Bering v. Share

(1985). however, Here, because of the trial 693 P.2d 81 controlling Gates as the case and misapplication court's establishing information criminal because of the dearth of cause determi- activity afoot, probable was the trial court's presented by The evidence the State nation reversed. White, v. 97 Wn.2d 640 P.2d this case is excluded. State 87, 258 P. 1030 (1982); Buckley, State v. 145 Wash. (1927). exception faith" should be argues "good

The State Leon, States v. applied pursuant to United not, 104 S. Ct. 3405 We need how- ever, As the Court observed "good reach the faith" issue. Leon, with "a substantial provided must be magistrate probable basis for the existence of cause." determining Leon, Gates, Illinois v. (citing at 915 (1983)). Here, the affidavit in L. Ed. 2d cause was no more than a "bare support probable information, Quality bones" affidavit and was invalid. probable cause. The quantity, not is what establishes conviction is reversed. defendant's

Utter, Brachtenbach, Dore, Pearson, Andersen, Cal- JJ., concur. low, Goodloe, J., concurs the result.

Durham, En Banc. June 51533-6. 1986.]

[No. Respondents, Share, Bering, al, C. et Stacie Appellants. al, et O'Shaughnessy, Camp for Kevin and W. Russell Van appellants. respondents. Jeffry Stiley Finer, K. K.

Patrick Hanley, LaBeck, I. Derr, Monica B. J. Sara Mark appellants. amici curiae for

Nancy Marilyn on behalf of Endriss Hawkins and Center, curiae. Law amici Northwest Women's Exploited Gary Abor- Women A. Preble on behalf of tion, amicus curiae. Phillips of the E. Lobsenz on behalf and James

John W. Union, amici curiae. American Civil Liberties Shoichet, and Fred Diamond- Varón, Janet Franklin W. Lawyers Guild, amici stone on behalf of the National curiae. judicial is more difficult than bal- J. No task

Pearson, rights ancing of citizens of and freedoms the constitutional country conflicting rights against of their and freedoms this recognize accepting task, In this delicate we fellow citizens. a the constitutions of be few absolutes under there can people. country boasting a diverse of such state magnificence have con- under which we of the documents flexibility governance accommo- in their sented to lies lifestyles governed. conflicting views and date the flexibility. arbiter, such we cherish our role presents principal appeal issues constitutional This two rights. conflicting First, requiring accommodation injunction, permanent place, whether ordering to refrain antiabortion directly abortions clinic which in front of a medical pro- speech performed, free or federal either state violates perma- in a Second, a content restriction whether tections? picketers' enjoining injunction, the words oral use of nent either state derivatives, violates "kill", "murder", and their one limited speech protections? Subject or federal free in the follows, questions answer both qualification we does not negative, permanent injunction holding that state or fed- under the picketers' speech rights violate free eral constitutions. McCarthy, Pamela Sil- Michael

Respondent physicians medicine offices verstein, Bering practice and Stacie at W. 508 Building Medical located the Sixth Avenue Avenue, situated at the corner Washington, Sixth Spokane, Respondent See illustration. of Sixth and Stevens Avenues. of the Medical partner/owner general Howard Johnson a tall, with a is nine stories Building The Medical Building. door, a rear door. The entrance, a side single public winter, stairway handi- and its blocks side door is locked visitors. capped in the build- offices are located

Over two dozen medical ori- including family of services range a wide ing, offering care, laboratory care, prenatal pediatrics,- ented health medicine, outpatient sur- internal procedures, geriatrics, coun- dentistry, psychological counseling, loss gery, weight and elective abortions. seling, Share, an informal members December abortion, picketing and began

organization opposed At Building. in front of the Medical "counseling" sidewalk not members times, picketers who were other antiabortion Build- at the Medical placards of Share were with present a morn- Fridays, on generally occurred ing. Picketing and an picketers, or 3 usually consisting ing group many as 8 to 13. group afternoon for their became concerned respondent physicians between face-to-face encounters patients' following welfare Spokane suit in Respondents filed patients. order. temporary restraining a County, part requesting temporary a the trial court issued On March order, March superseded which was restraining entered The court daylong hearing. show cause following 22, 1985. on March permanent There was substantial conflict between the witnesses' testimony hearing. Respondents' at the show evi- cause eyewitness testimony; live included dence numerous affida- patients, nurses, vits Building;1 and visitors to the Medical photographs picketers

and dozens of at affidavits were hearing 1 Numerous filed at the show cause on March with RCW in accordance 7.40.060. until These affidavits were held presentment, they on March at clerk's time were filed with (1) episodes detailed The evidence site. picket (2) staff, the sidewalk patrolling and patients grabbing (4) (3) sidewalk, patients blocking causing groups, ice at times was covered with the lawn —which cut across (5) who snow, patients threatening screaming and (6) literature, their patients or accusing take refused to (7) babies, that she telling patient one killing doctors (8) doctors, interfering seeing particular hell for go to would respira- patients to see their parents bringing young with in advanced interfering patients tory allergist, pregnancy. stages picket- and a nurse testified

Respondent physicians woman pregnant ill patients, placing interfered with ers medical danger, in acute from toxemia possibly suffering preg- a wanted miscarrying who was delaying patient had to force This last heavily. patient nancy bleeding reach her in order to picketers group her way through nurse and wheelchair. from please refrain picketers to

A nurse asked pediatric his office because McCarthy's young patients Dr. bothering picketers The services. provide abortion-related did not to In building. the addition out" of the nurse to "move told that picketers showed the evidence activity, their sidewalk offices, even physicians' and Building, entered the Medical their views on abortion. to advocate live the order, court considered its the trial issuing affidavits, diagrams, from both all testimony parties, in arrayed depicting picketers numerous photographs and Building. in front of the Medical along the sidewalk groups findings and evidence, issued its Based on this the court injunction. permanent (1) over jurisdiction had court found that: it

The (2) them- matter; positioned picketers parties subject and stamped. Appellants' after request entered to exclude evidence office and date apply and the to counsel cannot to the affidavits made available March stamp hearing, notwithstanding March dаte show cause their before specifically before all the affidavits stated that it considered The court 1985. reaching decision. its Sixth Avenue and at along sidewalks public on the selves (3) entrance; walkway picketers to the main had only and staff visitors at the Medical passage obstructed (4) had picketing physicians caused the and Building; distress, created a emotional substantial risk patients harm, mental and "counseling" and had been physical to enter or upon persons attempting prem- forced leave the (5) ises; had been in picketing conducted an aggressive, manner, and coercive in disorderly, instances rise gave (6) present danger patients; a clear and to picketing had incompatible conducted a manner been with the charac- (7) function of the Medical Building; picketers ter and referred to repeatedly physicians had practicing as killers or Building Medical murderers in the presence of children. young (1) resulting injunction prohibits or

picketing, demonstrating, "counseling" at the Medical except Building, along public sidewalk north of the bus (2) Avenue; on Stevens stop threatening, assaulting, intimi- coercing anyone or dating entering or leaving Medical (3) Building; interfering with ingress or at the build- egress parking or lots to the ing south or southeast prem- of the (4) ises; (5) trespassing premises; on the any engaging activity at respondent unlawful directed physicians or their patients; referring, oral statements while at site, picket physicians patients, staff, or or clients as "murderers", or "murdering" "killing" "killers"; or or to "killed" being children or babies by any- "murdered" Building. one the Medical

Subsequent entry permanent injunction, court found contin- counseling activities the Medical Building ued at violation of the court order. contempt On June court entered an order of Fuhrman, Dyke, Steven against Richard Van Scalf, Derby. and Alfred The findings regarding Daniel state by of court these contempt specifically individuals violated 1 paragraph that the contemnors of the March 1 is a Paragraph geographic 1985 order. limitation. the court also assessed of attorney On June fees $1,200 of $7,000 against and costs Grace Gerl and Teresa of the Lindley contempt permanent for their injunction. the order imposed regarding The court fees and costs as a contempts by repeated of Grace Gerl Teresa result and Lindley. The trial court found contemnors and Gerl "knowingly intentionally Lindley had violated the permanent injunction" on [geographic restriction] least seven occasions between order's issuance and the contempt of Based original proceeding. date on these the trial court issued its findings, impose order to coercive upon Lindley. fines confinement contemnors Gerl and appellants' request to review these granted join We of appeal permanent injunction with the order orders entirety. case dispose of the its

I Evidentiary Support Injunction for find assigns many Share of the trial court's error evi argues lacks permanent of fact and ings in the dentiary Washington, findings record. support by substantial evidence will not disturbed supported fact Orchards, Inc., 54 Hesperian Thorndike appeal. (1959). Substantial evidence Wn.2d P.2d if sufficient quantity the record contains evidence of exists fair-minded, of the truth person rational persuade 185-86, Snyder, In re 85 Wn.2d premise. the declared P.2d findings, the trial court's sharply disputes Share findings substitute its this should argues its trial court because trial court based those Although photographs. on affidavits and findings part find trial court's this court is not bound necessarily evidence, solely written or ings upon graphic when based (1980), the Rowe, State v. 93 Wn.2d 609 P.2d tes live case considered considerable trial court in this also Accordingly, hearing. cause timony daylong show during Rowe, does supra, in State v. enunciated because the rule

