MADSEN ET AL. v. WOMEN‘S HEALTH CENTER, INC., ET AL.
No. 93-880
Supreme Court of the United States
Argued April 28, 1994—Decided June 30, 1994
512 U.S. 753
Mathew D. Staver argued the cause for petitioners. With him on the briefs were Jeffery T. Kipi and Christopher J. Weiss.
Talbot D‘Alemberte argued the cause for respondents. With him on the brief was Susan England.
Solicitor General Days argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Assistant Attorney General Hunger, Deputy Solicitor General Bender, Beth S. Brinkmann, Anthony J. Steinmeyer, and Jonathan R. Siegel.*
*Briefs of amici curiae urging reversal were filed for the American Family Association by Scott L. Thomas; for the Christian Legal Society et al. by Edward McGlynn Gaffney, Jr., Steven T. McFarland, and Victor G. Rosenblum; for Defendants Operation Rescue et al. by Jay Alan Sekulow, Walter M. Weber, Mark N. Troobnick, James M. Henderson, Sr., Thomas Patrick Monaghan, Keith A. Fournier, and John Stepanovich; for the National Right to Life Committee, Inc., by James Bopp, Jr., and Richard E. Coleson; and for the Rutherford Institute by John W. Whitehead and Alexis I. Crow.
Briefs of amici curiae urging affirmance were filed for the State of Florida et al. by Robert A. Butterworth, Attorney General of Florida, Ger-
Laurence Gold and Walter Kamiat filed a brief for the American Federation of Labor and Congress of Industrial Organizations as amicus curiae.
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
Petitioners challenge the constitutionality of an injunction entered by a Florida state court which prohibits antiabortion protesters from demonstrating in certain places and in various ways outside of a health clinic that performs abortions. We hold that the establishment of a 36-foot buffer zone on a public street from which demonstrators are excluded passes muster under the First Amendment, but that several other provisions of the injunction do not.
I
Respondents operate abortion clinics throughout central Florida. Petitioners and other groups and individuals are
The court found that, despite the initial injunction, protesters continued to impede access to the clinic by congregating on the paved portion of the street—Dixie Way—leading up to the clinic, and by marching in front of the clinic‘s driveways. It found that as vehicles heading toward the clinic slowed to allow the protesters to move out of the way, “sidewalk counselors” would approach and attempt to give the vehicle‘s occupants antiabortion literature. The number of people congregating varied from a handful to 400, and the noise varied from singing and chanting to the use of loudspeakers and bullhorns.
The protests, the court found, took their toll on the clinic‘s patients. A clinic doctor testified that, as a result of having to run such a gauntlet to enter the clinic, the patients “manifested a higher level of anxiety and hypertension causing those patients to need a higher level of sedation to undergo the surgical procedures, thereby increasing the risk associated with such procedures.” App. 54. The noise produced by the protesters could be heard within the clinic, causing stress in the patients both during surgical procedures and while recuperating in the recovery rooms. And those patients who turned away because of the crowd to return at a
Doctors and clinic workers, in turn, were not immune even in their homes. Petitioners picketed in front of clinic employees’ residences; shouted at passersby; rang the doorbells of neighbors and provided literature identifying the particular clinic employee as a “baby killer.” Occasionally, the protesters would confront minor children of clinic employees who were home alone.
This and similar testimony led the state court to conclude that its original injunction had proved insufficient “to protect the health, safety and rights of women in Brevard and Seminole County, Florida and surrounding counties seeking access to [medical and counseling] services.” Id., at 5. The state court therefore amended its prior order, enjoining a broader array of activities. The amended injunction prohibits petitioners1 from engaging in the following acts:
“(1) At all times on all days, from entering the premises and property of the Aware Woman Center for Choice [the Melbourne clinic]. . . .
“(2) At all times on all days, from blocking, impeding, inhibiting, or in any other manner obstructing or interfering with access to, ingress into and egress from any building or parking lot of the Clinic.
“(3) At all times on all days, from congregating, picketing, patrolling, demonstrating or entering that portion of public right-of-way or private property within [36] feet of the property line of the Clinic. . . . An exception to the 36 foot buffer zone is the area immediately adjacent to the Clinic on the east. . . . The [petitioners] . . . must remain at least [5] feet from the Clinic‘s east line.
Another exception to the 36 foot buffer zone relates to the record title owners of the property to the north and west of the Clinic. The prohibition against entry into the 36 foot buffer zones does not apply to such persons and their invitees. The other prohibitions contained herein do apply, if such owners and their invitees are acting in concert with the [petitioners]. . . .
“(4) During the hours of 7:30 a.m. through noon, on Mondays through Saturdays, during surgical procedures and recovery periods, from singing, chanting, whistling, shouting, yelling, use of bullhorns, auto horns, sound amplification equipment or other sounds or images observable to or within earshot of the patients inside the Clinic.
“(5) At all times on all days, in an area within [300] feet of the Clinic, from physically approaching any person seeking the services of the Clinic unless such person indicates a desire to communicate by approaching or by inquiring of the [petitioners]. . . .
“(6) At all times on all days, from approaching, congregating, picketing, patrolling, demonstrating or using bullhorns or other sound amplification equipment within [300] feet of the residence of any of the [respondents‘] employees, staff, owners or agents, or blocking or attempting to block, barricade, or in any other manner, temporarily or otherwise, obstruct the entrances, exits or driveways of the residences of any of the [respondents‘] employees, staff, owners or agents. The [petitioners] and those acting in concert with them are prohibited from inhibiting or impeding or attempting to impede, temporarily or otherwise, the free ingress or egress of persons to any street that provides the sole access to the street on which those residences are located.
“(7) At all times on all days, from physically abusing, grabbing, intimidating, harassing, touching, pushing, shoving, crowding or assaulting persons entering or
leaving, working at or using services at the [respondents‘] Clinic or trying to gain access to, or leave, any of the homes of owners, staff or patients of the Clinic. . . . “(8) At all times on all days, from harassing, intimidating or physically abusing, assaulting or threatening any present or former doctor, health care professional, or other staff member, employee or volunteer who assists in providing services at the [respondents‘] Clinic.
“(9) At all times on all days, from encouraging, inciting, or securing other persons to commit any of the prohibited acts listed herein.” Operation Rescue v. Women‘s Health Center, Inc., 626 So. 2d 664, 679-680 (Fla. 1993).
The Florida Supreme Court upheld the constitutionality of the trial court‘s amended injunction. 626 So. 2d 664. That court recognized that the forum at issue, which consists of public streets, sidewalks, and rights-of-way, is a traditional public forum. Id., at 671, citing Frisby v. Schultz, 487 U. S. 474, 480 (1988). It then determined that the restrictions are content neutral, and it accordingly refused to apply the heightened scrutiny dictated by Perry Ed. Assn. v. Perry Local Educators’ Assn., 460 U. S. 37, 45 (1983) (To enforce a content-based exclusion the State must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end). Instead, the court analyzed the injunction to determine whether the restrictions are “narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.” Ibid. It concluded that they were.
Shortly before the Florida Supreme Court‘s opinion was announced, the United States Court of Appeals for the Eleventh Circuit heard a separate challenge to the same injunction. The Court of Appeals struck down the injunction, characterizing the dispute as a clash “between an actual prohibition of speech and a potential hinderance to the free exercise of abortion rights.” Cheffer v. McGregor, 6 F. 3d 705,
II
We begin by addressing petitioners’ contention that the state court‘s order, because it is an injunction that restricts only the speech of antiabortion protesters, is necessarily content or viewpoint based. Accordingly, they argue, we should examine the entire injunction under the strictest standard of scrutiny. See Perry Ed. Assn., supra, at 45. We disagree. To accept petitioners’ claim would be to classify virtually every injunction as content or viewpoint based. An injunction, by its very nature, applies only to a particular group (or individuals) and regulates the activities, and perhaps the speech, of that group. It does so, however, because of the group‘s past actions in the context of a specific dispute between real parties. The parties seeking the injunction assert a violation of their rights; the court hearing the action is charged with fashioning a remedy for a specific deprivation, not with the drafting of a statute addressed to the general public.
