U.S. Supreme Court
MADSEN v. WOMEN'S HEALTH CTR., INC., ___ U.S. ___ (1994)
MADSEN v. WOMEN'S HEALTH CTR., INC., ___ U.S. ___ (1994)
JUDY MADSEN, ET AL., PETITIONERS v. WOMEN'S HEALTH
CENTER, INC., ET AL.
CERTIORARI TO THE SUPREME COURT OF FLORIDA
Argued April 28, 1994
Decided June 30, 1994
After petitioners and other anti-abortion protesters threatened to picket and
demonstrate around a Florida abortion clinic, a state court permanently enjoined
petitioners from blocking or interfering with public access to the clinic, and
from physically abusing persons entering or leaving it. Later, when respondent
clinic operators sought to broaden the injunction, the court found that access
to the clinic was still being impeded, that petitioners' activities were having
deleterious physical effects on patients and discouraging some potential
patients from entering the clinic, and that doctors and clinic workers were
being subjected to protests at their homes. Accordingly, the court issued an
amended injunction, which applies to petitioners and persons acting "in concert"
with them, and which, inter alia, excludes demonstrators from a 36-foot buffer
zone around the clinic entrances and driveway and the private property to the
north and west of the clinic; restricts excessive noisemaking within the earshot
of, and the use of "images observable" by, patients inside the clinic; prohibits
protesters within a 300-foot zone around the clinic from approaching patients
and potential patients who do not consent to talk; and creates a 300-foot buffer
zone around the residences of clinic staff. In upholding the amended injunction
against petitioners' claim that it violated their First Amendment right to
freedom of speech, the Florida Supreme Court recognized that the forum at issue
is a traditional public forum; refused to apply the heightened scrutiny dictated
by Perry Education Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 45,
because the injunction's restrictions are content-neutral; and concluded that
the restrictions were narrowly tailored to serve a significant government
interest and left open ample Page II alternative channels of communication, see
1. The ordinance at issue is not subject to heightened scrutiny as
content or viewpoint-based simply because it restricts only the speech of
anti-abortion protesters. To accept petitioners' claim to the contrary would
be to classify virtually every injunction as content-based. An injunction,
by its very nature, does not address the general public, but applies only to
particular parties, regulating their activities, and perhaps their speech,
because of their past actions in the context of a specific dispute. The fact
that this injunction did not prohibit activities by persons demonstrating in
favor of abortion is justly attributable to the lack of such demonstrations
and of any consequent request for relief. Moreover, none of the restrictions
at issue were directed at the content of petitioners' anti-abortion message.
The principal inquiry in determining content neutrality is whether the
government has regulated speech without reference to its content. See, e.g.,
Ward v. Rock Against Racism, 491 U.S. 781, 791. The government's purpose is
therefore the threshold consideration. Here, the injunction imposed
incidental restrictions on petitioners' message because they repeatedly
violated the original injunction. That the injunction covers people who all
share the same viewpoint suggests only that those in the group whose conduct
violated the court's order happen to share that viewpoint. Pp. 6-8.
2. In evaluating a content-neutral injunction, the governing standard is
whether the injunction's challenged provisions burden no more speech than
necessary to serve a significant government interest. See, e.g., Carroll v.
President and Comm'rs of Princess Anne, 393 U.S. 175, 184. Thus, the
injunction must be couched in the narrowest terms that will accomplish its
pin-pointed objective. See id., at 183. Although the forum around the clinic
is a traditional public forum, the obvious differences between a generally
applicable ordinance - which represents a legislative choice to promote
particular societal interests - and an injunction - which remedies an actual
or threatened violation of a legislative or judicial decree, and carries
greater risks of censorship and discriminatory application than an
ordinance, but can be tailored to afford greater relief where a violation of
law has already occurred - require a somewhat more stringent application of
general First Amendment principles in this context than traditional time,
place, and manner analysis allows. The combination of the governmental
interests identified by the Florida Supreme Court - protecting a pregnant
woman's freedom to seek lawful medical or counseling services, ensuring
public safety and order, promoting the free flow Page III of traffic on
public streets and sidewalks, protecting citizens' property rights, and
assuring residential privacy - is quite sufficient to justify an
appropriately tailored injunction. Pp. 8-13.
3. Given the focus of the picketing on patients and clinic staff, the
narrowness of the confines around the clinic, the fact that protesters could
still be seen and heard from the clinic parking lots, and the failure of the
first injunction to accomplish its purpose, the 36-foot buffer zone around
the clinic entrances and driveway, on balance, burdens no more speech than
necessary to accomplish the governmental interests in protecting access to
the clinic and facilitating an orderly traffic flow on the street. The need
for a complete buffer zone may be debatable, but some deference must be
given to the state court's familiarity with the facts and the background of
the dispute even under heightened review. Petitioners argued against
including the factual record as an appendix in the Florida Supreme Court,
and never certified a full record. This Court must therefore judge the case
on the assumption that the evidence and testimony presented to the state
court supported its findings that the protesters' activities near the
clinic's entrance interfered with access despite the earlier injunction. Pp.
4. However, 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. Patients and staff wishing to reach the clinic
do not have to cross that property. Moreover, nothing in the record
indicates that petitioners' activities on the property have obstructed
clinic access, blocked vehicular traffic, or otherwise unlawfully interfered
with the clinic's operation. P. 16.
5. The limited noise restrictions imposed by the injunction burden no more
speech than necessary to ensure the health and wellbeing of the clinic's
patients. Noise control is particularly important around medical facilities
during surgery and recovery periods. The First Amendment does not demand
that patients at such a facility undertake Herculean efforts to escape the
cacophony of political protests. Pp. 16-17.
6. The blanket ban on "images observable" sweeps more broadly than
necessary to accomplish the goals of limiting threats to clinic patients or
their families and reducing the patients' level of anxiety and hypertension
inside the clinic. Prohibiting the display of signs that could be
interpreted as threats or veiled threats would satisfy the first goal, while
a clinic could simply pull its curtains to protect a patient bothered by a
disagreeable placard. Pp. 17-18.
7. Absent evidence that the protesters' speech is independently Page IV
proscribable (i.e, "fighting words" or threats), or is so infused with
violence as to be indistinguishable from a threat of physical harm, the
300-foot no-approach zone around the clinic - and particularly its consent
requirement - burdens more speech than is necessary to accomplish the goals
of preventing intimidation and ensuring access to the clinic. Pp. 18-19.
8. The 300-foot buffer zone around staff residences sweeps more broadly
than is necessary to protect the tranquility and privacy of the home. The
record does not contain sufficient justification for so 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 results. As to the use of sound amplification equipment within the
zone, however, the government may demand that petitioners turn down the
volume if the protests overwhelm the neighborhood. Pp. 19-20.
9. Petitioners, as named parties in the injunction, lack standing to
challenge its "in concert" provision as applied to persons who are not
parties. Moreover, that phrase is not subject at petitioners' behest, to a
challenge for "overbreadth." See Regal Knitwear Co. v. NLRB, 324 U.S. 9,
14-15. Nor does the "in concert" provision impermissibly burden their
freedom of association. They are not enjoined from associating with others
or from joining with them to express a particular viewpoint, and the First
Amendment does not protect joining with others to deprive third parties of
their lawful rights. Pp. 20-21.
626 So.2d 664, affirmed in part and reversed in part.
REHNQUIST, C.J., delivered the opinion of the Court, in which BLACKMUN,
O'CONNOR, SOUTER, and GINSBURG, JJ., joined, and in which STEVENS, J., joined as
to Parts I, II, III-E, and IV. SOUTER, J., filed a concurring opinion. STEVENS,
J., filed an opinion concurring in part and dissenting in part. SCALIA, J.,
filed an opinion concurring in the judgment in part and dissenting in part, in
which KENNEDY and THOMAS, JJ., joined. [ MADSEN v. WOMEN'S HEALTH CTR., INC., ___ U.S. ___
(1994) , 1]
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
Petitioners challenge the constitutionality of an injunction entered by a
Florida state court which prohibits anti-abortion protestors 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.
Respondents operate abortion clinics throughout central
Florida. Petitioners and other groups and individuals are engaged in activities
near the site of one such clinic in Melbourne, Florida. They picketed and
demonstrated where the public street gives access to the clinic. In September,
1992, a Florida state court permanently enjoined petitioners from blocking or
interfering with public access to the clinic, and from physically abusing
persons entering or leaving the clinic. Six months later, respondents sought to
broaden the injunction, complaining that access to the clinic was still impeded
by petitioners' activities and that such activities [ MADSEN v. WOMEN'S HEALTH CTR., INC., ___ U.S. ___ (1994) , 2]
had also discouraged some potential patients from entering the clinic, and had
deleterious physical effects on others. The trial court thereupon issued a
broader injunction, which is challenged here.
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 anti-abortion 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 protestors 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 later date, the doctor
testified, increased their health risks by reason of the delay.
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 protestors
would confront minor children of clinic employees who were home alone.
[ MADSEN v. WOMEN'S HEALTH CTR., INC., ___ U.S. ___ (1994) , 3]
This and similar testimony led the state court to conclude that its original
injunction had proved insufficient "to protect the health, safety and rights of
women in Brevard and Seminole County, Florida, and surrounding counties seeking
access to [medical and counseling] services." Id., at 5. The state court
therefore amended its prior order, enjoining a broader array of activities. The
amended injunction prohibits petitioners1 from engaging in the following acts:
"(1) At all times on all days, from entering the premises and property of
the Aware Woman Center for Choice [the Melbourne clinic]. . . .
"(2) At all times on all days, from blocking, impeding, inhibiting, or in
any other manner obstructing or interfering with access to, ingress into and
egress from any building or parking lot of the Clinic.
"(3) At all times on all days, from congregating, picketing, patrolling,
demonstrating or entering that portion of public right-of-way or private
property within 36. feet of the property line of the Clinic. . . . An
exception to the 36 foot buffer zone is the area immediately adjacent to the
Clinic on the east . . . . The [petitioners] . . . must remain at least 5.
feet from the Clinic's east line. Another exception to the 36 foot buffer
zone relates to the record title owners of the property to the north and
west of the Clinic. The prohibition against entry into the 36 foot buffer
zones does not apply to such persons and their invitees. The other
prohibitions contained [ MADSEN v. WOMEN'S HEALTH CTR., INC., ___ U.S. ___ (1994) ,
herein do apply, if such owners and their invitees are acting in concert with
the [petitioners]. . . .
