OCTOBER TERM, 1996
Syllabus
SCHENCK ET AL.
v. PRO-CHOICE NETWORK OF WESTERN NEW YORK
ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT
No. 95-1065. Argued October 16, 1996-Decided February 19,
1997
Respondents, upstate New York abortion doctors and clinics and
an organization dedicated to maintaining access to abortion
services, filed a complaint in the District Court seeking to enjoin
petitioners, other individuals, and three organizations from
engaging in blockades and other illegal conduct at the clinics. The
record shows that, before the complaint was filed, the clinics were
subjected to numerous large-scale blockades in which protesters
marched, stood, knelt, sat, or lay in clinic parking lot driveways
and doorways, blocking or hindering cars from entering the lots,
and patients and clinic employees from entering the clinics. In
addition, smaller groups of protesters consistently attempted to
stop or disrupt clinic operations by, among other things, milling
around clinic doorways and driveway entrances, trespassing onto
clinic parking lots, crowding around cars, and surrounding,
crowding, jostling, grabbing, pushing, shoving, and yelling and
spitting at women entering the clinics and their escorts. On the
sidewalks outside the clinics, protesters called "sidewalk
counselors" used similar methods in attempting to dissuade women
headed toward the clinics from having abortions. The local police
were unable to respond effectively to the protests due, in part, to
the fact that the defendants harassed them verbally and by mail.
The District Court issued a temporary restraining order (TRO), and
later, after the protests and sidewalk counseling continued, a
preliminary injunction. As relevant here, injunction provisions
banned "demonstrating within fifteen feet ... of ... doorways or
doorway entrances, parking lot entrances, driveways and driveway
entrances of [clinic] facilities" (fixed buffer zones), or "within
fifteen feet of any person or vehicle seeking access to or leaving
such facilities" (floating buffer zones). Another provision allowed
two sidewalk counselors inside the buffer zones, but required them
to "cease and desist" their counseling if the counselee so
requested. In its accompanying opinion, the District Court,
inter alia, rejected petitioners' assertion that the
injunction violated their First Amendment right to free speech. The
en banc Court of Appeals affirmed.
358
358 SCHENCK
v. PRO-CHOICE NETWORK OF WESTERN N. Y.
Syllabus
Held: The injunction provisions imposing "fixed buffer
zone" limitations are constitutional, but the provisions imposing
"floating buffer zone" limitations violate the First Amendment.
Pp.371-385.
(a) Because
Madsen v.
Women's Health Center, Inc.,
512 U. S. 753,
bears many similarities to this case and because many of the
parties' arguments depend on the application of
Madsen here,
the Court reviews that decision. In
Madsen, the Court said
that "standard time, place, and manner analysis is not sufficiently
rigorous" for evaluating contentneutral
injunctions that
restrict speech, and held, instead, that the test is "whether the
challenged provisions ... burden no more speech than necessary to
serve a significant government interest."
Id., at 765. Pp.
371-374.
(b) Petitioners' argument that no significant governmental
interests support the injunction at issue is rejected. Given the
factual similarity between this case and
Madsen, the Court
concludes that the governmental interests underlying the injunction
there-ensuring public safety and order, promoting the free flow of
traffic on streets and sidewalks, protecting property rights, and
protecting a woman's freedom to seek pregnancy-related services,
512 U. S., at 767-768-also underlie the injunction here, and in
combination are certainly significant enough to justify an
appropriately tailored injunction to secure unimpeded physical
access to the clinics. Pp. 374-376.
(c) The floating buffer zones are struck down because they
burden more speech than is necessary to serve the relevant
governmental interests. Such zones around people prevent
defendants-except for sidewalk counselors tolerated by the targeted
individual-from communicating a message from a normal
conversational distance or handing out leaflets on the public
sidewalks. This is a broad prohibition, both because of the type of
speech restricted and the nature of the location. Leafletting and
commenting on matters of public concern are classic forms of speech
that lie at the heart of the First Amendment, and speech in public
areas is at its most protected on public sidewalks, a prototypical
example of a traditional public forum. See,
e. g., Boos v.
Barry, 485 U. S. 312, 322. Although a record of abusive
conduct sometimes makes a prohibition on classic speech in limited
parts of a public sidewalk permissible, see,
e. g., Madsen,
supra, at 769-770, the Court need not decide whether the
governmental interests involved would ever justify a separation
zone measured by the distance between targeted individuals and
protesters, since the fact that this broad speech prohibition
"floats" renders it unsustainable on this record. Protesters on the
public sidewalks who wish to communicate their message to a
targeted individual and to remain as close as possible (while
maintaining an acceptable conversational distance) must move as the
individual moves, maintaining 15 feet
359
of separation. But this would be difficult to accomplish at,
e. g., one of the respondent clinics which is bordered by a
17-foot-wide sidewalk. The lack of certainty as to how to remain in
compliance with the injunction leads to a substantial risk that
much more speech will be burdened than the injunction by its terms
prohibits. There may well be other ways to both effect the desired
separation and yet provide certainty (so that speech protected by
the injunction's terms is not burdened). Because the Court strikes
down the floating zones around people, it does not address the
constitutionality of the "cease and desist" provision respecting
those zones. The floating buffer zones around vehicles also fail
the
Madsen test. Such zones would restrict the speech of
those who simply line the sidewalk or curb in an effort to chant,
shout, or hold signs peacefully. Nothing in the record or the
District Court's opinion contradicts the commonsense notion that a
more limited injunction
e. g., one that keeps protesters away
from driveways and parking lot entrances and off the streets-would
be sufficient to ensure that drivers are not confused about how to
enter the clinic and are able to gain access to its driveways and
parking lots safely and easily. Pp. 377-380.
(d) The fixed buffer zones around the clinic doorways,
driveways, and driveway entrances are upheld. That these zones are
necessary to ensure that people and vehicles can enter or exit the
clinic property or parking lots is demonstrated by evidence in the
record showing that, both before and after the TRO issued,
protesters purposefully or effectively blocked or hindered people
from entering and exiting the doorways and from driving up to and
away from the entrances and in and out of the lots; that sidewalk
counselors followed and crowded people right up to the doorways
(and sometimes beyond) and then tended to stay in the doorways,
shouting at the individuals who had managed to get inside; and that
defendants' harassment of the local police made it far from certain
that the police would be able to quickly and effectively counteract
protesters who blocked doorways or threatened the safety of
entering patients and employees. Deference is due the District
Court's reasonable assessment that 15 feet is the proper distance
to ensure access. See
Madsen, supra, at 769-770.
Petitioners' various arguments against the fixed buffer zones-that
other, unchallenged injunction provisions are sufficient to ensure
access to the clinics; that the District Court should first have
tried a "non-speech-restrictive" injunction; that there is no
extraordinary record of pervasive lawlessness here; and that the
injunction's term "demonstrating" is vague-are rejected. Also
rejected is petitioners' contention that the "cease and desist"
provision limiting the sidewalk counselors exception in connection
with the fixed buffer zone violates the First Amendment. This
limitation must be assessed in light of the fact that the entire
exception for counselors was
360
360 SCHENCK
v. PRO-CHOICE NETWORK OF WESTERN N. Y.
Syllabus
an effort to enhance petitioners' speech rights. Moreover, the
"cease and desist" provision is not content based simply because it
allows a patient to terminate a protester's right to speak when the
patient disagrees with the message being conveyed. Counselors
remain free to espouse their message outside the I5-foot zone, and
the condition on their freedom to espouse it within the zone is the
result of their own previous harassment and intimidation of
patients. Pp. 380-385.
67 F.3d
377, affirmed in part, reversed in part, and remanded.
REHNQUIST, C. J., delivered the opinion for a unanimous Court
with respect to Parts I and II-A, the opinion of the Court with
respect to Part II-C, in which STEVENS, O'CONNOR, SCALIA, KENNEDY,
SOUTER, THOMAS, and GINSBURG, JJ., joined, and the opinion of the
Court with respect to Parts II-B and II-D, in which STEVENS,
O'CONNOR, SOUTER, GINSBURG, and BREYER, JJ., joined. SCALIA, J.,
filed an opinion concurring in part and dissenting in part, in
which KENNEDY and THOMAS, JJ., joined,
post, p. 385. BREYER,
J., filed an opinion concurring in part and dissenting in part,
post, p. 395.
Jay Alan Sekulow argued the cause for petitioners. With him on
the briefs were Vincent P. McCarthy, Joseph P. Secola, Thomas P.
Monaghan, James M. Henderson, Sr., Walter M. Weber, Keith A.
Fournier, and John G. Stepanovich.
Lucinda M. Finley argued the cause for respondents.
With her on the brief were Martha F. Davis and Deborah A.
Ellis.
Acting Solicitor General Dellinger argued the cause for the
United States as amicus curiae urging affirmance. With him on the
brief were Assistant Attorney General Patrick, Deputy Solicitor
General Bender, Beth S. Brinkmann, and Jessica Dunsay Silver. *
*Briefs of
amici curiae urging reversal were filed for
the American Civil Liberties Union Foundation of Florida, Inc., et
al. by
James K. Green and
Richard A. Waples; for the
Family Research Council by
Cathleen A. Cleaver; for Liberty
Counsel by
Mathew D. Staver; and for the Rutherford
Institute by
Anne-Marie Amiel and
John W
Whitehead.
Briefs of
amici curiae urging affirmance were filed for
the State of Connecticut et al. by
Richard Blumenthal,
Attorney General of Connecticut, and
Jennifer C.
Jaff, Assistant Attorney General, joined by the Attorneys
General for their respective jurisdictions as follows:
Gale A.
Norton
361
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
The question presented is whether an injunction that places
restrictions on demonstrations outside abortion clinics violates
the First Amendment. We uphold the provisions imposing "fixed
bubble" or "fixed buffer zone" limitations, as hereinafter
described, but hold that the provisions imposing "floating bubble"
or "floating buffer zone" limitations violate the First
Amendment.
I
Respondents include three doctors and four medical clinics (two
of which are part of larger hospital complexes) in and around
Rochester and Buffalo in upstate New York. These health care
providers perform abortions and other medical services at their
facilities. The eighth respondent is ProChoice Network of Western
New York, a not-for-profit cor-
of Colorado,
Robert A. Butterworth of Florida,
Calvin
E. Holloway, Sr., of Guam,
Margery S.
Bronster of
Hawaii,
Pamela Carter of Indiana,
Carla J.
Stovall of Kansas, J.
Joseph Curran, Jr., of
Maryland,
Scott Harshbarger of Massachusetts,
Hubert H.
Humphrey III of Minnesota,
Deborah T. Poritz of New
Jersey,
Tom Udall of New Mexico,
Frankie Sue Del Papa
of Nevada,
Michael F.
Easley of North Carolina,
Theodore R. Kulongoski of Oregon,
Jeffrey L. Amestoy
of Vermont,
Christine O.
Gregoire of Washington, and
Darrell V. McGraw, Jr., of West Virginia; for the State of
New York by
Dennis C.
