On writ of certiorari to the U.S. Court of Appeals for the Second Circuit
No. 95-1065
February 19, 1997
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
The question presented is whether an injunction that places restrictions on demonstrations outside abortion clinics violates the First Amendment. We uphold the provisions imposing "fixed bubble" or "fixed buffer zone" limitations, as hereinafter described, but hold that the provisions imposing "floating bubble" or "floating buffer zone" limitations violate the First Amendment.
Respondents include three doctors and four medical clinics (two of which are part of larger hospital complexes) in and around Rochester and Buffalo in upstate New York. These health care providers perform abortions and other medical services at their facilities. The eighth respondent is Pro-Choice Network of Western New York, a not-for-profit corporation dedicated to maintaining access to family planning and abortion services.
On September 24, 1990, respondents filed a complaint in the District Court for the Western District of New York against fifty individuals and three organizations -- Operation Rescue, Project Rescue Western New York, and Project Life of Rochester. The complaint alleged that defendants had consistently engaged in illegal blockades and other illegal conduct at facilities in the Western District of New York where abortions were performed. (For convenience, we refer to these facilities as "clinics" throughout.) The complaint alleged one federal and six state causes of action: conspiracy to deprive women seeking abortions or other family planning services of the equal protection of the laws, in violation of Rev. Stat. s. 1980, 42 U.S.C. 1985(3); discrimination against and harassment of women seeking abortions and other family planning services, in violation of N. Y. Civ. Rights Law s. 40-c (McKinney 1992) and N.Y. Exec. Law s. 296 (McKinney 1993); trespass; tortious interference with business; tortious harassment; false imprisonment; and intentional infliction of emo-tional harm. The complaint alleged that a large blockade was planned for September 28, and requested that the court issue a temporary restraining order (TRO) to stop it. The complaint also sought a permanent injunction and damages.
Before the complaint was filed, the clinics were subjected to numerous large-scale blockades in which protesters would march, stand, kneel, sit, or lie in parking lot driveways and in doorways. This conduct blocked or hindered cars from entering clinic parking lots, and patients, doctors, nurses, and other clinic employees from entering the clinics.
In addition to these large-scale blockades, smaller groups of protesters consistently attempted to stop or disrupt clinic operations. Protesters trespassed onto clinic parking lots and even entered the clinics themselves. Those trespassers who remained outside the clinics crowded around cars or milled around doorways and driveway entrances in an effort to block or hinder access to the clinics. Protesters sometimes threw themselves on top of the hoods of cars or crowded around cars as they attempted to turn into parking lot driveways. Other protesters on clinic property handed literature and talked to people entering the clinics -- especially those women they believed were arriving to have abortions -- in an effort to persuade them that abortion was immoral. Sometimes protesters used more aggressive techniques, with varying levels of belligerence: getting very close to women entering the clinics and shouting in their faces; surrounding, crowding, and yelling at women entering the clinics; or jostling, grabbing, pushing, and shoving women as they attempted to enter the clinics. Male and female clinic volunteers who attempted to escort patients past protesters into the clinics were sometimes elbowed, grabbed, or spit on. Sometimes the escorts pushed back. Some protesters remained in the doorways after the patients had entered the clinics, blocking others from entering and exiting.
On the sidewalks outside the clinics, protesters called "sidewalk counselors" used similar methods. Counselors would walk alongside targeted women headed toward the clinics, handing them literature and talking to them in an attempt to persuade them not to get an abortion. Unfortunately, if the women continued toward the clinics and did not respond positively to the counselors, such peaceful efforts at persuasion often devolved into þin your faceþ yelling, and sometimes into pushing, shoving, and grabbing. Men who accompanied women attempting to enter the clinics often became upset by the aggressive sidewalk counseling and sometimes had to be restrained (not always successfully) from fighting with the counselors.
The District Court found that the local police had been "unable to respond effectively" to the protests, for a number of reasons: the protests were constant, overwhelming police resources; when the police arrived, the protesters simply dispersed and returned later; prosecution of arrested protesters was difficult because patients were often reluctant to cooperate for fear of making their identity public; and those who were convicted were not deterred from returning to engage in unlawful conduct. In addition, the court found that defendants harassed the police officers verbally and by mail, including the deputy police chief. Also harassed were people who testified against the protesters and "those who invoke[d] legal process against" the protesters. This, testified the deputy police chief, "made it more difficult for him to do his job." Pro-Choice Network of Western N. Y. v. Project Rescue Western N.Y., 799 F.Supp. 1417, 1426-1427 (WD NY 1992). See also id., at 1431 ("[T]here has been substantial uncontradicted evidence that defendants' activities are intended, and do in fact, prevent and hinder local police from protecting the right of women to choose to have an abortion").
