OCTOBER TERM, 1993
Syllabus
MADSEN ET AL.
v. WOMEN'S HEALTH CENTER, INC., ET AL.
CERTIORARI TO THE SUPREME COURT OF FLORIDA No. 93-880. Argued
April 28, 1994-Decided June 30,1994
After petitioners and other antiabortion protesters threatened
to picket and demonstrate around a Florida abortion clinic, a state
court permanently enjoined petitioners from blocking or interfering
with public access to the clinic, and from physically abusing
persons entering or leaving it. Later, when respondent clinic
operators sought to broaden the injunction, the court found that
access to the clinic was still being impeded, that petitioners'
activities were having deleterious physical effects on patients and
discouraging some potential patients from entering the clinic, and
that doctors and clinic workers were being subjected to protests at
their homes. Accordingly, the court issued an amended injunction,
which applies to petitioners and persons acting "in concert" with
them, and which,
inter alia, excludes demonstrators from a
36-foot buffer zone around the clinic entrances and driveway and
the private property to the north and west of the clinic; restricts
excessive noisemaking within the earshot of, and the use of "images
observable" by, patients inside the clinic; prohibits protesters
within a 300-foot zone around the clinic from approaching patients
and potential patients who do not consent to talk; and creates a
300-foot buffer zone around the residences of clinic staff. In
upholding the amended injunction against petitioners' claim that it
violated their First Amendment right to freedom of speech, the
Florida Supreme Court recognized that the forum at issue is a
traditional public forum; refused to apply the heightened scrutiny
dictated by
Perry Ed. Assn. v.
Perry Local Educators'
Assn., 460 U. S. 37, 45, because the injunction's restrictions
are content neutral; and concluded that the restrictions were
narrowly tailored to serve a significant government interest and
left open ample alternative channels of communication, see
ibid.
Held:
1. The injunction at issue is not subject to heightened scrutiny
as content or viewpoint based simply because it restricts only the
speech of antiabortion protesters. To accept petitioners' claim to
the contrary would be to classify virtually every injunction as
content based. An injunction, by its very nature, does not address
the general public, but applies only to particular parties,
regulating their activities, and perhaps their speech, because of
their past actions in the context of a spe-
754
cific dispute. The fact that this injunction did not prohibit
activities by persons demonstrating in favor of abortion is justly
attributable to the lack of such demonstrations and of any
consequent request for relief. Moreover, none of the restrictions
at issue were directed at the content of petitioners' antiabortion
message. The principal inquiry in determining content neutrality is
whether the government has regulated speech without reference to
its content. See,
e. g., Ward v.
Rock Against Racism,
491 U. S. 781,
791. The government's purpose is therefore the threshold
consideration. Here, the injunction imposed incidental restrictions
on petitioners' message because they repeatedly violated the
original injunction. That the injunction covers people who all
share the same viewpoint suggests only that those in the group
whose conduct violated the court's order happen to share
that viewpoint. Pp. 762-764.
2. In evaluating a content-neutral injunction, the governing
standard is whether the injunction's challenged provisions burden
no more speech than necessary to serve a significant government
interest. See,
e. g.,
Carroll v.
President and
Comm'rs of Princess Anne, 393 U. S. 175, 184. Thus,
the injunction must be couched in the narrowest terms that will
accomplish its pinpointed objective. See id., at 183. Although the
forum around the clinic is a traditional public forum, the obvious
differences between a generally applicable ordinance-which
represents a legislative choice to promote particular societal
interests-and an injunction-which remedies an actual or threatened
violation of a legislative or judicial decree, and carries greater
risks of censorship and discriminatory application than an
ordinance, but can be tailored to afford greater relief where a
violation of law has already occurred-require a somewhat more
stringent application of general First Amendment principles in this
context than traditional time, place, and manner analysis allows.
The combination of the governmental interests identified by the
Florida Supreme Court-protecting a pregnant woman's freedom to seek
lawful medical or counseling services, ensuring public safety and
order, promoting the free flow of traffic on public streets and
sidewalks, protecting citizens' property rights, and assuring
residential privacyis quite sufficient to justify an appropriately
tailored injunction. Pp. 764-768.
3. Given the focus of the picketing on patients and clinic
staff, the narrowness of the confines around the clinic, the fact
that protesters could still be seen and heard from the clinic
parking lots, and the failure of the first injunction to accomplish
its purpose, the 36-foot buffer zone around the clinic entrances
and driveway, on balance, burdens no more speech than necessary to
accomplish the governmental interests in protecting access to the
clinic and facilitating an orderly traffic flow on the
755
street. The need for a complete buffer zone may be debatable,
but some deference must be given to the state court's familiarity
with the facts and the background of the dispute even under
heightened review. Petitioners argued against including the factual
record as an appendix in the Florida Supreme Court, and never
certified a full record. This Court must therefore judge the case
on the assumption that the evidence and testimony presented to the
state court supported its findings that the protesters' activities
near the clinic's entrance interfered with access despite the
earlier injunction. Pp. 768-771.
4. However, the 36-foot buffer zone as applied to the private
property to the north and west of the clinic burdens more speech
than necessary to protect access to the clinic. Patients and staff
wishing to reach the clinic do not have to cross that property.
Moreover, nothing in the record indicates that petitioners'
activities on the property have obstructed clinic access, blocked
vehicular traffic, or otherwise unlawfully interfered with the
clinic's operation. P. 771.
5. The limited noise restrictions imposed by the injunction
burden no more speech than necessary to ensure the health and
well-being of the clinic's patients. Noise control is particularly
important around medical facilities during surgery and recovery
periods. The First Amendment does not demand that patients at such
a facility undertake Herculean efforts to escape the cacophony of
political protests. Pp. 772-773.
6. The blanket ban on "images observable" sweeps more broadly
than necessary to accomplish the goals of limiting threats to
clinic patients or their families and reducing the patients' level
of anxiety and hypertension inside the clinic. Prohibiting the
display of signs that could be interpreted as threats or veiled
threats would satisfy the first goal, while a clinic could simply
pull its curtains to protect a patient bothered by a disagreeable
placard. P. 773.
7. Absent evidence that the protesters' speech is independently
proscribable (i.
e., "fighting words" or threats), or is so
infused with violence as to be indistinguishable from a threat of
physical harm, the 300-foot no-approach zone around the clinic-and
particularly its consent requirement-burdens more speech than is
necessary to accomplish the goals of preventing intimidation and
ensuring access to the clinic. Pp. 773-774.
8. The 300-foot buffer zone around staff residences sweeps more
broadly than is necessary to protect the tranquility and privacy of
the home. The record does not contain sufficient justification for
so broad a ban on picketing; it appears that a limitation on the
time, duration of picketing, and number of pickets outside a
smaller zone could have accomplished the desired results. As to the
use of sound amplification equipment within the zone, however, the
government may demand that
756
petitioners turn down the volume if the protests overwhelm the
neighborhood. Pp.774-775.
9. Petitioners, as named parties in the injunction, lack
standing to challenge its "in concert" provision as applied to
persons who are not parties. Moreover, that phrase is not subject,
at petitioners' behest, to a challenge for "overbreadth." See
Regal Knitwear Co. v.
NLRB, 324 U. S. 9, 14-15. Nor
does the "in concert" provision impermissibly burden their freedom
of association. They are not enjoined from associating with others
or from joining with them to express a particular viewpoint, and
the First Amendment does not protect joining with others to deprive
third parties of their lawful rights. Pp.775-776.
626 So. 2d 664, affirmed in part and reversed in part.
REHNQUIST, C. J., delivered the opinion of the Court, in which
BLACKMUN, O'CONNOR, SOUTER, and GINSBURG, JJ., joined, and in which
STEVENS, J., joined as to Parts I, II, III-E, and IV. SOUTER, J.,
filed a concurring opinion,
post, p. 776. STEVENS, J., filed
an opinion concurring in part and dissenting in part,
post,
p. 777. SCALIA, J., filed an opinion concurring in the judgment in
part and dissenting in part, in which KENNEDY and THOMAS, JJ.,
joined,
post, p. 784.
Mathew D. Staver argued the cause for petitioners. With
him on the briefs were
Jeffery T. Kipi and
Christopher J.
Weiss.
Talbot D'Alemberte argued the cause for respondents.
With him on the brief was
Susan England.
Solicitor General Days argued the cause for the United States as
amicus curiae urging affirmance. With him on the brief were
Assistant Attorney General Hunger, Deputy Solicitor General Bender,
Beth S. Brinkmann, Anthony J. Steinmeyer, and Jonathan R. Siegel.
*
*Briefs of amici curiae urging reversal were filed for the
American Family Association by Scott L. Thomas; for the Christian
Legal Society et al. by Edward McGlynn Gaffney, Jr., Steven T.
McFarland, and Victor G. Rosenblum; for Defendants Operation Rescue
et al. by Jay Alan Sekulow, Walter M. Weber, Mark N. Troobnick,
James M. Henderson, Sr., Thomas Patrick Monaghan, Keith A.
Fournier, and John Stepanovich; for the National Right to Life
Committee, Inc., by James Bopp, Jr., and Richard E. Coleson; and
for the Rutherford Institute by John W Whitehead and Alexis I.
Crow.
Briefs of
amici curiae urging affirmance were filed for
the State of Florida et al. by
Robert A. Butterworth,
Attorney General of Florida,
Ger-
757
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
Petitioners challenge the constitutionality of an injunction
entered by a Florida state court which prohibits antiabortion
protesters from demonstrating in certain places and in various ways
outside of a health clinic that performs abortions. We hold that
the establishment of a 36-foot buffer zone on a public street from
which demonstrators are excluded passes muster under the First
Amendment, but that several other provisions of the injunction do
not.
I
Respondents operate abortion clinics throughout central Florida.
Petitioners and other groups and individuals are
ald B. Curington and Gypsy Bailey, Assistant Attorneys General,
Eleni M. Constantine, and Richard Cordray, and by the Attorneys
General for their respective States as follows: Grant Woods of
Arizona, Gale A. Norton of Colorado, Richard Blumenthal of
Connecticut, Robert A. Marks of Hawaii, Roland W Burris of
Illinois, Pamela Carter of Indiana, Michael E. Carpenter of Maine,
J. Joseph Curran, Jr., of Maryland, Scott Harshbarger of
Massachusetts, Hubert H. Humphrey III of Minnesota, Joseph P.
Mazurek of Montana, Deborah T. Poritz of New Jersey, Frankie Sue
Del Papa of Nevada, Tom Udall of New Mexico, G. Oliver Koppell of
New York, Michael F. Easley of North Carolina, Lee Fisher of Ohio,
Theodore E. Kulongoski of Oregon, Jeffrey B. Pine of Rhode Island,
Charles W Burson of Tennessee, Dan Morales of Texas, Jeffrey L.
Amestoy of Vermont, Darrell V. McGraw, Jr., of West Virginia, and
James E. Doyle of Wisconsin; for the American College of
Obstetricians and Gynecologists et al. by Carter G. Phillips,
Joseph R. Guerra, Ann E. Allen, and Paul M. Smith; for the Center
for Reproductive Law & Policy et al. by Lenora M. Lapidus; for
the National Abortion Federation et al. by Elaine Metlin, Lynn I.
Miller, Roger K. Evans, and Eve W Paul; for the NOW Legal Defense
and Education Fund et al. by Martha F. Davis, Deborah A. Ellis,
Sally F. Goldfarb, and Burt Neuborne; and for People for the
American Way et al. by Joseph N. Onek, Richard McMillan, Jr.,
Elliot M. Mincberg, Lawrence S. Ottinger, Steven M. Freeman, Marc
D. Stern, Lois C. Waldman, Richard F. Wolfson, Ronald Lindsay,
Elaine R. Jones, Theodore M. Shaw, and Charles Stephen Ralston.
Laurence Gold and
Walter Kamiat filed a brief for
the American Federation of Labor and Congress of Industrial
Organizations as
amicus curiae.
758
engaged in activities near the site of one such clinic in
Melbourne, Florida. They picketed and demonstrated where the public
street gives access to the clinic. In September 1992, a Florida
state court permanently enjoined petitioners from blocking or
interfering with public access to the clinic, and from physically
abusing persons entering or leaving the clinic. Six months later,
respondents sought to broaden the injunction, complaining that
access to the clinic was still impeded by petitioners' activities
and that such activities had also discouraged some potential
patients from entering the clinic, and had deleterious physical
effects on others. The trial court thereupon issued a broader
injunction, which is challenged here.
The court found that, despite the initial injunction, protesters
continued to impede access to the clinic by congregating on the
paved portion of the street-Dixie Way-leading up to the clinic, and
by marching in front of the clinic's driveways. It found that as
vehicles heading toward the clinic slowed to allow the protesters
to move out of the way, "sidewalk counselors" would approach and
attempt to give the vehicle's occupants antiabortion literature.
The number of people congregating varied from a handful to 400, and
the noise varied from singing and chanting to the use of
loudspeakers and bullhorns.
The protests, the court found, took their toll on the clinic's
patients. A clinic doctor testified that, as a result of having to
run such a gauntlet to enter the clinic, the patients "manifested a
higher level of anxiety and hypertension causing those patients to
need a higher level of sedation to undergo the surgical procedures,
thereby increasing the risk associated with such procedures." App.
54. The noise produced by the protesters could be heard within the
clinic, causing stress in the patients both during surgical
procedures and while recuperating in the recovery rooms. And those
patients who turned away because of the crowd to return at a
759
later date, the doctor testified, increased their health risks
by reason of the delay.
Doctors and clinic workers, in turn, were not immune even in
their homes. Petitioners picketed in front of clinic employees'
residences; shouted at passersby; rang the doorbells of neighbors
and provided literature identifying the particular clinic employee
as a "baby killer." Occasionally, the protesters would confront
minor children of clinic employees who were home alone.
This and similar testimony led the state court to conclude that
its original injunction had proved insufficient "to protect the
health, safety and rights of women in Brevard and Seminole County,
Florida and surrounding counties seeking access to [medical and
counseling] services."
Id., at 5. The state court therefore
amended its prior order, enjoining a broader array of activities.
The amended injunction prohibits petitioners 1 from engaging in the
following acts:
"(1) At all times on all days, from entering the premises and
property of the Aware Woman Center for Choice [the Melbourne
clinic] ....
"(2) At all times on all days, from blocking, impeding,
inhibiting, or in any other manner obstructing or interfering with
access to, ingress into and egress from any building or parking lot
of the Clinic.
"(3) At all times on all days, from congregating, picketing,
patrolling, demonstrating or entering that portion of public
right-of-way or private property within [36] feet of the property
line of the Clinic .... An exception to the 36 foot buffer zone is
the area immediately adjacent to the Clinic on the east .... The
[petitioners] ... must remain at least [5] feet from the Clinic's
east line.
