520 U.S. 1133 | SCOTUS | 1997
Dissenting Opinion
dissenting.
The issue in this ease is the constitutionality of an injunction against abortion protesters. The injunction limits their First Amendment activities to a sidewalk separated from the clinic that is the object of their protest by a busy four-lane avenue. The ease has made its way back here after we set aside the Supreme
This case — unlike Schenck — is not one in which the record reveals instances of serious unlawful conduct by clinic protesters. The following was the testimony of Janice Sehoenfeld, the “escort coordinator” of the clinic, at the hearing on the application for a permanent injunction:
“Q. Did you ever see any of this group of defendants prevent somebody from getting in the front door of the clinic?
“A. No.
“Q. Did you ever see them manhandle any of your clients?
“A. No.
“Q. Was anybody, to the best of your knowledge, that wanted to get an abortion, prevented from getting an abortion?
“A. No.
“Q. Did you ever attempt to make a citizen’s arrest of any of the defendants?
“A. No, I did not.
“Q. Do you know if any of them were ever arrested?
“A. Not at the Vallejo clinic, that I know of. Some have been in other Operation Rescue activity.
“Q. Did you ever see any of the defendants prevent any cars from parking in the parking lot?
“A. Not prevent them from parking, no.” Tr. 54-55.
The basis for that injunction — and for the Supreme Court of California’s initial approval of it — was the perceived government interest in preventing “increased stress and anxiety” among abortion patients. 7 Cal. 4th, at 872-876, 873 P. 2d, at 1230-1233 (internal quotation marks and citation omitted). As the Supreme Court of California explained, “emotionally jarring confrontations with anti-abortion pickets or sidewalk ‘counselors’ may pose serious health risks.” Id., at 874, 873 P. 2d, at 1232. The “substantial governmental interest in protecting the patients’ physical and emotional health and safety” justified restricting the abortion opponents to areas far removed from the clinic. Id., at 876, 873 P. 2d, at 1233.
This holding was no longer supportable after we vacated the Supreme Court of California’s judgment in light of Madsen, and remanded the case for further proceedings. Madsen, in disallowing an injunction which prevented abortion opponents from approaching persons seeking services at an abortion clinic, said:
“Absent evidence that the protesters’ speech is independently proseribable (i. e., ‘fighting words’ or threats), or is so infused with violence as to be indistinguishable from a threat of physical harm, this provision cannot stand.” 512 U. S., at 774 (citation omitted).
Despite this holding, the Supreme Court of California, on remand, did not abandon but reaffirmed its assertion that avoiding upset to the clinic’s clients justified keeping the protesters at a distance. 10 Cal. 4th, at 1021, 898 P. 2d, at 410. When the defendants again petitioned us for certiorari, we held the ease pending our decision in Schenck.
Whatever glimmer of hope Madsen might have left regarding the legitimacy of the Supreme Court of California’s “emotional upset” justification was entirely snuffed by Schenck, in which we reiterated, in the most unmistakable terms, that there is no legitimate government interest in protecting the “right of the people approaching and entering [clinics] to be left alone” on the public streets, 519 U. S., at 383. Schenck would require, without further
It is not normally our practice to scrutinize the record support for the grounds asserted by state courts or lower federal courts as a basis for rejecting constitutional claims. We have, however, sometimes been disposed to do so when the abridgment of First Amendment rights was at issue. See, e. g., NAACP v. Claiborne Hardware Co., 458 U. S. 886, 915, and n. 50 (1982); Edwards v. South Carolina, 372 U. S. 229, 235 (1963). And we should in my view always be disposed to do so when the grounds are newly minted after a remand, contradict what was said before the remand, and bear indication of an attempt to evade the consequences of our holding prompting the remand. That is the case here; and an examination of the record for support of the newly minted ground discloses that it does not exist.
