Petitioners challenge the constitutionality of an injunction entered by a Florida state court which prohibits antiabortion protesters from demonstrating in certain places and in various ways outside of a health clinic that performs abortions. We hold that the establishment of a 36-foot buffer zone on a public street from which demonstrators are excluded passes muster under the First Amendment, but that several other provisions of the injunction do not.
I
Respondents operate abortion clinics throughout central Florida. Petitioners and other groups and individuals are
The court found that, despite the initial injunction, protesters continued to impede access to the clinic by congregating on the paved portion of the street—Dixie Way—leading up to the clinic, and by marching in front of the clinic's driveways. It found that as vehicles heading toward the clinic slowed to allow the protesters to move out of the way, "sidewalk counselors" would approach and attempt to give the vehicle's occupants antiabortion literature. The number of people congregating varied from a handful to 400, and the noise varied from singing and chanting to the use of loudspeakers and bullhorns.
The protests, the court found, took their toll on the clinic's patients. A clinic doctor testified that, as a result of having to run such a gauntlet to enter the clinic, the patients "manifested a higher level of anxiety and hypertension causing those patients to need a higher level of sedation to undergo the surgical procedures, thereby increasing the risk associated with such procedures." App. 54. The noise produced by the protesters could be heard within the clinic, causing stress in the patients both during surgical procedures and while recuperating in the recovery rooms. And those patients who turned away because of the crowd to return at a
Doctors and clinic workers, in turn, were not immune even in their homes. Petitioners picketed in front of clinic employees' residences; shouted at passersby; rang the doorbells of neighbors and provided literature identifying the particular clinic employee as a "baby killer." Occasionally, the protesters would confront minor children of clinic employees who were home alone.
This and similar testimony led the state court to conclude that its original injunction had proved insufficient "to protect the health, safety and rights of women in Brevard and Seminole County, Florida and surrounding counties seeking access to [medical and counseling] services." Id., at 5. The state court therefore amended its prior order, enjoining a broader array of activities. The amended injunction prohibits petitioners
The Florida Supreme Court upheld the constitutionality of the trial court's amended injunction. 626 So.2d 664. That court recognized that the forum at issue, which consists of public streets, sidewalks, and rights-of-way, is a traditional public forum. Id., at 671, citing Frisby v. Schultz, 487 U.S. 474, 480 (1988). It then determined that the restrictions are content neutral, and it accordingly refused to apply the heightened scrutiny dictated by Perry Ed. Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 45 (1983) (To enforce a content-based exclusion the State must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end). Instead, the court analyzed the injunction to determine whether the restrictions are "narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication." Ibid. It concluded that they were.
Shortly before the Florida Supreme Court's opinion was announced, the United States Court of Appeals for the Eleventh Circuit heard a separate challenge to the same injunction. The Court of Appeals struck down the injunction, characterizing the dispute as a clash "between an actual prohibition of speech and a potential hinderance to the free exercise of abortion rights." Cheffer v. McGregor, 6 F.3d 705,
II
We begin by addressing petitioners' contention that the state court's order, because it is an injunction that restricts only the speech of antiabortion protesters, is necessarily content or viewpoint based. Accordingly, they argue, we should examine the entire injunction under the strictest standard of scrutiny. See Perry Ed. Assn., supra, at 45. We disagree. To accept petitioners' claim would be to classify virtually every injunction as content or viewpoint based. An injunction, by its very nature, applies only to a particular group (or individuals) and regulates the activities, and perhaps the speech, of that group. It does so, however, because of the group's past actions in the context of a specific dispute between real parties. The parties seeking the injunction assert a violation of their rights; the court hearing the action is charged with fashioning a remedy for a specific deprivation, not with the drafting of a statute addressed to the general public.
The fact that the injunction in the present case did not prohibit activities of those demonstrating in favor of abortion is justly attributable to the lack of any similar demonstrations by those in favor of abortion, and of any consequent request that their demonstrations be regulated by injunction. There is no suggestion in this record that Florida law
Our principal inquiry in determining content neutrality is whether the government has adopted a regulation of speech "without reference to the content of the regulated speech." Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (internal quotation marks omitted) (upholding noise regulations); R. A. V. v. St. Paul, 505 U.S. 377, 386 (1992) ("The government may not regulate [speech] based on hostility— or favoritism—towards the underlying message expressed"); see also Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221, 230 (1987); Regan v. Time, Inc., 468 U.S. 641, 648— 649 (1984); Metromedia, Inc. v. San Diego, 453 U.S. 490, 514-515 (1981) (plurality opinion); Carey v. Brown, supra, at 466-468. We thus look to the government's purpose as the threshold consideration. Here, the state court imposed restrictions on petitioners incidental to their antiabortion message because they repeatedly violated the court's original order. That petitioners all share the same viewpoint regarding abortion does not in itself demonstrate that some invidious content- or viewpoint-based purpose motivated the issuance of the order. It suggests only that those in the group whose conduct violated the court's order happen to share the same opinion regarding abortions being performed at the clinic. In short, the fact that the injunction covered people with a particular viewpoint does not itself render the injunction content or viewpoint based. See Boos v. Barry, 485 U.S. 312 (1988).
III
If this were a content-neutral, generally applicable statute, instead of an injunctive order, its constitutionality would be assessed under the standard set forth in Ward v. Rock Against Racism, supra, at 791, and similar cases. Given that the forum around the clinic is a traditional public forum, see Frisby v. Schultz, 487 U. S., at 480, we would determine whether the time, place, and manner regulations were "narrowly tailored to serve a significant governmental interest." Ward, supra, at 791. See also Perry Ed. Assn., supra, at 45.
There are obvious differences, however, between an injunction and a generally applicable ordinance. Ordinances represent a legislative choice regarding the promotion of particular societal interests. Injunctions, by contrast, are remedies imposed for violations (or threatened violations) of a legislative or judicial decree. See United States v. W. T. Grant Co., 345 U.S. 629, 632-633 (1953). Injunctions also carry greater risks of censorship and discriminatory application than do general ordinances. "[T]here is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally." Railway Express Agency, Inc. v. New York, 336 U.S. 106,
We believe that these differences require a somewhat more stringent application of general First Amendment principles in this context.
Both Justice Stevens and Justice Scalia disagree with the standard we announce, for policy reasons. See post, at 778 (Stevens, J.); post, at 792-794 (Scalia, J.). Justice Stevens believes that "injunctive relief should be judged by a more lenient standard than legislation," because injunctions are imposed on individuals or groups who have engaged in illegal activity. Post, at 778. Justice Scalia, by contrast, believes that content-neutral injunctions are "at least as deserving of strict scrutiny as a statutory, contentbased restriction." Post, at 792. Justice Scalia bases his belief on the danger that injunctions, even though they might not "attack content as content, " may be used to suppress particular ideas; that individual judges should not be trusted to impose injunctions in this context; and that an injunction is procedurally more difficult to challenge than a statute. Post, at 793-794. We believe that consideration of all of the differences and similarities between statutes and injunctions supports, as a matter of policy, the standard we apply here.
