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No. 95-1065


on writ of certiorari to the united states court of appeals for the second circuit

[February 19, 1997]

Justice Scalia, with whom Justice Kennedy and Justice Thomas join, concurring in part and dissenting in part.

Instead of evaluating the injunction before us on the basis of the reasons for which it was issued, the Court today postulates other reasons that might have justified it and pronounces those never determined reasons adequate. This is contrary to the settled practice governing appellate review of injunctions, and indeed of all actions committed by law to the initial factfinding, predictive and policy judgment of an entity other than the appellate court, see, e.g., SEC v. Chenery Corp., 318 U.S. 80 (1943). The Court's opinion also claims for the judiciary a prerogative I have never heard of: the power to render decrees that are in its view justified by concerns for public safety, though not justified by the need to remedy the grievance that is the subject of the lawsuit. I dissent.

The most important holding in today's opinion is tucked away in the seeming detail of the "cease and desist" discussion in the penultimate paragraph of analysis: There is no right to be free of unwelcome speech on the public streets while seeking entrance to or exit from abortion clinics. Ante, at 24-25. "As we said in Madsen [v. Women's Health Center, Inc., 512 U.S. 753 (1994)], quoting from Boos v. Barry, 485 U.S. 322, `[a]s 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.' " Ibid. (internal quotation marks omitted). But the District Court in this case (like the Court of Appeals) believed that there was such a right to be free of unwanted speech, and the validity of the District Court's action here under review cannot be assessed without taking that belief into account. That erroneous view of what constituted remediable harm shaped the District Court's injunction, and it is impossible to reverse on this central point yet maintain that the District Court framed its injunction to burden "no more speech than necessary," Madsen v. Women's Health Center, Inc., 512 U.S. 753, 765 (1994), to protect legitimate governmental interests.

The District Court justified the "fixed buffer" provision of the injunction on two separate grounds, each apparently tied to a different feature of the provision. First, the court said, the fixed buffer zone was "necessary to ensure that people . . . seeking access to the clinics will not be impeded." Pro Choice Network of Western New York v. Project Rescue Western New York, 799 F. Supp. 1417, 1434 (WDNY 1992). And second, "the `clear zones' will prevent defendants from crowding patients and invading their personal space." Ibid. Thus, the fixed buffer had a dual purpose: In order to prevent physical obstruction of access, it excluded crowds of protesters from a 15 foot zone around clinic entrances, while permitting two nonobstructive "sidewalk counselors" to enter that zone. (Allowing a small number of protesters is a common practice in picketing injunctions, e.g., MineWorkers v. Bagwell, 512 U.S. 821, 823 (1994), and of course a required practice when no more than that is necessary, see Madsen, supra, at 765.) And the second purpose of the fixed buffer provision, the purpose that justified the requirement that even the two nonobstruc tive sidewalk counselors "cease and desist" if the "targeted person" did not wish to hear them, was to assure "personal space" on the public streets--or, as the District Court described it in the next paragraph of its order, "to protect the right of people approaching and entering the facilities to be left alone." 799 F. Supp., at 1435.

The terms of the injunction's cease and desist provision make no attempt to conceal the fact that the supposed right to be left alone, and not the right of unobstructed access to clinics, was the basis for the provision:

"[N]o one is required to accept or listen to sidewalk counseling, and . . . if anyone or any group of persons who is sought to be counseled wants not to have counseling, wants to leave, or walk away, they shall have the absolute right to do that, and in such event all persons seeking to counsel that person or group of persons shall cease and desist from such counseling, and shall thereafter be governed by the provisions of [the injunction] pertaining to not demonstrating within fifteen feet of persons seeking access to or leaving a facility." Id., at 1440 (preliminary injunction, paragraph 1(c)) (emphasis added).

It is difficult to imagine a provision more dependent upon the right to be free of unwanted speech that today's opinion rejects as applied to public streets. The District Court's own explanation of the provision makes that dependency even more starkly clear:

"Th[e] `cease and desist' provision is necessary in order to protect the right of people approaching and entering the facilities to be left alone.

