Madsen v. Women’s Health Center, Inc.

PETITIONER:Madsen et al.
RESPONDENT:Women’s Health Center, Inc., et al.
LOCATION:Aware Woman Center for Choice

DOCKET NO.: 93-880
DECIDED BY: Rehnquist Court (1993-1994)
LOWER COURT: Florida Supreme Court

CITATION: 512 US 753 (1994)
ARGUED: Apr 28, 1994
DECIDED: Jun 30, 1994

ADVOCATES:
Drew S. Days, III – on behalf of the United States, as amicus curiae, supporting the Respondents
Mathew D. Staver – on behalf of the Petitioners
Talbot D’Alemberte – on behalf of the Respondents

Facts of the case

Women’s Health Center Inc. operated several abortion clinics throughout central Florida, including the Aware Woman Center for Choice in Melbourne, Florida. In 1992, in response to anti-abortion protesters, a state court prohibited the protesters from physically abusing those entering or exiting the clinic, or otherwise interfering with access to the clinic. About 6 months later, Women’s Health Center Inc. expressed a need to broaden the court order. The state court agreed, banning demonstrators from entering a 36-foot buffer-zone around the clinic, making excessive noise, using images visible to patients, approaching patients within a 300-foot radius of the clinic, and protesting within a 300-foot radius of staff residences. Petitioner Judy Madsen and her fellow protesters claimed that these restrictions violated their First Amendment right to free speech, but the Florida Supreme Court disagreed, upholding the court order.

Question

1) Is the prohibition of all protesting within the 36-foot buffer zone around the front of the clinic an infringement of the First Amendment right to free speech? 2) Is the 36-foot buffer zone along the back and side of the clinic a breach of the First Amendment right to free speech? 3) Do the limitations imposed on noise-making constitute a breach of the First Amendment right to free speech? 4) Do the restrictions placed on the use of images violate the First Amendment right to free speech? 5) Is it a breach of the First Amendment right to free speech to bar protesters from approaching potential patients when they are within a 300-foot radius of the clinic? 6) Is it a violation of the First Amendment right to free speech to prohibit all protesting in a 300-foot radius of clinic staff residences?

William H. Rehnquist:

We’ll hear argument now in Number 93-880, Judy Madsen v. Womens Health Care Center.

Mr. Stavers.

Mathew D. Staver:

Mr. Chief Justice and may it please the Court:

Neither Judy Madsen, Ed Martin, nor Shirley Hobbs surrender their constitutional rights to free speech when they enter the speech free zone surrounding the Aware Clinic.

This case is about the right to peacefully display a sign and distribute literature in a traditional public forum.

Petitioners do not seek to trespass or blockade, nor are those portions of the injunction challenged here today.

In a nonpublic forum, this Court noted that one need not ponder the contents of a pamphlet or leaflet in order to mechanically take it from someone’s hand.

Despite this Court’s holding, the injunction totally bans literature distribution.

This Court recognized in Bray and in Casey that men and women of good conscience have common and respectable reasons for opposing abortion.

Indeed, abortion speech, or speech about abortion lies at the very core of the First Amendment.

If the First Amendment really means that speech must be uninhibited, robust, and wide open, the injunction must be dissolved.

The injunction violates petitioner’s right to free speech because it is both viewpoint-based and a prior restraint, and because it lacks precision.

Viewpoint-based regulations like prior restraints come to this Court with a heavy presumption against their constitutional validity.

William H. Rehnquist:

Why do you say it’s viewpoint-based, Mr. Staver?

Mathew D. Staver:

Your Honor, Mr. Chief Justice, the reason why it’s viewpoint-based is, Judy Madsen is restrained once she enters the 300-foot buffer zone.

When she enters that zone, she can only speak if the listener favorably reacts to that speech.

When she enters this zone, the injunction states that she can only speak if someone approaches her, extends a hand, or she can continue to speak only if they show a positive interest in what she has to say.

Also, the injunction is specifically addressing Judy Madsen’s speech, which in context is more than activities which it restrains, but goes to speech.

Judy Madsen’s speech at the abortion clinic is clearly on the issue of abortion.

Judy Madsen had not been to this clinic prior to the entry of the injunction.

Now when she enters the speech-free zones–

Sandra Day O’Connor:

Well, what about the application of the 36-foot limit that just says you have to stay out of that?

Do you take the position that’s content-based, or viewpoint-based?

Mathew D. Staver:

–Yes, Justice O’Connor, we do.

Sandra Day O’Connor:

Why?

Mathew D. Staver:

The reason is, is that Judy Madsen cannot ever enter that zone, whereas other individuals expressing a contrary view can.

Sandra Day O’Connor:

Well, but on your theory, every injunction, whether it’s in the labor context or any other context, would be viewpoint-based, and I don’t think we’ve ever thought that injunctions of that type became content-based just because they were focused on a named individual, or a group of individuals.

Mathew D. Staver:

Justice O’Connor, it wouldn’t be viewpoint-based on every injunction.

This injunction, for example, in sections (1) and (2) would clearly not be viewpoint-based.

Those restrain activities which we don’t challenge, but the injunction the way it was drafted and the way–

Sandra Day O’Connor:

No, but similarly, on the 36-foot zone, I don’t see what makes that content-based, or a restriction that says you can’t make noise within that zone, or something of that sort.

Mathew D. Staver:

–Your Honor, on… Justice O’Connor, on page 24 of the respondent’s brief, they specifically address the types of images that would be impermissible under this injunction.

They state that the images that would be impermissible are those that tend to traumatize.

Who makes that determination but the listener’s reaction to speech, and the listener’s reaction to speech could never be a content-neutral basis for regulating an individual’s–

William H. Rehnquist:

I think you’re really spreading this content-based and viewpoint thing all over the First Amendment area, rather than confining it.

I mean, it seems to me that answer is really a vagueness challenge, rather than a viewpoint-base challenge.

Mathew D. Staver:

–Mr. Chief Justice, we raise the vagueness challenge as well as a viewpoint-base challenge, and I believe in this particular case, looking at Justice… or Judge McGregor, who drafted this injunction, he clearly stated that it applies to a belief, not specifically activities or individuals.

It applies to those beliefs that seem to be supportive of prolife.

William H. Rehnquist:

Is any part of your challenge here based on the fact that the injunction enjoined only those who wanted to protest against abortion and not those for it?

Mathew D. Staver:

No, Mr. Chief Justice, that’s not the basis of the challenge.

The basis is that in the internal workings of the injunction itself, it says that when someone enters this zone… for example, Judy Madsen… she can only speak if that individual listener shows a positive interest in what she has to say.

That listener, therefore, is empowered with ex parte adjunctive authority to censor her speech.

Antonin Scalia:

That’s the 300-foot zone, Mr. Staver, but what about the 36-foot zone, which is what Justice O’Connor was asking about.

Mathew D. Staver:

Justice Scalia, the 36-foot zone would be the same way.

The way Judge McGregor intended and applied that 36–

Antonin Scalia:

Well, she’s not allowed within that zone at all.

Mathew D. Staver:

–She can’t ever go within that zone.

Antonin Scalia:

Okay, so that’s… you can’t say that that’s content-based because she can only go in if the people agree with her.

She can’t go in at all.

Mathew D. Staver:

No, she can’t go in at all.

Antonin Scalia:

So why is it content-based?