Vacco, Attorney General,
Victoria A. Graffeo, Solicitor General,
Barbara G.
Billet, Deputy Solicitor General, and
Robert A.
Forte, Assistant Attorney General; for the City of Phoenix,
Arizona, by
David A. Strauss, Roderick G.
McDougall,
and
Marvin A. Sondag; for the American Civil Liberties Union
et al. by
Steven R. Shapiro, Marjorie Heins, Elliot
Mincberg, and
Lois Waldman; for the American College of
Obstetricians and Gynecologists et al. by
Elaine Metlin, Laura
B. Feigin, Ann E. Allen, Roger K. Evans, and
Eve W Paul;
for the Feminist Majority Foundation et al. by
Talbot
D'Alemberte; and for the American Medical Women's Association
et al. by
Eve C.
Gartner.
Briefs of
amici curiae were filed for the American
Federation of Labor and Congress of Industrial Organizations by
Jonathan P. Hiatt, Marsha S.
Berzon, and
Laurence
Gold; and for the Life Legal Defense Foundation by
Anne
J.
Kindt.
362
362 SCHENCK
v. PRO-CHOICE NETWORK OF WESTERN N. Y.
poration dedicated to maintaining access to family planning and
abortion services.
On September 24, 1990, respondents filed a complaint in the
District Court for the Western District of New York against 50
individuals and 3 organizations-Operation Rescue, Project Rescue
Western New York, and Project Life of Rochester. The complaint
alleged that defendants had consistently engaged in illegal
blockades and other illegal conduct at facilities in the Western
District of New York where abortions were performed. (For
convenience, we refer to these facilities as "clinics" throughout.)
The complaint alleged one federal and six state causes of action:
conspiracy to deprive women seeking abortions or other family
planning services of the equal protection of the laws, in violation
of Rev. Stat. § 1980, 42 U. S. C. § 1985(3); discrimination against
and harassment of women seeking abortions and other family planning
services, in violation of N. Y. Civ. Rights Law § 40-c (McKinney
1992) and N. Y. Exec. Law § 296 (McKinney 1993); trespass; tortious
interference with business; tortious harassment; false
imprisonment; and intentional infliction of emotional harm. The
complaint alleged that a large blockade was planned for September
28, and requested that the court issue a temporary restraining
order (TRO) to stop it. The complaint also sought a permanent
injunction and damages.
Before the complaint was filed, the clinics were subjected to
numerous large-scale blockades in which protesters would march,
stand, kneel, sit, or lie in parking lot driveways and in doorways.
This conduct blocked or hindered cars from entering clinic parking
lots, and patients, doctors, nurses, and other clinic employees
from entering the clinics.
In addition to these large-scale blockades, smaller groups of
protesters consistently attempted to stop or disrupt clinic
operations. Protesters trespassed onto clinic parking lots and even
entered the clinics themselves. Those trespassers who remained
outside the clinics crowded around cars or
363
milled around doorways and driveway entrances in an effort to
block or hinder access to the clinics. Protesters sometimes threw
themselves on top of the hoods of cars or crowded around cars as
they attempted to turn into parking lot driveways. Other protesters
on clinic property handed literature and talked to people entering
the clinics-especially those women they believed were arriving to
have abortions-in an effort to persuade them that abortion was
immoral. Sometimes protesters used more aggressive techniques, with
varying levels of belligerence: getting very close to women
entering the clinics and shouting in their faces; surrounding,
crowding, and yelling at women entering the clinics; or jostling,
grabbing, pushing, and shoving women as they attempted to enter the
clinics. Male and female clinic volunteers who attempted to escort
patients past protesters into the clinics were sometimes elbowed,
grabbed, or spit on. Sometimes the escorts pushed back. Some
protesters remained in the doorways after the patients had entered
the clinics, blocking others from entering and exiting.
On the sidewalks outside the clinics, protesters called
"sidewalk counselors" used similar methods. Counselors would walk
alongside targeted women headed toward the clinics, handing them
literature and talking to them in an attempt to persuade them not
to get an abortion. Unfortunately, if the women continued toward
the clinics and did not respond positively to the counselors, such
peaceful efforts at persuasion often devolved into "in your face"
yelling, and sometimes into pushing, shoving, and grabbing. Men who
accompanied women attempting to enter the clinics often became
upset by the aggressive sidewalk counseling and sometimes had to be
restrained (not always successfully) from fighting with the
counselors.
The District Court found that the local police had been "unable
to respond effectively" to the protests, for a number of reasons:
the protests were constant, overwhelming police resources; when the
police arrived, the protesters simply dis-
364
364 SCHENCK
v. PRO-CHOICE NETWORK OF WESTERN N. Y.
persed and returned later; prosecution of arrested protesters
was difficult because patients were often reluctant to cooperate
for fear of making their identity public; and those who were
convicted were not deterred from returning to engage in unlawful
conduct. In addition, the court found that defendants harassed the
police officers verbally and by mail, including the deputy police
chief. Also harassed were people who testified against the
protesters and "those who invoke[d] legal process against" the
protesters. This, testified the deputy police chief, "made it more
difficult for him to do his job."
Pro-Choice Network of
Western N.
Y. v.
Project Rescue Western N.
Y., 799 F. Supp. 1417, 1426-1427 (WDNY 1992). See also id.,
at 1431 ("[T]here has been substantial uncontradicted evidence that
defendants' activities are intended, and do in fact, prevent and
hinder local police from protecting the right of women to choose to
have an abortion").
On September 27, 1990, three days after respondents filed their
complaint and one day before the scheduled large-scale blockade,
the District Court issued a TRO. The parties stipulated that the
TRO might remain in force until decision on respondents' motion for
a preliminary injunction. In pertinent part, the TRO enjoined
defendants from physically blockading the clinics, physically
abusing or tortiously harassing anyone entering or leaving the
clinics, and "demonstrating within 15 feet of any person" entering
or leaving the clinics. As an exception to this 15-foot "buffer
zone" around people, the TRO allowed two sidewalk counselors to
have "a conversation of a nonthreatening nature" with individuals
entering or leaving the clinic. If the individuals indicated that
they did not want the counseling, however, the counselors had to
"cease and desist" from counseling.1
1 Although the TRO (and the preliminary injunction) states that
the "cease and desist" provision is triggered whenever the
individual "wants to not have counseling," the District Court has
construed this provision to apply only if "the targeted person or
group of persons indicates, either
365
At first, defendants complied with the TRO, holding a peaceful
demonstration rather than the scheduled blockade. Subsequently,
they stipulated that "physical blockades" could be enjoined, and
they conducted no such blockades between the issuance of the TRO
and the issuance of the preliminary injunction 17 months later.
Defendants, however, continued to engage in protests that the
District Court labeled "constructive blockades," as well as
sidewalk counseling. Constructive blockades consisted of
"demonstrating and picketing around the entrances of the clinics,
and ... harassing patients and staff entering and leaving the
clinics."
Id., at 1424. This included many of the protest
elements described above, including attempts to intimidate or
impede cars from entering the parking lots, congregating in
driveway entrances, and crowding around, yelling at, grabbing,
pushing, and shoving people entering and leaving the clinics. The
purpose of constructive blockades was the same as physical
blockades: "to prevent or dissuade patients from entering the
clinic."
Ibid. Clinic volunteer escorts testified that the
protests were much quieter, calmer, and smaller during the first
month after the TRO issued, but that the protests returned to their
prior intensity thereafter, including aggressive sidewalk
counseling with occasional shoving and elbowing, trespassing into
clinic buildings to continue counseling of patients, and blocking
of doorways and driveways.
Alleging that Project Rescue and five individual defendants
(including petitioner Schenck) breached the TRO on five separate
occasions from late October 1990 through December 1990, respondents
sought four contempt citations. A fifth contempt citation for a
1991 incident was sought against petitioner Schenck and another
individual defendant. Throughout 1991 and into 1992, the District
Court held 27 days of hearings in these contempt proceedings, and
issued opinions
verbally or non-verbally, that they do not wish to be
counseled." 799 F. Supp., at 1434. See also
67
F.3d 377, 391 (CA2 1995) (same).
366
366 SCHENCK
v. PRO-CHOICE NETWORK OF WESTERN N. Y.
concluding that five of the six incidents justified a finding of
civil contempt.2
In February 1992, after hearing 12 additional days of testimony,
the District Court issued the injunction, parts of which are
challenged here. The relevant provisions are set forth in the
margin.3 Although the injunction largely
2 Respondents filed other contempt motions after the District
Court issued its preliminary injunction. Since we are only
concerned with the propriety of the injunction, we consider only
the evidence that was before the court when it issued the
injunction.
3 "[D]efendants, the officers, directors, agents, and
representatives of defendants, and all other persons whomsoever,
known or unknown, acting in their behalf or in concert with them,
and receiving actual or constructive notice of this Order, are:
"1. Enjoined and restrained in any manner or by any means
from:
"(a) trespassing on, sitting in, blocking, impeding, or
obstructing access to, ingress into or egress from any facility,
including, but not limited to, the parking lots, parking lot
entrances, driveways, and driveway entrances, at which abortions
are performed in the Western District of New York;
"(b) demonstrating within fifteen feet from either side or edge
of, or in front of, doorways or doorway entrances, parking lot
entrances, driveways and driveway entrances of such facilities, or
within fifteen feet of any person or vehicle seeking access to or
leaving such facilities, except that the form of demonstrating
known as sidewalk counseling by no more than two persons as
specified in paragraph (c) shall be allowed;
"(c) physically abusing, grabbing, touching, pushing, shoving,
or crowding persons entering or leaving, working at or using any
services at any facility at which abortions are performed;
provided, however, that sidewalk counseling consisting of a
conversation of a non-threatening nature by not more than two
people with each person or group of persons they are seeking to
counsel shall not be prohibited. Also provided that no one is
required to accept or listen to sidewalk counseling, and that if
anyone or any group of persons who is sought to be counseled wants
to not have counseling, wants to leave, or walk away, they shall
have the absolute right to do that, and in such event all persons
seeking to counsel that person or group of persons shall cease and
desist from such counseling, and shall thereafter be governed by
the provisions of paragraph (b) pertaining to not demonstrating
within fifteen feet of persons seeking access to or leaving a
facility. In addition, it is further provided that this right to
sidewalk counseling as defined herein shall not limit the right of
the Police Department to maintain public order or such reasonably
necessary
367
tracked the TRO, there were significant changes. First, while
the TRO banned "demonstrating ... within fifteen feet of any
person" entering or leaving the clinics, the injunction more
broadly banned "demonstrating within fifteen feet from either side
or edge of, or in front of, doorways or doorway entrances, parking
lot entrances, driveways and driveway entrances of such facilities"
(fixed buffer zones), or "within fifteen feet of any person or
vehicle seeking access to or leaving such facilities" (floating
buffer zones). In addition, the injunction clarified the "cease and
desist" provision, specifying that once sidewalk counselors who had
entered the buffer zones were required to "cease and desist" their
counseling, they had to retreat 15 feet from the people they had
been counseling and had to remain outside the boundaries of the
buffer zones.