The fact that the injunction in the present case did not prohibit activities of those demonstrating in favor of abortion is justly attributable to the lack of any similar demonstrations by those in favor of abortion, and of any consequent request that their demonstrations be regulated by injunction. There is no suggestion in this record that Florida law
Our principal inquiry in determining content neutrality is whether the government has adopted a regulation of speech “without reference to the content of the regulated speech.” Ward v. Rock Against Racism, 491 U. S. 781, 791 (1989) (internal quotation marks omitted) (upholding noise regulations); R. A. V. v. St. Paul, 505 U. S. 377, 386 (1992) (“The government may not regulate [speech] based on hostility—or favoritism—towards the underlying message expressed“); see also Arkansas Writers’ Project, Inc. v. Ragland, 481 U. S. 221, 230 (1987); Regan v. Time, Inc., 468 U. S. 641, 648-649 (1984); Metromedia, Inc. v. San Diego, 453 U. S. 490, 514-515 (1981) (plurality opinion); Carey v. Brown, supra, at 466-468. We thus look to the government‘s purpose as the threshold consideration. Here, the state court imposed restrictions on petitioners incidental to their antiabortion message because they repeatedly violated the court‘s original order. That petitioners all share the same viewpoint regarding abortion does not in itself demonstrate that some invidious content- or viewpoint-based purpose motivated the issuance of the order. It suggests only that those in the group whose conduct violated the court‘s order happen to share the same opinion regarding abortions being performed at the clinic. In short, the fact that the injunction covered people with a particular viewpoint does not itself render the injunction content or viewpoint based. See Boos v. Barry, 485 U. S. 312 (1988).2 Accordingly, the injunction issued in
this case does not demand the level of heightened scrutiny set forth in Perry Ed. Assn., 460 U. S., at 45. And we proceed to discuss the standard which does govern.
III
If this were a content-neutral, generally applicable statute, instead of an injunctive order, its constitutionality would be assessed under the standard set forth in Ward v. Rock Against Racism, supra, at 791, and similar cases. Given that the forum around the clinic is a traditional public forum, see Frisby v. Schultz, 487 U. S., at 480, we would determine whether the time, place, and manner regulations were “narrowly tailored to serve a significant governmental interest.” Ward, supra, at 791. See also Perry Ed. Assn., supra, at 45.
There are obvious differences, however, between an injunction and a generally applicable ordinance. Ordinances represent a legislative choice regarding the promotion of particular societal interests. Injunctions, by contrast, are remedies imposed for violations (or threatened violations) of a legislative or judicial decree. See United States v. W. T. Grant Co., 345 U. S. 629, 632-633 (1953). Injunctions also carry greater risks of censorship and discriminatory application than do general ordinances. “[T]here is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally.” Railway Express Agency, Inc. v. New York, 336 U. S. 106, 112-113 (1949). Injunctions, of course, have some advantages over generally applicable statutes in that they can be tailored by a trial judge to afford more precise relief than a statute where a violation of the law has already occurred. United States v. Paradise, 480 U. S. 149 (1987).
We believe that these differences require a somewhat more stringent application of general First Amendment principles in this context.3 In past cases evaluating injunctions restricting speech, see, e. g., NAACP v. Claiborne Hardware Co., 458 U. S. 886 (1982), Milk Wagon Drivers v. Meadowmoor Dairies, Inc., 312 U. S. 287 (1941), we have relied upon such general principles while also seeking to ensure that the injunction was no broader than necessary to achieve its desired goals. See Carroll v. President and Comm‘rs of Princess Anne, 393 U. S. 175 (1968); Claiborne Hardware, supra, at 912, n. 47. Our close attention to the fit between the objectives of an injunction and the restrictions it imposes on speech is consistent with the general rule, quite apart from First Amendment considerations, “that injunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.” Califano v. Yamasaki, 442 U. S. 682, 702 (1979). See also Dayton Bd. of Ed. v. Brinkman, 433 U. S. 406, 418-420 (1977). Accordingly, when evaluating a content-neutral injunction, we think that our standard time, place, and manner analysis is not sufficiently rigorous. We must ask instead whether the challenged provisions of the injunction burden no more speech than necessary to serve a significant government interest. See, e. g., Claiborne Hardware, supra, at 916 (when sanctionable “conduct occurs in the context of constitutionally protected activity . . . ‘precision of regulation’ is
Both JUSTICE STEVENS and JUSTICE SCALIA disagree with the standard we announce, for policy reasons. See post, at 778 (STEVENS, J.); post, at 792-794 (SCALIA, J.). JUSTICE STEVENS believes that “injunctive relief should be judged by a more lenient standard than legislation,” because injunctions are imposed on individuals or groups who have engaged in illegal activity. post, at 778. JUSTICE SCALIA, by contrast, believes that content-neutral injunctions are “at least as deserving of strict scrutiny as a statutory, content-based restriction.” post, at 792. JUSTICE SCALIA bases his belief on the danger that injunctions, even though they might not “attack content as content,” may be used to suppress particular ideas; that individual judges should not be trusted to impose injunctions in this context; and that an injunction is procedurally more difficult to challenge than a statute. post, at 793-794. We believe that consideration of all of the differences and similarities between statutes and injunctions supports, as a matter of policy, the standard we apply here.
JUSTICE SCALIA further contends that precedent compels the application of strict scrutiny in this case. Under that standard, we ask whether a restriction is “necessary to serve a compelling state interest and [is] narrowly drawn to achieve that end.” post, at 790 (quoting Perry Ed. Assn., supra, at 45). JUSTICE SCALIA fails to cite a single case, and we are aware of none, in which we have applied this standard to a content-neutral injunction. He cites a number of cases in which we have struck down, with little or no elaboration, prior restraints on free expression. See post, at 798 (citing cases). As we have explained, however, we do not believe that this injunction constitutes a prior restraint, and we therefore believe that the “heavy presumption” against its constitutionality does not obtain here. See n. 2, supra.
As for Carroll, JUSTICE SCALIA believes that the “standard” adopted in that case “is strict scrutiny,” which “does not remotely resemble the Court‘s new proposal.” post, at 799. Comparison of the language used in Carroll and the wording of the standard we adopt, however, belies JUSTICE SCALIA‘s exaggerated contention. Carroll, for example, requires that an injunction be “couched in the narrowest terms that will accomplish the pin-pointed objective” of the injunction. 393 U. S., at 183. We require that the injunction “burden no more speech than necessary” to accomplish its objective. We fail to see a difference between the two standards.
The Florida Supreme Court concluded that numerous significant government interests are protected by the injunction. It noted that the State has a strong interest in protecting a woman‘s freedom to seek lawful medical or counseling services in connection with her pregnancy. See
A
1
We begin with the 36-foot buffer zone. The state court prohibited petitioners from “congregating, picketing, patrolling, demonstrating or entering” any portion of the public right-of-way or private property within 36 feet of the property line of the clinic as a way of ensuring access to the clinic. This speech-free buffer zone requires that petitioners move
We have noted a distinction between the type of focused picketing banned from the buffer zone and the type of generally disseminated communication that cannot be completely banned in public places, such as handbilling and solicitation. See Frisby, supra, at 486 (“The type of focused picketing prohibited by [the state court injunction] is fundamentally different from more generally directed means of communication that may not be completely banned in [public places]“). Here the picketing is directed primarily at patients and staff of the clinic.
The 36-foot buffer zone protecting the entrances to the clinic and the parking lot is a means of protecting unfettered ingress to and egress from the clinic, and ensuring that petitioners do not block traffic on Dixie Way. The state court seems to have had few other options to protect access given the narrow confines around the clinic. As the Florida Supreme Court noted, Dixie Way is only 21 feet wide in the area of the clinic. App. 260, 305. The state court was convinced that allowing petitioners to remain on the clinic‘s sidewalk and driveway was not a viable option in view of the failure of the first injunction to protect access. And allowing the petitioners to stand in the middle of Dixie Way would obviously block vehicular traffic.