". . . [Defendants] argue that, because their `sidewalk counseling' occurs on a public sidewalk, they cannot be forced to cease communicating their message just because their audience may be unwilling to hear it. The Court, however, rejects this argument.

. . . . .

". . . The evidence adduced at the hearings clearly shows that, even when women seeking access to the clinics signal their desire to be left alone, defendants continue to follow right alongside them and persist in communicating their message. [W]omen seeking access to plaintiffs' facilities cannot, as a practical matter, escape defendants' message. . . .

". . . [T]he . . . `cease and desist' provision advances the values of the marketplace of ideas by permitting listeners to exercise their autonomy to make their own determinations among competing ideas. Once a women seeking access to one of the clinics has made a determination not to listen to defendants' message, defendants must respect her choice." Id., at 1435-1436 (emphasis added).

The District Court thought the supposed "right to be left alone" central enough to its order to devote two full pages in the federal reports to the subject, ibid., and both majority opinions of the Court of Appeals discussed it in extenso, 67 F. 3d 377, 391-393 (CA2 1995); id., at 395-397. The magic of today's opinion for this Court is that it renders this essential element of the injunction that was issued irrelevant by the simple device of approving instead an injunction that the District Court (in the exercise of its discretion) chose not to issue--viz., an absolute ban on all protesters within the 15 foot zone. Ante, at 22, n. 11.

The Court asserts (in carefully selected words) that "the District Court was entitled to conclude that the only way to ensure access was to move back the demonstrations." Ante, at 21 (emphasis added). And again: "[T]he District Court was entitled to conclude on this record that the only feasible way to shield individuals within the fixed buffer zone from unprotected conduct . . . would have been to keep the entire area clear of defendant protesters." Ante, at 22, n. 11 (emphasis added). And (lest the guarded terminology be thought accidental), yet a third time: "Based on [the defendants'] conduct, the District Court was entitled to conclude . . . that the only way to ensure access was to move all protesters away from the doorways." Ante, at 22 (first emphasis added; second in original). But prior to the question of whether it was entitled to conclude that is the question whether it did conclude that. We are not in the business (or never used to be) of making up conclusions that the trial court could permissibly have reached on questions involving assessments of fact, credibility and future conduct--and then affirming on the basis of those posited conclusions, whether the trial court in fact arrived at them or not. [n.1] That is so even in ordinary cases, but it is doubly true when we review a trial court's order imposing a prior restraint upon speech. As we said in NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982), when a court decides to impose a speech restrictive injunction, the conclusions it reaches must be "supported by findings that adequately disclose the[ir] evidentiary basis . . . , that carefully identify the impact of [the defendants'] unlawful conduct, and that recognize the importance of avoiding the imposition of punishment for constitutionally protected activity." Id., at 933-934.

The Court candidly concedes that the nonexistent "right to be left alone" underlay the District Court's imposition of the cease and desist provision. Ante, at 24. It appears not to grasp, however, the decisive import of this concession--which is that the District Court did not think it necessary to exclude all demonstrators from the buffer zone as a means of preventing physical obstruction of clinic entrances or other violations of law (other than the faux violation of intruding upon the speech targets' "private space"). Thus, the Court's statements about what "the District Court was entitled to conclude" are not only speculative (which is fatal enough) but positively contrary to the record of what the District Court did conclude--which was that permitting a few demonstrators within the buffer zone was perfectly acceptable, except when it would infringe the clinic employees' and patrons' right to be free of unwanted speech on public streets. In fact, the District Court expressly stated that if in the future it found that a complete ban on speech within the buffer zone were necessary, it would impose one. 799 F. Supp., at 1436, n. 13.