In its opinion accompanying the preliminary injunction, the
District Court stated the relevant inquiry as whether respondents
had established (i) that they would be irreparably harmed if the
injunction was not granted and (ii) that they were likely to
succeed on the merits. The court held that the irreparable harm
requirement was met, because "those women denied unimpeded access
to [the clinics] cannot be compensated merely by money damages.
Injunctive relief alone can assure women unimpeded access to [the]
clinics."
Id., at 1428. The court also held that respondents
were likely to succeed on at least three of their claims. First,
relying on
New York State National Organization for
rules and regulations as they decide are necessary at each
particular demonstration site;
"(d) using any mechanical loudspeaker or sound amplification
device or making any excessively loud sound which injures,
disturbs, or endangers the health or safety of any patient or
employee of a health care facility at which abortions are
performed, nor shall any person make such sounds which interfere
with the rights of anyone not in violation of this Order;
"(e) attempting, or inducing, directing, aiding, or abetting in
any manner, others to take any of the actions described in
paragraphs (a) through (d) above." 799 F. Supp., at 1440-1441.
368
368 SCHENCK
v. PRO-CHOICE NETWORK OF WESTERN N. Y.
Women v.
Terry, 886 F.2d
1339 (CA2 1989), cert. denied, 495 U. S. 947 (1990), the court
held that women seeking abortions constituted a protected class
under 42 U. S. C. § 1985(3), and that their constitutional right to
travel between States and to choose to have an abortion was likely
infringed by defendants, in violation of § 1985(3). Second, the
court held that the same conduct that infringed this class of
women's constitutional rights under § 1985(3) "clearly violates N.
Y. Civ. Rights Law §40-C."4 799 F. Supp., at 1431. Finally, the
court held that in light of the "overwhelming evidence that
defendants have repeatedly trespassed upon [the clinics'] property
in the past and may continue to trespass in the future,"
respondents had shown a likelihood of success on their trespass
claim.
Id., at 1432. Having already found likelihood of
success on these claims, the court chose not to address
respondents' other four state-law claims.
Id., at 1432, n.
11.
4 Nevertheless, in explaining why respondents were likely to
succeed on this claim, the District Court used different language
to describe respondents' § 40-c claim than it had used to describe
respondents' § 1985(3) claim. Compare id., at 1431 (§ 40-c:
"defendants' conspiracy is intended to deprive women of their
constitutional rights to travel and to choose to have an abortion,
and subjects them to harassment when they seek to exercise those
rights"), with id., at 1430 (§ 1985(3): "[defendants are] engaging
in a conspiracy ... against a cognizable class of persons, with
invidious classbased animus[,] ... [they are] committing overt acts
in furtherance of the conspiracy[,] ... [and the] conspiracy
infringes two constitutional rights of women seeking abortions").
This was presumably to track the different language of § 40-c.
Compare N. Y. Civ. Rights Law § 40-c(2) (McKinney 1992) ("No person
shall, because of ... sex ... be subjected to any discrimination in
his civil rights, or to any harassment ... in the exercise thereof,
by any other person ... ") with 42 u. S. C. § 1985(3) ("If two or
more persons ... conspire ... for the purpose of depriving ... any
person ... of the equal protection of the laws ... [and] one or
more persons engaged therein do ... any act in furtherance of the
object of such conspiracy, whereby another is ... deprived of
having and exercising any right or privilege of a citizen of the
United States, the party so ... deprived may have an action for the
recovery of damages ... ").
369
In analyzing defendants' assertion that the injunction violated
their First Amendment right to free speech, the court applied our
standard "time, place, and manner analysis," asking whether the
speech restrictions in the injunction (i) were content neutral,
(ii) were narrowly tailored to serve a significant government
interest, and (iii) left open ample alternative channels for
communication of the information.
Id., at 1432 (citing
Frisby v.
Schultz, 487 U. S. 474, 481
(1988)). The court held that the injunction was content neutral
because "it merely restricts the volume, location, timing and
harassing and intimidating nature of defendants' expressive
speech." 799 F. Supp., at 1433. The court held that the injunction
served three significant governmental interestspublic safety,
ensuring that abortions are performed safely, and ensuring that a
woman's constitutional rights to travel interstate and to choose to
have an abortion were not sacrificed in the interest of defendants'
First Amendment rights.5
As to narrow tailoring, the court explained that the 15-foot
buffer zones "around entrances and ... around people and vehicles
seeking access ... are necessary to ensure that people and vehicles
seeking access to the clinics will not be impeded, and will be able
to determine readily where the entrances are located."
Id.,
at 1434. The court added that the buffer zones would also provide
the benefit of "prevent[ing] defendants from crowding patients and
invading their personal space."
Ibid. The court explained
the "cease and desist" provision-allowing two sidewalk counselors
inside the buffer zones but requiring them to "cease and desist"
their counseling if the counselee asked to be left alone-as
5 The court noted that although defendants had stipulated to the
entry of "an injunction against 'blocking or obstructing' access"
to the clinics and against trespassing on clinic property "for the
purpose of 'blocking or obstructing" access, the injunction's terms
were "more comprehensive" than the term "blocking or obstructing
access." A broader injunction was justified in this case, said the
court, because it was "better tailored to the evidence." 799 F.
Supp., at 1433.
370
370 SCHENCK
v. PRO-CHOICE NETWORK OF WESTERN N. Y.
"an exception" to the buffer zones and as "an attempt to
accommodate fully defendants' First Amendment rights."
Ibid.
The court held that this provision was "necessary in order to
protect the right of people approaching and entering the facilities
to be left alone."
Id., at 1435. Finally, the court held
that the injunction left open ample alternative channels for
communication, because defendants could still "picket, carry signs,
pray, sing or chant in full view of people going into the clinics."
Id., at 1437.
After the District Court issued its opinion, we held in
Bray v.
Alexandria Women's Health Clinic, 506 U. S. 263, 269
(1993), that "women seeking an abortion" were not a protected class
under 42 U. S. C. § 1985(3). In light of
Bray, the District
Court dismissed respondents' § 1985(3) claim, with leave to file an
amended § 1985(3) cause of action.
ProChoice Network of
Western N.
Y. v.
Project Rescue Western N. Y.,
828 F. Supp. 1018, 1025 (WDNY 1993). The court then decided to
exercise pendent jurisdiction over respondents' remaining causes of
action (the six state claims), regardless of the ultimate
disposition of the § 1985(3) claim. In so deciding, the court noted
that "the preliminary injunction is grounded not only on the §
1985(3) claim, but two state-law claims [the N. Y. Civ. Rights Law
§ 40-c claim and the trespass claim] as well."
Id., at 1026,
n. 4. The court explained that judicial economy, convenience, and
fairness all suggested that it keep the case, since it had expended
substantial resources on the case and its involvement in the case
was ongoing.
Id., at 1028-1029 (citing the contempt motions
filed by respondents in 1990 and 1991, criminal contempt charges
brought against six individuals for protests in 1992, and civil and
criminal contempt motions filed in 1993).
Petitioners, two individual defendants, appealed to the Court of
Appeals for the Second Circuit. While the case was on appeal, we
decided
Madsen v.
Women's Health Center, Inc.,
512 U. S. 753
(1994), a case which also involved the effect of an injunction on
the expressive activities of anti-
371
abortion protesters. (We discuss
Madsen in greater depth
in Part II-A,
infra.) We held that "our standard time,
place, and manner analysis is not sufficiently rigorous" when it
comes to evaluating content-neutral
injunctions that
restrict speech. The test instead, we held, is "whether the
challenged provisions of the injunction burden no more speech than
necessary to serve a significant government interest." 512 U. S.,
at 765.
Applying
Madsen, a panel of the Court of Appeals reversed
the District Court in a split decision.
67 F.3d
359 (1994). The Court of Appeals then heard the case en banc,
and affirmed the District Court by a divided vote.
67 F.3d
377 (1995). Each of two opinions garnered a majority of the
court. Judge Oakes' lead opinion, joined by eight other judges,
affirmed for reasons that closely track the reasoning of the
District Court.
Id., at 388-392. A concurring opinion by
Judge Winter, joined by nine other judges, affirmed primarily on
the ground that the protesters' expressive activities were not
protected by the First Amendment at all, and because the District
Court's injunction was a "reasonable response" to the protesters'
conduct.
Id., at 396, 398. We granted certiorari. 516 U. S.
1170 (1996).
II A
Petitioners challenge three aspects of the injunction: (i) the
floating 15-foot buffer zones around people and vehicles seeking
access to the clinics; (ii) the fixed 15-foot buffer zones around
the clinic doorways, driveways, and parking lot entrances; and
(iii) the "cease and desist" provision that forces sidewalk
counselors who are inside the buffer zones to retreat 15 feet from
the person being counseled once the person indicates a desire not
to be counseled. Because
Madsen bears many similarities to
this case and because many of the parties' arguments depend on the
application of
Madsen here, we review our determination in
that case.
372
372 SCHENCK
v. PRO-CHOICE NETWORK OF WESTERN N. Y.
A Florida state court had issued a permanent injunction
enjoining specified organizations and individuals from blocking or
interfering with clinic access and from physically abusing people
entering or leaving the clinic. Six months after the injunction
issued, the court found that protesters still impeded access by
demonstrating on the street and in the driveways, and that sidewalk
counselors approached entering vehicles in an effort to hand
literature to the occupants. In the face of this evidence, the
court issued a broader injunction that enjoined the defendant
protesters from" 'physically abusing, grabbing, intimidating,
harassing, touching, pushing, shoving, crowding or assaulting'"
anyone entering or leaving the clinic; from" 'congregating,
picketing, patrolling, demonstrating or entering that portion of
public rightof-way or private property within [36] feet of the
property line of the Clinic'''; from approaching anyone "'seeking
the services of the Clinic'" who is within 300 feet of the clinic,
unless the person "'indicates a desire to communicate'''; and from
making any noise or displaying any image which could be heard or
seen inside the clinic. 512 U. S., at 759-760.
After determining that the injunction was not a prior restraint
and was content neutral, id., at 762-764, we held that the proper
test for evaluating content-neutral injunctions under the First
Amendment was "whether the challenged provisions of the injunction
burden no more speech than necessary to serve a significant
government interest," id., at 765. The Florida Supreme Court had
concluded that the injunction was based on a number of governmental
interests: protecting a woman's freedom to seek pregnancy-related
services, ensuring public safety and order, promoting the free flow
of traffic on streets and sidewalks, protecting property rights,
and protecting the medical privacy of patients whose psychological
and physical well-being were threatened as they were held "captive"
by medical circumstance.
Id., at 767-768. We held that the
combination of these interests was "quite sufficient to justify an
appropriately tailored in-
373
junction" to protect unimpeded access to the clinic by way of
public streets and sidewalks.
Id., at 768.
