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 Timber & Lumber Co., 200 U.S. 321, 337.




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

No. 95-1065. Argued October 16, 1996 -- Decided February 19, 1997

Respondents, upstate New York abortion doctors and clinics and an organization dedicated to maintaining access to abortion services, filed a complaint in the District Court seeking to enjoin petitioners, other individuals, and three organizations from engaging in blockades and other illegal conduct at the clinics. The record shows that, before the complaint was filed, the clinics were subjected to numerous large scale blockades in which protesters marched, stood, knelt, sat, or lay in clinic parking lot driveways and doorways, blocking or hindering cars from entering the lots, and patients and clinic employees from entering the clinics. In addition, smaller groups of protesters consistently attempted to stop or disrupt clinic operations by, among other things, milling around clinic doorways and driveway entrances, trespassing onto clinic parking lots, crowding around cars, and surrounding, crowding, jostling, grabbing, pushing, shoving, and yelling and spitting at women entering the clinics and their escorts. On the sidewalks outside the clinics, protesters called "sidewalk counselors" used similar methods in attempting to dissuade women headed toward the clinics from having abortions. The local police were unable to respond effectively to the protests due, in part, to the fact that the defendants harassed them verbally and by mail. The District Court issued a temporary restraining order (TRO), and later, after the protests and sidewalk counseling continued, a preliminary injunction. As relevant here, injunction provisions banned "demonstrating within fifteen feet . . . of . . . doorways or doorway entrances, parking lot entrances, driveways and driveway entrances of [clinic] facilities" ("fixed buffer zones"), or "within fifteen feet of any person or vehicle seeking access to or leaving such facilities" ("floating buffer zones"). Another provision allowed two sidewalk counselors inside the buffer zones, but required them to "cease and desist" their counseling if the counselee so requested. In its accompanying opinion, the District Court, inter alia, rejected petitioners' assertion that the injunction violated their First Amendment right to free speech. The en banc Court of Appeals affirmed.

Held: The injunction provisions imposing "fixed buffer zone" limitations are constitutional, but the provisions imposing "floating buffer zone" limitations violate the First Amendment. Pp. 12-26.

(a) Because Madsen v. Women's Health Center, Inc., 512 U.S. 753, bears many similarities to this case and because many of the parties' arguments depend on the application of Madsen here, the Court reviews that decision. In Madsen, the Court said that "standard time, place, and manner analysis is not sufficiently rigorous" for evaluating content neutral injunctions that restrict speech, and held, instead, that the test is "whether the challenged provisions . . . burden no more speech than necessary to serve a significant government interest." Id., at 765. Pp. 12-14.

(b) Petitioners' argument that no significant governmental interests support the injunction at issue is rejected. Given the factual similarity between this case and Madsen, the Court concludes that the governmental interests underlying the injunction there--ensuring public safety and order, promoting the free flow of traffic on streets and sidewalks, protecting property rights, and protecting a woman's freedom to seek pregnancy related services, 512 U. S., at 767-768--also underlie the injunction here, and in combination are certainly significant enough to justify an appropriately tailored injunction to secure unimpeded physical access to the clinics. Pp. 15-17.

(c) The floating buffer zones are struck down because they burden more speech than is necessary to serve the relevant governmental interests. Such zones around people prevent defendants--except for sidewalk counselors tolerated by the targeted individual--from communicating a message from a normal conversational distance or handing out leaflets on the public sidewalks. This is a broad prohibition, both because of the type of speech restricted and the nature of the location. Leafletting and commenting on matters of public concern are classic forms of speech that lie at the heart of the First Amendment, and speech in public areas is at its most protected on public sidewalks, a prototypical example of a traditional public forum. See, e.g., Boos v. Barry, 485 U.S. 312, 322. Although a record of abusive conduct sometimes makes a prohibition on classic speech in limited parts of a public sidewalk permissible, see, e.g., Madsen, supra, at 769-770, the Court need not decide whether the governmental interests involved would ever justify a separation zone measured by the distance between targeted individuals and protesters, since the fact that this broad speech prohibition "floats" renders it unsustainable on this record. Protesters on the public sidewalks who wish to communicate their message to a targeted individual and to remain as close as possible (while maintaining an acceptable conversational distance) must move as the individual moves, maintaining 15 feet of separation. But this would be difficult to accomplish at, e.g., one of the respondent clinics which is bordered by a 17 foot wide sidewalk. The lack of certainty as to how to remain in compliance with the injunction leads to a substantial risk that much more speech will be burdened than the injunction by its terms prohibits. There may well be other ways to both effect the desired separation and yet provide certainty (so that speech protected by the injunction's terms is not burdened). Because the Court strikes down the floating zones around people, it does not address the constitutionality of the "cease and desist" provision respecting those zones. The floating buffer zones around vehicles also fail the Madsen test. Such zones would restrict the speech of those who simply line the sidewalk or curb in an effort to chant, shout, or hold signs peacefully. Nothing in the record or the District Court's opinion contradicts the commonsense notion that a more limited injunction--e.g., one that keeps protesters away from driveways and parking lot entrances and off the streets--would be sufficient to ensure that drivers are not confused about how to enter the clinic and are able to gain access to its driveways and parking lots safely and easily. Pp. 17-21.

(d) The fixed buffer zones around the clinic doorways, driveways, and driveway entrances are upheld. That these zones are necessary to ensure that people and vehicles can enter or exit the clinic property or parking lots is demonstrated by evidence in the record showing that, both before and after the TRO issued, protesters purposefully or effectively blocked or hindered people from entering and exiting the doorways and from driving up to and away from the entrances and in and out of the lots; that sidewalk counselors followed and crowded people right up to the doorways (and sometimes beyond) and then tended to stay in the doorways, shouting at the individuals who had managed to get inside; and that defendants' harassment of the local police made it far from certain that the police would be able to quickly and effectively counteract protesters who blocked doorways or threatened the safety of entering patients and employees. Deference is due the District Court's reasonable assessment that 15 feet is the proper distance to ensure access. See Madsen, supra, at 769-770. Petitioners' various arguments against the fixed buffer zones--that other, unchallenged injunction provisions are sufficient to ensure access to the clinics; that the District Court should first have tried a "non speech restrictive" injunction; that there is no extraordinary record of pervasive lawlessness here; and that the injunction's term "demonstrating" is vague--are rejected. Also rejected is petitioners' contention that the "cease and desist" provision limiting the sidewalk counselors exception in connection with the fixed buffer zone violates the First Amendment. This limitation must be assessed in light of the fact that the entire exception for counselors was an effort to enhance petitioners' speech rights. Moreover, the "cease and desist" provision is not content based simply because it allows a patient to terminate a protester's right to speak when the patient disagrees with the message being conveyed. Counselors remain free to espouse their message outside the 15-foot zone, and the condition on their freedom to espouse it within the zone is the result of their own previous harassment and intimidation of patients. Pp. 21-26.

67 F. 3d 377, affirmed in part, reversed in part, and remanded.

Rehnquist, C. J., delivered the opinion for a unanimous Court with respect to Parts I and II-A, the opinion of the Court with respect to Part II-C, in which Stevens, O'Connor, Scalia, Kennedy, Souter, Thomas, and Ginsburg, JJ., joined, and the opinion of the Court with respect to Parts II-B and II-D, in which Stevens, O'Connor, Souter, Ginsburg, and Breyer, JJ., joined. Scalia, J., filed an opinion concurring in part and dissenting in part, in which Kennedy and Thomas, JJ., joined. Breyer, J., filed an opinion concurring in part and dissenting in part.