Mathew D. Staver:

Because of… the only reason she can’t go in has nothing to do with her activities but solely because of her belief.

Judge McGregor–

Antonin Scalia:

In that extent, every injunction that… if you enjoin a labor union where there’s been violence on the picket line you’re only directing the injunction against somebody that has a particular point of view.

Doesn’t it always… isn’t it always content-based where it’s an injunction?

Mathew D. Staver:

–I believe it is, Justice Scalia.

Antonin Scalia:

Okay, but why did you say no before?

Mathew D. Staver:

No, well, in the sections (1) and (2)–

Antonin Scalia:

It seems to me you say yes, and that’s why we have to be especially careful with injunctions.

Mathew D. Staver:

–Sections (3) through (9) would be the content-based.

Mathew D. Staver:

Sections (1) and (2) I would say would not be, because that simply restrains an activity and not individual speech, which we are not challenging.

David H. Souter:

May I ask you a question that seems to be the premise… one of the premises of your argument here about the 300-foot zone?

I understood you to say that within the 300-foot zone your clients could not distribute a leaflet, or offer them, and could not speak, but as I’m reading the reference, and I’m on A-9 of the petition appendix, under paragraph (5) on the 300-foot… covering the 300-foot zone, there’s an injunction against physically approaching any person seeking the services of the clinic, but I don’t see anything in there that prevents your clients from standing there with a picket sign or with leaflets ready for somebody who may want to take them, or even, so long as it doesn’t otherwise offend the noise proscription, from saying, don’t go in and get an abortion, or what-not.

It’s just that they cannot go up to individuals and importune them on an individual basis, isn’t that true?

Mathew D. Staver:

That’s true in part, Justice Souter, but outside of the 36-foot zone, for example, Judy Madsen could not raise her voice to reach somebody within the zone because that could be heard.

She could not display an image, for that could be seen.

David H. Souter:

But that is… and I see what you’re getting at there.

You’ve got a problem of images seen inside, noise penetrating the clinic, but there is in terms no limitation on speech which does not project images inside, or rise to a level that would be heard inside, within the 300-foot zone, isn’t that true?

Mathew D. Staver:

No, that’s not true, Justice Souter.

Going on further, at the end of the injunction, it speaks about the invited contact portion.

It says that that portion–

William H. Rehnquist:

Where are you reading?

Where are you?

Mathew D. Staver:

–I’m reading right now on the Joint Appendix, page 63, which is also reproduced in the petition for writ of cert, but it’s on the last page of the injunction, just before the signature blocks.

It speaks about invited contact, and it begins with, ordered and adjudged.

David H. Souter:

Is… just so I don’t flip back and forth, is the same thing in the petition appendix?

Mathew D. Staver:

Yes.

It’s reproduced in the Petition for Writ of Certiorari, and it’s also in the Joint Appendix.

David H. Souter:

Okay.

Mathew D. Staver:

In that section, Justice Souter, it speaks about invited contact, and that invited contact portion applies outside of the 36-foot zone.

It calls it the buffer zone.

Section (3) is the only place within the injunction that refers to a buffer zone, so the invited contact applies outside of the zone, which would be in that 300-foot zone.

It says that Judy Madsen would not be able to speak if someone didn’t have a positive interest in what she had to say, nor could she distribute literature–

David H. Souter:

Well, can you quote the text that you’re relying on?

Mathew D. Staver:

–Yes.

David H. Souter:

What’s the numbered paragraph in the injunction?

Mathew D. Staver:

On the petition for writ of cert, Justice Souter, it is on page B-11.

David H. Souter:

B-11?

Mathew D. Staver:

At the bottom, and it begins with, ordered and adjudged.

It’s the second ordered and adjudged on that page.

Mathew D. Staver:

It says,

“At all times on all days, respondents will have the right of invited contact with persons protected hereby so long as it is outside the clinic buffer zone. “

which is the 36-foot zone.

“”Invited contact” is defined as conduct by the person sought to be contacted which affirmatively indicates a desire to engage in conversation or to receive literature. “

“Such affirmative indication may include where the person sought to be contacted physically approaches a respondent or where such person extends his or her hand to receive literature, or speaks words indicating a positive interest in what the respondent is saying. “

It goes on down–

David H. Souter:

Which implies that the respondent is saying something, and clearly implies that the respondent can be holding literature to distribute if somebody will take it, and that was the only point that I was trying to make.

Mathew D. Staver:

–Justice Souter, the next sentence goes down and basically says such invited contact by a person protected hereby as it relates to conduct… contact at such person’s residence is limited to conduct transmitted by the resident to a respondent at a distance from and at a time prior to the contact, so that–

David H. Souter:

That’s–

–Well, you may have a different issue–

Mathew D. Staver:

–That’s–

David H. Souter:

–at the residence zone than you do at the 300-foot zone around the clinic, but there’s nothing in there that indicates to me… in fact, the indication is to the contrary… that you cannot speak so long as you’re not heard inside, or that you can’t hold a placard or a leaflet.

Mathew D. Staver:

–Justice Souter, I believe that when Judy Madsen enters this 36-foot zone, she–

David H. Souter:

No, I’m talking about–

Mathew D. Staver:

–I’m sorry, the–

David H. Souter:

–the 300-foot zone.

Mathew D. Staver:

–I’m sorry… the 300-foot zone.

She could not approach an individual if they didn’t show some positive interest in her.

David H. Souter:

That’s entirely correct.

I mean, I understand that, but they can be within the 300-foot zone, speaking, I presume, at a normal voice level, holding their placard, and offering leaflets in case somebody is willing to come over and take one.

But they can’t speak to anybody unless spoken to.

Mathew D. Staver:

That’s exactly right.

Prior consent equals prior–

David H. Souter:

Well, they can’t physically approach.

Mathew D. Staver:

–They can’t… but they couldn’t physically approach if they’re simply there with literature within the 300-foot zone.

Ruth Bader Ginsburg:

Mr. Staver, you’ve several times said, I believe, in connection with your responses.

Was there a time… did you ever seek from the trial judge a clarification or a modification?

I mean, you concede that the first injunction was valid.

Do you concede… because you said you don’t challenge parts of this, that there was a violation of that first injunction, so some remedy was in order.

So my first question is, did you propose, when you got this injunction, any modifications to clarify the vague portions, and second, having conceded violation of the original injunction, what remedy would have been within the First Amendment limits?

Mathew D. Staver:

Justice Ginsbug, let me answer both questions, and looking at the second one first, there is no conceded violation of the first injunction.

On page 375 of the Joint Appendix, respondents specifically stated that the contempt proceedings regarding any violations of the 1992 had nothing to do with Judy Madsen.

On page 436, the judge said, I understand that, and that’s why Judy Madsen never testified.

But going to the first… the… question second, there were no requests specifically for modification on the 1993.

There was a request to dissolve the temporary restraining order back in 1991 and 1992.

That was denied.

Right after the entry of this ’93 injunction was the only time that arrest occurred, and it wasn’t petitioners.

It was those individuals penetrating the zone.

Antonin Scalia:

Judy Madsen wasn’t around, was she, at the time the amended injunction was entered?

Mathew D. Staver:

Yes, she was, Justice Scalia.

She was not at the clinic.

Her name… the reason why she is here–

Antonin Scalia:

I thought you said that she had come there… she had not been a party who had violated any prior injunction.