Justice Scalia further contends that precedent compels the application of strict scrutiny in this case. Under that standard, we ask whether a restriction is "`necessary to serve a compelling state interest and [is] narrowly drawn to achieve that end.' " Post, at 790 (quoting Perry Ed. Assn., supra, at 45). Justice Scalia fails to cite a single case, and we are aware of none, in which we have applied this standard to a content-neutral injunction. He cites a number of cases in which we have struck down, with little or no elaboration, prior restraints on free expression. See post, at 798 (citing cases). As we have explained, however, we do not believe that this injunction constitutes a prior restraint, and we therefore believe that the "heavy presumption" against its constitutionality does not obtain here. See n. 2, supra.
As for Carroll, Justice Scalia believes that the "standard" adopted in that case "is strict scrutiny," which "does not remotely resemble the Court's new proposal." Post, at 799. Comparison of the language used in Carroll and the wording of the standard we adopt, however, belies Justice Scalia's exaggerated contention. Carroll, for example, requires that an injunction be "couched in the narrowest terms that will accomplish the pin-pointed objective" of the injunction. 393 U. S., at 183. We require that the injunction "burden no more speech than necessary" to accomplish its objective. We fail to see a difference between the two standards.
The Florida Supreme Court concluded that numerous significant government interests are protected by the injunction. It noted that the State has a strong interest in protecting a woman's freedom to seek lawful medical or counseling services in connection with her pregnancy. See
A
1
We begin with the 36-foot buffer zone. The state court prohibited petitioners from "congregating, picketing, patrolling, demonstrating or entering" any portion of the public right-of-way or private property within 36 feet of the property line of the clinic as a way of ensuring access to the clinic. This speech-free buffer zone requires that petitioners move
We have noted a distinction between the type of focused picketing banned from the buffer zone and the type of generally disseminated communication that cannot be completely banned in public places, such as handbilling and solicitation. See Frisby, supra, at 486 ("The type of focused picketing prohibited by [the state court injunction] is fundamentally different from more generally directed means of communication that may not be completely banned in [public places]"). Here the picketing is directed primarily at patients and staff of the clinic.
The 36-foot buffer zone protecting the entrances to the clinic and the parking lot is a means of protecting unfettered ingress to and egress from the clinic, and ensuring that petitioners do not block traffic on Dixie Way. The state court seems to have had few other options to protect access given the narrow confines around the clinic. As the Florida Supreme Court noted, Dixie Way is only 21 feet wide in the area of the clinic. App. 260, 305. The state court was convinced that allowing petitioners to remain on the clinic's sidewalk and driveway was not a viable option in view of the failure of the first injunction to protect access. And allowing the petitioners to stand in the middle of Dixie Way would obviously block vehicular traffic.
The need for a complete buffer zone near the clinic entrances and driveway may be debatable, but some deference
Justice Scalia's dissent argues that a videotape made of demonstrations at the clinic represents "what one must presume to be the worst of the activity justifying the injunction." Post, at 785-786. This seems to us a gratuitous assumption. The videotape was indeed introduced by respondents, presumably because they thought it supported their request for the second injunction. But witnesses also testified as to relevant facts in a 3-day evidentiary hearing, and the state court was therefore not limited to Justice Scalia's rendition of what he saw on the videotape to make its findings in support of the second injunction. Indeed, petitioners themselves studiously refrained from challenging the factual basis for the injunction both in the state courts and here. Before the Florida Supreme Court, petitioners stated that "the Amended Permanent Injunction contains fundamental error on its face. The sole question presented
2
The inclusion of private property on the back and side of the clinic in the 36-foot buffer zone raises different concerns. The accepted purpose of the buffer zone is to protect access to the clinic and to facilitate the orderly flow of traffic on Dixie Way. Patients and staff wishing to reach the clinic do not have to cross the private property abutting the clinic property on the north and west, and nothing in the record indicates that petitioners' activities on the private property have obstructed access to the clinic. Nor was evidence presented that protestors located on the private property blocked vehicular traffic on Dixie Way. Absent evidence that petitioners standing on the private property have obstructed access to the clinic, blocked vehicular traffic, or otherwise unlawfully interfered with the clinic's operation, this portion of the buffer zone fails to serve the significant government interests relied on by the Florida Supreme Court. We hold that on the record before us the 36-foot buffer zone as applied to the private property to the north and west of the clinic burdens more speech than necessary to protect access to the clinic.
B
In response to high noise levels outside the clinic, the state court restrained the petitioners from "singing, chanting, whistling, shouting, yelling, use of bullhorns, auto horns, sound amplification equipment or other sounds or images observable to or within earshot of the patients inside the [c]linic" during the hours of 7:30 a.m. through noon on Mondays through Saturdays. We must, of course, take account of the place to which the regulations apply in determining whether these restrictions burden more speech than necessary. We have upheld similar noise restrictions in the past, and as we noted in upholding a local noise ordinance around public schools, "the nature of a place, `the pattern of its normal activities, dictate the kinds of regulations . . . that are reasonable.' " Grayned v. City of Rockford, 408 U.S. 104, 116 (1972). Noise control is particularly important around hospitals and medical facilities during surgery and recovery periods, and in evaluating another injunction involving a medical facility, we stated:
We hold that the limited noise restrictions imposed by the state court order burden no more speech than necessary to ensure the health and well-being of the patients at the clinic. The First Amendment does not demand that patients at a medical facility undertake Herculean efforts to escape the
C
The same, however, cannot be said for the "images observable" provision of the state court's order. Clearly, threats to patients or their families, however communicated, are proscribable under the First Amendment. But rather than prohibiting the display of signs that could be interpreted as threats or veiled threats, the state court issued a blanket ban on all "images observable." This broad prohibition on all "images observable" burdens more speech than necessary to achieve the purpose of limiting threats to clinic patients or their families. Similarly, if the blanket ban on "images observable" was intended to reduce the level of anxiety and hypertension suffered by the patients inside the clinic, it would still fail. The only plausible reason a patient would be bothered by "images observable" inside the clinic would be if the patient found the expression contained in such images disagreeable. But it is much easier for the clinic to pull its curtains than for a patient to stop up her ears, and no more is required to avoid seeing placards through the windows of the clinic. This provision of the injunction violates the First Amendment.
