*1 guardianship proceeding, McKinney in the annuity
listed the as an asset of Anness’s. McKinney in way suggested no that the an-
nuity liquidated. could not be Fletcher ex- proceeding
amined Anness about the annuity, and it was until week later liquidated Assuming he it. that one negligent be liable for misrepresentation court, to a there is no evidence of such conduct here.
‡ ‡ ^ today holding Our not insulate a does stock fraud, liability broker from for nor does it prevent incompetents having transac-
tions like the one this case voided. sought any Fletcher has not such relief explained, this case. For the reasons there support judgment is no evidence to against McKinney. Fletcher Consequently, support there is no judg- also evidence to ment for against Fletcher Jones & Co. Ac-
cordingly, judgment we reverse the appeals judgment
court of and render nothing. Fletcher take OPERATION RESCUE-NATIONAL a/k/a
Operation Rescue, America, Dal Rescue Rescue, Phillip “Flip” las Rev. L. Ben ham, Jewitt, Treshman, Bob Don Tucci, Petitioners, Keith
Rev. PLANNED PARENTHOOD OF HOUS- TEXAS, INC., AND
TON SOUTHEAST Center, Inc., AAA Concerned Women’s Family Planning Aaron’s Clinic of Houston, Inc., A-Z Women’s Health Ser- vices, P.A., Downtown Women’s Center Clinic, al., et Downtown Women’s
a/k/a Respondents.
No. 97-0171. Supreme Texas.
Argued Dec. 1997. July Decided 1998. Rehearing Overruled Oct. *4 Houston, Cagle,
Cactus Jack James Austin Antonio, Sekulow, Pinedo, Jay Aan San DC, Bull, Benjamin Washington, Scotts- W. Tomball, dale, AZ, Schmude, for Richard W. Petitioners. Manne, Patrick, Collyn Kathy D.
Neal S. Peddie, Houston, Respondents. A. HECHT, Justice, opinion delivered Court, PHILLIPS, which Chief Justice, ENOCH, OWEN, ABBOTT and HANKINSON, Justices, joined. challenge procedural on Petitioners injunc- grounds permanent constitutional restricting tion their anti-abortion demon- clinics strations at certain and residences portions Houston. conclude that We injunction infringe upon petitioners’ freedom expression guaranteed the First Amendment to the United States Constitu- I, of the Texas tion and Article Section 8 modify judg- Constitution. We therefore appeals.1 ment of the court of
I stage planned to
Petitioners2 and others massive, against demonstrations concerted Benham, Jewitt, Treshman, and Rev. Bob Don S.W.2d 60. Keith Tucci. Rescue-National, Operation are 2. Petitioners Rescue, America, Philip Rev. L. Rescue Dallas providers protesters’ abortion in Houston coincident activities described the rec- Republican clearly prohibitions. National its Peti- with the 1992 Conven- ord violated protest appeal temporary injunc- tion there both to abortion and to tioners did not pressure delegates convention to retain a tion. pro-life plank party's platform. in their Peti- convention, years More than two after the join agreed together picketing tioners parties proceeded jury to trial before a physicians clinics abortion homes respondents’ pleadings amended for a who worked for the clinics. Petitioners also permanent respondent planned designed to blockades and “rescues” Planned Parenthood’s claims for actual and by having protesters con- shut down clinics punitive damages. respon- For six weeks premises or chain duct sit-ins on clinic them- petitioners’ dents activi- offered evidence selves to doors and fixtures. Petitioners before, during, ties and after the convention. furtive;
were not demonstration leaders an- petitioners There was evidence that demon- plans press nounced their conference respondents’ strated at all clinics or resi- prior to the Convention. Convention, during the mus- dences times plans, respondents3 tering protesters. Many
To forestall these hundreds physicians target- entirely peaceful, demonstrations were others —various clinics and by petitioners, plus adjacent protesters picketing premises some ed one business while tempo- merely prayed, preached. sang, to Planned Parenthood —obtained a others At *5 times, however, rary prohibiting, among restraining order other demonstrations were aggressive. yelled, things, other demonstrations within 100 feet more Protesters used issued, bull-horns, played of the clinics. Soon after the order and loud music to disturb Benham, Tucci, Jewitt, petitioners along people in clinics homes. Protesters and tried individuals, intentionally by lying with four other vio- to block access to clinics down masse, lated the 100-foot buffer zone and were front of an entrance en and even jailed. application premises necks On their to this Court for invaded the and chained their corpus, writ of habeas we ordered them re- to cement blocks or to fixtures within the leased, holding buffer zone clinic. rocks were thrown at that the 100-foot Bottles and temporary restraining buildings, glued shut. Al- created order and locks were protestors’ expres- though perpetrators freedom of were never identi- violated fied, guaranteed by during several clinics the convention and sion the Texas Constitution.4 butyric into their afterwards had acid thrown Meanwhile the district court issued a tem- offices, permeating the office with nauseat- porary injunction nearly as restrictive as the impossible to ing proved smell that remove temporary restraining Among its order. completely. provisions, temporary retained solely target protesters zone but allowed four The did not 100-foot buffer protesters approach premises. to to within 25 feet Some also acted demonstrators counselors”, approaching people Additionally, one “sidewalk of the clinics’ entrances. clinics and approach patients going who drove or walked towards demonstrator could offering them anti-abortion literature. These to and from the climes to talk with them— ver- encounters were often efforts “sidewalk counsel” the demonstrators’ helpful, persuasive required convey information nacular —but the demonstrator was way, protesters were confron- patient 10 feet from the but sometimes to remain least tational, patients’ coming within inches of unless invited to come closer. The record them, causing respon- temporary shouting in- faces and does not reflect whether the enforced, although many provide to have to “escorts” shield junction was ever dents Houston; Respondents Women’s Pavil- are Planned Parenthood of Hous- Center of Northwest Inc.; Texas, ion, Inc.; Adesomo; Adeheyo Jerry AAAConcerned ton and Southeast Ed- Dr. Dr. Center, Inc.; Family Planning wards; Women’s Aaron’s Kaminsky; Douglas Kar- Dr. Robert Dr. Houston, Inc.; A-Z Clinic of Women’s Health pen; and Dr. Bernard Rosenfeld. Center; Services, P.A.; Downtown Women's Clinic, Inc.; Suburban Wom- Houston Women's Tucci, (Tex.1993). 4. Ex Parte 859 S.W.2d Clinic; Clinic; Loop West Women’s Medical en’s physical converging ensuring psychological f. patients protesters. The escorts, pushed, patients seeking medical patients, well-being and demonstrators uncontrollably, creating climes, and; prodded, yelled services from the result, patients As a a chaotic environment. ensuring competing constitutional g. shaken, visibly crying, would enter clinics differing rights groups view- Physicians reported and nervous. increased equi- points interests are balanced rate, respiration, pressure heart and blood tably. required among patients, such which at times injunction prohibited petitioners from: The symptoms, to treat. These some of sedatives upon Entering A. without consent or experienced patients which even in the ab- [respondent clin- damaging any part of the protesters, became more acute when sence premises, parking facilities and ics’] Additionally, the demonstrations occurred. lots.... threatened physicians and families were block, Blocking attempting B. or harm, shoving with serious and at least one barricade, inor other manner obstruct erupted physician’s match at a home between to, premises or of [re- the entrances family protesters. his All these activi- spondent clinics]. frequent during ties were more the conven- tion, continuing but some were at the time of Inhibiting, impeding, obstructing or C. trial. with, inhibit, interfering attempting impede, with the or obstruct or interfere jury petitioners damaged found that ingress egress unmolested free and respondents by conspiring to interfere with (either vehicular) persons pedestrian or phy- the clinics’businesses and to violate the parking lots and and from the facilities and privacy property rights. sicians’ adjacent to the the streets and sidewalks jury petitioners wrongfully also found that parking [respondent lots of facilities and ability provide interfered with the clinics’ clinics]. *6 prospective to existing medical services and patients. jury petition- physically abusing, intim- Touching, found that four D. respondent harassing any ers each at- idating, caused Planned Parent- or individual $204,585 compensatory damages, tempting hood or the facilities or to enter exit $1,010,000 punitive parking [respondent and assessed a total of of clinics]. lots damages. Following two-day hearing re- Demonstrating publicly E. as [defined relief, garding injunctive the district court displaying, manifesting, expressing or judgment awarding rendered Planned Par- feelings opinions by or oral or other one’s $204,585 jointly severally enthood and expression, including “sidewalk counsel- against petitioners punitive four dam- ing”] following within the areas: ages jury, granting per- found (3601 Fannin, 1. Planned Parenthood injunction restricting manent demonstrations Texas) (a) Houston, A clin- zone around the — by petitioners. The district court concluded (from facility edge of the ic the easternmost sig- that the would “serve several Fannin, facility Berry, along and to the on interests”, governmental specifically: nificant Windbern) edge of the clinic on easternmost ensuring a. that women have access edge that extends 26 feet from the of the pregnancy counseling and abortion facility (building gate) or outermost structure services; Berry, Fannin and Wind- into the streets of ensuring perform can b. climes abor- (b) A side of bem. zone 15 feet from either safely tions and without increased Berry parking the entrance to the street lot risks; medical parking edge from the of the lot extends order, safety public including c. Berry edge across street to the inside of the public free flow of traffic on streets (c) Berry, A zone around south sidewalk on sidewalks; (from parking lot the western- the Fannin protection property rights;
d. of Berry on around to a edge most of the lot protection physicians’ point 15 south of the Fannin entrance to e. of residential feet lot) edge of the