We held that some of the injunction's provisions burdened more
speech than necessary to serve these interests, and that others did
not. We upheld the 36-foot buffer zone as applied to the street,
sidewalks, and driveways "as a way of ensuring access to the
clinic." We explained that the trial court had few other options to
protect access to the clinic:
Allowing protesters to remain on the sidewalks and in the clinic
driveway was not a valid option because of their past conduct, and
allowing them to stand in the street was obviously impractical. In
addition, we stated that "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."
Id., at 769-770 (citing
Milk Wagon Drivers v.
Meadowmoor Dairies, Inc., 312 U. S. 287, 294
(1941)).
We struck down the 300-foot no-approach zone around the
clinic, however, stating that it was difficult
"to justify a prohibition on all uninvited approaches ...
regardless of how peaceful the contact may be .... 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. [312,322 (1988)] (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." 512 U. S., at 774.
374
374 SCHENCK
v. PRO-CHOICE NETWORK OF WESTERN N. Y.
We now apply
Madsen to the challenged provisions of the
injunction and ask whether they burden more speech than necessary
to serve a significant governmental interest.6
B
Petitioners first argue that there are no significant
governmental interests that support the injunction. The argument
goes as follows: Of the seven causes of action in respondents'
complaint, the only one left standing after the District Court's
most recent opinion is respondents' trespass claim; a trespass
cause of action can support an injunction banning trespass, but
nothing else; thus, the injunction's provisions banning
"demonstrating" within 15 feet of people, cars, and entrances are
overbroad.
First, this argument is factually incorrect. The trespass claim
is not the only one left standing at this point. In its opinion
issuing the preliminary injunction, the District Court held that
the conduct that satisfied the elements of a § 1985(3) claim under
federal law also satisfied the elements of a § 40-c claim under
state law. After our decision in
Bray, the District Court
dismissed respondents' § 1985(3) claim. Petitioners argue that in
doing so, the District Court necessarily and implicitly dismissed
the § 40-c claim as well, since the two claims were based on the
same conduct. But our opinion in
Bray did not attempt to
construe any statute other than § 1985(3). And the fact that
certain conduct does not state a claim under § 1985(3) does not
necessarily mean that the same conduct does not state a claim under
a state
6 Petitioners argue that the injunction is an unlawful prior
restraint and that the standard we set out in
Madsen is
therefore inapplicable. Because we rejected this argument in
Madsen and because petitioners make no effort to distinguish
Madsen on this ground, we reject it again. As in
Madsen, alternative channels of communication were left open
to the protesters, and "the injunction was issued not because of
the content of [the protesters'] expression, ... but because of
their prior unlawful conduct."
Madsen, 512 U. S., at 764, n.
2.
375
law that uses the same or similar language as § 1985(3), since
state courts may of course choose to construe their own law more
broadly (or more narrowly) than its federal counterpart. In any
event, the language of the two statutes is noticeably different.
See n. 4,
supra. Thus, the dismissal of the § 1985(3) claim
in light of
Bray did not also act as a dismissal of
respondents' § 40-c claim. This is confirmed by the District
Court's comment in its
post-Bray opinion that "the
preliminary injunction is grounded not only on the § 1985(3) claim,
but two state-law claims as well." 828 F. Supp., at 1026, n. 4.
Although petitioners contend that the § 40-c cause of action is
no longer valid simply because the § 1985(3) claim is no longer
valid, an argument we reject, they do not contend that the District
Court erred in concluding as an independent matter that respondents
were likely to succeed on their § 40-c and trespass claims. See
Brief for Petitioners 32. The injunction's terms are clearly
crafted to remedy these violations.
An injunction tailored to respondents' claims for relief may
nonetheless violate the First Amendment. In making their First
Amendment challenge, petitioners focus solely on the interests
asserted by respondents in their complaint. But in assessing a
First Amendment challenge, a court looks not only at the private
claims asserted in the complaint, but also inquires into the
governmental interests that are protected by the injunction, which
may include an interest in public safety and order.
Madsen,
512 U. S., at 767-768;
Milk Wagon Drivers, supra, at
294-295. Both the injunction in
Madsen and the injunction
here are supported by this governmental interest. In
Madsen,
it was permissible to move protesters off the sidewalk and to the
other side of the street in part because other options would block
the free flow of traffic on the streets and sidewalks. 512 U. S.,
at 767-768. Here, the District Court cited public safety as one of
the interests justifying the injunction-certainly a reasonable
376
376 SCHENCK
v. PRO-CHOICE NETWORK OF WESTERN N. Y.
conclusion, if only because of the dangerous situation created
by the interaction between cars and protesters and because of the
fights that threatened to (and sometimes did) develop. Even though
the governmental interest in public safety is clearly a valid
interest here, as it was in
Madsen, plaintiffs in neither
case pleaded a claim for "threat to public safety." Indeed, this
would be a strange concept, since a plaintiff customarily alleges
violations of private rights, while "public safety" expresses a
public right enforced by the government through its criminal laws
and otherwise. Thus, the fact that "threat to public safety" is not
listed anywhere in respondents' complaint as a claim does not
preclude a court from relying on the significant governmental
interest in public safety in assessing petitioners' First Amendment
argument.7
Given the factual similarity between this case and
Madsen, we conclude that the governmental interests
underlying the injunction in
Madsen-ensuring public safety
and order, promoting the free flow of traffic on streets and
sidewalks, protecting property rights, and protecting a woman's
freedom to seek pregnancy-related services,s ibid.-also underlie
the injunction here, and in combination are certainly significant
enough to justify an appropriately tailored injunction to secure
unimpeded physical access to the clinics.
7 JUSTICE SCALIA in dissent contends that the District Court's
reliance on "public safety" was not permissible because only the
government may seek an injunction based on that factor. But the
District Court's reliance on this factor was not to use it as an
element which supported respondents' claim for an injunction.
Rather, the court used this factor as a basis for rejecting
petitioners' challenge to the injunction on First Amendment
grounds.
8We need not decide whether the governmental interest in
protecting the medical privacy and well-being of patients "held
'captive' by medical circumstance"-at issue in
Madsen-is
implicated here. That interest was relevant in
Madsen
because patients
while inside the clinic heard the chanting
and shouting of the protesters and suffered increased health risks
as a result. See id., at 772. Here, although the District Court
found that the loud voices of sidewalk counselors could be heard
inside the clinic, petitioners do not challenge the injunction's
ban on excessive noise.
377
c
We strike down the floating buffer zones around people entering
and leaving the clinics because they burden more speech than is
necessary to serve the relevant governmental interests. The
floating buffer zones prevent defendantsexcept for two sidewalk
counselors, while they are tolerated by the targeted
individual-from communicating a message from a normal
conversational distance or handing leaflets to people entering or
leaving the clinics who are walking on the public sidewalks. This
is a broad prohibition, both because of the type of speech that is
restricted and the nature of the location. Leafletting and
commenting on matters of public concern are classic forms of speech
that lie at the heart of the First Amendment, and speech in public
areas is at its most protected on public sidewalks, a prototypical
example of a traditional public forum. See,
e. g., Boos v.
Barry, 485 U. S. 312, 322 (1988);
United States v.
Grace, 461 U.
S. 171, 180 (1983). On the other hand, we have before us a
record that shows physically abusive conduct, harassment of the
police that hampered law enforcement, and the tendency of even
peaceful conversations to devolve into aggressive and sometimes
violent conduct. In some situations, a record of abusive conduct
makes a prohibition on classic speech in limited parts of a public
sidewalk permissible. See,
e. g., Part II-D,
infra;
Madsen, supra, at 769-770. We need not decide whether the
governmental interests involved would ever justify some sort of
zone of separation between individuals entering the clinics and
protesters, measured by the distance between the two. We hold here
that because this broad prohibition on speech "floats," it cannot
be sustained on this record.
Since the buffer zone floats, protesters on the public sidewalks
who wish (i) to communicate their message to an incoming or
outgoing patient or clinic employee and (ii) to remain as close as
possible (while maintaining an acceptable conversational distance)
to this individual, must move as the
378
378 SCHENCK
v. PRO-CHOICE NETWORK OF WESTERN N. Y.
individual moves, maintaining 15 feet of separation. But this
would be difficult to accomplish at, for instance, the GYN
Womenservices clinic in Buffalo, one of the respondent clinics. The
sidewalk outside the clinic is 17 -feet wide. This means that
protesters who wish to walk alongside an individual entering or
leaving the clinic are pushed into the street, unless the
individual walks a straight line on the outer edges of the
sidewalk. Protesters could presumably walk 15 feet behind the
individual, or 15 feet in front of the individual while walking
backwards. But they are then faced with the problem of watching out
for other individuals entering or leaving the clinic who are
heading the opposite way from the individual they have targeted.
With clinic escorts leaving the clinic to pick up incoming patients
and entering the clinic to drop them off, it would be quite
difficult for a protester who wishes to engage in peaceful
expressive activities to know how to remain in compliance with the
injunction.9 This lack of certainty leads to a substantial risk
that much more speech will be burdened than the injunction by its
terms prohibits. That is, attempts to stand 15 feet from someone
entering or leaving a clinic and to communicate a message-certainly
protected on the face of the injunction-will be hazardous if one
wishes to remain in compliance with the injunction.10 Since there
may well be other
9We suspect that these floating buffer zones would also be quite
difficult for a district court to enforce. Contempt proceedings
would likely focus on whether protesters who thought they were
keeping pace with the targeted individual from a distance of 15
feet actually strayed to within 14 or 13 feet of the individual for
a certain period of time.
10 Significantly, the District Judge himself expressed this same
concern at the September 27 TRO hearing, stating his understanding
that a "moving" buffer zone would be quite infeasible.
Nevertheless, the terms of the TRO and the injunction provide
exactly that, and the District Court never authoritatively put a
limiting construction on the injunction.
JUSTICE BREYER in dissent places great stress on the District
Court's statement at this September 27 hearing, and concludes that
the District
379
ways to both effect such separation and yet provide certainty
(so that speech protected by the injunction's terms is not
burdened), we conclude that the floating buffer zones burden more
speech than necessary to serve the relevant governmental interests.
Because we strike down the floating buffer zones, we do not address
the constitutionality of the "cease and desist" provision that
allows sidewalk counselors within those buffer zones.
Court never understood the TRO, or even the injunction, to
contain floating buffer zones. We believe JUSTICE BREYER misreads
the record.
First, despite the District Court's statements at the September
27 hearing, the court held petitioner Schenck and one other
defendant in contempt for violating paragraph l(a) of the TRO,
because they came within 15 feet of an individual attempting to
enter the clinic even though they were more than 15 feet from any
doorway or driveway entrance to the clinic. See
Pro-Choice
Network of Western N. Y. v.
Project Rescue Western N.
Y., No. 90-CV-1004A (WDNY, Sept. 28,1992), pp. 7-8, 20-21 (doctor
parked several hundred feet from clinic and then attempted to walk
on sidewalk toward clinic; contemnors followed doctor the length of
the sidewalk, yelling at him from a distance of only a few feet, up
until the point where doctor was 10 to 20 feet from clinic driveway
entrance; court held that this conduct violates the TRO's
"proscription against demonstrating within fifteen feet of any
person seeking access to a clinic"). Thus, we conclude that the
District Court read the TRO the wayan ordinary person would-to
create a floating buffer zone.