D
The state court ordered that petitioners refrain from physically approaching any person seeking services of the clinic "unless such person indicates a desire to communicate" in an area within 300 feet of the clinic. The state court was attempting to prevent clinic patients and staff from being "stalked" or "shadowed" by the petitioners as they approached the clinic. See International Soc. for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 684 (1992) ("[F]aceto-face solicitation presents risks of duress that are an appropriate
But it is difficult, indeed, to justify a prohibition on all uninvited approaches of persons seeking the services of the clinic, regardless of how peaceful the contact may be, without burdening more speech than necessary to prevent intimidation and to ensure access to the clinic. Absent evidence that the protesters' speech is independently proscribable (i. e., "fighting words" or threats), or is so infused with violence as to be indistinguishable from a threat of physical harm, see Milk Wagon Drivers, 312 U. S., at 292-293, this provision cannot stand. "As a general matter, we have indicated that in public debate our own citizens must tolerate insulting, and even outrageous, speech in order to provide adequate breathing space to the freedoms protected by the First Amendment." Boos v. Barry, 485 U. S., at 322 (internal quotation marks omitted). The "consent" requirement alone invalidates this provision; it burdens more speech than is necessary to prevent intimidation and to ensure access to the clinic.
E
The final substantive regulation challenged by petitioners relates to a prohibition against picketing, demonstrating, or using sound amplification equipment within 300 feet of the residences of clinic staff. The prohibition also covers impeding access to streets that provide the sole access to streets on which those residences are located. The same analysis applies to the use of sound amplification equipment here as that discussed above: the government may simply demand that petitioners turn down the volume if the protests overwhelm the neighborhood. Grayned, 408 U. S., at 116.
But the 300-foot zone around the residences in this case is much larger than the zone provided for in the ordinance which we approved in Frisby. The ordinance at issue there made it "`unlawful for any person to engage in picketing before or about the residence or dwelling of any individual.' " Id., at 477. The prohibition was limited to "focused picketing taking place solely in front of a particular residence." Id., at 483. By contrast, the 300-foot zone would ban "[g]eneral marching through residential neighborhoods, or even walking a route in front of an entire block of houses." Ibid. The record before us does not contain sufficient justification for this broad a ban on picketing; it appears that a limitation on the time, duration of picketing, and number of pickets outside a smaller zone could have accomplished the desired result.
IV
Petitioners also challenge the state court's order as being vague and overbroad. They object to the portion of the injunction making it applicable to those acting "in concert" with the named parties. But petitioners themselves are named parties in the order, and they therefore lack standing to challenge a portion of the order applying to persons who are not parties. Nor is that phrase subject, at the behest of petitioners, to a challenge for "overbreadth"; the phrase itself does not prohibit any conduct, but is simply directed at unnamed parties who might later be found to be acting "in concert" with the named parties. As such, the case is governed by our holding in Regal Knitwear Co. v. NLRB, 324 U.S. 9, 14 (1945). There a party subject to an injunction
Petitioners also contend that the "in concert" provision of the injunction impermissibly limits their freedom of association guaranteed by the First Amendment. See, e. g., Citizens Against Rent Control/Coalition For Fair Housing v. Berkeley, 454 U.S. 290 (1981). But petitioners are not enjoined from associating with others or from joining with them to express a particular viewpoint. The freedom of association protected by the First Amendment does not extend to joining with others for the purpose of depriving third parties of their lawful rights.
V
In sum, we uphold the noise restrictions and the 36-foot buffer zone around the clinic entrances and driveway because they burden no more speech than necessary to eliminate the unlawful conduct targeted by the state court's injunction. We strike down as unconstitutional the 36-foot buffer zone as applied to the private property to the north and west of the clinic, the "images observable" provision, the 300-foot no-approach zone around the clinic, and the 300-foot buffer zone around the residences, because these provisions sweep more broadly than necessary to accomplish the permissible goals of the injunction. Accordingly, the judgment of the Florida Supreme Court is
Affirmed in part and reversed in part.
Justice Souter, concurring.
I join the Court's opinion and write separately only to clarify two matters in the record. First, the trial judge made reasonably clear that the issue of who was acting "in concert" with the named defendants was a matter to be taken up in
Justice Stevens, concurring in part and dissenting in part.
The certiorari petition presented three questions, corresponding to petitioners' three major challenges to the trial court's injunction.
I
I agree with the Court that a different standard governs First Amendment challenges to generally applicable legislation than the standard that measures such challenges to judicial remedies for proven wrongdoing. See ante, at 764-765. Unlike the Court, however, I believe that injunctive relief should be judged by a more lenient standard than legislation. As the Court notes, legislation is imposed on an entire community, ibid., regardless of individual culpability. By contrast, injunctions apply solely to an individual or a limited group of individuals who, by engaging in illegal conduct, have been judicially deprived of some liberty—the normal consequence of illegal activity.
The standard governing injunctions has two obvious dimensions. On the one hand, the injunction should be no more burdensome than necessary to provide complete relief, Califano v. Yamasaki, 442 U.S. 682, 702 (1979). In a First Amendment context, as in any other, the propriety of the remedy depends almost entirely on the character of the violation and the likelihood of its recurrence. For this reason, standards fashioned to determine the constitutionality of statutes should not be used to evaluate injunctions.
On the other hand, even when an injunction impinges on constitutional rights, more than "a simple proscription
In this case, the trial judge heard three days of testimony and found that petitioners not only had engaged in tortious conduct, but also had repeatedly violated an earlier injunction. The injunction is thus twice removed from a legislative proscription applicable to the general public and should be judged by a standard that gives appropriate deference to the judge's unique familiarity with the facts.
II
The second question presented by the certiorari petition asks whether the "consent requirement before speech is permitted" within a 300-foot buffer zone around the clinic unconstitutionally infringes on free speech.
That paragraph does not purport to prohibit speech; it prohibits a species of conduct. Specifically, it prohibits petitioners "from physically approaching any person seeking the services of the Clinic unless such person indicates a desire to communicate by approaching or by inquiring" of petitioners. App. 59. The meaning of the term "physically approaching" is explained by the detailed prohibition that applies when the patient refuses to converse with, or accept delivery of literature from, petitioners. Absent such consent, the petitioners "shall not accompany such person, encircle, surround, harass, threaten or physically or verbally abuse those individuals who choose not to communicate with them." Ibid. As long as petitioners do not physically approach patients in this manner, they remain free not only to communicate with the public but also to offer verbal or written advice on an individual basis to the clinic's patients through their "sidewalk counseling."
The "physically approaching" prohibition entered by the trial court is no broader than the protection necessary to provide relief for the violations it found. The trial judge entered this portion of the injunction only after concluding that the injunction was necessary to protect the clinic's patients and staff from "uninvited contacts, shadowing and stalking" by petitioners. App. 56. The protection is especially appropriate for the clinic patients given that the trial judge found that petitioners' prior conduct caused higher levels of "anxiety and hypertension" in the patients, increasing the risks associated with the procedures that the patients
The Florida Supreme Court correctly concluded:
I thus conclude that, under the circumstances of this case, the prohibition against "physically approaching" in the 300foot zone around the clinic withstands petitioners' First Amendment challenge. I therefore dissent from Part III—D.