privacy; that extends from parking edge property lot to the outermost of the from the line into the street Red Fannin, (d) adjacent Berry sidewalks on Oak. See Exhibit “I.” A extending corridor 15 feet wide across (3101 8. Suburban Women’s Clinic Rich- (easVwest) Fannin on the south side on the Texas) mond, 250, Houston, Suite zone on —A intersection. See Exhibit “C.” (from the east side of the clinic the southern- (4820 2. Houston Women’s Clinic San Ja- edge property most of the to the northern- Texas) cinto, Houston, zone around the edge property) —A most of the that extends 24 (from property clinic edge the westernmost property feet from line into the street of property on San Jacinto to the north- Eastside. See Exhibit “J.” Arbor) property edge ernmost of the on ex- 9. AAA Center Concerned Women’s tending property 17 feet from the line in to (7324 1010A, Freeway, Southwest Suite the streets of San Jacinto Arbor. See Texas) (a) Houston, extending A zone — “D.” Exhibit across the entrances and 15 feet to either (2800 3. Downtown Women’s Center San property side the entrances on Texas) Jacinto, 202, Houston, Suite zone—A Fondren, Freeway Bellaire and Southwest (from property the clinic around the north- Feeder, (b) A zone across the entrances and Tuam, edge property along ernmost extending 15 feet to either side of the en- Jacinto, edge San to the northernmost of the containing building trances to the the clinic. Drew) property on that extends 26 feet from See Exhibit “K.” Tuam, property line into the streets of on, in, Trespassing sitting blocking F. San Jacinto and “E.” Drew. See Exhibit impeding plaintiff physicians, or their fami- Family Planning 4. Aaron’s Clinic of ly guests and their or invitees members (6420 Hillcroft, 500, Houston, Houston Suite to, ingress egress from or access into Texas) (from zone in front of the clinic residences; any part plaintiff —A physicians’ edges southernmost the northernmost Inhibiting, impeding attempting or G. Hillcroft) property along extending ingress impede or inhibit the free property feet from line into the street egress any person to the streets that Hillcroft. “F.” See Exhibit provide to the streets on which the access (5607 Clinic, Schumacher, Loop located; West plaintiff physicians’ are residences Texas) Houston, clin- zone front of the —A threatening, assaulting, Harassing, H. (from ic the easternmost to the westernmost plaintiff physicians, physically abusing Schumacher) *7 edge property of the on members, invitees; family guests or property extends 31 feet from the line into picketing, patrolling, I. Congregating, the street of Exhibit Schumacher. See “G.” demonstrating following or the ar- within (5851 Clinic, 6. A-Z Southwest Women’s eas: Texas) (a) 315, Houston, Freeway, A Suite — (5014 Kaminsky Huntwick 1. Dr. Robert property zone the south side of on the Park) along the entire Huntwick zone —A (across the entrance and 15 feet to either plaintiffs property extending edge street of side of the entrance on the Free- Southwest property line into Huntwick feet from the Feeder) way that extends 19 feet from the street. Freeway property line into the Southwest (6343 Feeder, Rut- 2. Dr. Bernard Rosenfeld (b) A zone on the northern side of along Rutgers entire gers) zone the (across property 15 feet the entrance and —A extending edge plaintiffs property street of Westpark) to either side of the entrance on property Rutgers line into 13 feet from the property from line that extends into street. Westpark. street of See Exhibit “H.” (2913 Jerry of Hous- 3. Dr. Cason
7. Womens Medical Center NW Edwards (17070 (house) (townhouse)) (a) Oak, 505, Houston, ton Red Suite and 5606 St. Paul — Texas) (extend- edge street of along zone in front of the clinic A zone the entire Cason —A property plaintiffs property extending 13 feet ing edge from one of the to the street, (b) Oak) A property 32 feet line into Cason along other Red that extends conspiracy An civil is a combina- edge Paul of actionable along zone the entire St. street persons accomplish by tion two or more plaintiffs property extending 13 feet from purpose accomplish or to an unlawful property line into St. Paul street. means. The purpose lawful unlawful (5840 Douglas Karpen 4. Dr. Cedar (1) more are: two or essential elements Creek) along the Cedar zone entire —A (2) object accomplished; persons; an to be extending edge plaintiffs property Creek of (3) object meeting of minds on the or property 13 feet from the line into Cedar (4) unlawful, action; one or more course of street. Creek (5) acts; damages proxi- as the overt (1463 Adebayo Sugar 5. Dr. Adesomo mate result.8 Blvd) along Sugar entire Creek zone —A present in- The district court case edge plaintiff’s property of Creek boulevard jury structed the as follows: extending property 13 feet from the line into conspiracy” means combination “Civil Sugar Creek. persons accomplish more two or expressly provision prohibits This purpose accomplish unlawful or to a lawful any signs, symbols, pictures placement of purpose by unlawful means. To find a civil being or other items from exhibited or you following: conspiracy, must find the plaintiff physicians’ property or erected n withinthe per- of two or more 1. a combination above-designated zones. sons, Congregating, picketing, patrolling J. demonstrating vicinity plaintiff in the of agree meeting or have a of the who
physicians’
than 45
residences
more
purpose
on a common
minds
period.
action,
minutes in
24 hour
course of
Using any
amplification
K.
sound
de-
knowledge
purpose
of the
3. who have
demonstrating
vices
100 feet
while
within
action,
or course
plaintiff physicians’
residences.
persons
commits
4. at least one
such
omitted.)
(Headings
Exhibits C-K to the
one act to further the con-
least
judgment
maps
premis-
are schematic
spiracy.
showing
es of
clinic
each
the demonstration-
“Unlawful” means violative
either
free zones.
law.
criminal or civil
appealed.
appeals
Petitioners
The court of
complain
Petitioners
that the district court
entirety.5
judgment
affirmed the
in its
We
jury that
the act
refused to instruct
granted petitioners’ application
for writ
conspiracy
in furtherance of the
found to be
petitioners complain
error.6 In this Court
agree
unlawful.
must be overt and
We
relief,
jury charge,
injunctive
scope
omitting
the court erred
these elements
punitive damages.
and the award of
instruction,
regard
from the
but we do
charge
instructed
the error as harmful.
II
jury
conspiracy must involve
that a civil
Initially, petitioners complain that the dis-
purpose or means and defined
an unlawful
*8
conspiracy incorrectly
trict court defined civil
undisputed
The evidence was
“unlawful”.
jury charge
inquire
in the
to
of
refused
overt,
petitioners
unlawful
that
committed
posed
jury
petitioners’
whether
actions
acts,
jury
petitioners
that
com-
and the
found
respondents.
imminent harm to
We examine
namely,
wrongful
mitted
certain
acts —
complaint
each
in turn.
respondent physi-
wrongfully violating the
wrong-
privacy
property rights,
cians’
A
respondent clinics’
fully interfering with the
Mas
ability
provide
in
medical services. There
conspiracy
civil
to
We defined
any eon-
sey v.
argument
Armco Steel Co.7
as follows:
was no evidence
(Tex.1983).
S.W.2d 932
5.
Petitioners also that the civil con- gue “likely” equivalent not the spiracy definition omitted the element of properly “imminent”. Petitioners have not damages by conspiracy. caused Howev- er, argument application raised this in their jury separate question was asked in writ of error and thus are not entitled to any conspiracy they to find whether found have it proximately damages respondents. caused to considered.13 inquiring The district court did not err in
separately resulting damages. about Petitioners that the vio- contend B right expression protected lates their to free injunctive A prerequisite for relief by to the First Amendment the United is the threat of imminent harm.10 Petition I, States Constitution and Article Section ers assert that the threat of imminent harm begin of8 the Texas Constitution. We our question jury is a fact for the and that the analysis petitioners’ contention deter- court, by treating district the issue as a assessing injunc- mining standard for law, question infringed upon petitioners’ provision. tion under each constitutional right by jury guaranteed by trial Arti to I, cle Section 15 of the Texas Constitution. Foods, in v. Pet
We have held
State
Texas
A
question
Inc.11 that the
imminent
whether
hand,
practice
On the one
“‘the
injunctive
harm exists
is a
to warrant
relief
persons sharing
banding
common views
to
court,
legal question for the
not a factual
deeply
gether to achieve a common end is
question
jury.
attempt
for the
to
Petitioners
”
political process’
embedded
the American
distinguish
ground
Texas Pet Foods on the
“
and enables individuals to ‘make their views
injunctive
that the bases for
relief asserted
known, when, individually, their voices would
statutory.
nothing
there
But
in our
were
thus ex
be faint or lost.’”14 Such views
opinion suggests that the threat of imminent
pressed
from race rela
ranging
issues
—on
legal question
harm
is a
some instances
war,
tions,
relations, to
to the envi
to labor
contrary,
and a factual one
others. On the
ronment,
abortion,
penalty,
death
language
our
from Ala
discussion borrowed
to,
do, provoke
politics
intended
—are
Ass’n,12
mo Title Co. v. San Antonio Bar
strong,
disagreement.
emotional
involving
equitable powers
ease
a court’s
cases,
sys-
function of free
under our
grant injunctive
[A]
relief.
In all
the de
government
dispute.
It
tem of
is to invite
termination of imminent harm rests with
Thus,
high purpose
indeed best serve its
court.
the district court did
err
unrest,
cre-
refusing
inquire
jury
peti
whether
when it induces a condition
respon
harm to
ates
with conditions as
tioners threatened imminent
dissatisfaction
are,
anger. Speech
people
or even stirs
dents.
(Tex.1994);
Biggar,
P. 61.1(a).
Tex.R.App.
13. State
873 S.W.2d
*9
Agency George
Indep. Sch.
Central Educ.
v.
West
Assoc.,
Frey
10.
v. DeCordova Bend Estates Owners
200,
Dist.,
(Tex.1989).
783 S.W.2d
201 n. 1
246,
(Tex. 1983).
647 S.W.2d
248
Co.,
Hardware
458 U.S.
14. NAACP v. Claiborne
800,
(Tex.1979).
11. 591 S.W.2d
803
3409,
886, 907-908,
555
homes,
changes,
worse than all other
provocative
challenging.
is often
and
It
repair
may
preconcep-
and
to which families
for
prejudices
strike at
sacred retreat
profound unsettling
daily way
living,
tions
effects
of
privacy
and have
their
and their
acceptance
it
of
presses
as
for
an idea.
their doors thrown
would have to have
why
speech, though
That
of
not
is
freedom
open to
to convert
all who desired
absolute,
protected against
morals,
is nevertheless
views,
occupants
new
new
and
to
censorship
punishment,
unless shown
way
new
of life.17
likely
present
produce a clear and
dan-
to
carry
right to
with it a
speak
The
does not
ger of
substantive evil
a serious
that rises
duty
part
to listen.
on the
the hearer
The
of
inconvenience,
public
annoyance,
far above
protection
is
same
hearer
entitled to the
or unrest.15
rights
speaker.
as
When “the offer
his
requires
Communication sometimes
confron-
declined,
may right-
as it
is
[to communicate]
protected
tation.
even
Speech when the
be,
importunity,
fully
persistence,
then
fol-
subject
expression
or manner of
is uncom-
unjustifiable
lowing and
become
an-
dogging
fortable.16
likely
noyance
which is
soon
and obstruction
hand, many
On the other
interests
difficulty
The
to savor
intimidation.”18
expression
besides free
have constitutional
limitations that
fashioning
lies
balance
protection. Accommodating interests
like
competing
properly.
interests
property
privacy rights along
free
seeking
audience in this
expression
voice
often necessitates limitations on
oppose
all of
case is
of those who
abortion.
them.
conflict is with businesses
individu
authority
government
Were the
tri-
so
provide
als who seek to
abortion services in
fling
permit anyone
complaint
with a
as to
ways
enjoy
property
their
lawful
and to
power
anything
have the vast
to do
he
privacy
as other citizens.
interests
The dis
pleased,
pleased,
he
wherever
and whenev-
upon
court
trict
was called
find
bound
er he pleased, our customs and our habits
trespass
ary
prevent
by
between
two and
conduct, social,
economic,
political,
ethi-
against
That boundary
one side
the other.
cal,
out,
religious,
all be wiped
would
subject
cannot be
matter
determined
no more than relics
gone
become
of a
dispute,
personal sympa
nor can the
forgotten past.
but not
Churches would
judges
thies of
to one side or the other affect
compelled
be
into
welcome
their build-
duty
lines. No one
draw
issue
ings
came but to
invaders who
scoff and
greater
public
jeer;
entitled
access to the
forum
highways
public
streets and
discussion,
than another.19 “Freedom of
if it
buildings would cease to be
for
available
fulfill
function
na
purposes
for
would
its historic
this
which
con-
were
tion,
about
must embrace all issues
which
structed and dedicated whenever demon-
picketers
appropriate
strators and
wanted to use them information is needed or
to en
purposes.
society
cope
perhaps
their own
And
able the
with the
members
1, 4,
Chicago,
influencing
15.
v.