1 In addition to petitioners, the state court's order was
directed at "Operation Rescue, Operation Rescue America, Operation
Goliath, their officers, agents, members, employees and servants,
and ... Bruce Cadle, Pat Mahoney, Randall Terry, ... and all
persons acting in concert or participation with them, or on their
behalf." App. 56.
760
Another exception to the 36 foot buffer zone relates to the
record title owners of the property to the north and west of the
Clinic. The prohibition against entry into the 36 foot buffer zones
does not apply to such persons and their invitees. The other
prohibitions contained herein do apply, if such owners and their
invitees are acting in concert with the [petitioners] ....
"(4) During the hours of 7:30 a.m. through noon, on Mondays
through Saturdays, during surgical procedures and recovery periods,
from singing, chanting, whistling, shouting, yelling, use of
bullhorns, auto horns, sound amplification equipment or other
sounds or images observable to or within earshot of the patients
inside the Clinic.
"(5) At all times on all days, in an area within [300] feet of
the Clinic, from physically approaching any person seeking the
services of the Clinic unless such person indicates a desire to
communicate by approaching or by inquiring of the [petitioners]
....
"(6) At all times on all days, from approaching, congregating,
picketing, patrolling, demonstrating or using bullhorns or other
sound amplification equipment within [300] feet of the residence of
any of the [respondents'] employees, staff, owners or agents, or
blocking or attempting to block, barricade, or in any other manner,
temporarily or otherwise, obstruct the entrances, exits or
driveways of the residences of any of the [respondents'] employees,
staff, owners or agents. The [petitioners] and those acting in
concert with them are prohibited from inhibiting or impeding or
attempting to impede, temporarily or otherwise, the free ingress or
egress of persons to any street that provides the sole access to
the street on which those residences are located.
"(7) At all times on all days, from physically abusing,
grabbing, intimidating, harassing, touching, pushing, shoving,
crowding or assaulting persons entering or
761
leaving, working at or using services at the [respondents']
Clinic or trying to gain access to, or leave, any of the homes of
owners, staff or patients of the Clinic ....
"(8) At all times on all days, from harassing, intimidating or
physically abusing, assaulting or threatening any present or former
doctor, health care professional, or other staff member, employee
or volunteer who assists in providing services at the
[respondents'] Clinic.
"(9) At all times on all days, from encouraging, inciting, or
securing other persons to commit any of the prohibited acts listed
herein." Operation Rescue v. Women's Health Center,
Inc., 626 So. 2d 664, 679-680 (Fla. 1993).
The Florida Supreme Court upheld the constitutionality of the
trial court's amended injunction. 626 So. 2d 664. That court
recognized that the forum at issue, which consists of public
streets, sidewalks, and rights-of-way, is a traditional public
forum.
Id., at 671, citing
Frisby v.
Schultz,
487 U. S. 474,
480 (1988). It then determined that the restrictions are content
neutral, and it accordingly refused to apply the heightened
scrutiny dictated by
Perry Ed. Assn. v.
Perry Local
Educators' Assn., 460 U. S. 37, 45 (1983)
(To enforce a content-based exclusion the State must show that its
regulation is necessary to serve a compelling state interest and
that it is narrowly drawn to achieve that end). Instead, the court
analyzed the injunction to determine whether the restrictions are
"narrowly tailored to serve a significant government interest, and
leave open ample alternative channels of communication."
Ibid. It concluded that they were.
Shortly before the Florida Supreme Court's opinion was
announced, the United States Court of Appeals for the Eleventh
Circuit heard a separate challenge to the same injunction. The
Court of Appeals struck down the injunction, characterizing the
dispute as a clash "between an actual prohibition of speech and a
potential hinderance to the free exercise of abortion rights."
Cheffer v.
McGregor, 6 F.3d
705,
762
711 (1993). It stated that the asserted interests in public
safety and order were already protected by other applicable laws
and that these interests could be protected adequately without
infringing upon the First Amendment rights of others.
Ibid.
The Court of Appeals found the injunction to be content based and
neither necessary to serve a compelling state interest nor narrowly
drawn to achieve that end.
Ibid., citing
Carey v.
Brown, 447 U.
S. 455, 461-462 (1980). We granted certiorari, 510 U. S. 1084
(1994), to resolve the conflict between the Florida Supreme Court
and the Court of Appeals over the constitutionality of the state
court's injunction.
II
We begin by addressing petitioners' contention that the state
court's order, because it is an injunction that restricts only the
speech of antiabortion protesters, is necessarily content or
viewpoint based. Accordingly, they argue, we should examine the
entire injunction under the strictest standard of scrutiny. See
Perry Ed. Assn., supra, at 45. We disagree. To accept
petitioners' claim would be to classify virtually every injunction
as content or viewpoint based. An injunction, by its very nature,
applies only to a particular group (or individuals) and regulates
the activities, and perhaps the speech, of that group. It does so,
however, because of the group's past actions in the context of a
specific dispute between real parties. The parties seeking the
injunction assert a violation of their rights; the court hearing
the action is charged with fashioning a remedy for a specific
deprivation, not with the drafting of a statute addressed to the
general public.
The fact that the injunction in the present case did not
prohibit activities of those demonstrating in favor of abortion is
justly attributable to the lack of any similar demonstrations by
those in favor of abortion, and of any consequent request that
their demonstrations be regulated by injunction. There is no
suggestion in this record that Florida law
763
would not equally restrain similar conduct directed at a target
having nothing to do with abortion; none of the restrictions
imposed by the court were directed at the contents of petitioner's
message.
Our principal inquiry in determining content neutrality is
whether the government has adopted a regulation of speech "without
reference to the content of the regulated speech."
Ward v.
Rock Against Racism, 491 U. S. 781, 791 (1989)
(internal quotation marks omitted) (upholding noise regulations);
R. A. 17: v.
St. Paul, 505 U. S. 377, 386 (1992)
("The government may not regulate [speech] based on hostilityor
favoritism-towards the underlying message expressed"); see also
Arkansas Writers' Project, Inc. v.
Ragland, 481 U. S.
221, 230 (1987);
Regan v.
Time, Inc., 468 U. S. 641, 648649
(1984);
Metromedia, Inc. v.
San Diego, 453 U. S. 490, 514-515
(1981) (plurality opinion);
Carey v.
Brown, supra, at
466-468. We thus look to the government's purpose as the threshold
consideration. Here, the state court imposed restrictions on
petitioners incidental to their antiabortion message because they
repeatedly violated the court's original order. That petitioners
all share the same viewpoint regarding abortion does not in itself
demonstrate that some invidious content- or viewpoint-based purpose
motivated the issuance of the order. It suggests only that those in
the group
whose conduct violated the court's order happen to
share the same opinion regarding abortions being performed at the
clinic. In short, the fact that the injunction covered people with
a particular viewpoint does not itself render the injunction
content or viewpoint based. See
Boos v.
Barry,
485 U. S. 312
(1988).2 Accordingly, the injunction issued in
2We also decline to adopt the prior restraint analysis urged by
petitioners. Prior restraints do often take the form of
injunctions. See,
e. g.,
New York Times Co. v.
United States, 403 U. S. 713 (1971)
(refusing to enjoin publications of the "Pentagon Papers");
Vance v.
Universal Amusement Co., 445 U. S. 308 (1980)
(per curiam) (holding that Texas public nuisance statute
which authorized state judges, on the basis of a showing
764
this case does not demand the level of heightened scrutiny set
forth in
Perry Ed. Assn., 460 U. S., at 45. And we proceed
to discuss the standard which does govern.
III
If this were a content-neutral, generally applicable statute,
instead of an injunctive order, its constitutionality would be
assessed under the standard set forth in
Ward v.
Rock
Against Racism, supra, at 791, and similar cases. Given that
the forum around the clinic is a traditional public forum, see
Frisby v.
Schultz, 487 U. S., at 480, we would
determine whether the time, place, and manner regulations were
"narrowly tailored to serve a significant governmental interest."
Ward, supra, at 791. See also
Perry Ed. Assn., supra,
at 45.
There are obvious differences, however, between an injunction
and a generally applicable ordinance. Ordinances represent a
legislative choice regarding the promotion of particular societal
interests. Injunctions, by contrast, are remedies imposed for
violations (or threatened violations) of a legislative or judicial
decree. See
United States v.
W T. Grant Co., 345 U. S. 629, 632-633
(1953). Injunctions also carry greater risks of censorship and
discriminatory application than do general ordinances. "[T]here is
no more effective practical guaranty against arbitrary and
unreasonable government than to require that the principles of law
which officials would impose upon a minority must be imposed
generally."
Railway Express Agency, Inc. v.
New York,
336
that a theater had exhibited obscene films in the past, to
enjoin its future exhibition of films not yet found to be obscene
was unconstitutional as authorizing an invalid prior restraint).
Not all injunctions that may incidentally affect expression,
however, are "prior restraints" in the sense that that term was
used in
New York Times Co., supra, or
Vance, supra.
Here petitioners are not prevented from expressing their message in
any one of several different ways; they are simply prohibited from
expressing it within the 36-foot buffer zone. Moreover, the
injunction was issued not because of the content of petitioners'
expression, as was the case in
New York Times Co. and
Vance, but because of their prior unlawful conduct.
765
u. S. 106, 112-113 (1949). Injunctions, of course, have some
advantages over generally applicable statutes in that they can be
tailored by a trial judge to afford more precise relief than a
statute where a violation of the law has already occurred.
United States v.
Paradise, 480 U. S. 149 (1987).
We believe that these differences require a somewhat more
stringent application of general First Amendment principles in this
context.3 In past cases evaluating injunctions restricting speech,
see,
e. g., NAACP v.
Claiborne Hardware Co., 458 U. S. 886 (1982),
Milk Wagon Drivers v.
Meadowmoor Dairies, Inc.,
312 U. S. 287
(1941), we have relied upon such general principles while also
seeking to ensure that the injunction was no broader than necessary
to achieve its desired goals. See
Carroll v.
President
and Comm'rs of Princess Anne, 393 U. S. 175 (1968);
Claiborne Hardware, supra, at 912, n. 47. Our close
attention to the fit between the objectives of an injunction and
the restrictions it imposes on speech is consistent with the
general rule, quite apart from First Amendment considerations,
"that injunctive relief should be no more burdensome to the
defendant than necessary to provide complete relief to the
plaintiffs."
Califano v.
Yamasaki, 442 U. S. 682, 702
(1979). See also
Dayton Bd. of Ed. v.
Brinkman,
433 U. S. 406,
418-420 (1977). Accordingly, when evaluating a content-neutral
injunction, we think that our standard time, place, and manner
analysis is not sufficiently rigorous. We must ask instead whether
the challenged provisions of the injunction burden no more speech
than necessary to serve a significant government interest. See,
e. g., Claiborne Hardware, supra, at 916 (when sanctionable
"conduct occurs in the context of constitutionally protected
activity ... 'precision of regulation' is
3 Under general equity principles, an injunction issues only if
there is a showing that the defendant has violated, or imminently
will violate, some provision of statutory or common law, and that
there is a "cognizable danger of recurrent violation."
United
States v.
W T. Grant Co., 345 U. S. 629, 633
(1953).
766
demanded") (quoting NAACP v. Button,
371 U. S. 415, 438
(1963)); 458 u. S., at 916, n. 52 (citing Carroll, supra, and
Keyishian v. Board of Regents of Univ. of State of N. Y.,
385 U. S. 589, 604
(1967)); Carroll, supra, at 183-184.
Both JUSTICE STEVENS and JUSTICE SCALIA disagree with the
standard we announce, for policy reasons. See
post, at 778
(STEVENS, J.);
post, at 792-794 (SCALIA, J.). JUSTICE
STEVENS believes that "injunctive relief should be judged by a more
lenient standard than legislation," because injunctions are imposed
on individuals or groups who have engaged in illegal activity.
Post, at 778. JUSTICE SCALIA, by contrast, believes that
content-neutral injunctions are
"at least as deserving of
strict scrutiny as a statutory, contentbased restriction."
Post, at 792. JUSTICE SCALIA bases his belief on the danger
that injunctions, even though they might not "attack content
as
content," may be used to suppress particular ideas; that
individual judges should not be trusted to impose injunctions in
this context; and that an injunction is procedurally more difficult
to challenge than a statute.
Post, at 793-794. We believe
that consideration of
all of the differences and
similarities between statutes and injunctions supports, as a matter
of policy, the standard we apply here.
JUSTICE SCALIA further contends that precedent compels the
application of strict scrutiny in this case. Under that standard,
we ask whether a restriction is "'necessary to serve a compelling
state interest and [is] narrowly drawn to achieve that end.'''
Post, at 790 (quoting
Perry Ed. Assn., supra, at 45).
JUSTICE SCALIA fails to cite a single case, and we are aware of
none, in which we have applied this standard to a content-neutral
injunction. He cites a number of cases in which we have struck
down, with little or no elaboration, prior restraints on free
expression. See
post, at 798 (citing cases). As we have
explained, however, we do not believe that this injunction
constitutes a prior restraint, and we therefore believe that the
"heavy presumption" against its constitutionality does not obtain
here. See n. 2,
supra.
767
JUSTICE SCALIA also relies on
Claiborne Hardware and
Carroll for support of his contention that our precedent
requires the application of strict scrutiny in this context. In
Claiborne Hardware, we stated simply that "precision of
regulation" is demanded. 458 U. S., at 916 (internal quotation
marks omitted). JUSTICE SCALIA reads this case to require "surgical
precision" of regulation,
post, at 798, but that was not the
adjective chosen by the author of the Court's opinion, JUSTICE
STEVENS. We think a standard requiring that an injunction "burden
no more speech than necessary" exemplifies "precision of
regulation." 4
As for
Carroll, JUSTICE SCALIA believes that the
"standard" adopted in that case "is strict scrutiny," which "does
not remotely resemble the Court's new proposal."
Post, at
799. Comparison of the language used in
Carroll and the
wording of the standard we adopt, however, belies JUSTICE SCALIA'S
exaggerated contention.
Carroll, for example, requires that
an injunction be "couched in the narrowest terms that will
accomplish the pin-pointed objective" of the injunction. 393 U. S.,
at 183. We require that the injunction "burden no more speech than
necessary" to accomplish its objective. We fail to see a difference
between the two standards.
The Florida Supreme Court concluded that numerous significant
government interests are protected by the injunction. It noted that
the State has a strong interest in protecting a woman's freedom to
seek lawful medical or counseling services in connection with her
pregnancy. See
4 In stating that "precision of regulation" is required in
Claiborne Hardware, moreover, we cited both to
Carroll v.