"(4) During the hours of 7:30 a.m. through noon, on Mondays through
Saturdays, during surgical procedures and recovery periods, from singing,
chanting, whistling, shouting, yelling, use of bull-horns, auto horns, sound
amplification equipment or other sounds or images observable to or within
earshot of the patients inside the Clinic.
"(5) At all times on all days, in an area within 300. feet of the Clinic,
from physically approaching any person seeking the services of the Clinic
unless such person indicates a desire to communicate by approaching or by
inquiring of the [petitioners] . . . .
"(6) At all times on all days, from approaching, congregating, picketing,
patrolling, demonstrating or using bullhorns or other sound amplification
equipment within 300. feet of the residence of any of the [respondents']
employees, staff, owners or agents, or blocking or attempting to block,
barricade, or in any other manner, temporarily or otherwise, obstruct the
entrances, exits or driveways of the residences of any of the [respondents']
employees, staff, owners or agents. The [petitioners] and those acting in
concert with them are prohibited from inhibiting or impeding or attempting
to impede, temporarily or otherwise, the free ingress or egress of persons
to any street that provides the sole access to the street on which those
residences are located.
"(7) At all times on all days, from physically abusing, grabbing,
intimidating, harassing, touching, pushing, shoving, crowding or assaulting
persons entering or leaving, working at or using services at the
[respondents'] Clinic or trying to gain access to, or leave, any of the
homes of owners, staff or patients of the Clinic. [ MADSEN v. WOMEN'S HEALTH CTR., INC., ___ U.S. ___ (1994) ,
"(8) At all times on all days, from harassing, intimidating or
physically abusing, assaulting or threatening any present or former doctor,
health care professional, or other staff member, employee or volunteer who
assists in providing services at the [respondents'] Clinic.
"(9) At all times on all days, from encouraging, inciting, or securing
other persons to commit any of the prohibited acts listed herein." Operation
Rescue v. Women's Health Center, Inc., 626 So.2d 664, 679-680 (Fla. 1993).
The Florida Supreme Court upheld the constitutionality of the trial court's
amended injunction. 626 So.2d 664. That court recognized that the forum at
issue, which consists of public streets, sidewalks, and rights-of-way, is a
traditional public forum. Id., at 671, citing Frisby v. Schultz, 487 U.S. 474,
480 (1988). It then determined that the restrictions are content-neutral, and it
accordingly refused to apply the heightened scrutiny dictated by Perry Education
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." Id., at 45. 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, 711 (1993). It stated [
MADSEN v. WOMEN'S HEALTH CTR., INC., ___ U.S. ___ (1994) , 6] that the
asserted interests in public safety and order were already protected by other
applicable laws and that these interests could be protected adequately without
infringing upon the First Amendment rights of others. Ibid. The Court of Appeals
found the injunction to be content based and neither necessary to serve a
compelling state interest nor narrowly drawn to achieve that end. Ibid., citing
Carey v. Brown, 447 U.S. 455, 461-462 (1980). We granted certiorari, 510 U.S.
___ (1994), to resolve the conflict between the Florida Supreme Court and the
Court of Appeals over the constitutionality of the state court's injunction.
We begin by addressing petitioners' contention that the state
court's order, because it is an injunction that restricts only the speech of
anti-abortion protesters, is necessarily content- or viewpoint-based.
Accordingly, they argue, we should examine the entire injunction under the
strictest standard of scrutiny. See Perry Education 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
[ MADSEN v. WOMEN'S HEALTH CTR., INC., ___ U.S. ___ (1994) , 7] by
injunction. There is no suggestion in this record that Florida law would not
equally restrain similar conduct directed at a target having nothing to do with
abortion; none of the restrictions imposed by the court were directed at the
contents of petitioner's message.
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. ___, ___ (1992) (slip op., at 8) ("The government may not
regulate [speech] based on hostility - or favoritism - towards the underlying
message expressed"); see also Arkansas Writer's 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); Carey
v. Brown, 447 U.S. 455, 466-468 (1980). We thus look to the government's purpose
as the threshold consideration. Here, the state court imposed restrictions on
petitioners incidental to their anti-abortion message because they repeatedly
violated the court's original order. That petitioners all share the same
viewpoint regarding abortion does not in itself demonstrate that some invidious
content- or viewpoint-based purpose motivated the issuance of the order. It
suggests only that those in the group whose conduct violated the court's order
happen to share the same opinion regarding abortions being performed at the
clinic. In short, the fact that the injunction covered people with a particular
viewpoint does not itself render the injunction content or viewpoint based. See
Boos v. Barry, 485 U.S. 312 (1988).2 [ MADSEN v. WOMEN'S HEALTH CTR., INC., ___ U.S. ___
(1994) , 8]
Accordingly, the injunction issued in this case does not demand the level of
heightened scrutiny set forth in Perry Education Assn., 460 U.S., at 45. And we
proceed to discuss the standard which does govern.
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
Education 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. [ MADSEN v. WOMEN'S HEALTH CTR., INC., ___ U.S. ___ (1994) , 9]
See United States v. W. T. Grant Co., 345 U.S. 629, 632-633 (1953). Injunctions
also carry greater risks of censorship and discriminatory application than do
general ordinances. "[T]here is no more effective practical guaranty against
arbitrary and unreasonable government than to require that the principles of law
which officials would impose upon a minority must be imposed generally." Railway
Express Agency, Inc. v. New York, 336 U.S. 106, 112-113 (1949). Injunctions, of
course, have some advantages over generally applicable statutes in that they can
be tailored by a trial judge to afford more precise relief than a statute where
a violation of the law has already occurred. United States v. Paradise, 480 U.S.
We believe that these differences require a somewhat more stringent
application of general First Amendment principles in this context.3 In past cases evaluating injunctions restricting speech, see,
e.g., NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982), Milk Wagon Drivers
v. Meadowmoor Dairies, Inc., 312 U.S. 287 (1941), we have relied upon such
general principles while also seeking to ensure that the injunction was no
broader than necessary to achieve its desired goals. See Carroll v. President
and Comm'rs of Princess Anne, 393 U.S. 175 (1968); Claiborne Hardware, supra, at
912, n. 47. Our close attention to the fit between the objectives of an
injunction and the restrictions it imposes on speech is consistent with the
general rule, quite apart from First Amendment considerations, "that injunctive
relief should be no more burdensome to the defendants than necessary to provide
complete relief to [ MADSEN v. WOMEN'S HEALTH
CTR., INC., ___ U.S. ___ (1994) , 10] the plaintiffs." Califano v.
Yamasaki, 442 U.S. 682, 702 (1979). See also Dayton Bd. of Ed. v. Brinkman, 433
U.S. 406, 418-420 (1977). Accordingly, when evaluating a content-neutral
injunction, we think that our standard time, place, and manner analysis is not
sufficiently rigorous. We must ask instead whether the challenged provisions of
the injunction burden no more speech than necessary to serve a significant
government interest. See, e.g., Claiborne Hardware, supra, at 916 (when
sanctionable "conduct occurs in the context of constitutionally protected
activity . . . `precision of regulation' is demanded") (quoting NAACP v. Button,
371 U.S. 415, 438 (1963)); 458 U.S., at 916, n. 52 (citing Carroll, supra and
Keyishian v. Board of Regents, State Univ. of N.Y., 385 U.S. 589, 604 (1967));
Carroll, supra, at 183-184.
Both JUSTICE STEVENS and JUSTICE SCALIA disagree with the standard we
announce, for policy reasons. See post, at 2 (STEVENS, J.); post, at 8-14
(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 2. JUSTICE
SCALIA, by contrast, believes that content-neutral injunctions are "at least as
deserving of strict scrutiny as a statutory, content-based restriction." Post,
at 9. 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 9-11. 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.
[ MADSEN v. WOMEN'S HEALTH CTR., INC., ___ U.S. ___ (1994) , 11]
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 7 (quoting Perry Education Assn., 460 U.S., 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 15 (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.
JUSTICE SCALIA also relies on Claiborne Hardware and Carroll for support of
his contention that our precedent requires the application of strict scrutiny in
this context. In Claiborne Hardware, we stated simply that "precision of
regulation" is demanded. See 458 U.S., at 916 (internal quotation marks
omitted). JUSTICE SCALIA reads this case to require "surgical precision" of
regulation, post, at 16, but that was not the adjective chosen by the author of
the Court's opinion, JUSTICE STEVENS. We think a standard requiring that an
injunction "burden no more speech than necessary" exemplifies "precision of
regulation."4 [ MADSEN v. WOMEN'S HEALTH CTR.,
INC., ___ U.S. ___ (1994) , 12]
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 17. 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 pinpointed 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 Roe v. Wade, 410 U.S. 113 (1973);
In re T. W., 551 So.2d 1186, 1193 (Fla. 1989). The State also has a strong
interest in ensuring the public safety and order, in promoting the free flow of
traffic on public streets and sidewalks, and in protecting the property rights
of all its citizens. 626 So.2d, at 672. In addition, the court believed that the
State's strong interest in residential privacy, acknowledged in Frisby v.
Schultz, 487 U.S. 474 (1988), applied by analogy to medical privacy. 626 So.2d,
at 672. The court observed that, while targeted picketing of the home threatens
the psychological wellbeing of the "captive" resident, targeted picketing of a
hospital or clinic threatens not only the psychological, but the physical,
wellbeing of the patient held "captive" by medical circumstance. Id., at 673. We
agree with the Supreme Court of Florida that the combination of these
governmental interests is quite sufficient to justify an appropriately tailored
injunction to protect them. We now examine each contested
[ MADSEN v. WOMEN'S HEALTH CTR., INC., ___ U.S. ___ (1994) , 13]
provision of the injunction to see if it burdens more speech than necessary to
accomplish its goal.5
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 to the other
side of Dixie Way and away from the driveway of the clinic, where the state
court found that they repeatedly had interfered with the free access of patients
and staff. App to Pet. for Cert. B-2, B-3. See Cameron v. Johnson, 390 U.S. 611
(1968) (upholding statute which prohibited picketing that obstructed or
unreasonably interfered with ingress or egress to or from public buildings,
including courthouses, and with traffic on the adjacent street sidewalks). The
buffer zone also applies to private property to the north and west of the clinic
property. We examine each portion of the buffer zone separately.