337 U.S.
view to
action
Terminiello
69 S.Ct.
the other’s
are not
894,
(1949) (citation omitted).
regarded
93
aggression
L.Ed. 1131
a violation
of that
rights.”).
other’s
Co.,
910,
16. See
Hardware
458
Claiborne
U.S.
("Speech
pro-
102
S.Ct. 3409
does
lose its
111, 125,
Gregory City Chicago, 394 U.S.
v.
17.
simply
tected
...
because
character
em-
(1969) (Black, J.,
946,
89 S.Ct.
exigencies period.”20 of their The issue speech here burden no more than abortion; in the necessary next case -willbe differ- significant to serve a govern- ent. The rule given of this case must be ment interest.25 application in the next. This require standard does not an elevated government “compelling” rather interest — B did, “significant”. If it it would be Under the facts of this case we start scrutiny tantamount to the strict standard with the First Amendment because it has restrictions, for content-based and the Su- recently applied very been in the context that preme expressly rejected argu- here concerns us. The United States Su injunctive ment that restrictions on preme Court has considered two factors in necessarily Rather, are content-based.26 determining legislated standard which standard focuses on fit between the re- restrictions on First Amendment freedom of served, striction tightening and the interest expression are to be measured: whether the “narrowly tailored” to “burden no more than streets, public, sidewalks, forum is such as Thus, necessary”. explained, the Court public places, and other and whether injunction restricting speech passes First restriction is based on the content of the “ scrutiny ‘precision Amendment if it is a speech.21 statutory Content-based restric “ ”27 regulation’ employs ‘the narrowest public tions on strictly forums are accomplish pin-pointed terms that will scrutinized, permitted by and none is objective’ ”.28 except First necessary Amendment compelling serve a state interest and narrow The circumstances in Madsen similar were ly drawn to achieve that end.22 But when to those the case before us. There a public the forum statutory and the restric permanent injunction created a 36-foot buff- content-neutral, tion the First Amendment protecting er zone a clinic that had been requires a scrutiny lesser or “intermediate” targeted by pro-life demonstrators and a permits time, regulation place, of the shielding 300-foot buffer zone the residences expression manner of narrowly that is tai physicians of various who worked at the clin- significant governmental lored to serve a in upheld ic. The Court the 36-foot buffer zone open ample terest and that leaves alternative driveway, around the clinic entrances and channels of communication.23 excluding protesters, including all “sidewalk Center, In Madsen v. Women’s Health counselors”, but struck the same buffer zone Inc,24 Supreme Court held that the First protecting private property behind and to the imposes Amendment a stricter standard on side of the clinic because no evidence re- injunctions restricting expression, stating: vealed that the demonstrators’ activities had clinic, evaluating injunc-
when
a content-neutral
“obstructed access to the
blocked ve-
tion,
time,
traffic,
we
unlawfully
think
our standard
hicular
or otherwise
inter-
place,
analysis
operation”.29
manner
is not suffi-
fered with the clinic’s
The zone
ciently rigorous.
driveway
justi-
must ask
We
instead
around the entrances and
was
challenged provisions
whether the
finding
[protest-
fied
the trial court’s
“that
Thornhill,
102,
(em-
765,
20.
protesters purposefully blocked or had clinics, dered access to the had followed and C patients up to the clinics’ door- intimidated ways, police re- and had harassed officers the standard un next consider We record, this sponding confrontations.35 On I, of the Texas Consti der Article Section 8 justified concluding the district court was as the First Amend tution. If it is the same against blocking access that a restriction standard, protective if is less it ment only way would be ineffective and that “the only apply the federal speech, then we need the dem- to ensure access was to move back stan If the state constitutional standard. away driveways and onstrations from the protective speech, then we is more dard parking lot entrances.”36 apply in the con how to must determine ease, balancing involves a text of this which in the case before us do Petitioners conflicting rights inter competing and permanent injunction is contend that the not content-based, respondents deny ests. do 769, 36. Id.
30.
Id. at
it is not clear how. I, possible It is that Article Section 8
The “least
component
protective
restrictive means”
of be
speech
more
in some instanc-
Doggett’s
indistinguishable
Amendment,51
is,
test
es than the First
if it
it
but
Justice
from the
speech
text,
“burden no more
than
history,
nec- must
be because
essary” element of the
purpose
provision,
just
Madsen test. Under
simply
of the
not
formulation,
either
goal
protect
is to
Starting
premise
because.
interests
at stake
minimizing
while
provision
state constitutional
must be more
speech proscribed.
injunction
An
protective
that safe-
counterpart illegi-
than its federal
guards
by excessively pro-
relevant interests
any
timizes
effort to determine state consti-
scribing speech
only
would not
burden
tutional
protections
standards. To define the
speech
necessary,
I,
more than
but would not
simply
Article
Section 8
as one notch
be the least restrictive means available. But
protections
above First Amendment
is to
Doggett’s
clear how
deny
re-
guarantees
any
state constitutional
Justice
quirement that
restrictions be used
principled
moorings
reject
whatever. We
protect against
imminent
irreparable
approach.
this
compares
harm
to Madsen’s
requirement
text, history,
purposes
of Article
that restrictions must
significant
serve a
gov-
I,
thoroughly
Section 8 have been
examined
ernment interest. The
irreparable
threat of
by this
nothing
Court.52 We know of
necessary
harm is
injunc-
issuance of an
suggest
injunctions
restricting speech
law,49
tion under federal
and is therefore
judged by
should be
a different standard
implicit in the Madsen test.
injunction
No
under the state constitution than the First
except
protect
can issue
against
imminent
Amendment. We are concerned that the fact
appears
harm.
It thus
that the Madsen test
that an
necessarily
suit
focuses on
Dog-
contains both the
elements
Justice
particular speech
particular
circumstances
gett’s
test and adds a significant-govern-
makes it difficult to consider relief without
missing
ment-interest
limitation
from Jus-
regard
speech
to the content of the
involved.
Doggett’s
test.
tice
predilections
express-
Justice
Gonzalez
But if
protective
the Madsen test is
today
more
es
illustrate this concern.53 The dan-
Doggett’s
speech
than Justice
ger
test
litigation
is more acute in
than in the
Tucci,
perforce
then it is
protective
more
more abstract and
legislative pro-
removed
test,
than Justice
belying
both
are also
injunctive
cess. We
concerned that
Gonzalez’s
I,
their assertions
speech
that Article
Section 8 is
product
restrictions on
are the
of a
protective
speech
more
single judge,
than the First
legislative
whereas
restrictions
hand,
product
Amendment.
if
people’s
On
other
the Mad-
are the
representa-
protective
sen
is less
persuaded,
test
than both the
tives. We are therefore
as the
others,
Supreme
been,
though
protective
injunctive
even
it is
more
has
re-
scrutiny,
than
judged
strictly
federal intermediate
then
strictions must be
more
than
legislative restrictions,
minuscule to matter.
Supreme
differences are too
but like the
Schenck,
at -,
(Hecht, J.,
52.Davenport,
49.
U.S.
Court, access, apply we hesitate to goal the same strict if the is to zone] ensure we defer scrutiny injunctions to content-neutral as is to the District Court’s reasonable assessment applied to necessary keep content-based statutes. of feet number entrances clear.”58 We likewise will not sec- determining The considerations relevant to ond-guess the trial court whether a 20- protection speech to be afforded in the appropriate foot buffer zone would be more present context are the same under both the than a 19-foot or 21-foot buffer zone. Rath- Accordingly, federal and state constitutions. er, we examine the entire record to deter- conclude, Supreme we as the Court has in mine whether buffer zone burdened Schenck, injunction in Madsen and that an necessary, more than whether these circumstances must burden no more the zone the trial created court was within necessary significant to serve a reason. government interest. IV Although it is unreasonable to ex *14 pect that the evidence the will dictate size Having applicable constitu- determined foot, any buffer zone down to the the record standard, tional apply we now it to the in- supporting must contain evidence each in junction in this case. junctive provision. agree plu We with the every A rality in Tucci that restraint must be “justified proper by evidentiary showing a A injunc trial court’s issuance of preserve that such measures are essential to tive relief is reviewable for abuse of discret access, right of clinic and that each sat course, ion.54 Of a trial court has no discre fully required isfies the standard we have injunctive grant tion to relief violative of the Texas Constitution.”59 The Su under guarantees55 sup constitutional or without in preme path followed a similar Court porting evidence.56 But a trial court has A trial court’s dis Madsen and Schenck.60 fashioning some latitude in the details of fashioning injunc the details of an cretion appropriate Supreme relief. The Court stat provision not extend to determin tive does complete ed Madsen: “The need for a ing particular kinds of relief are whether buffer zone near clinic entrances and justified. debatable, driveway may be but some defer given ence must be to the state court’s famil Also,
iarity
background
permanent
injunction
with the facts and the
when a
dispute
parties
locations,
between the
speech multiple
even
under
restricts
the rec
heightened
our
injunction
review.”57 It reiterated in ord must reflect the need for the
Tucci,
“Although
might quibble
Schenck:
one
about
at each
In
the Court criti
location.
great
whether 15 feet
practice
applying
is too
too small a
uniform buffer
cized
multiple
a clinic
[from
distance
entrance for a buffer
zones at
clinics
the name of “ad-
Salinas,
51,
(Tex.1982)
findings
necessary
54. Clark v.
628 S.W.2d
trial court
curiam);
Indus.,
(per
Big
supported by
Three
Inc. v.
its
are not
Railroad
sustain
order
some evi-
Comm’n,
543,
(Tex.1981);
dence”).
618 S.W.2d
548-549
Co.,
542,
Repka v. American Nat’l Ins.
143 Tex.
977,
(1945).
186 S.W.2d
769-770,
57.
junctive produce every relief need not form clinic; second, proves each that no evidence possible, of evidence but the evidence must injunction permanent that the burdened no support propriety of each element of third, necessary; more relief. it limits is overbroad because speech-free communication within However, conspiracy finding obvi zones, counseling pray such as sidewalk necessity demonstrating pro ates the govern er that not interfere do *15 priety injunctive against relief each co- Respondents ment’s interests. answer that conspirator every person location the “ evidentiary petitioners have waived chal appear. Co-conspirators ‘respon could are lenge by specific more failing request find for all by any conspir sible acts done of the ings petitioners of fact. But all have waived ators in furtherance of the unlawful combin any complaint specificity as to the of the person’s ation.’”63 If one at a conduct findings; they district court’s have not particular enjoined, site can be the same complaint findings waived their that the have by co-conspirators conduct at the same site supporting no evidence.65 enjoined. can likewise be On the other hand, enjoining conduct at one site does not
justify imposing
Respondents
argue
peti
the same restrictions at oth
also
er sites.
sufficiency
Whether restrictions burden more
tioners
seek
factual
review be
speech
necessary
than
yond
jurisdiction. Again
must be determined
this Court’s
we
separately
location,
at each
disagree.
based on at least
argument,
Petitioners’
which we
co-conspirator’s
address,
one
conduct.
is that
the record shows that
J.,
1995);
(Doggett,
plurality opin-
61. 859
Lindgren,
F.Supp.