President and Comm'rs of Princess Anne,
393 U. S. 175
(1968), a case involving an injunction, and to
Keyishian v.
Board of Regents of Univ. of State of N. Y.,
385 U. S. 589 (1967), a
case involving a state statute and regulations. If our precedent
demanded the different treatment of statutes and injunctions, as
JUSTICE SCALIA claims, it is difficult to explain our reliance on
Keyishian in
Claiborne.
768
Roe v.
Wade, 410 U. S. 113 (1973);
In re T. W, 551 So. 2d 1186, 1193 (Fla. 1989). The State
also has a strong interest in ensuring the public safety and order,
in promoting the free flow of traffic on public streets and
sidewalks, and in protecting the property rights of all its
citizens. 626 So. 2d, at 672. In addition, the court believed that
the State's strong interest in residential privacy, acknowledged in
Frisby v.
Schultz, 487 U. S. 474 (1988),
applied by analogy to medical privacy. 626 So. 2d, at 672. The
court observed that while targeted picketing of the home threatens
the psychological well-being of the "captive" resident, targeted
picketing of a hospital or clinic threatens not only the
psychological, but also the physical, well-being of the patient
held "captive" by medical circumstance.
Id., at 673. We
agree with the Supreme Court of Florida that the combination of
these governmental interests is quite sufficient to justify an
appropriately tailored injunction to protect them. We now examine
each contested provision of the injunction to see if it burdens
more speech than necessary to accomplish its goal. 5
A 1
We begin with the 36-foot buffer zone. The state court
prohibited petitioners from "congregating, picketing, patrolling,
demonstrating or entering" any portion of the public right-of-way
or private property within 36 feet of the property line of the
clinic as a way of ensuring access to the clinic. This speech-free
buffer zone requires that petitioners move
5 Petitioners do not challenge the first two provisions of the
state court's 1993 order. Brief for Petitioners 9. The provisions
composed what had been the state court's 1992 permanent injunction
and they chiefly addressed blocking, impeding, and inhibiting
access to the clinic and its parking lot. Nor do petitioners
challenge the restrictions in paragraphs 7, 8, and 9, which
prohibit them from harassing and physically abusing clinic doctors,
staff, and patients trying to gain access to the clinic or their
homes.
769
to the other side of Dixie Way and away from the driveway of the
clinic, where the state court found that they repeatedly had
interfered with the free access of patients and staff. App. to Pet.
for Cert. B-2, B-3. See
Cameron v.
Johnson, 390 U. S. 611 (1968)
(upholding statute that prohibited picketing that obstructed or
unreasonably interfered with ingress or egress to or from public
buildings, including courthouses, and with traffic on the adjacent
street sidewalks). The buffer zone also applies to private property
to the north and west of the clinic property. We examine each
portion of the buffer zone separately.
We have noted a distinction between the type of focused
picketing banned from the buffer zone and the type of generally
disseminated communication that cannot be completely banned in
public places, such as handbilling and solicitation. See
Frisby,
supra, at 486 ("The type of focused picketing prohibited by
[the state court injunction] is fundamentally different from more
generally directed means of communication that may not be
completely banned in [public places]"). Here the picketing is
directed primarily at patients and staff of the clinic.
The 36-foot buffer zone protecting the entrances to the clinic
and the parking lot is a means of protecting unfettered ingress to
and egress from the clinic, and ensuring that petitioners do not
block traffic on Dixie Way. The state court seems to have had few
other options to protect access given the narrow confines around
the clinic. As the Florida Supreme Court noted, Dixie Way is only
21 feet wide in the area of the clinic. App. 260, 305. The state
court was convinced that allowing petitioners to remain on the
clinic's sidewalk and driveway was not a viable option in view of
the failure of the first injunction to protect access. And allowing
the petitioners to stand in the middle of Dixie Way would obviously
block vehicular traffic.
The need for a complete buffer zone near the clinic entrances
and driveway may be debatable, but some deference
770
must be given to the state court's familiarity with the facts
and the background of the dispute between the parties even under
our heightened review.
Milk Wagon Drivers, 312 U. S., at
294. Moreover, one of petitioners' witnesses during the evidentiary
hearing before the state court conceded that the buffer zone was
narrow enough to place petitioners at a distance of no greater than
10 to 12 feet from cars approaching and leaving the clinic. App.
486. Protesters standing across the narrow street from the clinic
can still be seen and heard from the clinic parking lots.
Id., at 260,305. We also bear in mind the fact that the
state court originally issued a much narrower injunction, providing
no buffer zone, and that this order did not succeed in protecting
access to the clinic. The failure of the first order to accomplish
its purpose may be taken into consideration in evaluating the
constitutionality of the broader order.
National Soc. of
Professional Engineers v.
United States, 435 U. S. 679, 697-698
(1978). On balance, we hold that the 36-foot buffer zone around the
clinic entrances and driveway burdens no more speech than necessary
to accomplish the governmental interest at stake.
JUSTICE SCALIA'S dissent argues that a videotape made of
demonstrations at the clinic represents "what one must presume to
be the worst of the activity justifying the injunction."
Post, at 785-786. This seems to us a gratuitous assumption.
The videotape was indeed introduced by respondents, presumably
because they thought it supported their request for the second
injunction. But witnesses also testified as to relevant facts in a
3-day evidentiary hearing, and the state court was therefore not
limited to JUSTICE SCALIA'S rendition of what he saw on the
videotape to make its findings in support of the second injunction.
Indeed, petitioners themselves studiously refrained from
challenging the factual basis for the injunction both in the state
courts and here. Before the Florida Supreme Court, petitioners
stated that "the Amended Permanent Injunction contains fundamental
error on its face. The sole question presented
771
by this appeal is a question of law, and for purposes of this
appeal [petitioners] are assuming, arguendo, that a factual basis
exists to grant injunctive relief." Appellants' Motion in Response
to Appellees' Motion to Require Full Transcript and Record of
Proceedings in No. 93-00969 (Dist. Ct. App. Fla.), p. 2.
Petitioners argued against including the factual record as an
appendix in the Florida Supreme Court, and never certified a full
record. We must therefore judge this case on the assumption that
the evidence and testimony presented to the state court supported
its findings that the presence of protesters standing, marching,
and demonstrating near the clinic's entrance interfered with
ingress to and egress from the clinic despite the issuance of the
earlier injunction.
2
The inclusion of private property on the back and side of the
clinic in the 36-foot buffer zone raises different concerns. The
accepted purpose of the buffer zone is to protect access to the
clinic and to facilitate the orderly flow of traffic on Dixie Way.
Patients and staff wishing to reach the clinic do not have to cross
the private property abutting the clinic property on the north and
west, and nothing in the record indicates that petitioners'
activities on the private property have obstructed access to the
clinic. Nor was evidence presented that protestors located on the
private property blocked vehicular traffic on Dixie Way. Absent
evidence that petitioners standing on the private property have
obstructed access to the clinic, blocked vehicular traffic, or
otherwise unlawfully interfered with the clinic's operation, this
portion of the buffer zone fails to serve the significant
government interests relied on by the Florida Supreme Court. We
hold that on the record before us the 36-foot buffer zone as
applied to the private property to the north and west of the clinic
burdens more speech than necessary to protect access to the
clinic.
772
B
In response to high noise levels outside the clinic, the state
court restrained the petitioners from "singing, chanting,
whistling, shouting, yelling, use of bullhorns, auto horns, sound
amplification equipment or other sounds or images observable to or
within earshot of the patients inside the [c]linic" during the
hours of 7:30 a.m. through noon on Mondays through Saturdays. We
must, of course, take account of the place to which the regulations
apply in determining whether these restrictions burden more speech
than necessary. We have upheld similar noise restrictions in the
past, and as we noted in upholding a local noise ordinance around
public schools, "the nature of a place, 'the pattern of its normal
activities, dictate the kinds of regulations ... that are
reasonable.'"
Grayned v.
City of Rockford, 408 U. S. 104, 116
(1972). Noise control is particularly important around hospitals
and medical facilities during surgery and recovery periods, and in
evaluating another injunction involving a medical facility, we
stated:
"'Hospitals, after all, are not factories or mines or assembly
plants. They are hospitals, where human ailments are treated, where
patients and relatives alike often are under emotional strain and
worry, where pleasing and comforting patients are principal facets
of the day's activity, and where the patient and his family ...
need a restful, uncluttered, relaxing, and helpful atmosphere.'"
NLRB v. Baptist Hospital, Inc., 442 U. S. 773, 783-784,
n. 12 (1979), quoting Beth Israel Hospital v. NLRB,
437 U. S. 483,
509 (1978) (BLACKMUN, J., concurring in judgment).
We hold that the limited noise restrictions imposed by the state
court order burden no more speech than necessary to ensure the
health and well-being of the patients at the clinic. The First
Amendment does not demand that patients at a medical facility
undertake Herculean efforts to escape the
773
cacophony of political protests. "If overamplified loudspeakers
assault the citizenry, government may turn them down."
Grayned,
supra, at 116. That is what the state court did here, and we
hold that its action was proper.
C
The same, however, cannot be said for the "images observable"
provision of the state court's order. Clearly, threats to patients
or their families, however communicated, are proscribable under the
First Amendment. But rather than prohibiting the display of signs
that could be interpreted as threats or veiled threats, the state
court issued a blanket ban on all "images observable." This broad
prohibition on all "images observable" burdens more speech than
necessary to achieve the purpose of limiting threats to clinic
patients or their families. Similarly, if the blanket ban on
"images observable" was intended to reduce the level of anxiety and
hypertension suffered by the patients inside the clinic, it would
still fail. The only plausible reason a patient would be bothered
by "images observable" inside the clinic would be if the patient
found the expression contained in such images disagreeable. But it
is much easier for the clinic to pull its curtains than for a
patient to stop up her ears, and no more is required to avoid
seeing placards through the windows of the clinic. This provision
of the injunction violates the First Amendment.
D
The state court ordered that petitioners refrain from physically
approaching any person seeking services of the clinic "unless such
person indicates a desire to communicate" in an area within 300
feet of the clinic. The state court was attempting to prevent
clinic patients and staff from being "stalked" or "shadowed" by the
petitioners as they approached the clinic. See
International
Soc. for Krishna Consciousness, Inc. v.
Lee, 505 U. S. 672, 684 (1992)
("[F]aceto-face solicitation presents risks of duress that are an
appro-
774
priate target of regulation. The skillful, and unprincipled,
solicitor can target the most vulnerable, including those
accompanying children or those suffering physical impairment and
who cannot easily avoid the solicitation").
But it is difficult, indeed, to justify a prohibition on
all uninvited approaches of persons seeking the services of
the clinic, regardless of how peaceful the contact may be, without
burdening more speech than necessary to prevent intimidation and to
ensure access to the clinic. Absent evidence that the protesters'
speech is independently proscribable (i.
e., "fighting
words" or threats), or is so infused with violence as to be
indistinguishable from a threat of physical harm, see
Milk Wagon
Drivers, 312 U. S., at 292-293, this provision cannot stand.
"As a general matter, we have indicated that in public debate our
own citizens must tolerate insulting, and even outrageous, speech
in order to provide adequate breathing space to the freedoms
protected by the First Amendment."
Boos v.
Barry, 485
U. S., at 322 (internal quotation marks omitted). The "consent"
requirement alone invalidates this provision; it burdens more
speech than is necessary to prevent intimidation and to ensure
access to the clinic.6
E
The final substantive regulation challenged by petitioners
relates to a prohibition against picketing, demonstrating, or using
sound amplification equipment within 300 feet of the residences of
clinic staff. The prohibition also covers impeding access to
streets that provide the sole access to streets on which those
residences are located. The same analysis applies to the use of
sound amplification equipment here as that discussed above: the
government may simply demand that petitioners turn down the volume
if the protests overwhelm the neighborhood.
Grayned, 408 U.
S., at 116.
6We need not decide whether the "images observable" and
"noapproach" provisions are content based.
775
As for the picketing, our prior decision upholding a law banning
targeted residential picketing remarked on the unique nature of the
home, as "'the last citadel of the tired, the weary, and the
sick.'"
Frisby, 487 U. S., at 484. We stated that "'[t]he
State's interest in protecting the wellbeing, tranquility, and
privacy of the home is certainly of the highest order in a free and
civilized society.'"
Ibid.
But the 300-foot zone around the residences in this case is much
larger than the zone provided for in the ordinance which we
approved in
Frisby. The ordinance at issue there made it
"'unlawful for any person to engage in picketing before or about
the residence or dwelling of any individual.'"
Id., at 477.
The prohibition was limited to "focused picketing taking place
solely in front of a particular residence."
Id., at 483. By
contrast, the 300-foot zone would ban "[g]eneral marching through
residential neighborhoods, or even walking a route in front of an
entire block of houses."
Ibid. The record before us does not
contain sufficient justification for this broad a ban on picketing;
it appears that a limitation on the time, duration of picketing,
and number of pickets outside a smaller zone could have
accomplished the desired result.
IV
Petitioners also challenge the state court's order as being
vague and overbroad. They object to the portion of the injunction
making it applicable to those acting "in concert" with the named
parties. But petitioners themselves are named parties in the order,
and they therefore lack standing to challenge a portion of the
order applying to persons who are not parties. Nor is that phrase
subject, at the behest of petitioners, to a challenge for
"overbreadth"; the phrase itself does not prohibit any conduct, but
is simply directed at unnamed parties who might later be found to
be acting "in concert" with the named parties. As such, the case is
governed by our holding in
Regal Knitwear Co. v.
NLRB,
324 U. S. 9, 14 (1945). There a party subject to an
injunction
776
argued that the order was invalid because of a provision that it
applied to "successors and assigns" of the enjoined party. Noting
that the party pressing the claim was not a successor or assign, we
characterized the matter as "an abstract controversy over the use
of these words."
Id., at 15.
Petitioners also contend that the "in concert" provision of the
injunction impermissibly limits their freedom of association
guaranteed by the First Amendment. See,
e. g., Citizens Against
Rent Control/Coalition For Fair Housing v.
Berkeley,
454 U. S. 290
(1981). But petitioners are not enjoined from associating with
others or from joining with them to express a particular viewpoint.
The freedom of association protected by the First Amendment does
not extend to joining with others for the purpose of depriving
third parties of their lawful rights.
v
In sum, we uphold the noise restrictions and the 36-foot buffer
zone around the clinic entrances and driveway because they burden
no more speech than necessary to eliminate the unlawful conduct
targeted by the state court's injunction. We strike down as
unconstitutional the 36-foot buffer zone as applied to the private
property to the north and west of the clinic, the "images
observable" provision, the 300-foot no-approach zone around the
clinic, and the 300-foot buffer zone around the residences, because
these provisions sweep more broadly than necessary to accomplish
the permissible goals of the injunction. Accordingly, the judgment
of the Florida Supreme Court is
Affirmed in part and reversed in part.