221 findings must affirm if this court the trial court's apply, not by substantial evidence. supported a full record, which includes reviewing the entire After affidavits, approxi- testimony, live numerous of day evidence we substantial 100 conclude mately photographs, findings. the trial court's support exists II Place Restriction A. Federal Constitution trial violated First argues picketers' Share that imposing a by issuing injunction Amendment an rights picketers' injunc- The upon activities. place of limited to the sidewalk north public tion of intersection stop bench at the northwest corner bus According of Stevens and Sixth Avenues. See illustration. restric- Share, place restriction is not a reasonable this tion, First picketers' and thus violates the Amendment free speech rights. shall provides "Congress

The First Amendment freedom ..." speech make no law . . . abridging are fun- peaceable assembly of free rights speech and inter- rights against are State safeguarded damental by Fourteenth process ference the due clause 353, 364, 81 Jonge Oregon, De v. L. Amendment. (1937). 278, perma- Ed. 57 Ct. 255 The issuance of S. State action. nent the trial court constitutes 17, 1161, Kraemer, 1, 92 L. Ed. 68 Shelley See v. Labor (1948); 3 A.L.R.2d 441 American Fed'n S. Ct. (1941). Swing, 312 85 61 S. 568 v. U.S. L. Ed. Ct. Thus, by the protection Share is entitled to the afforded Amendment. First matter, peaceful picketing leafletting general

As a the First expressive "speech” protected by activities Grace, States Amendment. United v. U.S. (1983). Furthermore, рlaces 2d

L. Ed. expressive historically with the free exercise associated sidewalks, activities, are considered such as streets and Grace, at 177. In such the First "public places, forums". curtails sharply government's ability Amendment permissibly expressive restrict conduct. "the First not guar

Nevertheless Amendment does antee the to communicate one's views at all times and any or in places manner be desired." Heffron Consciousness, Inc., International Krishna Soc'y A time, may impose state reasonable and manner written, upon expression, restrictions all whether oral or Clark v. symbolized by Community conduct. Creative Non-Violence, 288, 221, 227, L. 104 S. (1984). Such are if they Ct. 3065 restrictions2 valid "are content-neutral, narrowly tailored to serve a significant interest, government open ample and leave alternative Grace, of (quoting Perry channels communication." at 177 Ass'n, 37, Educ. Ass'n v. Local Educators' Perry 460 U.S. (1983). 45, 794, 74 L. Ed. 2d 103 S. Ct. 948 Neutrality 1. Content " time, Heffron, major As stated criterion for valid [a] 'may place, and manner restriction is ‍​​​​‌​​‌​​​​‌‌​​‌​‌‌‌​‌‌‌​​​​‌‌​‌‌​‌‌​‌‌​‌‌‌​​‌​‍that the restriction upon subject based matter of not be either the content Consolidated speech.'" Heffron, (quoting 452 U.S. at 648 536, Comm'n, L. Edison Co. v. Public Serv. 447 U.S. (1980)). justified 2d The trial court Ed. 100 S. Ct. 2326 (1) the place restriction grounds factual into and from the picketers ingress egress had obstructed the sidewalk and Building by blocking Medical physically (2) entrance; and pathway leading "aggres- to the main sive, nature of the and disorderly, picketing and coercive" risk of physical created a substantial "counseling" and visitors. physicians, patients mental harm to " issue, respect constitutional 2 As discussed with to the second [additional type expression prohibition particular on a will restrictions such as an absolute accomplish compelling governmental only narrowly upheld inter if drawn to Grace, v. 103 S. Ct. 1702 est." United States the court found further findings, these upon Based present had rise to a clear and given conduct picketers' con- physicians, picketers' patients danger the character and function incompatible with duct was supported findings, These which are Building. the Medical record, clearly are not evidence hy substantial but rather to picketers' speech, the content of related to at the site. they picket conducted themselves way which by the only picketers antiabortion are bound Although Avenue, that restriction of to Stevens geographic The trial content regulation. in itself cannot be viewed as regulate restriction order to place imposed A before the court. particular group persons conduct of a any per- all enjoined restriction which similar suasion, conduct, overly regardless of their would have been (5th v. Tupelo, See Beckerman 664 F.2d broad. 1981) Alabama, Thornhill (citing Cir. (1940)). short, the geographic Ed. pro- content regulation does not constitute

scribed the First Amendment.

2. State Interest Significant must a significant A valid restriction also "serve omitted.) (Citations Heffron, 452 interest." governmental trial Here, for the principal justifications U.S. at 649. actual restriction were to facilitate geographical court's Medical egress Building, into and from the ingress by suffered heightened impact to avoid the coercive pick- staff and visitors due to the conduct patients, entrance to the proximity only public eters close to the Building. Medical the State litany Supreme recognize

A Court cases keeping community has a substantial interest streets people and available for movement of open sidewalks Org., See Indus. 307 U.S. Hague v. Committee property. for 1423, (1939); Schneider v. 496, 515, L. Ed. 59 S. Ct. 954 83 147, 160-61, 155, L. 60 S. Ct. 308 U.S. 84 Ed. Jersey, New 451, L. 444, 82 Ed. (1939); Lovell v. 303 U.S. Griffin, 949, (1938); Connecticut, 58 S. Ct. 666 Cantwell v. 310 U.S. 296, 306-07, 900, 84 L. Ed. 60 S. Ct. 128 A.L.R. 1352 (1940); 569, 574, Cox v. New L. Hampshire, 312 U.S. Ed. 61 S. Ct. 133 A.L.R. 1396 In Cox v. Louisiana, 559, 564, 85 S. Ct. 476 (1965), the special the Court indicated that because of place, persons constitutionally pro- nature of the could be hibited from in or near a courthouse with the picketing with, intent interfering obstructing, impeding or Likewise, justice. the administration Cameron Johnson, 20 L. Ed. 2d (1968), Supreme upheld prohib- Court a statute which ited "in such a manner as to obstruct or unrea- sonably ingress interfere with free to and egress from" any courthouse. Soc'y v. International Krishna Conscious- Heffron Inc., 649-50,

ness, recognized Court a State's significant in maintaining orderly interest "the movement" of a crowd large by at a state fair. The Court that "a began noting interest protecting 'safety State's and convenience' of public a forum is a persons using governmental objec- valid Heffron, tive." at 650. After that "consideration recognizing special of a forum's attributes is relevant to the constitu- tionality of a regulation", distinguish the Court went on to "any public public noting streets from a fairground, public necessarily are inexact." comparisons streets Heffron, at 650-51. a

Admittedly, markedly public sidewalk differs Nevertheless, an examination of large public fairground. and the special attributes of the Avenue sidewalk Sixth facility signifi- it fronts convinces this court that there is shown numerous regulation. cant State interest As narrow; if peo- two photographs, relatively the sidewalk is winter, abreast, In the ple walking pass. a third cannot only can ground, when there is snow on the the sidewalk persons importantly, file. Most walking single accommodate provides this narrow sidewalk fronts a medical clinic which needed, emergency, sometimes medical care to citizens of the state. Dist., v. Des Sch. Indep. Comm'ty

In Tinker Moines 503, 21 L. Ed. Ct. the 2d S. Supreme punish held the school district could not Court protest in wearing students for black armbands to school In v. Grayned the Vietnam war. Rockford, 117-18, (1972), however, Ed. 33 L. 2d 92 S. Ct. 2294 the Court the that Tinker stood for the dismissed idea anyone that proposition had "an absolute constitutional parts all its right to use of a school immediate building expressive environs his purposes." for unlimited According Court, the to the "crucial is question whether manner expression is basically incompatible with normal activity particular place particular of a at a Grayned, time." at 116.

The trial court found that blocked ingress patients visiting egress Medical Building. This clearly of conduct type incompatible normal activity Building of the Medical persons treatment of —the Grayned, medical care. In requiring recognized Court had a city that the "compelling interest an having undis rupted school session conducive to the students' learning . Grayned, Likewise, . ." at 119. this equally State has an substantial interest its ensuring unimpeded citizens necessary access to In medical care. court's opin trial ion, this only by picket interest could be served restricting Avenue, ing to Stevens from away public entrance to if the Building. Medical Even State's interest might served adequately narrowly injunction, more tailored we State compelling geograph believe the has a interest ically restricting to Stevens Avenue. above, the principal justification

As stated second for the impact pick was to the coercive reduce patients of the medical clinic. eting upon staff Heff Consciousness, Inc., ron v. Krishna Soc'y International supra, pro the State's interest petitioners asserted bothered, harassed or otherwise tecting fairgoers being fairgoers to the audience" discussed likening "captive Heights, Lehman Shaker L. Ed. 2d concluded, however, Court of that sufficiency it need not reach the constitutional holding regulation interest because of its particular by the State's interest crowd control. justified solely was Heffron, Thus, question 452 U.S. at 650. remains in reducing impact a State's interest the coercive whether sufficiently to protected expressive activity significant of a warrant reasonable restriction.