S.W.2d at 6
United States v.
883
ion) (“
argument
(D.N.D.1995);
'[T]he
of convenience can have
1321
Planned Parenthood Assoc. v.
Rescue,
290,
weight
against
safeguards
no
Operation
Cal.App.4th
[the]
of the con-
50
57 Cal.
")
McCormick,
(1996);
(quoting
parte
Rptr.2d
stitution.’
Ex
129
736
Feminist Women's Health
457,
104,
(1935));
1641,
Blythe,
Cal.App.4th
Tex.Crim.
88 S.W.2d
107
id.
Ctr. v.
32
39 Cal.
C.J.,
(1995);
(Phillips,
concurring)
(agreeing
Rptr.2d
at 35-36
189
Health Ctr. v. Feli
Horizon
cissimo,
323,
wrongfully generalized
N.J.Super.
that the trial court
282
counseling was unhin- provide of buffer zone yelling some form only of communication was means protect the clinic and to access to the dered across a street. occa- interference operations from clinic’s testimony, before the evidence Besides this noise. Because protesters’ sioned extensive testimo- court included the district propensity a had shown demonstrators activities of demonstrators ny about the entrance, could the trial court block each convention, since the the various locations option was only remaining its conclude that showing some of the demonstra- videotapes away from place the demonstrators tions, from every clinic taken photographs staff patients and from the entrance and shots, and angles, including aerial numerous Moving protesters across members. indicating proposed maps location of each also de- Planned Parenthood street whether the buff- buffer zone. To determine their noise level creased the likelihood appropriate, we examine er zones were operations. clinic’s with the would interfere site in detail. regarding each evidence temporary injunction’s restric- that the Given ineffective, proved levels had tion on sound stronger resort court could the district justified ex- also The evidence measures. long, Parenthood Clinic is a Planned parking lots. tending zone to the a buffer doorway building single three-story with a existed, driveway patients some Athough a Street, four-lane, one-way facing Fannin parking lots and staff members used the streets, thoroughfare. pair A of two-lane improperly they were were harmed when Windbern, clinic, Beny flank the way building. on the accosted Parking protects complex. the entire fence Fan only in lots situated across is available alternative also showed that The evidence streets, driveway Berry although nin preserved. were means of communication doorway. enter directly to the Visitors leads on side- themselves Protesters could situate driveway exit onto on Fannin Street and clinic, from the where across the street walks entrance, on Wind Berry Street. One other from the clime’s still be read signs could Street, supplies. The bern is used from the clinic itself. probably fence and encompassed the sidewalks and buffer zone relatively close to Protesters could also stand on the clinic’s three ex one lane of traffic entrances, enabling them parking lot posed also created sides. staff verbally patients communicate leading corridors to and demonstration-free parked the lots. who within members extending feet on either side of the several demonstrate, how- failed to The evidence *17 parking lot entrances. neces- ever, complete zone was that a buffer Sev- government interests. target sary to further Demonstrators continued patients and eral witnesses testified from the convention Planned Parenthood at, harangued, yelled were trial, staff members violating at times the tem- through the by protesters. These jostled, dogged example, one em- and porary injunction. For by and prohibited sections “C” are during protes- the trial a tactics ployee testified that injunction, neither of permanent “D” parking lot and him to the tor had followed die, challenges. Section Operation Rescue threatened, day which your broth- “This however, counseling E, prohibits sidewalk that demon- Another witness testified er.” displays, publicly any expression “that to the and attempted to block access strators manifests, feelings or expresses one’s patients of the came within inches clinic and praying or the thereby precluding members, contacting opinions”, occasionally and staff Two of literature. distribution protesters dur- inoffensive depicted also them. A video their activi- testified that counselors at Planned sidewalk Republican Convention ing the indeed, unobtrusive; peaceful and ties were doorway blocking the entrance Parenthood’s stated, successful, coun- they sidewalk to be was evidence by sitting down. There away. No people frighten could not within the selors protesters could be heard from sidewalk that this form of operations. evidence indicated its interfered with clinic and counseling patients. harmed The harm Dr. operations clinic’s ensuring that the Taggart and Dr. Hill described was from demonstrations did not increase the medical conduct; aggressive more Taggart Dr. even procedures risks of abortions and other per- acknowledged he was unaware of sidewalk formed at the clinic. tempo- Given that the Reiner, Judy counselors’ activities. rary injunction Planned prohibition against loud and director, Parenthood’s stated amplified proved effective, that the clinic noises had not object did not to members of a group church district court could conclude that maintaining talking patients entering leaving protesters distance between the and the clin- clinic “if quietly property handed out material only way ic’s was the to minimize try and did not to block impact the clients’ access of the demonstrators’ noise. Al- the clinic or scream and though signs positioned holler or harass across San Jacinto any way.” them in Protecting the health and Street not be readable from the door- safety is, course, patients clinic, of clinic legiti- way protesters of the across the nar- mate justifies state interest Street, limitations relatively rower Arbor close to the threatening But area, seen, conduct. the threat must main parking easily could be thus come from the demonstrators’ conduct preserving some alternative means of com- merely speech.69 from their munication.
Prom However, the record we are forced to conclude as with the Planned Parenthood complete clinic, that the buffer zone burdened more the evidence did not demonstrate that necessary by proscribing peace- communication a limited number ful specific conduct. We consider what modi- of demonstrators within the buffer zone necessary fications are in Part III-C-10 be- infringe upon patients’ would and clinic’s low. protected rights. adjacent parking The lot any person
enables accessing building so stepping public proper- do without foot on E(2) Thus, ty. paragraph permanent of the The Houston Women’s Clinic is on a injunction must be modified. square plot junction at the of San Jacinto and Arbor building Streets. The stands intersection, corner farthest from the and a
parking occupies lot the remainder of Loop The rectangu West Clinic is a Bordering parking land. building lot is a wooden lar 20 to 30 feet from Schumacher Street, only fence that allows through gated access the one road borders it. No permanent entrances on both streets. The sidewalk or marked entrance from the leads (a injunction length pavement covers the parking fence street across the Jacinto) sidewalk exists spaces on San doorway facing to the of the clinic extends about one traffic lane into parking San Jacin Schumacher. lot extends to and Arbor Streets. San Jacinto is a four- around building, two other sides of the street, lane while Arbor Street is against narrower. the fourth side buildings. rests other permanent creates a buffer The evidence reflects that demonstrations doorway zone from the to the near lane of every Saturday. occurred this clinic A Schumacher, a two-lane street. *18 physician protesters testified that screamed him, patients at the causing and at stress Numerous demonstrations occurred the amongst patients making the Loop the abor- West Clinic 1993. Two witnesses procedure dangerous. tion According petitioner more testified that Treshman entered testimony, to his the Republican demonstrations caused the clinic sometime after the patients some to reschedule their visits. Convention. supports
The evidence
the
standing
conclusion that
Demonstrators
between
the
a
speech
buffer zone would burden no more
street and the front entrance would necessar-
necessary by
than
keeping
ily
blocking
the demonstra-
parking
be
access to the
there.
interfering
tors’ noise levels from
only
protesters
with the The
area where
could stand
312, 321,
(1988).
Barry,
69. See Boos v.
S.Ct.
ning parallel this street the oc is a The Women’s Center between the fence and the street Downtown and a cupies long, office in middle of multi grassy containing large area a ditch. Be the by story complex street used several businesses. property tween the clinic’s and the adja- park in an ground on and staff members only there are a few feet level Visitors running lot length building cent the the proximately one traffic lane into Hillcroft and enter the center ground on the level. Street. facility: Three streets border the San Jacin- only concerning The evidence this clinic front, to Street and Taum and Drew that it blockaded one was time after on Streets the sides. Drew has Street two protesters when numerous entered build- the lanes; the other two four. streets have Be- ing operations. to obstruct the clinic’s This parking the tween lot and these streets lies support by does not the imposed buffer zone only sidewalk by a broken entrances on ev- injunction, any the nor buffer zone whatsoev- ery side. The buffer zone this side- includes er. incident of trespass The one not does
walk and one traffic lane on all three streets. justify moving protesters the across the glued The Women’s Center its locks had hardly street where could be seen six times between 1992 and and was heard. record The contains no evidence target of a the stink bomb after the attack government a buffer zone would further a Republican Convention. Demonstrators by injunctive provi- interest not served other thrice over blockaded the clinic with sions. The buffer zone thus more burdened participants, recently year most within speech necessary than have should not trial. There was evidence that the blockades injunction. been included protests psychological caused harm to patients and staff members. clinics, previous
In contrast to the four any does not evidence indicate that buffer The Suburban Women’s Clinic lo protecting zone the Houston Cen- Women’s cated at the intersection of Eastside and necessary ter burdened no more than longer clinic’s side is Richmond streets. The protect government interests. The parallel to Richmond Street and contains obviously demonstrators’ activities interfered doorway. doorway Between this Rich However, operations. with the center’s lot, parking mond is clinic’smain accessi only physical evidence concerned invasions of ble via Street. A Eastside second entrance private property. the clinic’s No evidence leading parking exists on Eastside to a lot indicated demonstrators had blocked the clinic. en behind the Between these two parking lot entrances or that their activities grassy a narrow trances lies area crossed any along the sidewalks harm. had caused length The sidewalk. buffer zone runs the Removing the demonstrators across the sidewalk, beyond reaching this some feet did possibility street not lessen the of a entrance, protrudes approximately each blockade, future stink-bomb attack or which perma one into lane Eastside Street. The prohibited unchallenged provisions are injunction prohibit nent does not demonstra injunction. The buffer zone does almost standing parallel on tors from the sidewalk nothing significant to further in- government Richmond Street. severely curtails demon- terests speech. strators’ should not reflected that the clinic had evidence included this buffer have zone. site of not been the demonstrations since Convention,
Republican protestors when clinic’s Although blocked the entrance. injunction prohibited demonstrators Family Planning Aaron’s Clinic is a only on en- standing the sidewalk between multi-story elongated building perpendicular lots, parking trances to the clime’s the record Landscaping to Hillcroft decorates Street. zone, does not demonstrate buffer doorway the area between the clinic’s one, street, even a limited burdened no more parking while entrances to two necessary. side- Demonstrations on the building. Hill- lots exist either side of the clinic, croft, walk hinder access to the clinic street has six would near the This operations. with its separated by grassy otherwise interfere lanes a wide median. should not have been included The buffer zone includes sidewalk buffer zone extending ap- injunction. property, front the clinic’s *20 no more than zone burdens buffer necessary to the clinic. Ex- to ensure access Clinic, irregu The A-Z Women’s Convention, cept during one the incident larly building, occupies large parcel a shaped hin- is no that demonstrators there evidence a along parking garage. of land with Visi patient’s a or staff member’s access to dered from property tors can access the clinic’s Unchallenged provisions the the clinic. of Westpark Freeway or the Southwest Street prohibit injunction demonstrators permanent injunction Feeder The a buffer Road. creates adjoin entering parking from the lots including zone sidewalks within fif the result, doorways. building’s As a even the of either the en teen feet entrance and zone, patients a and staff themselves, without buffer extending trances outward and can the without com- members access clinic about lane. one traffic A proximity into of demonstrators. ing close petitioners’ ac- Various witnesses recalled necessary protection provides zone no buffer blockade, August including a tivities in merely proscribes areas where and additional incident, of an pushing stalking a and the can voice their views. One demonstrators employee. A video of a demonstration at the injunc- not been in the should have included depicted petitioner receiving clinic Ross a tion. copy temporary injunction in then fielding regarding his questions effect. In orders, he
view court Ross testified that “man’s if he breaking would continue law” permanent conclude that the We therefore deemed it “inconsistent with God’s law”. para- must be modified to delete E(4), E(6), E(9), E(3), E(8), graphs The record does not demonstrate that zone, small, proviso follows: buffer albeit no more add a burdened necessary. Any person visiting than Demonstrating following E. within Clinic, the A-Z Women’s either as an em- areas, provided paragraph except as 10: ployee patient, or a could enter the clinic’s lot, adjacent property, park walk doorway
to the
near a
coming
without ever
No
than
more
two demonstrators
protester. No evidence indicated that dem-
may
present
They may
within
be
a zone.