JUSTICE SOUTER, concurring.
I join the Court's opinion and write separately only to clarify
two matters in the record. First, the trial judge made reasonably
clear that the issue of who was acting "in concert" with the named
defendants was a matter to be taken up in
777
individual cases, and not to be decided on the basis of
protesters' viewpoints. See Tr. 40, 43, 93, 115, 119-120 (Apr. 12,
1993, Hearing). Second, petitioners themselves acknowledge that the
governmental interests in protection of public safety and order, of
the free flow of traffic, and of property rights are reflected in
Florida law. See Brief for Petitioners 17, and n. 7 (citing,
e. g., Fla. Stat. §§870.041-870.047 (1991) (public peace); §
316.2045 (obstruction of public streets, highways, and roads)).
JUSTICE STEVENS, concurring in part and dissenting in part.
The certiorari petition presented three questions, corresponding
to petitioners' three major challenges to the trial court's
injunction.1 The Court correctly and unequivocally rejects
petitioners' argument that the injunction is a "content-based
restriction on free speech,"
ante, at 762-764, as well as
their challenge to the injunction on the basis that it applies to
persons acting "in concert" with them,
ante, at 775-776. I
therefore join Parts II and IV of the Court's opinion, which
properly dispose of the first and third questions presented. I part
company with the Court, however, on its treatment of the second
question presented, including its enunciation of the applicable
standard of review.
1 "QUESTIONS PRESENTED FOR REVIEW
"1. Whether a state court injunction placing a thirty-six-foot
buffer zone around an abortion clinic which prohibits peaceful
pro-life speech in a traditional public forum is an
unconstitutional content-based restriction on free speech and
association.
"2. Whether a state court injunction creating a consent
requirement before speech is permitted within a three-hundred-foot
buffer zone around an abortion clinic and residential areas is a
reasonable time, place, and manner restriction or an
unconstitutional prior restraint on free speech.
"3. Whether a state court injunction prohibiting named
demonstrators and those acting 'in concert' from expressing
peaceful speech within several designated buffer zones violates the
First Amendment's protection of freedom of speech and association."
Pet. for Cert. i.
778
I
I agree with the Court that a different standard governs First
Amendment challenges to generally applicable legislation than the
standard that measures such challenges to judicial remedies for
proven wrongdoing. See
ante, at 764-765. Unlike the Court,
however, I believe that injunctive relief should be judged by a
more lenient standard than legislation. As the Court notes,
legislation is imposed on an entire community, ibid., regardless of
individual culpability. By contrast, injunctions apply solely to an
individual or a limited group of individuals who, by engaging in
illegal conduct, have been judicially deprived of some liberty-the
normal consequence of illegal activity.2 Given this distinction, a
statute prohibiting demonstrations within 36 feet of an abortion
clinic would probably violate the First Amendment, but an
injunction directed at a limited group of persons who have engaged
in unlawful conduct in a similar zone might well be
constitutional.
The standard governing injunctions has two obvious dimensions.
On the one hand, the injunction should be no more burdensome than
necessary to provide complete relief,
Califano v.
Yamasaki, 442
U. S. 682, 702 (1979). In a First Amendment context, as in any
other, the propriety of the remedy depends almost entirely on the
character of the violation and the likelihood of its recurrence.
For this reason, standards fashioned to determine the
constitutionality of statutes should not be used to evaluate
injunctions.
On the other hand, even when an injunction impinges on
constitutional rights, more than "a simple proscription
2 Contrary to JUSTICE SCALIA'S assumption, see
post, at
794, n. 1, the deprivation of liberty caused by an injunction is
not a form of punishment. Moreover, there is nothing unusual about
injunctive relief that includes some restriction on speech as a
remedy for prior misconduct.
National Soc. of Professional
Engineers v.
United States, 435 U. S. 679, 697-698
(1978).
779
against the precise conduct previously pursued" may be required;
the remedy must include appropriate restraints on "future
activities both to avoid a recurrence of the violation and to
eliminate its consequences."
National Soc. of Professional
Engineers v.
United States, 435 U. S. 679, 697-698
(1978). Moreover, "[t]he judicial remedy for a proven violation of
law will often include commands that the law does not impose on the
community at large."
Teachers v.
Hudson, 475 U. S. 292, 309-310,
n. 22 (1986). As such, repeated violations may justify sanctions
that might be invalid if applied to a first offender or if enacted
by the legislature. See
United States v.
Paradise,
480 U. S. 149
(1987).
In this case, the trial judge heard three days of testimony and
found that petitioners not only had engaged in tortious conduct,
but also had repeatedly violated an earlier injunction. The
injunction is thus twice removed from a legislative proscription
applicable to the general public and should be judged by a standard
that gives appropriate deference to the judge's unique familiarity
with the facts.
II
The second question presented by the certiorari petition asks
whether the "consent requirement before speech is permitted" within
a 300-foot buffer zone around the clinic unconstitutionally
infringes on free speech.3 Petitioners contend that these
restrictions create a "no speech" zone in which they cannot speak
unless the listener indicates a positive
3 See n. 1, supra. This question also encompasses the separate
but related question whether the 300-foot buffer zone in
residential areas is a reasonable time, place, and manner
restriction, but incorrectly refers to that zone as containing a
consent requirement. For the reasons stated in Part III-E of the
Court's opinion, which I join, I agree that the findings do not
justify such a broad ban on picketing. I also agree with the
Court's rejection of petitioners' prior restraint challenge to the
300-foot zones. See
ante, at 763, n. 2.
780
interest in their speech. And, in Part III-D of its opinion, the
Court seems to suggest that, even in a more narrowly defined zone,
such a consent requirement is constitutionally impermissible.
Ante, at 773-774. Petitioners' argument and the Court's
conclusion, however, are based on a misreading of , (5) of the
injunction.4
That paragraph does not purport to prohibit speech; it prohibits
a species of conduct. Specifically, it prohibits petitioners "from
physically approaching any person seeking the services of the
Clinic unless such person indicates a desire to communicate by
approaching or by inquiring" of petitioners. App. 59. The meaning
of the term "physically approaching" is explained by the detailed
prohibition that applies when the patient refuses to converse with,
or accept delivery of literature from, petitioners. Absent such
consent, the petitioners "shall not accompany such person,
encircle, surround, harass, threaten or physically or verbally
abuse those individuals who choose not to communicate with them."
Ibid. As long as petitioners do not physically approach
patients in this manner, they remain free not only to communicate
with the public but also to offer verbal or written advice on an
individual basis to the clinic's patients through their "sidewalk
counseling."
4 The full text of , (5) reads as follows:
"At all times on all days, in an area within three-hundred (300)
feet of the Clinic, from physically approaching any person seeking
the services of the Clinic unless such person indicates a desire to
communicate by approaching or by inquiring of the [petitioners]. In
the event of such invitation, the [petitioners] may engage in
communications consisting of conversation of a non-threatening
nature and by the delivery of literature within the three-hundred
(300) foot area but in no event within the 36 foot buffer zone.
Should any individual decline such communication, otherwise known
as 'sidewalk counseling', that person shall have the absolute right
to leave or walk away and the [petitioners] shall not accompany
such person, encircle, surround, harass, threaten or physically or
verbally abuse those individuals who choose not to communicate with
them." App. 59.
781
Petitioners' "counseling" of the clinic's patients is a form of
expression analogous to labor picketing. It is a mixture of conduct
and communication. "In the labor context, it is the conduct element
rather than the particular idea being expressed that often provides
the most persuasive deterrent to third persons about to enter a
business establishment."
NLRB v.
Retail Store
Employees, 447 U.
S. 607, 619 (1980) (STEVENS, J., concurring in part and
concurring in result). As with picketing, the principal reason why
handbills containing the same message are so much less effective
than "counseling" is that "the former depend entirely on the
persuasive force of the idea."
Ibid. Just as it protects
picketing, the First Amendment protects the speaker's right to
offer "sidewalk counseling" to all passers-by. That protection,
however, does not encompass attempts to abuse an unreceptive or
captive audience, at least under the circumstances of this case.
One may register a public protest by placing a vulgar message on
his jacket and, in so doing, expose unwilling viewers,
Cohen
v.
California, 403 U. S. 15, 21-22
(1971). Nevertheless, that does not mean that he has an unqualified
constitutional right to follow and harass an unwilling listener,
especially one on her way to receive medical services. Cf.
Grayned v.
City of Rockford, 408 U. S. 104, 116
(1972).
The "physically approaching" prohibition entered by the trial
court is no broader than the protection necessary to provide relief
for the violations it found. The trial judge entered this portion
of the injunction only after concluding that the injunction was
necessary to protect the clinic's patients and staff from
"uninvited contacts, shadowing and stalking" by petitioners. App.
56. The protection is especially appropriate for the clinic
patients given that the trial judge found that petitioners' prior
conduct caused higher levels of "anxiety and hypertension" in the
patients, increasing the risks associated with the procedures that
the patients
782
seek.5 Whatever the proper limits on a court's power to restrict
a speaker's ability to physically approach or follow an unwilling
listener, surely the First Amendment does not prevent a trial court
from imposing such a restriction given the unchallenged findings in
this case.
The Florida Supreme Court correctly concluded:
"While the First Amendment confers on each citizen a powerful
right to express oneself, it gives the picketer no boon to
jeopardize the health, safety, and rights of others. No citizen has
a right to insert a foot in the hospital or clinic door and insist
on being heard-while purposefully blocking the door to those in
genuine need of medical services. No picketer can force speech into
the captive ear of the unwilling and disabled." Operation
Rescue v. Women's Health Center, Inc., 626 So. 2d 664,
675 (1993).
I thus conclude that, under the circumstances of this case, the
prohibition against "physically approaching" in the 300foot zone
around the clinic withstands petitioners' First Amendment
challenge. I therefore dissent from Part III-D.
III
Because I have joined Parts I, II, III-E, and IV of the Court's
opinion and have dissented as to Part III-D after concluding that
the 300-foot zone around the clinic is a reasonable time, place,
and manner restriction, no further discussion is necessary. See n.
1,
supra. The Court, however, proceeds to address challenges
to the injunction that, al-
5 Specifically, in its findings of fact, the trial court noted
that:
"This physician also testified that he witnessed the
demonstrators running along side of and in front of patients'
vehicles, pushing pamphlets in car windows to persons who had not
indicated any interest in such literature. As a result of patients
having to run such a gauntlet, the patients manifested a higher
level of anxiety and hypertension causing those patients to need a
higher level of sedation to undergo the surgical procedures,
thereby increasing the risk associated with such procedures."
Id., at 54.
783
though arguably raised by petitioners' briefs, are not properly
before the Court.
After correctly rejecting the content-based challenge to the
36-foot buffer zone raised by the first question in the certiorari
petition, the Court nevertheless decides to modify the portion of
that zone that it believes does not protect ingress to the clinic.
Petitioners, however, presented only a content-based challenge to
the 36-foot zone; they did not present a time, place, and manner
challenge. See n. 1,
supra. They challenged only the
300-foot zones on this ground.
Ibid. The scope of the
36-foot zone is thus not properly before us.6
Izumi Seimitsu
Kogyo Kabushiki Kaisha v.
U. S.
Phillips Corp.,
510 U. S. 27
(1993)
(per curiamj,7
6 Indeed, it is unclear whether these challenges were presented
to the Florida Supreme Court. In their appeal to that court,
petitioners did not even file the transcript of the evidentiary
hearings, contending that the "sole question presented by this
appeal is a question of law." See Appellants' Motion in Response to
Appellees' Motion to Require Full Transcript and Record of
Proceedings in No. 93-00969 (Dist. Ct. App. Fla.), p. 2. Because
petitioners argued that the entire decree was invalid as a matter
of law, without making any contention that particular provisions
should be modified, it appears there was no argument in that court
about the size or the shape of the buffer zones.
Even if the question were properly presented here, I fully agree
with the Florida Supreme Court's refusal to quibble over a few feet
one way or the other when the parties have not directed their
arguments at a narrow factual issue of this kind.
Operation
Rescue v.
Women's Health Center, Inc., 626 So. 2d 664,
673 (1993). Moreover, respect for the highest court of the State
strongly counsels against this sort of error correction in this
Court.
7Even assuming that a time, place, and manner challenge to the
36-foot zone is fairly included within the first question
presented, petitioners' brief challenges the
entire 36-foot
zone as overbroad and seeks to have it invalidated in its entirety.
Nowhere in their briefs do they argue that the portion of the zone
on the north and west sides of the clinic should be struck down in
the event the Court upholds the restrictions on the front and east.
As such, we do not have the benefit of respondents' arguments why
those portions, if considered severally from the other portions of
the zone, should be upheld. Moreover, the existence in the record
of facts found by the
784
The same is true of the noise restrictions and the "images
observable" provision of , (4).8 That paragraph does not refer to
the 36-foot or the 300-foot buffer zones, nor does it relate to the
constitutionality of the "in concert" provision. As such, although
I am inclined to agree with the Court's resolution respecting the
noise and images restrictions, I believe the Court should refrain
from deciding their constitutionality because they are not
challenged by the questions on which certiorari was granted.
IV
For the reasons stated, I concur in Parts I, II, III-E, and IV
of the Court's opinion, and respectfully dissent from the remaining
portions.
JUSTICE SCALIA, with whom JUSTICE KENNEDY and JUSTICE THOMAS
join, concurring in the judgment in part and dissenting in
part.
The judgment in today's case has an appearance of moderation and
Solomonic wisdom, upholding as it does some
trial court respecting petitioners' conduct-independent of
petitioners' obstruction of ingress and egress-that support the
entire 36-foot zone makes the Court's micromanagement of the
injunction particularly inappropriate. See,
e. g., App. 53
("The clinic has fences on its west and north side, and persons
would occasionally place a ladder on the outside of the fence and
position themselves at an elevation above the fence and attempt to
communicate by shouting at persons (staff and patients) entering
the clinic"); id., at 54 ("[T]he doctor was followed as he left the
clinic by a person associated with the [petitioners] who
communicated his anger to the doctor by pretending to shoot him
from the adjoining vehicle"); id., at 54-55 (noting that "a
physician similarly employed was killed by an antiabortionist at a
clinic in North Florida").