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 [
MADSEN v. WOMEN'S HEALTH CTR., INC., ___ U.S. ___ (1994) , 14]
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 the 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 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. Milk Wagon Drivers, 312 U.S., at 294.
Moreover, one of petitioners' witnesses during the evidentiary hearing before
the state court conceded that the buffer zone was narrow enough to place
petitioners at a distance of no greater than 10 to 12 feet from cars approaching
and leaving the clinic. App. 486. Protesters standing across the narrow street
from the clinic can still be seen and heard from the clinic parking lots. Id.,
at 260, 305. We also bear in mind the fact that the state court originally
issued a much narrower injunction, providing no buffer zone, and that this order
did not succeed in protecting [ MADSEN v. WOMEN'S
HEALTH CTR., INC., ___ U.S. ___ (1994) , 15] access to the clinic. The
failure of the first order to accomplish its purpose may be taken into
consideration in evaluating the constitutionality of the broader order. National
Society of Professional Engineers v. United States, 435 U.S. 679, 697-698
(1978). On balance, we hold that the 36-foot buffer zone around the clinic
entrances and driveway burdens no more speech than necessary to accomplish the
governmental interest at stake.
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 2. 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
by this appeal is a question of law, and for purposes of this appeal
[petitioners] are assuming, arguendo, that a factual basis exists to grant
injunctive relief." Appellants' Motion in Response to Appellees' Motion to
Require Full Transcript and Record of Proceedings in No. 93-0069 (Dist.Ct. App.
Fla.), p. 2. Petitioners argued against including the factual record as an
appendix in the Florida Supreme Court, and never certified a full record. We
must therefore judge this case on the assumption that the evidence and testimony
presented to the state court supported its findings that the presence
[ MADSEN v. WOMEN'S HEALTH CTR., INC., ___ U.S. ___ (1994) , 16] of
protesters standing, marching, and demonstrating near the clinic's entrance
interfered with ingress to and egress from the clinic despite the issuance of
the earlier injunction.
The inclusion of private property on the back and side of the
clinic in the 36-foot buffer zone raises different concerns. The accepted
purpose of the buffer zone is to protect access to the clinic and to facilitate
the orderly flow of traffic on Dixie Way. Patients and staff wishing to reach
the clinic do not have to cross the private property abutting the clinic
property on the north and west, and nothing in the record indicates that
petitioners' activities on the private property have obstructed access to the
clinic. Nor was evidence presented that protestors located on the private
property blocked vehicular traffic on Dixie Way. Absent evidence that
petitioners standing on the private property have obstructed access to the
clinic, blocked vehicular traffic, or otherwise unlawfully interfered with the
clinic's operation, this portion of the buffer zone fails to serve the
significant government interests relied on by the Florida Supreme Court. We hold
that, on the record before us, the 36-foot buffer zone, as applied to the
private property to the north and west of the clinic, burdens more speech than
necessary to protect access to the clinic.
In response to high noise levels outside the clinic, the state
court restrained the petitioners from "singing, chanting, whistling, shouting,
yelling, use of bullhorns, auto horns, sound amplification equipment or other
sounds or images observable to or within earshot of the patients inside the
[c]linic" during the hours of 7:30 a.m. through noon on Mondays through
Saturdays. We must, of course, take account of the place to which the
regulations apply in determining whether these restrictions [ MADSEN v. WOMEN'S HEALTH CTR., INC., ___ U.S. ___
(1994) , 17]
burden more speech than necessary. We have upheld similar noise restrictions in
the past, and as we noted in upholding a local noise ordinance around public
schools, "the nature of a place, `the pattern of its normal activities, dictate
the kinds of regulations . . . that are reasonable.'" Grayned v. City of
Rockford, 408 U.S. 104, 116 (1972). Noise control is particularly important
around hospitals and medical facilities during surgery and recovery periods, and
in evaluating another injunction involving a medical facility, we stated:
"Hospitals, after all, are not factories or mines or assembly plants. They
are hospitals, where human ailments are treated, where patients and
relatives alike often are under emotional strain and worry, where pleasing
and comforting patients are principal facets of the day's activity, and
where the patient and his family . . . need a restful, uncluttered,
relaxing, and helpful atmosphere." NLRB v. Baptist Hospital, Inc., 442 U.S.
773, 783-784, n. 12 (1979), quoting Beth Israel Hospital v. NLRB, 437 U.S.
483, 509 (1978) (BLACKMUN, J., concurring in judgment).
We hold that the limited noise restrictions imposed by the state court order
burden no more speech than necessary to ensure the health and wellbeing of the
patients at the clinic. The First Amendment does not demand that patients at a
medical facility undertake Herculean efforts to escape the cacophony of
political protests. "If overamplified loudspeakers assault the citizenry,
government may turn then down." Grayned, supra, at 116. That is what the state
court did here, and we hold that its action was proper.
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, [ MADSEN v.
WOMEN'S HEALTH CTR., INC., ___ U.S. ___ (1994) , 18] 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.
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 Society for Krishna Consciousness v. Lee, 505 U.S. ___, ___
(1992) (slip op., at 10-11) ("face-to-face solicitation presents risks of duress
that are an appropriate target of regulation. The skillful, and unprincipled,
solicitor can target the most vulnerable, including those accompanying children
or those suffering physical impairment and who cannot easily avoid the
solicitation"). [ MADSEN v. WOMEN'S HEALTH CTR.,
INC., ___ U.S. ___ (1994) , 19]
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
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, supra, at 116.
As for the picketing, our prior decision upholding a law banning targeted
residential picketing remarked on [ MADSEN v.
WOMEN'S HEALTH CTR., INC., ___ U.S. ___ (1994) , 20] the unique nature of
the home, as "`the last citadel of the tired, the weary, and the sick.'" Frisby,
487 U.S., at 484. We stated that "`[t]he State's interest in protecting the
wellbeing, tranquility, and privacy of the home is certainly of the highest
order in a free and civilized society.'" Ibid.
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.
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. [ MADSEN v. WOMEN'S HEALTH CTR.,
INC., ___ U.S. ___ (1994) , 21] NLRB, 324 U.S. 9, 14 (1945). There a
party subject to an injunction argued that the order was invalid because of a
provision that it applied to "successors and assigns" of the enjoined party.
Noting that the party pressing the claim was not a successor or assign, we
characterized the matter as "an abstract controversy over the use of these
words." Id., at 15.
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.
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.
[Footnote 1] In addition to petitioners,
the state court's order was directed at "Operation Rescue, Operation Rescue
America, Operation Goliath, their officers, agents, members, employees and
servants, and . . . Bruce Cadle, Pat Mahoney, Randall Terry, . . . and all
persons acting in concert or participation with them, or on their behalf." App.
[Footnote 2] We also decline to adopt the
prior restraint analysis urged by petitioners. Prior restraints do often take
the form of injunctions. See, e.g., New York Times Co. v. United States, 403
U.S. 713 (1971) [ MADSEN v. WOMEN'S HEALTH CTR.,
INC., ___ U.S. ___ (1994) , 8] (refusing to enjoin publications of the
"Pentagon Papers"); Vance v. Universal Amusement Co., 445 U.S. 308 (1980) (per
curiam) (holding that Texas public nuisance statute which authorized state
judges, on the basis of a showing that a theater had exhibited obscene films in
the past, to enjoin its future exhibition of films not yet found to be obscene
was unconstitutional as authorizing an invalid prior restraint). Not all
injunctions which may incidentally affect expression, however, are "prior
restraints" in the sense that that term was used in New York Times Co., supra or
Vance, supra. Here petitioners are not prevented from expressing their message
in any one of several different ways; they are simply prohibited from expressing
it within the 36-foot buffer zone. Moreover, the injunction was issued not
because of the content of petitioners' expression, as was the case in New York
Times Co. and Vance, but because of their prior unlawful conduct.
[Footnote 3] Under general equity
principles, an injunction issues only if there is a showing that the defendant
has violated, or imminently will violate, some provision of statutory or common
law, and that there is a "cognizable danger of recurrent violation." United
States v. W. T. Grant Co., 345 U.S. 629, 633 (1953).
[Footnote 4] In stating that "precision of
regulation" is required in Claiborne Hardware, moreover, we cited both to
Carroll v. President and Comm'rs of Princess Anne, 393 U.S. 175 (1968), a case
involving an injunction, and to Keyishian v. Board of Regents, State Univ. of
N.Y., 385 U.S. 589 (1967), a case involving a state statute and regulations. If
our precedent demanded the different treatment of statutes and injunctions, as
JUSTICE SCALIA claims, it is difficult to explain our reliance on Keyishian in
[Footnote 5] Petitioners do not challenge
the first two provisions of the state court's 1993 order. Brief for Petitioners
9. The provisions composed what had been the state court's 1992 permanent
injunction and they chiefly addressed blocking, impeding, and inhibiting access
to the clinic and its parking lot. Nor do petitioners challenge the restrictions
in paragraphs 7, 8, and 9, which prohibit them from harassing and physically
abusing clinic doctors, staff, and patients trying to gain access to the clinic
or their homes.
[Footnote 6] We need not decide whether
the "images observable" and "no-approach" provisions are content based.
[ MADSEN v. WOMEN'S HEALTH CTR., INC., ___ U.S. ___ (1994) , 1]
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 individual cases, and not to be decided on the basis of protesters'
viewpoints. See Tr. 40, 43, 93, 115, 119-120 (Apr. 12, 1993, Hearing). Second,
petitioners themselves acknowledge that the governmental interests in protection
of public safety and order, of the free flow of traffic, and of property rights
are reflected in Florida law. See Brief for Petitioners 17, and n. 7 (citing,
e.g., Fla. Stat. 870.041-870.047 (1991) (public peace); Fla.Stat. 316.2045
(1991) (obstruction of public streets, highways, and roads)). [ MADSEN v. WOMEN'S HEALTH CTR., INC., ___ U.S. ___ (1994) , 1]
JUSTICE STEVENS, concurring in part and dissenting in part.