The need for a complete buffer zone near the clinic entrances and driveway may be debatable, but some deference
JUSTICE SCALIA‘s dissent argues that a videotape made of demonstrations at the clinic represents “what one must presume to be the worst of the activity justifying the injunction.” post, at 785-786. This seems to us a gratuitous assumption. The videotape was indeed introduced by respondents, presumably because they thought it supported their request for the second injunction. But witnesses also testified as to relevant facts in a 3-day evidentiary hearing, and the state court was therefore not limited to JUSTICE SCALIA‘s rendition of what he saw on the videotape to make its findings in support of the second injunction. Indeed, petitioners themselves studiously refrained from challenging the factual basis for the injunction both in the state courts and here. Before the Florida Supreme Court, petitioners stated that “the Amended Permanent Injunction contains fundamental error on its face. The sole question presented
2
The inclusion of private property on the back and side of the clinic in the 36-foot buffer zone raises different concerns. The accepted purpose of the buffer zone is to protect access to the clinic and to facilitate the orderly flow of traffic on Dixie Way. Patients and staff wishing to reach the clinic do not have to cross the private property abutting the clinic property on the north and west, and nothing in the record indicates that petitioners’ activities on the private property have obstructed access to the clinic. Nor was evidence presented that protestors located on the private property blocked vehicular traffic on Dixie Way. Absent evidence that petitioners standing on the private property have obstructed access to the clinic, blocked vehicular traffic, or otherwise unlawfully interfered with the clinic‘s operation, this portion of the buffer zone fails to serve the significant government interests relied on by the Florida Supreme Court. We hold that on the record before us the 36-foot buffer zone as applied to the private property to the north and west of the clinic burdens more speech than necessary to protect access to the clinic.
In response to high noise levels outside the clinic, the state court restrained the petitioners from “singing, chanting, whistling, shouting, yelling, use of bullhorns, auto horns, sound amplification equipment or other sounds or images observable to or within earshot of the patients inside the [c]linic” during the hours of 7:30 a.m. through noon on Mondays through Saturdays. We must, of course, take account of the place to which the regulations apply in determining whether these restrictions burden more speech than necessary. We have upheld similar noise restrictions in the past, and as we noted in upholding a local noise ordinance around public schools, “the nature of a place, ‘the pattern of its normal activities, dictate the kinds of regulations . . . that are reasonable.‘” Grayned v. City of Rockford, 408 U. S. 104, 116 (1972). Noise control is particularly important around hospitals and medical facilities during surgery and recovery periods, and in evaluating another injunction involving a medical facility, we stated:
“Hospitals, after all, are not factories or mines or assembly plants. They are hospitals, where human ailments are treated, where patients and relatives alike often are under emotional strain and worry, where pleasing and comforting patients are principal facets of the day‘s activity, and where the patient and his family . . . need a restful, uncluttered, relaxing, and helpful atmosphere.” NLRB v. Baptist Hospital, Inc., 442 U. S. 773, 783-784, n. 12 (1979), quoting Beth Israel Hospital v. NLRB, 437 U. S. 483, 509 (1978) (BLACKMUN, J., concurring in judgment).
We hold that the limited noise restrictions imposed by the state court order burden no more speech than necessary to ensure the health and well-being of the patients at the clinic. The First Amendment does not demand that patients at a medical facility undertake Herculean efforts to escape the
cacophony of political protests. “If overamplified loudspeakers assault the citizenry, government may turn them down.” Grayned, supra, at 116. That is what the state court did here, and we hold that its action was proper.
C
The same, however, cannot be said for the “images observable” provision of the state court‘s order. Clearly, threats to patients or their families, however communicated, are proscribable under the
D
The state court ordered that petitioners refrain from physically approaching any person seeking services of the clinic “unless such person indicates a desire to communicate” in an area within 300 feet of the clinic. The state court was attempting to prevent clinic patients and staff from being “stalked” or “shadowed” by the petitioners as they approached the clinic. See International Soc. for Krishna Consciousness, Inc. v. Lee, 505 U. S. 672, 684 (1992) (“[F]ace-to-face solicitation presents risks of duress that are an appro
But it is difficult, indeed, to justify a prohibition on all uninvited approaches of persons seeking the services of the clinic, regardless of how peaceful the contact may be, without burdening more speech than necessary to prevent intimidation and to ensure access to the clinic. Absent evidence that the protesters’ speech is independently proscribable (i. e., “fighting words” or threats), or is so infused with violence as to be indistinguishable from a threat of physical harm, see Milk Wagon Drivers, 312 U. S., at 292-293, this provision cannot stand. “As a general matter, we have indicated that in public debate our own citizens must tolerate insulting, and even outrageous, speech in order to provide adequate breathing space to the freedoms protected by the
E
The final substantive regulation challenged by petitioners relates to a prohibition against picketing, demonstrating, or using sound amplification equipment within 300 feet of the residences of clinic staff. The prohibition also covers impeding access to streets that provide the sole access to streets on which those residences are located. The same analysis applies to the use of sound amplification equipment here as that discussed above: the government may simply demand that petitioners turn down the volume if the protests overwhelm the neighborhood. Grayned, 408 U. S., at 116.
But the 300-foot zone around the residences in this case is much larger than the zone provided for in the ordinance which we approved in Frisby. The ordinance at issue there made it “unlawful for any person to engage in picketing before or about the residence or dwelling of any individual.” Id., at 477. The prohibition was limited to “focused picketing taking place solely in front of a particular residence.” Id., at 483. By contrast, the 300-foot zone would ban “general marching through residential neighborhoods, or even walking a route in front of an entire block of houses.” Ibid. The record before us does not contain sufficient justification for this broad a ban on picketing; it appears that a limitation on the time, duration of picketing, and number of pickets outside a smaller zone could have accomplished the desired result.
IV
Petitioners also challenge the state court‘s order as being vague and overbroad. They object to the portion of the injunction making it applicable to those acting “in concert” with the named parties. But petitioners themselves are named parties in the order, and they therefore lack standing to challenge a portion of the order applying to persons who are not parties. Nor is that phrase subject, at the behest of petitioners, to a challenge for “overbreadth“; the phrase itself does not prohibit any conduct, but is simply directed at unnamed parties who might later be found to be acting “in concert” with the named parties. As such, the case is governed by our holding in Regal Knitwear Co. v. NLRB, 324 U. S. 9, 14 (1945). There a party subject to an injunction
Petitioners also contend that the “in concert” provision of the injunction impermissibly limits their freedom of association guaranteed by the
V
In sum, we uphold the noise restrictions and the 36-foot buffer zone around the clinic entrances and driveway because they burden no more speech than necessary to eliminate the unlawful conduct targeted by the state court‘s injunction. We strike down as unconstitutional the 36-foot buffer zone as applied to the private property to the north and west of the clinic, the “images observable” provision, the 300-foot no-approach zone around the clinic, and the 300-foot buffer zone around the residences, because these provisions sweep more broadly than necessary to accomplish the permissible goals of the injunction. Accordingly, the judgment of the Florida Supreme Court is
Affirmed in part and reversed in part.
JUSTICE SOUTER, concurring.
I join the Court‘s opinion and write separately only to clarify two matters in the record. First, the trial judge made reasonably clear that the issue of who was acting “in concert” with the named defendants was a matter to be taken up in
JUSTICE STEVENS, concurring in part and dissenting in part.
The certiorari petition presented three questions, corresponding to petitioners’ three major challenges to the trial court‘s injunction.1 The Court correctly and unequivocally rejects petitioners’ argument that the injunction is a “content-based restriction on free speech,” ante, at 762-764, as well as their challenge to the injunction on the basis that it applies to persons acting “in concert” with them, ante, at 775-776. I therefore join Parts II and IV of the Court‘s opinion, which properly dispose of the first and third questions presented. I part company with the Court, however, on its treatment of the second question presented, including its enunciation of the applicable standard of review.