Second, the District Court's opinion accompanying the issuance
of the preliminary injunction shows that the court interpreted the
injunction to contain floating buffer zones. The court described
paragraph (b) of the injunction as "setting
dual 'clear
zones' of fifteen feet around entrances
and fifteen feet around
people and vehicles seeking access." 799 F. Supp., at 1434
(emphasis added). And the injunction by its terms bans
"demonstrating" within 15 feet of clinic entrances
"or
within fifteen feet of any person or vehicle seeking access to [the
clinic]." (Emphasis added.)
Finally, we note that no judge of the en banc Court of Appeals
expressed doubt that the injunction included floating buffer zones,
cf. 67 F. 3d, at 389, n. 4 (discussing "how far from a clinic a
floating buffer zone may reach," not, as JUSTICE BREYER suggests,
whether the injunction creates floating buffer zones at all), and
that none of the parties before us has suggested that the
injunction does not provide for such zones.
380
380 SCHENCK
v. PRO-CHOICE NETWORK OF WESTERN N. Y.
We likewise strike down the floating buffer zones around
vehicles. Nothing in the record or the District Court's opinion
contradicts the commonsense notion that a more limited
injunction-which keeps protesters away from driveways and parking
lot entrances (as the fixed buffer zones do) and off the streets,
for instance-would be sufficient to ensure that drivers are not
confused about how to enter the clinic and are able to gain access
to its driveways and parking lots safely and easily. In contrast,
the 15-foot floating buffer zones would restrict the speech of
those who simply line the sidewalk or curb in an effort to chant,
shout, or hold signs peacefully. We therefore conclude that the
floating buffer zones around vehicles burden more speech than
necessary to serve the relevant governmental interests.
D
We uphold the fixed buffer zones around the doorways, driveways,
and driveway entrances. These buffer zones are necessary to ensure
that people and vehicles trying to enter or exit the clinic
property or clinic parking lots can do so. As in
Madsen, the
record shows that protesters purposefully or effectively blocked or
hindered people from entering and exiting the clinic doorways, from
driving up to and away from clinic entrances, and from driving in
and out of clinic parking lots. Based on this conduct-both before
and after the TRO issued-the District Court was entitled to
conclude that the only way to ensure access was to move back the
demonstrations away from the driveways and parking lot entrances.
Similarly, sidewalk counselors-both before and after the
TRO-followed and crowded people right up to the doorways of the
clinics (and sometimes beyond) and then tended to stay in the
doorways, shouting at the individuals who had managed to get
inside. In addition, as the District Court found, defendants'
harassment of the local police made it far from certain that the
police would be able to quickly and effectively counteract
protesters who blocked doorways
381
or threatened the safety of entering patients and employees.
Based on this conduct, the District Court was entitled to conclude
that protesters who were allowed close to the entrances would
continue right up to the entrance, and that the only way to ensure
access was to move all protesters away from the doorways.ll
Although one might quibble about whether 15 feet is too great or
too small a distance if the goal is to ensure access, we defer to
the District Court's reasonable assessment of the number of feet
necessary to keep the entrances clear. See
Madsen, 512 U.
S., at 769-770 ("[S]ome 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").
Petitioners claim that unchallenged provisions of the injunction
are sufficient to ensure this access, pointing to the bans on
trespassing, excessive noise, and "blocking, impeding or
obstructing access to" the clinics. They claim that in light of
these provisions, the only effect of a ban on "demonstrating"
within the fixed buffer zone is "a ban on peaceful, nonobstructive
demonstrations on public sidewalks or rights of way." Brief for
Petitioners 47. This argument, however, ignores the record in this
case. Based on defendants' past conduct, the District Court was
entitled to conclude that some of the defendants who were allowed
within 5 to 10 feet
11 The fact that the injunction allows two sidewalk counselors
into the fixed buffer zones-subject to the "cease and desist"
provision-does not detract from this conclusion. It is clear from
the District Court's opinion that its decision to allow two
sidewalk counselors inside the buffer zones was an effort to bend
over backwards to "accommodate" defendants' speech rights. See 799
F. Supp., at 1434. Because the District Court was entitled to
conclude on this record that the only feasible way to shield
individuals within the fixed buffer zone from unprotected
conduct-especially with law enforcement efforts hampered by
defendants' harassment of the police-would have been to keep the
entire area clear of defendant protesters, the District Court's
extra effort to enhance defendants' speech rights by allowing an
exception to the fixed buffer zone should not redound to the
detriment of respondents.
382
382 SCHENCK
v. PRO-CHOICE NETWORK OF WESTERN N. Y.
of clinic entrances would not merely engage in stationary,
nonobstructive demonstrations but would continue to do what they
had done before: aggressively follow and crowd individuals right up
to the clinic door and then refuse to move, or purposefully mill
around parking lot entrances in an effort to impede or block the
progress of cars. And because defendants' harassment of police
hampered the ability of the police to respond quickly to a problem,
a prophylactic measure was even more appropriate. Cf.
Burson
v.
Freeman, 504 U. S. 191, 206-207
(1992) (upholding 100-foot "nocampaign zone" around polling places:
"Intimidation and interference laws fall short of serving a State's
compelling interests because they 'deal with only the most blatant
and specific attempts' to impede elections. Moreover, because law
enforcement officers generally are barred [under state law] from
the vicinity of the polls to avoid any appearance of coercion in
the electoral process, many acts of interference would go
undetected. These undetected or less than blatant acts may
nonetheless drive the voter away before remedial action can be
taken" (citations omitted)). The ban on "blocking, impeding, and
obstructing access" was therefore insufficient by itself to solve
the problem, and the fixed buffer zone was a necessary restriction
on defendants' demonstrations.
Petitioners also argue that under
Madsen, the fixed
buffer zones are invalid because the District Court could not
impose a "speech-restrictive" injunction (or TRO) without first
trying a "non-speech-restrictive" injunction, as the trial court
did in
Madsen. But in
Madsen we simply stated that
the failure of an initial injunction "to accomplish its purpose may
be taken into consideration" in determining the constitutionality
of a later injunction. 512 U. S., at 770. The fact that the
District Court's TRO included a "speech-restrictive" provision
certainly does not mean that the subsequent injunction is
automatically invalid. Since we can uphold the
383
injunction under the
Madsen standard without this
"consideration" being present, petitioners' argument fails.
Finally, petitioners make several arguments that may be quickly
refuted. They argue that, unlike
Madsen, there is "no
extraordinary record of pervasive lawlessness," Brief for
Petitioners 45, and that the buffer zones are therefore
unnecessary. As explained above, our review of the record convinces
us that defendants' conduct was indeed extraordinary, and that
based on this conduct the District Court was entitled to conclude
that keeping defendants away from the entrances was necessary to
ensure access. Petitioners also argue that the term "demonstrating"
is vague. When the injunction is read as a whole, see
Grayned v.
City of Rockford, 408 U. S. 104, 110
(1972), we believe that people "of ordinary intelligence" (and
certainly defendants, whose demonstrations led to this litigation
in the first place) have been given "a reasonable opportunity to
know what is prohibited," id., at 108.
Petitioners also contend that the "cease and desist" provision
which limits the exception for sidewalk counselors in connection
with the fixed buffer zone is contrary to the First Amendment. We
doubt that the District Court's reason for including that
provision-"to protect the right of the people approaching and
entering the facilities to be left alone"accurately reflects our
First Amendment jurisprudence in this area.
Madsen sustained
an injunction designed to secure physical access to the clinic, but
not on the basis of any generalized right "to be left alone" on a
public street or sidewalk. As we said in
Madsen, quoting
from
Boos v.
Barry, 485 U. S., at 322, "'[a]s 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.'" 512 U. S., at 774. But as earlier noted,
the entire exception for sidewalk counselors was an effort to
en-
384
384 SCHENCK
v. PRO-CHOICE NETWORK OF WESTERN N. Y.
hance petitioners' speech rights, see n. 11,
supra, and
the "cease and desist" limitation must be assessed in that
light.12
Petitioners and some of their
amici attack the "cease and
desist" provision accompanying the exception for sidewalk
counselors as content based, because it allows a clinic patient to
terminate a protester's right to speak based on, among other
reasons, the patient's disagreement with the message being
conveyed. But in
Madsen we held that the injunction in that
case was not content based, even though it was directed only at
abortion protesters, because it was only abortion protesters who
had done the acts which were being enjoined. Here, the District
Court found that "[m]any of the
12 Although petitioners argue that our disapproval of the
300-foot noapproach zone in
Madsen requires disapproval of
the "cease and desist" provision,
Madsen is easily
distinguishable on this point, since the noapproach zone was eight
times broader than the "buffer zone" deemed necessary to ensure
access to the clinic in
Madsen.
JUSTICE SCALIA in dissent suggests that our failure to endorse
the District Court's reason for including the "cease and desist"
provision requires us to reverse the District Court's decision
setting the injunction's terms. This suggestion is inconsistent
with our precedents. See,
e. g., Rutan v.
Republican
Party of Ill., 497
U. S. 62, 76 (1990) ("[A]lthough we affirm the Seventh
Circuit's judgment ... , we do not adopt the Seventh Circuit's
reasoning");
Smith v.
Phillips, 455 U. S. 209, 215, n. 6
(1982) ("Respondent may, of course, defend the judgment below on
any ground which the law and the record permit, provided the
asserted ground would not expand the relief which has been
granted");
SEC v.
Chenery Corp., 318 U. S. 80, 88 (1943)
("[W]e do not disturb the settled rule that, in reviewing the
decision of a lower court, it must be affirmed if the result is
correct 'although the lower court relied upon a wrong ground or
gave a wrong reason'" (quoting
Helvering v.
Gowran,
302 U. S. 238,
245 (1937));
Langnes v.
Green, 282 U. S. 531, 536-537
(1931) ("[T]he entire record is before this court with power to
review the action of the court of appeals and direct such
disposition of the case as that court might have done upon the writ
of error sued out for the review of the [district] court");
Williams v.
Norris, 12 Wheat. 117, 120 (1827)
(Marshall, C. J.) ("If the judgment [of the lower court] should be
correct, although the reasoning, by which the mind of the Judge was
conducted to it, should be deemed unsound, that judgment would
certainly be affirmed in [this] Court").
385
'sidewalk counselors' and other defendants ha[d] been arrested
on more than one occasion for harassment, yet persist in harassing
and intimidating patients, patient escorts and medical staff." 799
F. Supp., at 1425. These counselors remain free to espouse their
message outside the 15- foot buffer zone, and the condition on
their freedom to espouse it within the buffer zone is the result of
their own previous harassment and intimidation of patients.13
***
The judgment of the Court of Appeals is affirmed in part and
reversed in part, and the case is remanded for further proceedings
consistent with this opinion.
It is so ordered.
JUSTICE SCALIA, with whom JUSTICE KENNEDY and JUSTICE THOMAS
join, concurring in part and dissenting in part.