Speech simply does not lose its character protected them it embarrass others or coerce into action. may because Co., NAACP Claiborne Hardware 886, 910, U.S. 73 458 a (1982); Organization 1215, 2d Ct. L. Ed. 102 S. 3409 for 1, Austin v. 415, 419, 29 2d Keefe, Better 402 L. Ed. U.S. Court, (1971). Supreme Ct. to the According 91 S. 1575 " princi- is a to the [tjhere 'profound national commitment' uninhibited, be public that 'debate on issues should ple Claiborne, New robust, at 913 wide-open.'" (quoting Sullivan, 270, York Times Co. v. 254, 376 U.S. (1964)). In 710, S. Ct. 1412 the words 84 95 A.L.R.2d trade "'Free in ideas' means free Rutledge,

Justice trade action, to merely in the not opportunity persuade to Collins, facts." Thomas v. L. U.S. 89 describe 323 (1945). 430, 65 S. Ed. Ct. 315 our commit

Notwithstanding "profound national no speech, to free Amendment admits of ment" First Supreme "regularly rejected The Court has absolutes. protests who wish people propagandize 'to assertion a have constitutional to do so whenever and right views omitted.) (Citations they wherever please.'" however Grace, States v. 171, 177-78, L. Ed. 2d United 461 75 (1983). Amend flexibility 103 S. Ct. 1702 This First may principle speech ment doctrine is reflected interest. in order to serve a substantial state regulated even it follows that the State Accordingly, regulate sufficiently if exists speech significant interest coercive doing so. Wаde,

In Roe v. L. Ed. 2d (1973), the Supreme Court held that a constitutional right privacy3 protects a woman's decision whether Wade, have an abortion.4 Roe v. at 153. The right pri vacy interests, in this context involves different including woman's freedom to make a decision to have an abortion and to be able to effectuate that See decision. Whalen v. Roe, 589, 599-600, (1977); Family League Aid, v. Department Pub. Life of 434 929, 931-32, (1985).

Ill. 3d App. 478 N.E.2d The privacy right protection dictates private relation ship between a woman physician, Wade, and her Roe u. 153, and the physician's freely practice medicine perform legal abortions without coercive outside See Nyberg (8th restraints. v. Virginia, 495 F.2d Cir.), denied, cert. 419 U.S. 891 ability of a woman to make and effectuate her deci- sion to obtain an abortion depends upon relatively free access to the counseling and care of a physician. licensed Similarly, both the abortion decision and the woman's abil- ity to effectuate that necessarily decision are dependent upon and intertwined with the willingness ability of physician provide the care and counseling by sought right privacy 3 This constitutional of is "founded in the Fourteenth Amend concept personal liberty upon ment's of and restrictions state ..." action Roe v. Wade, 147, (1973). Thus, respondent 410 L. U.S. 35 Ed. 2d 93 S. Ct. 705 physicians successfully bring constitutionally privacy could not a based action against patients, though they on behalf of their even Share otherwise have stand 106, 113-18, Singleton Wulff, 826, ing, v. 49 Ed. 2d 96 S. Ct. 2868 (1976), activity Nevertheless, Share's does not because constitute State action. for purpose defining place restriction, in of a State's interest a reasonable this protection recognizes right the constitutional court afforded the to an аbortion. protecting privacy right in The State's interest this can be no less substantial than imposing protective discovery order in pri the interest to accommodate the vacy litigants parties. Co., interests of and third See Rhinehart v. Seattle Times aff'd, 20, P.2d 673 98 Wn.2d 654 (1984). 2199 Wade, supra, recently Thornburgh 4 Roev. was reaffirmed in v. American Col Gyn.,__U.S__, lege (1986). & 90 L. Ob. of Reproductive v. Akron Ctr. See Akron patient. 687, 103 S. Ct. 2481 Inc., L. Ed. 2d Health, Akron, "the full (1983). the Court by As stated necessarily right fundamental of the woman's vindication he needs to 'the room given physician that her requires omitted.) (Citations medical judgment.'" his best make proximity in close foregoing suggests, As the expected can be provided in which abortions are a clinic privacy right constitutional upon a woman's impinge of antiabortion First, very presence ways. two a coercive have such the clinic could directly front of exercise of forgoes a woman that she upon impact of a the care under to exercise it elsewhere or seeks right choosing. of her first not physician unlicensed licensed or picketers' anyway, clinic visit If woman decides to upon the impact a deleterious actually have might conduct district a federal noted recently itself. As procedure judge, verbally been clinics have leaving entering Women been to has harassed; harassment the effect such to exac- feels and anxiety the level of a woman increase the abor- any problems emotional associated erbate have an may turn procedure decision and tion on the itself and procedure effect on the medical adverse thereafter. well-being psychological patient's F. Thornburgh, Gyn. Ob. & College American (E.D. 1985), 90 L. Ed. aff'd,_U.S._, Pa. Supp. consequences Ct. These 106 S. 2d afforded protection unacceptable given the constitutional by Roe v. abortion decision Wade. they enter Second, physicians continued harassment refuse to them to of business cause lawful their women Accordingly, legal abortions for women. perform their consti- to effectuate opportunity be denied the would Roe ambit of within the to obtain an abortion tutional court, appellate an Illinois In the words of v. Wade. consideration significant is a reality of this [Recognition emo- dangerous social climate present In our here. issue, it can of the abortion tional on both sides highs insidious threat of harassment hardly be denied that abortions and physicians performing legal harm to and the terrorism groups vigilante of abortion clinics antiabortion very real. League, Family at 932. Life "persuaded" physi-

In such harassment has Washington, abortions. stop performing in numerous counties to cians 'abortion- proclaimed Antiabortionists "have counties physi- plans put pressure zones' and announced to free 18 counties." Seattle Post- Washington's cians other Al, 2. set forth Aug. col. Amici Intelligencer, violence, regarding statistics clinic harassment ‍​​​​‌​​‌​​​​‌‌​​‌​‌‌‌​‌‌‌​​​​‌‌​‌‌​‌‌​‌‌​‌‌‌​​‌​‍abortion performing the arson attacks on clinics including members in Bellingham Although services and Everett. violence, not the trial engaged Share have such and coer- disorderly, their was "aggressive, found cive", grounded therefore had a well physicians viability lawful medical fear for continued of their practice. continues, reasonably

If this harassment we can conclude to respondent physicians eventually refuse might the other a woman's abortion decision. On participate hand, if respondent owner a serious building perceives upon ability his to fill tenancies in the Medical impact harassment, such to Building unwilling due to he might or renew leases abor- physicians provide who execute way, presence Either coercive tions. severely in front of the

directly Building Medical would ability of a woman to effectuate the abor- compromise decision, in turn constitutional violating the woman's tion Wade, supra. under Roe v. Given this privacy right see, e.g., privacy, commitment previous personal court's (1975) Koome, 84 Wn.2d 530 P.2d 260 State abortion); re (minor's Colyer, 99 Wn.2d right Rosier, (1983) die); In re (patient's P.2d 738 per- (privacy P.2d 1353 interest Wn.2d information), pri- even from protection right, of that sonal invasion, justi- state interest compelling vate constitutes place picketing. a reasonable restriction fying Narrowly Injunction 3. Drawn interests, clearly "may A serve its legitimate state by narrowly regulations designed drawn but it must do so unnecessarily interfering serve those interests without to omitted.) (Citations freedoms." with First Amendment Env't, 444 Schaumburg v. Citizens a Better U.S. for (1980). Thus, although 100 S. Ct. 826 uncon constitute an injunction barring speech might an all Olson, restraint, ex rel. Near v. Minnesota prior stitutional (1931), a rea L. Ed. signif serve a narrowly restriction tailored to place sonable Amendment. interest does not the First icant state violate Conscious v. International Krishna Soc'y See Heffron ness, Inc., necessary nexus To determine whether

exists, interest compare the court must the identified state relief. injunctive with the terms and effect above, interest compelling As set forth State has a maintaining ingress egress of its citizens into and out of permit to convenient to medical buildings medical access Likewise, pro- the State has a compelling care. interest ability a woman's tecting еffectuate her constitutional by to obtain an abortion mitigating harassing picketers. antiabortion place effect of trial court's requires picketers to restrain their activities to restriction Avenue, away the building's from entrance and the Stevens fronting building. sidewalk clearly restriction serves the State's interest.

This of the injunction, the terms all interference with Under Furthermore, has been eliminated. egress ingress to Stevens Avenue can be the severe emotional mitigate impact otherwise expected many patients, especially women who experienced Building for the Medical abortion-related services. visiting Thus, only question is whether the injunctive relief was possible to serve the State's interest. narrowly

tailored as in maintaining the State's interest respect With could be nar- ingress egress, injunction arguably interest. The compromising rowed without (2) (1) require limit the number of them to picketers, could walkway to the leading remain a certain distance from (4) entrance, file, require picket single them to or all the State could By narrowing injunction, of the above. convenient significant maintaining serve its interest medical care unduly limiting picket- access to without expressive ers' activities. Inc.,

In Parkmed Co. v. 110 Misc. Counselling, Pro-Life 369, 442 2d N.Y.S.2d a New York trial court demonstrating antiabortion enjoined on the clinic. picketing steps plaza area of an abortion Court, appeal, Appellate On the New York Divi- Supreme sion, struck down this on the portion injunction of the that ground unnecessarily it "was overly broad and peaceful restricted . . ." picketing demonstrating Co. v. Inc., Parkmed A.D.2d Counselling, Pro-Life (1982). Likewise, 457 N.Y.S.2d might argue some that the injunction issue in this case is broader than necessary, thereby prohibiting peaceful, picket- controlled that does ing impede not ingress egress. or Nonetheless, interest focusing upon pro- the State's a woman's tecting right privacy, constitutional of we believe injunction the is to effectu- narrowly possible tailored as interest. An injunction permitted any ate anti- picketing abortion the Sixth Avenue sidewalk would not serve adequately protect- the State's interest compelling right privacy a woman's constitutional from the ing impact generated by presence picketers coercive place in front of Medical the absence of a Building. restriction, women visiting the clinic for abortion-related would be forced to gauntlet placard-car- services walk a agreed antiabortionists. Even if all to rying using from it is difficult to "harassing language", refrain constitutes apprehen- what "harassment" ascertain coming sive mind of a woman face-to-face picket- with the By Avenue, ers. restraining picketing to Stevens the can avoid conjecture point, on this knowing right woman's privacy protected permis- to the extent sible under the First Amendment.