I agree with the Court that a different standard governs
The standard governing injunctions has two obvious dimensions. On the one hand, the injunction should be no more burdensome than necessary to provide complete relief, Califano v. Yamasaki, 442 U. S. 682, 702 (1979). In a
On the other hand, even when an injunction impinges on constitutional rights, more than “a simple proscription
In this case, the trial judge heard three days of testimony and found that petitioners not only had engaged in tortious conduct, but also had repeatedly violated an earlier injunction. The injunction is thus twice removed from a legislative proscription applicable to the general public and should be judged by a standard that gives appropriate deference to the judge‘s unique familiarity with the facts.
II
The second question presented by the certiorari petition asks whether the “consent requirement before speech is permitted” within a 300-foot buffer zone around the clinic unconstitutionally infringes on free speech.3 Petitioners contend that these restrictions create a “no speech” zone in which they cannot speak unless the listener indicates a positive
That paragraph does not purport to prohibit speech; it prohibits a species of conduct. Specifically, it prohibits petitioners “from physically approaching any person seeking the services of the Clinic unless such person indicates a desire to communicate by approaching or by inquiring” of petitioners. App. 59. The meaning of the term “physically approaching” is explained by the detailed prohibition that applies when the patient refuses to converse with, or accept delivery of literature from, petitioners. Absent such consent, the petitioners “shall not accompany such person, encircle, surround, harass, threaten or physically or verbally abuse those individuals who choose not to communicate with them.” Ibid. As long as petitioners do not physically approach patients in this manner, they remain free not only to communicate with the public but also to offer verbal or written advice on an individual basis to the clinic‘s patients through their “sidewalk counseling.”
The “physically approaching” prohibition entered by the trial court is no broader than the protection necessary to provide relief for the violations it found. The trial judge entered this portion of the injunction only after concluding that the injunction was necessary to protect the clinic‘s patients and staff from “uninvited contacts, shadowing and stalking” by petitioners. App. 56. The protection is especially appropriate for the clinic patients given that the trial judge found that petitioners’ prior conduct caused higher levels of “anxiety and hypertension” in the patients, increasing the risks associated with the procedures that the patients
The Florida Supreme Court correctly concluded:
“While the First Amendment confers on each citizen a powerful right to express oneself, it gives the picketer no boon to jeopardize the health, safety, and rights of others. No citizen has a right to insert a foot in the hospital or clinic door and insist on being heard—while purposefully blocking the door to those in genuine need of medical services. No picketer can force speech into the captive ear of the unwilling and disabled.” Operation Rescue v. Women‘s Health Center, Inc., 626 So. 2d 664, 675 (1993).
I thus conclude that, under the circumstances of this case, the prohibition against “physically approaching” in the 300-foot zone around the clinic withstands petitioners’
III
Because I have joined Parts I, II, III-E, and IV of the Court‘s opinion and have dissented as to Part III-D after concluding that the 300-foot zone around the clinic is a reasonable time, place, and manner restriction, no further discussion is necessary. See n. 1, supra. The Court, however, proceeds to address challenges to the injunction that, al
After correctly rejecting the content-based challenge to the 36-foot buffer zone raised by the first question in the certiorari petition, the Court nevertheless decides to modify the portion of that zone that it believes does not protect ingress to the clinic. Petitioners, however, presented only a content-based challenge to the 36-foot zone; they did not present a time, place, and manner challenge. See n. 1, supra. They challenged only the 300-foot zones on this ground. Ibid. The scope of the 36-foot zone is thus not properly before us. Izumi Seimitsu Kogyo Kabushiki Kaisha v. U. S. Philips Corp., 510 U. S. 27 (1993) (per curiam).7
The same is true of the noise restrictions and the “images observable” provision of ¶ (4).8 That paragraph does not refer to the 36-foot or the 300-foot buffer zones, nor does it relate to the constitutionality of the “in concert” provision. As such, although I am inclined to agree with the Court‘s resolution respecting the noise and images restrictions, I believe the Court should refrain from deciding their constitutionality because they are not challenged by the questions on which certiorari was granted.
IV
For the reasons stated, I concur in Parts I, II, III-E, and IV of the Court‘s opinion, and respectfully dissent from the remaining portions.
JUSTICE SCALIA, with whom JUSTICE KENNEDY and JUSTICE THOMAS join, concurring in the judgment in part and dissenting in part.
The judgment in today‘s case has an appearance of moderation and Solomonic wisdom, upholding as it does some
But the context here is abortion. A long time ago, in dissent from another abortion-related case, JUSTICE O‘CONNOR, joined by then-JUSTICE REHNQUIST, wrote:
“This Court‘s abortion decisions have already worked a major distortion in the Court‘s constitutional jurisprudence. Today‘s decision goes further, and makes it painfully clear that no legal rule or doctrine is safe from ad hoc nullification by this Court when an occasion for its application arises in a case involving state regulation of abortion. The permissible scope of abortion regulation is not the only constitutional issue on which this Court is divided, but—except when it comes to abortion—the Court has generally refused to let such disagreements, however longstanding or deeply felt, prevent it from evenhandedly applying uncontroversial legal doctrines to cases that come before it.” Thornburgh v. American College of Obstetricians and Gynecologists, 476 U. S. 747, 814 (1986) (citations omitted).
Today the ad hoc nullification machine claims its latest, greatest, and most surprising victim: the
Because I believe that the judicial creation of a 36-foot zone in which only a particular group, which had broken no law, cannot exercise its rights of speech, assembly, and association, and the judicial enactment of a noise prohibition, applicable to that group and that group alone, are profoundly at odds with our
I
The record of this case contains a videotape, with running caption of time and date, displaying what one must presume
Anyone seriously interested in what this case was about must view that tape. And anyone doing so who is familiar with run-of-the-mine labor picketing, not to mention some other social protests, will be aghast at what it shows we have today permitted an individual judge to do. I will do my best to describe it.
On Saturday, March 6, 1993, a group of antiabortion protesters is gathered in front of the clinic, arrayed from east (camera-left) to west (camera-right) on the clinic side of Dixie Way, a small, nonartery street. Men, women, and children are also visible across the street, on the south side of Dixie Way; some hold signs and appear to be protesters, others may be just interested onlookers.
On the clinic side of the street, two groups confront each other across the line marking the south border of the clinic property—although they are so close together it is often impossible to tell them apart. On the clinic property (and with their backs to the camera) are a line of clinic and abortion-rights supporters, stretching the length of the property. Opposite them, and on the public right-of-way between the clinic property and Dixie Way itself, is a group of abortion opponents, some standing in place, others walking a picket line in an elongated oval pattern running the length of the property‘s south border. Melbourne police officers are visible at various times walking about in front of the
Clinic supporters are more or less steadily chanting the following slogans: “Our right, our right, our right, to decide“; “Right to life is a lie, you don‘t care if women die.” Then abortion opponents can be heard to sing: “Jesus loves the little children, all the children of the world, red and yellow, black and white, they are precious in His sight, Jesus loves the little children of the world.” Clinic supporters respond with: Q: “What do we want?” A: “Choice.” Q: “When do we want it?” A: “Now.” (“Louder!“) And that call and response is repeated. Later in the tape, clinic supporters chant “1-2-3-4, we won‘t take it anymore; 5-6-7-8, Separate the Church and State.” On placards held by picketers and by stationary protesters on both sides of the line, the following slogans are visible: “Abortionists lie to women.” “Choose Life: Abortion Kills.” “N.O.W. Violence.” “The God of Israel is Pro-life.” “RU 486 Now.” “She Is a Child, Not a Choice.” “Abortion Kills Children.” “Keep Abortion Legal.” “Abortion: God Calls It Murder.” Some abortion opponents wear T-shirts bearing the phrase “Choose Life.”
As the abortion opponents walk the picket line, they traverse portions of the public right-of-way that are crossed by paved driveways, on each side of the clinic, connecting the clinic‘s parking lot to the street. At one point an automobile moves west on Dixie Way and slows to turn into the westernmost driveway. There is a 3-to-4-second delay as the picketers, and then the clinic supporters, part to allow the car to enter. The camera cuts to a shot of another, parked car with a potato jammed onto the tailpipe. There is no footage of any person putting the potato on to the tailpipe.
