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No. 95-1065


PAUL SCHENCK and DWIGHT SAUNDERS, PETITIONERS v. PRO CHOICE NETWORK OF WESTERN NEW YORK et al.

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

[February 19, 1997]

Justice Breyer, concurring in part and dissenting in part.

Words take on meaning from context. Considered in context, the preliminary injunction's language does not necessarily create the kind of "floating bubble" that leads the Court to find the injunction unconstitutionally broad. See Part II-C, supra. And until quite recently, no one thought that it did. The "floating bubble" controversy apparently arose during oral argument before the en banc Court of Appeals. The Court of Appeals then gave the District Judge, who has ongoing responsibility for administering the injunction, an initial opportunity to consider the petitioners' claim and, if necessary, to clarify or limit the relevant language. 67 F. 3d 377, 389, n. 4 (CA2 1995) (en banc). The Court of Appeals' response, in my view, is both legally proper and sensible. I therefore would affirm its judgment.

The preliminary injunction's key language prohibits demonstrating "within fifteen feet of any person or vehicle seeking access to or leaving such facilities." This language first appeared in the temporary restraining order (TRO), where it defined the precise scope of the order's prohibition against blocking "ingress into or egress from" facilities. That portion of the TRO enjoined the defendants from

"trespassing on, sitting in, blocking, impeding or obstructing access to, ingress into or egress from any facility at which abortions are performed in the Western District of New York, including demonstrating within 15 feet of any person seeking access to or leaving such facilities . . . ." App. 23 (emphasis added).

Before the District Court issued the TRO, Reverend Schenck asked whether this language would create a floating bubble. The District Court replied:

"THE COURT: I don't think that was the intent. . . . [W]e're talking about . . . free access. . . . It's not a moving 15 feet.

"REV. SCHENCK: So in other words, you're speaking of the facility itself?

"THE COURT: I think that's what we were talking about . . . . We're talking fifteen feet from [e.g., a doorway] . . . to go right out to where ever you're going. . . . [M]y gosh, you would never be able . . . to deal with that if it was a moving length.

"It's fifteen feet from the entrance . . . . [Y]ou have to apply common sense . . . and [an interpretation of the language creating a moving zone] would not in any way at all be a fair interpretation of what we're talking about.

"REV. SCHENCK: Well, I'm glad you pointed that out . . . . [T]here is, I think, a very high degree of ambiguity . . . and no one . . . said what we're talking about here is 15 feet from an entranceway.

"THE COURT: I think everyone is clear on that now." App. to Reply Brief for Petitioner A-2 to A-3.

The identical key language (with the added words "or vehicle") then found its way into the preliminary injunction, issued 16 months later, where its presence apparently remained subject to the "no float" understanding that the District Court had called "clear." The preliminary injunction simply separated the key language from the words that had immediately preceded it in the TRO (the "trespassing on, sitting in, blocking . . . ingress into or egress from" language) and it added a phrase that more specifically described the fixed zone as

"fifteen feet from either side or edge of, or in front of, doorways or doorway entrances, parking lot entrances, driveways and driveway entrances . . . ."

There is little reason to believe that the District Court, in relettering the paragraphs or inserting this new phrase, thereby intended to give the key language a significantly different meaning or a new purpose other than its original purpose of narrowing through specification the broader "blocking . . . ingress" language, now appearing a little earlier on in the injunction. The District Court's reference, in an accompanying opinion, to "dual `clear zones' of fifteen feet around entrances and fifteen feet around people and vehicles seeking access," see ante, at 20, n. 9, by itself (and it is by itself) shows little, if anything, more than a "bubble" that surrounds an individual within or just beyond a fixed zone. In all other respects, given the presence of a new additional narrowing phrase--the phrase that speaks of, e.g., "fifteen feet from either side"--the key language at issue here would simply have become redundant.

The District Court's and the parties' subsequent words and deeds suggest that the key language has had no significant independent injunctive life. The contempt motions and orders under the TRO, for example, refer to violations of a fixed 15 foot zone from entrances (though in one instance, after counsel repeated the District Court's "no moving zone" clarification (quoted supra, at 2), Record, Doc. No. 232, pp. 276-279, the court found that a "totality" of the defendant's conduct, which involved serious obstruction within "10 to 20 feet" of an entrance, violated two provisions of the TRO including the key language. See ante, at 19, n. 9; Record, Doc. No. 263, pp. 6, 8). The contempt motions and orders, however, say nothing about violations of a bubble floating outside the fixed entrance zones--though the facts suggest that the contemnors would have violated such floating zones had the TRO called them into existence. Nor is there anything in the many District Court filings in respect to the preliminary injunction that suggests an intent to create a floating bubble of the sort contemplated by this Court. The diagrams that plaintiffs submitted to clarify the injunction's scope contain no reference to a floating zone. Rather, they are marked to indicate 15 foot fixed buffer zones from entrances to clinic property. See Appendix B, infra.