4. Ample Alternatives For the to injunction place restriction, be valid as a "it must also be sufficiently clear that alternative forums for the expression of [appellants'] protected speech exist despite Heffron, the effects of [injunction]." at 654. " According Heffron, Court First Amendment [t]he protects every 'reach the minds right of citizen to willing opportunity listeners and to do so there must be Heffron, win their Kovacs v. (quoting attention.'" at 655 Cooper, L. Ed.

(1949)). The trial court's restriction does not fall afoul principles. of these

First, does prevent picket- not Share ing anywhere city, except upon limitеd stretch of Thus, sidewalk the Medical fronting Building. the injunc- tion is subject not to the same attack raised in Near v. Olson, Minnesota ex rel. supra, Organization a Bet- ter Austin v. Keefe, 402 U.S. (1971). Second, the First Amendment does not afford audience,5 Share the captive but rather opportunity to win the passersby attention of and engage them in if conversation the latter so desire. The injunction prevent does not Share from at a point reason- ably close to the Medical Building people Share wishes to address. carried the signs picketers clearly anyone are visible to the entering building. Picketers "are secreted in away location", not some Heffron, nonaccessible n.16, but are in plain per- located view of Louisiana, 5 As stated in Cox v. L. Ed. 2d (1965), group upon right of demonstrators could not insist "[a] to cordon public private building, pass . . . off entrance to a [an] and allow no one to who agree to did not listen to their exhortations." If anyone desires Building. the Medical entering sons conversation, very short walk to it is a them engage free to "counsel". picketers the block where end of forum an alternative provides Accordingly, injunction activity. for communicative ample opportunity providing B. State Constitution restriction violates article place argues Share Constitution, provides Washington section 5 of " may freely speak, publish write and [ejvery person right." abuse of that being responsible for the subjects, all First, picket- whether the must be resolved. questions Two an findings in the trial court's constitutes as described ing under article section 5. speech of free right abuse Second, Washington extent which a time, the exercise of free place restrict and manner of when abusе is shown. speech rights imposed the trial court previously, As stated (1) picket- because permanent from the Medical impeding ingress egress ers were into and disorderly and and coercive Building, aggressive, counseling and created a substantial picketing nature of physicians, patients Although risk of harm to and visitors. under protections speech extends broad Washington Coe, 5, State v. 101 Wn.2d 679 P.2d article section Washington's reason dictates that constitutional picketing not extend to the as described protection does of fact. We believe Share findings the trial court's egress and by blocking ingress speech rights abused their disorderly picketing coercive by engaging needed medical services facility offering medical front of a clearly impedes picketing state. Such to citizens of this care, upon especially impinges to health access to make and effectuate constitutional women's decision. abortion an abuse of the Share's constitutes

Because the extent to which speech, free we must determine right time, place and impose could reasonable the trial court Const, 1, art. 5. restrictions consistent manner § separate enunciated a and inde the court has not yet, As time, and man analyzing place doctrine for pendent state In Alder constitution. Washington's under ner restrictions Coun., 96 Wn.2d Envtl. Washington Assocs. wood Court Supreme cited the P.2d 108 an abso one has that proposition for precedent "[n]o time, manner, place and The speech. free right lute (Citations regulated." be may right that exercise of omitted.) the state and speech the free clauses of

Although effect, our wording are different federal constitutions analysis рrompts our general federal confidence application adoption methodology of much of this however, from the diverge, cases. We do state constitutional time, of the Court on the State interest element Supreme test, speech manner as we believe restrictions place and Const, only upon art. imposed be consistent with can § State interest. showing compelling time, restrictions Henceforth, place and manner under Const. art. speech of free imposed whenever (1) abused, if restrictions are only but 5 has been § (2) neutral, narrowly tailored to serve com content interest, open ample leave alternative pelling State case, analysis In this our channels of communication. us to the same under federal law leads place restriction constitution, and for the same rea under our conclusion per restriction Accordingly, sons. we hold not violate article section 5 of injunction manent does Washington Constitution.

Ill Restriction Content A. Federal Constitution injunc- the content argues Share "murder", "kill" and use of the words tion, prohibiting prior unconstitutional derivatives, constitutes an their First Amendment cases numerous reviewing restraint. After Court, we conclude Supreme recently decided inapplicable to this case. prior restraint the doctrine prior the doctrine of Court first enunciated Supreme Olson, ex rel. in Near v. Minnesota restraint Near, the State Ed. against an successfully permanent obtained a malicious, defamatory newspaper scandalous allegedly publica- such prohibiting for violation of a state statute ground the statute on the tions. The Court struck down restraint, which impermissible prior that it constituted an censorship." as "the essence of the Court characterized Near, important indicated the distinction at 713. The Court subsequent punishment, noting restraint and prior between appropriate regulating that libel laws were the means of Near, expression. 715. a Better Austin v. Organization Keefe,

In 402 U.S. 415, 1, (1971), 29 L. Ed. 2d 91 S. Ct. 1575 the Court struck prohibited publication any down an "of injunction practices kind" criticized the business of a real estate that Keefe, In in compared injunction broker. the Court that Near, in as in that noting "[h]ere, case to the statute that case, not to redress injunction operates, alleged private suppress, previous publica on the basis of wrongs, but city tions, any distribution of literature 'of kind Keefe, 18,000." at 418-19. injunction in this case differs from the injunction First, respondents' important respects. two

Keefe was to "redress only seeking purpose past prospective, both suffered alleged private wrongs", Second, the respondents patients. injunc- and their suppress speech any did not "of ultimately tion obtained which the trial kind", particular judge but rather words children impact young have an adverse feared would short, prior In is not the classic clinic. this visiting the in Near doctrine of Keefe, and the restraint described this case. applied not be restraint should prior indicate Court cases Supreme several recent Regardless, whenever a employed will be analysis form of that a new 236 Brown, v. Carey See speech. the content regulates

state (1980); 263, 455, 465, 447 U.S. Comm'n, 447 U.S. Public Serv. Edison Co. v. Consolidated (1980); Widmar 319, Ct. 2326 530, 540, L. 2d 100 S. 65 Ed. 440, S. Ct. 263, 270, L. 2d 102 Vincent, 70 Ed. 454 U.S. v. Local Educators' Perry Ass'n v. (1981); Perry Educ. 269 794, Ct. 948 L. Ed. 2d 103 S. Ass'n, 74 L. 171, 177, 75 Ed. Grace, 461 U.S. (1983); States v. United Coun. v. (1983); City Members S. Ct. 1702 2d 772, 786, L. Vincent, Taxpayers for classic these cases are Several of Ct. 2118 104 S. cases, is unmentioned. yet the doctrine restraint prior L. Ed. 2d U.S. Moslеy, v. Dep't Police stated that (1972), Court Supreme else, govern- Amendment means the First "above all of its expression because power to restrict ment has no (Ital- matter, content." ideas, or its subject its message, its Brown, ours.) later, supra, v. Carey Eight years ics its absolute to retreat willingness indicated its Court Edison Co. In Consolidated regulation.6 on content ban 2d 100 S. Comm'n, 447 Ed. Serv. Public Carey, the Court year the same decided Ct. 2326 restricts "[wjhere government affirmatively stated sus- state action private person, of a speech that the regulation can show if the only government tained state compelling a serving means of drawn precisely is a Edison, at 540. Consolidated interest." the test phrase all cited above litany The of cases prohi including "an absolute regulation, similarly: content [,] upheld will be expression type a particular bition on compelling govern a accomplish only narrowly if drawn (cit Grace, at 177 supra States v. United mental interest." Vincent, 46; supra). v. Ass'n, at Widmar Educ. Perry ing Brown, Carey Ct. 2286 L. Ed. 2d 100 S. 6 In may be (1980) might agree interests that certain state that "we the Court stated adequate distinc exist a content-based compelling no alternatives that where so objec furthering way permissible those narrowly be a drawn —would tion —if ..." tives before argue, the issue Thus, parties contrary to what prior constitutes the content us is not whether compelling serves restraint, the restriction but whether interest. to serve that interest, narrowly drawn and is State Interest 1. State Compelling spe- court the trial injunction, permanent issuing the words used repeatedly the picketers cifically found "mur- "murder", "murderer" and "killer", "kill", "killing", physicians connection "in indiscriminate dering" upon ..." Based medical children young in the presence words further that use of such сourt found testimony, such overhearing the children upon "inflicted trauma had . . very utterance . harmed by ... their references and deliv- essential to the effective relationship doctor-patient care." ery of health by sub- supported which are findings, these upon