I do not grasp the relevance of the Court's assertions that admitting the two counselors into the buffer zone was "an effort to enhance petitioners' speech rights," ante, at 25, "an effort to bend over backwards to `accommodate' defendants' speech rights," ante, at 22, n. 11, and that "the `cease and desist' limitation must be assessed in that light," ante, at 25. If our First Amendment jurisprudence has stood for anything, it is that courts have an obligation "to enhance speech rights," and a duty "to bend over backwards to `accommodate' speech rights." That principle was reaffirmed in Madsen, which requires that a judicial injunction against speech burden "no more speech than necessary to serve a significant government interest." Madsen, 512 U. S., at 765 (emphasis added). Thus, if the situation confronting the District Court permitted "accommodation" of petitioners' speech rights, it demanded it. The Court's effort to recharacterize this responsibility of special care imposed by the First Amendment as some sort of judicial gratuity is perhaps the most alarming concept in an opinion that contains much to be alarmed about.

I disagree with the Court's facile rejection of the argument that no cause of action was properly found to support the present injunction. Petitioners contend that the only cause of action which could conceivably support the injunction is a trespass claim; but that cannot support the restrictions at issue, which are designed, as the District Court stated, to prevent obstruction of access and the invasion of "personal space," 799 F. Supp., at 1434, rather than to prevent trespass.

The Court responds by pointing out that the case contains a nontrespass claim under N.Y. Civ. Rights Law §40-c(2) (McKinney 1992), which provides that "[n]o person shall, because of . . . sex . . . be subjected to any discrimination in his civil rights, or to any harassment . . . in the exercise thereof, by any other person." That is true enough, but it seems to me clear that that imaginative state law claim cannot support a preliminary injunction because it does not have a probability of success on the merits. See 11A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure §2948.3 (2d ed. 1995). It is, to put it mildly, far from apparent that seeking to prevent both men and women from aborting both male and female human fetuses constitutes discrimination on the basis of sex. Moreover, the reasoning which led the District Court to conclude otherwise has been specifically rejected by this Court. The District Court wrote: "Having demonstrated a likelihood of success on the merits of their federal §1985(3) claim, plaintiffs have also, by definition, demonstrated a likelihood of success on their claim under N.Y. Civ. Rights Law §40-c." 799 F. Supp., at 1431. Subsequently, however, this Court's opinion in Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 269-273 (1993), held that claims of the sort at issue here do not constitute discrimination on the basis of sex under 42 U.S.C. § 1985(3). Since there is also, as far as I have been able to determine, no decision by any New York court saying that they constitute sex discrimination under §40-c, there is no basis on which the District Court could have concluded (or this Court could affirm) that the chance of success on this claim was anything other than a long shot. [n.2]

The Court proceeds from there to make a much more significant point: An injunction on speech may be upheld even if not justified on the basis of the interests asserted by the plaintiff, as long as it serves "public safety." "[I]n assessing a First Amendment challenge, a court . . . inquires into the governmental interests that are protected by the injunction, which may include an interest in public safety and order. . . . Here, the District Court cited public safety as one of the interests justifying the injunction. . . . [T]he fact that `threat to public safety' is not listed anywhere in respondents' complaint as a claim does not preclude a court from relying on the significant governmental interest in public safety in assessing petitioners' First Amendment argument." Ante, at 16-17.

This is a wonderful expansion of judicial power. Rather than courts' being limited to according relief justified by the complaints brought before them, the Court today announces that a complaint gives them, in addition, ancillary power to decree what may be necessary to protect--not the plaintiff, but the public interest! Every private suit makes the district judge a sort of one man Committee of Public Safety. There is no precedent for this novel and dangerous proposition. In Madsen, the Court says, "it was permissible to move protesters off the sidewalk and to the other side of the street in part because other options would block the free flow of traffic on the streets and sidewalks." Ante, at 16; see also Madsen, 512 U. S., at 769. But acknowledging, as we did in Madsen, that some remedial options are eliminated because they conflict with considerations of public safety is entirely different from asserting, as the Court does today, that public safety can provide part of the justification for the remedy. [n.3] The only other case cited by the Court is Milk Wagon Drivers v. Meadow moor Dairies, Inc., 312 U.S. 287, 294-295 (1941). Ante, at 16. But Meadowmoor upheld an injunction against a union's intimidation of storekeepers, not because "the public interest" demanded it, but because the storekeepers were customers of the plaintiff dairy, which it was the purpose and effect of the intimidation to harm. 312 U. S., at 294-295.