III
Because I have joined Parts I, II, III—E, and IV of the IV after Court's opinion and have dissented as to Part III—D concluding that the 300-foot zone around the clinic is a reasonable time, place, and manner restriction, no further discussion is necessary. See n. 1, supra. The Court, however, proceeds to address challenges to the injunction that, although
After correctly rejecting the content-based challenge to the 36-foot buffer zone raised by the first question in the certiorari petition, the Court nevertheless decides to modify the portion of that zone that it believes does not protect ingress to the clinic. Petitioners, however, presented only a content-based challenge to the 36-foot zone; they did not present a time, place, and manner challenge. See n. 1, supra. They challenged only the 300-foot zones on this ground. Ibid. The scope of the 36-foot zone is thus not properly before us.
IV
For the reasons stated, I concur in Parts I, II, III—E, and IV of the Court's opinion, and respectfully dissent from the remaining portions.
Justice Scalia, with whom Justice Kennedy and Justice Thomas join, concurring in the judgment in part and dissenting in part.
The judgment in today's case has an appearance of moderation and Solomonic wisdom, upholding as it does some
But the context here is abortion. A long time ago, in dissent from another abortion-related case, Justice O'Connor, joined by then-Justice Rehnquist, wrote:
Today the ad hoc nullification machine claims its latest, greatest, and most surprising victim: the First Amendment.
Because I believe that the judicial creation of a 36-foot zone in which only a particular group, which had broken no law, cannot exercise its rights of speech, assembly, and association, and the judicial enactment of a noise prohibition, applicable to that group and that group alone, are profoundly at odds with our First Amendment precedents and traditions, I dissent.
I
The record of this case contains a videotape, with running caption of time and date, displaying what one must presume
Anyone seriously interested in what this case was about must view that tape. And anyone doing so who is familiar with run-of-the-mine labor picketing, not to mention some other social protests, will be aghast at what it shows we have today permitted an individual judge to do. I will do my best to describe it.
On Saturday, March 6, 1993, a group of antiabortion protesters is gathered in front of the clinic, arrayed from east (camera-left) to west (camera-right) on the clinic side of Dixie Way, a small, nonartery street. Men, women, and children are also visible across the street, on the south side of Dixie Way; some hold signs and appear to be protesters, others may be just interested onlookers.
On the clinic side of the street, two groups confront each other across the line marking the south border of the clinic property—although they are so close together it is often impossible to tell them apart. On the clinic property (and with their backs to the camera) are a line of clinic and abortionrights supporters, stretching the length of the property. Opposite them, and on the public right-of-way between the clinic property and Dixie Way itself, is a group of abortion opponents, some standing in place, others walking a picket line in an elongated oval pattern running the length of the property's south border. Melbourne police officers are visible at various times walking about in front of the
Clinic supporters are more or less steadily chanting the following slogans: "Our right, our right, our right, to decide"; "Right to life is a lie,you don't care if women die." Then abortion opponents can be heard to sing: "Jesus loves the little children, all the children of the world, red and yellow, black and white, they are precious in His sight, Jesus loves the little children of the world." Clinic supporters respond with: Q: "What do we want?" A: "Choice." Q: "When do we want it?" A: "Now." ("Louder!") And that call and response is repeated. Later in the tape, clinic supporters chant "1-2—3-4, we won't take it anymore; 5-6—7-8, Separate the Church and State." On placards held by picketers and by stationary protesters on both sides of the line, the following slogans are visible: "Abortionists lie to women." "Choose Life: Abortion Kills." "N.O.W. Violence." "The God of Israel is Pro-life." "RU 486 Now." "She Is a Child, Not a Choice." "Abortion Kills Children." "Keep Abortion Legal." "Abortion: God Calls It Murder." Some abortion opponents wear T-shirts bearing the phrase "Choose Life."
As the abortion opponents walk the picket line, they traverse portions of the public right-of-way that are crossed by paved driveways, on each side of the clinic, connecting the clinic's parking lot to the street. At one point an automobile moves west on Dixie Way and slows to turn into the westernmost driveway. There is a 3-to-4-second delay as the picketers, and then the clinic supporters, part to allow the car to enter. The camera cuts to a shot of another, parked car with a potato jammed onto the tailpipe. There is no footage of any person putting the potato on to the tailpipe.
Later, at a point when the crowd appears to be larger and the picketers more numerous, a red car is delayed approximately 10 seconds as the picketers (and clinic supporters) move out of the driveway. Police are visible helping to clear
The persons standing but not walking the picket line include a woman with a child in a stroller and a man shouting the Book of Daniel's account of Meshach, Shadrach, and Abednego. A woman on a stepladder holds up a sign in the direction of the clinic; a clinic supporter counters with a larger sign held up between the other and the clinic. A brief shot reveals an older man in a baseball cap—head, shoulders, and chest visible above the clinic fence—who appears to be reading silently from a small book. A man on clinic property holds a boom box out in the direction of the abortion opponents. As the crowd grows it appears at various points to have spilled over into the north-side, westbound lane of Dixie Way.
At one point, Randall Terry arrives and the press converge upon him, apparently in Dixie Way itself. A sign is held near his head reading "Randall Terry Sucks." Terry appears to be speaking to the press and at one point tears pages from a notebook of some kind. Through all of this, abortion opponents and abortion-rights supporters appear to be inches from one another on each side of the south border of the property. They exchange words, but at no time is there any violence or even any discernible jostling or physical contact between these political opponents.
The second segment of the videotape displays a group of approximately 40 to 50 persons walking along the side of a major highway. It is Saturday, March 13, 1993, at 9:56 a.m. The demonstrators walk in an oval pattern, carrying no signs or other visible indicators of their purpose. According to Ruth Arick, this second portion was filmed in front of the condominium where clinic owner Ed Windle lived.
A third segment begins. The date-time register indicates that it is the morning of Saturday, February 20, 1993. A teenage girl faces the clinic and exclaims: "Please don't let them kill me, Mommy. Help me, Daddy, please." Clinic supporters chant, "We won't go back." A second woman, the one who spoke at greatest length in the first segment, calls, "If you [inaudible], help her through it." Off camera, a group sings "Roe, Roe, Roe v. Wade, we will never quit, Freedom of choice is the law of the land, better get used to it." The woman from the first segment appears to address
The videotape and the rest of the record, including the trial court's findings, show that a great many forms of expression and conduct occurred in the vicinity of the clinic. These include singing, chanting, praying, shouting, the playing of music both from the clinic and from handheld boom boxes, speeches, peaceful picketing, communication of familiar political messages, handbilling, persuasive speech directed at opposing groups on the issue of abortion, efforts to persuade individuals not to have abortions, personal testimony, interviews with the press, and media efforts to report on the protest. What the videotape, the rest of the record, and the trial court's findings do not contain is any suggestion of violence near the clinic, nor do they establish any attempt to prevent entry or exit.