Based record, enjoined in the the trial court stantial evidence picket while at the orally referring, from Share "murdering", and staff as site, physicians, patients Furthermore, "murderers", "killers". the trial "killing", or while at picketers, oral statements enjoined "mur- site, being "killed" or to children babies picket Building. to the Medical by anyone dered" or connected however, use of these court, enjoin printed did not The themselves, correctly as it picket signs on the words violate state and federal injunction such an would assumed is whether question protections. constitutional such children protecting interest compelling State has a proscribed words expression the oral by limiting site. picket Birthright O.B.G.Y.N. Ass'ns v. heavily upon Share relies Inc., 407 N.Y.S.2d Queens, & 64 A.D.2d Brooklyn pro- an which held unconstitutional "murder", use of the words picketers' hibiting abortion Two observations placards. words on "kill" and similar First, O.B.G.Y.N. is noting. are worth O.B.G.Y.N. regarding the trial this case factually distinguishable 238

court here did not enjoin use such words on the picketers' placards; only it the oral enjoined expression O.B.G.Y.N. was Second, important, such words. and more 2 years prior to the decision in Consolidated Edi- decided son, in which Supreme regula- Court held that content permissible tion was if it a compelling served state interest interest. Consoli- narrowly and was to tailored serve that Edison, dated O.B.G.Y.N. 447 U.S. at 540. The court Dep't Mosley, Police supra, and its absolute upon relied regulation, Supreme ban content from which thе Court See Consolidated Edison. Accordingly, has since retreated. O.B.G.Y.N. provides very guidance limited on whether First protects proscribed Amendment the words in this Supreme case. We believe the provided Court itself has we guidance seek. York, v. New Ginsberg

For example, L. Ed. 2d Supreme 88 S. Ct. 1274 Court reviewed an obscenity prohibited statute which the sale of to "girlie" magazines noting children under 17. After Ginsberg, adults, magazines such were not obscene for York, v. New (citing Redrup L. (1967)), 87 Ct. 1414 recognized S. the Court the state's power to regulate dissemination of such material to minors. the Court the notion Although rejected the statute constitutionally protected invaded minors' to view material, recognized Court stated that "we have that even where there is an freedoms protected invasion 'the power state to control the conduct of children beyond scope authority reaches of its over adults. . . ."' Ginsberg, Massachusetts, Prince v. at 638 (quoting (1944)). Ed. Ginsberg justifications Court offered two distinct for its conclusion that the of its children is . . . "well-being subject power regulate within the State's constitutional Ginsberg, First, ..." at 639. the Court asserted that under parents' authority the federal constitution "the claim to ... of their children is basic rearing direct society." Ginsberg, According structure of at 639. our teachers, primary "who have this Court, parents entitled to the well-being for children's responsibility responsi- of that discharge to aid designed of laws support Likewise, of children vis- Ginsberg, parents at 639. bility." explain are entitled Building the Medical iting only and personally, of abortion to their children concept it. are able to understand they when believe the children Furthermore, protection are entitled to the State's parents effects potentially harmful of their children from by proscribed speech. caused Second, "indepen- that the State has an the Court found Ginsberg, at youth." in the of its well-being dent interest Ginsberg Court, it According "recognized 640. to the interest 'to the welfare of children' protect the State has an from abuses' which they 'safeguarded and to see that independent into free and prevent 'growth their might Ginsberg, men citizens.'" at 640-41. well-developed pro- to the materials exposure The Court concluded that "abuse", the State upheld scribed constituted such an Likewise, preventing this state has an interest statute. hearing pro- children young the "abuse" suffered they visit their doctors. just scribed words before Found., U.S. In FCC v. Pacifica the Federal Communications 98 S. Ct. 3026 impose it indicating might Commission issued an order George that broadcast later sanctions on a radio station Words", "Filthy which aired monologue, Carlin's entitled In listening. were early afternoon when children during Supreme upheld Court the Com- plurality opinion, a order, Appeals Court of decision which reversing mission's a the Commission. had reversed Justice Powell conceded concurring opinion, his in the was not "obscene" "Filthy monologue Words" sense, words" "fighting nor did it constitute

constitutional Hampshire, v. New meaning Chaplinsky within (1942). Justice Pow- Ed. punished, not consistent that Carlin could be recognized ell Amendment, the same mono- delivering the First logue composed Likewise, to a live audience of adults. he assumed that an adult could not constitutionally pro- hibited from or purchasing recording transcript monologue playing reading privacy it of his Found., (Powell, home. FCC v. supra J., at 756-57 Pacifica Powell, concurring). According however, to Justice the issue was whether the Commission could impose civil sanctions on the radio station for broadcasting the monologue during the early afternoon. Answering question the affirma- tive, Justice Powell found "strong support" for the Com- holding mission's its concern prevent language the ears of reaching unsupervised children who were likely Found., to be in the audience at that hour. Pacifica at 757.

Justice Powell stated that Court has recognized ''[t]he society's right 'adopt more stringent controls on commu- nicative youths materials available to than on those avail- Found., able to adults."' at 757 Erznoznik (quoting Pacifica Jacksonville, v. 422 205, 212, U.S. L. 125, 45 95 S. (1975)). Powell, Ct. 2268 According to Justice recog- "[t]his nition stems in large part from the fact that 'a child ... is possessed not capacity of that full for individual choice presupposition which is the guaran- of First Amendment (Citation omitted.) Found., tees."' at In char- 757. Pacifica acterizing repetition by the words used Carlin as "verbal treatment", shock Justice Powell stated that protect children not be able to themselves from which, speech adults, although shocking to most gener- ally may be avoided by unwilling through the the exercise time, of choice. At the speech may same such have a deeper and more effect on a lasting negative child than reasons, on an adult. For these society may prevent the children, dissemination of such general speech to leaving parents speech to their children shall hear the decision as to what of this kind . . repeat. Found., at 757-58. Pacifica

Justice Powell's concern for the welfare of children case, to this in particularly ‍​​​​‌​​‌​​​​‌‌​​‌​‌‌‌​‌‌‌​​​​‌‌​‌‌​‌‌​‌‌​‌‌‌​​‌​‍applicable which the use of proscribed arguably words was intended as "verbal

241 interest the State has a lesser Although treatment". shock adults, there is a when directed to in such words regulating perceived in state the harm compelling preventing interest by words heard children. the trial court when such by in v. California, Unlike the audience Cohen 403 courtroom denied, reh'g Ed. 91 S. Ct. U.S. 2d (1971),7 entering Building the Medical U.S. 876 children by simply gaze, avoid this their but averting cannot harm safely Similarly, subject rather are to it until out of earshot. Found., in visiting unlike the children children Pacifica tune in to station or Building Medical cannot a different cannot completely; they hearing pro- tune out avoid language picketers' vicinity. Accord- scribed while State case has a interest compelling this ingly, subjection physical psycho- of children avoiding by picketers' speech. abuse inflicted logical Narrowly 2. Drawn above, stated an absolute injunction imposing pro- As an expression particular type hibition on must nar- drawn to serve the State's interest. United States rowly Ct. Grace, 75 L. Ed. 2d 103 S. (1983). See, Jacksonville, e.g., supra Erznoznik v. (restriction youths prohibiting viewing aimed at films nudity broad not all involving impermissibly because minors). even as to The State's nudity deemed obscene psycho- prevent physical interest this case is to by pro- harm of children caused use of young logical scribed words. speech importance of is illustrated 7 The context free cases case reh'g denied, California, Cohen v. wearing when Paul Cohen entered a courthouse which arose holding

jacket "Fuck the Draft". criminal emblazoned the words unconstitutional, argument rejected against Cohen the Court were sanctions Cohen, Although unwilling speech at 22. would listeners. that his offend speech simply printed an the offensive when audience could avoid courthouse might clothing, different result the Court have indicated a members of article of children. See orally presence spoken similar words are obtain when Jersey, 901, 903, v. New 33 L. Ed. 2d Rosenfeld J., (1972) (Powell, dissenting). 242 words, however, all use of such applies to

The injunction, Thus, it is present. are children regardless of whether achieve the State's necessary to broadly more than drawn 557, 564, Georgia, v. Stanley interest. As stated (1969), the to receive "right . . . of their social worth ideas, regardless information and cannot The society." injunction free is fundamental to our for the sandbox. make it suitable speech down water narrowed. must be injunction Accordingly, testimony by medical record in this case contains impact of such respondent physicians one age under the on children be most severe language would point, this the case on remanding 12. are Because we testimony medical additional may court wish to take trial Furthermore, limit. age appropriate determine whether a child to ascertain may it be difficult because provide wish the trial age, under the identified when determining guidelines additional Regardless, words. proscribed using refrain from should offensive proscribe be narrowed to must age present chosen children of the only when language site. picket B. Constitution State in the injunc the content argues Share art. restraint, by Const. prohibited prior constitutes a tion Coe, 679 P.2d 101 Wn.2d In State 5.§ Const, plain language stated that "the the court any cir restraints under prior to rule out art. 5 seems § only post-publication cumstances, the State leaving According speech rights." abuse of free punish sanctions to with our comports court, approach this absolute to the Washington Envtl. Assocs. v. in Alderwood ruling recent (1981), that under arti Coun., P.2d 108 Wn.2d " when bal right' 'preferred free is a speech cle section Coe, at 375. rights." other constitutional against anced restraint priоr retreat from the not now suggest We do prior with a classic in Coe. When faced analysis set forth strictly interpret to our state constitution restraint, we will speech rights, speech not if such would even free favor protected the United States first amendment to Constitution. injunc permanent in the