onstrators blocked either entrance to the
shout,
yell,
speak
or
property.
simply nothing
clinic’s
not
above
normal
There is
voice,
any
any
speaking
may
not use
sound
necessary,
show that
buffer zone was
amplification
They may
and it
not
should
have been included
device.
“sidewalk
counsel”,
injunction.
no more
one
but
than
demonstra-
may
attempt
tor
or
to counsel a
counsel
time,
persons
person
group
person
group
persons
no
be
The AAA Concerned Women’s Cen
going
occupies
high-rise building
approached
ter
more
once
into
an office in a
going
clinic and once
out. The demonstra-
part
larger
complex
that forms
of a
business
along
stop counseling
tor must
and retreat when
high-rise building,
with a twin
a dome-
structure,
lots,
targeted person verbally
indicates a de-
shaped
parking
and various
to be
alone.
sire
left
driveways, and entrances. Visitors can ac
bordering
complex
cess the
of three
protects
This modification
the demonstrators’
streets. The buffer zone included these en
peaceful speech.
right
engage
At
trances,
surrounding the
as well as the area
time,
provision
same
ensures that
doorway
building containing
to the
the clinic.
sig-
with
will
interfere
demonstrators
government
protected by
about an inva- nificant
interests
Several witnesses testified
imposed by
during
sion of
clinic
the buffer zone.
limitations
this
Convention
E(10)
shortly
protests
paragraph
at the clinic
number
demon-
thereafter.
precludes the
But
no
strators and their activities
there is
evidence
interference
large
operations
negative impact
groups
the clinic’s
after the Convention.
occasioned
thus
that a
demonstrators or
a few
evidence
fails to demonstrate
of boisterous
*21
approach
who
patients
handful
in a threaten-
in front
demonstrate
of Dr. Adesomo’s
proceed
Thus,
ing manner and
support
to shout and other-
the
home.
evidence does not
harangue them.
wise
imposition
preventing
of a buffer zone
demonstrations
front of his residence.
D
injunction
The
must be
delete
modified to
Finally,
injunction’s
we consider the
1(5).
paragraph
respon
restrictions
near
demonstrations
physicians’
dent
residences.
In Valenzuela
Aquino,70
v.
we considered whether residen
respondent
the other four
Each
picketing
tial
could constitute actionable
physicians
regarding
testified
demonstrations
privacy,
breach
but we
never
have
consid
respective
Kaminsky
at his
residence. Dr.
whether such picketing
ered
could be consti
protesters
two
targeted
claimed that
him ev
tutionally
by injunction.
gov
restricted
weeks,
ery
family
three
two to
that his
was
greater
ernment has a
in restricting
interest
daily, and
followed
that his home had been
specific
demonstrations
at
resi
directed
picketed
recently
days
most
two
his
before
dences
it does when the demonstrations
testimony.
pro
He further recalled that the
public
are directed to business or other
loca
passersby,
testers shouted at
had in
and
Schultz,71
In Frisby
Supreme
tions.
June 1993 been involved in
match
shoving
held that
Court
while demonstrations could
pick up
with his wife when she tried to
completely prohibited
not be
in residential
protesters
placed
crosses that
had
in front of
areas, an
banning picketing
ordinance
fo
(it
disputed
was
his home
cross
whether the
specific
on a
cused
residence was valid. The
placed
public
es were
on the
or on
easement
explained:
Kaminskys’ property).
Petitioner Maho-
The First
permits
gov-
Amendment
ney
telling Dr. Kaminsky
admitted
that he
prohibit
ernment
offensive
protests.
could not hide
Dr. Rosen-
“captive”
intrusive when the
audience can-
that his
picketed
feld testified
home had been
objectionable speech.
not avoid the
times,
protesters blocking
half a
dozen
target
picketing
by
focused
banned
driveway
telling
young
his
his
child
just
the Brookfield ordinance
such a
is
his father killed babies.
Tresh-
Petitioner
“captive.”
figuratively,
The resident
acknowledged
man
at
protested
that he had
perhaps literally, trapped
within the
year
Dr. Rosenfeld’s residence within the
home,
unique
and because of the
and sub-
prior
Dr.
to trial.
Edwards testified
impact of
picketing
tle
such
left with no
pieketers targeted his
residence after
ready
avoiding
means of
the unwanted
than a
He
Convention more
dozen times.
Thus,
speech.
targeted
the “evil” of
resi-
protesters
yard
stated that
came into his
picketing,
very presence dential
“the
driveway, yelled
neigh
at his house and
home,”
unwelcome visitor at
is “creat-
bors,
music,
played loud
threaten
and used
expression
ed
medium of
itself.”72
ing
Karpen
Dr.
his
words.
testified that
government
Because the
inter-
greater
has a
picketed
home
several
had been
times
protecting
est in
picketing
resident from
prop
protesters trespassed
that the
onto his
home,
at
targeted
his or her
means of
erty
Finally,
during
demonstrations.
affording
protection may
such
intrude fur-
petitioner Mahoney
having
admitted
demon
expression.
ther on freedom of
physicians’
strated
each of these
resi
dences,
claimed that he
continue
would
physicians
perform
if
do so the
continued
testimony
Dr. Adesomo admitted in
ing abortions.
picketed
had never
at his
demonstrators
perma-
home and had never
him. There is
zones
stalked
The buffer
created
planned
petitioners
necessary
protect
no
are
evidence
ever
nent
(Tex.
omitted).
1993).
(citations
70.
physicians’
*22
estab
evidence
the
whether
is over
agree
burden
not
certainly do
zones
The
privacy.
even
presence
the
re-
that
protect
lishes
necessary to
than
speech
more
zones
buffer
the
counselors”
“sidewalk
physicians’privacy.
spondent
safety.
patient health
threatens
the
from
threat
V
a
clearly shows
evidence
unre-
or
demonstrators
of several
presence
complaint concerns
last
Petitioners’
do
zones. We
buffer
them
the
activity in
against
ntricted
damages
punitive
award
the
-r
“mali
oí threatened
jury charge,
ad sufficient evidence
al
for, in the words
interfere
to
conspiracy
in a
the
few as two
presence
harm from
of as
engaging
ciously
“
ó
Parenthood.”
of Planned
business
restricted to
coun
the
ionstrators
“sidewalk
o;
damages
punitive
that
argue
Petitioners
seling”, especially when a “sidewalk counsel-
conspiracy absent
find
for
not be assessed
or”
required
patient’s
is
to withdraw at the
ing
damages
conspiracy.
for
actual
request. There is
patients go
evidence that
damages
jury
was instructed
find actual
ing to and from clinics often find it uncom
“conspiracy
wrongful
interfer
only for
subject
fortable to
the
abortion,
discuss
one,
ence”,
alone.
conspiracy
either
not for
noted,
but as we have
the demonstrators’
Thus,
argue, it cannot be deter
petitioners
conduct,
merely
subject
and not
of their
jury
mined
the verdict whether
speech, must
threaten harm. Although we
damages
conspiracy
actual
found
for
sympathetic
arc
to the anxiety patients may
only
wrongful
interference.
feel
encountering
demonstrators outside
clinics,
simply
say
cannot
vre
banning
that
Petitioners
that
did not make
all
concede
from the
demonstrators
buffer
court,
zones burdens
argument
trial
either before
this
no
speech
more
necessary.
or after
was submitted to the
charge
jury. Thus, their complaint has not been
disagree
We
with fern® Gonzalez
preserved.73 Petitioners
argue
the er
requiring a “sidewalk counselor” to withdraw
ror in assessing punitive damages is funda
patient’s request
burdens
more
mental and
not
need
have been raised in the
than necessary. Again as
noted,
we have
trial court.
“Fundamental error exists In
-
right 1 speak does not carry with it a duty
those rare instances in which the record
-to listen. Allowing patients to discontinue
shows
jurisdiction
the court lacked
or tb'kt
dhloyue with “sidewalk counselors” should
public
directly and
interest
is
adversely-
reduce the anxiety inherent in the encounter.
affected as
interest
is declared
in thfe
(cid:127)
the chilling
no
speech, and
that awarding punitive damages against dem-> P"-
onstrators
Awarding
fundamental error.' Petitioners do not argo^ ,
statutes or
ambiguous
view on the
punitive
finding
the Constitution
therefore we of course
effect
fundamental
subject.
is noi
of actual damages damages
might have
error
without an
because
Texas.’”74
on free
express
un-,
..
'
> protective zones do not
;
\
court.
residences
irnment
We
Adwards, and Dr. Karpen because these
Accessary
uphold
Similarly,
interests
the buffer zones protecting Dr. Kaminsky,
[*]
protect
[*]
we leave intact the buffer
enumerated
[*]
[*]
burden more
[*]
significant
Dr.
Rosenfeld,
the trial
gov-
protecting
zones
the Planned Parenthood
VI
* Clinic,
the Houston Women’s Center,
respond
briefly
sepa
We
need
to the
Clinic,
Loop
West
and the Women’s Medical
Spec-
opinions.
rate
agree with
We
JUSTICE
Center,
modify
but
them so as to allow a
said,
already
protecting
TOR,
as we have
limited number of
subject
demonstrators
safety
patients
health and
of clinic
certain
Only
restrictions.
as modified do
compelling
justifying
state
metric-
interest
fV- ’?
pass
buffer zones
constitutional mus-
Tex.R.App.
Tex.R.App.
33.1(a) (formerly
73.
P.
P.
Stores,
Alexander,
Wal-Mart
Inc. v.
52(a)).