Later, at a point when the crowd appears to be larger and the picketers more numerous, a red car is delayed approximately 10 seconds as the picketers (and clinic supporters) move out of the driveway. Police are visible helping to clear
The persons standing but not walking the picket line include a woman with a child in a stroller and a man shouting the Book of Daniel‘s account of Meshach, Shadrach, and Abednego. A woman on a stepladder holds up a sign in the direction of the clinic; a clinic supporter counters with a larger sign held up between the other and the clinic. A brief shot reveals an older man in a baseball cap—head, shoulders, and chest visible above the clinic fence—who appears to be reading silently from a small book. A man on clinic property holds a boom box out in the direction of the abortion opponents. As the crowd grows it appears at various points to have spilled over into the north-side, west-bound lane of Dixie Way.
At one point, Randall Terry arrives and the press converge upon him, apparently in Dixie Way itself. A sign is held near his head reading “Randall Terry Sucks.” Terry appears to be speaking to the press and at one point tears pages from a notebook of some kind. Through all of this, abortion opponents and abortion-rights supporters appear to be inches from one another on each side of the south border of the property. They exchange words, but at no time is there any violence or even any discernible jostling or physical contact between these political opponents.
The second segment of the videotape displays a group of approximately 40 to 50 persons walking along the side of a major highway. It is Saturday, March 13, 1993, at 9:56 a.m. The demonstrators walk in an oval pattern, carrying no signs or other visible indicators of their purpose. According to Ruth Arick, this second portion was filmed in front of the condominium where clinic owner Ed Windle lived.
A third segment begins. The date-time register indicates that it is the morning of Saturday, February 20, 1993. A teenage girl faces the clinic and exclaims: “Please don‘t let them kill me, Mommy. Help me, Daddy, please.” Clinic supporters chant, “We won‘t go back.” A second woman, the one who spoke at greatest length in the first segment, calls, “If you [inaudible], help her through it.” Off camera, a group sings “Roe, Roe, Roe v. Wade, we will never quit, Freedom of choice is the law of the land, better get used to it.” The woman from the first segment appears to address
The videotape and the rest of the record, including the trial court‘s findings, show that a great many forms of expression and conduct occurred in the vicinity of the clinic. These include singing, chanting, praying, shouting, the playing of music both from the clinic and from handheld boom boxes, speeches, peaceful picketing, communication of familiar political messages, handbilling, persuasive speech directed at opposing groups on the issue of abortion, efforts to persuade individuals not to have abortions, personal testimony, interviews with the press, and media efforts to report on the protest. What the videotape, the rest of the record, and the trial court‘s findings do not contain is any suggestion of violence near the clinic, nor do they establish any attempt to prevent entry or exit.
II
A
Under this Court‘s jurisprudence, there is no question that this public sidewalk area is a “public forum,” where citizens generally have a
I shall discuss the Court‘s mode of applying this supposedly new standard presently, but first I must remark upon the peculiar manner in which the standard was devised. The Court begins, in Part II of the opinion, by considering petitioners’ contention that, since the restriction is content based, strict scrutiny should govern. It rejects the premise, and hence rejects the conclusion. It then proceeds, in Part III, to examination of respondents’ contention that plain old
But this is not a statute, and it is an injunctive order. The Court might just as logically (or illogically) have begun Part III: “If this were a content-based injunction, rather than a non-content-based injunction, its constitutionality would be assessed under the strict scrutiny standard“—and have then proceeded to discuss whether respondents can sustain the burden of departing from that presumed disposition. The question should be approached, it seems to me, without any such artificial loading of the dice. And the central element of the answer is that a restriction upon speech imposed by injunction (whether nominally content based or nominally content neutral) is at least as deserving of strict scrutiny as a statutory, content-based restriction.
That is so for several reasons: The danger of content-based statutory restrictions upon speech is that they may be designed and used precisely to suppress the ideas in question rather than to achieve any other proper governmental aim.
The second reason speech-restricting injunctions are at least as deserving of strict scrutiny is obvious enough: They are the product of individual judges rather than of legislatures—and often of judges who have been chagrined by prior disobedience of their orders. The right to free speech should not lightly be placed within the control of a single man or woman. And the third reason is that the injunction is a much more powerful weapon than a statute, and so should be subjected to greater safeguards. Normally, when injunctions are enforced through contempt proceedings, only the defense of factual innocence is available. The collateral bar rule of Walker v. Birmingham, 388 U.S. 307 (1967), eliminates the defense that the injunction itself was unconstitutional. Accord, Dade County Classroom Teachers’ Assn. v. Rubin, 238 So. 2d 284, 288 (Fla. 1970). Thus, persons subject to a speech-restricting injunction who have not the money or not the time to lodge an immediate appeal face a Hobson‘s choice: They must remain silent, since if they speak their
The Court seeks to minimize the similarity between speech-restricting injunctions and content-based statutory proscriptions by observing that the fact that “petitioners all share the same viewpoint regarding abortion does not in itself demonstrate that some invidious content- or viewpoint-based purpose motivated the issuance of the order,” but rather “suggests only that those in the group whose conduct violated the court‘s order happen to share the same opinion regarding abortions,” ante, at 763. But the Court errs in thinking that the vice of content-based statutes is that they necessarily have the invidious purpose of suppressing particular ideas. “[O]ur cases have consistently held that ‘[i]llicit legislative intent is not the sine qua non of a violation of the
Finally, though I believe speech-restricting injunctions are dangerous enough to warrant strict scrutiny even when they are not technically content based, I think the injunction in the present case was content based (indeed, viewpoint based) to boot. The Court claims that it was directed, not at those who spoke certain things (antiabortion sentiments), but at those who did certain things (violated the earlier injunction). If that were true, then the injunction‘s residual coverage of “all persons acting in concert or participation with [the named individuals and organizations], or on their behalf,” would not include those who merely entertained the same beliefs and wished to express the same views as the named defendants. But the construction given to the injunction by the issuing judge, which is entitled to great weight, cf. Forsyth County v. Nationalist Movement, 505 U.S. 123, 132-133 (1992); NLRB v. Donnelly Garment Co., 330 U.S. 219, 227 (1947), is to the contrary: All those who wish to express the same views as the named defendants are deemed to be “acting in concert or participation.” Following issuance of the amended injunction, a number of persons were arrested for walking within the 36-foot speech-free zone. At an April 12, 1993, hearing before the trial judge who issued the injunction, the following exchanges occurred:
Mr. Lacy: “I was wondering how we can—why we were arrested and confined as being in concert with these people that we don‘t know, when other people weren‘t, that were in that same buffer zone, and it was kind of selective as to who was picked and who was arrested and who was obtained for the same buffer zone in the same public injunction.”
The Court: “Mr. Lacy, I understand that those on the other side of the issue [abortion-rights supporters] were also in the area. If you are referring to them, the Injunction did not pertain to those on the other side of the
issue, because the word in concert with means in concert with those who had taken a certain position in respect to the clinic, adverse to the clinic. If you are saying that is the selective basis that the pro-choice were not arrested when pro-life was arrested, that‘s the basis of that selection. . . .” Tr. 104-105 (Appearance Hearings Held Before Judge McGregor, Eighteenth Judicial Circuit, Seminole County, Florida (emphasis added)). And:
John Doe No. 16: “This was the first time that I was in this area myself and I had not attempted to block an entrance to a clinic in that town or anywhere else in the State of Florida in the last year or ever.
“I also understand that the reason why I was arrested was because I acted in concert with those who were demonstrating pro-life. I guess the question that I‘m asking is were the beliefs in ideologies of the people that were present, were those taken into consideration when we were arrested?
. . .
“. . . When you issued the Injunction did you determine that it would only apply to—that it would apply only to people that were demonstrating that were pro-life?”
