Here is the majority’s summary of what the test should be, and the concurrences do not express any disagreement with this summary (though they do disagree with the application of the test):
To begin, the Act does not draw content based distinctions on its face. The Act would be content based if it required “enforcement authorities” to “examine the content of the message that is conveyed to determine whether” a violation has occurred. But it does not. Whether petitioners violate the Act “depends” not “on what they say,” but simply on where they say it.
Here, though, is what the majority said in Hill v. Colorado (an opinion written by Justice Stevens, but joined by, among others, Justices Breyer and Ginsburg, who also joined the McCullen majority), while concluding that a law limiting certain “oral protest, education, or counseling” was content-neutral (emphasis added):
Petitioners … argue that the [Colorado] statute is not content neutral insofar as it applies to some oral communication. … With respect to persons who are neither leafletters nor sign carriers, … the statute does not apply unless their approach is “for the purpose of … engaging in oral protest, education, or counseling.” Petitioners contend that an individual near a health care facility who knowingly approaches a pedestrian to say “good morning” or to randomly recite lines from a novel would not be subject to the statute’s restrictions. Because the content of the oral statements made by an approaching speaker must sometimes be examined to determine whether the knowing approach is covered by the statute, petitioners argue that the law is “content-based” ….[But i]t is common in the law to examine the content of a communication to determine the speaker’s purpose. Whether a particular statement constitutes a threat, blackmail, an agreement to fix prices, a copyright violation, a public offering of securities, or an offer to sell goods often depends on the precise content of the statement. We have never held, or suggested, that it is improper to look at the content of an oral or written statement in order to determine whether a rule of law applies to a course of conduct. With respect to the conduct that is the focus of the Colorado statute, it is unlikely that there would often be any need to know exactly what words were spoken in order to determine whether “sidewalk counselors” are engaging in “oral protest, education, or counseling” rather than pure social or random conversation.Theoretically, of course, cases may arise in which it is necessary to review the content of the statements made by a person approaching within eight feet of an unwilling listener to determine whether the approach is covered by the statute. But that review need be no more extensive than a determination whether a general prohibition of “picketing” or “demonstrating” applies to innocuous speech. The regulation of such expressive activities, by definition, does not cover social, random, or other everyday communications. Nevertheless, we have never suggested that the kind of cursory examination that might be required to exclude casual conversation from the coverage of a regulation of picketing would be problematic.
And this was said in the face of the dissenters’ argument that the protest/education/counseling restriction was content-based in part because it required examination of the content of the speech; here’s a portion of Justice Scalia’s dissent in Hill:
As discussed above, the prohibition here is content based: Those who wish to speak for purposes other than protest, counsel, or education may do so at close range without the listener’s consent, while those who wish to speak for other purposes may not. This bears no resemblance to a blanket prohibition of picketing — unless, of course, one uses the fanciful definition of picketing (“an effort to persuade or otherwise influence”) newly discovered by today’s opinion. As for the Court’s appeal to the fact that we often “examine the content of a communication” to determine whether it “constitutes a threat, blackmail, an agreement to fix prices, a copyright violation, a public offering of securities, or an offer to sell goods,” the distinction is almost too obvious to bear mention: Speech of a certain content is constitutionally proscribable. The Court has not yet taken the step of consigning “protest, education, and counseling” to that category.
And here’s a portion of Justice Kennedy’s dissent in Hill:
The Court errs in asserting the Colorado statute is no different from laws sustained as content neutral in earlier cases. The prohibitions against “picketing” and/or “leafleting” upheld in [past cases] are no different from the restrictions on “protest, education, or counseling” imposed by the Colorado statute. The parallel the Court sees does not exist. No examination of the content of a speaker’s message is required to determine whether an individual is picketing, or distributing a leaflet, or impeding free access to a building. Under the Colorado enactment, however, the State must review content to determine whether a person has engaged in criminal “protest, education, or counseling.” When a citizen approaches another on the sidewalk in a disfavored-speech zone, an officer of the State must listen to what the speaker says. If, in the officer’s judgment, the speaker’s words stray too far toward “protest, education, or counseling” — the boundaries of which are far from clear — the officer may decide the speech has moved from the permissible to the criminal. The First Amendment does not give the government such power.