On September 27, 1990, three days after respondents filed their complaint and one day before the scheduled large-scale blockade, the District Court issued a TRO. The parties stipulated that the TRO might remain in force until decision on respondents' motion for a preliminary injunction. In pertinent part, the TRO enjoined defendants from physically blockading the clinics, physically abusing or tortiously harassing anyone entering or leaving the clinics, and þdemonstrating within 15 feet of any personþ
entering or leaving the clinics. As an exception to this 15-foot þbuffer zoneþ around people, the TRO allowed two sidewalk counselors to have "a conversation of a nonthreatening nature" with individuals entering or leaving the clinic. If the individuals indicated that they did not want the counseling, however, the counselors had to 'cease and desist" from counseling. [FN1]
Alleging that Project Rescue and five individual defendants (including petitioner Schenck) breached the TRO on five separate occasions from late October 1990 through December 1990, respondents sought four contempt citations. A fifth contempt citation for a 1991 incident was sought against petitioner Schenck and another individual defendant. Throughout 1991 and into 1992, the District Court held 27 days of hearings in these contempt proceedings, and issued opinions concluding that five of the six incidents
justified a finding of civil contempt. [FN2]
"1. Enjoined and restrained in any manner or by any means from:
"(a) trespassing on, sitting in, blocking, impeding, or obstructing access to, ingress into or egress from any facility, including, but not limited to, the parking lots, parking lot entrances, driveways, and driveway entrances, at which abortions are performed in the Western District of New York;
"(b) demonstrating within fifteen feet from either side or edge of, or in front of, doorways or doorway entrances, parking lot entrances, driveways and driveway entrances of such facilities, or within fifteen feet of any person or vehicle seeking access to or leaving such facilities, except that the form of demonstrating known as sidewalk counseling by no more than two persons as specified in paragraph (c) shall be allowed;
"(c) physically abusing, grabbing, touching, pushing, shoving, or crowding persons entering or leaving, working at or using any services at any facility at which abortions are performed; provided, however, that sidewalk counseling consisting of a conversation of a non-threatening
nature by not more than two people with each person or group of persons they are seeking to counsel shall not be prohibited. Also provided that no one is required to accept or listen to sidewalk counseling, and that if anyone or any group of persons who is sought to be counseled wants to not have counseling, wants to leave, or walk away, they shall have the absolute right to do that, and in such event all persons seeking to counsel that person or group of persons shall cease and desist from such counseling, and shall thereafter be governed by the provisions of paragraph (b) pertaining to not demonstrating within fifteen feet of persons seeking access to or
leaving a facility. In addition, it is further provided that this right to sidewalk counseling as defined herein shall not limit the right of the Police Department to maintain public order or such reasonably necessary rules and regulations as they decide are necessary at each particular
demonstration site;
"(d) using any mechanical loudspeaker or sound amplification device or making any excessively loud sound which injures, disturbs, or endangers the health or safety of any patient or employee of a health care facility at which abortions are performed, nor shall any person make such sounds
which interfere with the rights of anyone not in violation of this Order;
"(e) attempting, or inducing, directing, aiding, or abetting in any manner, others to take any of the actions described in paragraphs (a) through (d) above." 799 F. Supp., at 1440-1441.
After the District Court issued its opinion, we held in Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 269 (1993), that "women seeking an abortion" were not a protected class under 42 U.S.C. 1985(3). In light of Bray, the District Court dismissed respondents' section 1985(3) claim, with leave to file an amended section 1985(3) cause of action. Pro-Choice Network of Western N.Y. v. Project Rescue Western N.Y., 828 F.Supp. 1018, 1025 (WD NY 1993). The court then decided to exercise pendent jurisdiction over respondents' remaining causes of action (the six state claims), regardless of the ultimate disposition of the section 1985(3) claim. In so deciding, the court noted that "the preliminary injunction is grounded not only on the section 1985(3) claim, but two state-law claims [the N.Y. Civ. Rights Law section 40-c claim and the trespass claim] as well." Id., at 1026, n. 4. The court explained that judicial economy, convenience, and fairness all suggested that it keep the case, since it had expanded substantial resources on the case and its involvement in the case was ongoing. Id., at 1028-1029 (citing the contempt motions filed by respondents in 1990 and 1991, criminal contempt charges brought against six individuals for protests in 1992, and civil and criminal contempt motions filed in 1993).