Mathew D. Staver:

–That’s correct, Justice Scalia.

Antonin Scalia:

Had she been demonstrating after the first injunction was entered?

Mathew D. Staver:

Not at the Aware Clinic, Justice Scalia.

In fact, her name appeared–

Antonin Scalia:

Well then, how could she move for modification of the amended injunction if it was entered before she was even around the place?

Mathew D. Staver:

–I don’t believe that she really could, and I believe that it would have bee futile to do that, because Judge McGregor, a few days after this injunction was entered, made all of the statements that are before this court about how he interpreted this injunction.

He said it applied to anybody who seemed to be supportive of prolife.

If you had notice of the injunction, penetrated the zone, 36-foot zone, and were prolife, you were hauled off to jail.

Ruth Bader Ginsburg:

Is your position, then, that this injunction may be valid as to some people, but it isn’t as to the particular complainants in this case?

Mathew D. Staver:

Justice Ginsburg, it’s certainly not valid as it relates to the three petitioners.

I don’t believe–

Ruth Bader Ginsburg:

That’s the limit of your argument, just these three petitioners, and for the rest, the injunction would stand?

If you’re saying that Judy Madsen wasn’t around, and the others weren’t around, this injunction shouldn’t have touched them, then is the relief you’re seeking just to excise those three people from the terms of the injunction?

Mathew D. Staver:

–No, Justice Ginsburg, it is not, because that would not give full relief to Judy Madsen, because she would be like Myrna Cheffer before the Eleventh Circuit Court of Appeals.

By simply penetrating the 36-foot zone, she would be considered to act in concert.

So we bring both an as-applied and a facial challenge to the overbreadth of how the judge… not pursuant to Rule 65, but how the judge crafted and applied the in-concert section.

He clearly tried to restrain a belief.

Mathew D. Staver:

He clearly tries to require prior consent before even distributing pieces of literature, and prior consent would be–

John Paul Stevens:

Let me–

Mathew D. Staver:

–a prior restraint.

John Paul Stevens:

–just to be sure I understand your position, are you arguing that as a matter of fact the evidence doesn’t show that she was in concert with those, or are you arguing as a matter of law that if she didn’t have anything to do with the protests until after the injunction was entered, she could not ever be held in concert?

Mathew D. Staver:

I believe, Justice Stevens, as a matter of fact and law.

As a matter of fact, she was not in concert, and as a matter of law–

John Paul Stevens:

And is there a finding of fact to the contrary?

Mathew D. Staver:

–That she was in concert?

John Paul Stevens:

Yes.

Mathew D. Staver:

There is a finding of fact in the 1992 generically lumping all of the people together, but in the 1993 injunction, Justice Stevens, there’s no finding–

John Paul Stevens:

Well, let me just take it one step at a time, because it’s hard to… this is a complicated case.

Is there, or is there not, a finding of fact that Judy Madsen acted in concert with the people who were enjoined?

Mathew D. Staver:

–Not in the 1993 injunction.

It never–

John Paul Stevens:

So that’s not before us.

But then your legal position is that as a matter of law, if she came in after the injunction was entered, she could never be held in concert with the defendants?

Mathew D. Staver:

–No.

She could be held in concert, Justice Stevens, if she were really actively aiding and abetting those named in the injunction, but that’s not how the judge intended to apply the in-concert.

He commanded that a traffic sign be erected that simply said, warning, demonstrations and picketing in this area are limited by court order.

William H. Rehnquist:

Well, Judy Madsen has never been found guilty of anything, has she?

Mathew D. Staver:

She has in the 1993, but not guilty as terms of criminal, no.

William H. Rehnquist:

She was cited for contempt?

Mathew D. Staver:

No, Mr. Chief Justice, she was never cited for contempt, never arrested.

William H. Rehnquist:

Well then, what sanctions have been imposed on her by the trial court?

Mathew D. Staver:

The 1993 injunction is the sanction of not being able to speak.

William H. Rehnquist:

Well, but has she been held to have violated that?

Mathew D. Staver:

No, she has not.

William H. Rehnquist:

So we’re not talking, then, about any sanction that was imposed on her.

You’re saying that she is subject to sanctions for conduct that she shouldn’t be.

Mathew D. Staver:

Exactly right, Mr. Chief Justice.

William H. Rehnquist:

Well, in Broadrick v. Oklahoma, I think we used some language about an in-concert statement there, saying that we would cross that bridge when we came to it, in effect.

Mathew D. Staver:

Mr. Chief Justice, I think this Court has come to it, because we don’t have to speculate as to how far the in-concert section goes.

In fact, we have an unusual record where we see the judge’s comments about how he applied it.

Secondly, we have the city police who were enforcing the injunction asking the judge to clarify, and that did come up, Justice Ginsburg, about the police enforcers wanting to clarify whether that was proper to arrest anybody who penetrated the zone.

The judge denied their motion to clarify, and that motion was opposed by the clinic.

Ruth Bader Ginsburg:

Mr. Staver, you said I believe in your brief that you were attacking this injunction on its face, and that’s why the record didn’t need to have in it any more than it already had, so when you speak of the internal operations of this, that seems to be inconsistent with your insistence that you didn’t need to put very much in the record because you were attacking the injunction on its face, which seems to say that these restrictions never could be constitutional, no matter what the facts were.

Mathew D. Staver:

Justice Ginsburg, we’ve argued to the Florida supreme court and also to this court that it’s as applied to Judy Madsen factually and on its face as well, and in fact the same evidence that’s before this Court was before the court of Florida, and the same arguments were made, and we asked them to de novo review this case.

The only pieces of testimony that were not before the Florida supreme court was that of Arick, Doyle, and Wymer, but respondents specifically stated that testimony had nothing to do with petitioners.

This particular court, as well as the Florida supreme court, had the testimony of April 12th, the record and the comments by Judge McGregor, and all the testimony that was before this particular court except for those other three testimonies, so the record evidence, looking at it de novo, does not show that the injunction was constitutionally applied properly to the three petitioners.

Sandra Day O’Connor:

Well, Mr. Staver, is everything you’ve said about petitioner Madsen equally true as to the other named petitioners?

None of them were found to have violated the earlier injunction?

None of them were active at this particular clinic demonstration?

Mathew D. Staver:

That’s correct, Justice O’Connor.

Let me explain that statement.

Petitioner–

Sandra Day O’Connor:

Your comments have all been directed to petitioner Madsen, but I want to be clear about the other named petitioners as well.

Mathew D. Staver:

–Yes.

Petitioner Madsen nor Hobbs testified, because there was no allegations against them.

Petitioner Martin did testify.

There were two allegations.

However, there was never a finding of contempt.

There was only the motion… there was only the modification of the 1993 injunction.

The 1993 injunction never names any of petitioners or Rescue America by name.

In respect to petitioner Martin, the two allegations against him were, number 1) did he on one occasion stand in front of a doctor’s car and move after the doctor honked the horn, and secondly, did he distribute a brochure that was published prior to the 1992 injunction after that injunction?

First, if he were there on this occasion, which he denies, that wouldn’t constitute blocking.

Secondly, if he did distribute the brochure, which he denies, it doesn’t incite anyone to illegal activity.

He specifically disclaimed blocking access to a clinic–

William H. Rehnquist:

What was the proceeding at which this testimony was taken?

Mathew D. Staver:

–This was at a proceeding, Mr. Chief Justice, for a motion to contempt, and a motion to modify.

