[C]onsider Hill v. Colorado, a case decided in 2000. A Colorado statute made it a misdemeanor for anyone within 100 feet of a “health care facility”—meaning a place where abortions occurred—to “knowingly approach” another person within 8 feet, without her consent, to engage in “oral protest, education or counseling.” Adopted in an obvious attempt to avoid efforts near abortion clinics to intimidate women who had decided to have abortions or pressure them not to do so, the law’s drafting was extremely broad. A 6-3 majority nonetheless held it constitutional in an opinion by Justice John Paul Stevens, rooted in the “privacy interest in avoiding unwanted communication.”
Justice Kennedy dissented vigorously. “For the first time,” he wrote, “the Court approves a law which bars a private citizen from passing a message, in a peaceful manner and on a profound moral issue, to a fellow citizen, on a public sidewalk… . So committed is the Court to its course that it denies these protesters, in the face of what they consider to be one of life’s gravest moral crises, even the opportunity to try to offer a fellow citizen a little pamphlet, a handheld paper seeking to reach a higher law.”
The Hill decision was one of the least sympathetic in living memory to First Amendment values. In McCullen v. Coakley (2014), the court changed course. An opinion by Chief Justice John Roberts, which Justice Kennedy joined, struck down a similar Massachusetts law—without even mentioning the Hill case.
So one cheer for Justice Kennedy, a man with more to his legacy than just his Mystery of Life Passage.