Petitioners, two individual defendants, appealed to the Court of Appeals for the Second Circuit. While the case was on appeal, we decided Madsen v. Women's Health Center, Inc., 512 U.S. 753 (1994), a case which also involved the effect of an injunction on the expressive activities of antiabortion protesters. (We discuss Madsen in greater depth in Part II-A, infra.) We held that "our standard time, place, and manner analysis is not sufficiently rigorous" when it comes to evaluating content-neutral injunctions that restrict speech. The test instead, we held, is "whether the challenged provisions of the injunction burden no more speech than necessary to serve a significant government interest." Id., at 765.
Applying Madsen, a panel of the Court of Appeals reversed the District Court in a split decision. 67 F.3d 359 (1994). The Court of Appeals then heard the case en banc, and affirmed the District Court by a divided vote. 67 F.3d 377 (1995). Each of two opinions garnered a majority of the court. Judge Oakes' lead opinion, joined by eight other judges, affirmed for reasons that closely track the reasoning of the District Court. Id., at 388-392. A concurring opinion by Judge Winter, joined by nine other judges, affirmed primarily on the ground that the protesters' expressive activities were not protected by the First Amendment at all, and because the District Court's injunction was a "reasonable response" to the protesters' conduct. Id., at 396, 398. We granted certiorari. 516 U. S. ___ (1996).
At first, defendants complied with the TRO, holding a peaceful demonstration rather than the scheduled blockade. Subsequently, they stipulated that þphysical blockadesþ could be enjoined, and they conducted no such blockades between the issuance of the TRO and the issuance of the preliminary injunction 17 months later. Defendants, however, continued to engage in protests that the District Court labeled "constructive blockades," as well as sidewalk counseling. Constructive blockades consisted of "demonstrating and picketing around the entrances of the clinics, and ... harassing patients and staff entering and leaving the clinics." Id., at 1424. This included many of the protest elements described above, including attempts to intimidate or impede cars from entering the parking lots, congregating in driveway entrances, and crowding around, yelling at, grabbing, pushing, and shoving people entering and leaving the clinics. The purpose of constructive blockades was the same as physical blockades: "to prevent or dissuade patients from entering the clinic." Ibid. Clinic volunteer escorts testified that the protests were much quieter, calmer, and smaller during the first month after the TRO issued, but that the protests returned to their prior intensity thereafter, including aggressive sidewalk counseling with occasional shoving and elbowing, trespassing into clinic buildings to continue counseling of patients, and blocking of doorways and driveways.
In its opinion accompanying the preliminary injunction, the District Court stated the relevant inquiry as whether respondents had established (i) that they would be irreparably harmed if the injunction was not granted and (ii) that they were likely to succeed on the merits. The court held that the irreparable harm requirement was met, because "those women denied unimpeded access to [the clinics] cannot be compensated merely by money damages. Injunctive relief alone can assure women unimpeded access to [the] clinics." Id., at 1428. The court also held that respondents were likely to succeed on at least three of their claims. First, relying on New York State National Organization for Women v. Terry, 886 F.2d 1339 (CA2 1989), cert. denied, 495 U.S. 947 (1990), the court held that women seeking abortions constituted a protected class under 42 U.S.C. 1985(3), and that their constitutional right to travel between States and to choose to have an abortion was likely infringed by defendants, in violation of section 1985(3). Second, the court held that the same conduct that infringed this class of women's constitutional rights under section 1985(3) "clearly violates N. Y. Civ. Rights Law s. 40-c." [FN4] 799 F.Supp., at 1431. Finally, the court held that in light of the "overwhelming evidence that defendants have repeatedly trespassed upon [the clinics'] property in the past and may continue to trespass in the future," respondents had shown a likelihood of success on their trespass claim. Id., at 1432. Having already found likelihood of success on these claims, the court chose not to address respondents' other four state-law claims. Id., at 1432, n. 11.