So the Hill majority held the restriction on approaches for “oral protest, education, or counseling” was content-neutral, partly because it rejected the view that a law is content-based whenever “the content of the oral statements made by an approaching speaker must sometimes be examined to determine whether the knowing approach is covered by the statute.” But the McCullen majority held that a law “would be content based if it required ‘enforcement authorities’ to ‘examine the content of the message that is conveyed to determine whether’ a violation has occurred’ ” — the very test that the Hill majority refused to apply.
As I mentioned in an earlier post, McCullen‘s reasoning striking down the Massachusetts law doesn’t cast much doubt on Hill: The law in Hillwas materially less restrictive, even of face-to-face conversations, and protected a form of personal privacy — freedom from close, directed approaches that intrude on one’s personal space — that wasn’t implicated in McCullen. But McCullen‘s test for what makes a law content-based does potentially cast doubt on Hill.
To be sure, it may well be that Justices Breyer and Ginsburg, who joined the Hill majority, still approve of that majority, and would take a limited view of the scope of Chief Justice Roberts’ “content based if it required ‘enforcement authorities’ to ‘examine the content of the message that is conveyed to determine whether’ a violation has occurred” test. But Chief Justice Roberts himself would presumably take a more literal view of his opinion. Justices Scalia, Thomas, and Kennedy are on the record in Hill in concluding that the “protest, education, or counseling” law was content-based. And Justice Alito’s opinion in McCullen suggests that he too might lean towards finding these sorts of restrictions to be content-based.
There might thus be five votes in favor of overruling Hill v. Colorado in a case where that issue — is a restriction on “protest, education or counseling” content-based? — was squarely presented again, even though the majority on the Court declined to overrule Hill in this case, where that particular issue didn’t have to be reached. Or so it seems to me, based on just several hours’ exposure to the McCullen opinion.
Note, incidentally, that Justice Scalia’s concurrence offers a somewhat different argument for how the majority in McCullen undermines Hill:
One final thought regarding Hill: It can be argued, and it should be argued in the next case, that by stating that “the Act would not be content neutral if it were concerned with undesirable effects that arise from … ‘[l]isteners’ reactions to speech,’” and then holding the Act unconstitutional for being insufficiently tailored to safety and access concerns, the Court itself has sub silentio (and perhaps inadvertently) overruled Hill. The unavoidable implication of that holding is that protection against unwelcome speech cannot justify restrictions on the use of public streets and sidewalks.
I agree that such an argument can be made, but I’m not sure it would prevail. Frisby v. Schultz (1988) — which is relatively uncontroversial on the Court today — held that a ban on targeted residential picketing was content-based, based partly on the government interest to preserve residential privacy; and that interest was closely tied to shielding people from unwelcome speech. “One important aspect of residential privacy,” the Frisby majority (which included Justice Scalia) said, “is protection of the unwilling listener. Although in many locations, we expect individuals simply to avoid speech they do not want to hear, the home is different. … [W]e have repeatedly held that individuals are not required to welcome unwanted speech into their own homes and that the government may protect this freedom.”
To be sure, one can argue that this interest suffices to justify even content-neutral restrictions only as to speech focused on the targets’ homes, not as to speech in other places. But Frisby‘s conclusion that a law may be content-neutral even when it is aimed at shielding “unwilling listener[s]” against “unwanted speech” would apply to speech more generally, not just to speech outside homes. The strongest argument in favor of reversing Hill based on McCullen would thus be that the “protest, education, or counseling” restriction requires “examin[ing] the content of the message that is conveyed to determine whether a violation has occurred” — not that any restriction aimed at shielding unwilling listeners is content-based.