[ Rehnquist ]
[ Stevens ]
[ Scalia ]
[ Souter ]
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
MADSEN et al. v. WOMEN'S HEALTH CENTER, INC., et al.
certiorari to the supreme court of florida
After petitioners and other antiabortion 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 amplealternative channels of communication, see ibid.
1. The ordinance at issue is not subject to heightened scrutiny as content or viewpoint based simply because it restricts only the speech of antiabortion 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' antiabortion 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 flowof 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. 13-16.
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 well being 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 independentlyproscribable (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.