Madsen v. Women's Health Ctr. (93-880), 512 U.S. 753 (1994).
[ Rehnquist ]
[ Stevens ]
[ Scalia ]
[ Souter ]
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No. 93-880


on writ of certiorari to the supreme court of florida

[June 30, 1993]

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, wrote:

"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, 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.

On Saturday, March 6, 1993, a group of antiabortion protesters is gathered in front of the clinic, arrayed from east (camera left) to west (camera right) on the clinic side of Dixie Way, a small, nonartery street. Men, women, and children are also visible across the street, on the south side of Dixie Way; some hold signs and appear to be protesters, others may be just interested onlookers.

On the clinic side of the street, two groups confront each other across the line marking the south border of the clinic property--although they are so close together it is often impossible to tell them apart. On the clinic property (and with their backs to the camera) are a line of clinic and 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,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.

The persons standing but not walking the picket line include a woman with a child in a stroller, and a man shouting the Book of Daniel's account of Meshach, Shadrach, and Abednego. A woman on a stepladder holds up a sign in the direction of the clinic; a clinic supporter counters with a larger sign held up between the other and the clinic. A brief shot reveals an older man in a baseball cap--head, shoulders, and chest visible above the clinic fence--who appears to be reading silently from a small book. A man on clinic property holds a boom box out in the direction of the abortion opponents. As the crowd grows it appears at various points to have spilled over into the north side, westbound lane of Dixie Way.

At one point, Randall Terry arrives and the press converge upon him, apparently in Dixie Way itself. A sign is held near his head reading "Randall Terry Sucks." Terry appears to be speaking to the press and at one point tears pages from a notebook of some kind. Through all of this, abortion opponents and abortion rights supporters appear to be inches from one another on each side of the south border of the property. They exchange words, but at no time is there any violence or even any discernible jostling or physical contact between these political opponents.

The 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 theclinic 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, God."

The second segment of the videotape displays a group of approximately 40 to 50 persons walking along the side of a major highway. It is Saturday, March 13, 1993, at 9:56 a.m. The demonstrators walk in an oval pattern, carrying no signs or other visible indicators of their purpose. According to Ruth Arick, this second portion was filmed in front of the condominium where clinic owner Ed Windle lived.

A third segment begins. The date time register indicates that it is the morning of Saturday, February 20, 1993. A teenage girl faces the clinic and exclaims: "Please don't let them kill me, Mommy. Help me, Daddy, please." Clinic supporters chant, "We won't go back." A second woman, the one who spoke at greatest length in the first segment calls, "If you [inaudible], help her through it." Off camera, a group sings "Roe, Roe, Roe v. Wade, we will never quit, Freedom of choice is the law of the land, better get used to it." The woman from the first segment appears to address 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.

The videotape and the rest of the record, including the trial court's findings, show that a great many forms of expression and conduct occurred in the vicinity of the clinic. These include singing, chanting, praying, shouting, the playing of music both from the clinic and from handheld boom boxes, speeches, peaceful picketing, communication of familiar political messages, handbilling, persuasive speech directed at opposing groups on the issue of abortion, efforts to persuade individuals not to have abortions, personal testimony, interviews with the press, and media efforts to report on the protest. What the videotape, the rest of the record, and the trial court's findings do not contain is any suggestion of violence near the clinic, nor do they establish any attempt to prevent entry or exit.

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 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 intermediatescrutiny. 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 disposition.

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 presentcase, 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 goodreason to require the strictest standard for issuance of such orders. [n.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 isalways 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 be half " 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."

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:

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 added).

These colloquys leave no doubt that the revised injunction here is tailored to restrain persons distinguished, not by proscribable conduct, but by proscribable views. [n.2]

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 isused `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)). [n.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 mereintermediate 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 Commissionersof 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 pin pointed 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] pin pointed 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(what I will assume for the time being existed here) significant illegal behavior. [n.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,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.' "Id., at 907-908 (quoting Citizens Against Rent Control/Coalition for Fair Housing v. Berkeley, 454 U.S. 290, 294 (1981)).

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 partiesagreed 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 is inadequate.

The first step under the Court's standard would be, one should think, to identify the "significant government interest" that justifies the portions of the injunction it upheld, namely, the enjoining of speech in the 36 foot zone, and the making (during certain times) of "sounds . . . within earshot of the patients inside the [c]linic." Ante, at 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 well being 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]ndergeneral 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, [n.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 abortionmills,' " "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 from:

"1) trespassing on, sitting in, blocking, impeding or obstructing ingress into or egress from any facilityat 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'] . . . antiabortion 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

"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.

"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. [n.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 pedestriansgot 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 obstruction.

Now let us compare these activities with the earlier injunction, violation of which is the asserted justification for the speech free zone. Walking the return leg of the picket line on the paved portion of Dixie Way (instead of on the sidewalk), and congregating on the unpaved portion of that street, may, for all we know, violate some municipal ordinance (though that was not alleged, and the municipal police evidently did not seek to prevent it); but it assuredly did not violate the earlier injunction, which made no mention of such a prohibition. Causing the traffic along Dixie Way to slow down "in response to the congestion" is also irrelevant; the injunction said nothing about slowing down traffic on public rights of way. It prohibited the doing (or urging) of only three things: 1) "physically abusing persons entering, leaving, working or using any services" of the abortion clinic (there is no allegation of that); 2) "trespassing on [or] sitting in" the abortion clinic (there is no allegation of that); and 3) "blocking, impeding or obstructing ingress into or egress from" the abortion clinic.