8Paragraph (4) provides in full:
"During the hours of 7:30 a.m. through noon, on Mondays through
Saturdays, during surgical procedures and recovery periods, from
singing, chanting, whistling, shouting, yelling, use of bullhorns,
auto horns, sound amplification equipment or other sounds or images
observable to or within earshot of the patients inside the Clinic."
Id., at 59.
785
portions of the injunction while disallowing others. That
appearance is deceptive. The entire injunction in this case departs
so far from the established course of our jurisprudence that in any
other context it would have been regarded as a candidate for
summary reversal.
But the context here is abortion. A long time ago, in dissent
from another abortion-related case, JUSTICE O'CONNOR, joined by
then-JusTIcE REHNQUIST, wrote:
"This Court's abortion decisions have already worked a major
distortion in the Court's constitutional jurisprudence. Today's
decision goes further, and makes it painfully clear that no legal
rule or doctrine is safe from ad hoc nullification by this Court
when an occasion for its application arises in a case involving
state regulation of abortion. The permissible scope of abortion
regulation is not the only constitutional issue on which this Court
is divided, but-except when it comes to abortion-the Court has
generally refused to let such disagreements, however longstanding
or deeply felt, prevent it from evenhandedly applying
uncontroversial legal doctrines to cases that come before it."
Thornburgh v. American College of Obstetricians and
Gynecologists, 476 U. S. 747, 814 (1986)
(citations omitted).
Today the ad hoc nullification machine claims its latest,
greatest, and most surprising victim: the First Amendment.
Because I believe that the judicial creation of a 36-foot zone
in which only a particular group, which had broken no law, cannot
exercise its rights of speech, assembly, and association, and the
judicial enactment of a noise prohibition, applicable to that group
and that group alone, are profoundly at odds with our First
Amendment precedents and traditions, I dissent.
I
The record of this case contains a videotape, with running
caption of time and date, displaying what one must presume
786
to be the worst of the activity justifying the injunction issued
by Judge McGregor and partially approved today by this Court. The
tape was shot by employees of, or volunteers at, the Aware Woman
Clinic on three Saturdays in February and March 1993; the camera
location, for the first and third segments, appears to have been an
upper floor of the clinic. The tape was edited down (from
approximately 6 to 8 hours of footage to lh hour) by Ruth Arick, a
management consultant employed by the clinic and by the Feminist
Majority Foundation. App. 527, 529, 533.
Anyone seriously interested in what this case was about must
view that tape. And anyone doing so who is familiar with
run-of-the-mine labor picketing, not to mention some other social
protests, will be aghast at what it shows we have today permitted
an individual judge to do. I will do my best to describe it.
On Saturday, March 6, 1993, a group of antiabortion protesters
is gathered in front of the clinic, arrayed from east (camera-left)
to west (camera-right) on the clinic side of Dixie Way, a small,
nonartery street. Men, women, and children are also visible across
the street, on the south side of Dixie Way; some hold signs and
appear to be protesters, others may be just interested
onlookers.
On the clinic side of the street, two groups confront each other
across the line marking the south border of the clinic
property-although they are so close together it is often impossible
to tell them apart. On the clinic property (and with their backs to
the camera) are a line of clinic and abortionrights supporters,
stretching the length of the property. Opposite them, and on the
public right-of-way between the clinic property and Dixie Way
itself, is a group of abortion opponents, some standing in place,
others walking a picket line in an elongated oval pattern running
the length of the property's south border. Melbourne police
officers are visible at various times walking about in front of
the
787
clinic, and individuals can be seen crossing Dixie Way at
various times.
Clinic supporters are more or less steadily chanting the
following slogans: "Our right, our right, our right, to decide";
"Right to life is a lie, you don't care if women die." Then
abortion opponents can be heard to sing: "Jesus loves the little
children, all the children of the world, red and yellow, black and
white, they are precious in His sight, Jesus loves the little
children of the world." Clinic supporters respond with: Q: "What do
we want?" A: "Choice." Q: "When do we want it?" A: "Now."
("Louder!") And that call and response is repeated. Later in the
tape, clinic supporters chant "1-2-3-4, we won't take it anymore;
5-6-7-8, Separate the Church and State." On placards held by
picketers and by stationary protesters on both sides of the line,
the following slogans are visible: "Abortionists lie to women."
"Choose Life: Abortion Kills." "N.O.W. Violence." "The God of
Israel is Pro-life." "RU 486 Now." "She Is a Child, Not a Choice."
"Abortion Kills Children." "Keep Abortion Legal." "Abortion: God
Calls It Murder." Some abortion opponents wear T-shirts bearing the
phrase "Choose Life."
As the abortion opponents walk the picket line, they traverse
portions of the public right-of-way that are crossed by paved
driveways, on each side of the clinic, connecting the clinic's
parking lot to the street. At one point an automobile moves west on
Dixie Way and slows to turn into the westernmost driveway. There is
a 3-to-4-second delay as the picketers, and then the clinic
supporters, part to allow the car to enter. The camera cuts to a
shot of another, parked car with a potato jammed onto the tailpipe.
There is no footage of any person putting the potato on to the
tailpipe.
Later, at a point when the crowd appears to be larger and the
picketers more numerous, a red car is delayed approximately 10
seconds as the picketers (and clinic supporters) move out of the
driveway. Police are visible helping to clear
788
a path for the vehicle to enter. As the car waits, two persons
appearing to bear leaflets approach, respectively, the driver and
front passenger doors. They appear to elicit no response from the
car's occupants and the car passes safely onto clinic property.
Later, a blue minivan enters the driveway and is also subject to
the same delay. Still later a jeeptype vehicle leaves the clinic
property and slows down slightly where the driveway crosses the
public right-of-way. At no time is there any apparent effort to
prevent entry or exit, or even to delay it, except for the time
needed for the picketers to get out of the way. There is no sitting
down, packing en masse, linking of hands, or any other effort to
blockade the clinic property.
The persons standing but not walking the picket line include a
woman with a child in a stroller and a man shouting the Book of
Daniel's account of Meshach, Shadrach, and Abednego. A woman on a
stepladder holds up a sign in the direction of the clinic; a clinic
supporter counters with a larger sign held up between the other and
the clinic. A brief shot reveals an older man in a baseball
cap-head, shoulders, and chest visible above the clinic fence-who
appears to be reading silently from a small book. A man on clinic
property holds a boom box out in the direction of the abortion
opponents. As the crowd grows it appears at various points to have
spilled over into the north-side, westbound lane of Dixie Way.
At one point, Randall Terry arrives and the press converge upon
him, apparently in Dixie Way itself. A sign is held near his head
reading "Randall Terry Sucks." Terry appears to be speaking to the
press and at one point tears pages from a notebook of some kind.
Through all of this, abortion opponents and abortion-rights
supporters appear to be inches from one another on each side of the
south border of the property. They exchange words, but at no time
is there any violence or even any discernible jostling or physical
contact between these political opponents.
789
The scene shifts to early afternoon of the same day. Most of the
press and most of the abortion opponents appear to have departed.
The camera focuses on a woman who faces the clinic and, hands
cupped over her mouth, shouts the following: "Be not deceived; God
is not mocked .... Ed Windle, God's judgment is on you, and if you
don't repent, He will strike you dead. The baby's blood flowed over
your hands, Ed Windle .... You will burn in hell, Ed Windle, if you
don't repent. There were arms and legs pulled off today .... An
innocent little child, a little boy, a little girl, is being
destroyed right now." Cheering is audible from the clinic grounds.
A second person shouts "You are responsible for the deaths of
children .... You are a murderer. Shame on you." From the clinic
grounds someone shouts "Why don't you go join the wacko in Waco?"
The first woman says "You are applauding the death of your
children. We will be everywhere .... There will be no peace and no
rest for the wicked .... I pray that you will give them dreams and
nightmares, God."
The second segment of the videotape displays a group of
approximately 40 to 50 persons walking along the side of a major
highway. It is Saturday, March 13, 1993, at 9:56 a.m. The
demonstrators walk in an oval pattern, carrying no signs or other
visible indicators of their purpose. According to Ruth Arick, this
second portion was filmed in front of the condominium where clinic
owner Ed Windle lived.
A third segment begins. The date-time register indicates that it
is the morning of Saturday, February 20, 1993. A teenage girl faces
the clinic and exclaims: "Please don't let them kill me, Mommy.
Help me, Daddy, please." Clinic supporters chant, "We won't go
back." A second woman, the one who spoke at greatest length in the
first segment, calls, "If you [inaudible], help her through it."
Off camera, a group sings "Roe, Roe, Roe v. Wade, we will never
quit, Freedom of choice is the law of the land, better get used to
it." The woman from the first segment appears to address
790
specific persons on clinic property: "Do you ever wonder what
your baby would have looked like? Do you wonder how old it would
have been? Because I did the same thing .... " Then a police
officer is visible writing someone a citation. The videotape ends
with a shot of an automobile moving eastbound on Dixie Way. As it
slows to a stop at the intersection of U. S. 1, two leafietters
approach the car and then pull back as it passes on.
The videotape and the rest of the record, including the trial
court's findings, show that a great many forms of expression and
conduct occurred in the vicinity of the clinic. These include
singing, chanting, praying, shouting, the playing of music both
from the clinic and from handheld boom boxes, speeches, peaceful
picketing, communication of familiar political messages,
handbilling, persuasive speech directed at opposing groups on the
issue of abortion, efforts to persuade individuals not to have
abortions, personal testimony, interviews with the press, and media
efforts to report on the protest. What the videotape, the rest of
the record, and the trial court's findings do not contain is any
suggestion of violence near the clinic, nor do they establish any
attempt to prevent entry or exit.
II A
Under this Court's jurisprudence, there is no question that this
public sidewalk area is a "public forum," where citizens generally
have a First Amendment right to speak.
United States v.
Grace, 461 U.
S. 171, 177 (1983). The parties to this case invited the Court
to employ one or the other of the two well-established standards
applied to restrictions upon this First Amendment right.
Petitioners claimed the benefit of so-called "strict scrutiny," the
standard applied to contentbased restrictions: The restriction must
be "necessary to serve a compelling state interest and ... narrowly
drawn to achieve that end."
Perry Ed. Assn. v.
Perry
Local Educa-
791
tors' Assn., 460 U. S. 37, 45 (1983).
Respondents, on the other hand, contended for what has come to be
known as "intermediate scrutiny" (midway between the "strict
scrutiny" demanded for content-based regulation of speech and the
"rational basis" standard that is applied-under the Equal
Protection Clause-to government regulation of nonspeech
activities). See,
e. g., Turner Broadcasting System, Inc. v.
FCC, ante, at 642. That standard, applicable to socalled
"time, place, and manner regulations" of speech, provides that the
regulations are permissible so long as they "are content-neutral,
are narrowly tailored to serve a significant government interest,
and leave open ample alternative channels of communication."
Perry, supra, at 45. The Court adopts neither of these, but
creates, brand new for this abortion-related case, an additional
standard that is (supposedly) "somewhat more stringent,"
ante, at 765, than intermediate scrutiny, yet not as
"rigorous,"
ibid., as strict scrutiny. The Court does not
give this new standard a name, but perhaps we could call it
intermediate-intermediate scrutiny. The difference between it and
intermediate scrutiny (which the Court acknowledges is
inappropriate for injunctive restrictions on speech) is frankly too
subtle for me to describe, so I must simply recite it: Whereas
intermediate scrutiny requires that the restriction be "narrowly
tailored to serve a significant government interest," the new
standard requires that the restriction "burden no more speech than
necessary to serve a significant government interest."
Ibid.
I shall discuss the Court's mode of applying this supposedly new
standard presently, but first I must remark upon the peculiar
manner in which the standard was devised. The Court begins, in Part
II of the opinion, by considering petitioners' contention that,
since the restriction is content based, strict scrutiny should
govern. It rejects the premise, and hence rejects the conclusion.
It then proceeds, in Part III, to examination of respondents'
contention that plain old
792
intermediate scrutiny should apply. It says no to that, too,
because of the distinctive characteristics of injunctions that it
discusses,
ante, at 764-765, and hence decides to supplement
intermediate scrutiny with intermediate-intermediate scrutiny. But
this neatly staged progression overlooks an obvious option. The
real question in this case is not whether intermediate scrutiny,
which the Court assumes to be some kind of default standard, should
be supplemented because of the distinctive characteristics of
injunctions; but rather whether those distinctive characteristics
are not, for reasons of both policy and precedent, fully as good a
reason as "content basis" for demanding strict scrutiny. That
possibility is simply not considered. Instead, the Court begins
Part III with the following optical illusion: "If this were a
content-neutral, generally applicable statute, instead of an
injunctive order, its constitutionality would be assessed under the
[intermediate scrutiny] standard,"
ante, at 764and then
proceeds to discuss whether petitioners can sustain the burden of
departing from that presumed disposition.
But this is
not a statute, and it
is an injunctive
order. The Court might just as logically (or illogically) have
begun Part III: "If this were a content-based injunction, rather
than a non-content-based injunction, its constitutionality would be
assessed under the strict scrutiny standard" -and have then
proceeded to discuss whether
respondents can sustain the
burden of departing from
that presumed disposition. The
question should be approached, it seems to me, without any such
artificial loading of the dice. And the central element of the
answer is that a restriction upon speech imposed by injunction
(whether nominally content based or nominally content neutral) is
at least as deserving of strict scrutiny as a statutory,
content-based restriction.
That is so for several reasons: The danger of content-based
statutory restrictions upon speech is that they may be designed and
used precisely to suppress the ideas in question rather than to
achieve any other proper governmental aim.
793
But that same danger exists with injunctions. Although a
speech-restricting injunction may not attack content
as
content (in the present case, as I shall discuss, even that is
not true), it lends itself just as readily to the targeted
suppression of particular ideas. When a judge, on the motion of an
employer, enjoins picketing at the site of a labor dispute, he
enjoins (and he
knows he is enjoining) the expression of
pro-union views. Such targeting of one or the other side of an
ideological dispute cannot readily be achieved in speechrestricting
general legislation except by making content the basis of the
restriction; it is achieved in speech-restricting injunctions
almost invariably. The proceedings before us here illustrate well
enough what I mean. The injunction was sought against a
single-issue advocacy group by persons and organizations with a
business or social interest in suppressing that group's point of
view.
The second reason speech-restricting injunctions are at least as
deserving of strict scrutiny is obvious enough: They are the
product of individual judges rather than of legislatures-and often
of judges who have been chagrined by prior disobedience of their
orders. The right to free speech should not lightly be placed
within the control of a single man or woman. And the third reason
is that the injunction is a much more powerful weapon than a
statute, and so should be subjected to greater safeguards.
Normally, when injunctions are enforced through contempt
proceedings, only the defense of factual innocence is available.
