Madsen v. Women's Health Center, Inc. Page 2

Madsen v. Women's Health Center, Inc. general information

Media for Madsen v. Women's Health Center, Inc.

Audio Transcription for Oral Argument - April 28, 1994 in Madsen v. Women's Health Center, Inc.

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.