Instead of evaluating the injunction before us on the basis of
the reasons for which it was issued, the Court today postulates
other reasons that might have justified it and pronounces those
never-determined reasons adequate. This is contrary to the settled
practice governing appellate review of injunctions, and indeed of
all actions committed by law to the initial factfinding, predictive
and policy judgment of an entity other than the appellate court,
see,
e. g., SEC v.
Chenery Corp., 318 U. S. 80 (1943). The
Court's opinion also claims for the judiciary a prerogative I have
never heard of: the power to render decrees that are in its view
justified by concerns for public safety, though not justified by
the need
13 The defendants, including the two petitioners, stipulated
before the District Court that "[i]f [the District Court] concludes
that some or all of the relief requested by plaintiffs should be
granted on a preliminary injunctive basis, defendants will consent
to the entry of such an injunction against each and every one of
them." App. to Pet. for Cert. A-136.
386
386 SCHENCK
v. PRO-CHOICE NETWORK OF WESTERN N. Y.
Opinion of SCALIA, J.
to remedy the grievance that is the subject of the lawsuit. I
dissent.
I
The most important holding in today's opinion is tucked away in
the seeming detail of the "cease-and-desist" discussion in the
penultimate paragraph of analysis: There is no right to be free of
unwelcome speech on the public streets while seeking entrance to or
exit from abortion clinics.
Ante, at 383-384. "As we said in
Madsen [v.
Women's Health Center, Inc., 512 U. S. 753 (1994)],
quoting from
Boos v.
Barry, 485 U. S., at 322, '[a]s
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.'"
Ante, at 383 (internal quotation
marks omitted). But the District Court in this case (like the Court
of Appeals) believed that there
was such a right to be free
of unwanted speech, and the validity of the District Court's action
here under review cannot be assessed without taking that belief
into account. That erroneous view of what constituted remediable
harm shaped the District Court's injunction, and it is impossible
to reverse on this central point yet maintain that the District
Court framed its injunction to burden "no more speech than
necessary,"
Madsen v.
Women's Health Center, Inc.,
512 U. S. 753,
765 (1994), to protect
legitimate governmental
interests.
The District Court justified the "fixed buffer" provision of the
injunction on two separate grounds, each apparently tied to a
different feature of the provision. First, the court said, the
fixed buffer zone was "necessary to ensure that people ... seeking
access to the clinics will not be impeded."
ProChoice Network of
Western New York v.
Project Rescue Western New York, 799
F. Supp. 1417, 1434 (WDNY 1992). And second, "the 'clear zones'
will prevent defendants from crowding patients and invading their
personal space."
Ibid. Thus, the fixed buffer had a dual
purpose: In order to prevent
387
physical obstruction of access, it excluded crowds of protesters
from a 15-foot zone around clinic entrances, while permitting two
nonobstructive "sidewalk counselors" to enter that zone. (Allowing
a small number of protesters is a common practice in picketing
injunctions,
e. g., Mine Workers v.
Bagwell, 512 U. S. 821, 823
(1994), and of course a required practice when no more than that is
necessary, see
Madsen, supra, at 765.) And the second
purpose of the fixed buffer provision, the purpose that justified
the requirement that even the two nonobstructive sidewalk
counselors "cease and desist" if the "targeted person" did not wish
to hear them, was to assure "personal space" on the public
streets-or, as the District Court described it in the next
paragraph of its order, "to protect the right of people approaching
and entering the facilities to be left alone." 799 F. Supp., at
1435.
The terms of the injunction's cease-and-desist provision make no
attempt to conceal the fact that the supposed right to be left
alone, and not the right of unobstructed access to clinics, was the
basis for the provision:
"[NJo one is required to accept or listen to sidewalk
counseling, and ... if anyone or any group of persons who is
sought to be counseled wants not to have counseling, wants
to leave, or walk away, they shall have the absolute right to do
that, and in such event all persons seeking to counsel that person
or group of persons shall cease and desist from such counseling,
and shall thereafter be governed by the provisions of [the
injunction] pertaining to not demonstrating within fifteen feet of
persons seeking access to or leaving a facility." Id., at
1440 (preliminary injunction, paragraph l(c)) (emphasis added).
It is difficult to imagine a provision more dependent upon the
right to be free of unwanted speech that today's opinion rejects as
applied to public streets. The District Court's
388
388 SCHENCK
v. PRO-CHOICE NETWORK OF WESTERN N. Y.
Opinion of SCALIA, J.
own explanation of the provision makes that dependency even more
starkly clear:
"Th[e] 'cease and desist' provision is necessary in order to
protect the right of people approaching and entering the facilities
to be left alone.
" ... [Defendants] argue that, because their 'sidewalk
counseling' occurs on a public sidewalk, they cannot be forced to
cease communicating their message just because their audience may
be unwilling to hear it. The Court, however, rejects this
argument.
" ... The evidence adduced at the hearings clearly shows that,
even when women seeking access to the clinics signal their desire
to be left alone, defendants continue to follow right alongside
them and persist in communicating their message. [W]omen
seeking access to plaintiffs' facilities cannot, as a practical
matter, escape defendants' message ....
" ... [T]he ... 'cease and desist' provision advances the values
of the marketplace of ideas by permitting listeners to exercise
their autonomy to make their own determinations among competing
ideas. Once a women seeking access to one of the clinics has
made a determination not to listen to defendants' message,
defendants must respect her choice." Id., at 1435-1436
(emphasis added).
II
The District Court thought the supposed "right to be left alone"
central enough to its order to devote two full pages in the federal
reports to the subject,
ibid., and both majority opinions of
the Court of Appeals discussed it
in extenso, 67 F. 3d 377,
391-393 (CA2 1995); id., at 395-397. The magic of today's opinion
for this Court is that it renders this essential element of the
injunction that was issued irrelevant by the simple device of
approving instead an injunction that the
389
District Court (in the exercise of its discretion) chose
not to issue-viz., an absolute ban on all protesters within
the 15-foot zone.
Ante, at 381, n. 11.
The Court asserts (in carefully selected words) that "the
District Court
was entitled to conclude that the only way to
ensure access was to move back the demonstrations."
Ante, at
380 (emphasis added). And again: "[T]he District Court
was
entitled to conclude on this record that the only feasible way
to shield individuals within the fixed buffer zone from unprotected
conduct ... would have been to keep the entire area clear of
defendant protesters."
Ante, at 381, n. 11 (emphasis added).
And (lest the guarded terminology be thought accidental), yet a
third time: "Based on [the defendants'] conduct, the District Court
was entitled to conclude ... that the only way to ensure
access was to move
all protesters away from the doorways."
Ante, at 381 (first emphasis added; second in original). But
prior to the question whether it
was entitled to conclude
that is the question whether it
did conclude that. We
are not in the business (or never used to be) of making up
conclusions that the trial court
could permissibly have
reached on questions involving assessments of fact, credibility,
and future conduct-and then affirming on the basis of those posited
conclusions, whether the trial court
infact arrived at them
or not.1 That is so even in ordinary cases, but it is doubly true
when we review a trial court's order imposing a prior restraint
upon speech. As we said in
NAACP v.
Claiborne Hardware
Co., 458 U. S.
886 (1982), when a court decides to impose a speech-restrictive
injunction, the conclusions it reaches must be "supported by
findings that adequately disclose the[ir]
1 The Court's lengthy citation of cases standing for the
proposition that an appellate court can affirm on a mandatory legal
ground different from that relied upon by the trial court, ante, at
384, n. 12, has no relevance to the question whether an appellate
court can substitute its own assessments of past facts, of future
probabilities, and hence of injunctive necessities, for the
assessments made (and required to be made) by the trial court.
390
390 SCHENCK
v. PRO-CHOICE NETWORK OF WESTERN N. Y.
Opinion of SCALIA, J.
evidentiary basis ... , that carefully identify the impact of
[the defendants'] unlawful conduct, and that recognize the
importance of avoiding the imposition of punishment for
constitutionally protected activity."
Id., at 933-934.
The Court candidly concedes that the nonexistent "right to be
left alone" underlay the District Court's imposition of the
cease-and-desist provision.
Ante, at 383. It appears not to
grasp, however, the decisive import of this concession-which is
that the District Court did not think it necessary to exclude
all demonstrators from the buffer zone as a means of
preventing physical obstruction of clinic entrances or other
violations of law (other than the faux violation of intruding upon
the speech targets' "private space"). Thus, the Court's statements
about what "the District Court was entitled to conclude" are not
only speculative (which is fatal enough) but positively contrary to
the record of what the District Court
did conclude-which was
that permitting a few demonstrators within the buffer zone was
perfectly acceptable, except when it would infringe the clinic
employees' and patrons' right to be free of unwanted speech on
public streets. In fact, the District Court expressly stated that
if
in the future it found that a complete ban on speech
within the buffer zone
were necessary, it would impose one.
799
I do not grasp the relevance of the Court's assertions that
admitting the two counselors into the buffer zone was "an effort to
enhance petitioners' speech rights,"
ante, at 383384, "an
effort to bend over backwards to 'accommodate' defendants' speech
rights,"
ante, at 381, n. 11, and that "the 'cease and
desist' limitation must be assessed in that light,"
ante, at
384. If our First Amendment jurisprudence has stood for anything,
it is that courts have
an obligation "to enhance speech
rights," and
a duty "to bend over backwards to 'accommodate'
speech rights." That principle was reaffirmed in
Madsen,
which requires that a judicial injunction against speech burden "no
more speech than
necessary to
391
serve a
significant government interest." 512 U. S., at
765 (emphasis added). Thus, if the situation confronting the
District Court
permitted "accommodation" of petitioners'
speech rights, it
demanded it. The Court's effort to
recharacterize this responsibility of special care imposed by the
First Amendment as some sort of judicial gratuity is perhaps the
most alarming concept in an opinion that contains much to be
alarmed about.
III
I disagree with the Court's facile rejection of the argument
that no cause of action was properly found to support the present
injunction. Petitioners contend that the only cause of action which
could conceivably support the injunction is a trespass claim; but
that cannot support the restrictions at issue, which are designed,
as the District Court stated, to prevent obstruction of access and
the invasion of "personal space," 799 F. Supp., at 1434, rather
than to prevent trespass.
The Court responds by pointing out that the case contains a
nontrespass claim under N. Y. Civ. Rights Law § 40-c(2) (McKinney
1992), which provides that "[n]o person shall, because of ... sex
... be subjected to any discrimination in his civil rights, or to
any harassment ... in the exercise thereof, by any other person."
That is true enough, but it seems to me clear that that imaginative
state-law claim cannot support a preliminary injunction because it
does not have a probability of success on the merits. See llA C.
Wright, A. Miller, & M. Kane, Federal Practice and Procedure §
2948.3 (2d ed. 1995). It is, to put it mildly, far from apparent
that seeking to prevent both men and women from aborting both male
and female human fetuses constitutes discrimination on the basis of
sex. Moreover, the reasoning which led the District Court to
conclude otherwise has been specifically rejected by this Court.