William H. Rehnquist:

At a motion to hold Martin in contempt?

Mathew D. Staver:

Yes, Mr. Chief Justice, a motion to hold all the defendants named in the 1992 injunction in contempt.

William H. Rehnquist:

And Martin was one of them?

Mathew D. Staver:

That’s correct.

Antonin Scalia:

Mr. Staver, I must say, you have me thoroughly confused.

You say you’re challenging this injunction as applied to Judy Madsen, but you also say it has not yet been applied to Judy Madsen.

How can you challenge it as applied when it hasn’t been applied?

I don’t understand.

Mathew D. Staver:

What I mean by that, Justice Scalia, is that she is presently restrained.

She has not been found in contempt, and so it’s not applied in that particular sense.

Antonin Scalia:

Well, you say she’s restrained.

Maybe she’s not.

Do we know that she’s… how do we know that she’s restrained?

You tell us that she’s covered by the in-concert.

We don’t know that she’s covered by the in-concert until someone says, Judy Madsen, you’re covered by the in-concert provision.

Mathew D. Staver:

As far as the in-concert provision, we don’t know that for a fact, but we don’t have to speculate about the broad breadth of this in concert, because we know that 2 days after this injunction all these others were arrested for simply penetrating the zone, who were not in concert.

Antonin Scalia:

Well, that seems to me not an as-applied-to-Judy-Madsen point.

That seems to me a facial challenge.

Mathew D. Staver:

That’s exactly right.

That’s the section that we’re bringing as a facial challenge.

Antonin Scalia:

Your contention is you can’t use the terms, in-concert?

I don’t know how you can issue an injunction that’s effective unless it applies not just to the people it’s directed at but to anyone acting in concert with them.

Mathew D. Staver:

Justice Scalia, let me explain.

The 336-foot zone.

The in-concert section is the only thing that would be facially, so if you excise Judy Madsen out, she would find herself in the same position as the Myrna Cheffer in the Eleventh Circuit court of appeals case, not being able to penetrate the zone.

But at any rate, this particular injunction certainly restrains her speech by restricting her access in this 300-foot zone.

Antonin Scalia:

You’re saying that “in concert” cannot be used in an injunction?

Mathew D. Staver:

No, it certainly can, if it’s used properly according to this Court’s decision in Chase.

In Chase, this Court looked at how an in-concert application could be used, and that it should not be used to attempt to restrain the entire world who simply receives notice of an injunction, but it should be used if proof was shown that someone was actively in concert, aiding and abetting.

How the judge applied this, though, was to restrain the entire world.

Antonin Scalia:

How do we know that?

Mathew D. Staver:

We know it from the April 12 transcript, where the judge brought individuals who simply penetrated the zone.

On page 68 of the Joint Appendix, the judge–

Sandra Day O’Connor:

We don’t have those people in front of us.

It’s just… your argument is so confusing, because we don’t have people here that have been found in contempt, so I don’t know why we aren’t just looking at this facially.

Mathew D. Staver:

–Justice O’Connor, even aside from the in-concert, that’s not the basis of the argument.

The basis of the argument is that originally this injunction should never have been applied against Judy Madsen.

This Court could not–

Ruth Bader Ginsburg:

But there are parts of this injunction that you say are okay.

Maybe we should clarify that by looking at the appendix.

You say you’re not challenging every part of this current injunction.

Can you… by pointing us to the Joint Appendix, which parts are you saying you’re not challenging, are okay?

Mathew D. Staver:

–We would not challenge page 57, sections (1) and (2).

That section would prohibit blocking access to the clinic.

Ruth Bader Ginsburg:

Can you tell me where in the petitioner… the appendix–

Mathew D. Staver:

That’s Joint Appendix, Volume 1, page 57, in the Joint Appendix.

That’s sections (1) and (2), and that is a reiteration, actually, of the 1992 injunction verbatim.

Ruth Bader Ginsburg:

–So that’s what you’re saying… you are challenging this new injunction wholesale.

The only thing that you’re saying is okay is what was repeated from the first injunction.

Mathew D. Staver:

Well, no, we would also not challenge the jamming phone that is part of this injunction.

We don’t believe that that would be a constitutional right to call somebody’s phone and jam up their phones.

Section (4) is the sound limitation.

We do challenge parts of that.

Parts of that section (4) on the sound and images limitation specifically prohibits the use of bullhorns.

We would not challenge a clearly defined volume restriction which would protect the interest of the clinic as well as sections (1) and (2), but we do challenge a prohibition on the making of any sound, or the display of any image.

In this particular injunction, someone who would be singing outside of the 36-foot zone, if that could be heard within the clinic, would violate the injunction.

Antonin Scalia:

I… it seems to me that section (4) is limited to that, as far as sound goes… other sounds within earshot of the patients inside the clinic.

I read (4) as saying you only can’t make such noise as would penetrate the clinic.

You don’t contend that’s unreasonable, do you?

Mathew D. Staver:

We wouldn’t contend that that’s unreasonable, but this particular section speaks about the time limitations that these restrictions apply.

It says it applies from 7:30 a.m. to noon, Mondays through Saturdays, during surgical procedures and recovery periods.

Mathew D. Staver:

We don’t know when surgical procedures or recovery periods are, and it’s not our interpretation, it’s respondents’ as well, because on pages 79 or so of the Joint Appendix, they specifically requested that that term be specified so that they would know when the surgery and recovery periods are.

Antonin Scalia:

So that’s a vagueness challenge to (4).

Mathew D. Staver:

That’s a vagueness challenge, Justice Scalia.

Antonin Scalia:

But you don’t contest that they can prevent people from making so much noise that it annoys patients at the clinic, inside the clinic.

Mathew D. Staver:

No.

We wouldn’t contest that, Justice Scalia.

What we would contest, though, is the limitation on sound.

If it simply said you can’t intentionally shout to disturb this clinic, or to use sound amplification devices, we would have no problem with that kind of a reasonably defined–

David H. Souter:

So you don’t have an objection–

Mathew D. Staver:

–broad restriction.

David H. Souter:

–So you don’t have an objection to the injunction against using a bullhorn.

Mathew D. Staver:

No, we would not, Justice Souter.

Mr. Chief Justice, I would like to reserve the rest of my time for rebuttal.

William H. Rehnquist:

Very well, Mr. Staver.

Mr. D’Alemberte.

Talbot D’Alemberte:

Mr. Chief Justice, may it please the Court:

This cases arises in context of an extensive and sustained campaign directed against the women’s health care clinic in Melbourne, Florida.

This clinic provided a variety of services, including abortions.

The campaign employed tactics which included the blocking of access to the clinic and the creation of rather chaotic conditions around the clinic.

Antonin Scalia:

What do you mean by the blocking of access, Mr. D’Alemberte?

Talbot D’Alemberte:

Your Honor, I think the testimony showed–

Antonin Scalia:

Did they specifically stop cars from going in?

Talbot D’Alemberte:

–Yes, sir, Your Honor, they did, by conducting a closely ordered and slow-moving parade–

Antonin Scalia:

They did not part when cars came up?

Talbot D’Alemberte:

–They… they did not immediately part.

What happened Your Honor, and you can see it on the videotape which has been lodged with the Court–

Antonin Scalia:

I watched the videotape.

It seemed to me they parted when the cars came up.