II
A
Under this Court's jurisprudence, there is no question that this public sidewalk area is a "public forum," where citizens generally have a First Amendment right to speak. United States v. Grace, 461 U.S. 171, 177 (1983). The parties to this case invited the Court to employ one or the other of the two well-established standards applied to restrictions upon this First Amendment right. Petitioners claimed the benefit of so-called "strict scrutiny," the standard applied to contentbased restrictions: The restriction must be "necessary to serve a compelling state interest and . . . narrowly drawn to achieve that end." Perry Ed. Assn. v. Perry Local Educa-
I shall discuss the Court's mode of applying this supposedly new standard presently, but first I must remark upon the peculiar manner in which the standard was devised. The Court begins, in Part II of the opinion, by considering petitioners' contention that, since the restriction is content based, strict scrutiny should govern. It rejects the premise, and hence rejects the conclusion. It then proceeds, in Part III, to examination of respondents' contention that plain old
But this is not a statute, and it is an injunctive order. The Court might just as logically (or illogically) have begun Part III: "If this were a content-based injunction, rather than a non-content-based injunction, its constitutionality would be assessed under the strict scrutiny standard"—and have then proceeded to discuss whether respondents can sustain the burden of departing from that presumed disposition. The question should be approached, it seems to me, without any such artificial loading of the dice. And the central element of the answer is that a restriction upon speech imposed by injunction (whether nominally content based or nominally content neutral) is at least as deserving of strict scrutiny as a statutory, content-based restriction.
That is so for several reasons: The danger of content-based statutory restrictions upon speech is that they may be designed and used precisely to suppress the ideas in question rather than to achieve any other proper governmental aim.
The second reason speech-restricting injunctions are at least as deserving of strict scrutiny is obvious enough: They are the product of individual judges rather than of legislatures—and often of judges who have been chagrined by prior disobedience of their orders. The right to free speech should not lightly be placed within the control of a single man or woman. And the third reason is that the injunction is a much more powerful weapon than a statute, and so should be subjected to greater safeguards. Normally, when injunctions are enforced through contempt proceedings, only the defense of factual innocence is available. The collateral bar rule of Walker v. Birmingham, 388 U.S. 307 (1967), eliminates the defense that the injunction itself was unconstitutional. Accord, Dade County Classroom Teachers' Assn. v. Rubin, 238 So.2d 284, 288 (Fla. 1970). Thus, persons subject to a speech-restricting injunction who have not the money or not the time to lodge an immediate appeal face a Hobson's choice: They must remain silent, since if they speak their First Amendment rights are no defense in subsequent
The Court seeks to minimize the similarity between speech-restricting injunctions and content-based statutory proscriptions by observing that the fact that "petitioners all share the same viewpoint regarding abortion does not in itself demonstrate that some invidious content- or viewpointbased purpose motivated the issuance of the order," but rather "suggests only that those in the group whose conduct violated the court's order happen to share the same opinion regarding abortions," ante, at 763. But the Court errs in thinking that the vice of content-based statutes is that they necessarily have the invidious purpose of suppressing particular ideas. "[O]ur cases have consistently held that `[i]llicit legislative intent is not the sine qua non of a violation of the First Amendment.' " Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U.S. 105, 117 (1991) (quoting Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460 U.S. 575, 592 (1983)). The vice of content-based legislation—what renders it deserving of the high standard of strict scrutiny—is not that it is always used for invidious, thought-control purposes, but that it lends itself to use for those purposes. And, because of the unavoidable
Finally, though I believe speech-restricting injunctions are dangerous enough to warrant strict scrutiny even when they are not technically content based, I think the injunction in the present case was content based (indeed, viewpoint based) to boot. The Court claims that it was directed, not at those who spoke certain things (antiabortion sentiments), but at those who did certain things (violated the earlier injunction). If that were true, then the injunction's residual coverage of "all persons acting in concert or participation with [the named individuals and organizations], or on their behalf," would not include those who merely entertained the same beliefs and wished to express the same views as the named defendants. But the construction given to the injunction by the issuing judge, which is entitled to great weight, cf. Forsyth County v. Nationalist Movement, 505 U.S. 123, 132-133 (1992); NLRB v. Donnelly Garment Co., 330 U.S. 219, 227 (1947), is to the contrary: All those who wish to express the same views as the named defendants are deemed to be "acting in concert or participation." Following issuance of the amended injunction, a number of persons were arrested for walking within the 36-foot speech-free zone. At an April 12, 1993, hearing before the trial judge who issued the injunction, the following exchanges occurred:
And:
. . . . .
And finally:
These colloquies leave no doubt that the revised injunction here is tailored to restrain persons distinguished, not by proscribable conduct, but by proscribable views.
B
I have discussed, in the prior subsection, the policy reasons for giving speech-restricting injunctions, even contentneutral ones, strict scrutiny. There are reasons of precedent as well, which are essentially ignored by the Court.
To begin with, an injunction against speech is the very prototype of the greatest threat to First Amendment values, the prior restraint. As The Chief Justice wrote for the Court last Term: "The term prior restraint is used `to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur.' . . . [P]ermanent injunctions, i. e., —court orders that actually forbid speech activities—are classic examples of prior restraints." Alexander v. United States, 509 U.S. 544, 550 (1993) (quoting M. Nimmer, Nimmer on Freedom of Speech § 4.03, p. 4-14 (1984) (emphasis added in Alexander )).
At oral argument neither respondents nor the Solicitor General, appearing as amicus for respondents, could identify a single speech-injunction case applying mere intermediate scrutiny (which differs little if at all from the Court's intermediate-intermediate scrutiny). We have, in our speech-injunction cases, affirmed both requirements that characterize strict scrutiny: compelling public need and surgical precision of restraint. Even when (unlike in the present case) the First Amendment activity is intermixed with violent conduct, "`precision of regulation' is demanded." NAACP v. Claiborne Hardware Co., 458 U.S. 886, 916 (1982) (quoting NAACP v. Button, 371 U.S. 415, 438 (1963)). In Milk Wagon Drivers v. Meadowmoor Dairies, Inc., 312 U.S. 287 (1941), we upheld an injunction prohibiting peaceful picketing, but only because the picketing had been accompanied by 50 instances of window smashing, bombings, stench
The utter lack of support for the Court's test in our jurisprudence is demonstrated by the two cases the opinion relies upon. For the proposition that a speech restriction is valid when it "burden[s] no more speech than necessary to accomplish a significant government interest," the Court cites NAACP v. Claiborne Hardware Co., supra, and Carroll v. President and Comm'rs of Princess Anne, supra, at 184. But as I shall demonstrate in some detail below, Claiborne applied a much more stringent test; and the very text of Carroll contradicts the Court. In the passage cited, Carroll says this: "An order issued in the area of First Amendment rights must be couched in the narrowest terms that will accomplish the pin-pointed objective permitted by constitutional mandate and the essential needs of the public order." 393 U. S., at 183. That, of course, is strict scrutiny; and it does not remotely resemble the Court's new proposal, for which it is cited as precedential support. "Significant government interest[s]" (referred to in the Court's test) are general, innumerable, and omnipresent—at least one of them will be implicated by any activity set in a public forum. "Essential needs of the public order," on the other hand, are factors of exceptional application. And that an injunction
III
A
I turn now from the Court's selection of a constitutional test to its actual application of that test to the facts of the present case. Before doing that, however, it will be helpful—in order to demonstrate how far the Court has departed from past practice—to consider how we proceeded in a relatively recent case that did not involve the disfavored class of abortion protesters. NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982), involved, like this case, protest demonstrations against private citizens mingling political speech with (what I will assume for the time being existed here) significant illegal behavior.