The certiorari petition presented three questions, corresponding to
petitioners' three major challenges to the trial court's injunction.1 The Court correctly and unequivocally rejects petitioners'
argument that the injunction is a "content-based restriction on free speech,"
ante, at 6-8, as well as their challenge to the injunction on the basis that it
applies to persons acting "in concert" with them. Ante, at 20-21. I therefore
join Parts II and IV of the Court's opinion, which properly dispose of
[ MADSEN v. WOMEN'S HEALTH CTR., INC., ___ U.S. ___ (1994) , 2] the first
and third questions presented. I part company with the Court, however, on its
treatment of the second question presented, including its enunciation of the
applicable standard of review.
I agree with the Court that a different standard governs.
First Amendment challenges to generally applicable legislation than the standard
that measures such challenges to judicial remedies for proven wrongdoing. See
ante, at 8-9. 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.2
Given this distinction, a statute prohibiting demonstrations within 36 feet of
an abortion clinic would probably violate the First Amendment, but an injunction
directed at a limited group of persons who have engaged in unlawful conduct in a
similar zone might well be constitutional.
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 [ MADSEN v. WOMEN'S HEALTH CTR.,
INC., ___ U.S. ___ (1994) , 3] 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 against the precise conduct previously pursued"
may be required; the remedy must include appropriate restraints on "future
activities both to avoid a recurrence of the violation and to eliminate its
consequences." National Society of Professional Engineers v. United States, 435
U.S. 679, 697-698 (1978). Moreover, "[t]he judicial remedy for a proven
violation of law will often include commands that the law does not impose on the
community at large." Teachers v. Hudson, 475 U.S. 292, 309-310, n. 22 (1986). As
such, repeated violations may justify sanctions that might be invalid if applied
to a first offender or if enacted by the legislature. See United States v.
Paradise, 480 U.S. 149 (1987).
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.
The second question presented by the certiorari petition asks
whether the "consent requirement before speech is permitted" within a 300-foot
buffer zone around the clinic unconstitutionally infringes on free speech.3 Petitioners contend that these restrictions
[ MADSEN v. WOMEN'S HEALTH CTR., INC., ___ U.S. ___ (1994) , 4] create a
"no speech" zone in which they cannot speak unless the listener indicates a
positive interest in their speech. And, in Part III-D of its opinion, the Court
seems to suggest that, even in a more narrowly defined zone, such a consent
requirement is constitutionally impermissible. Ante, at 18-19. Petitioners'
argument and the Court's conclusion, however, are based on a misreading of _ (5)
of the injunction.4
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
[ MADSEN v. WOMEN'S HEALTH CTR., INC., ___ U.S. ___ (1994) , 5] "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
Petitioners' "counseling" of the clinic's patients is a form of expression
analogous to labor picketing. It is a mixture of conduct and communication. "In
the labor context, it is the conduct element rather than the particular idea
being expressed that often provides the most persuasive deterrent to third
persons about to enter a business establishment." NLRB v. Retail Store
Employees, 447 U.S. 607, 619 (1980) (STEVENS, J., concurring in part and
concurring in result). As with picketing, the principal reason why handbills
containing the same message are so much less effective than "counseling" is that
"the former depend entirely on the persuasive force of the idea." Ibid. Just as
it protects picketing, the First Amendment protects the speaker's right to offer
"sidewalk counseling" to all passers-by. That protection, however, does not
encompass attempts to abuse an unreceptive or captive audience at least under
the circumstances of this case. One may register a public protest by placing a
vulgar message on his jacket and, in so doing, expose unwilling viewers, Cohen
v. California, 403 U.S. 15, 21-22 (1971). Nevertheless, that does not mean that
he has an unqualified constitutional right to follow and harass an unwilling
listener, especially one on her way to receive medical services. Cf. Grayned v.
City of Rockford, 408 U.S. 104, 116 (1972).
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 [ MADSEN v. WOMEN'S HEALTH CTR., INC., ___ U.S. ___
(1994) , 6]
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 seek.5 Whatever the proper limits on a court's
power to restrict a speaker's ability to physically approach or follow an
unwilling listener, surely the First Amendment does not prevent a trial court
from imposing such a restriction given the unchallenged findings in this case.
The Florida Supreme Court correctly concluded:
"While the First Amendment confers on each citizen a powerful right to
express oneself, it gives the picketer no boon to jeopardize the health,
safety, and rights of others. No citizen has a right to insert a foot in the
hospital or clinic door and insist on being heard - while purposefully
blocking the door to those in genuine need of medical services. No picketer
can force speech into the captive ear of the unwilling and disabled."
Operation Rescue v. Womens Health Center, Inc., 626 So.2d 664, 675 (1993).
[ MADSEN v. WOMEN'S HEALTH CTR., INC., ___ U.S.
___ (1994) , 7]
I thus conclude that, under the circumstances of this case, the prohibition
against "physically approaching" in the 300-foot zone around the clinic
withstands petitioners' First Amendment challenge. I therefore dissent from Part
Because I have joined Parts I, II, III-E, and IV of the
Court's opinion and have dissented as to Part III-D after concluding that the
300-foot zone around the clinic is a reasonable time, place, and manner
restriction, no further discussion is necessary. See n. 1, supra. The Court,
however, proceeds to address challenges to the injunction that, although
arguably raised by petitioners' briefs, are not properly before the Court.
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
Izumi [ MADSEN v. WOMEN'S HEALTH CTR., INC., ___
U.S. ___ (1994) , 8] Seimitsu Kogyo Kabushiki Kaisha v. U.S. Phillips
Corp., 510 U.S. ___ (1993) (per curiam).7
The same is true of the noise restrictions and the "images observable"
provision of _ (4).8
That paragraph [ MADSEN v. WOMEN'S HEALTH CTR.,
INC., ___ U.S. ___ (1994) , 9] does not refer to the 36-foot or the
300-foot buffer zones, nor does it relate to the constitutionality of the "in
concert" provision. As such, although I am inclined to agree with the Court's
resolution respecting the noise and images restrictions, I believe the Court
should refrain from deciding their constitutionality because they are not
challenged by the questions on which certiorari was granted.
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.
[Footnote 1] "QUESTIONS PRESENTED FOR
"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.
[Footnote 2] Contrary to JUSTICE
SCALIA's assumption, see post, at 11, n. 1, the deprivation of liberty caused by
an injunction is not a form of punishment. Moreover, there is nothing unusual
about injunctive relief that includes some restriction on speech as a remedy for
prior misconduct. National Society of Professional Engineers v. United States,
435 U.S. 679, 697-698 (1978).
[Footnote 3] See n. 1, supra. This
question also encompasses the separate but related question whether the 300-foot
buffer zone in residential areas is [ MADSEN v.
WOMEN'S HEALTH CTR., INC., ___ U.S. ___ (1994) , 4] a reasonable time,
place, and manner restriction, but incorrectly refers to that zone as containing
a consent requirement. For the reasons stated in Part III-E of the Court's
opinion, which I join, I agree that the findings do not justify such a broad ban
on picketing. I also agree with the Court's rejection of petitioners' prior
restraint challenge to the 300-foot zones. See ante, at 7-8, n. 2.
[Footnote 4] The full text of _ (5)
reads as follows:
"At all times on all days, in an area within three-hundred (300) feet of
the Clinic, from physically approaching any person seeking the services of
the Clinic unless such person indicates a desire to communicate by
approaching or by inquiring of the [petitioners]. In the event of such
invitation, the [petitioners] may engage in communications consisting of
conversation of a nonthreatening 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.
[Footnote 5] Specifically, in his
findings of fact, the trial court noted that:
"This physician also testified that he witnessed the demonstrators running
along side of and in front of patients' vehicles, pushing pamphlets in car
windows to persons who had not indicated any interest in such literature. As
a result of patients having to run such a gauntlet, 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 proceedings." Id., at 54.
[Footnote 6] Indeed, it is unclear
whether these challenges were presented to the Florida Supreme Court. In their
appeal to that Court, petitioners did not even file the transcript of the
evidentiary hearings, contending that the "sole question presented by this
appeal is a question of law." See Appellants' Motion in Response to Appellees'
Motion to Require Full Transcript and Record of Proceedings in No. 93-00969
(Dist.Ct. App. Fla.), p. 2. Because petitioners argued that the entire decree
was invalid as a matter of law, without making any contention that particular
provisions should be modified, it appears there was no argument in that Court
about the size or the shape of the buffer zones. [ MADSEN v. WOMEN'S HEALTH CTR., INC., ___ U.S. ___
(1994) , 8]
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. Womens 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.
[Footnote 7] Even assuming that a time,
place, and manner challenge to the 36-foot zone is fairly included within the
first question presented, petitioners' brief challenges the entire 36-foot zone
as overbroad and seeks to have it invalidated in its entirety. Nowhere in their
briefs do they argue that the portion of the zone on the north and west sides of
the clinic should be struck down in the event the Court upholds the restrictions
on the front and east. As such, we do not have the benefit of respondents'
arguments why those portions, if considered severally from the other portions of
the zone, should be upheld. Moreover, the existence in the record of facts found
by the trial court respecting petitioners' conduct - independent of petitioners'
obstruction of ingress and egress - that support the entire 36-foot zone makes
the Court's micromanagement of the injunction particularly inappropriate. See,
e.g., App. 53 ("The clinic has fences on its west and north side, and persons
would occasionally place a ladder on the outside of the fence and position
themselves at an elevation above the fence and attempt to communicate by
shouting at persons (staff and patients) entering the clinic"); id., at 54
("[T]he doctor was followed as he left the clinic by a person associated with
the [petitioners] who communicated his anger to the doctor by pretending to
shoot him from the adjoining vehicle"); id., at 54-55 (noting that "a physician
similarly employed was killed by an anti-abortionist at a clinic in North
[Footnote 8] Paragraph (4) provides in
"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.