Talbot D’Alemberte:

–They did, Your Honor.

What happened… I think as you look at the videotape and listen to the testimony of Ruth Arick, which accompanies that videotape and explains it, it shows that the people would begin to approach the car as the car moved off of U.S. 1 on Dixie Way.

Talbot D’Alemberte:

As the car then moved towards the clinic, it was moving through crowds of people.

The videotape showed one of the days when there were not 400 demonstrators, as there were at other days, but they showed some number, and then what happened as they got to the clinic driveway.

People would slowly move out of the way, and you’d see, I think in the videotape, people swarming around the car, sometimes thrusting literature, attempting to thrust literature into the car.

Antonin Scalia:

Is that unlawful?

Talbot D’Alemberte:

Your Honor, it is in context–

Antonin Scalia:

–into the car?

Talbot D’Alemberte:

–It is in context of a health care facility.

It is not a violation of statutes, but it is within the discretion of a trial judge to prohibit that kind of conduct when the consequences of that conduct are shown to impair women’s health, and that’s the testimony in this case.

Antonin Scalia:

The testimony is that… well.

Talbot D’Alemberte:

Yes, sir.

The testimony is quite clearly, from Dr. Snydle and from the nurses, and from Ruth Arick, that the pulse rate, respiration rate, all the vital signs were changed, that the procedures became more dangerous to women, that sometimes people had to be delayed or turned away, they required higher sedation.

There’s a strong health care interest here which is demonstrated by the facts in this record and uncontradicted.

Ruth Bader Ginsburg:

Mr. D’Alemberte, there was a case that didn’t come to this Court but that was once very much in the news, and it was the Skokie case, where the argument was made that the people that would be subjected to this demonstration, because of their peculiar condition, would be certainly psychologically upset and even physically sick.

Do I take it from your argument that you disagree with the lower court’s disposition?

Talbot D’Alemberte:

No, Your Honor.

I think that demonstrations and other circumstances that upset the listener cannot be banned just because people are upset, but we are now dealing with a facility that’s a health care facility.

We would not tolerate this kind of conduct around a hospital.

Antonin Scalia:

Whose testimony are you relying on?

How many items of testimony?

Is it not the testimony of one doctor?

Talbot D’Alemberte:

Well–

Antonin Scalia:

One doctor at the abortion clinic, correct?

Talbot D’Alemberte:

–One… the doctor… Dr. Snydle, yes, sir.

Antonin Scalia:

Right.

Talbot D’Alemberte:

–and–

Antonin Scalia:

Right, and what opposing testimony would you have expected to be introduced?

Talbot D’Alemberte:

–Well, Your Honor, what I would expect is that Dr. Snydle might be cross-examined in a way to make that testimony unbelievable.

It’s clear from the record that the trial judge who sat on this case found Dr. Snydle’s testimony quite credible, and that testimony showed not only that people’s vital signs were affected and their health was affected but also it showed that people turned away from the clinic.

Antonin Scalia:

So no… any speech can be prohibited if it affects people’s vital signs, encourages them to be upset and may place their health at risk, is that… is that–

Talbot D’Alemberte:

Well, Your Honor, in context of people who are coming to a health care facility… and we need to think of this as a hospital.

Antonin Scalia:

–If I have a heart condition, can I carry a sign on me which says, heart condition, do not upset me–

[Laughter]

–and the court can issue an injunction that people shall not approach me unless I invite them to?

Talbot D’Alemberte:

Well, Your Honor, I don’t think that courts could do that precisely, unless there were someone… they might issue an injunction not against all the world, but if someone were coming around and stalking you, as this Court found these people, the defendants in this case were stalking the clinic personnel, yes, I think the Court can–

Antonin Scalia:

What does stalking mean?

Does it mean walking after them?

Talbot D’Alemberte:

–Following closely, I think, Your Honor.

Antonin Scalia:

Following closely and saying nasty things to them?

Talbot D’Alemberte:

Yes, sir.

Antonin Scalia:

Have you ever gone near a picket line around a strike-bound plant?

Talbot D’Alemberte:

Absolutely, Your Honor.

Antonin Scalia:

And been called a strike-breaker?

Talbot D’Alemberte:

I don’t think that’s been said to me, Your Honor, but–

Antonin Scalia:

You’ve heard other people–

[Laughter]

All of these things are… this is wide, robust, wide-open debate you’re talking about.

Talbot D’Alemberte:

–Exactly, Your Honor, but not the kind of debate–

Antonin Scalia:

You can’t be stalked by people who want to say nasty things to you.

Talbot D’Alemberte:

–Precisely, but not the kind of debate we have in a hospital zone.

The reason we pass by a hospital zone and we see that sign which says, quiet, hospital zone, is because we expect that to be a tranquil environment.

William H. Rehnquist:

How about a building of doctor’s offices?

Would the same thing apply there?

Talbot D’Alemberte:

It might, depending on the conditions, Your Honor.

If people were going there for treatment, and there were people crowding closely around in a way that was frankly intended to upset, intended to block… one of the things that I think is missing from the discussion so far, and certainly from counsel’s presentation, is the intention of these defendants.

Not of all the world, not of all prolife advocates, but of these defendants, their intention, and announced intention before the trial court, as stipulated, they intended to block the clinics.

Anthony M. Kennedy:

Well, just before you get into that, would your heart-beat test apply to an abortion counseling facility where there is just counseling of women?

There are no abortion procedures undertaken there.

That’s at some other clinic.

Talbot D’Alemberte:

It clearly would not be… I mean, again I’m not familiar with all the medical tests, but it seems to me that the value would not be quite so high, because you’d not be providing treatment, and I think all of us–

Anthony M. Kennedy:

Was there a specific finding here that it was because of the treatment–

Talbot D’Alemberte:

–No, sir–

Anthony M. Kennedy:

–that it was necessary to have this injunction?

Talbot D’Alemberte:

–No, sir.

The trial court order cited to the doctor’s testimony, and cited to the doctor’s testimony relating to the impact of these… they were not just demonstrations.

The trial judge called this area through which they had to pass a gauntlet, and if you listen to the testimony and think about 400 people being in this narrow residential street, and think about what someone’s going through when they’re going to that facility–

Anthony M. Kennedy:

You talked about a gauntlet, and you said they were swarming, they were thrusting–

Talbot D’Alemberte:

–Yes, sir.

Anthony M. Kennedy:

–I did not see this in the videotape.

I looked at the videotape, and it seemed to me to be a rather orderly demonstration, given the emotions and the philosophic differences between these people.

Talbot D’Alemberte:

Well, Your Honor, the videotape was not taken on the day in which the greatest number of people were there, but if you will look at that videotape, and while you look at it think not just about the… what we see there, but think about what’s being seen from inside that car as the patient is coming to the clinic, perhaps apprehensive, as of all of us would be, in going through any kind of medical procedure, and think about what happens when somebody approaches your car, somebody does indeed swarm around the car.

At least I see that in the videotape–

Sandra Day O’Connor:

Mr.–

Talbot D’Alemberte:

–people thrusting literature, attempting to thrust literature in the window, sometimes people calling names of people who might have some expectation of privacy coming to a medical facility.

I just don’t think it’s the kind of thing that we want to permit going into a hospital facility–

Sandra Day O’Connor:

–Mr.–

Talbot D’Alemberte:

–going into a medical facility.