The District Court wrote: "Having demonstrated a likelihood of
success on the merits of their federal § 1985(3) claim, plaintiffs
have also, by definition,
392
392 SCHENCK
v. PRO-CHOICE NETWORK OF WESTERN N. Y.
Opinion of SCALIA, J.
demonstrated a likelihood of success on their claim under N. Y.
Civ. Rights Law § 40-c." 799 F. Supp., at 1431. Subsequently,
however, this Court's opinion in
Bray v.
Alexandria
Women's Health Clinic, 506 U. S. 263, 269-273
(1993), held that claims of the sort at issue here do
not
constitute discrimination on the basis of sex under 42 U. S. C. §
1985(3). Since there is also, as far as I have been able to
determine, no decision by any New York court saying that they
constitute sex discrimination under § 40-c, there is no basis on
which the District Court could have concluded (or this Court could
affirm) that the chance of success on this claim was anything other
than a long shot.2
The Court proceeds from there to make a much more significant
point: An injunction on speech may be upheld even if not justified
on the basis of the interests asserted by the plaintiff, as long as
it serves "public safety." "[I]n assessing a First Amendment
challenge, a court ... inquires into the governmental interests
that are protected by the injunction, which may include an interest
in public safety and order .... Here, the District Court cited
public safety as one of the interests justifying the injunction
.... [T]he fact that 'threat to public safety' is not listed
anywhere in respondents' complaint as a claim does not preclude a
court from relying on the significant governmental interest in
public safety in assessing petitioners' First Amendment argument."
Ante, at 375-376.
This is a wonderful expansion of judicial power. Rather than
courts' being limited to according relief justified by the
2 The Court contends that petitioners only raise the issue
whether the § 40-c cause of action is "valid," and not the issue
whether the District Court erred in concluding that the claim was
"likely to succeed."
Ante, at 375. The concept of an invalid
claim that is likely to succeed is an interesting one, but there is
no doubt that petitioners did not entertain it:
They plainly challenged "[t]he district court's ruling that
respondents were likely to prevail on their state
antidiscrimination claim." Brief for Petitioners 32; see also id.,
at 15.
393
complaints brought before them, the Court today announces that a
complaint gives them, in addition, ancillary power to decree what
may be necessary to protect-not the plaintiff, but
the public
interest! Every private suit makes the district judge a sort of
one-man Committee of Public Safety. There is no precedent for this
novel and dangerous proposition. In
Madsen, the Court says,
"it was permissible to move protesters off the sidewalk and to the
other side of the street in part because other options would block
the free flow of traffic on the streets and sidewalks."
Ante, at 375; see also
Madsen, 512 U. S., at 769. But
acknowledging, as we did in
Madsen, that some remedial
options are eliminated because they conflict with considerations of
public safety is entirely different from asserting, as the Court
does today, that public safety can provide part of the
justification for the remedy.3 The only other case cited by
the Court is
Milk Wagon Drivers v.
Meadowmoor Dairies,
Inc., 312 U. S.
287, 294-295 (1941).
Ante, at 375. But
Milk Wagon
Drivers upheld an injunction against a union's intimidation of
storekeepers, not because "the public interest" demanded it, but
because the storekeepers were customers of the plaintiff dairy,
which it was the purpose and effect of the intimidation to harm.
312 U. S., at 294-295.
We have in our state and federal systems a specific entity
charged with responsibility for initiating action to guard the
public safety. It is called the Executive Branch. When the public
safety is threatened, that branch is empowered, by invoking
judicial action and by other means, to provide protection. But the
Judicial Branch has hitherto been thought powerless to act except
as invited by someone other than itself. That is one of the reasons
it was thought to be "the least dangerous to the political rights
of the [C]onstitu-
3
Madsen also refers to "public safety" as one of the
government interests on which the state court relied in justifying
the challenged injunction, 512 U. S., at 768, but nothing in our
decision approved or relied upon that feature of the state court's
approach.
394
394 SCHENCK
v. PRO-CHOICE NETWORK OF WESTERN N. Y.
Opinion of SCALIA, J.
tion"-because it "can take no active resolution whatever" and
"may truly be said to have neither FORCE nor WILL, but merely
judgment." The Federalist No. 78, p. 396 (M. Beloff ed. 1987). It
is contrary to the most fundamental principles of separation of
powers for the District Court to decree measures that would
eliminate obstruction of traffic, in a lawsuit which has
established nothing more than trespass.4
***
Today's OpInIOn makes a destructive inroad upon First Amendment
law in holding that the validity of an injunction against speech is
to be determined by an appellate court on the basis of what the
issuing court might reasonably have found as to necessity, rather
than on the basis of what it in fact found. And it makes a
destructive inroad upon the separation of powers in holding that an
injunction may contain measures justified by the public interest
apart from remediation of the legal wrong that is the subject of
the complaint. Insofar as the first point is concerned, the Court
might properly have upheld the fixed buffer zone without the
cease-and-desist provision, since the District Court evidently did
conclude (with proper factual support, in my view) that limiting
the protesters to two was necessary to prevent repe-
4 The Court approves reliance on "public safety" not "as an
element which supported respondents' claim for an injunction," but
only "as a basis for rejecting petitioners' challenge to the
injunction on First Amendment grounds."
Ante, at 376, n. 7.
Such a distinction makes no sense. In the context before us here,
whether there is "a basis for rejecting petitioners' challenge to
the injunction on First Amendment grounds" depends entirely on
whether the "element[s] which suppor[t] the respondents' claim for
an injunction" are strong enough. The issues are one and the
same.
Any injunction must be justified by the elements that
support it. The involvement of First Amendment rights does not
alter that rule, but merely increases the degree of justification
required. Of course, illogical or not, by simply saying so, the
Court can limit its novel "public safety" rationale to injunctions
involving the freedom of speech. But I would hardly consider that a
small and unimportant area for the newly created judicial
Committees of Public Safety to control.
395
tition of the obstruction of access that had occurred in the
past. But even that more limited injunction would be invalidated by
the second point: the fact that no cause of action related to
obstruction of access was properly found to support the injunction.
Accordingly, I join Parts I, II-A, and II-C, but dissent from the
Court's judgment upholding the fixed buffer zone, and would reverse
the decision of the Court of Appeals in its entirety.
JUSTICE BREYER, concurring in part and dissenting in part.
Words take on meaning from context. Considered in context, the
preliminary injunction's language does not necessarily create the
kind of "floating bubble" that leads the Court to find the
injunction unconstitutionally broad. See Part II-C,
ante.
And until quite recently, no one thought that it did. The "floating
bubble" controversy apparently arose during oral argument before
the en banc Court of Appeals. The Court of Appeals then gave the
District Judge, who has ongoing responsibility for administering
the injunction, an initial opportunity to consider the petitioners'
claim and, if necessary, to clarify or limit the relevant language.
67 F.3d
377, 389, n. 4 (CA2 1995) (en banc). The Court of Appeals'
response, in my view, is both legally proper and sensible. I
therefore would affirm its judgment.
The preliminary injunction's key language prohibits
demonstrating "within fifteen feet of any person or vehicle seeking
access to or leaving such facilities." This language first appeared
in the temporary restraining order (TRO), where it defined the
precise scope of the order's prohibition against blocking "ingress
into or egress from" facilities. That portion of the TRO enjoined
the defendants from
"trespassing on, sitting in, blocking, impeding or obstructing
access to, ingress into or egress from any facility at which
abortions are performed in the Western District of New York,
including demonstrating within
396
396 SCHENCK
v. PRO-CHOICE NETWORK OF WESTERN N. Y.
Opinion of BREYER, J.
15 feet of any person seeking access to or leaving such
facilities .... " App. 23 (emphasis added).
Before the District Court issued the TRO, Reverend Schenck asked
whether this language would create a floating bubble. The District
Court replied:
"THE COURT: I don't think that was the intent .... [W]e're
talking about ... free access .... It's not a moving 15 feet.
"REV: SCHENCK: So in other words, you're speaking of the
facility itself?
"THE COURT: I think that's what we were talking about .... We're
talking fifteen feet from [e. g., a doorway] to go right out to
where ever you're going .... [M]y gosh, you would never be able ...
to deal with that if it was a moving length.
"It's fifteen feet from the entrance .... [Y]ou have to apply
common sense ... and [an interpretation of the language creating a
moving zone] would not in any way at all be a fair interpretation
of what we're talking about.
"REV: SCHENCK: Well, I'm glad you pointed that out ... [T]here
is, I think, a very high degree of ambiguity ... and no one ...
said what we're talking about here is 15 feet from an
entranceway.
"THE COURT: I think everyone is clear on that now."
App. to Reply Brief for Petitioners A-2 to A-3.
The identical key language (with the added words "or vehicle")
then found its way into the preliminary injunction, issued 16
months later, where its presence apparently remained subject to the
"no-float" understanding that the District Court had called
"clear." The preliminary injunction simply separated the key
language from the words that had immediately preceded it in the TRO
(the "trespassing on, sitting in, blocking ... ingress into or
egress from" lan-
397
guage) and it added a phrase that more specifically described
the fixed zone as
"fifteen feet from either side or edge of, or in front of,
doorways or doorway entrances, parking lot entrances, driveways and
driveway entrances .... "
There is little reason to believe that the District Court, in
relettering the paragraphs or inserting this new phrase, thereby
intended to give the key language a significantly different meaning
or a new purpose other than its original purpose of narrowing
through specification the broader "blocking ... ingress" language,
now appearing a little earlier on in the injunction. The District
Court's reference, in an accompanying opinion, to "dual 'clear
zones' of fifteen feet around entrances and fifteen feet around
people and vehicles seeking access," see
ante, at 379, n.
10, by itself (and it is by itself) shows little, if anything, more
than a "bubble" that surrounds an individual within or just beyond
a fixed zone. In all other respects, given the presence of a new
additional narrowing phrase-the phrase that speaks of,
e.
g., "fifteen feet from either side" -the key language at issue here
would simply have become redundant.
The District Court's and the parties' subsequent words and deeds
suggest that the key language has had no significant independent
injunctive life. The contempt motions and orders under the TRO, for
example, refer to violations of a fixed 15-foot zone from entrances
(though in one instance, after counsel repeated the District
Court's "no moving zone" clarification (quoted
supra, at
396), Record, Doc. No. 232, pp. 276-279, the court found that a
"totality" of the defendant's conduct, which involved serious
obstruction within "10 to 20 feet" of an entrance, violated two
provisions of the TRO including the key language. See
ante,
at 379, n. 10; Record, Doc. No. 263, pp. 6, 8). The contempt
motions and orders, however, say nothing about violations of a
bubble floating outside the fixed entrance zones-though the facts
suggest
398
398 SCHENCK
v. PRO-CHOICE NETWORK OF WESTERN N. Y.