[ MADSEN v. WOMEN'S HEALTH CTR., INC., ___ U.S. ___ (1994) , 1]
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 portions of the injunction while disallowing
others. That appearance is deceptive. The entire injunction in this case departs
so far from the established course of our jurisprudence that, in any other
context, it would have been regarded as a candidate for summary reversal.
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,
"This Court's abortion decisions have already worked a major distortion in
the Court's constitutional jurisprudence. Today's decision goes further, and
makes it painfully clear that no legal rule or doctrine is safe from ad hoc
nullification by this Court when an occasion for its application arises in a
case involving state regulation of abortion. The permissible scope of
abortion regulation is not the only constitutional issue on which this Court
is divided, but - except when it comes to abortion - the Court has generally
refused to let such disagreements, [ MADSEN
v. WOMEN'S HEALTH CTR., INC., ___ U.S. ___ (1994) , 2] however
longstanding or deeply felt, prevent it from evenhandedly applying
uncontroversial legal doctrines to cases that come before it." Thornburgh v.
American College of Obstetricians and Gynecologists, 476 U.S. 747, 814
(1986) (citations omitted).
Today the ad hoc nullification machine claims its latest, greatest, and most
surprising victim: the 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.
The record of this case contains a videotape, with running
caption of time and date, displaying what one must presume to be the worst of
the activity justifying the injunction issued by Judge McGregor and partially
approved today by this Court. The tape was shot by employees of, or volunteers
at, the Aware Woman Clinic on three Saturdays in February and March, 1993; the
camera location, for the first and third segments, appears to have been an upper
floor of the clinic. The tape was edited down (from approximately 6 to 8 hours
of footage to 1/2 hour) by Ruth Arick, a management consultant employed by the
clinic and by the Feminist Majority Foundation. App. 527, 529, 533.
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.
[ MADSEN v. WOMEN'S HEALTH CTR., INC., ___ U.S. ___ (1994) , 3]
On Saturday, March 6, 1993, a group of anti-abortion 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, non-artery 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
On the clinic side of the street, two groups confront each other across the
line marking the south border of the clinic property - although they are so
close together it is often impossible to tell them apart. On the clinic property
(and with their backs to the camera) are a line of clinic and abortion rights
supporters, stretching the length of the property. Opposite them, and on the
public right-of-way between the clinic property and Dixie Way itself, is a group
of abortion opponents, some standing in place, others walking a picket line in
an elongated oval pattern running the length of the property's south border.
Melbourne police officers are visible at various times walking about in front of
the clinic, and individuals can be seen crossing Dixie Way at various times.
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 protestors on both sides of the line, [ MADSEN v. WOMEN'S HEALTH CTR., INC., ___ U.S. ___ (1994) , 4]
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
a path for the vehicle to enter. As the car waits, two persons appearing to bear
leaflets approach, respectively, the driver and front passenger doors. They
appear to elicit no response from the car's occupants, and the car passes safely
onto clinic property. Later, a blue minivan enters the driveway and is also
subject to the same delay. Still later a jeep-type vehicle leaves the clinic
property and slows down slightly where the driveway crosses the public
right-of-way. At no time is there any apparent effort to prevent entry or exit,
or even to delay it, except for the time needed for the picketers to get out of
the way. There is no sitting down, packing en masse, linking of hands or any
other effort to blockade the clinic property. [
MADSEN v. WOMEN'S HEALTH CTR., INC., ___ U.S. ___ (1994) , 5]
The persons standing but not walking the picket line include a woman with a
child in a stroller, and a man shouting the Book of Daniel's account of Meshach,
Shadrach, and Abednego. A woman on a stepladder holds up a sign in the direction
of the clinic; a clinic supporter counters with a larger sign held up between
the other and the clinic. A brief shot reveals an older man in a baseball cap -
head, shoulders, and chest visible above the clinic fence - who appears to be
reading silently from a small book. A man on clinic property holds a boom box
out in the direction of the abortion opponents. As the crowd grows it appears at
various points to have spilled over into the north-side, west-bound lane of
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
The scene shifts to early afternoon of the same day. Most of the press and
most of the abortion opponents appear to have departed. The camera focuses on a
woman who faces the clinic and, hands cupped over her mouth, shouts the
following: "Be not deceived; God is not mocked. . . . Ed Windle, God's judgment
is on you, and if you don't repent, He will strike you dead. The baby's blood
flowed over your hands, Ed Windle. . . . You will burn in hell, Ed Windle, if
you don't repent. There were arms and legs pulled off today. . . . An innocent
little child, a little boy, a little girl, is being destroyed right now."
Cheering is audible from the [ MADSEN v. WOMEN'S
HEALTH CTR., INC., ___ U.S. ___ (1994) , 6] clinic grounds. A second
person shouts "You are responsible for the deaths of children. . . . You are a
murderer. Shame on you." From the clinic grounds someone shouts "Why don't you
go join the wacko in Waco?" The first woman says "You are applauding the death
of your children. We will be everywhere. . . . There will be no peace and no
rest for the wicked. . . . I pray that you will give them dreams and nightmares,
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
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 specific persons on clinic
property: "Do you ever wonder what your baby would have looked like? Do you
wonder how old it would have been? Because I did the same thing. . . ." Then a
police officer is visible writing someone a citation. The videotape ends with a
shot of an automobile moving eastbound on Dixie Way. As it slows to a stop at
the intersection of U.S. 1, two leafletters approach the car and then pull back
as it passes on. [ MADSEN v. WOMEN'S HEALTH CTR.,
INC., ___ U.S. ___ (1994) , 7]
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 hand-held 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.
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 content-based restrictions: the restriction must be
"necessary to serve a compelling state interest and . . . narrowly drawn to
achieve that end." Perry Education Assn. v. Perry Local Educators' Assn., 460
U.S. 37, 45 (1983). Respondents, on the other hand, contended for what has come
to be known as "intermediate scrutiny" (midway between the "strict scrutiny"
demanded for content-based regulation of speech, and the "rational basis"
standard that is applied - under the Equal Protection Clause - to government [ MADSEN v. WOMEN'S HEALTH CTR., INC., ___ U.S. ___ (1994) , 8]
regulation of non-speech activities). See, e.g., Turner Broadcasting System,
Inc. v. FCC, 512 U.S. ___, ___ (1994) (slip op., at 17). That standard,
applicable to so-called "time, place and manner regulations" of speech, provides
that the regulations are permissible so long as they "are content-neutral, are
narrowly tailored to serve a significant government interest, and leave open
ample alternative channels of communication." Perry, supra, at 45. The Court
adopts neither of these, but creates, brand-new for this abortion-related case,
an additional standard that is (supposedly) "somewhat more stringent," ante, at
9, than intermediate scrutiny, yet not as "rigorous," ante, at 10, as strict
scrutiny. The Court does not give this new standard a name, but perhaps we could
call it intermediate-intermediate scrutiny. The difference between it and
intermediate scrutiny (which the Court acknowledges is inappropriate for
injunctive restrictions on speech) is frankly too subtle for me to describe, so
I must simply recite it: whereas intermediate scrutiny requires that the
restriction be "narrowly tailored to serve a significant government interest,"
the new standard requires that the restriction "burden no more speech than
necessary to serve a significant government interest." Ibid.
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 intermediate scrutiny should apply. It
says no to that, too, because of the distinctive characteristics of injunctions
that it discusses, ante, at 8-9, and hence decides to supplement intermediate
scrutiny with intermediate-intermediate [ MADSEN
v. WOMEN'S HEALTH CTR., INC., ___ U.S. ___ (1994) , 9] scrutiny. But this
neatly staged progression overlooks an obvious option. The real question in this
case is not whether intermediate scrutiny, which the Court assumes to be some
kind of default standard, should be supplemented because of the distinctive
characteristics of injunctions; but rather whether those distinctive
characteristics are not, for reasons of both policy and precedent, fully as good
a reason as "content-basis" for demanding strict scrutiny. That possibility is
simply not considered. Instead, the Court begins Part III with the following
optical illusion: "If this were a content-neutral, generally applicable statute,
instead of an injunctive order, its constitutionality would be assessed under
the [intermediate scrutiny] standard," ante, at 8 - and then proceeds to discuss
whether petitioners can sustain the burden of departing from that presumed
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. But that same danger exists with injunctions. Although a
speech-restricting injunction may not attack content as content (in the present
[ MADSEN v. WOMEN'S HEALTH CTR., INC., ___ U.S. ___ (1994) , 10] case, as
I shall discuss, even that is not true), it lends itself just as readily to the
targeted suppression of particular ideas. When a judge, on the motion of an
employer, enjoins picketing at the site of a labor dispute, he enjoins (and he
knows he is enjoining) the expression of pro-union views. Such targeting of one
or the other side of an ideological dispute cannot readily be achieved in
speech-restricting general legislation except by making content the basis of the
restriction; it is achieved in speech-restricting injunctions almost invariably.
The proceedings before us here illustrate well enough what I mean. The
injunction was sought against a single-issue advocacy group by persons and
organizations with a business or social interest in suppressing that group's
point of view.
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 contempt proceedings. This is good
[ MADSEN v. WOMEN'S HEALTH CTR., INC., ___ U.S. ___ (1994) , 11] reason
to require the strictest standard for issuance of such orders.1
The Court seeks to minimize the similarity between speech-restricting
injunctions and content-based statutory proscriptions by observing that the fact
that "petitioners all share the same viewpoint regarding abortion does not, in
itself, demonstrate that some invidious content- or viewpoint-based purpose
motivated the issuance of the order," but rather "suggests only that those in
the group whose conduct violated the court's order happen to share the same
opinion regarding abortions," ante, at 7. 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. "Our cases have consistently held that
`[i]llicit legislative intent is not the sine qua non of a violation of the
First Amendment.'" Simon & Schuster v. New York Crime Victims Bd., 502 U.S. ___,
___ (1991) (slip op., at 10) (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 [ MADSEN v.
WOMEN'S HEALTH CTR., INC., ___ U.S. ___ (1994) , 12] always used for
invidious, thought-control purposes, but that it lends itself to use for those
purposes. And, because of the unavoidable "targeting" discussed above, precisely
the same is true of the speech-restricting injunction.