Sandra Day O’Connor:

–Do you agree that the named petitioners here were not found in contempt?

Talbot D’Alemberte:

Your Honor, I do disagree with that, and if I may–

Sandra Day O’Connor:

You think they were found–

Talbot D’Alemberte:

–I’m sorry, I didn’t listen to your question closely enough.

They were not, by name, found in contempt.

What they were found is the court finding said that the respondents, and I think this is finding A, and I’m reading from the appendix–

William H. Rehnquist:

–Where in the… is it in the Joint–

Talbot D’Alemberte:

–It is in the Joint Appendix, Your Honor, and I’m sorry, I was reading from the appendix to the petition for certiorari.

William H. Rehnquist:

–Where is it in the petition for certiorari?

Talbot D’Alemberte:

It’s in… it’s point A on B-5, Your Honor.

William H. Rehnquist:

B-5?

Talbot D’Alemberte:

B-5, 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.

Sandra Day O’Connor:

Well, in any event, there’s no finding by name of these three.

Talbot D’Alemberte:

By name.

Sandra Day O’Connor:

Do we then have, in your view, just a facial challenge here?

Is that what we have to address?

Talbot D’Alemberte:

I believe that’s correct, Your Honor, indeed.

That was–

Sandra Day O’Connor:

All right, and if we have that, address, if you would, for a few minutes in your argument what standard we employ to test the validity of an injunction like this.

Talbot D’Alemberte:

–Yes.

Sandra Day O’Connor:

I’m not aware of any case where we’ve applied time, place, and manner tests to injunctions.

Maybe we should, but I don’t know that we ever have, and I’m not sure what the test is.

Some amici have said it must be a stricter test than the ordinary time, place, and manner.

How do we test out the provisions in front of us on a facial challenge?

Talbot D’Alemberte:

Your Honor, in introduction I think I can find only one opinion.

It was, I think, Justice Stevens in Hirsh v. City of Atlanta mentioned that time, place, and manner should apply to injunctions as well.

Well, I think there should be no different test, in a way.

The suggestion of amici, as I understand it, is that injunctions should be looked at more closely for some reason.

The point made earlier, I believe, by Justice Ginsburg was that an injunction, unlike a statute, can be easily amended.

It can be modified.

If we’re dealing with some kind of a special circumstance the courts are free to hear those special circumstances.

Antonin Scalia:

A statute applies to everybody, Mr. D’Alemberte.

When a legislature says nobody shall annoy people going into hospitals, a 36-foot quiet zone around a hospital, nobody, no matter what their cause, shall be in there.

It’s even-handed.

Talbot D’Alemberte:

Yes, sir.

Antonin Scalia:

An injunction applies to one group and says, this group shall not be within 36 feet of a hospital.

You don’t see any difference between those two situations?

Talbot D’Alemberte:

Yes, sir, Your Honor, and I see an important difference, and the difference, I think, favors the injunction, and the difference is that now you do not say to all the world you may not enter this zone.

You say it only to the people who have said, in open court, that they are going to block the clinic.

Please understand that that’s the undertaking of these petitioners, and indeed, of all the defendants in the trial court, that their intention was to block the clinic.

They said it in a stipulation before the court, before the 1992 injunction was entered.

These people have vowed their purpose to block access to the clinic.

They’ve said on the record that they–

Mr. D’Alemberte–

Talbot D’Alemberte:

–do not believe that criminal law ought to prevent them from blocking the clinic.

Antonin Scalia:

–They have conceded that section (2) of the injunction, which prevents them from in any manner obstructing or interfering with access to the clinic is okay.

Talbot D’Alemberte:

Well–

Antonin Scalia:

That’s not contested.

Talbot D’Alemberte:

–Well, Your Honor, on the record… and it’s not in the Joint Appendix.

For some reason it got left out… at pages 64 and 65, the stipulation was that Ed Martin, Judy Madsen, and Shirley Hobbs well understand that peacefully blocking access to facilities might constitute a trespass.

They feel a violation of such a criminal statute is justified by their belief that protection of the unborn may merit breaking the criminal trespass laws.

Now, what they’ve said, they’ve announced that the spirit of Wichita is coming to Central Florida.

They’ve announced that they intend to close down abortion clinics, and they have said that they will conduct activity, and that they do not have to follow the law, that their… it’s in the stipulation, Your Honor.

Antonin Scalia:

Section (2) is in the injunction, too.

It says, you do that, you’re going to go to jail.

Talbot D’Alemberte:

Well, Your Honor–

Antonin Scalia:

That’s all right.

They don’t object to that.

Talbot D’Alemberte:

–Section (2) they did object to up to the point where the Fifth District Court of Appeals in Florida affirmed it in December of last year.

Antonin Scalia:

They’ve gotten wiser.

They don’t object to it now.

Talbot D’Alemberte:

Well, this can be an educational process–

[Laughter]

–and yet we know–

Ruth Bader Ginsburg:

Mr. D’Alemberte–

Talbot D’Alemberte:

–that prior to the 1993 injunction the clinic was still being harassed, and indeed, the harassment was escalating, and we do know that.

Ruth Bader Ginsburg:

–I’d like to go back to this point about the difference between the statute and injunction, and call your attention specifically to the point that was made in one of the many amici briefs in this case.

This was the one on behalf of the CIO… AFL-CIO, and it was that a statute of general application has little danger of censoring one set of ideas or speakers but not others, where an injunction by its very nature homes in on a particular group of speakers, so there can be a suspicion.

You gave the example of quiet around hospitals, but that’s not what this regulation is.

It’s quiet around this particular clinic, directed to a particular group of speakers.

Talbot D’Alemberte:

It is, Your Honor, and to illustrate the point, if these particular defendants, who have a record of harassing intimidation, doing a large range of activities to block the clinic and to upset clinic personnel, to try to drive people away, if these defendants were actually to walk across the street carrying a prochoice sign, they would be prohibited.

It’s these defendants, because of what their avowed purpose has been of closing down the clinic.

They have been enjoined, and they have not been enjoined as a way of trying to eliminate speech from this area.

It’s–

William H. Rehnquist:

You say a prochoice speaker would be subject to the injunction?

Talbot D’Alemberte:

–If these defendants were to carry prochoice signs, they would be subject to an injunction.

Conversely, if a prolife person not acting in concert with these defendants were to be in that zone, they would not be prohibited, unless they were operating in concert with these defendants, and so it’s not a matter of what’s being said, it’s what these people have done.

William H. Rehnquist:

So these defendants were enjoined from making any sort of speech of any kind, whether prolife or prochoice?

Talbot D’Alemberte:

In the 36-foot zone, because they had used that zone, the court found, to block access, and those findings were–

Antonin Scalia:

And you consider that content-neutral, just as a… it’s… an injunction against a labor union is content-neutral because it also prevents the labor union from saying, don’t join the union, right, so it’s not–

[Laughter]

Talbot D’Alemberte:

–Yes, sir.

Antonin Scalia:

Well, I–

–Mr. D’Alemberte–

Talbot D’Alemberte:

It’s simply, they’re not allowed in the area, Your Honor, and the reason they’re not allowed in the area, because they’ve avowed their purpose to close down the clinic, and they took activity to do it.

Antonin Scalia:

–With respect, Mr. D’Alemberte, de facto, any injunction against a labor union or against this group is content-directed, de facto it is.