The trial court made many findings regarding activities tending to cause, not blocking of the entrances to the clinic parking lot, but “increased stress and anxiety” to clinic patrons and staff: protesters “confront and intimidate women seeking [respondent’s] services,” “force . . . ‘counseling’ upon [respondent’s] staff and clients,” “have called staff ‘murderers’ or asked them not to ‘kill babies’ in the presence of small children,” “have pursued [respondent’s] clients to their cars or public transportation in an effort to distribute literature and the plastic fetuses,” and “bring small children to the area who run up and down the public sidewalk in front of plaintiff’s premises.” App. to Pet. for Cert. 42a-43a. The trial court also made findings regarding the impact of these activities on respondent, its patrons, and its staff: “[Respondent] must escort its clients through picket lines and [petitioners’] ‘picketers/eounselors’ in its parking lot,” and “[t]he conduct of [petitioners] and their picketers/eounselors have [sic] caused some of the women seeking counselling or services from plaintiff to become emotionally distraught.” Ibid. But the only finding remotely related to access to the clinic is the following: Protesters “stand directly in front of [respondent’s] office door and interfer
Since the trial court did not find that the challenged injunction provision was necessary to secure access, the Supreme Court of California took it upon itself to provide the requisite finding. “[T]he evidence at trial,” the court proclaimed, “indicated that picketers had not followed the preliminary injunction . . . .” 10 Cal. 4th, at 1024, 898 P. 2d, at 411-412. For this the court offers no support other than citation of its earlier opinion in this case, 7 Cal. 4th, at 866-867, n. 2, 873 P. 2d, at 1227, n. 2, which in turn relies upon nothing more probative than the following testimony of Janice Schoenfeld:
“Q. Have you observed picket activity since the injunction?
“A. Yes, but they followed the injunction usually, except for picketers.
“MS. RYER: Thank you. I have nothing further. Thank you.
“THE COURT: You say that they followed the injunction?
“THE WITNESS: They followed the injunction, yes, since the injunction.” Tr. 52-53.
This case having been held pending the issuance of our opinion in Schenck; and Schenck having come out four-square against the principal theory relied upon by the Supreme Court of California; it is quite impossible to understand why any disposition short of a reversal and remand would be appropriate. If we were prepared to take at face value the court’s post-Madsen-invented “obstruction of entrances” justification, then there was no reason to hold the case in the first place. The hold was correct, and today’s denial of certiorari smiles upon injustice to these petitioners and disregard of the processes of this Court. I dissent.
There was no testimony that petitioners had blocked the entrance, but only statements that they had stood very close to the entrance, trying to pass literature or other material to those going in. See Tr. 17-18 (testimony of Janice Schoenfeld at hearing on preliminary injunction) (“I did not say they blocked the door. I said they stand very close to the door”) (“Q. Has any one of your clients ever been prevented from entering the clinic? A. No”); id., at 54 (testimony of Schoenfeld at hearing on permanent injunction) (“Q. Did you ever see any of this group of defendants prevent somebody from getting in the front door of the clinic? A. No”); id., at 65 (testimony of Marsha Anderson at hearing on permanent injunction) (“Q. Did you observe any of your patrons being denied entrance into the clinic by any of the defendants? A. I know they progressed to the front door, interrupted them, but not prohibited them”). Of course if, as the trial court believed, subjecting abortion clients to “emotional upset” was unlawful, forcing clients to expose themselves to such unlawful activity in order to enter or exit the clinic would constitute “interfering] with” their access — and that is evidently what the trial court had in mind.
In a separate portion of its opinion, the Supreme Court of California stated (without any citation of record support) that “[o]ne of the tactics of the sidewalk picketers was to walk slowly across the driveway entrance, thereby delaying cars attempting to turn into the parking lot from the street.” 10 Cal. 4th, at 1012, 898 P. 2d, at 404. Apart from the fact that the trial court made no such finding in connection with its entry of the injunction, see App. to Pet. for Cert. 42a-43a, “delaying” the entry of cars into the lot as an incidental result of lawful picket activity is by no means equivalent to “blocking driveways.”
Lead Opinion
Sup. Ct. Cal. Certiorari denied.