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 (anti-abortion 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. ___, ___ (1992) (slip op.,
at 8); NLRB v. Donnelly Garment Co., 330 U.S. 219, 227 (1947), is to the
contrary: all those who wish to express the same views as the named defendants
are deemed to be "acting in concert or participation." Following issuance of the
amended injunction, a number of persons were arrested for walking within the
36-foot speech-free zone. At an April 12, 1993, hearing before the trial judge
who issued the injunction, the following exchanges occurred:
Mr. Lacy: "I was wondering how we can - why we were arrested and confined as
being in concert with these people that we don't know, when other people
weren't, that were in that same buffer zone, and it was kind of selective as to
who was picked and who was arrested and who was obtained for the same buffer
zone in the same public injunction." [ MADSEN v.
WOMEN'S HEALTH CTR., INC., ___ U.S. ___ (1994) , 13]
The Court: "Mr. Lacy, I understand that those on the other side of the issue
[abortion rights supporters] were also in the area. If you are referring to
them, the Injunction did not pertain to those on the other side of the issue,
because the word in concert with means in concert with those who had taken a
certain position in respect to the clinic, adverse to the clinic. If you are
saying that is the selective basis that the pro-choice were not arrested when
pro-life was arrested, that's the basis of the selection. . . ." Tr. 104-105
(Apr. 12, 1993, Appearance Hearings Held Before Judge McGregor, Eighteenth
Judicial Circuit, Seminole County, Florida (emphasis added)).
John Doe No. 16: "This was the first time that I was in this area myself, and
I had not attempted to block an entrance to a clinic in that town or anywhere
else in the State of Florida in the last year or ever."
"I also understand that the reason why I was arrested was because I acted
in concert with those who were demonstrating pro-life. I guess the question
that I'm asking is were the beliefs in ideologies of the people that were
present, were those taken into consideration when we were arrested?"
. . . . .
". . . . When you issued the Injunction did you determine that it would
only apply to - that it would apply only to people that were demonstrating
that were pro-life?"
The Court: "In effect, yes." Id., at 113-116 (emphasis added).
And finally: [ MADSEN v. WOMEN'S HEALTH CTR.,
INC., ___ U.S. ___ (1994) , 14]
John Doe No. 31: ". . . How did the police determine that I was acting in
concert with some organization that was named on this injunction? I again am a
person who haven't seen this injunction. So how did the police determine that I
was acting in concert?"
The Court: "They observed your activities and determined in their minds
whether or not what you were doing was in concert with the - I gather the
pro-life position of the other, of the named Defendants." Id., at 148 (emphasis
These colloquies leave no doubt that the revised injunction here is tailored
to restrain persons distinguished not by proscribable conduct, but by
I have discussed, in the prior subsection, the policy reasons
for giving speech-restricting injunctions, even content-neutral ones, strict
scrutiny. There are reasons of precedent as well, which are essentially ignored
by the Court.
To begin with, an injunction against speech is the very prototype of the
greatest threat to First Amendment values, the prior restraint. As THE CHIEF
JUSTICE wrote for the Court last Term: "The term prior restraint is
[ MADSEN v. WOMEN'S HEALTH CTR., INC., ___ U.S. ___ (1994) , 15] 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. ___, ___ (1993) (slip op., at 5) (quoting M. Nimmer, Nimmer on
Freedom of Speech 4.03, p. 4-14 (1984) (emphasis added in Alexander)).3 See also id., at ___ (slip op., at 14) ("the [prior restraint]
doctrine . . . encompasses injunctive systems which threaten or bar future
speech based on some past infraction") (KENNEDY, J., dissenting). We have said
that a "prior restraint on expression comes to this Court with a `heavy
presumption' against its constitutional validity," Organization for a Better
Austin v. Keefe, 402 U.S. 415, 419 (1971) (quoting Carroll v. President and
Commr's of Princess Anne, 393 U.S. 175, 181 (1968)), and have repeatedly struck
down speech-restricting injunctions. See, e.g., Youngdahl v. Rainfair, Inc., 355
U.S. 131 (1957); Keefe, supra; New York Times Co. v. United States, 403 U.S. 713
(1971); Nebraska Press Assn. v. Stuart, 427 U.S. 539 (1976); National Socialist
Party of America v. Skokie, 432 U.S. 43 (1977); Vance v. Universal Amusement
Co., 445 U.S. 308 (1980) (statute authorizing injunctions); CBS, Inc. v. Davis,
510 U.S. ___ (1994) (BLACKMUN, J., in chambers) (setting aside state-court
preliminary injunction against a scheduled broadcast).
At oral argument, neither respondents nor the Solicitor General, appearing as
amicus for respondents, could identify a single speech-injunction case applying
mere [ MADSEN v. WOMEN'S HEALTH CTR., INC., ___ U.S. ___
(1994) , 16]
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 bombings,
destruction of trucks, beatings of drivers, arson, and armed violence. We noted
that the "picketing . . . was set in a background of violence," id., at 294,
which was "neither episodic nor isolated," id., at 295, and we allowed the ban
on picketing "to prevent future coercion," id., at 296, as part of a state
court's power "to deal with coercion due to extensive violence." Id., at 299. We
expressly distinguished the case from those in which there was no
"[e]ntanglement with violence." Id., at 297. In Youngdahl v. Rainfair, Inc., 355
U.S. 131 (1957), we refused to allow a blanket ban on picketing when, even
though there had been scattered violence, it could not be shown that "a pattern
of violence was established which would inevitably reappear in the event
picketing were later resumed." Id., at 139.
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 Commissioners
[ MADSEN v. WOMEN'S HEALTH CTR., INC., ___ U.S. ___ (1994) , 17] of
Princess Anne, 393 U.S., 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 pinpointed objective permitted by
constitutional mandate and the essential needs of the public order." Id., 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
"burden no more than necessary" is not nearly as demanding as the requirement
that it be couched in the "narrowest terms that will accomplish [a] pinpointed
objective." That the Court should cite this case as its principal authority is
an admission that what it announces rests upon no precedent at all.
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 [ MADSEN v. WOMEN'S HEALTH CTR.,
INC., ___ U.S. ___ (1994) , 18] (what I will assume for the time being
existed here) significant illegal behavior.4
Writing for the Court, JUSTICE STEVENS summarized the events giving rise to
the Claiborne litigation (id., at 898-906): A local chapter of the NAACP,
rebuffed by public officials of Port Gibson and Claiborne County in its request
for redress of various forms of racial discrimination, began a boycott of local
businesses. During the boycott, a young black man was shot and killed in an
encounter with Port Gibson police and "sporadic acts of violence ensued." Id.,
at 902. The following day, boycott leader Charles Evers told a group that
boycott violators would be disciplined by their own people, and warned that the
Sheriff "could not sleep with boycott violators at night." Ibid. He stated at a
second gathering that "If we catch any of you going in any of them racist
stores, we're gonna break your damn neck." Ibid. In connection with the boycott,
there were marches and picketing (often by small children). "Store watchers"
were posted outside boycotted stores to identify those who traded, and their
names were read aloud at meetings of the Claiborne County NAACP and published in
a mimeographed paper. The chancellor found that those persons were branded
traitors, called demeaning names, and socially ostracized. Some had shots fired
at their houses, a brick was thrown through a windshield and a garden damaged.
Other evidence showed that persons refusing to observe the boycott were beaten,
robbed and publicly humiliated (by spanking).
The merchants brought suit against two groups involved in organizing the
boycott and numerous individuals. The trial court found tort violations, [ MADSEN v. WOMEN'S HEALTH CTR., INC., ___ U.S. ___ (1994) , 19]
violations of a state statute prohibiting secondary boycotts, and state
antitrust violations. It issued a broad permanent injunction against the
boycotters, enjoining them from stationing "store watchers" at the plaintiffs'
business premises; from persuading any person to withhold patronage; from using
demeaning and obscene language to or about any person because of his patronage;
from picketing or patrolling the premises of any of the respondents; and from
using violence against any person or inflicting damage upon any real or personal
property. Id., at 893. The Mississippi Supreme Court upheld the assessment of
liability and the injunction, but solely on the tort theory, saying that, "[i]f
any of these factors - force, violence, or threats - is present, then the
boycott is illegal regardless of whether it is primary, secondary, economical,
political, social or other." Id., at 895.
The legal analysis of this Court proceeded along the following lines:
"[T]he boycott . . . took many forms. [It] was launched at a meeting of the
local branch of the NAACP. [It] was attended by several hundred persons. Its
acknowledged purpose was to secure compliance . . . with a lengthy list of
demands for racial equality and racial justice. The boycott was supported by
speeches and nonviolent picketing. Participants repeatedly encouraged others
to join its cause.
"Each of these elements of the boycott is a form of speech or conduct that
is ordinarily entitled to protection under the First and Fourteenth
Amendments. . . . "[T]he practice of persons sharing common views banded
together to achieve a common end is deeply embedded in the American
political process." We recognize that, `by collective effort individuals can
make their views known, when, individually, their voices would be faint or
lost.'" [ MADSEN v. WOMEN'S HEALTH CTR.,
INC., ___ U.S. ___ (1994) , 20] Id., at 907-908 (quoting Citizens
Against Rent Control/Coalition for Fair Housing v. Berkeley, 454 U.S. 290,
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 is not itself protected," 458
U.S., at 908, and held that the nonviolent elements of the protestors'
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 intimidation, threats, social ostracism, vilification,
and traduction were devices used by the defendants to effectuate the boycott,"
458 U.S., at 921 (internal quotation marks omitted), we carefully examined the
record for factual support of the findings of liability. While affirming that a
"judgment tailored to the consequences of [individuals'] unlawful conduct may be
sustained," we said that "mere association with [a] group - absent a specific
intent to further an unlawful aim embraced by that group - is an insufficient
predicate for liability." Id., at 925-926. We said in conclusion that any
characterization of a political protest movement as a violent conspiracy "must
be supported by findings that adequately disclose the evidentiary basis for
concluding that specific parties [ MADSEN v.
WOMEN'S HEALTH CTR., INC., ___ U.S. ___ (1994) , 21] agreed to use
unlawful means, that carefully identify the impact of such unlawful conduct, and
that recognize the importance of avoiding the imposition of punishment for
constitutionally protected activity."