The collateral bar rule of
Walker v.
Birmingham,
388 U. S. 307
(1967), eliminates the defense that the injunction itself was
unconstitutional. Accord,
Dade County Classroom Teachers'
Assn. v.
Rubin, 238 So. 2d 284, 288 (Fla. 1970). Thus,
persons subject to a speech-restricting injunction who have not the
money or not the time to lodge an immediate appeal face a Hobson's
choice: They must remain silent, since if they speak their First
Amendment rights are no defense in subsequent
794
contempt proceedings. This is good reason to require the
strictest standard for issuance of such orders.1
The Court seeks to minimize the similarity between
speech-restricting injunctions and content-based statutory
proscriptions by observing that the fact that "petitioners all
share the same viewpoint regarding abortion does not in itself
demonstrate that some invidious content- or viewpointbased purpose
motivated the issuance of the order," but rather "suggests only
that those in the group
whose conduct violated the court's
order happen to share the same opinion regarding abortions,"
ante, at 763. But the Court errs in thinking that the vice
of content-based statutes is that they necessarily have the
invidious purpose of suppressing particular ideas. "[O]ur cases
have consistently held that '[i]llicit legislative intent is not
the
sine qua non of a violation of the First Amendment.'"
Simon &
Schuster, Inc. v.
Members of N.
Y. State Crime Victims Bd., 502 U. S. 105, 117 (1991)
(quoting
Minneapolis Star &
Tribune Co. v.
Minnesota Comm'r of Revenue, 460 U. S. 575, 592
(1983)). The vice of content-based legislation-what renders it
deserving of the high standard of strict scrutiny-is not
that it is
always used for invidious, thought-control
purposes, but that it
lends itself to use for those
purposes. And, because of the unavoid-
IJUSTICE STEVENS believes that speech-restricting injunctions
"should be judged by a more lenient standard than legislation"
because "injunctions apply solely to [those] who, by engaging in
illegal conduct, have been judicially deprived of some liberty."
Ante, at 778. Punishing unlawful action by judicial
abridgment of First Amendment rights is an interesting concept;
perhaps Eighth Amendment rights could be next. I know of no
authority for the proposition that restriction of speech, rather
than fines or imprisonment, should be the sanction for misconduct.
The supposed prior violation of a judicial order was the only thing
that rendered petitioners
subject to a personally tailored
restriction on speech in the first place-not in order to punish
them, but to protect the public order. To say that their prior
violation not only subjects them to being singled out in this
fashion, but also loosens the standards for protecting the public
order through speech restrictions, is double counting.
795
able "targeting" discussed above, precisely the same is true of
the speech-restricting injunction.
Finally, though I believe speech-restricting injunctions are
dangerous enough to warrant strict scrutiny even when they are not
technically content based, I think the injunction in the present
case was content based (indeed, viewpoint based) to boot. The Court
claims that it was directed, not at those who
spoke certain
things (antiabortion sentiments), but at those who did certain
things (violated the earlier injunction). If that were true, then
the injunction's residual coverage of "all persons acting in
concert or participation with [the named individuals and
organizations], or on their behalf," would not include those who
merely entertained the same beliefs and wished to express the same
views as the named defendants. But the construction given to the
injunction by the issuing judge, which is entitled to great weight,
cf.
Forsyth County v.
Nationalist Movement, 505 U. S. 123, 132-133
(1992); NLRB v.
Donnelly Garment Co., 330 U. S. 219, 227
(1947), is to the contrary: All those who wish to express the same
views as the named defendants are deemed to be "acting in concert
or participation." Following issuance of the amended injunction, a
number of persons were arrested for walking within the 36-foot
speech-free zone. At an April 12, 1993, hearing before the trial
judge who issued the injunction, the following exchanges
occurred:
Mr. Lacy: "I was wondering how we can-why we were arrested and
confined as being in concert with these people that we don't know,
when other people weren't, that were in that same buffer zone, and
it was kind of selective as to who was picked and who was arrested
and who was obtained for the same buffer zone in the same public
injunction."
The Court: "Mr. Lacy, I understand that those on the other side
of the issue [abortion-rights supporters] were also in the area. If
you are referring to them, the Injunction did not pertain to those
on the other side of the
796
issue, because the word in concert with means in concert with
those who had taken a certain position in respect to the clinic,
adverse to the clinic. If you are saying that is the selective
basis that the pro-choice were not arrested when pro-life was
arrested, that's the basis of that selection .... " Tr. 104-105
(Appearance Hearings Held Before Judge McGregor, Eighteenth
Judicial Circuit, Seminole County, Florida (emphasis added)).
And:
John Doe No. 16: "This was the first time that I was in this
area myself and I had not attempted to block an entrance to a
clinic in that town or anywhere else in the State of Florida in the
last year or ever.
"I also understand that the reason why I was arrested was
because I acted in concert with those who were demonstrating
pro-life. I guess the question that I'm asking is were the beliefs
in ideologies of the people that were present, were those taken
into consideration when we were arrested?
" ... When you issued the Injunction did you determine that it
would only apply to-that it would apply only to people that were
demonstrating that were pro-life?"
The Court: "In effect, yes." Id., at 113-116 (emphasis
added).
And finally:
John Doe No. 31: " ... How did the police determine that I was
acting in concert with some organization that was named on this
injunction? I again am a person who haven't seen this injunction.
So how did the police determine that I was acting in concert?"
The Court: "They observed your activities and determined in
their minds whether or not what you were
797
doing was in concert with the-I gather the pro-life position of
the other, of the named Defendants." Id., at 148 (emphasis
added).
These colloquies leave no doubt that the revised injunction here
is tailored to restrain persons distinguished, not by proscribable
conduct, but by proscribable
views.2
B
I have discussed, in the prior subsection, the policy reasons
for giving speech-restricting injunctions, even contentneutral
ones, strict scrutiny. There are reasons of precedent as well,
which are essentially ignored by the Court.
To begin with, an injunction against speech is the very
prototype of the greatest threat to First Amendment values, the
prior restraint. As THE CHIEF JUSTICE wrote for the Court last
Term: "The term prior restraint is used 'to describe administrative
and judicial orders
forbidding certain communications when
issued in advance of the time that such communications are to
occur.' ... [P]ermanent injunctions, i. e.,-court orders that
actually forbid speech activities-are classic examples of prior
restraints."
Alexander v.
United States, 509 U. S. 544, 550 (1993)
(quoting M. Nimmer, Nimmer on Freedom of Speech §4.03, p. 4-14
(1984) (emphasis added in
Alexander)).3 See also 509 U. S.,
at 572 ("[T]he
2JUSTICE SOUTER seeks to contradict this, saying that "the trial
judge made reasonably clear that the issue of who was acting 'in
concert' with the named defendants was ... not to be decided on the
basis of protesters' viewpoints. See Tr. 40, 43, 93, 115, 119-120
(Apr. 12, 1993, Hearing)."
Ante, at 776-777. The only way to
respond to this scattershot assertion is to refer the reader to the
cited pages, plus one more (page 116) which clarifies what might
have been ambiguous on page 115. These pages are reproduced
verbatim in the Appendix to this opinion. As the reader will
observe, they do not remotely support JUSTICE SOUTER'S assertion
that the injunction does not distinguish on the basis of
viewpoint.
3 This statement should be compared with today's opinion, which
says,
ante, at 763, n. 2, that injunctions are not prior
restraints (or at least not the nasty kind) if they only restrain
speech in a certain area, or if the
798
[prior restraint] doctrine ... encompasses injunctive systems
which threaten or bar future speech based on some past infraction")
(KENNEDY, J., dissenting). We have said that a "prior restraint on
expression comes to this Court with a 'heavy presumption' against
its constitutional validity,"
Organization for a Better
Austin v.
Keefe, 402 U. S. 415, 419 (1971)
(quoting
Carroll v.
President and Comm'rs of Princess
Anne, 393 U. S.
175, 181 (1968)), and have repeatedly struck down
speech-restricting injunctions. See,
e. g.,
Youngdahl
v.
Rainfair, Inc., 355 U. S. 131 (1957);
Keefe, supra; New York Times Co. v.
United States,
403 U. S. 713
(1971);
Nebraska Press Assn. v.
Stuart, 427 U. S. 539 (1976);
National Socialist Party of America v.
Skokie,
432 U. S. 43
(1977);
Vance v.
Universal Amusement Co., 445 U. S. 308 (1980)
(statute authorizing injunctions);
CBS Inc. v.
Davis,
510 U. S. 1315
(1994) (BLACKMUN, J., in chambers) (setting aside state-court
preliminary injunction against a scheduled broadcast).
At oral argument neither respondents nor the Solicitor General,
appearing as
amicus for respondents, could identify a single
speech-injunction case applying mere intermediate scrutiny (which
differs little if at all from the Court's intermediate-intermediate
scrutiny). We have, in our speech-injunction cases, affirmed both
requirements that characterize strict scrutiny: compelling public
need and surgical precision of restraint. Even when (unlike in the
present case) the First Amendment activity is intermixed with
violent conduct, "'precision of regulation' is demanded."
NAACP v.
Claiborne Hardware Co., 458 U. S. 886, 916 (1982)
(quoting
NAACP v.
Button, 371 U. S. 415, 438
(1963)). In
Milk Wagon Drivers v.
Meadowmoor Dairies,
Inc., 312 U. S.
287 (1941), we upheld an injunction prohibiting peaceful
picketing, but only because the picketing had been accompanied by
50 instances of window smashing, bombings, stench
basis for their issuance is not content but prior unlawful
conduct. This distinction has no antecedent in our cases.
799
bombings, destruction of trucks, beatings of drivers, arson, and
armed violence. We noted that the "picketing ... was set in a
background of violence," id., at 294, which was "neither episodic
nor isolated," id., at 295, and we allowed the ban on picketing "to
prevent future coercion," id., at 296, as part of a state court's
power "to deal with coercion due to extensive violence," id., at
299. We expressly distinguished the case from those in which there
was no "[e]ntanglement with violence."
Id., at 297. In
Youngdahl v.
Rainfair, Inc., supra, we refused to
allow a blanket ban on picketing when, even though there had been
scattered violence, it could not be shown that "a pattern of
violence was established which would inevitably reappear in the
event picketing were later resumed."
Id., at 139.
The utter lack of support for the Court's test in our
jurisprudence is demonstrated by the two cases the opinion relies
upon. For the proposition that a speech restriction is valid when
it "burden[s] no more speech than necessary to accomplish a
significant government interest," the Court cites
NAACP v.
Claiborne Hardware Co., supra, and
Carroll v.
President and Comm'rs of Princess Anne, supra, at 184. But
as I shall demonstrate in some detail below,
Claiborne
applied a much more stringent test; and the very text of
Carroll contradicts the Court. In the passage cited,
Carroll says this: "An order issued in the area of First
Amendment rights must be couched in the narrowest terms that will
accomplish the pin-pointed objective permitted by constitutional
mandate and the essential needs of the public order." 393 U. S., at
183. That, of course, is strict scrutiny; and it does not remotely
resemble the Court's new proposal, for which it is cited as
precedential support. "Significant government interest[s]"
(referred to in the Court's test) are general, innumerable, and
omnipresent-at least one of them will be implicated by any activity
set in a public forum. "Essential needs of the public order," on
the other hand, are factors of
exceptional application. And
that an injunction
800
"burden no more than necessary" is not nearly as demanding as
the requirement that it be couched in the "narrowest terms that
will accomplish [a] pin-pointed objective." That the Court should
cite this case as its principal authority is an admission that what
it announces rests upon no precedent at all.
III A
I turn now from the Court's selection of a constitutional test
to its actual application of that test to the facts of the present
case. Before doing that, however, it will be helpful-in order to
demonstrate how far the Court has departed from past practice-to
consider how we proceeded in a relatively recent case that did not
involve the disfavored class of abortion protesters.
NAACP
v.
Claiborne Hardware Co., 458 U. S. 886 (1982),
involved, like this case, protest demonstrations against private
citizens mingling political speech with (what I will assume for the
time being existed here) significant illegal behavior.4
Writing for the Court, JUSTICE STEVENS summarized the events
giving rise to the
Claiborne litigation
(id., at
898906): A local chapter of the NAACP, rebuffed by public officials
of Port Gibson and Claiborne County in its request for redress of
various forms of racial discrimination, began a boycott of local
businesses. During the boycott, a young black man was shot and
killed in an encounter with Port Gibson police and "sporadic acts
of violence ensued."
Id., at 902. The following day, boycott
leader Charles Evers told a group that boycott violators would be
disciplined by their own people and warned that the sheriff "could
not sleep with boycott violators at night."
Ibid. He stated
at a second
4
Claiborne Hardware involved both monetary damages and
an injunction, but that is of no consequence for purposes of the
point I am making here: that we have been careful to insulate all
elements of speech not infected with illegality.
801
gathering that" '[i]fwe catch any of you going in any of them
racist stores, we're gonna break your damn neck.' "
Ibid. In
connection with the boycott, there were marches and picketing
(often by small children). "Store watchers" were posted outside
boycotted stores to identify those who traded, and their names were
read aloud at meetings of the Claiborne County NAACP and published
in a mimeographed paper. The chancellor found that those persons
were branded traitors, called demeaning names, and socially
ostracized. Some had shots fired at their houses, a brick was
thrown through a windshield, and a garden damaged. Other evidence
showed that persons refusing to observe the boycott were beaten,
robbed, and publicly humiliated (by spanking).
The merchants brought suit against two groups involved in
organizing the boycott and numerous individuals. The trial court
found tort violations, violations of a state statute prohibiting
secondary boycotts, and state antitrust violations. It issued a
broad permanent injunction against the boycotters, enjoining them
from stationing "store watchers" at the plaintiffs' business
premises; from persuading any person to withhold patronage; from
using demeaning and obscene language to or about any person because
of his patronage; from picketing or patrolling the premises of any
of the respondents; and from using violence against any person or
inflicting damage upon any real or personal property.
Id.,
at 893. The Mississippi Supreme Court upheld the assessment of
liability and the injunction, but solely on the tort theory, saying
that" '[i]f any of these factors-force, violence, or threatsis
present, then the boycott is illegal regardless of whether it is
primary, secondary, economical, political, social or other.'"
Id., at 895.
The legal analysis of this Court proceeded along the following
lines:
"[T]he boycott ... took many forms. [It] was launched at a
meeting of the local branch of the NAACP.
802
[It was] attended by several hundred persons. Its acknowledged
purpose was to secure compliance ... with a lengthy list of demands
for racial equality and racial justice. The boycott was supported
by speeches and nonviolent picketing. Participants repeatedly
encouraged others to join its cause.