You may say in theory the union can come out for the employer, but that’s not–

Talbot D’Alemberte:

But Your Honor… Your Honor–

Antonin Scalia:

–what it’s all about.

You know what kind of speech you’re stopping.

Talbot D’Alemberte:

–Except, Your Honor, there’s a difference here.

The difference here is that these rescue organizations do not represent all of the prolife movement.

They represent a small fraction of it, and they represent a fraction of it that’s dedicated to shutting down the clinics, and one that avowedly says they will violate the law to do it.

Now, if someone shows up who is not associated with them, but is a prolife speaker, they’re not subject to the injunction, and so it’s not their speech, but it’s their conduct–

Antonin Scalia:

Well, they take their chance–

Talbot D’Alemberte:

–and it’s conduct which they said–

Antonin Scalia:

–They take their chance at being considered in concert.

I mean, if you walk up… you know, a policeman say, he looks to me like he’s in… have ever heard of chilling effect?

Talbot D’Alemberte:

–Your Honor, I concede that there’s a possibility of some chilling effect.

You have to make the judgments.

But let me make certain that the Court understands that the judgments being represented earlier, being made by the court… that is, the trial judge… I hope that full transcript is read in context of the fact that these people who were charged with violation of the injunction were at a preliminary hearing.

They were not under oath, not under cross-examination, and a number of their representations of the facts are now being incorporated into this argument.

That’s not really what the trial judge intended by this order and I think it’s clear.

David H. Souter:

Mr. D’Alemberte, may I ask you just some factual background that would relate to the 300-foot zone around the house?

David H. Souter:

If we were to follow the suggestion of the AFL-CIO and apply something like the Carroll standard, at the very least we would require that before there was a restriction, an injunction restricting speech, there would have to have been demonstration that an injunction relating to action only had been inadequate.

Was there any prior injunction with respect to activities at the residences of the clients?

Talbot D’Alemberte:

There was not, Your Honor.

David H. Souter:

Is there anything in the record about what happened at the residences, other than the incident about the individuals going to the nurse’s house when the children were at home?

Talbot D’Alemberte:

Yes, there was, Your Honor.

A portion of the videotape shows a demonstration that I believe one of the clinic personnel and was commented on by Ruth Arick, a witness, and I believe that there was also a nurse… well, Nurse Pam Doyle.

There were several instances of that.

Antonin Scalia:

Was there any indication that any conduct at the residences which were subject to this 300-foot injunction was unlawful?

Was there any allegation of an unlawful act committed?

Talbot D’Alemberte:

Of… in the sense of violating the statute, no, Your Honor.

Antonin Scalia:

Any statute, or any injunction.

Talbot D’Alemberte:

No, Your Honor.

Antonin Scalia:

So there’d been nothing except lawful but annoying actions?

Talbot D’Alemberte:

Not in the record.

There… one of these may have been in a municipality where there was an antiresidential picketing statute… ordinance, but I don’t think it’s in the record, Your Honor.

Let me make the final point, and that is that the protesters now, after this injunction, may stand with their toes against the pavement, and they can be as close to the targets of their speech… indeed, the targets of the speech are the people coming into the clinic, as the width of that road, and since all people, according to this record, come to this clinic by car, they can be within a few feet of anyone who is attempting to come to the car.

They can hold up their signs, they can voice their slogans, and they can shout so long as it’s not so loud that people can be heard inside the clinic.

They can stand just as close today as they could prior to this injunctive… injunction of 1993.

They cannot stand on the north side of this narrow residential street, but they can stand on the south side.

Thank you.

William H. Rehnquist:

Thank you, Mr. D’Alemberte.

General Days, we’ll hear from you.

Drew S. Days, III:

Mr. Chief Justice and may it please the Court:

In contrast to a statute or ordinance, a court order properly addresses the particular conduct that is before the Court and is properly confined to addressing that conduct.

Consequently, we think the question before the Court presented here is whether the 1993 amended permanent injunction properly addressed the particular conduct before that court, and properly confined itself to addressing that conduct within constitutional limits.

This is a situation where Judge McGregor found that the 1992 injunction was inadequate to protect the interests of persons associated with the clinic, and that was not… that was an injunction that was not challenged.

I think the record also shows some reluctance on the part of the judge to modify that injunction, but once he did, it was because he had heard 3 days of evidence in that regard.

The constitutional limits with respect to injunctions, we would submit, are those imposed by this Court with respect to reasonable time, place, and manner.

William H. Rehnquist:

Do you have a case in which a challenged injunction was judged by the time, place, and manner standard?

Drew S. Days, III:

We do not have any additional case to the one that Mr. D’Alemberte cited, the Hirsh v. City of Atlanta.

William H. Rehnquist:

Yes, which wasn’t a case, really, but was–

Drew S. Days, III:

Well, that’s correct.

William H. Rehnquist:

–the opinions of separate justices.

Drew S. Days, III:

Well, Your Honor, I suppose that’s one of the reasons why we’re here–

[Laughter]

–because we think that’s what the Court should be doing in this respect.

David H. Souter:

Specifically, why not the Carroll standard?

Drew S. Days, III:

Why not the Carroll standard?

Because I think that first of all it depends on what part of the 1993 injunction you’re addressing.

You were talking about the residential picketing provision.

But I think to pick up on something that my colleague said, we’re talking about not just a medical facility, we’re talking about conditions where interference with the ability of women to get to the clinic and get the services that the clinic provides would cause them irreparable harm.

This is not a provision that would apply across the board to medical facilities, although I think it is true that medical facilities are not factories, mines, or assembly plants, as one of the members of the court said, but no, I think a court looking at the situation has the power to enjoin certain behavior that poses a threat to people in violation of rights that are protected under State or Federal law, and that’s what the judge did in this case.

Anthony M. Kennedy:

Do you think there are any special dangers that attend the use of injunctions to prohibit this conduct that do not attend the enactment of a criminal statute?

Drew S. Days, III:

I wouldn’t… Justice Kennedy, I wouldn’t call them special dangers.

I think that it’s simply that the mode of analysis, the evidence that the court would look at with respect to the constitutionality of a statute that imposed time, place, or manner restrictions would be different from the type of evidence that the court would look at in dealing with an injunction.

William H. Rehnquist:

The punishment would be different, too, wouldn’t it?

Punishment for contempt can be a good deal more summary than a criminal indictment and trial.

Drew S. Days, III:

That is true, but I think it’s also the case that an injunction has more flexibility.

That is, the court can look at the situation and make modifications to the extent that they overreach–

Anthony M. Kennedy:

But isn’t that just the point?

Drew S. Days, III:

–with respect to the particular problem.

Anthony M. Kennedy:

It has flexibility because it can be applied to some parties and not to others, and isn’t that… I use the word “danger”… a significant concern where free speech is at issue?

Drew S. Days, III:

It’s certainly a matter of concern, but I think that unless the Court is going to prohibit courts from issuing injunctions under circumstances like these, there has to be some ability of the courts to address problems like those presented in this particular case.

Anthony M. Kennedy:

Yes, there has to be an ability, but doesn’t that ability have to be accompanied by a special solicitude for free speech rights because certain persons are being singled out, which is not the case of a statute, and I don’t see anything in your argument where you’ve acknowledged that.

Drew S. Days, III:

Well, first of all, Justice Kennedy, I think it is possible for even statutes to deal with particular problems that may fall more heavily on one group than another, but once again, what the court would do is try to determine whether the legislative body that enacted the statute or ordinance was responding to an actual evil.