(Tex.1993)
S.W .2d
(quoting Pirtle v.
Gregory,
(Tex.1982)).
629 S.W.2d
Instead,
S.W.2d at 556.
AAA obstruction.”
protecting the
ter. The buffer zones
that the
is evidence
defendants’ efforts
Center,
there
the A-Z Wom-
Women’s
Concerned
patients
persuade
undergo
clinic
Clinic,
Clinic,
Women’s
en’s
Suburban
endangered patients’ health. The
Clinic,
Down-
abortions
Family Planning
Aaron’s
recognized
Court has
that similar
Supreme
Center,
Dr. Adesomo’s
town Women’s
may justify
health concerns
public
restric-
however,
con-
residence,
petitioners’
violate
protected
tions even
otherwise
activities.
expression.
rights of free
stitutional
*23
Hosp.
Beth
v. National
See
Israel
Labor
appeals is
judgment of the court
Bd.,
437 U.S.
98 S.Ct.
Relations
E(4),
E(3),
paragraphs
modified to delete
(1978).
2463,
ing
patients,
harmed
testified
temporary injunction were inef-
in the
sures
that, against
backdrop
protests,
clinic
does not show
record
“[t]he
fective because
*24
presence
mere
of anti-abortion activists
the
injunc-
temporary
efforts to enforce the
that
ones,
zones, even
within the buffer
silent
police
or that
resources
tion overwhelmed
experienced by clinic
increased the stress
aggressively
for
protestors were arrested
testimony
All of this
patients
personnel.
(Gonzalez,
patients.” Id.
confronting
at 582
was uncontroverted.
But,
J.,
dissenting).
while
concurring and
any
clearly indicate that
record
not
the
does
Court, however, disregards
this medi-
violating
for
were arrested
of the defendants
Instead,
great weight
testimony.
gives
it
cal
injunction,
of the de-
temporary
several
the
counselors,
testimony
to the
of two sidewalk
contempt
violating
in
fendants were held
peace-
that their activities were
who testified
temporary restraining order. And there
the
ful and
Both of these wit-
unobtrusive.
to
least
police were called
at
is evidence that
nesses, however,
denied
direct involve-
many
many, many,
occasions.”
one clinic “on
defendants,
ment with the
and both admitted
not know how sidewalk counsel-
that
did
importantly, I
it hard
believe
find
to
More
Operation
ors
with
Rescue or Res-
affiliated
position
any jurist
the
that a
that
would take
cue
activities.
America conducted
is
remedy
when there
provide
court cannot
that
importantly,
More
there was evidence
violated, as
the law has been
evidence that
the
acting
some counselors
concert with
ease, simply because the
there is in this
“very aggressive
defendants did
so-called
anyone has been
record does not reflect that
counseling....
Blocking patients,
sidewalk
police
or
resources have
arrested
that
patients, following
yelling
screaming
at
par-
position
That
been “overwhelmed.”
activity
of
them.” This
continued
the face
ticularly troubling
evi-
when there medical
injunction
prohibitions
temporary
bar-
the
dence,
ease,
as in
that a violation could
this
record,
ring
very
conduct. On this
endanger
labor
women’s lives. Unlike the
court’s conclusion that the exclusion
Justice,
district
dissenting
by the other
cases cited
all
from
buffer
sidewalk counselors
in this
was
zone
ease
the absolute buffer
necessary
zones
to minimize the medical
was
unimpeded
to more
insure
intended
do
than
than
patients
risks to
was more
reasonable.
from
patients
or to
clinic
access
shield
hear;
they may not wish to
it was
up
to
temporary
allowed
patients from the
protect
adverse
intended
within the buffer
four sidewalk counselors
might result from
consequences that
medical
zones,
prohibited
yelling,
from
but
counselors
protesters.
encounters
shouting,
speaking louder than a normal
nor the United States
engaging in behav-
Neither this Court
speaking voice and from
power
likely
Supreme
has ever denied
reasonably
to intimi-
Court
ior intended or
when
patients.
expand injunctive
courts
relief
prohib-
clinic
It also
trial
date or harass
ineffective,
prove
mere-
“inhibiting, impeding,
from
narrower restrictions
ited defendants
ly
has
arrested. To
interfering with ...
free and
because no one
been
obstructing or
contrary,
emphasized
has
Supreme
Court
ingress
egress”
the climes
unmolested
injunctive
modify
relief
“touching,
abusing,
power
in-
courts’
physically
from
when the circumstances warrant
it. “Each
necessary
and the fixed buffer zone was a
case
turn on
must
its own circumstances.
It
on
restriction
defendants’ demonstrations.
power
is a
for the
case
remedial
flexible
Similarly,
Id.
the record here belies the
equity
may try
court
mode
which
one
complete
that the
Court’s conclusion
buffer
restraint,
proves
be too
if
fails
necessary
zone “burdened more
drastic, may change it.” American Steel
by proscribing peaceful conduct.”
Council,
Tri-City
Foundries
Cent. Trades
at
S.W.2d
184, 206,
U.S.
S.Ct.
In this Court concedes that the The Court ignoring also errs the effect justified banning pro- district court was presence crowds of vociferous because, from “[g]iv- testers the buffer zones demonstrators outside the buffer zone injunction’s en temporary restric- have sidewalk counselors’ efforts to com- ineffective, proved tions on peacefully. sound levels had In municate American Steel Foundries, stronger district court could resort dissenting on which the other relies, heavily measures.” S.W.2d 563. The same Supreme Justice justifies rationale the ban on sidewalk coun person’s right observed that a to be free Madsen, seling “unjustifiable within the buffer zones. annoyance See and obstruc- (“We approaches S.Ct. 2516 also is not tion” violated when another bear in simply mind the fact that court state offers “to communicate and dis- *25 originally injunction, issued a influencing much narrower cuss information with view to zone, 204, no providing buffer and that order this 42 the other’s action.” U.S. at S.Ct. did protecting not succeed in to the Supreme explained, access 72. The Court then clinic.”). however, in attempts And Schenck v. Net Pro-Choice to communicate inof- work, Supreme fensively the abor “aspect Court considered assume an of intimidation” protesters’ tion contention that a buffer large, occasionally fixed unruly, when violent unnecessarily zone gather. Against was broad because un backdrop, crowds Id. such a provisions injunction tendered, challenged of the at is arguments information all “[a]ll ad- noise, sue trespassing, banned excessive persuasion and all ... vanced used were blocking impeding 205, or access to facilities that intimidation.” Id. at 72. Ac- S.Ct. performed 357, 117 cordingly, abortions. Supreme S.Ct. the an in- Court crafted 855, (1997). intimidation, Mirroring junction prevent designed L.Ed.2d to as case, position protest the Court’s in injunc- this the the court here. district did While the argued ers that “in light provisions, of these in tion American Steel Foundries allowed a only ‘demonstrating’ missionary,
the effect of a on dissenting ban as the other Justice notes, within the fixed buffer zone is ‘a on prohibited any ban here it also other dem- peacefiil, on congregating plant nonobstructive demonstrations from onstrators at the or public rights way.’” of Id. neighboring public sidewalks in the streets in order “to 47). (quoting Petitioners’ Brief at prevent the inevitable intimidation of the pickets.” presence groups Id. Supreme unpersuaded, The ob- was contrast, by 72. In S.Ct. modified this serving that Court, injunction the here both allows mis- argument ignores ... the in [t]his record intimidating sionaries and crowds. con- past this case. Based on defendants’ duct, the District to Court was entitled III the who conclude some of defendants to clinic were allowed within 5 10 feet of The district court’s absolute buffer zone is merely entirely engage Supreme entrances would not in sta- consistent with the Court’s tionary, but nonobstructive demonstrations most recent decisions in this area. In Schenck, they Supreme what would continue to do had done the Court struck down a before_ imped- floating ‘blocking, people entering on buffer ban zone around ing, obstructing leaving Supreme access’ was an clinic. The therefore abortion by problem, floating insufficient itself to solve the Court noted that the buffer zone to bend over back- the from “communicat- zones was effort prevented defendants defendants’ message to “accommodate” ing a from a normal conversational wards the handing people speech rights. to enter- Because District Court distance or leaflets leaving walking this record ing or the clinics who are to conclude on was entitled Schenck, way to shield indi- public sidewalks.” 117 S.Ct. 867. feasible prohi- Supreme zone Court struck down viduals within the fixed buffer difficulty protesters especially with law unprotected bition because of the conduct — by attempting comply hampered to would face with the efforts defen- enforcement police--would injunction light configuration harassment of the dants’ keep the entire area clear sidewalks around clinics: have been protesters, District Court’s presumably walk 15 Protesters could feet defendant speech to enhance defendants’ extra individual, or 15 feet in front of behind effort exception to fixed rights by allowing an walking the individual while backwards. det- zone should not redound buffer problem But are then faced with respondents. riment of watching for enter- out other individuals ing leaving the clinic.... With clinic added). (emphasis Id. at 868 n. 11 leaving pick up the clinic incom- escorts * * * ing entering drop patients and the clinic to off, case, quite them it would be difficult upon Based the evidence this protester engage boundary who properly wishes defined the be- expressive rights to know to re- activities how tween defendants’ free compliance injunction. main in with the significant interests governmental certainty This plaintiffs sought protect. lack leads to substantial The line drawn risk that much more will be bur- no “designed to limit the district court injunction by than the terms very ‘in-your-face’ dened its more than the evil prohibits.... well be Since there at trial.” harassment shown the evidence ways separation other such I Accordingly, both dissent. 937 S.W.2d effect *26 (so yet provide certainty speech that GONZALEZ, Justice, concurring part protected by injunction’s the terms is not burdened), dissenting part. floating we conclude that the speech buffer zones burden more than nec- pivotal that this is issue divides Court essary governmental to serve the relevant a may approach wom- whether an individual interests. a seeking an to leaflet or make abortion (footnotes omitted). Id. 867-68 In other personal to appeal to consider alternatives words, permissible injunction may be craft- significant risk of arrest abortion without including separate protesters, ed to sidewalk prosecution. The Court’s modification counselors, long patients, from clinic so as injunction to permits two counselors sidewalk separation clearly required the is defined. around four clinics but enter buffer zones comports The fixed buffer zone this case stop counseling to and retreat forces them desist”) (i.e., that with standard. “cease and when woman seeking to left an abortion states desire be portions suggest Other that the Schenck judgment I insofar does alone. concur as injunction’s zone is absolute buffer consistent prohibit peaceful presumptively sidewalk upholding First In with the Amendment. However, respect I counseling. dissent zone, fixed noted that buffer it provision, because the “cease and desist” fact that allows two [t]he protected beyond nec- chills far into sidewalk counselors the fixed buffer injunction’s legiti- essary to accomplish ... from con- [the zones does not detract goals. mate way to ensure access clusion that any First Amendment case protesters away clinic It is difficult in was to move all personal one’s views of doorways]. entirely It is District divorce clear from the conveyed speaker’s opinion message from the consti- that its to allow Court’s decision convey My it. views right tutional two counselors inside the buffer sidewalk begins when life injunction. abortion are well cate for the trial court’s Howev- Krusen, er, known. See Nelson v. testimony key 678 S.W.2d two witnesses and (Tex.1984) (Gonzalez, J., concurring judicial experience recent shows that the tri- dissenting); Sepulveda, v. Krishnan 916 al all injunction barring court’s “demon- — (Tex.1995) (Gonzalez, J., S.W.2d 484-85 strating,” including counseling, sidewalk dissenting); Edinburg Hosp. Auth. Trevi within designated buffer zones —unnecessari- no, (Tex.1997) (Gonza 941 S.W.2d 86-87 ly peaceful by non-par- chills moral suasion J., lez, dissenting). I believe that a human ties. The tradition our courts to nation’s being is conception, created at the moment of injunctions carefully anti-picketing tailor and that abortion taking is the of a human allow a few “missionaries” within otherwise I acknowledge life. with opposite those speech-free buffer Con- zones and Texas just passionate views are as in their belief. stitutional mandate to use “least restrictive be, But as it constantly hard we must require exacting means” that our courts be remind ourselves that this case not about crafting speech-restrictive injunctions. when pro- the relative merits of and anti-abortion offending can easily conduct here be viewpoints; this case about the First abrogating addressed without all right hap- Amendment of free counseling. sidewalk pened to arise in the context abortion