In fact, at oral argument before the appeals court panel, counsel for the petitioners confirmed that the injunction's bubble did not "float" in the way contemplated by this Court. At that time an appeals court judge asked counsel (for the demonstrators) whether the 15 foot zone would apply after "someone leaves the abortion clinic and goes to a grocery store," perhaps "three miles away," and counsel replied as follows:

"COUNSEL: I don't think that would [be] prohibit[ed] [by] the court's order. I think the court's order provides for a 15 foot setback or bubble zone around the clinic property . . . .

"APPEALS COURT: Well, my question is to what extent can you . . . `leave' and still be subject to this injunction?

"COUNSEL: Maybe I just didn't see the full implications of the injunction, but I never considered that beyond the 15 foot bubble zone there would be this same restriction. Even I'm not arguing that the injunction goes that far. Maybe I just didn't see that but I didn't interpret it that way."

Not surprisingly, the appeals court's panel opinion did not mention floating bubbles. Nor did the parties mention the matter in subsequent District Court proceedings related to modifying or restoring the injunction --proceedings that took place after the Court of Appeals' panel decision invalidating the injunction, but before the Court of Appeals heard the case en banc and reversed. At the latter time, apparently for the first time, the parties agreed that the injunction's language produced a zone that moved in some way or another.

Given this posture, it is not surprising that the en banc Court of Appeals did not deny the existence of a floating bubble zone, but left the initial resolution of the floating bubble controversy to the District Court. The Court of Appeals addressed the parties' argument regarding what the court termed a "floating buffer"--an issue that had never been raised before--by holding that the "floating buffer" was permissible, 67 F. 3d, at 389, on the assumption that the District Court would apply it in a constitutional manner, 67 F. 3d, at 389, n. 4. Thus, the Court of Appeals did not definitively interpret the scope of the relevant language, but instead left it to the District Court to resolve in the first instance any linguistic ambiguity that might create a constitutional problem.

In my view, this action by the Court of Appeals was appropriate, and this Court should do the same. Appellate courts do not normally consider claims that have not been raised first in the District Court. Singleton v. Wulff, 428 U.S. 106, 120 (1976) (citing Hormel v. Helvering, 312 U.S. 552, 556 (1941)). There is no good reason to depart from this ordinary principle here. The District Court understands the history, and thus the meaning, of the language in context better than do we. If the petitioners show a need for interpretation or modification of the language, the District Court, which is directly familiar with the facts underlying the injunction, can respond quickly and flexibly. An appellate decision is not immediately necessary because the key language in the injunction has not yet created, nor does it threaten to create, any significant practical difficulty. No defendant in this case has been threatened with contempt for violating the ostensible floating bubble provision. Nor is there any realistic reason to believe that the provision will deter the exercise of constitutionally protected speech rights.

I recognize that the District Court, interpreting or reinterpreting the key language, might find that it creates some kind of bubble that "floats," perhaps in the way I mention above. See supra, at 3. But even then, the constitutional validity of its interpretation would depend upon the specific interpretation that the court then gave and the potentially justifying facts. Some bubbles that "float" in time or space would seem to raise no constitutional difficulty. For example, a 15 foot buffer zone that is "fixed" in place around a doorway but that is activated only when a clinic patient is present can be said to "float" in time or, to a small degree, in space. See Appendix B, infra, Diagram 1 (Point X). Another example of a possibly constitutional "floating" bubble would be one that protects a patient who alights from a vehicle at the curbside in front of the Buffalo GYN Women services clinic and must cross the two foot stretch of sidewalk that is outside the 15 foot fixed buffer. See Appendix B, infra, Diagram 2 (Point Y). Other bubbles, such as a bubble that follows a clinic patient to a grocery store three miles away, apparently are of no interest to anyone in this case. A floating bubble that follows a patient who is walking along the sidewalk just in front of a clinic, but outside the 15 foot fixed zone, could raise a constitutional problem. See Appendix B, infra, Diagram 3 (Point Z). But the constitutional validity of that kind of bubble should depend upon the particular clinic and the particular circumstances to which the District Court would point in justification. The Court of Appeals wisely recognized that these matters should be left in the first instance to the consideration of the District Court.

In sum, ordinary principles of judicial administration would permit the District Court to deal with the petitioners' current objection. These principles counsel against this Court's now offering its own interpretation of the injunction--an interpretation that is not obvious from the language and that has never been considered by the District Court. I do not see how the Court's review of the key language, in the absence of special need and in violation of those principles, can make the lower courts' difficult, ongoing, circumstance specific task any easier. To the contrary, district judges cannot assure in advance, without the benefit of argument by the parties, that the language of complex, fact based injunctions is free of every ambiguity that later interpretation or misinterpretation finds possible. And I see no special need here for the Court to make an apparently general statement about the law of "floating bubbles," which later developments may show to have been unnecessary or unwise.