That would be the analysis.

But it seems to me that applying the Fair Education Association time, place, or manner approach is perfectly suitable and sufficient for situations of this kind.

I don’t agree with the AFL-CIO that there has to be something you might call a time, place, manner plus test.

I simply think that, given this type of situation, the court can look at the evidence.

Ruth Bader Ginsburg:

Mr. Days, we’re not dealing with an abstract question now.

Ruth Bader Ginsburg:

We have… don’t we have a long history in this country of enjoining labor unions, of enjoining all kinds of political protesters, students in the sixties, civil rights marchers?

Doesn’t that caution particular care in dealing with injunctions, rather than a lighter brand of review than one we would apply to a statute?

Drew S. Days, III:

I’m not suggesting a lighter brand.

I’m simply suggesting that the same approach that’s used with respect to statutes ought to be adopted by this Court, but the evidence that is considered is different, but I don’t think that is any reason to think that there has to be a heavier test under these circumstances.

What this particular case establishes is that the conduct is the purpose… is the objective of the injunction.

It’s not directed at content of the petitioner’s speech, but rather to conduct that the trial court found–

Antonin Scalia:

Excuse me.

Drew S. Days, III:

–Yes.

Antonin Scalia:

The… what should I say?

What prompts the injunction is conduct, but what the injunction is directed to is not only conduct but attempted speech, and I assume that, you know, in some cases that can be justified if there’s been a history of violence on the picket line, you can simply say okay, we’ve given you guys a chance.

You had a prior injunction, you ignored it.

No picket line.

You just can’t be trusted.

But you know, it isn’t the conduct that’s being enjoined any more, it’s speech that’s being enjoined because of prior conduct.

Now, do you acknowledge that that’s what’s involved here?

Drew S. Days, III:

Well, certainly the restriction–

Antonin Scalia:

Or do you think the speech itself is unlawful?

Drew S. Days, III:

–No, the speech of course is not unlawful.

That’s not our assertion.

Of course, controlling the conduct, enjoining the conduct will have some impact on speech, but it is in response to the fact that people in the position, in this case close to the clinic, intimidated, harassed, interfered with people who were seeking the services of the clinic, or were providing those services, and that was sufficient in the view of the court to justify the injunction.

Antonin Scalia:

What do you mean by intimidated or harassed?

Do you mean, seeking to give them leaflets?

Drew S. Days, III:

No, I’m not talking about that.

Antonin Scalia:

Calling them names?

Drew S. Days, III:

I’m not talking about that.

I think, Justice Scalia, this record shows, for example, that there were ladders placed up against the fences of the clinic, signs were put down inside these privacy fences so that the patients could see it in the areas where surgery was being conducted, or they were recovering.

Some of those signs had the names of the partners of women who were going through those surgical procedures.

Those were not simply informational efforts on the part of the protesters.

Those were designed to interfere with the processes of the clinic.

Antonin Scalia:

Well, just as calling names is designed to hurt.

Antonin Scalia:

Calling President Nixon, to speak of recent events, a murderer as happened in demonstrations when the Vietnam War was in progress is designed to hurt.

Does that make it unlawful?

Drew S. Days, III:

It does not make it unlawful.

I–

May I ask–

Drew S. Days, III:

–Justice Ginsburg raised the Skokie issue… excuse me.

John Paul Stevens:

–are you saying that it would be constitutionally protected conduct to follow someone around day after day after day, calling him a murderer and a baby killer and so forth, just… everywhere he went, a person could follow him and keep repeating the same message over and over?

Would that be constitutionally protected?

Drew S. Days, III:

I think, given those facts, that might approach to the point of being an assault, creating a fear for that person of some type of physical attack.

Under those circumstances, I think courts could intervene.

Indeed, under Florida law, there is a stalking statute which is simply not following people around, it’s putting them in fear of some other harm to their person.

David H. Souter:

But are you in effect saying that there does have to be at least a predicate threat of illegal conduct?

Drew S. Days, III:

I’m not saying that.

I think that there, in this case was illegal–

David H. Souter:

So… well, the only reason I ask, in your answer to Justice Stevens, when you said that that might raise the… might rise to the level of an assault or a threat of harm, I thought you were saying those would in fact be criminal offenses and they would be the predicate for the injunction in that case.

Drew S. Days, III:

–May I finish?

David H. Souter:

Yes.

That is not what you meant?

You may answer the question.

Drew S. Days, III:

That there could be a predicate for criminal action.

David H. Souter:

But that they are not a necessary predicate.

Drew S. Days, III:

That’s correct.

William H. Rehnquist:

Thank you, General Days.

Drew S. Days, III:

Thank you.

William H. Rehnquist:

Mr. Staver, you have 3 minutes remaining.

Mathew D. Staver:

An injunction, de facto, is content-based.

The Carroll standard is the applicable standard.

To apply the time, place, and manner standard would result in the overruling of more than 60 years of this Court’s precedent, beginning in 1931 with Near.

The standard applicable to this case is that an injunction touching on free speech is a prior restraint which carries a heavy presumption against constitutional validity and which must be precisely tailored to the exact needs of the case.

That standard is totally inapposite to a time, place, and manner standard precisely because it focuses on someone’s speech, in this case petitioner’s prior to her or them being able to speak their speech.

Mathew D. Staver:

It criminalizes their side of the debate.

This particular case is certainly coming to this Court with a heavy presumption against constitutional validity.

It is a touchstone of First Amendment regulation to be very precise, not overkill.

This injunction is overkill.

As in Claiborne Hardware, that injunction was overkill.

As in Near, that injunction was a prior restraint.

This injunction, instead of using a surgeon’s scalpel, cuts with a butcher’s knife.

This injunction restrains Judy Madsen’s speech from being able to distribute a piece of literature which is not offensive or distressing to anyone forever, within the 36-foot zone.

Judy Madsen can never lawfully be present on a public sidewalk, public highway, or right-of-way, period, under this injunction.

Judy Madsen must censor her speech when she goes within the 36-foot zone.

Despite page 375 of the Joint Appendix, where respondent specifically said, Judy Madsen had never been a target of the contempt proceedings, yet she’s still a part of this injunction.

The clinic and the court below impermissibly lumped her protected speech with some other unknown–

John Paul Stevens:

Are you arguing that if she had been the president of Operation Rescue and said, I believe in everything they’re doing and I want to help them as much as I can, there’d be a different result?

Mathew D. Staver:

–If she were, Justice Stevens, condoning and orchestrating this?

John Paul Stevens:

Yes.

Mathew D. Staver:

She was not a target of the contempt in any respect.

John Paul Stevens:

But I’m asking you, if she were, if she said, I agree with everything they do, I want to help them as much as I can, would she then lose her… the rights you’re describing?

Mathew D. Staver:

No, Justice Stevens.

John Paul Stevens:

Then I don’t really understand what difference it makes if you’ve got Judy Madsen rather than the president of the organization.

Mathew D. Staver:

I believe on page 920 of this Court’s decision in Claiborne Hardware, it says that to restrain those illegal activities for individuals, not simply because they’re members of a group.

Judy Madsen did no illegal activity.

Thank you, Mr. Chief Justice.

William H. Rehnquist:

Thank you, Mr. Staver, the case is submitted.