Justice Thomas Calls Again for Overruling Hill v. Colorado

From Justice Thomas’s dissent from the denial of certiorari in Coalition Life v. City of Carbondale (Justice Alito also noted that he would have granted the petition):

In Hill v. Colorado (2000), this Court upheld a state law restricting peaceful speech within 100 feet of abortion clinics. It was clear at the time that Hill‘s reasoning “contradict[ed] more than a half century of well-established First Amendment principles.” 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. See City of Austin v. Reagan Nat. Advertising of Austin, LLC (2022) (Thomas, J., joined by Gorsuch and Barrett, JJ., dissenting) (internal quotation marks omitted). We have long stopped applying Hill. And, a majority of this Court recently acknowledged that Hill “distorted [our] First Amendment doctrines.” Dobbs v. Jackson Women’s Health Organization (2022). Following our repudiation in Dobbs, 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.

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.

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 under the First Amendment. This Court upheld the law as a content-neutral time, place, and manner restriction

Hill‘s errors were numerous. Whether Colorado’s law applies to a given speaker undeniably turns on “what he intends to say.” “A speaker wishing to approach another for the purpose of communicating any message except one of protest, education, or counseling may do so without first securing the other’s consent.” Nevertheless, the Court deemed the law content neutral on the theory that it does not prohibit a particular viewpoint or a particular subject matter. But, this Court had never—and since Hill, has never—taken such a narrow view of content-based speech restrictions. Buffer zones like the one at issue in Hill are “obviously and undeniably content based.”

As a result of this error, the Court purported to subject the Colorado law to so-called “intermediate scrutiny,” a standard far more lenient than the “strict scrutiny” we apply to content-based restrictions. And, the Court applied an unusually flexible version of intermediate scrutiny. Ordinarily, any content-neutral burden on protected speech must be narrowly tailored to serve a significant state interest, and it must leave open ample alternative means of communication. The Hill majority first minimized the burden imposed on First Amendment rights by demoting the right to speak in public forums to a mere “interest.” The Court then declared that Colorado had a substantial interest in protecting its citizens’”right to avoid unwelcome speech.” But, as Justice Scalia explained, the State had expressly disclaimed that interest in its briefs before the Court. And with good reason, because “[w]e have consistently held that ‘the Constitution does not permit government to decide which types of otherwise protected speech are sufficiently offensive to require protection for the unwilling listener or viewer.’” Nevertheless, that expressly disclaimed state interest became the “linchpin” of the Court’s analysis.

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.” Hill reflects “the ‘ad hoc nullification machine’” that this Court “set[s] in motion to push aside whatever doctrines” happen to “stand in the way” of abortion. 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, J.). 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.”

It is unclear what, if anything, is left of Hill. As lower courts have aptly observed, Hill is “incompatible” with our more recent First Amendment precedents.

Start with McCullen v. Coakley (2014). There, this Court unanimously held unconstitutional a Massachusetts law that prohibited anyone from entering a 35-foot buffer zone around an abortion facility. In doing so, the Court determined that the law was content neutral because—rather than targeting certain kinds of speech such as protest, education, and counseling—the law prohibited virtually any speech within the buffer zone. The Court made clear, however, that the law “would be content based if it required ‘enforcement authorities’ to ‘examine the content of the message’” to determine whether the law applied. That position is irreconcilable with Hill, which the Court did not even bother to cite.

Hill is likewise at odds with Reed v. Town of Gilbert (2015). Reed involved a First Amendment challenge to a town’s sign code that regulated various categories of signs based on “the type of information they convey.” Relying on Hill, the Ninth Circuit concluded that the sign code was content neutral, reasoning that the town “‘did not adopt its regulation of speech because it disagreed with the message conveyed’” and its “‘interests in regulat[ing] temporary signs are unrelated to the content of the sign.’” That court then applied a lower level of scrutiny and upheld the code. We reversed, holding that a speech regulation is content based—and thus “presumptively unconstitutional”—if it “draws distinctions based on the message a speaker conveys.”

McCullen and Reed “establish that strict scrutiny is the proper standard of review when a law targets a ‘specific subject matter … even if it does not discriminate among viewpoints within that subject matter.’” That proposition presents “glaring tension” with Hill…. “In the wake of McCullen and Reed, it’s not too strong to say that what Hill explicitly rejected is now prevailing law” ….

Our post-Reed decisions have firmly established Hill‘s diminished status. In City of Austin, for example, the majority ran as far as it could from Hill, even though Hill was the one “case that could possibly validate the majority’s aberrant analysis” on the constitutionality of restrictions on billboard advertising. The majority nonetheless insisted that any alleged similarity was “a straw man,” rejecting the notion that its opinion had “‘resuscitat[ed]‘” Hill, and reminding readers that it did “not cite” the decision at all.

Our latest word on Hill—expressed in a majority opinion joined by five Members of this Court—is that the decision “distorted [our] First Amendment doctrines.” Dobbs. If Hill‘s foundation was “deeply shaken” before Dobbs, the Dobbs decision razed it.

This trajectory calls to mind the story of Lemon v. Kurtzman (1971), which had created a three-part test to determine whether a law violated the Establishment Clause. While this Court had not by any one statement overruled Lemon, for many years it either “expressly declined to apply the test” or “simply ignored it.” We were never shy about Lemon‘s “shortcomings” and “daunting problems.” And, we eventually faulted lower courts for failing to notice that the “‘shortcomings’ associated with th[e] ‘ambitiou[s],’ abstract, and ahistorical” Lemon test had “bec[o]me so ‘apparent’ that this Court long ago abandoned” it. In other words, we explained, Lemon had long been dismantled by our precedents, and lower courts should have recognized its demise. Given that prior to Kennedy v. Bremerton School Dist. (2022), a decision of the Court had never outright condemned Lemon as a “distort[ion],” Hill‘s abandonment is arguably even clearer than Lemon‘s.

To be sure, this Court has not uttered the phrase “we overrule Hill.” For that reason, some lower courts have felt compelled to uphold Hill-like buffer zones around abortion clinics. This case is another prime example of that trend, and “[o]ne can hardly blame [lower courts] for misunderstanding” when “[w]e [have] created … confusion.” We are responsible for resolving that confusion, and we should have done so here….

Hill has been seriously undermined, if not completely eroded, and our refusal to provide clarity is an abdication of our judicial duty. “We are responsible for the confusion among the lower courts, and it is our job to fix it.” I would have taken this opportunity to explicitly overrule Hill. For now, we leave lower courts to sort out what, if anything, is left of Hill‘s reasoning, all while constitutional rights hang in the balance. I respectfully dissent.

For an example of Hill‘s continuing force in the lower courts, see Blythe v. City of San Diego (S.D. Cal. 2025), which relied on Hill to uphold an ordinance that applies not just outside health care facilities, but also “places of worship” and “school grounds”:

Within this radius, the Ordinance prohibits individuals from “knowingly and willfully approach[ing] within eight feet of a person in the public right-of-way or sidewalk area seeking to enter or exit a health care facility, place of worship, or school grounds” to pass leaflets, display signs, or engage in oral protest, education, or counseling, unless the individual first obtains consent. The Ordinance is a carbon copy of the ordinance the Supreme Court upheld in Hill v. Colorado, except that the Ordinance includes places of worship and school grounds, while the ordinance in Hill applied only to health care facilities.

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