Hence, I would affirm the judgment of the Court of Appeals in its entirety.

APPENDIX A TO OPINION OF BREYER, J.

"TEMPORARY RESTRAINING ORDER

"Upon hearing . . . it is hereby

"ORDERED THAT Defendants, the officers, directors, agents, and representatives of defendants, and all other persons whomsoever, known or unknown, acting in their behalf or in concert with them, and receiving actual notice of this Order, are:

"1. Temporarily enjoined and restrained in any manner or by any means from:

"(a) trespassing on, sitting in, blocking, impeding or obstructing access to, ingress into or egress from any facility at which abortions are performed in the Western District of New York, including demonstrating within 15 feet of any person seeking access to or leaving such facilities, except that sidewalk counseling by no more than two persons as specified in paragraph (b) shall be allowed;

"(b) physically abusing or tortiously harassing persons entering or leaving, working at or using any services at any facility at which abortions are performed; Provided, however, that sidewalk counseling, consisting of a conversation of a nonthreatening nature by not more than two people with each person they are seeking to counsel shall not be prohibited. Also provided that no one is required to accept or listen to sidewalk counseling and that if anyone who wants to, or who is sought to be counseled who wants to not have counseling, wants to leave, or walk away, they shall have the absolute right to do that, and in such event the persons seeking to counsel that person shall cease and desist from such counseling of that person. In addition, provided that this right to sidewalk counseling as defined herein shall not limit the right of the Police Department to maintain public order or reasonably necessary rules and regulations as they decide are necessary at each particular demonstration site;

"(c) making any excessively loud sound which disturbs, injures, or endangers the health or safety of any patient or employee of a health care facility where abortions are performed in the Western District of New York, nor shall any person make such sounds which interferes with the rights of anyone not in violation of this Order; . . .

". . . and it is further

"ORDERED that nothing in this Order shall be construed to limit Project Rescue participants' exercise of their legitimate First Amendment rights . . . ." App. 22-26 (emphasis added).

"PRELIMINARY INJUNCTION

"Upon consideration of the evidence introduced at a hearing . . . it is hereby

"ORDERED that defendants, the officers, directors, agents, and representatives of defendants, and all other persons whomsoever, known or unknown, acting in their behalf or in concert with them, and receiving actual or constructive notice of this Order, are:

"11. Enjoined and restrained in any manner or by any means from:

"(a) trespassing on, sitting in, blocking, impeding, or obstructing access to, ingress into or egress from any facility, including, but not limited to, the parking lots, parking lot entrances, driveways, and driveway entrances, at which abortions are performed in the Western District of New York;

"(b) demonstrating within fifteen feet from either side or edge of, or in front of, doorways or doorway entrances, parking lot entrances, driveways and driveway entrances of such facilities, or within fifteen feet of any person or vehicle seeking access to or leaving such facilities, except that the form of demonstrating known as sidewalk counseling by no more than two persons as specified in paragraph (c) shall be allowed;

"(c) physically abusing, grabbing, touching, pushing, shoving, or crowding persons entering or leaving, working at or using any services at any facility at which abortions are performed; provided, however, that sidewalk counseling consisting of a conversation of a non-threatening nature by not more than two people with each person or group of persons they are seeking to counsel shall not be prohibited. Also provided that no one is required to accept or listen to sidewalk counseling, and that if anyone or any group of persons who is sought to be counseled wants to not 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 paragraph (b) pertaining to not demonstrating within fifteen feet of persons seeking access to or leaving a facility. In addition, it is further provided that this right to sidewalk counseling as defined herein shall not limit the right of the Police Department to maintain public order or such reasonably necessary rules and regulations as they decide are necessary at each particular demonstration site;

"(d) using any mechanical loudspeaker or sound amplification device or making any excessively loud sound which injures, disturbs, or endangers the health or safety of any patient or employee of a health care facility at which abortions are performed, nor shall any person make such sounds which interfere with the rights of anyone not in violation of this Order;

". . . and it is further

"ORDERED that nothing in this Order shall be construed to limit defendants and those acting in concert with them from exercising their legitimate First Amendment rights . . . ." 799 F. Supp., at 1440-41.

APPENDIX B TO OPINION OF BREYER, J.

Diagram 1

Alexander Women's Group

220 Alexander Street, Ste. 300

Rochester, NY 14607

(part of Genesee Hospital Complex)

APPENDIX B TO OPINION OF BREYER, J.

Diagram 2

Buffalo GYN Women services

1241 Main Street

Buffalo, NY 14607

APPENDIX B TO OPINION OF BREYER, J.

Diagram 3

The Family Medicine Center

885 South Ave.

Rochester, NY 14620

(part of Highland Hospital complex)