In analyzing defendants' assertion that the injunction violated their First Amendment right to free speech, the court applied our standard "time, place, and manner analysis," asking whether the speech restrictions in the injunction (i) were content neutral, (ii) were narrowly tailored to serve a significant government interest, and (iii) left open ample alternative channels for communication of the information. Id., at 1432 (citing Frisby v. Schultz, 487 U.S. 474, 481 (1988)). The court held that the injunction was content neutral because "it merely restricts the volume, location, timing and harassing and intimidating nature of defendants' expressive speech." 799 F.Supp., at 1433. The court held that the injunction served three significant governmental interests -- public safety, ensuring that abortions are performed safely, and ensuring that a woman's constitutional rights to travel interstate and to choose to have an abortion were not sacrificed in the interest of defendants' First Amendment rights. [FN5]
As to narrow tailoring, the court explained that the 15-foot buffer zones "around entrances and ... around people and vehicles seeking access ... are necessary to ensure that people and vehicles seeking access to the clinics will not be impeded, and will be able to determine readily where the entrances are located." Id., at 1434. The court added that the buffer zones would also provide the benefit of "prevent[ing] defendants from crowding patients and invading their personal space." Ibid. The court explained the "cease and desist" provision -- allowing two sidewalk counselors inside the buffer zones but requiring them to "cease and desist" their counseling if the counselee asked to be left alone -- as "an exception" to the buffer zones and as "an attempt to accommodate fully defendants' First Amendment rights." Ibid. The court held that this provision was "necessary in order to protect the right of people approaching and entering the facilities to be left alone." Id., at 1435. Finally, the court held that the injunction left open ample alternative channels for communication, because defendants could still "picket, carry signs, pray, sing or chant in full view of people going into the clinics." Id., at 1437.
Petitioners challenge three aspects of the injunction: (i) the floating 15-foot buffer zones around people and vehicles seeking access to the clinics; (ii) the fixed 15-foot buffer zones around the clinic doorways, driveways, and parking lot entrances; and (iii) the "cease and desist" provision that forces sidewalk counselors who are inside the buffer zones to retreat 15 feet from the person being counseled once the person indicates a desire not to be counseled. Because Madsen bears many similarities to this case and because many of the parties' arguments depend on the application of Madsen here, we review our determination in that case.
A Florida state court had issued a permanent injunction enjoining specified organizations and individuals from blocking or interfering with clinic access and from physically abusing people entering or leaving the clinic. Six months after the injunction issued, the court found that protesters still impeded access by demonstrating on the street and in the driveways, and that sidewalk counselors approached entering vehicles in an effort to hand literature to the occupants. In the face of this evidence, the court issued a broader injunction that enjoined the defendant protesters from "`physically abusing, grabbing, intimidating, harassing, touching, pushing, shoving, crowding or assaulting'" anyone entering or leaving the clinic; from "`congregating, picketing, patrolling, demonstrating or entering that portion of public right-of-way or private property within [36] feet of the property line of the Clinic'"; from approaching anyone "`seeking the services of the Clinic'" who is within 300 feet of the clinic, unless the person "`indicates a desire to communicate'"; and from making any noise or displaying any image which could be heard or seen inside the clinic. 512 U.S., at 759-760.
After determining that the injunction was not a prior restraint and was content neutral, id., at 762-764, we held that the proper test for evaluating content-neutral injunctions under the First Amendment was "whether the challenged provisions of the injunction burden no more speech than necessary to serve a significant government interest," id., at 765. The Florida Supreme Court had concluded that the injunction was based on a number of governmental interests: protecting a woman's freedom to seek pregnancy-related services, ensuring public safety and order, promoting the free flow of traffic on streets and sidewalks, protecting property rights, and protecting the medical privacy of patients whose psychological and physical well-being were threatened as they were held "captive" by medical circumstance. Id., at 767-768. We held that the combination of these interests was "quite sufficient to justify an appropriately tailored injunction" to protect unimpeded access to the clinic by way of public streets and sidewalks. Id., at 768.
We held that some of the injunction's provisions burdened more speech than necessary to serve these interests, and that others did not. We upheld the 36-foot buffer zone as applied to the street, sidewalks, and driveways "as a way of ensuring access to the clinic." We explained that the trial court had few other options to protect access to the clinic: allowing protesters to remain on the sidewalks and in the clinic driveway was not a valid option because of their past conduct, and allowing them to stand in the street was obviously impractical. In addition, we stated that "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." Id., at 769þ770 (citing Milk Wagon Drivers v. Meadowmoor Dairies, Inc., 312 U.S. 287, 294 (1941))