Id., at 933-934. Because this careful procedure had not been followed by the
Mississippi courts, we set aside the entire judgment, including the injunction.
Id., at 924, n. 67, 934.
I turn now to the Court's performance in the present case. I
am content to evaluate it under the lax (intermediate-intermediate scrutiny)
standard that the Court has adopted, because, even by that distorted light, it
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 16. 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 the free flow of traffic on
public streets and sidewalks, and in protecting the property rights of all its
citizens," the "interest in . . . medical privacy," and the interest in "the
psychological [and] physical wellbeing of the patient held `captive' by medical
circumstance." Ante, at 12. The Court says, ibid. that "these governmental
interests [are] quite sufficient to justify an appropriately tailored injunction
to protect them." Unless, however, the Court has destroyed even more First
Amendment law than I fear, this last statement must be read in conjunction with
the Court's earlier acknowledgment that, "[u]nder [ MADSEN v. WOMEN'S HEALTH CTR., INC., ___ U.S. ___
(1994) , 22]
general equity principles, an injunction issues only if there is a showing that
the defendant has violated, or imminently will violate, some provision of
statutory or common law, and that there is a "cognizable danger of recurrent
violation." Ante, at 9, n. 3, quoting United States v. W. T. Grant Co., 345 U.S.
629, 633 (1953). It is too much to believe, even of today's opinion, that it
approves issuance of an injunction against speech "to promote the free flow of
traffic" even when there has been found no violation, or threatened violation,
of a law relating to that interest.
Assuming then that the "significant interests" the Court mentioned must in
fact be significant enough to be protected by state law (a concept that includes
a prior court order), which law has been, or is about to be, violated, the
question arises: what state law is involved here? The only one even mentioned is
the original September 30, 1992, injunction,5
which had been issued (quite rightly, in my judgment) in response to threats by
the originally named parties (including petitioners here) that they would
"`[p]hysically close down abortion mills,'" "bloc[k] access to clinics," "ignore
the law of the State," and "shut down a clinic." Permanent Injunction Findings
of Fact __ 2, 5, 7, 8, App. 6-7. That original injunction prohibited petitioners
"1) trespassing on, sitting in, blocking, impeding or obstructing ingress
into or egress from any facility [ MADSEN v.
WOMEN'S HEALTH CTR., INC., ___ U.S. ___ (1994) , 23] at which
abortions are performed in Brevard and Seminole County Florida;
"2) physically abusing persons entering, leaving, working, or using any
services of any facility at which abortions are performed in Brevard and
Seminole County, Florida; and
"3) attempting or directing others to take any of the actions described in
Paragraphs 1 and 2 above." Id., at 9.
According to the Court, the state court imposed the later injunction's
"restrictions on petitioner[s'] . . . anti-abortion message because they
repeatedly violated the court's original order." Ante, at 7. 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 the 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., at 915-916, n. 50; Edwards v. South
Carolina, 372 U.S. 229, 235 (1963); Fiske v. Kansas, 274 U.S. 380, 385-386
(1927); see also Bose Corp. v. Consumers Union of United States, Inc., 466 U.S.
485, 517 (1984) (REHNQUIST, J., dissenting). Let us proceed, then, to the
inquiry the Court neglected. In the Amended Permanent Injunction the trial court
found that [ MADSEN v. WOMEN'S HEALTH CTR., INC., ___ U.S. ___ (1994) , 24]
"despite the injunction of September 30, 1992, there has been
interference with ingress to the petitioners' facility. . . . [in] the form
of persons on the paved portions of Dixie Way, some standing without any
obvious relationship to others; some moving about, again without any obvious
relationship to others; some holding signs, some not; some approaching,
apparently trying to communicate with the occupants of motor vehicles moving
on the paved surface; some marching in a circular picket line that traversed
the entrance driveways to the two parking lots of the petitioners and the
short section of the sidewalk joining the two parking lots and then entering
the paved portion of the north lane of Dixie Way and returning in the
opposite direction. . . . Other persons would be standing, kneeling and
sitting on the unpaved shoulders of the public right-of-way. As vehicular
traffic approached the area it would, in response to the congestion, slow
down. If the destination of such traffic was either of the two parking lots
of the petitioners, such traffic slowed even more, sometimes having to
momentarily hesitate or stop until persons in the driveway moved out of the
way." Amended Permanent Injunction _ A.
"As traffic slowed on Dixie Way and began to turn into the clinic's
driveway, the vehicle would be approached by persons designated by the
respondents as sidewalk counselors attempting to get the attention of
the vehicles' occupants to give them anti-abortion literature and to
urge them not to use the clinic's services. Such so-called sidewalk
counselors were assisted in accomplishing their approach to the vehicle
by the hesitation or momentary stopping caused by the time needed for
the picket line to open up before the vehicle could enter the parking
lot." Id. _ E. [ MADSEN v. WOMEN'S HEALTH CTR., INC., ___ U.S. ___ (1994)
"The . . . staff physician testified that, on one occasion while
he was attempting to enter the parking lot of the clinic, he had to stop
his vehicle and remained stopped while respondent, Cadle, and others
took their time to get out of the way. . . . This physician also
testified that he witnessed the demonstrators running along side in
front of patients' vehicles, pushing pamphlets in such windows to
persons who had not indicated any interest in such literature. . . ."
Id., _ I (emphasis added).
On the basis of these findings, Judge McGregor concluded that "the actions of
the respondents and those in concert with them in the street and driveway
approaches to the clinic of the plaintiffs continue to impede and obstruct both
staff and patients from entering the clinic. The paved surfaces of the public
right-of-way must be kept open for the free flow of traffic." Conclusions _ A.6
These are the only findings and conclusions of the court that could
conceivably be considered to relate to a violation of the original injunction.
They all concern behavior by the protestors causing traffic on the street in
front of the abortion clinic to slow down, and causing vehicles crossing the
pedestrian right-of-way, between the street and the clinic's parking lot, to
slow down or even, occasionally, to stop momentarily while pedestrians
[ MADSEN v. WOMEN'S HEALTH CTR., INC., ___ U.S. ___ (1994) , 26] got out
of the way. As far as appears from the court's findings, all of these results
were produced, not by anyone intentionally seeking to block oncoming traffic,
but as the incidental effect of persons engaged in the activities of walking a
picket line and leafletting on public property in front of the clinic. There is
no factual finding that petitioners engaged in any intentional or purposeful
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
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
the petitioners' threatened actions of trespass and blockade, i.e., the physical
shutting down [ MADSEN v. WOMEN'S HEALTH CTR.,
INC., ___ U.S. ___ (1994) , 27] of the local clinics. Secondly, if that
narrow meaning of intentional blockade, impediment or obstruction was not
intended, and if it covered everything up to and including the incidental and
"momentary" stopping of entering vehicles by persons leafletting and picketing,
the original injunction would have failed the axiomatic requirement that its
terms be drawn with precision. See, e.g., Milk Wagon Drivers, 312 U.S., at 296;
1 D. Dobbs, Law of Remedies 2.8(7), p. 219 (2d ed. 1993); 7 J. Moore, J. Lucas,
& K. Sinclair, Moore's Federal Practice _ 65.11 (2d ed. 1994); cf.
Fed.R.Civ.Proc. 65(d) ("[e]very order granting an injunction . . . shall be
specific in terms [and] shall describe in reasonable detail . . . the act or
acts sought to be restrained"). And finally, if the original injunction did not
have that narrow meaning it would assuredly have been unconstitutional, since it
would have prevented speech-related activities that were, insofar as this record
shows, neither criminally or civilly unlawful nor inextricably intertwined with
unlawful conduct. See Milk Wagon Drivers, supra, at 292, 297; Carroll, 393 U.S.,
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 14. 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 byproduct 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, protestors "took their time to
get out of the way." If that is enough to support this one-man [ MADSEN v. WOMEN'S HEALTH CTR., INC., ___ U.S. ___
(1994) , 28]
proscription of free speech, the First Amendment is in grave peril.
I almost forgot to address the facts showing prior violation of law
(including judicial order) with respect to the other portion of the injunction
the Court upholds: the "no noise within earshot of patients" provision. That is
perhaps because, amazingly, neither the Florida courts nor this Court makes the
slightest attempt to link that provision to prior violations of law. The
relevant portion of the Court's opinion, Part II-B, simply reasons that hospital
patients should not have to be bothered with noise, from political protests or
anything else (which is certainly true), and that therefore the noise
restrictions could be imposed by injunction (which is certainly false). Since
such a law is reasonable, in other words, it can be enacted by a single man to
bind only a single class of social protesters. The pro-abortion demonstrators
who were often making (if respondents' videotape is accurate) more noise than
the petitioners, can continue to shout their chants at their opponents exiled
across the street to their hearts' content. The Court says that "[w]e have
upheld similar noise restrictions in the past," ante, at 16, citing Grayned v.
City of Rockford, 408 U.S. 104 (1972). But Grayned involved an ordinance, and
not an injunction; it applied to everyone. The only other authority the Court
invokes is NLRB v. Baptist Hospital, Inc., 442 U.S. 773 (1979), which it
describes as "evaluating another injunction involving a medical facility," ante,
at 17, but which evaluated no such thing. Baptist Hospital, like Grayned,
involved a restriction of general application, adopted by the hospital itself -
and the case, in any event, dealt not with whether the government had violated
the First Amendment by restricting noise, but with whether the hospital had
violated the National Labor Relations Act by restricting solicitation (including
solicitation of union membership). [ MADSEN v.
WOMEN'S HEALTH CTR., INC., ___ U.S. ___ (1994) , 29]
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 record in this case shows (and, alas, the Court's opinion today demands)
neither indication of the existence of any such law nor a finding that it had
been violated. The fact that such a law would be reasonable is enough, according
to the Court, to justify a single judge in imposing it upon these protesters
alone. The First Amendment (and even the common law of injunctions, see the
Court's own footnote 3) reels in disbelief.