The content restriction prior case, however, not the classic restraint in is tion this spoke Bittner, Wn.2d in Coe. In Seattle we of which (1973), prior restraints this court defined 505 P.2d 126 upon speech imposed or other forms restrictions as "official publication." expression Bittner, at actual advance of (quoting Restraint, 20 Emerson, Prior The Doctrine (1955)). Contemp. case, however, In this & Probs. 648 Law imposed actual content the trial court restriction after young only prevent publication harm to further subject to the harmful children who otherwise would be proscribed Thus, unlike the order of the words. effects neatly Coe, "fit the content restriction this case does not prior Coe, ..." at 372. the definition of restraints within post-publication injunction in this case is a sanction. The publication speech regulated or after is Whether is before Under article sec- crucial under our state's constitution. " [e]very person may Washington Constitution, tion 5 of the responsible freely speak being . . . for the abuse of speak freely right right." abused cannot be Because no exercised, exercised there can be before it is until Prepublication prohibit responsibility. exercise of restraints any right right shown, thus of the can be before responsibility abuse express imposing lan- in contravention of the Const, Post-publication guage restraints, 1, § 5. art. simply prohibit after exercise of the however, further responsible showing Because an individual оf abuse. a right, post-publication sanction can be abuse imposed Const, 1, § 5. art. consistent with poten post-publication sanctions context, In the civil (1) tially an award of forms: one of two basic could take prohib injunctive damages order action, an in a tort speech. iting latter sanction dissemination of further pro prior it arguably the extent restraint constitutes Under this publication. in advance of further speech hibits would violate post-publication injunctions even argument, Coe. interpreted by Const. art. 5 as § to a only remedy If available accepted, this view were an speech would be allegedly injured by another's person However, damages damages. award of a civil suit for Co., v. Seattle Times Rhinehart 98 Wn.2d we said aff'd, (1982), 654 P.2d 673 constitute not and does not tort action should [a] privacy to the sole affords protection government A invasion of those interest of individuals. threatened necessary the characteristics interests not have all of under existent tort recovery damages to warrant yet properly subject governmental be a principles sanction. Likewise, protection constitute the sole a tort action cannot Accordingly, in case. we construe young of our citizens this Const, permit post-publication injunctive to art. 5§ compel- if that relief serves a private relief to a individual interest, narrowly drawn to serve that state and is ling interest. case, of this we con- analysis this to the facts

Applying Const, does not violate permanent clude that proscribed it bars use of the except art. to the extent § at the site. present picket words even when children are not First, speech abused their free we believe Share Const, proscribed by employing under art. rights § a manner calcu- presence young words children Although treatment". use of lated to inflict "verbal shock furthers the national debate on language arguably such adults, cannot be said when directed at the same abortion young is directed at children.8 On language when such 8 Receipt by young is irrelevant to the extent it is of this information children provided goals. understanding A child's of the abortion issue is to effect Share's by epithets type proscribed by injunction. not furthered noneducational of the Furthermore, process very political and cannot children have limited access to the Finally, groups. expected further the aims of Share and other antiabortion be to reasonably expected Building age be to visit the Medical few children of this can physi- to suffer expected be hand, child can young a

other being told harm cal, psychological emotional his doc- visiting babies", before just murders "your doctor child and upon the statements The effect of such tor. type constitutes with his doctor relationship his consistent imposed can be responsibility for which abuse Const, 1, 5. art. § interest compelling has a Second, we believe the State through injunc- abuse the above described preventing of their rearing to direct the right process. parents' tive Out- protection. of the State's clearly deserving is children of a the education the State entrusts setting, side the school of their persons unit and family members of the child to least, to determine Here, parents have choosing. will be discussed delicate moral issues the manner his thrusts person children. Where a third young with their wishes, in a manner upon against parent's views a child child, threaten harm to and under сircumstances which if even compelling intervening, has a interest the State speech. of free person's right intervention limits the third interest, independent of compelling The State also has a interest, police power in the exercise of its parents' relationship and sanctity doctor-patient preserve the A child who arrives young health of its citizens. general cannot and fearful of his doctor upset in his doctor's office maximizes in a manner which respond expected an needed health care. Where ability provide doctor's concerned, arguably constitute consequences such adult con- a child is speech. free Where pay for price the we however, unacceptable. cerned, the cost is court's content the trial Finally, we believe interest, to the except serve the State's narrowly drawn to even language proscribed use of the that it bars extent of the site. None picket at the present children are when no insulating adults by are served state interests above defined any requiring services, viewed as therefore cannot be for abortion-related especially type proscribed. counseling, of the antiabortion from hearing proscribed language. Accordingly, we remand the case to the trial court to narrow the injunction consistent with this opinion.

IV Contempt and Fee Orders Assessments Contemnors argue this case the trial court erred by issuing contempt permanent orders for violation of the injunction on ground the injunction constituted an prior unconstitutional restraint. The contemnors were not charged with restriction, violation of the content but rather with violation restriction. Because the cоn tempt only orders relate to violation of the place restric tion, which we conclude was valid under both the First Amendment art. Const. we affirm the trial § court's Furthermore, findings contempt. given the heightened emotional tension surrounding the abortion issue, approve we of the trial court's use of civil contempt sanctions, recognizing trial wish to resort criminal sanctions case. appropriate Appellants also contend the trial by court erred attorney $7,000 $1,200 fees of assessing and costs of against contemnors Grace Gerl Lindley. Statutory and Teresa however, authority, provides that aggrieved party contempt proceeding may receive judgment from the defendant satisfy costs and disbursements incurred as a result of the contempt. RCW 7.20.100.9 To recover fees, contempt must of a lawful order and have been committed willfully. Coffin, State ex rel. Lemon v. Wn.2d 327 P.2d 332 P.2d 1096 The contempts adjudicated all against parties, provides: 9 RCW7.20.100 any action, injury party proceeding prejudicial "If loss or to a in an suit or therein, rights by officer, contempt, judicial his have been caused the court or punishment imposed contempt, may give judgment in addition to the for the party aggrieved money recover of the a sum defendant sufficient to indem- him, nify disbursements, satisfy judgment, and to his costs and and the thereof, acceptance any action, proceeding of the amount is a bar to suit or aggrieved party injury." for such loss or their upon were based Lindley, Ms. Gerl and Ms. including restriction. content-neutral, geographic obey refusal trig- valid, contempts the was place the restriction Because Further, found the court provision. fees statutory the gered violated intentionally and knowingly contemnors had the for are "willful" Such violations restriction. the geographic rule. the of purposes Coffin propri- determining in court has discretion The trial in said As we RCW 7.20.100. fees under of costs and ety than those other proceedings and Coffin, all actions "[i]n is made no provision . . . where chapter this mentioned not, and costs, may be allowed they recovery for the in the parties, between apportioned if allowed RCW (quoting Coffin, at 898 court." discretion of the not abuse 4.84.190). trial court did We conclude attor- from other affidavits supporting Counsels' discretion. rates hourly hours and establish that neys Spokane were reasonable. issues, record the extensive of the complexity

Given the order to the lawful defiance Lindley's Ms. and Ms. Gerl's counsel by efforts court, and the reasonable of the trial noncompli- request to document with the court's comply fees award of order, the trial court's ance with its $1,200 was amount of $7,000 and costs amount we affirm the Accordingly, arbitrary capricious. nor neither Gerl contemnors attorney against fees award of trial court's Lindley. appeal, substantially prevail did not Because Share attorney fees is denied. request JJ., C.J., Utter, Callow, Brachtenbach, Dolliver, Tern., Pro concur. J. Cunningham, all concur with (concurring C.J. specially) Dolliver, — I discuss- portion except opinion majority aspects injunction. court's in the trial ing necessary uphold than farther gone has majority in protecting interest the State's resorting to by injunction privacy afforded women the decision of the Wade, Supreme Court in Roe v. 410 U.S. sup- I believe the

ported simply by the State's interest access maintaining Louisiana, to and See Cox v. facility. from a health care (1965); Ct. 13 L. Ed. 2d 85 S. Johnson, Cameron v. 88 S. (1968); Mun. Separаte Ct. 1335 Pickens v. Okolona Sch. (5th Dist., 1979); Concerned 594 F.2d 433 Cir. Jewish 1980). (2d McGuire, Youth v. 471 Cir. I go 621 F.2d would no further.

Dore, place J. would hold that and (dissenting) —I in permanent injunction, content restrictions ordering picketing directly to refrain from front of the medical clinic and oral use of the words enjoining derivatives, "murder", "kill" while young and their children present, speech protections. violate federal free I would reverse the trial court and dismiss the orders. contempt

Place Restrictions my majority engaged view the has an unlawful appellants' exercise of their First Amend- abridgment right picket peaceful ment to and demonstrate a and orderly place manner. The restrictions contained in the injunction go beyond justifiable far measures that are as reasonably necessary maintaining access to and from a facility privacy right. health care a woman's protecting instead of majority, proscribing only activity posing desiring serious those access to health care threat facility alternatives, for less restrictive searching has chosen the easier course of the dem- riding roughshod over onstrators' exercise First rights Amendment the very place they protection where are entitled to the most —our public sidewalks. It is rather ironic and unfortunate that at public a time when the abortion issue is at the forefront of places impediment upon this court a severe those debate have their heard. opinions most desirous to

249 indisputable We start with certain consti- propositions tutional law. The first of these is public places, partic- sidewalks, ularly streets and are the normal and natural locations for our citizens' exercise of their First Amendment speech. of free

Wherever the title of parks may rеst, they streets and immemorially have public been held in trust for the use of the

and, mind, time out of pur- have been used for assembly, poses zens, citi- communicating thoughts between discussing public questions. Such use of the public places has, streets and part times, from ancient been immunities, privileges, rights, and liberties of citizens. v. Committee