We have in our state and federal systems a specific entity charged with responsibility for initiating action to guard the public safety. It is called the Executive Branch. When the public safety is threatened, that branch is empowered, by invoking judicial action and by other means, to provide protection. But the Judicial Branch has hitherto been thought powerless to act except as invited by someone other than itself. That is one of the reasons it was thought to be "the least dangerous to the political rights of the [C]onstitution"-- because it "can take no active resolution whatever" and "may truly be said to have neither force nor will, but merely judgment." The Federalist No. 78, p. 396 (M. Beloff ed. 1987). It is contrary to the most fundamental principles of separation of powers for the District Court to decree measures that would eliminate obstruction of traffic, in a lawsuit which has established nothing more than trespass. [n.4]

* * *

Today's opinion makes a destructive inroad upon First Amendment law in holding that the validity of an injunction against speech is to be determined by an appellate court on the basis of what the issuing court might reasonably have found as to necessity, rather than on the basis of what it in fact found. And it makes a destructive inroad upon the separation of powers in holding that an injunction may contain measures justified by the public interest apart from remediation of the legal wrong that is the subject of the complaint. Insofar as the first point is concerned, the Court might properly have upheld the fixed buffer zone without the cease and desist provision, since the District Court evidently did conclude (with proper factual support, in my view) that limiting the protesters to two was necessary to prevent repetition of the obstruction of access that had occurred in the past. But even that more limited injunction would be invalidated by the second point: the fact that no cause of action related to obstruction of access was properly found to support the injunction. Accordingly, I dissent from the Court's judgment upholding the fixed buffer zone, and would reverse the decision of the Court of Appeals in its entirety.


1 The Court's lengthy citation of cases standing for the proposition that an appellate court can affirm on a mandatory legal ground different from that relied upon by the trial court, ante, at 25, n. 12, has no relevance to the question whether an appellate court can substitute its own assessments of past facts, of future probabilities, and hence of injunctive necessities, for the assessments made (and required to be made) by the trial court.

2 The Court contends that petitioners only raise the issue whether the §40-c cause of action is "valid," and not the issue whether the District Court erred in concluding that the claim was "likely to succeed." Ante, at 16. The concept of an invalid claim that is likely to succeed is an interesting one, but there is no doubt that petitioners did not entertain it: They plainly challenged "[t]he district court's ruling that respondents were likely to prevail on their state antidiscrimination claim." Brief for Petitioners 32; see also id., at 15.

3 Madsen also refers to "public safety" as one of the government interests on which the state court relied in justifying the challenged injunction, 512 U. S., at 768, but nothing in our decision approved or relied upon that feature of the state court's approach.

4 The Court approves reliance on "public safety" not "as an element which supported respondents' claim for an injunction," but only "as a basis for rejecting petitioners' challenge to the injunction on First Amendment grounds." Ante, at 17, n. 7. Such a distinction makes no sense. In the context before us here, whether there is "a basis for rejecting petitioners' challenge to the injunction on First Amendment grounds" depends entirely on whether the "element[s] which suppor[t] the respondents' claim for an injunction" are strong enough. The issues are one and the same.

Any injunction must be justified by the elements that support it. The involvement of First Amendment rights does not alter that rule, but merely increases the degree of justification required. Of course, illogical or not, by simply saying so, the Court can limit its novel "public safety" rationale to injunctions involving the freedom of speech. But I would hardly consider that a small and unimportant area for the newly created judicial Committees of Public Safety to control.