"Each of these elements of the boycott is a form of speech or
conduct that is ordinarily entitled to protection under the First
and Fourteenth Amendments .... '[T]he practice of persons sharing
common views banding together to achieve a common end is deeply
embedded in the American political process.' We recognize that 'by
collective effort individuals can make their views known, when,
individually, their voices would be faint or lost.'" Id., at
907-908 (quoting Citizens Against Rent Control/Coalition for
Fair Housing v. Berkeley, 454 U. S. 290, 294
(1981)).
We went on to say that "[t]he right to associate does not lose
all constitutional protection merely because some members of the
group may have participated in conduct or advocated doctrine that
itself is not protected," 458 U. S., at 908, and held that the
nonviolent elements of the protesters' activities were entitled to
the protection of the First Amendment, id., at 915.
Because we recognized that the boycott involved elements of
protected First Amendment speech and other elements not so
protected, we took upon ourselves a highly particularized burden of
review, recognizing a "special obligation on this Court to examine
critically the basis on which liability was imposed."
Ibid.
"The First Amendment," we noted, "does not protect violence," but
when conduct sanctionable by tort liability "occurs in the context
of constitutionally protected activity ... 'precision of
regulation' is demanded."
Id., at 916 (quoting
NAACP
v.
Button, 371 U. S., at 438). Then, criticizing the
Mississippi Supreme Court for "broadly assert[ing]-without
differentiation-that [i]ntimi-
803
dation, threats, social ostracism, vilification, and traduction
were devices used by the defendants to effectuate the boycott," 458
U. S., at 921 (internal quotation marks omitted), we carefully
examined the record for factual support of the findings of
liability. While affirming that a "judgment tailored to the
consequences of [individuals'] unlawful conduct may be sustained,"
we said that "mere association with [a] group-absent a specific
intent to further an unlawful aim embraced by that group-is an
insufficient predicate for liability."
Id., at 925-926. We
said in conclusion that any characterization of a political protest
movement as a violent conspiracy "must be supported by findings
that adequately disclose the evidentiary basis for concluding that
specific parties agreed to use unlawful means, that carefully
identify the impact of such unlawful conduct, and that recognize
the importance of avoiding the imposition of punishment for
constitutionally protected activity."
Id., at 933-934.
Because this careful procedure had not been followed by the
Mississippi courts, we set aside the entire judgment, including the
injunction.
Id., at 924, n. 67, 934.
B
I turn now to the Court's performance in the present case.
I am content to evaluate it under the lax
(intermediateintermediate scrutiny) standard that the Court has
adopted, because even by that distorted light it is inadequate.
The first step under the Court's standard would be, one should
think, to identify the "significant government interest" that
justifies the portions of the injunction it upheld, namely, the
enjoining of speech in the 36-foot zone, and the making (during
certain times) of" 'sounds ... within earshot of the patients
inside the [c]linic.'"
Ante, at 772. At one point in its
opinion, the Court identifies a number of government interests: the
"interest in protecting a woman's freedom to seek lawful medical or
counseling services," the "interest in ensuring the public safety
and order, in promoting
804
the free flow of traffic on public streets and sidewalks, and in
protecting the property rights of all its citizens," the "interest
in ... medical privacy," and the interest in "the psychological
[and] physical well-being of the patient held 'captive' by medical
circumstance."
Ante, at 767, 768. The Court says,
ante, at 768, that "these governmental interests [are] quite
sufficient to justify an appropriately tailored injunction to
protect them." Unless, however, the Court has destroyed even more
First Amendment law than I fear, this last statement must be read
in conjunction with the Court's earlier acknowledgment that
"[u]nder general equity principles, an injunction issues only if
there is a showing that the defendant has violated, or imminently
will violate, some provision of statutory or common law, and that
there is a 'cognizable danger of recurrent violation.'"
Ante, at 765, n. 3 (quoting
United States v.
W T.
Grant Co., 345 U.
S. 629, 633 (1953)). It is too much to believe, even of today's
opinion, that it approves issuance of an injunction against speech
"to promote the free flow of traffic"
even when there has been
found no violation, or threatened violation, of a law relating to
that interest.
Assuming then that the "significant interests" the Court
mentioned must in fact be significant enough to be protected by
state law (a concept that includes a prior court order), which law
has been, or is about to be, violated, the question arises: What
state law is involved here? The only one even mentioned is the
original September 30, 1992, injunction,5 which had been issued
(quite rightly, in my judgment) in re-
5JU8TICE SOUTER points out that "petitioners themselves
acknowledge that the governmental interests in protection of public
safety and order, of the free flow of traffic, and of property
rights are reflected in Florida law. See Brief for Petitioners 17,
and n. 7 (citing [various Florida statutes])."
Ante, at 777.
This is true but quite irrelevant. As the preceding sentence of
text shows, we are concerned here not with state laws in general,
but with state laws that these respondents had been found to have
violated. There is
no finding of violation of any of these
cited Florida statutes.
805
sponse to threats by the originally named parties (including
petitioners here) that they would" '[p]hysically close down
abortion mills,'" "bloc[k] access to clinics," "ignore the law of
the State," and "shut down a clinic." Permanent Injunction Findings
of Fact "2, 5, 7, 8, App. 6-7. That original injunction prohibited
petitioners from:
"1) trespassing on, sitting in, blocking, impeding or
obstructing ingress into or egress from any facility at which
abortions are performed in Brevard and Seminole County Florida;
"2) physically abusing persons entering, leaving, working or
using any services of any facility at which abortions are performed
in Brevard and Seminole County, Florida; and
"3) attempting or directing others to take any of the actions
described in Paragraphs 1 and 2 above." Id., at 9.
According to the Court, the state court imposed the later
injunction's "restrictions on petitioner[s'] ... antiabortion
message because they repeatedly violated the court's original
order."
Ante, at 763. Surprisingly, the Court accepts this
reason as valid, without asking whether the court's findings of
fact support it-whether, that is, the acts of which petitioners
stood convicted
were violations of the original
injunction.
The Court simply takes this on faith-even though violation of
the original injunction is an essential part of the reasoning
whereby it approves portions of the amended injunction, even though
petitioners denied any violation of the original injunction, even
though the utter lack of proper basis for the other challenged
portions of the injunction hardly inspires confidence that the
lower courts knew what they were doing, and even though close
examination of the factual basis for essential conclusions is the
usual practice in First Amendment cases, see
Claiborne
Hardware, 458 U. S.,
806
at 915-916, n. 50;
Edwards v.
South Carolina,
372 U. S. 229,
235 (1963);
Fiske v.
Kansas, 274 U. S. 380, 385-386
(1927); see also
Bose Corp. v.
Consumers Union of United
States, Inc., 466
U. S. 485, 517 (1984) (REHNQUIST, J., dissenting). Let us
proceed, then, to the inquiry the Court neglected. In the amended
permanent injunction the trial court found that
"despite the injunction of September 30, 1992, there has been
interference with ingress to the petitioners' facility .... [in]
the form of persons on the paved portions of Dixie Way, some
standing without any obvious relationship to others; some moving
about, again without any obvious relationship to others; some
holding signs, some not; some approaching, apparently trying to
communicate with the occupants of motor vehicles moving on the
paved surface; some marching in a circular picket line that
traversed the entrance driveways to the two parking lots of the
petitioners and the short section of sidewalk joining the two
parking lots and then entering the paved portion of the north lane
of Dixie Way and returning in the opposite direction .... Other
persons would be standing, kneeling and sitting on the unpaved
shoulders of the public right-of-way. As vehicular traffic
approached the area it would, in response to the congestion, slow
down. If the destination of such traffic was either of the two
parking lots of the petitioners, such traffic slowed even more,
sometimes having to momentarily hesitate or stop until persons in
the driveway moved out of the way." Amended Permanent Injunction ,
A.
"As traffic slowed on Dixie Way and began its turn into the
clinic's driveway, the vehicle would be approached by persons
designated by the respondents as sidewalk counselors attempting to
get the attention of the vehicles' occupants to give them
anti-abortion literature and to urge them not to use the clinic's
services. Such so-called sidewalk counselors were assisted in
ac-
807
complishing their approach to the vehicle by the hesitation or
momentary stopping caused by the time needed for the picket line to
open up before the vehicle could enter the parking lot."
Id.,' E.
"The ... staff physician testified that on one occasion while he
was attempting to enter the parking lot of the clinic, he had to
stop his vehicle and remained stopped while respondent, Cadle, and
others took their time to get out of the way .... This
physician also testified that he witnessed the demonstrators
running along side of and in front of patients' vehicles, pushing
pamphlets in car windows to persons who had not indicated any
interest in such literature .... " Id., , I (emphasis
added).
On the basis of these findings Judge McGregor concluded that
"the actions of the respondents and those in concert with them in
the street and driveway approaches to the clinic of the plaintiffs
continue to impede and obstruct both staff and patients from
entering the clinic. The paved surfaces of the public right-of-way
must be kept open for the free flow of traffic."
Id.,
Conclusions, , A.6
These are the only findings and conclusions of the court that
could conceivably be considered to relate to a violation of the
original injunction. They all concern behavior by the protesters
causing traffic on the street in front of the abortion clinic to
slow down, and causing vehicles crossing the
6 In my subsequent discussion, I shall give the Florida trial
court the benefit of the doubt, and assume that the phrase
"continue to impede and obstruct" expresses the conclusion that
petitioners had violated those provisions of the original
injunction which prohibited "impeding or obstructing." It is not
entirely clear, however, that the Florida court was in fact
asserting a violation of the original injunction. As far as the
record shows, it assessed no penalty for any such violation; and
"impeding and obstructing" can embrace many different things, not
all of which (as I shall discuss presently) come within the meaning
of the original injunction.
808
pedestrian right-of-way, between the street and the clinic's
parking lot, to slow down or even, occasionally, to stop
momentarily while pedestrians got out of the way. As far as appears
from the court's findings, all of these results were produced, not
by anyone intentionally seeking to block oncoming traffic, but as
the incidental effect of persons engaged in the activities of
walking a picket line and leafletting on public property in front
of the clinic. There is no factual finding that petitioners engaged
in
any intentional or purposeful obstruction.
Now let us compare these activities with the earlier injunction,
violation of which is the asserted justification for the
speech-free zone. Walking the return leg of the picket line on the
paved portion of Dixie Way (instead of on the sidewalk), and
congregating on the unpaved portion of that street, may, for all we
know, violate some municipal ordinance (though that was not
alleged, and the municipal police evidently did not seek to prevent
it); but it assuredly did not violate the earlier injunction, which
made no mention of such a prohibition. Causing the traffic along
Dixie Way to slow down "in response to the congestion" is also
irrelevant; the injunction said nothing about slowing down traffic
on public rights-of-way. It prohibited the doing (or urging) of
only three things: (1) "physically abusing persons entering,
leaving, working or using any services" of the abortion clinic
(there is no allegation of that); (2) "trespassing on [or] sitting
in" the abortion clinic (there is no allegation of that); and (3)
"blocking, impeding or obstructing ingress into or egress from" the
abortion clinic.
Only the last of these has any conceivable application here, and
it seems to me that it must reasonably be read to refer to
intentionally blocking, impeding, or obstructing, and
not to such temporary obstruction as may be the normal and
incidental consequence of other protest activity. That is obvious,
first of all, from the context in which the original injunction was
issued-as a response to petitioners' threatened
809
actions of trespass and blockade, i.
e., the physical
shutting down of the local clinics. Secondly, if that narrow
meaning of intentional blockade, impediment, or obstruction was not
intended, and if it covered everything up to and including the
incidental and "momentary" stopping of entering vehicles by persons
leafletting and picketing, the original injunction would have
failed the axiomatic requirement that its terms be drawn with
precision. See,
e. g., Milk Wagon Drivers, 312 U. S., at
296; 1 D. Dobbs, Law of Remedies § 2.8(7), p. 219 (2d ed. 1993); 7
J. Moore, J. Lucas, & K. Sinclair, Moore's Federal Practice'
65.11 (2d ed. 1994); cf. Fed. Rule Civ. Proc. 65(d) ("Every order
granting an injunction ... shall be specific in terms [and] shall
describe in reasonable detail ... the act or acts sought to be
restrained"). And finally, if the original injunction did not have
that narrow meaning it would assuredly have been unconstitutional,
since it would have prevented speech-related activities that were,
insofar as this record shows, neither criminally or civilly
unlawful nor inextricably intertwined with unlawful conduct. See
Milk Wagon Drivers, supra, at 292, 297;
Carroll, 393
U. S., at 183-184.
If the original injunction is read as it must be, there is
nothing in the trial court's findings to suggest that it was
violated. The Court today speaks of "the failure of the first
injunction to protect access."
Ante, at 769. But the first
injunction did not broadly "protect access." It forbade particular
acts that impeded access, to wit, intentionally "blocking, impeding
or obstructing." The trial court's findings identify none of these
acts, but only a mild interference with access that is the
incidental by-product of leafletting and picketing. There was no
sitting down, no linking of arms, no packing en masse in the
driveway; the most that can be alleged (and the trial court did not
even make this a finding) is that on one occasion protesters "took
their time to get out of the way." If that is enough to support
this one-man proscription of free speech, the First Amendment is in
grave peril.
810
I almost forgot to address the facts showing prior violation of
law (including judicial order) with respect to the other portion of
the injunction the Court upholds: the
no-noisewithin-earshot-of-patients provision. That is perhaps
because, amazingly, neither the Florida courts
nor this
Court makes the slightest attempt to link that provision to
prior violations of law. The relevant portion of the Court's
opinion, Part II-B, simply reasons that hospital patients should
not have to be bothered with noise, from political protests or
anything else (which is certainly true), and that therefore the
noise restrictions could be imposed
by injunction (which is
certainly false). Since such a law is reasonable, in other words,
it can be enacted by a single man to bind only a single class of
social protesters. The pro-abortion demonstrators who were often
making (if respondents' videotape is accurate)
more noise
than the petitioners, can continue to shout their chants at their
opponents exiled across the street to their hearts' content. The
Court says that "[w]e have upheld similar noise restrictions in the
past,"
ante, at 772, citing
Grayned v.
City of
Rockford, 408 U.
S. 104 (1972). But
Grayned involved an
ordinance,
and not an
injunction; it applied to
everyone. The
only other authority the Court invokes is
NLRB v.
Baptist
Hospital, Inc., 442 U. S. 773 (1979),
which it describes as "evaluating another injunction involving a
medical facility,"
ante, at 772, but which evaluated no such
thing.