Hague Org., 496, 515, Indus. 307 U.S. (1939); L. Ed. see also Lehman v. Heights, 298, 303, Shaker 94 S. (1974); Ct. Alderwood Washington Assocs. v. Coun., Envtl. 96 Wn.2d 635 P.2d 108 While the State reasonably time, regulate manner of exercise of First Amendment rights necessary protection interests, of other compelling public Grayned Rockford, L. Ed. 2d 92 S. (1972); Dep't Ct. 2294 Police v. Mosley, (1972); Florida, Adderley v. 39, 149, 17 L. 385 U.S. Ed. 2d (1966); 87 S. Ct. 242 Cox v. Louisiana, 536, 554-55, (1965), "time and place" regulations enormously can hinder individual's ability to engage effective advo- 'streets, cacy. sidewalks, "Access to the parks, and other places . . . public similar for the purpose exercising Amendment rights] cannot denied constitutionally be [First . . .'" broadly. Grayned, at 117 (quoting Amalgamated Local Employees Inc., Food 590 v. Logan Vly. Plaza, (1968)). L. Even 88 S. Ct. 1601 regulation justified, when is "narrowly it must be tailored to further the State's 116- legitimate interest." at Grayned, 17; Dep't, 98; Cox, Police at Moreover, at 575-76. exercise par- of First Amendment rights, when related to logically forum, protected regulations further from is ticular Louisiana, Brown v. place. the use of preclude would (1966) (plural 2d Ed. Org. Wyman, v. Albany Rights ity opinion); Welfare (2d Cir.), denied, cert. 419 U.S. 838 1323-24 F.2d against demonstrate right In the individual's balancing others, competing protection concern for the basis; individual blanket interests must be assessed on an in front of prohibitions against picketing and absolute bans a less where universally have been condemned or near a site for- be tailored alternative clearly restrictive and more stated Supreme Court United States mulated. As the 100-01: Mosley, supra Dep't Police disruption from imminent Predictions about an individual- made on appropriately judgments involve classifications, espe- of broad basis, by not means ized matter. subject those based on cially it must permitted, limited is short, regulation although mini- circumscribed to sufficiently defined and carefully be discretion, this lest opportunities for abuse of mize speech subjected constitutional of free right treasured unnecessary or restraints. excessive is difficult. proper discharge responsibility The of this if broad discretion The court's task would be easier it had necessity assembly without squelch speech free necessary absolutely is any restraints to what tailoring has discretion Unfortunately, such individual case. each result, unsur- instance. present exercised been placed has The majority an excessive restraint. prisingly, above of one constitutional protection its concern for princi- time-honored another, scant heed to basic paid expression. ples speech of free majority, approved injunction, The resulting (1) demonstrating, picketing, prohibits picketers except Building, Medical Avenue at the Sixth "counseling" on Stevens stop of the bus north along public sidewalk intimidating or coerc- assaulting, Avenue; threatening, (3) Building; the Medical entering leaving or anyone ing parking or building or at interfering ingress egress (4) tres- premises; and southeast of the to the south lots (5) any in unlawful premises; engaging on the passing respondent physicians patients; or their activity directed site, (6) in referring, picket oral statements while at the patients, children to or young present, physicians while are "murderers", or "murdering" "killing" or clients as staff "killers", "killed" or being or to children оr babies as by anyone in Building. "murdered" the Medical these purportedly justify The trial court's findings, restrictions, (1) are them- picketers positioned that have Avenue and at public along selves on sidewalks Sixth (2) entrance; walkway to the main have only picketers passage of visitors and staff at the Medical obstructed (3) picketers physicians have caused the and Building; distress, emotional created a substantial risk patients harm, upon and mental and physical "counseling" forced (4) attempting pick- to enter or persons premises; leave the disorderly has been conducted in and eting aggressive, an manner, and instances has rise to a clear given coercive (5) present danger patients; and has been con- and incompatible ducted a manner with the character of the Medical have Building; picketers function Medical repeatedly physicians referred to practicing Building presence young as killers or murderers in the children. record, supported by these are

Although findings such incidents have clearly record also demonstrates Restrictions infrequent been isolated occurrence. than complete less onerous removal of facility fronting sidewalk the health care public access protect assuring State's interest of available facility. Misc. Inc., Counselling, Co. v. In Parkmed Pro-Life trial 369, 442 N.Y.S.2d 396 a New York 2d pick- demonstrating, picketers "from antiabortion enjoined area plaza . . any way ... on the . interfering eting Court, steps". appeal, Supreme and its On the New York Division, Appellate portion struck down this of the injunc- ground overly tion on the it "was broad and unneces- restricted sarily peaceful ..." picketing demonstrating Inc., Co. v. Counselling, 551, Parkmed 91 A.D.2d Pro-Lifе 552, 27, (1982). 457 N.Y.S.2d 29 Likewise the at necessary, issue is broader than because it prohibits peace- ‍​​​​‌​​‌​​​​‌‌​​‌​‌‌‌​‌‌‌​​​​‌‌​‌‌​‌‌​‌‌​‌‌‌​​‌​‍ful, controlled that or picketing impede ingress does not in The effect egress. majority concedes that the restrictions in overly regard broad to access to the effectuating facility. medical in respect maintaining

With to State's interest could be nar- ingress egress, injunction arguably that interest. The picketers, compromising injunc- rowed without (1) (2) require tion limit the number of could walkway a from the them to remain certain distance (3) entrance, in require picket to the them to leading single file, By all of the above. narrowing in the State could serve its interest injunction, significant maintaining unduly convenient access to medical care without picketers' expressive activities.

limiting at 231. Majority opinion, excessive majority

The nonetheless condones this necessary to mitigate harassing restraint effect of picketers. antiabortion so makes a doing, majority in error its analysis. major- monumental constitutional The such perceives privacy invades a woman's ity The rights effectuating privacy abortion decision. Wade, 113, v. espoused Roe 410 35 L. Ed. interest U.S. 147, however, Ct. 705 93 S. deals with a woman's 2d gov- make a decision concerning abortion without See intrusion. also Akron v. Akron Ctr. ernmental for Health, Inc., 416, 687, 462 U.S. Reproductive (1983). This does 103 S. Ct. 2481 not mean that a woman is vacuum, make a decision about abortion a entitled to including expressed by free comment the views public from picketers. interest does not extend to privacy This isolate a by silencing woman debate others. public Moreover, does not lose its character speech protected

253 them into others or coerce may embarrass because it simply Co., Hardware 886, v. Claiborne NAACP action. (1982); Organization Ed. 102 S. Ct. 3409 L. 2d v. 415, 419, 29 Ed. Keefe, Better Austin U.S. (1971). Supreme According to the 1, 91 S. Ct. 1575 2d " to the Court, national commitment' 'profound [t]here public be uninhib- 'debate on issues should principle Claiborne, robust, wide-open.'" (quoting ited, Sullivan, 254, 270, 11 L. York Times Co. New (1964)). In 95 A.L.R.2d " trade means free Rutledge, of Justice 'Free ideas' words action, merely not opportunity persuade trade Collins, Thomas v. to describe facts." L. Ed. majority seemingly acknowledges the overzealous- privacy its for a woman's interest when it

ness of concern states that "harassment"

it is difficult in the to ascertain what constitutes apprehensive coming mind of a woman face-to- to Ste- restraining picketing with picketers. By face Avenue, the court can avoid this conjecture vens point, knowing tected to the extent ment. pro- of right privacy the woman's under First Amend- permissible opinion, 231-32. Majority of strength guaranties

The ultimate our constitutional in in of contro- being unhesitatingly applied lies their time Con- provisions alike. "If the versy tranquility they pinch well as when upheld stitution not when as Bldg. Home comfort, they they well be abandoned." Blaisdell, Ass'n & Loan L. Ed. (1934) (Sutherland, J., 231, 256, S. Ct. 88 A.L.R. 1481 overly has affirmed an broad dissenting). majority The here Amendment abridges picketers' which First injunction free speech. I this to the trial For these reasons would remand case by eliminat- injunction with directions to narrow the prohibit picketers place restrictions ing picketing, demonstrating, or on the sidewalk counseling the Medical fronting The Building. remaining restrictions in are injunction sufficient to assure adequate access to the facility. I

Because would hold that the place restrictions are invalid, I contempt would also reverse the fee orders and penalties awards and assessments. These were levied against picketers who by violated the restrictions рicketing along sidewalk the medical clinic. fronting There was no evidence any these violated other injunction restrictions relating interfering ingress egress or to the clinic.