Writing for the Court, Justice Stevens summarized the events giving rise to the Claiborne litigation (id., at 898— 906): A local chapter of the NAACP, rebuffed by public officials of Port Gibson and Claiborne County in its request for redress of various forms of racial discrimination, began a boycott of local businesses. During the boycott, a young black man was shot and killed in an encounter with Port Gibson police and "sporadic acts of violence ensued." Id., at 902. The following day, boycott leader Charles Evers told a group that boycott violators would be disciplined by their own people and warned that the sheriff "could not sleep with boycott violators at night." Ibid. He stated at a second
The merchants brought suit against two groups involved in organizing the boycott and numerous individuals. The trial court found tort violations, violations of a state statute prohibiting secondary boycotts, and state antitrust violations. It issued a broad permanent injunction against the boycotters, enjoining them from stationing "store watchers" at the plaintiffs' business premises; from persuading any person to withhold patronage; from using demeaning and obscene language to or about any person because of his patronage; from picketing or patrolling the premises of any of the respondents; and from using violence against any person or inflicting damage upon any real or personal property. Id., at 893. The Mississippi Supreme Court upheld the assessment of liability and the injunction, but solely on the tort theory, saying that "`[i]f any of these factors—force, violence, or threats— is present, then the boycott is illegal regardless of whether it is primary, secondary, economical, political, social or other.' " Id., at 895.
The legal analysis of this Court proceeded along the following lines:
We went on to say that "[t]he right to associate does not lose all constitutional protection merely because some members of the group may have participated in conduct or advocated doctrine that itself is not protected," 458 U. S., at 908, and held that the nonviolent elements of the protesters' activities were entitled to the protection of the First Amendment, id., at 915.
Because we recognized that the boycott involved elements of protected First Amendment speech and other elements not so protected, we took upon ourselves a highly particularized burden of review, recognizing a "special obligation on this Court to examine critically the basis on which liability was imposed." Ibid. "The First Amendment," we noted, "does not protect violence," but when conduct sanctionable by tort liability "occurs in the context of constitutionally protected activity . . . `precision of regulation' is demanded." Id., at 916 (quoting NAACP v. Button, 371 U. S., at 438). Then, criticizing the Mississippi Supreme Court for "broadly assert[ing]—without differentiation—that [i]ntimidation,
B
I turn now to the Court's performance in the present case. I am content to evaluate it under the lax (intermediateintermediate scrutiny) standard that the Court has adopted, because even by that distorted light it is inadequate.
The first step under the Court's standard would be, one should think, to identify the "significant government interest" that justifies the portions of the injunction it upheld, namely, the enjoining of speech in the 36-foot zone, and the making (during certain times) of "`sounds . . . within earshot of the patients inside the [c]linic.' " Ante, at 772. At one point in its opinion, the Court identifies a number of government interests: the "interest in protecting a woman's freedom to seek lawful medical or counseling services," the "interest in ensuring the public safety and order, in promoting
Assuming then that the "significant interests" the Court mentioned must in fact be significant enough to be protected by state law (a concept that includes a prior court order), which law has been, or is about to be, violated, the question arises: What state law is involved here? The only one even mentioned is the original September 30, 1992, injunction,
According to the Court, the state court imposed the later injunction's "restrictions on petitioner[s'] . . . antiabortion message because they repeatedly violated the court's original order." Ante, at 763. Surprisingly, the Court accepts this reason as valid, without asking whether the court's findings of fact support it—whether, that is, the acts of which petitioners stood convicted were violations of the original injunction.
The Court simply takes this on faith—even though violation of the original injunction is an essential part of the reasoning whereby it approves portions of the amended injunction, even though petitioners denied any violation of the original injunction, even though the utter lack of proper basis for the other challenged portions of the injunction hardly inspires confidence that the lower courts knew what they were doing, and even though close examination of the factual basis for essential conclusions is the usual practice in First Amendment cases, see Claiborne Hardware, 458 U. S.,
On the basis of these findings Judge McGregor concluded that "the actions of the respondents and those in concert with them in the street and driveway approaches to the clinic of the plaintiffs continue to impede and obstruct both staff and patients from entering the clinic. The paved surfaces of the public right-of-way must be kept open for the free flow of traffic." Id., Conclusions, ¶ A.
These are the only findings and conclusions of the court that could conceivably be considered to relate to a violation of the original injunction. They all concern behavior by the protesters causing traffic on the street in front of the abortion clinic to slow down, and causing vehicles crossing the
Now let us compare these activities with the earlier injunction, violation of which is the asserted justification for the speech-free zone. Walking the return leg of the picket line on the paved portion of Dixie Way (instead of on the sidewalk), and congregating on the unpaved portion of that street, may, for all we know, violate some municipal ordinance (though that was not alleged, and the municipal police evidently did not seek to prevent it); but it assuredly did not violate the earlier injunction, which made no mention of such a prohibition. Causing the traffic along Dixie Way to slow down "in response to the congestion" is also irrelevant; the injunction said nothing about slowing down traffic on public rights-of-way. It prohibited the doing (or urging) of only three things: (1) "physically abusing persons entering, leaving, working or using any services" of the abortion clinic (there is no allegation of that); (2) "trespassing on [or] sitting in" the abortion clinic (there is no allegation of that); and (3) "blocking, impeding or obstructing ingress into or egress from" the abortion clinic.
Only the last of these has any conceivable application here, and it seems to me that it must reasonably be read to refer to intentionally blocking, impeding, or obstructing, and not to such temporary obstruction as may be the normal and incidental consequence of other protest activity. That is obvious, first of all, from the context in which the original injunction was issued—as a response to petitioners' threatened
If the original injunction is read as it must be, there is nothing in the trial court's findings to suggest that it was violated. The Court today speaks of "the failure of the first injunction to protect access." Ante, at 769. But the first injunction did not broadly "protect access." It forbade particular acts that impeded access, to wit, intentionally "blocking, impeding or obstructing." The trial court's findings identify none of these acts, but only a mild interference with access that is the incidental by-product of leafletting and picketing. There was no sitting down, no linking of arms, no packing en masse in the driveway; the most that can be alleged (and the trial court did not even make this a finding) is that on one occasion protesters "took their time to get out of the way." If that is enough to support this one-man proscription of free speech, the First Amendment is in grave peril.