The Court: “In effect, yes.” Id., at 113-116 (emphasis added).
And finally:
John Doe No. 31: “. . . How did the police determine that I was acting in concert with some organization that was named on this injunction? I again am a person who haven‘t seen this injunction. So how did the police determine that I was acting in concert?”
The Court: “They observed your activities and determined in their minds whether or not what you were
doing was in concert with the—I gather the pro-life position of the other, of the named Defendants.” Id., at 148 (emphasis added).
These colloquies leave no doubt that the revised injunction here is tailored to restrain persons distinguished, not by proscribable conduct, but by proscribable views.2
B
I have discussed, in the prior subsection, the policy reasons for giving speech-restricting injunctions, even content-neutral ones, strict scrutiny. There are reasons of precedent as well, which are essentially ignored by the Court.
To begin with, an injunction against speech is the very prototype of the greatest threat to
At oral argument neither respondents nor the Solicitor General, appearing as amicus for respondents, could identify a single speech-injunction case applying mere intermediate scrutiny (which differs little if at all from the Court‘s intermediate-intermediate scrutiny). We have, in our speech-injunction cases, affirmed both requirements that characterize strict scrutiny: compelling public need and surgical precision of restraint. Even when (unlike in the present case) the
The utter lack of support for the Court‘s test in our jurisprudence is demonstrated by the two cases the opinion relies upon. For the proposition that a speech restriction is valid when it “burden[s] no more speech than necessary to accomplish a significant government interest,” the Court cites NAACP v. Claiborne Hardware Co., supra, and Carroll v. President and Comm‘rs of Princess Anne, supra, at 184. But as I shall demonstrate in some detail below, Claiborne applied a much more stringent test; and the very text of Carroll contradicts the Court. In the passage cited, Carroll says this: “An order issued in the area of
III
A
I turn now from the Court‘s selection of a constitutional test to its actual application of that test to the facts of the present case. Before doing that, however, it will be helpful—in order to demonstrate how far the Court has departed from past practice—to consider how we proceeded in a relatively recent case that did not involve the disfavored class of abortion protesters. NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982), involved, like this case, protest demonstrations against private citizens mingling political speech with (what I will assume for the time being existed here) significant illegal behavior.4
Writing for the Court, JUSTICE STEVENS summarized the events giving rise to the Claiborne litigation (id., at 898–906): A local chapter of the NAACP, rebuffed by public officials of Port Gibson and Claiborne County in its request for redress of various forms of racial discrimination, began a boycott of local businesses. During the boycott, a young black man was shot and killed in an encounter with Port Gibson police and “sporadic acts of violence ensued.” Id., at 902. The following day, boycott leader Charles Evers told a group that boycott violators would be disciplined by their own people and warned that the sheriff “could not sleep with boycott violators at night.” Ibid. He stated at a second
The merchants brought suit against two groups involved in organizing the boycott and numerous individuals. The trial court found tort violations, violations of a state statute prohibiting secondary boycotts, and state antitrust violations. It issued a broad permanent injunction against the boycotters, enjoining them from stationing “store watchers” at the plaintiffs’ business premises; from persuading any person to withhold patronage; from using demeaning and obscene language to or about any person because of his patronage; from picketing or patrolling the premises of any of the respondents; and from using violence against any person or inflicting damage upon any real or personal property. Id., at 893. The Mississippi Supreme Court upheld the assessment of liability and the injunction, but solely on the tort theory, saying that “[i]f any of these factors—force, violence, or threats—is present, then the boycott is illegal regardless of whether it is primary, secondary, economical, political, social or other.‘” Id., at 895.
The legal analysis of this Court proceeded along the following lines:
“[T]he boycott . . . took many forms. [It] was launched at a meeting of the local branch of the NAACP.
[It was] attended by several hundred persons. Its acknowledged purpose was to secure compliance . . . with a lengthy list of demands for racial equality and racial justice. The boycott was supported by speeches and nonviolent picketing. Participants repeatedly encouraged others to join its cause. “Each of these elements of the boycott is a form of speech or conduct that is ordinarily entitled to protection under the First and Fourteenth Amendments. . . . ‘[T]he practice of persons sharing common views banding together to achieve a common end is deeply embedded in the American political process.’ We recognize that ‘by collective effort individuals can make their views known, when, individually, their voices would be faint or lost.‘” Id., at 907-908 (quoting Citizens Against Rent Control/Coalition for Fair Housing v. Berkeley, 454 U.S. 290, 294 (1981)).
We went on to say that “[t]he right to associate does not lose all constitutional protection merely because some members of the group may have participated in conduct or advocated doctrine that itself is not protected,” 458 U.S., at 908, and held that the nonviolent elements of the protesters’ activities were entitled to the protection of the
Because we recognized that the boycott involved elements of protected
B
I turn now to the Court‘s performance in the present case. I am content to evaluate it under the lax (intermediate-intermediate scrutiny) standard that the Court has adopted, because even by that distorted light it is inadequate.
The first step under the Court‘s standard would be, one should think, to identify the “significant government interest” that justifies the portions of the injunction it upheld, namely, the enjoining of speech in the 36-foot zone, and the making (during certain times) of “‘sounds . . . within earshot of the patients inside the [c]linic.‘” Ante, at 772. At one point in its opinion, the Court identifies a number of government interests: the “interest in protecting a woman‘s freedom to seek lawful medical or counseling services,” the “interest in ensuring the public safety and order, in promoting
Assuming then that the “significant interests” the Court mentioned must in fact be significant enough to be protected by state law (a concept that includes a prior court order), which law has been, or is about to be, violated, the question arises: What state law is involved here? The only one even mentioned is the original September 30, 1992, injunction,5 which had been issued (quite rightly, in my judgment) in re
“1) trespassing on, sitting in, blocking, impeding or obstructing ingress into or egress from any facility at which abortions are performed in Brevard and Seminole County Florida;
“2) physically abusing persons entering, leaving, working or using any services of any facility at which abortions are performed in Brevard and Seminole County, Florida; and
“3) attempting or directing others to take any of the actions described in Paragraphs 1 and 2 above.” Id., at 9.
According to the Court, the state court imposed the later injunction‘s “restrictions on petitioner[s‘] . . . antiabortion message because they repeatedly violated the court‘s original order.” Ante, at 763. Surprisingly, the Court accepts this reason as valid, without asking whether the court‘s findings of fact support it—whether, that is, the acts of which petitioners stood convicted were violations of the original injunction.
The Court simply takes this on faith—even though violation of the original injunction is an essential part of the reasoning whereby it approves portions of the amended injunction, even though petitioners denied any violation of the original injunction, even though the utter lack of proper basis for the other challenged portions of the injunction hardly inspires confidence that the lower courts knew what they were doing, and even though close examination of the factual basis for essential conclusions is the usual practice in
“despite the injunction of September 30, 1992, there has been interference with ingress to the petitioners’ facility . . . . [in] the form of persons on the paved portions of Dixie Way, some standing without any obvious relationship to others; some moving about, again without any obvious relationship to others; some holding signs, some not; some approaching, apparently trying to communicate with the occupants of motor vehicles moving on the paved surface; some marching in a circular picket line that traversed the entrance driveways to the two parking lots of the petitioners and the short section of sidewalk joining the two parking lots and then entering the paved portion of the north lane of Dixie Way and returning in the opposite direction. . . . Other persons would be standing, kneeling and sitting on the unpaved shoulders of the public right-of-way. As vehicular traffic approached the area it would, in response to the congestion, slow down. If the destination of such traffic was either of the two parking lots of the petitioners, such traffic slowed even more, sometimes having to momentarily hesitate or stop until persons in the driveway moved out of the way.” Amended Permanent Injunction ¶ A.