Baptist Hospital, like
Grayned, involved a
restriction of general application, adopted by the hospital
itself-and the case in any event dealt not with whether the
government had violated the First Amendment by restricting noise,
but with whether the hospital had violated the National Labor
Relations Act by restricting solicitation (including solicitation
of union membership).
Perhaps there is a local ordinance in Melbourne, Florida,
prohibiting loud noise in the vicinity of hospitals and abortion
clinics. Or perhaps even a Florida common-law prohibition applies,
rendering such noisemaking tortious. But the
811
record in this case shows (and, alas, the Court's opinion today
demands) neither indication of the existence of any such law nor a
finding that it had been violated. The fact that such a law would
be reasonable is enough, according to the Court, to justify a
single judge in imposing it upon these protesters alone. The First
Amendment (and even the common law of injunctions, see the Court's
own footnote 3) reels in disbelief.
The Court does not even attempt a response to the point I have
made in this section, insofar as the injunction against noise is
concerned. That portion of its opinion,
ante, at 772773,
does not even allege any violation of the prior injunction to
support this judge-crafted abridgment of speech. With respect to
the 36-foot speech-free zone, the Court attempts a response, which
displays either a misunderstanding of the point I have made or an
effort to recast it into an answerable one. My point does not rely,
as the Court's response suggests,
ante, at 770, upon my
earlier description of the videotape. That was set forth just for
context, to show the reader what suppression of normal and peaceful
social protest is afoot here. Nor is it relevant to my point that
"petitioners themselves studiously refrained from challenging the
factual basis for the injunction,"
ibid. I accept the facts
as the Florida court found them; I deny that those facts support
its
conclusion (set forth as such in a separate portion of
its opinion, as quoted above) that the original injunction had been
violated. The Court concludes its response as follows:
"We must therefore judge this case on the assumption that the
evidence and testimony presented to the state court supported its
findings that the presence of protesters standing, marching, and
demonstrating near the clinic's entrance interfered with ingress to
and egress from the clinic despite the issuance of the earlier
injunction." Ante, at 771.
But a finding that they "interfered with ingress and egress
... despite the ... earlier injunction" is not enough.
The
812
earlier injunction did not, and could not, prohibit all
"interference"-for example, the minor interference incidentally
produced by lawful picketing and leafletting. What the Court needs,
and cannot come up with, is a finding that the petitioners
interfered
in a manner prohibited by the earlier injunction.
A conclusion that they "block[ed], imped[ed] or obstruct[ed]
ingress ... or egress" (the terminology of the original injunction)
within the only fair, and indeed the only permissible, meaning of
that phrase cannot be supported by the facts found.
To sum up: The interests assertedly protected by the
supplementary injunction did not include any interest whose
impairment was a violation of Florida law or of a Florida court
injunction. Unless the Court intends today to overturn long-settled
jurisprudence, that means that the interests cannot possibly
qualify as "significant interests" under the Court's new
standard.
C
Finally, I turn to the Court's application of the second part of
its test: whether the provisions of the injunction "burden no more
speech than necessary" to serve the significant interest
protected.
This test seems to me amply and obviously satisfied with regard
to the noise restriction that the Court approves: It is only such
noise as would reach the patients in the abortion clinic that is
forbidden-and not even at all times, but only during certain fixed
hours and "during surgical procedures and recovery periods." (The
latter limitation may raise vagueness and notice problems, but that
does not concern us here. Moreover, as I have noted earlier, the
noise restriction is invalid on other grounds.) With regard to the
36-foot speech-free zone, however, it seems to me just as obvious
that the test which the Court sets for itself has not been met.
Assuming a "significant state interest" of the sort cognizable
for injunction purposes (i.
e., one protected by a law that
has been or is threatened to be violated) in both (1) keeping
813
pedestrians off the paved portion of Dixie Way, and (2) enabling
cars to cross the public sidewalk at the clinic's driveways without
having to slow down or come to even a "momentary" stop, there are
surely a number of ways to protect those interests short of
banishing the entire protest demonstration from the 36-foot zone.
For starters, the Court could have (for the first time) ordered the
demonstrators to stay out of the street (the original injunction
did not remotely require that). It could have limited the number of
demonstrators permitted on the clinic side of Dixie Way. And it
could have forbidden the pickets to walk on the driveways. The
Court's only response to these options is that "[t]he state court
was convinced that [they would not work] in view of the failure of
the first injunction to protect access."
Ante, at 769. But
must we accept that conclusion as valid-when the original
injunction contained no command (or at the very least no
clear command) that had been disobeyed, and contained
nothing even
related to staying out of the street? If the
"burden no more speech than necessary" requirement can be avoided
by merely opining that (for some reason) no lesser restriction than
this one will be obeyed, it is not much of a requirement at
all.
But I need not engage in such precise analysis, since the Court
itself admits that the requirement is not to be taken seriously.
"The need for a complete buffer zone," it says,
"may be
debatable, but some deference must be given to the state
court's familiarity with the facts and the background of the
dispute between the parties even under our heightened review."
Ante, at 769-770 (emphasis added). In application, in other
words, the "burden no more speech than is necessary" test has
become an "arguably burden no more speech than is necessary" test.
This renders the Court's intermediate-intermediate scrutiny not
only no
more stringent than plain old intermediate scrutiny,
but considerably
less stringent.
814
Another disturbing part of the Court's analysis is its reliance
upon the fact that "witnesses ... conceded that the buffer zone was
narrow enough to place petitioners at a distance of no greater than
10 to 12 feet from cars approaching and leaving the clinic," and
that "[p]rotesters standing across the narrow street from the
clinic can still be seen and heard from the clinic parking lots."
Ante, at 770. This consideration of whether the injunction
leaves open effective, alternative channels of communication is
classic, time-placeand-manner-regulation, "intermediate scrutiny"
review, see
Ward v.
Rock Against Racism, 491 U. S. 781, 791
(1989). And in that context it is reasonable. But since in this
case a general regulation establishing time, place, and manner
restrictions for
all citizens is not at issue, these
petitioners have a right, not merely to demonstrate and protest at
some reasonably effective place, but to demonstrate and protest
where they want to and where all other Floridians can,
namely, right there on the public sidewalk in front of the clinic.
"[O]ne is not to have the exercise of his liberty of expression in
appropriate places abridged on the plea that it may be exercised in
some other place."
Schneider v.
State (Town of
Irvington), 308
U. S. 147, 163 (1939). "Whether petitioner might have used some
other [forum] ... is of no consequence .... Even if [another] forum
had been available, that fact alone would not justify an otherwise
impermissible prior restraint."
Southeastern Promotions,
Ltd. v.
Conrad, 420 U. S. 546, 556
(1975).
***
In his dissent in
Korematsu v.
United States,
323 U. S. 214
(1944), the case in which this Court permitted the wartime military
internment of Japanese-Americans, Justice Jackson wrote the
following:
"A military order, however unconstitutional, is not apt to last
longer than the military emergency .... But once a judicial opinion
... rationalizes the Constitution to
815
show that the Constitution sanctions such an order, the Court
for all time has validated the principle of racial discrimination
in criminal procedure and of transplanting American citizens. The
principle then lies about like a loaded weapon ready for the hand
of any authority that can bring forward a plausible claim of an
urgent need." Id., at 246.
What was true of a misguided military order is true of a
misguided trial-court injunction. And the Court has left a powerful
loaded weapon lying about today.
What we have decided seems to be, and will be reported by the
media as, an abortion case. But it will go down in the lawbooks, it
will be cited, as a free-speech injunction case-and the damage its
novel principles produce will be considerable. The proposition that
injunctions against speech are subject to a standard
indistinguishable from (unless perhaps more lenient in its
application than) the "intermediate scrutiny" standard we have used
for "time, place, and manner" legislative restrictions; the notion
that injunctions against speech need not be closely tied to any
violation of law, but may simply implement sound social policy; and
the practice of accepting trial-court conclusions permitting
injunctions without considering whether those conclusions are
supported by any findings of fact-these latest byproducts of our
abortion jurisprudence ought to give all friends of liberty great
concern.
For these reasons, I dissent from that portion of the judgment
upholding parts of the injunction.
APPENDIX TO OPINION OF JUSTICE SCALIA
Portions of April 12, 1993, Appearance Hearings Held Before
Judge McGregor, Eighteenth Judicial Circuit, Seminole County,
Florida:
Page 40:
JANE DOE NO.6: "Yes, sir. When I heard this injunction,
everything in there, as an American-"
816
THE COURT: "I'm Sorry. I'm not the judge trying it.
Those are matters that perhaps you'll want to present at
trial."
JANE DOE NO.6: "I do have a question, too. I'm confused as to
why the people who were blockading the clinic who had pro-choice
signs were not arrested along with me. They-it appeared to me they
were violating the same injunction I was, you know-"
THE COURT: "The Injunction is directed only against certain
named Defendants, certain named organizations and those acting in
concert with them. Presumably, as you say, the other side would not
have been acting in concert with the named Defendants."
JANE DOE NO.6: "But I was in concert with nobody. I was just an
American citizen, defending the right to assemble and to
demonstrate."
THE COURT: "Again, perhaps, that would be a matter of defense
that you would present at the time of trial."
JANE DOE NO.6: "So the Injunction only .... "
Page 43:
JANE DOE NO.6: "But I was not in concert with anybody."
THE COURT: "Again, I say that at the time of your trial,
perhaps, that would be a defensive matter. Although, I'm told by
the Melbourne Police Department that everyone was put on notice
that the thirty-six-foot area was a restricted area and when-if you
presumably had notice of that and chose to enter, then, you chose
to violate the Court's Injunction. That's why you were
arrested."
JANE DOE NO.6: "I don't mean this disrespectfully, but does not
the constitutional freedom to be on public sidewalk and to-"
THE COURT: "There is nothing in the constitution that says that
anyone is entitled to walk on any sidewalk."
817
JANE DOE NO.6: "But I have the right to demonstrate, the right
to assembly, the right to religion and its practice and I was
praying on the sidewalk. I don't understand-"
THE COURT: "And that will not be denied you, but it is subject
to regulation. The Court provided the south shoulder of Dixie Way
as an area for that to be done."
Page 93:
MR. QUINTERO: "And who are these Defendants? I have no
idea."
THE COURT: "They're set out in the Injunction."
MR. QUINTERO: "Because I'm not working in conjunction with
anybody. I don't know anything. I don't belong to any group that is
doing absolutely anything like this. I am just a normal Christian
that went to pray on the sidewalk."
THE COURT: "Again, those may be defensive matters.
I'm saying that you should bring them up first with your lawyer
and then at the time of triaL"
MR. QUINTERO: "Okay, I would like to formally request to have
this injunction so I can look at it while I'm incarcerated and that
I can make arrangements to talk to counsel about it."
THE COURT: "Your lawyer knows how to obtain a copy.
Copies are available at, again, the branch courthouses in
Melbourne and Melbourne City Hall. Copies are available at the
Clerk's Office here in Seminole County."
MR. QUINTERO: "At this time I do not have a lawyer and I see it
very difficult for me to go to the Melbourne Courthouse being
incarcerated."
Page 115-116:
[JOHN DOE NO. 16]: " ... do with the determination in the
Injunctive Order or in the arrest?"
THE COURT: "You know, I wasn't there. I don't know.
All I know is that the officer used his perceptions, his eyes,
his ears, took note of the activities that were going on and
818
for reasons, you know, he believed that you were in concert with
those that had been enjoined and the Injunctive Order is expanded
to include those so that you were subject then to the
Injunction."
JOHN DOE NO. 16: "When you issued the Injunctive Court Order did
you include what someone might believe about abortion or about
their right to assemble there, or let's just say about abortion as
a basis for arrest?"
THE COURT: "I considered all of the evidence before me."
JOHN DOE NO. 16: "And would one of those things be, would one of
the reasons that I was arrested be because I opposed abortion in
that clinic?"
THE COURT: "No."
JOHN DOE NO. 16: "Okay. If I was to stand here, if I was to
testify that I did not oppose abortion would that make any
difference in my arrest?"
THE COURT: "You can't be unarrested. You have been
arrested."
JOHN DOE NO. 16: "What about being charged with violating the
Court Order?"
THE COURT: "It will be up to the prosecutor, the State Attorney,
to make a charge decision. And sometimes lawyers in representing
clients will go to a prosecutor in advance of his charge decision
and ask that he, you know, consider additional matters that might
cause him to not make such a charge decision. Those are matters
lawyers best know how to do."
JOHN DOE NO. 16: "When you issued the Injunction did you
determine that it would only apply to-that it would apply only to
people that were demonstrating that were pro-life ?"
THE COURT: "In effect, yes."
JOHN DOE NO. 16: "Okay, thank you." THE COURT: "Any other
questions?" JOHN DOE NO. 16: "No."
819
THE COURT: "Thank you. Did we give him a court date?
"John Doe Number Eighteen."
JOHN DOE NO. 18: "Were there any numbers .... " Pages
119-120:
MR. MACLEAN: "Yes, please, Your Honor."
THE COURT: "Okay. Court will then direct pre-trial release
officer to interview and provide the results of the interview to
Judge Eaton after 1:00 o'clock today and he will consider that
release. Do you wish to be considered for court-appointed
counsel?"
MR. MACLEAN: "No thank you."
THE COURT: "Do you have any questions?"
MR. MACLEAN: "Yes, please. Would you extend your gracious offer
to reduce the bond for myself also?"
THE COURT: "Surely. Reduce bond to a hundred
dollars."
THE CLERK: "Total?" THE COURT: "Hmm?" THE CLERK: "Total?"
THE COURT: "No. I can't deal with the-" THE CLERK: "Eleven
hundred?"
THE COURT: "Eleven hundred, yes."
MR. MACLEAN: "Respectfully, sir, where on my arrest report does
it allege that I was acting in concert with anyone?"
THE COURT: "It is embodied in the phrase violation of the
Injunctive Court Order. But again, this is an arrest report. It is
not a formal charge. Presumably within the formal charge there will
be that reference, sir."
MR. MACLEAN: "I'm finished with questions, sir, but may I make a
statement which I promise you I won't-"
THE COURT: "I can't deal with the statement. In other words,
I've got a lot of people to see and the statement may be defensive
in nature and it is a matter that should be brought to the trial of
the matter."
820
MR. MACLEAN: "I only wish to thank the Melbourne Police
Department and the Sharpes Correctional facility and the people
here in Seminole for their gracious and professional treatment of
us."
THE COURT: "Thank you in their behalf." MR. MACLEAN: "Okay,
sir."
THE COURT: "John Doe Number Eighteen. This is out of order
now."
THE CLERK: "Yes, sir."
THE COURT: "You've been designated as John Doe Number Eighteen.
Do you wish to maintain that designation for these
proceedings?"
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