Perhaps there is a local ordinance in Melbourne, Florida, prohibiting loud noise in the vicinity of hospitals and abortion clinics. Or perhaps even a Florida common-law prohibition applies, rendering such noisemaking tortious. But the
The Court does not even attempt a response to the point I have made in this section, insofar as the injunction against noise is concerned. That portion of its opinion, ante, at 772— 773, does not even allege any violation of the prior injunction to support this judge-crafted abridgment of speech. With respect to the 36-foot speech-free zone, the Court attempts a response, which displays either a misunderstanding of the point I have made or an effort to recast it into an answerable one. My point does not rely, as the Court's response suggests, ante, at 770, upon my earlier description of the videotape. That was set forth just for context, to show the reader what suppression of normal and peaceful social protest is afoot here. Nor is it relevant to my point that "petitioners themselves studiously refrained from challenging the factual basis for the injunction," ibid. I accept the facts as the Florida court found them; I deny that those facts support its conclusion (set forth as such in a separate portion of its opinion, as quoted above) that the original injunction had been violated. The Court concludes its response as follows:
But a finding that they "interfered with ingress and egress. . . despite the . . . earlier injunction" is not enough. The
To sum up: The interests assertedly protected by the supplementary injunction did not include any interest whose impairment was a violation of Florida law or of a Florida court injunction. Unless the Court intends today to overturn long-settled jurisprudence, that means that the interests cannot possibly qualify as "significant interests" under the Court's new standard.
C
Finally, I turn to the Court's application of the second part of its test: whether the provisions of the injunction "burden no more speech than necessary" to serve the significant interest protected.
This test seems to me amply and obviously satisfied with regard to the noise restriction that the Court approves: It is only such noise as would reach the patients in the abortion clinic that is forbidden—and not even at all times, but only during certain fixed hours and "during surgical procedures and recovery periods." (The latter limitation may raise vagueness and notice problems, but that does not concern us here. Moreover, as I have noted earlier, the noise restriction is invalid on other grounds.) With regard to the 36-foot speech-free zone, however, it seems to me just as obvious that the test which the Court sets for itself has not been met.
Assuming a "significant state interest" of the sort cognizable for injunction purposes (i. e., one protected by a law that has been or is threatened to be violated) in both (1) keeping
But I need not engage in such precise analysis, since the Court itself admits that the requirement is not to be taken seriously. "The need for a complete buffer zone," it says, "may be debatable, but some deference must be given to the state court's familiarity with the facts and the background of the dispute between the parties even under our heightened review." Ante, at 769-770 (emphasis added). In application, in other words, the "burden no more speech than is necessary" test has become an "arguably burden no more speech than is necessary" test. This renders the Court's intermediate-intermediate scrutiny not only no more stringent than plain old intermediate scrutiny, but considerably less stringent.
* * *
In his dissent in Korematsu v. United States, 323 U.S. 214 (1944), the case in which this Court permitted the wartime military internment of Japanese-Americans, Justice Jackson wrote the following:
What was true of a misguided military order is true of a misguided trial-court injunction. And the Court has left a powerful loaded weapon lying about today.
What we have decided seems to be, and will be reported by the media as, an abortion case. But it will go down in the lawbooks, it will be cited, as a free-speech injunction case—and the damage its novel principles produce will be considerable. The proposition that injunctions against speech are subject to a standard indistinguishable from (unless perhaps more lenient in its application than) the "intermediate scrutiny" standard we have used for "time, place, and manner" legislative restrictions; the notion that injunctions against speech need not be closely tied to any violation of law, but may simply implement sound social policy; and the practice of accepting trial-court conclusions permitting injunctions without considering whether those conclusions are supported by any findings of fact—these latest byproducts of our abortion jurisprudence ought to give all friends of liberty great concern.
For these reasons, I dissent from that portion of the judgment upholding parts of the injunction.
APPENDIX TO OPINION OF JUSTICE SCALIA
Portions of April 12, 1993, Appearance Hearings Held Before Judge McGregor, Eighteenth Judicial Circuit, Seminole County, Florida: Page 40:
JANE DOE NO. 6: "Yes, sir. When I heard this injunction, everything in there, as an American—"
JANE DOE NO. 6: "I do have a question, too. I'm confused as to why the people who were blockading the clinic who had pro-choice signs were not arrested along with me. They—it appeared to me they were violating the same injunction I was, you know—"
THE COURT: "The Injunction is directed only against certain named Defendants, certain named organizations and those acting in concert with them. Presumably, as you say, the other side would not have been acting in concert with the named Defendants."
JANE DOE NO. 6: "But I was in concert with nobody. I was just an American citizen, defending the right to assemble and to demonstrate."
THE COURT: "Again, perhaps, that would be a matter of defense that you would present at the time of trial."
JANE DOE NO. 6: "So the Injunction only . . . ." Page 43:
JANE DOE NO. 6: "But I was not in concert with anybody."
THE COURT: "Again, I say that at the time of your trial, perhaps, that would be a defensive matter. Although, I'm told by the Melbourne Police Department that everyone was put on notice that the thirty-six-foot area was a restricted area and when—if you presumably had notice of that and chose to enter, then, you chose to violate the Court's Injunction. That's why you were arrested."
JANE DOE NO. 6: "I don't mean this disrespectfully, but does not the constitutional freedom to be on public sidewalk and to—"
THE COURT: "There is nothing in the constitution that says that anyone is entitled to walk on any sidewalk."
THE COURT: "And that will not be denied you, but it is subject to regulation. The Court provided the south shoulder of Dixie Way as an area for that to be done." Page 93:
MR. QUINTERO: "And who are these Defendants? I have no idea."
THE COURT: "They're set out in the Injunction."
MR. QUINTERO: "Because I'm not working in conjunction with anybody. I don't know anything. I don't belong to any group that is doing absolutely anything like this. I am just a normal Christian that went to pray on the sidewalk."
THE COURT: "Again, those may be defensive matters. I'm saying that you should bring them up first with your lawyer and then at the time of trial."
MR. QUINTERO: "Okay, I would like to formally request to have this injunction so I can look at it while I'm incarcerated and that I can make arrangements to talk to counsel about it."
THE COURT: "Your lawyer knows how to obtain a copy. Copies are available at, again, the branch courthouses in Melbourne and Melbourne City Hall. Copies are available at the Clerk's Office here in Seminole County."
MR. QUINTERO: "At this time I do not have a lawyer and I see it very difficult for me to go to the Melbourne Courthouse being incarcerated." Page 115-116:
[JOHN DOE NO. 16]: ". . . do with the determination in the Injunctive Order or in the arrest?"
THE COURT: "You know, I wasn't there. I don't know. All I know is that the officer used his perceptions, his eyes, his ears, took note of the activities that were going on and
JOHN DOE NO. 16: "When you issued the Injunctive Court Order did you include what someone might believe about abortion or about their right to assemble there, or let's just say about abortion as a basis for arrest?"
THE COURT: "I considered all of the evidence before me."
JOHN DOE NO. 16: "And would one of those things be, would one of the reasons that I was arrested be because I opposed abortion in that clinic?"