picketing. subject Whenever abortion I issue, up tangentially comes it another Mary Kleypass Janet Hafernik and Hall monopolize tends and distort the discus- testified that offered “sidewalk counsel- sion. I fear Justice O’Connor’s observation clinic, ing” at the Parenthood Planned is correct: Clinic, Loop Houston Women’s and the West This Court’s abortion al- decisions have Clinic—three the four clinics which we ready major worked a in the uphold during distortion the buffer the same zones — jurisprudence. period Court’s constitutional To- petitioners time conducted their dem- day’s further, goes Kleypass decision makes onstrations. Hafernik and con- painfully legal clear that no rule years, or doc- ducted for four and six these activities respectively, Kley- trine is safe from ad hoc nullification one or two times a week. applica- this Court when an pass occasion for its described her efforts as follows: tion in a involving regula- arises case state Q. you engage in coun- [W]hen sidewalk tion of abortion. seling you would describe the Court you what do or time? did Thornburgh College v. American Obstetri- *27 approach coming A. in 747, 814, Yes. I the woman Gynecologists, cians and (O’Con- (1986) help to I and extend her and assistance. 106 S.Ct. L.Ed.2d J., have is nor, literature with me that informa- dissenting). vigi- must ever We be issue, development baby tion about lant that we not this has allow which place go as well as a where she for polarized could country, to subvert constitu- I help. And I her guarantees. today tell that care about say tional What we her, help give that I and her want to her apply equally persons should on tomorrow to issue, get going information that she is not to either side abortion workers in conditions, the abortion clinic. demonstrating po- for better and picketers stripes. litical of all Q. this, you me ask Let in sidewalk coun- mind, turn put
With that in I now to seling, intim[id]ating the woman by reviewing impor- issues in context some you’re talking in to factor sidewalk many tant facts. The record indicates counseling? individuals, groups different some and stri- dent, prayerful, absolutely opposite others and demon- A. It’s of what we respondents’ try peo- strated at clinics. to abortion would do. When I talked to activities, ple training Some of the such as the blockades to coun- them be sidewalk sit-ins, selors, petitioners’ importance and were the result of I stress to them the activities, demeanor, predi- concerted and this laid the our be approach our to very you’re there contact, angry women are gentle, eye our our nonverbal you have to cues, to hear what and don’t want everything gentle do and we yell right? carry signs say; is that inviting. We don’t object is to love wom- scream. The A. True. love all an. You can’t the woman with angry Q. those women are When stuff. that other say, you what have to don’t want to hear you on unmolest-
do allow them to walk Q. and for the Court’s Just the record ed? information, you say specifically, do what A. Yes. stranger you to a is a woman who Kleypass Hafernik testified that Both you approach when her on the sidewalk they effectively sidewalk counsel could not facility? front of an abortion patient: interaction with without direct give you say, May I Hello. I some
A. Q. counsel- you conduct sidewalk When you going information that are not you go public side- ing, where do I receive there? have information typically? walk help you. We have alternatives. We per- Typically point A. at the where the assistance, financial, medical, have hous- enter, they’re coming if son would food, ing, clothing, you whatever would car, approach [Kleypass] I the car on need, I have information on some my If the side and hold out information. development your baby walking, thing, they’re I do the same give you in will also not the abortion I them. and will smile offer facility. Q. from you sidewalk counsel Could testimony Janet Hafernik similar offered facility? an across street of abortion cross-examination, about her activities. On A. not call that sidewalk counsel- I would patients she indicated that she not harass did be it would not able to ing, because who did not want to talk: girl the interaction between the include clinic, Q. you’re you When don’t outside of a myself. It would be more yell patients, right? counseling. yelled appeal than it would Right. A. Q. you shouting? sidewalk counsel Can Q. Why is that? counseling. A. That wouldn’t be sidewalk basically, you yell, you A. Because when your opin- you I suppose that can make already They’re ner- scare women. help, or offer but ion known going vous in. you counseling, be because wouldn’t Q. you try it’s right And don’t think missing be the interactiveness of would them and scare someone to make do on one. encounter one you what want them to do? Well, just Q. why you stand across don’t No, got A. it’s to come out love. counseling and offer the street sidewalk Q. try physically restrain You don’t to them? going into a clinic? women *28 said, you help, you A. I can offer Like Right. A. Counseling is really cannot counsel. Q. by take You do sometimes them one on one.... done arm? Q. successfully sidewalk coun- In order to Yes, they’re agreeable if that. A. to factor, sel, what, any, your initiating if Q. Okay. you along Do walk side them? the conversation? Sometimes, usually you’re just
A. but very important, A. That is because standing in kind of a small area. Some- things have told women sometimes been you get out of the times have walk aren’t or others that about us about t9 way something. in coming of cars or upset, they’re A their true. lot of times down, off. they are closed coming If into indi- heads are Q. a woman a clinic Hi, help you, I saying, can you you gentle A voice believe said some cates —I important very way is a in helping presented them advocating resolution means). up to look and interact. danger pro-life all that demonstrators indiscriminately lumped will be together with Q. Why you just up can’t sign hold [a] petitioners by testimony of illustrated expressing your opposi- across the street Reiner, Judy a Planned Parenthood abortion tion to abortion? clinic director: could, again, A. I but that would not be Q. possible any pro-lifer Is that in counseling. sidewalk Houston, Texas, goes protests out and Kleypass’s and Hafemik’s sidewalk counsel- regular on a basis whether it be outside ing fairly activities were well-received. Haf- Planned Parenthood or be it a resi- ernik approximately testified that half the picket getting dential without instruc- willing women were to talk or her take litera- Operation tions from Rescue America or ture, many were interested in her infor- Rescue National? mation, persuaded she successfully A. I don’t believe the who individuals as many every as one out of ten women she come Planned Parenthood or who are counseled to choose an alternative to abor- specific at various times in front of doc- Respondents tion. no made effort contro- doing independent- tors’ houses are this testimony
vert Kleypass of or Hafernik. ly, they I working no. do believe are Operation concert with Rescue and Res- II cue America. The dissent give believes that we should weight testimony little Kleypass to the Q. your testimony goes Is it that no one Hafernik, because both di- witnesses denied to a unless they clinic have been asked rect with petitioners. involvement See 975 go by Operation to the clinic Rescue J., (Spector, dissenting). S.W.2d at 570 In- my or Rescue America or one seven deed, purposes obtaining in- for defendants?
junction, respondents no made effort to char- very A. It’s obvious that demonstrations Kleypass acting acterize or Hafernik as organized, people ap- are are not petitioners. respondents concert with But pearing spontaneously. in that So re- needed rather little to accuse evidence other spect, yes. petitioners. individuals of conspiring gave Persons who one of the named defen- Q. you What are the criteria that utilize airport, a ride from the dants attended determining whether or not someone anti-abortion conference or seminar at which operative Operation is an Rescue or of present, one or more defendants were owned my seven or of Rescue America? T-shirts, stickers, bumper one defendants’ A. I very think it’s obvious from the publications, or other or had their activities individuals, tapes including of certain announced recommended one of the you represent, are in individuals defendants acting were accused concert. leadership providing fact di- short, contact, In association or relation- rection, guess you say and I if want to with, ship or recommendation a defendant people operatives, those are are was conspiracy. Allega- useful evidence of operatives organizations. two of those conspiracy long tions of have been used as a They clearly represent goal, bludgeon against the First Amendment and a they clearly their tactics. use dragnet suppress political- sympathizers *29 See, ly unpopular Whitney troubling e.g., testimony ques- movements. Reiner’s raises a 357, 365-72, associations, California, v. 274 47 U.S. S.Ct. tion: what kinds of incidental 641, (1927) deliberate, (sustaining 71 L.Ed. can nonparty 1095 convic- there be between a Party, petitioners nonparty tion of member Communist and will be of Labor before the adopted which in advocating acting had resolution vio- branded as concert and burdened though by injunction’s lent In provisions? revolution even defendant had Elfbrandt
577
705,
F.3d
Russell,
11,
1238,
McGregor, 6
dissenting);
16
v.
S.Ct.
v.
384 U.S.
86
Cheffer
(11th
vacated,
Cir.1993),
41
707,
F.3d
(1966),
Supreme
710-11
L.Ed.2d 321
curiam)
(en bane)
(11th Cir.1994)
(per
1422
question
a
on behalf of state
asked
similar
(remanded
light
in
of
job security
jeopar-
reconsideration
employees
for
whose
was
845,
Madsen);
Wagner, 47 F.3d
Hoover v.
by
organizations:
ties with communist
dized
(7th Cir.1995);
846-47,
v.
McKusick
850-51
People
label as “communist” ideas
often
(11th
Melbourne,
478,
City
96 F.3d
484-86
they oppose;
they
make
and
often
which
of
Cir.1996);
Planning
v. Medical
“[Pjrosecutors
up
juries.
hu-
our
too are
Gottfried
(6th Cir.1998)
Servs.,
326,
Inc., 142 F.3d
328
a
safe and secure
man.” Would teacher be
(all
pro-life
in which
recounting incidents
Pugwash
in
a
going to
Conference?
independently of the
acting
demonstrators
join
group
legal
a seminar
Would
be
to
underlying injunction
subject to the
parties
predominantly Communist
therefore
and
by
threat of
were arrested or chilled
by
to
subject to control
those who are said
arrest).
illustrate,
ignore
As
these cases
in
believe
the overthrow
the Govern-
injunction on non-
chilling
of the
effect
by
might
violence? Juries
ment
force and
parties
reality”
is inconsistent
“screens
though the
not sub-
convict
teacher did
jurisprudence.
with
First Amendment
wrongful
organi-
scribe
aims
Co., 458
v. Claiborne Hardware
U.S.
NAACP
is
no ma-
apparently
zation. And there
3409,
886, 924,
zone.