Only the last of these has any conceivable application here, and it seems to me that it must reasonably be read to refer to intentionally blocking, impeding or obstructing, and not to such temporary obstruction as may be the normal and incidental consequence of other protest activity. That is obvious, first of all, from the context in which the original injunction was issued--as a response to the petitioners' threatened actions of trespass and blockade, i.e., the physical shutting downof 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., at 183-184.

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 by product of leafletting and picketing. There was no sitting down, no linking of arms, no packing en masse in the driveway; the most that can be alleged (and the trial court did not even make this a finding) is that on one occasion protestors "took their time to get out of the way." If that is enough to support this one manproscription 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).

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 noise making 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 thepresence 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." (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 driveways. 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 buffer zone,"it says, "may be debatable, but some deference must be given to the state court's familiarity with the facts and the background of the dispute between the parties even under our heightened review." 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 stringent.

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 priorrestraint." 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 today.

What we have decided seems to be, and will be reported by the media as, an abortion case. But it will go down in the lawbooks, it will be cited, as a free speech injunction case--and the damage its novel principles produce will be considerable. The proposition that injunctions against speech are subject to a standard indistinguishable from (unless perhaps more lenient in its application than) the "intermediate scrutiny" standard we have used for "time, place, and manner" legislative restrictions; the notion that injunctions against speech need not be closely tied to any violation of law, but may simply implement sound social policy; and the practice of accepting trial court conclusions permitting injunctions without considering whether those conclusions aresupported by any findings of fact--these latest by products of our abortion jurisprudence ought to give all friends of liberty great concern.

For these reasons, I dissent from that portion of the judgment upholding parts of the injunction.


Portions of April 12, 1993, Appearance Hearings Held Before Judge McGregor, Eighteenth Judicial Circuit, Seminole County, Florida:

Page 40:

JANE DOE: No. 6: "Yes, sir. When I heard this injunction, everything in there, as an American--"

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 Defendants."

JANE DOE NO. 6: "But I was in concert with nobody. I was just an American citizen, defending the right to assemble and to demonstrate."

THE COURT: "Again, perhaps, that would be a matter of defense that you would present at the time of trial."

JANE DOE NO. 6: "So the Injunction only . . . ."

Page 43:

JANE DOE NO. 6: "But I was not in concert with anybody."

THE COURT: "Again, I say that at the time of your trial, perhaps, that would be a defensive matter. Although, I'm told by the Melbourne Police Department that everyone was put on notice that the thirty six foot area was a restricted area and when--if you presumably had notice of that and chose to enter, then, you chose to violate the Court's Injunction. That's why you were arrested."

JANE DOE NO. 6: "I don't mean this disrespectfully, but does not the constitutional freedom to be on public sidewalk and to--"

THE COURT: "There is nothing in the constitution that says that anyone is entitled to walk on any sidewalk."

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 done."

Page 93:

MR. QUINTERO: "And who are these Defendants? I have no idea."

THE COURT: "They're set out in the Injunction."

MR. QUINTERO: "Because I'm not working in conjunction with anybody. I don't know anything. I don't belong to any group that is doing absolutely anything like this. I am just a normal Christian that went to pray on the sidewalk."

THE COURT: "Again, those may be defensive matters. I'm saying that you should bring them up first with your lawyer and then at the time of trial."

MR. QUINTERO: "Okay, I would like to formally request to have this injunction so I can look at it while I'm incarcerated and that I can make arrangements to talk to counsel about it."

THE COURT: "Your lawyer knows how to obtain a copy. Copies are available at, again, the branch courthouses in Melbourne and Melbourne City Hall. Copies are available at the Clerk's Office here in Seminole County."

MR. QUINTERO: "At this time I do not have a lawyer and I see it very difficult for me to go to the Melbourne Courthouse being incarcerated."

Page 115-116:

[JOHN DOE NO. 16]: ". . . do with the determination in the Injunctive Order or in the arrest?"

THE COURT: "You know, I wasn't there. I don't know. All I know is that the officer used his perceptions, his eyes, his ears, took note of the activities that were going on and 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?"


JOHN DOE NO. 16: "Okay. If I was to stand here, if I was to testify that I did not oppose abortion would that make any difference in my arrest?"

THE COURT: "You can't be unarrested. You have been arrested."

JOHN DOE NO. 16: "What about being charged with violating the Court Order?"

THE COURT: "It will be up to the prosecutor, the State Attorney, to make a charge decision. And sometimes lawyers in representing clients will go to a prosecutor in advance of his charge decision and ask that he, you know, consider additional matters that might cause him to not make such a charge decision. Those are matters lawyers best know how to do."

JOHN DOE NO. 16: "When you issued the Injunction did you determine that it would only apply to--that it would apply only to people that were demonstrating that were pro life?"

THE COURT: "In effect, yes."

JOHN DOE NO. 16: "Okay, thank you."

THE COURT: "Any other questions?"

JOHN DOE NO. 16: "No."

THE COURT: "Thank you. Did we give him a court date?

"John Doe Number Eighteen."

JOHN DOE NO. 18: "Were there any numbers . . ."

Pages 119-120:

MR. MACLEAN: "Yes, please, Your Honor."

THE COURT: "Okay. Court will then direct pre-trial release officer to interview and provide the results of the interview to Judge Eaton after 1:00 o'clock today and he will consider that release. Do you wish to be considered for court appointed counsel?"

MR. MACLEAN: "No thank you."

THE COURT: "Do you have any questions?"

MR. MACLEAN: "Yes, please. Would you extend your gracious offer to reduce the bond for myself also?"

THE COURT: "Surely. Reduce bond to a hundred dollars."

THE CLERK: "Total?"


THE 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?"


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.

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.

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.

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.

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 statutes.

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.