THE COURT: "No."
JOHN DOE NO. 16: "Okay. If I was to stand here, if I was to testify that I did not oppose abortion would that make any difference in my arrest?"
THE COURT: "You can't be unarrested. You have been arrested."
JOHN DOE NO. 16: "What about being charged with violating the Court Order?"
THE COURT: "It will be up to the prosecutor, the State Attorney, to make a charge decision. And sometimes lawyers in representing clients will go to a prosecutor in advance of his charge decision and ask that he, you know, consider additional matters that might cause him to not make such a charge decision. Those are matters lawyers best know how to do."
JOHN DOE NO. 16: "When you issued the Injunction did you determine that it would only apply to—that it would apply only to people that were demonstrating that were pro-life?"
THE COURT: "In effect, yes."
JOHN DOE NO. 16: "Okay, thank you."
THE COURT: "Any other questions?"
JOHN DOE NO. 16: "No."
"John Doe Number Eighteen."
JOHN DOE NO. 18: "Were there any numbers . . . ." Pages 119-120:
MR. MACLEAN: "Yes, please, Your Honor."
THE COURT: "Okay. Court will then direct pre-trial release officer to interview and provide the results of the interview to Judge Eaton after 1:00 o'clock today and he will consider that release. Do you wish to be considered for court-appointed counsel?"
MR. MACLEAN: "No thank you."
THE COURT: "Do you have any questions?"
MR. MACLEAN: "Yes, please. Would you extend your gracious offer to reduce the bond for myself also?"
THE COURT: "Surely. Reduce bond to a hundred dollars."
THE CLERK: "Total?"
THE COURT: "Hmm?"
THE CLERK: "Total?"
THE COURT: "No. I can't deal with the—"
THE CLERK: "Eleven hundred?"
THE COURT: "Eleven hundred, yes."
MR. MACLEAN: "Respectfully, sir, where on my arrest report does it allege that I was acting in concert with anyone?"
THE COURT: "It is embodied in the phrase violation of the Injunctive Court Order. But again, this is an arrest report. It is not a formal charge. Presumably within the formal charge there will be that reference, sir."
MR. MACLEAN: "I'm finished with questions, sir, but may I make a statement which I promise you I won't—"
THE COURT: "I can't deal with the statement. In other words, I've got a lot of people to see and the statement may be defensive in nature and it is a matter that should be brought to the trial of the matter."
THE COURT: "Thank you in their behalf."
MR. MACLEAN: "Okay, sir."
THE COURT: "John Doe Number Eighteen. This is out of order now."
THE CLERK: "Yes, sir."
THE COURT: "You've been designated as John Doe Number Eighteen. Do you wish to maintain that designation for these proceedings?"
FootNotes
Briefs of amici curiae urging affirmance were filed for the State of Florida et al. by Robert A. Butterworth, Attorney General of Florida, Ger- ald B. Curington and Gypsy Bailey, Assistant Attorneys General, Eleni M. Constantine, and Richard Cordray, and by the Attorneys General for their respective States as follows: Grant Woods of Arizona, Gale A. Norton of Colorado, Richard Blumenthal of Connecticut, Robert A. Marks of Hawaii, Roland W. Burris of Illinois, Pamela Carter of Indiana, Michael E. Carpenter of Maine, J. Joseph Curran, Jr., of Maryland, Scott Harshbarger of Massachusetts, Hubert H. Humphrey III of Minnesota, Joseph P. Mazurek of Montana, Deborah T. Poritz of New Jersey, Frankie Sue Del Papa of Nevada, Tom Udall of New Mexico, G. Oliver Koppell of New York, Michael F. Easley of North Carolina, Lee Fisher of Ohio, Theodore E. Kulongoski of Oregon, Jeffrey B. Pine of Rhode Island, Charles W. Burson of Tennessee, Dan Morales of Texas, Jeffrey L. Amestoy of Vermont, Darrell V. McGraw, Jr., of West Virginia, and James E. Doyle of Wisconsin; for the American College of Obstetricians and Gynecologists et al. by Carter G. Phillips, Joseph R. Guerra, Ann E. Allen, and Paul M. Smith; for the Center for Reproductive Law & Policy et al. by Lenora M. Lapidus; for the National Abortion Federation et al. by Elaine Metlin, Lynn I. Miller, Roger K. Evans, and Eve W. Paul; for the NOW Legal Defense and Education Fund et al. by Martha F. Davis, Deborah A. Ellis, Sally F. Goldfarb, and Burt Neuborne; and for People for the American Way et al. by Joseph N. Onek, Richard McMillan, Jr., Elliot M. Mincberg, Lawrence S. Ottinger, Steven M. Freeman, Marc D. Stern, Lois C. Waldman, Richard F. Wolfson, Ronald Lindsay, Elaine R. Jones, Theodore M. Shaw, and Charles Stephen Ralston.
Laurence Gold and Walter Kamiat filed a brief for the American Federation of Labor and Congress of Industrial Organizations as amicus curiae.
"1. Whether a state court injunction placing a thirty-six-foot buffer zone around an abortion clinic which prohibits peaceful pro-life speech in a traditional public forum is an unconstitutional content-based restriction on free speech and association.
"2. Whether a state court injunction creating a consent requirement before speech is permitted within a three-hundred-foot buffer zone around an abortion clinic and residential areas is a reasonable time, place, and manner restriction or an unconstitutional prior restraint on free speech.
"3. Whether a state court injunction prohibiting named demonstrators and those acting `in concert' from expressing peaceful speech within several designated buffer zones violates the First Amendment's protection of freedom of speech and association." Pet. for Cert. i.
"At all times on all days, in an area within three-hundred (300) feet of the Clinic, from physically approaching any person seeking the services of the Clinic unless such person indicates a desire to communicate by approaching or by inquiring of the [petitioners]. In the event of such invitation, the [petitioners] may engage in communications consisting of conversation of a non-threatening nature and by the delivery of literature within the three-hundred (300) foot area but in no event within the 36 foot buffer zone. Should any individual decline such communication, otherwise known as `sidewalk counseling', that person shall have the absolute right to leave or walk away and the [petitioners] shall not accompany such person, encircle, surround, harass, threaten or physically or verbally abuse those individuals who choose not to communicate with them." App. 59.
Even if the question were properly presented here, I fully agree with the Florida Supreme Court's refusal to quibble over a few feet one way or the other when the parties have not directed their arguments at a narrow factual issue of this kind. Operation Rescue v. Women's Health Center, Inc., 626 So.2d 664, 673 (1993). Moreover, respect for the highest court of the State strongly counsels against this sort of error correction in this Court.
"During the hours of 7:30 a.m. through noon, on Mondays through Saturdays, during surgical procedures and recovery periods, from singing, chanting, whistling, shouting, yelling, use of bullhorns, auto horns, sound amplification equipment or other sounds or images observable to or within earshot of the patients inside the Clinic." Id., at 59.
Comment
User Comments