'While am troubled
(declining
reasoning
the chill-
to extend
of Interna
Consciousness,
ing
objectionable
Society
effect
less
tional
because
Krishna
for
Lee,
684, 112
672,
2701,
a
Inc. v.
505
persons,
sig-
allows
few
without
U.S.
S.Ct.
(1992),
arrest,
120
541
approach
upheld
pro
nificant threat of
L.Ed.2d
which
a
others
hibition
peacefully in
on face-to-face solicitation in
attempt
airport
an
engage
leaflet or
terminals,
striking
in
provision prohib
down
in moral suasion. The sidewalks
across
iting
approaches
uninvited
within
give
remaining
street
300 feet of
an
demonstrators
clinic).
effective alternative forum for communicat-
ing
message
(e.g.,
to broader audiences
not
a legitimate
State does
have
inter-
driving public).
or the
media
But see
speech
in prohibiting
est
because the content
v.
Irvington,
Schneider
Town
308 U.S.
of
message
emotionally
of the
upsetting or
147,
(1939)
163,
146,
60 S.Ct.
84
155
L.Ed.
psychological
causes
harm.
“The emotive
(“[0]ne is not to have the exercise of his
impact
on its audience is
not
”
liberty
expression
appropriate places
‘secondary
Barry,
effect.’
v.
Boos
abridged on
plea
may
that it
be exercised
312, 321,
1157,
108 S.Ct.
have
unsettling
presses
effects
itas
Ill
acceptance
anof
idea.”
Terminiello
1, 4,
City
894,
Chicago, 337 U.S.
69 S.Ct.
an
argues
dissent
buffer
absolute
(1949).
general
93
1131
“As a
L.Ed.
matter
justified
zone is
because even
inter-
...
insulting,
citizens must tolerate
and even
patients
stressful,
may
actions with
be
conse-
outrageous, speech
provide
in order to
ade-
quently endangering their health. The
quate breathing space
pro-
to the freedoms
legitimate
physical
State’s
in the
interest
Boos,
tected
First
485
Amendment.”
safety
patients may
health and
justi-
clinic
(internal
322,
at
quota-
U.S.
579
power
compel his
with a
speech
It cannot co-exist
of its
offensive because
form
speech.”);
the form of his
of
or fashion
offensive because
its content:
silence
928,
Hardware,
102
458
at
U.S.
Claiborne
may
in
offensive
[A] communication
be
extempora-
(“Strong
effective
S.Ct. 3409
ways.
Independently of the
two different
in
nicely
cannot be
channeled
neous rhetoric
convey,
speaker
message the
intends
be
An advocate must
phrases.
purely dulcet
may
of his
be
the form
communication
spontane-
with
his audience
free to stimulate
perhaps
it is too loud
because
offensive—
appeals_”).
ous and emotional
ugly
particular setting.
in a
Other
or too
phrased in
speeches,
though elegantly
even
(1993),
1,
Tucci,
8
In
859 S.W.2d
Ex Parte
tones,
simply
are offensive
because
dulcet
one-hundred foot buffer
we struck down the
disagrees
speaker’s
the listener
with the
contained in
zones around
clinics
form
message. The fact that the offensive
restraining order.
temporary
district court’s
may subject it to
of some communication
if
re-
plurality opinion warned that we
The
surely
sup-
not
appropriate regulation
does
test,
it
jected
restrictive means”
the “least
char-
port the conclusion that the offensive
adverse ef-
permit “rather substantial
would
justify
attempt
acter of an idea can
if
to some
speech masked as directed
fects on
expression.
its
censor
goal
suppression.”
than
859
purported
other
J.,
(Stevens,
546-48,
Id.
S.Ct. 2326
J.,
opinion).
plurality
(Doggett,
at 7-8
S.W.2d
concurring).
Similarly,
demonstrator’s
counseling un-
controversy
sidewalk
over
ways.
in
It
speech may be
different
stressful
necessity
using “least re-
of
derscores
may
because the demonstrator
be stressful
suppres-
in order to avert
strictive means”
shouts, crowds,
patient.
Al-
touches the
adopts
Today the Court
Madsen’s
sion.
ternatively,
as is sometimes
case with
necessary” test
no more
“burden
counseling,
may
sidewalk
be
understanding
it
its
on the
incor-
own
it
because
increases the woman’s
stressftd
“least
restrictive
porates both Tucci's
anxiety
guilt
to the
about her consent
re-
test and Claiborne Hardware’s
means”
killing
baby.
her
Restrictions
be
of
precision
regulation. This
quirement of
of
against peaceful
imposed
forms of communi-
the Court’s modification
standard mandates
only
of the
cation that
stress
because
induce
limited, peaceful
injunction to
of the
allow
message.
moral
of the
content
counseling.
sidewalk
the health and
Court’s solicitude for
subject matter of this
the record and
Given
well-being
patients
of clinic
is reflected
case,
appropriate
to remember
Unit-
it
many
injunctive provisions
upholds.
Supreme Court’s admonition
ed State
severely
petitioners’
The Court
restricts
during
v.
a time of fierce
Button
NAACP
communicating
methods
means and
opposition
rights
the civil
widespread
abortion,
opposition to
both
and out-
inside
movement:
is pre-
Clinic access
side the buffer zones.
eyes to the fact that
We cannot close our
by “restraining the
mass
served
troublesome
rights
Negro
the militant
civil
movement
protestors to a location
the street.”
across
engendered
resentment
has
the intense
Felicissimo, 135
Health
See Horizon
Ctr.
opposition
politically
dominant
(1994)
1260,
(empha-
N.J.
638 A.2d
community_
In such circum-
white
added).
“Aggressive”
sis
confrontations
stances,
curtailing group
broadly
a statute
prohibitions
patients are eliminated
may easily
weapon
activity ...
become
phys-
against shouting, yelling, touching, and
oppression,
evenhanded its terms
however
injunc-
Incidentally, some
ical abuse.
well
appear.
could
Its mere existence
tive restrictions on the
communica-
form
activity
such
out of existence all
freeze
constitutionally
here
approved
tions
would be
rights Negro citizens.
of the civil
behalf
suspect
See Ex Parte
other contexts.
(1920)
435-36,
The same
Tucker,
2. To
Justice
*32
Struthers,
141, 145-49,
IV
v. City
319 U.S.
63
of
862,
(1943) (striking
S.Ct.
ment has the intense resentment and however evenhanded opposition industry powerful appear. of the abortion terms The mere existence of an absolute circumstances, segments society. In such buffer zone could well freeze out of existence all injunction broadly peaceful picketing curtailing interpersonal of the moral suasion on behalf un- proceedings and court to enforce the "in con- born. easily provision weapon cert” could become a added). character, (emphasis Id. 42 S.Ct. spite admo- timidating following balance follow- The then crafted the given by the leaders to their nitions pursued, rights employees to lawful methods to be between the ers as rights picketers: however sincere. 72. The district court
Id.
S.Ct.
sym-
strikers
We think
restraining
enjoining the de-
issued a
order
struggle
pathizers engaged in
economic
*33
at or
maintaining
“from
or
fendants
picketing
representative for
limited to one
should be
on
premises
complainant,
or
near the
egress in the
point
ingress
of
and
each
leading
premises
said
the streets
to the
of
plant
and that all
place
or
of business
complainant, any picket
pickets.”
or
Id. at
or
enjoined
congregating
from
be
others
194,
It
not matter that
does
by
parties.
See 117
briefing
than
of full
fied
zone
be more difficult
efit
buffer
(“The
(Scalia, J., dissenting)
enforcing
“[T]he
an absolute buffer zone.
S.Ct.
responsi-
argument
weight
can
no
convenience
have
effort
recharacterize
Court’s
imposed by the First
safeguards
bility
special
of the constitu-
care
against those
judicial
gratuity
fathers for
sort
tion which were intended
our
as some
Amendment
rights
preservation
alarming concept
and liberties
perhaps
[the]
the most
McCormick,
Ex Parte
129 Tex.
opinion_”).
citizen.”
accord,
(1935);
104, 107
Crim.
88 S.W.2d
provision violates
I
hold that such a
would
Tucci,
Every
Ex Parte
A. Yes. We have very have or acted irritated been hostile V back or beginning, in the later came I with the While concur Court’s allowance right there then and turned around peaceful counseling, I sidewalk dissent gain they nothing I when felt like had respect provision forcing to the a side- them, really they that I from understood stop and retreat when walk counselor them, they became about then cared person left targeted announces desire be short, long story open. And make a recognize Supreme I alone. that the Court having they pressured the abor- felt into upheld provision a similar See Schenck. provid- when an alternative was tion and (holding at that the “cease and S.Ct. them, did not took it and ed to provision acceptable was because “the desist” abort. ... was conclude District Court entitled to enough it is that the way access was to I think that to ensure harassment, allow the away which would protestors prohibits the door- move all by Kleypass’s However, persistence I illustrated ways”). find Schenck’s reason- tactful ing testimony. its was unpersuasive because conclusion provision, possible
The “cease and desist” like the He makes inforcement of no-approach-unless-invited these, impossible. zone that Madsen else down, Madsen, 774, struck see 512 U.S. at McKenna, George On Abortion: A Lincolni- 2516, places speaker’s 114 S.Ct. freedom Position, Sept. 1995, Monthly, ATLANTIC mercy at communicate and consent of Petitioners, therefore, be should Long ago, the audience. recog- wary of harm that anti-abortion violence nized that it is no less constitutionally infirm and clinic vandalism does to the for freedom of be subsequently advocates of their cause. initially revoked than withheld: reasons, For all of the above I concur in say To that he who is free to withhold at part part. dissent privilege publication will the exercises a power censorship prohibited by the Con-
stitution, but he who has unrestricted
power not, privilege to withdraw the does ignore history deny would be to teachings experience, per- as well as to petuate evils which the First
Amendment was aimed.
584, 602,
City Opelika,
Jones v.
J. Hudson SCHLUETER and Richard
(1942) (Stone,
62 S.Ct.
VI No. 96-1091. point I have one final to make. The court *36 Supreme Texas. appeals below cited several incidents aggression vandalism and dur- occurred 7, Argued 1997. Oct. period ing the petitioners staged time 3, July Decided 1998. their demonstrations at abor Houston-area 60, tion climes. See 937 S.W.2d 74-77. The Rehearing Oct. Overruled argument justifies that the end the means is law,
“a rule of all conduct denounced divine, being pernicious human and policy false morals.” Ex Parte Milli (4 Wall.) gan, 71 U.S. L.Ed. (1866). pa Such incidents have strained public justice tience of the system and of the breaking point. Every almost to the intimi dating gesture or hateful utterance deafens public’s pro-life appeals collective ear to dignity Every about the of the unborn. act of anti-abortion violence or clinic vandalism credibility pro-
devastates the moral message. life Petitioners and other anti protestors abortion do would well to heed regarding Abraham Lincoln’s admonition importance public sentiment: it, fail; it, nothing against can
With noth- ing can public succeed. Whoever moulds
sentiment, goes deeper than he who enacts
statutes, pronounces judicial decisions.