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 16-17, 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 15, upon my earlier description of the videotape. That was
set forth just for context, to show the reader what suppression of normal and
peaceful social protest is afoot here. Nor is it relevant to my point that
"petitioners themselves studiously refrained from challenging the factual basis
for the injunction," ibid. I accept the facts as the Florida court found them; I
deny that those facts support its conclusion (set forth as such in a separate
portion of its opinion, as quoted above) that the original injunction had been
violated. The Court concludes its response as follows:
"We must therefore judge this case on the assumption that the evidence and
testimony presented to the state court supported its findings that the [ MADSEN v. WOMEN'S HEALTH CTR., INC., ___ U.S. ___ (1994) ,
presence of protesters standing, marching, and demonstrating near the clinic's
entrance interfered with ingress to and egress from the clinic despite the
issuance of the earlier injunction. Ante, at 15-16.
But a finding that they "interfered with ingress and egress . . . despite the
. . . earlier injunction" is not enough. The earlier injunction did not, and
could not, prohibit all "interference" - for example, the minor interference
incidentally produced by lawful picketing and leafletting. What the Court needs,
and cannot come up with, is a finding that the petitioners interfered in a
manner prohibited by the earlier injunction. A conclusion that they "block[ed],
imped[ed] or obstruct[ed] ingress . . . or egress" (the terminology of the
original injunction) within the only fair, and indeed the only permissible,
meaning of that phrase cannot be supported by the facts found.
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.
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." [ MADSEN v. WOMEN'S HEALTH CTR., INC., ___ U.S. ___
(1994) , 31]
(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 pedestrians off the paved portion of Dixie Way,
and (2) enabling cars to cross the public sidewalk at the clinic's driveways
without having to slow down or come to even a "momentary" stop, there are surely
a number of ways to protect those interests short of banishing the entire
protest demonstration from the 36-foot zone. For starters, the Court could have
(for the first time) ordered the demonstrators to stay out of the street (the
original injunction did not remotely require that). It could have limited the
number of demonstrators permitted on the clinic side of Dixie Way. And it could
have forbidden the pickets to walk on the drive-ways. The Court's only response
to these options is that "[t]he state court was convinced that [they would not
work] in view of the failure of the first injunction to protect access." Ante,
at 14. But must we accept that conclusion as valid - when the original
injunction contained no command (or at the very least no clear command) that had
been disobeyed, and contained nothing even related to staying out of the street?
If the "burden no more speech than necessary" requirement can be avoided by
merely opining that (for some reason) no lesser restriction than this one will
be obeyed, it is not much of a requirement at all.
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
[ MADSEN v. WOMEN'S HEALTH CTR., INC., ___ U.S.
___ (1994) , 32] 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." Ibid. (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
Another disturbing part of the Court's analysis is its reliance upon the fact
that "witnesses . . . conceded that the buffer zone was narrow enough to place
petitioners at a distance of no greater than 10 to 12 feet from cars approaching
and leaving the clinic," and that "[p]rotesters standing across the narrow
street from the clinic can still be seen and heard from the clinic parking
lots." Ibid. This consideration of whether the injunction leaves open effective,
alternative channels of communication is classic, "time place and manner
regulation," "intermediate scrutiny" review, see Ward v. Rock Against Racism,
491 U.S. 781, 791 (1989). And in that context it is reasonable. But since, in
this case, a general regulation establishing time, place, and manner
restrictions for all citizens is not at issue, these petitioners have a right
not merely to demonstrate and protest at some reasonably effective place, but to
demonstrate and protest where they want to and where all other Floridians can,
namely, right there on the public sidewalk in front of the clinic. "[O]ne is not
to have the exercise of his liberty of expression in appropriate places abridged
on the plea that it may be exercised in some other place." Schneider v. State
(Town of Irvington), 308 U.S. 147, 163 (1939). "Whether petitioner might have
used some other [forum] . . . is of no consequence. . . . Even if [another]
forum had been available, that fact alone would not justify an otherwise
impermissible prior [ MADSEN v. WOMEN'S HEALTH
CTR., INC., ___ U.S. ___ (1994) , 33] restraint." Southeastern
Promotions, Ltd. v. Conrad, 420 U.S. 546, 556 (1975).
* * *
In his dissent in Korematsu v. United States, 323 U.S. 214 (1944), the case
in which this Court permitted the wartime military internment of
Japanese-Americans, Justice Jackson wrote the following:
"A military order, however unconstitutional, is not apt to last longer than
the military emergency. . . . But once a judicial opinion . . . rationalizes
the Constitution to show that the Constitution sanctions such an order, the
Court for all time has validated the principle of racial discrimination in
criminal procedure and of transplanting American citizens. The principle
then lies about like a loaded weapon ready for the hand of any authority
that can bring forward a plausible claim of an urgent need." Id., at 246.
What was true of a misguided military order is true of a misguided trial
court injunction. And the Court has left a powerful loaded weapon lying about
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
[ MADSEN v. WOMEN'S HEALTH CTR., INC., ___ U.S.
___ (1994) , 34] supported by any findings of fact - these latest
by-products of our abortion jurisprudence ought to give all friends of liberty
For these reasons, I dissent from that portion of the judgment upholding
parts of the injunction.
[Footnote 1] JUSTICE STEVENS believes
that speech-restricting injunctions "should be judged by a more lenient standard
than legislation" because "injunctions apply solely to [those] who, by engaging
in illegal conduct, have been judicially deprived of some liberty." Ante, at 2.
Punishing unlawful action by judicial abridgment of First Amendment rights is an
interesting concept; perhaps Eighth Amendment rights could be next. I know of no
authority for the proposition that restriction of speech, rather than fines or
imprisonment, should be the sanction for misconduct. The supposed prior
violation of a judicial order was the only thing that rendered petitioners
subject to a personally tailored restriction on speech in the first place - not
in order to punish them, but to protect the public order. To say that their
prior violation not only subjects them to being singled out in this fashion, but
also loosens the standards for protecting the public order through speech
restrictions, is double counting.
[Footnote 2] JUSTICE SOUTER seeks to
contradict this, saying that "the trial judge made reasonably clear that the
issue of who was acting `in concert' with the named defendants was . . . not to
be decided on the basis of protesters' viewpoints. See Tr. 40, 43, 93, 115,
119-120 (Apr. 12, 1993, Hearing)." The only way to respond to this scattershot
assertion is to refer the reader to the cited pages, plus one more (page 116)
which clarifies what might have been ambiguous on page 115. These pages are
reproduced verbatim in the Appendix to this opinion. As the reader will observe,
they do not remotely support JUSTICE SOUTER's assertion that the injunction does
not distinguish on the basis of viewpoint.
[Footnote 3] This statement should be
compared with today's opinion, which says, ante, at 8, n. 2, that injunctions
are not prior restraints (or at least not the nasty kind) if they only restrain
speech in a certain area, or if the basis for their issuance is not content, but
prior unlawful conduct. This distinction has no antecedent in our cases.
[Footnote 4] Claiborne Hardware involved
both monetary damages and an injunction, but that is of no consequence for
purposes of the point I am making here: that we have been careful to insulate
all elements of speech not infected with illegality.
[Footnote 5] JUSTICE SOUTER points out
that "petitioners themselves acknowledge that the governmental interests in
protection of public safety and order, of the free flow of traffic, and of
property rights are reflected in Florida law. See Brief for Petitioners 17, and
n. 7 (citing [various Florida statutes])." This is true, but quite irrelevant.
As the preceding sentence of text shows, we are concerned here not with state
laws in general, but with state laws that these respondents had been found to
have violated. There is no finding of violation of any of these cited Florida
[Footnote 6] In my subsequent
discussion, I shall give the Florida trial court the benefit of the doubt, and
assume that the phrase "continue to impede and obstruct" expresses the
conclusion that petitioners had violated those provisions of the original
injunction which prohibited "impeding or obstructing." It is not entirely clear,
however, that the Florida court was, in fact, asserting a violation of the
original injunction. As far as the record shows, it assessed no penalty for any
such violation; and "impeding and obstructing" can embrace many different
things, not all of which (as I shall discuss presently) come within the meaning
of the original injunction.
APPENDIX TO OPINION OF JUSTICE SCALIA
Portions of April 12, 1993, Appearance Hearings Held Before Judge McGregor,
Eighteenth Judicial Circuit, Seminole County, Florida:
[ MADSEN v. WOMEN'S HEALTH CTR., INC., ___ U.S. ___ (1994) , 40]
JANE DOE: No. 6: "Yes, sir. When I heard this injunction, everything in
there, as an American - "
THE COURT: "I'm Sorry. I'm not the judge trying it. Those are matters that
perhaps you'll want to present at trial."
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
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. . . . "
[ MADSEN v. WOMEN'S HEALTH CTR., INC., ___ U.S. ___ (1994) , 43]
: [ MADSEN v. WOMEN'S HEALTH CTR., INC., ___ U.S. ___ (1994) , 35]
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."
JANE DOE NO. 6: "But I have the right to demonstrate, the right to assembly,
the right to religion and its practice and I was praying on the sidewalk. I
don't understand - "
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
[ MADSEN v. WOMEN'S HEALTH CTR., INC., ___ U.S. ___ (1994) , 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." [ MADSEN v. WOMEN'S HEALTH CTR., INC., ___ U.S. ___ (1994) , 36]
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."
[ MADSEN v. WOMEN'S HEALTH CTR., INC., ___ U.S. ___ (1994) , 115]
[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 for reasons, you know, he believed that you were in
concert with those that had been enjoined and the Injunctive Order is expanded
to include those so that you were subject then to the Injunction."
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?" [ MADSEN v. WOMEN'S HEALTH CTR., INC., ___ U.S. ___ (1994) , 37]
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."
THE COURT: "Thank you. Did we give him a court date?"
"John Doe Number Eighteen."
JOHN DOE NO. 18: "Were there any numbers . . ."
MR. MACLEAN: "Yes, please, Your Honor."
THE COURT: "Okay. Court will then direct pretrial 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?" [ MADSEN v. WOMEN'S HEALTH
CTR., INC., ___ U.S. ___ (1994) , 38]
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."
MR. MACLEAN: "I only wish to thank the Melbourne Police Department and the
Sharpes Correctional facility and the people here in Seminole for their gracious
and professional treatment of us."
THE COURT: "Thank you on 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?" Page I
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