“As traffic slowed on Dixie Way and began its turn into the clinic‘s driveway, the vehicle would be approached by persons designated by the respondents as sidewalk counselors attempting to get the attention of the vehicles’ occupants to give them anti-abortion literature and to urge them not to use the clinic‘s services. Such so-called sidewalk counselors were assisted in ac
complishing their approach to the vehicle by the hesitation or momentary stopping caused by the time needed for the picket line to open up before the vehicle could enter the parking lot.” Id., ¶ E. “The . . . staff physician testified that on one occasion while he was attempting to enter the parking lot of the clinic, he had to stop his vehicle and remained stopped while respondent, Cadle, and others took their time to get out of the way . . . . This physician also testified that he witnessed the demonstrators running along side of and in front of patients’ vehicles, pushing pamphlets in car windows to persons who had not indicated any interest in such literature. . . .” Id., ¶ I (emphasis added).
On the basis of these findings Judge McGregor concluded that “the actions of the respondents and those in concert with them in the street and driveway approaches to the clinic of the plaintiffs continue to impede and obstruct both staff and patients from entering the clinic. The paved surfaces of the public right-of-way must be kept open for the free flow of traffic.” Id., Conclusions, ¶ A.6
These are the only findings and conclusions of the court that could conceivably be considered to relate to a violation of the original injunction. They all concern behavior by the protesters causing traffic on the street in front of the abortion clinic to slow down, and causing vehicles crossing the
Now let us compare these activities with the earlier injunction, violation of which is the asserted justification for the speech-free zone. Walking the return leg of the picket line on the paved portion of Dixie Way (instead of on the sidewalk), and congregating on the unpaved portion of that street, may, for all we know, violate some municipal ordinance (though that was not alleged, and the municipal police evidently did not seek to prevent it); but it assuredly did not violate the earlier injunction, which made no mention of such a prohibition. Causing the traffic along Dixie Way to slow down “in response to the congestion” is also irrelevant; the injunction said nothing about slowing down traffic on public rights-of-way. It prohibited the doing (or urging) of only three things: (1) “physically abusing persons entering, leaving, working or using any services” of the abortion clinic (there is no allegation of that); (2) “trespassing on [or] sitting in” the abortion clinic (there is no allegation of that); and (3) “blocking, impeding or obstructing ingress into or egress from” the abortion clinic.
Only the last of these has any conceivable application here, and it seems to me that it must reasonably be read to refer to intentionally blocking, impeding, or obstructing, and not to such temporary obstruction as may be the normal and incidental consequence of other protest activity. That is obvious, first of all, from the context in which the original injunction was issued—as a response to petitioners’ threatened
If the original injunction is read as it must be, there is nothing in the trial court‘s findings to suggest that it was violated. The Court today speaks of “the failure of the first injunction to protect access.” Ante, at 769. But the first injunction did not broadly “protect access.” It forbade particular acts that impeded access, to wit, intentionally “blocking, impeding or obstructing.” The trial court‘s findings identify none of these acts, but only a mild interference with access that is the incidental by-product of leafletting and picketing. There was no sitting down, no linking of arms, no packing en masse in the driveway; the most that can be alleged (and the trial court did not even make this a finding) is that on one occasion protesters “took their time to get out of the way.” If that is enough to support this one-man proscription of free speech, the
Perhaps there is a local ordinance in Melbourne, Florida, prohibiting loud noise in the vicinity of hospitals and abortion clinics. Or perhaps even a Florida common-law prohibition applies, rendering such noisemaking tortious. But the
The Court does not even attempt a response to the point I have made in this section, insofar as the injunction against noise is concerned. That portion of its opinion, ante, at 772–773, does not even allege any violation of the prior injunction to support this judge-crafted abridgment of speech. With respect to the 36-foot speech-free zone, the Court attempts a response, which displays either a misunderstanding of the point I have made or an effort to recast it into an answerable one. My point does not rely, as the Court‘s response suggests, ante, at 770, upon my earlier description of the videotape. That was set forth just for context, to show the reader what suppression of normal and peaceful social protest is afoot here. Nor is it relevant to my point that “petitioners themselves studiously refrained from challenging the factual basis for the injunction,” ibid. I accept the facts as the Florida court found them; I deny that those facts support its conclusion (set forth as such in a separate portion of its opinion, as quoted above) that the original injunction had been violated. The Court concludes its response as follows:
“We must therefore judge this case on the assumption that the evidence and testimony presented to the state court supported its findings that the presence of protesters standing, marching, and demonstrating near the clinic‘s entrance interfered with ingress to and egress from the clinic despite the issuance of the earlier injunction.” Ante, at 771.
But a finding that they “interfered with ingress and egress despite the . . . earlier injunction” is not enough. The
To sum up: The interests assertedly protected by the supplementary injunction did not include any interest whose impairment was a violation of Florida law or of a Florida court injunction. Unless the Court intends today to overturn long-settled jurisprudence, that means that the interests cannot possibly qualify as “significant interests” under the Court‘s new standard.
C
Finally, I turn to the Court‘s application of the second part of its test: whether the provisions of the injunction “burden no more speech than necessary” to serve the significant interest protected.
This test seems to me amply and obviously satisfied with regard to the noise restriction that the Court approves: It is only such noise as would reach the patients in the abortion clinic that is forbidden—and not even at all times, but only during certain fixed hours and “during surgical procedures and recovery periods.” (The latter limitation may raise vagueness and notice problems, but that does not concern us here. Moreover, as I have noted earlier, the noise restriction is invalid on other grounds.) With regard to the 36-foot speech-free zone, however, it seems to me just as obvious that the test which the Court sets for itself has not been met.
Assuming a “significant state interest” of the sort cognizable for injunction purposes (i. e., one protected by a law that has been or is threatened to be violated) in both (1) keeping
But I need not engage in such precise analysis, since the Court itself admits that the requirement is not to be taken seriously. “The need for a complete buffer zone,” it says, ”may be debatable, but some deference must be given to the state court‘s familiarity with the facts and the background of the dispute between the parties even under our heightened review.” Ante, at 769-770 (emphasis added). In application, in other words, the “burden no more speech than is necessary” test has become an “arguably burden no more speech than is necessary” test. This renders the Court‘s intermediate-intermediate scrutiny not only no more stringent than plain old intermediate scrutiny, but considerably less stringent.
*
In his dissent in Korematsu v. United States, 323 U.S. 214 (1944), the case in which this Court permitted the wartime military internment of Japanese-Americans, Justice Jackson wrote the following:
“A military order, however unconstitutional, is not apt to last longer than the military emergency. . . . But once a judicial opinion . . . rationalizes the Constitution to
show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.” Id., at 246.
What was true of a misguided military order is true of a misguided trial-court injunction. And the Court has left a powerful loaded weapon lying about today.
What we have decided seems to be, and will be reported by the media as, an abortion case. But it will go down in the lawbooks, it will be cited, as a free-speech injunction case—and the damage its novel principles produce will be considerable. The proposition that injunctions against speech are subject to a standard indistinguishable from (unless perhaps more lenient in its application than) the “intermediate scrutiny” standard we have used for “time, place, and manner” legislative restrictions; the notion that injunctions against speech need not be closely tied to any violation of law, but may simply implement sound social policy; and the practice of accepting trial-court conclusions permitting injunctions without considering whether those conclusions are supported by any findings of fact—these latest by-products of our abortion jurisprudence ought to give all friends of liberty great concern.
For these reasons, I dissent from that portion of the judgment upholding parts of the injunction.
APPENDIX TO OPINION OF JUSTICE SCALIA
Portions of April 12, 1993, Appearance Hearings Held Before Judge McGregor, Eighteenth Judicial Circuit, Seminole County, Florida:
Page 40:
JANE DOE NO. 6: “Yes, sir. When I heard this injunction, everything in there, as an American—”
JANE DOE NO. 6: “I do have a question, too. I‘m confused as to why the people who were blockading the clinic who had pro-choice signs were not arrested along with me. They—it appeared to me they were violating the same injunction I was, you know—”
THE COURT: “The Injunction is directed only against certain named Defendants, certain named organizations and those acting in concert with them. Presumably, as you say, the other side would not have been acting in concert with the named Defendants.”
JANE DOE NO. 6: “But I was in concert with nobody. I was just an American citizen, defending the right to assemble and to demonstrate.”
