.S. Constitution, Amendment I

Since Congress didn’t make this law, it cannot violate the First Amendment, but that doesn’t mean the act was constitutional.

All persons may speak, write and publish freely, being responsible for the abuse of that liberty. In trials for libel, both civil and criminal, the truth, when published with good motives and for justifiable ends, shall be a sufficient defense.
— Illinois Constitution Article I, Section 4

Since this is a violation of the state’s constitution, it’s not within the jurisdiction of the federal judiciary. However, there is a violation of the United States Constitution.

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law;
— U.S. Constitution, Amendment XIV, Section 1

Since Carbondale made and enforced a law that abridged the right of freedom of speech, and deprived people of the liberty to engage in conversation with others without due process, it is a clear violation of the Fourteenth Amendment (however, only the First Amendment question was brought to the court).

Needless to say, the city of Carbondale wanted this suit to go away. When the city moved to dismiss the suit, they pointed to a Supreme Court decision known as Hill v. Colorado.

The District Court dismissed the suit on the ground that Hill and binding Seventh Circuit precedent controlled. The Seventh Circuit affirmed on the same ground, acknowledging the plaintiffs’ assertion that Carbondale’s buffer zone was “modeled after and nearly identical” to the one upheld in Hill.
— Coalition Life v. City of Carbondale, Illinois

So this whole case was decided because it matched the case Hill v. Colorado. But was that case rightly decided?

Thomas Dissent
This particular violation of people’s rights goes back to the Hill case from the year 2000, in which the Supreme Court upheld a Colorado law restricting peaceful speech within 100 feet of abortion clinics.

What made this law restricting free speech special? Why did the Hill court uphold the law?

Hill’s abortion exceptionalism turned the First Amendment upside down. As Hill’s author once explained, the First Amendment reflects a “‘profound national commitment’ to the principle that ‘debate on public issues should be uninhibited, robust, and wide-open.’” (NAACP v. Claiborne Hardware Co., 1982, majority opinion of Stevens). That principle applies with perhaps its greatest force to speech that society finds “offensive” or “disagreeable.” Yet, Hill manipulated this Court’s First Amendment jurisprudence precisely to disfavor “opponents of abortion” and their “right to persuade women contemplating abortion that what they are doing is wrong.”
— Coalition Life v. City of Carbondale, Illinois

Justice Thomas makes a couple of very important points here. The court has used abortion as an excuse to ignore not only the First Amendment, but their oaths and duty as justices. The State of Colorado passed a law intentionally restricting speech, a seemingly obvious constitutional violation.

It was clear at the time that Hill’s reasoning “contradict[ed] more than a half century of well-established First Amendment principles.” (at 765, Kennedy dissenting; see also at 742 Scalia joined by Thomas dissenting). A number of us have since described the decision as an “absurd,” “defunct,” “erroneous,” and “long-discredited” “aberration” from the rest of our First Amendment jurisprudence. . . . I do not see what is left of Hill. Yet, lower courts continue to feel bound by it. The Court today declines an invitation to set the record straight on Hill’s defunct status. I respectfully dissent.
— Justice Thomas, Coalition Life v. City of Carbondale, Illinois

I agree with Justice Thomas that the court should have taken the case, but not for the same reason. He appears to want to establish a new precedent, while I want to see the Constitution restored to its rightful place as the supreme law of the land.

Thomas’ Justification
Let’s look at Thomas’ view on Hill in more detail.

Hill involved a 1993 Colorado statute that established “buffer zones” around abortion clinics. The law made it a crime for any person, within 100 feet of any “health-care facility” entrance, to “knowingly approach” within 8 feet of another person, without that person’s consent, “for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling with such other person.” Put another way, Colorado’s law—still in effect today—prohibits unconsented “sidewalk counseling” within 100 feet of abortion clinics.
— Coalition Life v. City of Carbondale, Illinois

Colorado enacted what is commonly called a “buffer-zone” law. Actually this is a double-buffer, since within the 100-foot buffer of a healthcare facility you are not allowed within the eight-foot buffer of someone else, but only if you wished to exchange information.

Shortly after the law’s enactment, a group of self-described sidewalk counselors who sought to peacefully “educate” and “counsel” “passersby about abortion and abortion alternatives” challenged the law. . . . This Court upheld the law as a content-neutral time, place, and manner restriction.
— Coalition Life v. City of Carbondale, Illinois

This is one of the free speech violations that courts have adopted. As I pointed out, the Constitution of Colorado protects freedom of speech. Yes, you can be held accountable for the abuse of that right, but how is approaching someone to engage in that right abuse? The real question that should be asked is: Who has the responsibility to stop someone’s speech? Imagine if freedom of speech everywhere was treated the same way as Colorado treats it around healthcare facilities. “Excuse me, is it okay if I wave and say hello to you?” “Do I have your permission to return the set of keys you just dropped?” “I’m sorry, is it okay if I drive past you with a sign on my truck?” But the court claimed that the state could abridge the freedom of speech as long as it wasn’t based on the content of that speech.

It’s one thing to establish rules for conduct in public areas that are content-neutral—the use of bullhorns or demonstrations that obstruct traffic, for example—but that is not what the Colorado law did. Rather, it determined that if the content was “oral protest, education, or counseling,” and if that content was expressed outside of a “healthcare facility,” that speech was restricted.

Justice Scalia could identify only one explanation for the majority’s anomalous decision: “[T]he jurisprudence of this Court has a way of changing when abortion is involved.”

This was a case of content-based restrictions on free speech. If the content was pro-abortion, no problem, but if it was anti-abortion, Colorado wanted to censor it, at least outside “healthcare facilities,” a euphemism for abortion clinics.

Conclusion
As Justice Thomas noted, at the court things change when abortion is in the mix. What we have here is another case of courts placing their opinions above the supreme law of the land.

This Court has received a number of invitations to make clear that Hill lacks continuing force. . . . It is undisputed that Carbondale’s ordinance is identical to Colorado’s law in all material respects. It is likewise undisputed that both the District Court and the Seventh Circuit dismissed Coalition Life’s suit exclusively on the ground that those courts felt bound by Hill. This case would have allowed us to provide needed clarity to lower courts. . . . I would have taken this opportunity to explicitly overrule Hill.
— Opinion of Thomas, Coalition Life v. City of Carbondale, Illinois

The court had a chance to fix a mistake from a previous court and didn’t, but the fault is not all theirs. After all, the judges in the district and circuit courts took oaths to support and defend the Constitution of the United States, not the opinions of other judges. If either of those courts in this case had bothered to look beyond precedent, they may have seen the Fourteenth Amendment violation. Since our law schools apparently do not teach the Constitution, placing precedent as their primary concern, it’s not really a surprise that the product of their education is so flawed. Perhaps one day we’ll find someone who will bring a truly constitutional argument to a case like this.