Content Restrictions my It is also view that oral use of the enjoining words "murder", "kill" and their derivatives presence children under an identified age violates First Amendment of free rights speech. Because the restricts the speech content of publication advance of actual broadcast, prior it constitutes restraint. The United Supreme States in Keefe, Court held 402 U.S. at 419 that "[a]ny prior restraint on expression comes to this Court 'heavy with a presumption' against its constitutional valid- " ity. Stuart, 539, 556-59, Nebraska Press Ass'n v. 49 L. Ed. 2d primary reason heavy for this presumption invalidity was articulated Promotions, Conrad, the Court Southeastern Ltd. v. (1975): society prefers punish free the few who abuse [A] rights speech they break the law than to throttle after always them difficult and all others beforehand. It is say, and the line know advance what an individual will speech is often so legitimate illegitimate between finely freewheeling censorship drawn that the risks of formidable. prior which a restraint only upon

The basis can be if restrained is upheld is the communication constitution- obscenity, such as ally unprotected speech incitement violence, speech directly that military acts of threatens

255 697, Olson, ex rel. 283 U.S. See Near v. Minnesota security. (1931). 1357, speech 51 S. 625 The L. Ct. 716, Ed. any of not fall within by majority here does restrained categories. narrow these unprotected category under which only possible category fall might these actions is the

restrained words v. New Chaplinsky Hampshire, words identified of having 568, Ct. 766 Ed. 62 S. ideas, of ..." and any of part exposition "no essential an to incite "very inflict or tend injury whose utterance the pеace." immediate breach of it that prove of this doctrine Contemporary applications rule that restraints very exception prior narrow to the is v. Des Tinker presumptively unconstitutional. 508, 21 L. Dist., Indep. Comm'ty Moines Sch. 393 U.S. Court, overturning 2d S. Ed. Ct. political on as a wearing armbands school emphasized appre- that "undifferentiated fear or protest, to overcome the enough hension disturbance not not be speech may freedom of Restraint of expression." from a "mere desire to avoid constitutionally justified an unpleasantness always accompany and that discomfort v. Tinker, See also NAACP unpopular viewpoint." at 509. Co., 2d 909-10, L. Ed. Claiborne Hardware (1982); California, 102 S. Ct. 3409 Cohen 15, 29 L. Ed. 2d to vio- any

The evidence fails to demonstrate incitement Signifi- significant lence or other harm to listeners. role in the cantly, proscribed play important the words an in the The combina- "exposition ideas" abortion debate. significant importance tion of the absence of harm words to abortion debate dictates restricted constitutionally justified. cannot prior restraint doctor-patient relation- While the finds that majority words, such be harmed the use of ship they may "physical have some effect psychological" children, an none of the evidence demonstrates young than any or a that was greater incitement to violence harm anger, kind of agitation, embarrassment, and emotional turmoil is the product natural of debate and the con- flict of ideas deemed permissible in the cases discussed above.

Further, the majority's command that the trial court provide guidelines for when a ascertaining child of suscep- tible is age present impossible is an task. I can conceivе of no reasonable means of determining on casual meeting of a child on a sidewalk whether the child is 11 12 years Aage. prior restraint justified cannot be on such evidence. "murder",

The "kill", words and their play derivatives an essential role in the debate concerning abortion. To those abortion, opposed to the logical conclusion of that moral position is that abortions result babies being killed or murdered. If the court were to deprive picketers of the words which most clearly embody the moral position of picketers, those it would eviscerate completely the debate concerning abortion. Just as proponents abortion must be able to articulate their belief that abortion is constitution- ally as an justified aspect of a woman's right to procreative freedom, Bigelow see v. Virginia, 421 so must abortion opponents be permitted to articulate their belief that abortion should not permitted be because it involves the taking of human life. question

There is no the use of words such as "kill" and "murder" caused some agitation and emotional tur- moil. Such responses are an part inevitable of debate that very lies at the heart of freedom of speech. Those words embody crystallize position of antiabortion activ- Deprived words, ists. of such antiabortion activists would deprived of the right carry their argument fully to the public. The worth of such words can only be evaluated in the commerce of ideas they where will be judged relation to opposing arguments and ultimately either accepted or rejected. sum, the restrictions on content in the injunction is an restraint,

unconstitutional prior and the evidence presented in this case did not establish a exception narrow on the rule unconstitutionality for such restraints. presumptive

Conclusion I place hold that would and content restrictions the permanent picketers' are violative of First of free rights speech. Amendment restriction is overly and unnecessarily prohibits peaceful broad demonstrating public sidewalk fronting the medical clinic. The unjustified content an prior use prohibit restraint would of words which are part an concerning inevitable of debate abortion. J. in

Andersen, (dissenting part) with disagree the —I uphold majority's decision to the the permanent trial court's because it seems obvious it to me that is an overbroad restraint of citizens' constitu- tional to rights publicly express their views.

At issue this case are the competing of those rights people having views opposing on abortion. On the one side are women who have legal the right and constitutional to abortions, obtain and doctors have right per- who to them, so form long as all comply concerned with this state's abortion laws.10 On the other side are oppose those who abortion and who have legal right and constitutional to express by their views peacefully picketing distributing leaflets in public forums such as the streets and sidewalks our of cities.11 hand,

On the one proponents right the abortion have ignore opponents' to signs to consider and leaflets or them, they as deem hand, fit. On the other the abortion have opponents to right peacefully and declare publicly their on opinions subject. The law as we have stated it to regard labor picketing equally applicable Wade, 113, 705, 153, 147, reh'g 10 SeeRoe v. 410 U.S. Ed. 2d Ct. 35 L. 93 S. denied, 959, 694, (1973); 35 L. 410 U.S. Ed. 2d 93 S. 9.02.060. Ct. 1409 RCW Grace, 176, 736, 171, 11 See States v. 461 L. 103 United 75 Ed. 2d S. Ct. (1983). 1702 258 picketing: of

context abortion free right of Peaceful is an exercise picketing its right labor has the to communicate speech. Organized placards. or the use of by by views word of mouth either method persua- This is more nor less than a of nothing pur- ceases be used for the picketing sion. But when to steps over the line the minute it pose from persuasion just— persuasion protection to loses the coercion —it speech, person of free and a guaranty the constitutional acts to a court of persons may apply its injured equity for relief. Coun., 193, 206, Seattle Cent. Labor 27 Wn.2d

Swenson v. 873, (1947), cited Gazzam v. P.2d 170 A.L.R. 1082 177 Building Local 29 Employees Serv. Wn.2d Homes, Audubon P.2d 11 A.L.R.2d 1330 Coun., Bldg. v. & Constr. Trades 49 Wn.2d Spokane Inc. (1956), denied, cert. P.2d "aggressive, The fact that the sidewalk became (as disorderly, the trial court described and coercive" here) in then proceeding does not justify totally to render it right picket so restrict held Supreme As the United States Court meaningless. 496, 515-16, Org., Indus. Hague Committee for L. Ed. 59 S. citizens Ct. one important issues is discuss their views publicly society our holds dear: rest, they parks Wherever have the title streets and in the the immemorially been held trust for use of assembly, . . for of purposes and . have been used public communicating thoughts citizens, and discussing between public of the streets and questions. Such use public places times, of has, part privi- been a the from ancient immunities, The and liberties of citizens. leges, rights, the citizen the United States to use privilege of a on national of views parks streets and communication all; in the it is not regulated be interest questions may in subordi- absolute, relative, must be exercised but and convenience, and and general nation the comfort not, order; but it must peace good with and consonance or denied. guise regulation, аbridged the mine.) First (Italics The that "the majority concedes ability Amendment curtails the sharply government's expressive public restrict conduct" forums permissibly as sidewalks. at 222. I Majority, such streets and believe place per- that restriction contained in trial court's injunction unconstitutionally manent abridges pro- abortion, express tected of citizens to views on their undeniably which is national issue that has aroused con- public siderable debate. place

As the majority acknowledges, also restrictions on constitutionally expression only valid if protected are nar- rowly significant tailored to serve a government interest.12 significant The interests that cites majority justifica- imposed for the geographical picket- tion restriction (1) facilitating ers actual into and ingress access from Building Medical reducing coercive impact upon patients staff of Medical Build- ing.

It is note interesting to the permanent injunction by the ordered trial court does both protect of these inter- ests and does independently so it of the restriction imposes. also restricting picketers addition to to the location, Stevens Avenue the injunction properly prohibits the abortion picketers "interfering from or ingress egress at the or building parking lots to south or south- east of the premises", "threatening, assaulting, intim- idating anyone leaving or coercing entering Medical any activity unlawful Building", "engaging and from Thus, patients." at respondent-physicians directed or their anyone provisions one of these three who violates regardless contempt will be liable for of where is Building picketing. around the Medical he or she That is appropriate legal. both therefore, injunction, geographical constitutionally surplusage unnecessarily restrains Grace, Ass'n, 177; Perry Perry 12 See Educ. Ass'n v. Local Educators' If on antiabor

protected expression. place restriction the (in on is of the trial court opinion tion needed the picketers in the remand), other contained given the restrictions unduly from the broad it should narrowed injunction, majority I the currently agree effect. with place restraint narrowed could be place 231 that the restriction page (2) (1) them to picketers, requiring limiting numbers walkway leading to away from the remain a certain distance file, or entrance, (3) picket single requiring them I because depart majority I from the all of the above. should to the trial court hold that the remand would narrow injunction's instructions to that court to include upon picketers. the antiabortion place placed restriction view, trial court limited to a location when the my down from entrance to the corner and the block around it left no channel communica building, alternative and, consequence, place picketers to the as a open tion overly unnecessarily was broad and restrictive.13 restriction protections accord to the could the same patrons resorting of the clinic and their doctors without that. reasons, respectfully I foregoing

For dissent part only majority's opinion upholds that which injunction, restrictions the tried and from place court's contempt convictions thereon. based complete J. (dissenting) agreement am—I Goodloe, separately only I Justice Andersen's dissent. write if, remand, is restriction ‍​​​​‌​​‌​​​​‌‌​​‌​‌‌‌​‌‌‌​​​​‌‌​‌‌​‌‌​‌‌​‌‌‌​​‌​‍narrower note specifically such should state imposed Any injunction picketers may not be. where necessarily too only where the shall be states anyplace logically precludes being them from broad else. Inc., Counselling, Co. v. 13 Parkmed 91 A.D.2d Pro-Life 27, 29

N.Y.S.2d

Case Details

Case Name: Bering v. Share

Court Name: Washington Supreme Court

Date Published: Jun 19, 1986

Citation: 721 P.2d 918

Docket Number: 51533-6

Court Abbreviation: Wash.