THE COURT: “Again, perhaps, that would be a matter of defense that you would present at the time of trial.”
JANE DOE NO. 6: “So the Injunction only . . . .”
Page 43:
JANE DOE NO. 6: “But I was not in concert with anybody.”
THE COURT: “Again, I say that at the time of your trial, perhaps, that would be a defensive matter. Although, I‘m told by the Melbourne Police Department that everyone was put on notice that the thirty-six-foot area was a restricted area and when—if you presumably had notice of that and chose to enter, then, you chose to violate the Court‘s Injunction. That‘s why you were arrested.”
JANE DOE NO. 6: “I don‘t mean this disrespectfully, but does not the constitutional freedom to be on public sidewalk and to—”
THE COURT: “There is nothing in the constitution that says that anyone is entitled to walk on any sidewalk.”
THE COURT: “And that will not be denied you, but it is subject to regulation. The Court provided the south shoulder of Dixie Way as an area for that to be done.”
Page 93:
MR. QUINTERO: “And who are these Defendants? I have no idea.”
THE COURT: “They‘re set out in the Injunction.”
MR. QUINTERO: “Because I‘m not working in conjunction with anybody. I don‘t know anything. I don‘t belong to any group that is doing absolutely anything like this. I am just a normal Christian that went to pray on the sidewalk.”
THE COURT: “Again, those may be defensive matters. I‘m saying that you should bring them up first with your lawyer and then at the time of trial.”
MR. QUINTERO: “Okay, I would like to formally request to have this injunction so I can look at it while I‘m incarcerated and that I can make arrangements to talk to counsel about it.”
THE COURT: “Your lawyer knows how to obtain a copy. Copies are available at, again, the branch courthouses in Melbourne and Melbourne City Hall. Copies are available at the Clerk‘s Office here in Seminole County.”
MR. QUINTERO: “At this time I do not have a lawyer and I see it very difficult for me to go to the Melbourne Courthouse being incarcerated.”
Page 115–116:
[JOHN DOE NO. 16]: “. . . do with the determination in the Injunctive Order or in the arrest?”
THE COURT: “You know, I wasn‘t there. I don‘t know. All I know is that the officer used his perceptions, his eyes, his ears, took note of the activities that were going on and
JOHN DOE NO. 16: “When you issued the Injunctive Court Order did you include what someone might believe about abortion or about their right to assemble there, or let‘s just say about abortion as a basis for arrest?”
THE COURT: “I considered all of the evidence before me.”
JOHN DOE NO. 16: “And would one of those things be, would one of the reasons that I was arrested be because I opposed abortion in that clinic?”
THE COURT: “No.”
JOHN DOE NO. 16: “Okay. If I was to stand here, if I was to testify that I did not oppose abortion would that make any difference in my arrest?”
THE COURT: “You can‘t be unarrested. You have been arrested.”
JOHN DOE NO. 16: “What about being charged with violating the Court Order?”
THE COURT: “It will be up to the prosecutor, the State Attorney, to make a charge decision. And sometimes lawyers in representing clients will go to a prosecutor in advance of his charge decision and ask that he, you know, consider additional matters that might cause him to not make such a charge decision. Those are matters lawyers best know how to do.”
JOHN DOE NO. 16: “When you issued the Injunction did you determine that it would only apply to—that it would apply only to people that were demonstrating that were pro-life?”
THE COURT: “In effect, yes.”
JOHN DOE NO. 16: “Okay, thank you.”
THE COURT: “Any other questions?”
JOHN DOE NO. 16: “No.”
“John Doe Number Eighteen.”
JOHN DOE NO. 18: “Were there any numbers . . . .”
Pages 119–120:
MR. MACLEAN: “Yes, please, Your Honor.”
THE COURT: “Okay. Court will then direct pre-trial release officer to interview and provide the results of the interview to Judge Eaton after 1:00 o‘clock today and he will consider that release. Do you wish to be considered for court-appointed counsel?”
MR. MACLEAN: “No thank you.”
THE COURT: “Do you have any questions?”
MR. MACLEAN: “Yes, please. Would you extend your gracious offer to reduce the bond for myself also?”
THE COURT: “Surely. Reduce bond to a hundred dollars.”
THE CLERK: “Total?”
THE COURT: “Hmm?”
THE CLERK: “Total?”
THE COURT: “No. I can‘t deal with the—”
THE CLERK: “Eleven hundred?”
THE COURT: “Eleven hundred, yes.”
MR. MACLEAN: “Respectfully, sir, where on my arrest report does it allege that I was acting in concert with anyone?”
THE COURT: “It is embodied in the phrase violation of the Injunctive Court Order. But again, this is an arrest report. It is not a formal charge. Presumably within the formal charge there will be that reference, sir.”
MR. MACLEAN: “I‘m finished with questions, sir, but may I make a statement which I promise you I won‘t—”
THE COURT: “I can‘t deal with the statement. In other words, I‘ve got a lot of people to see and the statement may be defensive in nature and it is a matter that should be brought to the trial of the matter.”
THE COURT: “Thank you in their behalf.”
MR. MACLEAN: “Okay, sir.”
THE COURT: “John Doe Number Eighteen. This is out of order now.”
THE CLERK: “Yes, sir.”
THE COURT: “You‘ve been designated as John Doe Number Eighteen. Do you wish to maintain that designation for these proceedings?”
Notes
QUESTIONS PRESENTED FOR REVIEW
“1. Whether a state court injunction placing a thirty-six-foot buffer zone around an abortion clinic which prohibits peaceful pro-life speech in a traditional public forum is an unconstitutional content-based restriction on free speech and association.
“2. Whether a state court injunction creating a consent requirement before speech is permitted within a three-hundred-foot buffer zone around an abortion clinic and residential areas is a reasonable time, place, and manner restriction or an unconstitutional prior restraint on free speech.
“3. Whether a state court injunction prohibiting named demonstrators and those acting ‘in concert’ from expressing peaceful speech within several designated buffer zones violates the First Amendment‘s protection of freedom of speech and association.” Pet. for Cert. i.
JUSTICE STEVENS believes that speech-restricting injunctions “should be judged by a more lenient standard than legislation” because “injunctions apply solely to [those] who, by engaging in illegal conduct, have been judicially deprived of some liberty.” Ante, at 778. Punishing unlawful action by judicial abridgment of First Amendment rights is an interesting concept; perhaps Eighth Amendment rights could be next. I know of no authority for the proposition that restriction of speech, rather than fines or imprisonment, should be the sanction for misconduct. The supposed prior violation of a judicial order was the only thing that rendered petitioners subject to a personally tailored restriction on speech in the first place—not in order to punish them, but to protect the public order. To say that their prior violation not only subjects them to being singled out in this fashion, but also loosens the standards for protecting the public order through speech restrictions, is double counting.The full text of ¶ (5) reads as follows:
“At all times on all days, in an area within three-hundred (300) feet of the Clinic, from physically approaching any person seeking the services of the Clinic unless such person indicates a desire to communicate by approaching or by inquiring of the [petitioners]. In the event of such invitation, the [petitioners] may engage in communications consisting of conversation of a non-threatening nature and by the delivery of literature within the three-hundred (300) foot area but in no event within the 36 foot buffer zone. Should any individual decline such communication, otherwise known as ‘sidewalk counseling‘, that person shall have the absolute right to leave or walk away and the [petitioners] shall not accompany such person, encircle, surround, harass, threaten or physically or verbally abuse those individuals who choose not to communicate with them.” App. 59.
Claiborne Hardware involved both monetary damages and an injunction, but that is of no consequence for purposes of the point I am making here: that we have been careful to insulate all elements of speech not infected with illegality.Paragraph (4) provides in full:
“During the hours of 7:30 a.m. through noon, on Mondays through Saturdays, during surgical procedures and recovery periods, from singing, chanting, whistling, shouting, yelling, use of bullhorns, auto horns, sound amplification equipment or other sounds or images observable to or within earshot of the patients inside the Clinic.” Id., at 59.