Opinion of BREYER, J.
that the contemnors would have violated such floating zones had
the TRO called them into existence. Nor is there anything in the
many District Court filings in respect to the preliminary
injunction that suggests an intent to create a floating bubble of
the sort contemplated by this Court. The diagrams that plaintiffs
submitted to clarify the injunction's scope contain no reference to
a floating zone. Rather, they are marked to indicate 15-foot fixed
buffer zones from entrances to clinic property. See Appendix B,
infra.
In fact, at oral argument before the appeals court panel,
counsel for the petitioners confirmed that the injunction's bubble
did not "float" in the way contemplated by this Court. At that time
an appeals court judge asked counsel (for the demonstrators)
whether the 15-foot zone would apply after "someone leaves the
abortion clinic and goes to a grocery store," perhaps "three miles
away," and counsel replied as follows:
"COUNSEL: I don't think that would [be] prohibit[ed] [by] the
court's order. I think the court's order provides for a 15-foot
setback or bubble zone around the clinic property ....
"APPEALS COURT: Well, my question is to what extent can you ...
'leave' and still be subject to this injunction?
"COUNSEL: Maybe I just didn't see the full implications of the
injunction, but I never considered that beyond the 15-foot bubble
zone there would be this same restriction. Even I'm not arguing
that the injunction goes that far. Maybe I just didn't see that but
I didn't interpret it that way."
Not surprisingly, the appeals court's panel opinion did not
mention floating bubbles. Nor did the parties mention the matter in
subsequent District Court proceedings related to modifying or
restoring the injunction-proceedings that took
399
place after the Court of Appeals' panel decision invalidating
the injunction, but before the Court of Appeals heard the case en
banc and reversed. At the latter time, apparently for the first
time, the parties agreed that the injunction's language produced a
zone that moved in some way or another.
Given this posture, it is not surprising that the en banc Court
of Appeals did not deny the existence of a floating bubble zone,
but left the initial resolution of the floating bubble controversy
to the District Court. The Court of Appeals addressed the parties'
argument regarding what the court termed a "floating buffer"-an
issue that had never been raised before-by holding that the
"floating buffer" was permissible, 67 F. 3d, at 389, on the
assumption that the District Court would apply it in a
constitutional manner, id., at 389, n. 4. Thus, the Court of
Appeals did not definitively interpret the scope of the relevant
language, but instead left it to the District Court to resolve in
the first instance any linguistic ambiguity that might create a
constitutional problem.
In my view, this action by the Court of Appeals was appropriate,
and this Court should do the same. Appellate courts do not normally
consider claims that have not been raised first in the District
Court.
Singleton v.
Wulff, 428 U. S. 106, 120 (1976)
(citing
Hormel v.
Helvering, 312 U. S. 552, 556
(1941)). There is no good reason to depart from this ordinary
principle here. The District Court understands the history, and
thus the meaning, of the language in context better than do we. If
the petitioners show a need for interpretation or modification of
the language, the District Court, which is directly familiar with
the facts underlying the injunction, can respond quickly and
flexibly. An appellate decision is not immediately necessary
because the key language in the injunction has not yet created, nor
does it threaten to create, any significant practical difficulty.
No defendant in
400
400 SCHENCK
v. PRO-CHOICE NETWORK OF WESTERN N. Y.
Opinion of BREYER, J.
this case has been threatened with contempt for violating the
ostensible floating bubble provision. Nor is there any realistic
reason to believe that the provision will deter the exercise of
constitutionally protected speech rights.
I recognize that the District Court, interpreting or
reinterpreting the key language, might find that it creates some
kind of bubble that "floats," perhaps in the way I mention above.
See
supra, at 397. But even then, the constitutional
validity of its interpretation would depend upon the specific
interpretation that the court then gave and the potentially
justifying facts. Some bubbles that "float" in time or space would
seem to raise no constitutional difficulty. For example, a 15-foot
buffer zone that is "fixed" in place around a doorway but that is
activated only when a clinic patient is present can be said to
"float" in time or, to a small degree, in space. See Appendix B,
infra, Diagram 1 (Point X). Another example of a possibly
constitutional "floating" bubble would be one that protects a
patient who alights from a vehicle at the curbside in front of the
Buffalo GYN Womenservices clinic and must cross the two-foot
stretch of sidewalk that is outside the 15-foot fixed buffer. See
Appendix B,
infra, Diagram 2 (Point Y). Other bubbles, such
as a bubble that follows a clinic patient to a grocery store three
miles away, apparently are of no interest to anyone in this case. A
floating bubble that follows a patient who is walking along the
sidewalk just in front of a clinic, but outside the 15-foot fixed
zone, could raise a constitutional problem. See Appendix B,
infra, Diagram 3 (Point Z). But the constitutional validity
of that kind of bubble should depend upon the particular clinic and
the particular circumstances to which the District Court would
point in justification. The Court of Appeals wisely recognized that
these matters should be left in the first instance to the
consideration of the District Court.
In sum, ordinary principles of judicial administration would
permit the District Court to deal with the petitioners' current
objection. These principles counsel against this
401
Court's now offering its own interpretation of the injunction-an
interpretation that is not obvious from the language and that has
never been considered by the District Court. I do not see how the
Court's review of the key language, in the absence of special need
and in violation of those principles, can make the lower courts'
difficult, ongoing, circumstance-specific task any easier. To the
contrary, district judges cannot assure in advance, without the
benefit of argument by the parties, that the language of complex,
fact-based injunctions is free of every ambiguity that later
interpretation or misinterpretation finds possible. And I see no
special need here for the Court to make an apparently general
statement about the law of "floating bubbles," which later
developments may show to have been unnecessary or unwise.
Hence, I join all but Part II -C of the Court's opinion. I would
affirm the judgment of the Court of Appeals in its entirety.
APPENDIX A TO OPINION OF BREYER, J.
"TEMPORARY RESTRAINING ORDER
"Upon hearing ... it is hereby
"ORDERED THAT Defendants, the officers, directors, agents, and
representatives of defendants, and all other persons whomsoever,
known or unknown, acting in their behalf or in concert with them,
and receiving actual notice of this Order, are:
"1. Temporarily enjoined and restrained in any manner or by any
means from:
"(a) trespassing on, sitting in, blocking, impeding or
obstructing access to, ingress into or egress from any facility at
which abortions are performed in the Western District of New York,
including demonstrating within 15
feet of any person
seeking access to or leaving such facilities, except that
sidewalk counseling by no more than two persons as specified in
paragraph (b) shall be allowed;
402
402 SCHENCK
v. PRO-CHOICE NETWORK OF WESTERN N. Y.
Appendix A to opinion of BREYER, J.
"(b) physically abusing or tortiously harassing persons entering
or leaving, working at or using any services at any facility at
which abortions are performed; Provided, however, that sidewalk
counseling, consisting of a conversation of a nonthreatening nature
by not more than two people with each person they are seeking to
counsel shall not be prohibited. Also provided that no one is
required to accept or listen to sidewalk counseling and that if
anyone who wants to, or who is sought to be counseled who wants to
not have counseling, wants to leave, or walk away, they shall have
the absolute right to do that, and in such event the persons
seeking to counsel that person shall cease and desist from such
counseling of that person. In addition, provided that this right to
sidewalk counseling as defined herein shall not limit the right of
the Police Department to maintain public order or reasonably
necessary rules and regulations as they decide are necessary at
each particular demonstration site;
"(c) making any excessively loud sound which disturbs, injures,
or endangers the health or safety of any patient or employee of a
health care facility where abortions are performed in the Western
District of New York, nor shall any person make such sounds which
interferes with the rights of anyone not in violation of this
Order; ...
" ... and it is further
"ORDERED that nothing in this Order shall be construed to limit
Project Rescue participants' exercise of their legitimate First
Amendment rights .... " App. 22-26 (emphasis added).
"PRELIMINARY INJUNCTION
"Upon consideration of the evidence introduced at a hearing ...
it is hereby
"ORDERED that defendants, the officers, directors, agents, and
representatives of defendants, and all other persons whomsoever,
known or unknown, acting in their behalf or in concert with them,
and receiving actual or constructive notice of this Order, are:
403
"11. Enjoined and restrained in any manner or by any means
from:
"(a) trespassing on, sitting in, blocking, impeding, or
obstructing access to, ingress into or egress from any facility,
including, but not limited to, the parking lots, parking lot
entrances, driveways, and driveway entrances, at which abortions
are performed in the Western District of New York;
"(b) demonstrating within fifteen feet from either side or edge
of, or in front of, doorways or doorway entrances, parking lot
entrances, driveways and driveway entrances of such facilities, or
within fifteen feet of any person or vehicle seeking access to or
leaving such facilities, except that the form of demonstrating
known as sidewalk counseling by no more than two persons as
specified in paragraph (c) shall be allowed;
"(c) physically abusing, grabbing, touching, pushing, shoving,
or crowding persons entering or leaving, working at or using any
services at any facility at which abortions are performed;
provided, however, that sidewalk counseling consisting of a
conversation of a non-threatening nature by not more than two
people with each person or group of persons they are seeking to
counsel shall not be prohibited. Also provided that no one is
required to accept or listen to sidewalk counseling, and that if
anyone or any group of persons who is sought to be counseled wants
to not have counseling, wants to leave, or walk away, they shall
have the absolute right to do that, and in such event all persons
seeking to counsel that person or group of persons shall cease and
desist from such counseling, and shall thereafter be governed by
the provisions of paragraph (b) pertaining to not demonstrating
within fifteen feet of persons seeking access to or leaving a
facility. In addition, it is further provided that this right to
sidewalk counseling as defined herein shall not limit the right of
the Police Department to maintain public order or
404
404 SCHENCK
v. PRO-CHOICE NETWORK OF WESTERN N. Y.
Appendix A to opinion of BREYER, J.
such reasonably necessary rules and regulations as they decide
are necessary at each particular demonstration site;
"(d) using any mechanical loudspeaker or sound amplification
device or making any excessively loud sound which injures,
disturbs, or endangers the health or safety of any patient or
employee of a health care facility at which abortions are
performed, nor shall any person make such sounds which interfere
with the rights of anyone not in violation of this Order;
" ... and it is further
"ORDERED that nothing in this Order shall be construed to limit
defendants and those acting in concert with them from exercising
their legitimate First Amendment rights " 799 F. Supp., at
1440-1441.
405
Appendix B to opinion of BREYER, J.
APPENDIX B TO OPINION OF BREYER, J.
Diagram 1
Alexander Women's Group 220 Alexander Street, Ste. 300
Rochester, NY 14607
(part of Genesee Hospital Complex)
406
406 SCHENCK
v. PRO-CHOICE NETWORK OF WESTERN N. Y.
Appendix B to opinion of BREYER, J.
APPENDIX B TO OPINION OF BREYER, J.
Diagram 2
Buffalo GYN Womenservices 1241 Main Street Buffalo, NY 14607
407
Appendix B to opinion of BREYER, J,
APPENDIX B TO OPINION OF BREYER, J.
Diagram 3
The Family Medicine Center 885 South Ave.
Rochester, NY 14620
(part of Highland Hospital complex)
Comments
Be the first to comment
Leave a Comment