Schenck v. Pro-Choice Network of Western New York

RESPONDENT: Pro-Choice Network of Western New York
LOCATION: Western District Court of New York

DOCKET NO.: 95-1065
DECIDED BY: Rehnquist Court (1986-2005)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 519 US 357 (1997)
ARGUED: Oct 16, 1996
DECIDED: Feb 19, 1997

Jay Sekulow - for petitioners
Jay Alan Sekulow - Argued the cause for the petitioners
Lucinda M. Finley - Argued the cause for the respondents
Walter E. Dellinger, III - On behalf of the United States, as amicus curiae supporting the respondents

Facts of the case

This action was filed by the Pro-Choice Network of Western New York (PCN), on behalf of health care providers, to enjoin Schenck and others from continuously staging blockades and other disruptive illegal activities in front of abortion clinics. After its restraining order proved ineffective, a District Court issued a preliminary injunction creating "fixed buffer zones" which prohibited demonstrations within fifteen feet of entrances to abortion clinics, parking lots, or driveways. The court also created "floating buffer zones" prohibiting demonstrators from coming within fifteen feet of people or vehicles seeking access to the clinics. Following the Appellate Court's decision to uphold the District Court's ruling that the "buffer zones" were constitutional, the Supreme Court granted Schenck certiorari.


Did either or both types of "buffer zones" violate Schenck's First Amendment right to freedom of speech.

Media for Schenck v. Pro-Choice Network of Western New York

Audio Transcription for Oral Argument - October 16, 1996 in Schenck v. Pro-Choice Network of Western New York

William H. Rehnquist:

We'll hear argument first this morning in Number 95-1065, Paul Schenck and Dwight Saunders v. Pro-Choice Network of Western New York.

Mr. Sekulow.

Jay Alan Sekulow:

Mr. Chief Justice and may it please the Court:

Whatever one thinks of abortion, this Court in both Bray and Casey has recognized that there are common and respectable reasons for opposing it.

We are not here challenging the prohibitions of the injunction which prohibit blockades, trespass, or obstruction of access.

In the Western District of New York, the opposition to abortion with which we are concerned involves demonstrations such as picketing, leafleting, the holding of a sign, or a prayer vigil.

Under the one-size-fits-all injunction issued by the district court, the petitioners are prohibited from engaging in these form of demonstrations inside overlapping speech-free zones that float without geographic limitation.

The injunction also allows, to a very limited extent, a form of demonstration that--

William H. Rehnquist:

Mr. Sekulow--

Jay Alan Sekulow:

--Yes, Justice--

William H. Rehnquist:

--I think we can hear you quite well if you were to lower your voice a little.

Jay Alan Sekulow:

--Yes, Mr. Chief Justice.

The other provision of the injunction that we are challenging involves a sidewalk counseling allowance.

It allows sidewalk counseling.

However, that sidewalk counseling can be terminated based on facial gestures.

In other words, what we call and the lower courts recognized as a cease-and-desist provision.

This provision of the injunction is implemented on verbal or nonverbal indications.

In fact, the injunction itself prohibits and allows for... prohibits any person being approached.

It's not just limited to women seeking the services of an abortion facility.

On page 183 of the petition appendix--

Antonin Scalia:

You'd be content if we modified that so only verbal indications would suffice?

Jay Alan Sekulow:

--No, Justice Scalia, we would not.

That would be certainly a step in the right direction.

The ACLU in their brief has acknowledged that--

Antonin Scalia:

And that's not really what you're after here, is it?

Jay Alan Sekulow:

--That is not.

We think that the no consent, and that's what this is, without consent, the speech stops, and that could be before a word is even uttered, and we think that provision of the injunction, like the no approach zone in Madsen, because it is dependent upon consent of the people speaking and the people that are listening, therefore it is unconstitutional, because without a doubt it burdens more speech than necessary to serve any of these purposes.

Stephen G. Breyer:

How does it stop?

I mean, we're 15 feet apart now.

Jay Alan Sekulow: