Ex Parte Tucci

GONZALEZ, Justice,

concurring.

In Davenport v. Garcia, 834 S.W.2d 4, 12-13 (Tex.1992), this Court stated that “we can benefit from the insights of well-reasoned and developed federal jurisprudence” in analyzing our state constitution. However, in today’s opinion, the plurality ignores years of federal and state jurisprudence without offering any reasoning for *59 its departure from the well-known “time, place, and manner” standard and adopts an overly restrictive test for analyzing restrictions on speech. I would instead utilize a modified version of the time, place, and manner test to hold that the creation of the one-hundred (100) foot free speech zone around the entrances, exits, and parking lots of various Houston abortion clinics during the Republican National Convention was unconstitutional. Therefore, although I concur in the judgment of the Court, I do not join the plurality opinion.

I.

I commence my analysis by examining the traditional and fundamental dichotomy between direct and indirect speech regulation that has been utilized by the courts of this state and the courts of this nation for generations. 1 I believe that such an analysis is necessary to remain faithful to Davenport and its directive that this Court should “borrow from well-reasoned and persuasive federal procedural and substantive precedent when this is deemed helpful-” Davenport, 834 S.W.2d at 20 . In order to determine whether the course of our sister states and the federal judiciary is helpful, we must at some point examine the rationale developed by these other courts. This Court should not develop constitutional law in a complete vacuum, but instead we should examine the development of the law in the other states and the federal system and benefit from their experiences. The federal courts, and especially the United States Supreme Court, have developed a two-track model for examining speech regulations that has been followed to some extent by the vast majority of other jurisdictions in this nation. Before we reject such a well-accepted model, we should at least examine it.

The First Amendment cases of the United States Supreme Court have created two tracks for free speech analysis: 1) a track for direct speech regulation aimed at communicative impact, and 2) a track for indirect speech regulation aimed at noncommu-nicative impact that possesses adverse effects on communicative opportunity. Lawrence H. Tribe, American Constitutional Law § 12-2 (2d ed. 1988); see also Konigsberg v. State Bar of California, 366 U.S. 36, 49-51 , 81 S.Ct. 997, 1005-07 , 6 L.Ed.2d 105 (1961). The difference between direct speech regulation and indirect speech regulation has been a fundamental part of federal First Amendment jurisprudence for at least fifty years. See, e.g., Hague v. C.I.O., 307 U.S. 496, 515-16 , 59 S.Ct. 954, 963-64 , 83 L.Ed. 1423 (1939) (plurality opinion of Roberts, J.); Cox v. New Hampshire, 312 U.S. 569, 574-76 , 61 S.Ct. 762, 765 , 85 L.Ed. 1049 (1941); Young v. American Mini Theatres, Inc., 427 U.S. 50 , 63 & n. 18, 78-79, 96 S.Ct. 2440, 2456 , 49 L.Ed.2d 310 (1976); San Francisco Arts & Athletics, Inc. v. United States Olympic Committee, 483 U.S. 522, 536-37 , 107 S.Ct. 2971, 2981 , 97 L.Ed.2d 427 (1987). Direct speech regulation prevents the dissemination of a certain idea because of the potential effect of the idea; in other words, an individual is prohibited from expressing a particular idea because the government has determined that idea is in some way harmful to society. In contrast, indirect speech regulation does not prevent the dissemination of an idea; it instead regulates either the timing of the speech, the place of the speech, or the manner of the speech. It is obvious that a direct speech regulation that prevents an idea from ever reaching the marketplace of ideas is more offensive than an indirect speech regulation that incidentally effects either the manner, the timing, or the placement of the expressive activity.

The United States Supreme Court has recognized consistently the dichotomy between direct speech regulations and indi *60 rect speech regulations. The Court closely scrutinizes direct speech regulations, holding that such regulations are unconstitutional unless the government establishes, for example, that the message being suppressed poses a “clear and present danger,” or constitutes a defamatory falsehood. Lawrence H. Tribe, American Constitutional Law § 12-2 (2d ed. 1988); see also Konigsberg, 366 U.S. at 50 , 81 S.Ct. at 1006 . In contrast, the Court engages in a balancing test for indirect speech regulations. Tribe § 12-2; see also Konigsberg, 366 U.S. at 51 , 81 S.Ct. at 1007 . An indirect speech regulation is constitutional if it is content neutral, narrowly tailored to serve a significant state interest, and it leaves open ample alternative communicative channels. United States v. Grace, 461 U.S. 171, 177 , 103 S.Ct. 1702, 1706 , 75 L.Ed.2d 736 (1983). Thus, the Court is much less likely to find a regulation unconstitutional when it just regulates the time, place, and manner of expression rather than wholly precluding the dissemination of a thought in the marketplace of ideas.

Although this dichotomy between direct speech regulation and indirect speech regulation is not without its critics, 2 the United States Supreme Court and the lower federal courts have utilized this dichotomy for over fifty years. See Hague v. C.I.O., 307 U.S. at 515-16 , 59 S.Ct. at 963-64 (1939); Cox v. New Hampshire, 312 U.S. at 574 , 61 S.Ct. at 765 (1941). Moreover, the courts of every other state likewise utilize this same distinction. See, e.g., Planned Parenthood v. Operation Rescue, 406 Mass. 701 , 550 N.E.2d 1361, 1370 (1990); Bering v. SHARE, 106 Wash.2d 212 , 721 P.2d 918 (1986), cert. dism’d, 479 U.S. 1050 , 107 S.Ct. 940 , 93 L.Ed.2d 990 (1987). Even this state has recognized this dichotomy in previous decisions. Iranian Muslim Organization v. City of San Antonio, 615 S.W.2d 202, 205-06 (Tex.1981); Olvera v. State, 806 S.W.2d 546, 548-50 (Tex.Crim.App.1991). Furthermore, not only do most jurisdictions in the nation recognize the dichotomy between direct and indirect speech regulations, such a distinction just makes sense. Why should indirect restrictions attempting to balance competing rights be subject to the same high degree of scrutiny as direct restrictions that completely ban a type of expression? However, in today’s opinion, without analysis or discussion, the plurality fails to recognize this dichotomy under the Texas Constitution. I instead would utilize the experiences of this state and other jurisdictions and recognize the traditional distinction between indirect speech regulation and direct speech regulation; therefore, I would subject indirect speech regulations to a less onerous test than direct speech regulations.

II.

Without even mentioning the law of other jurisdictions, the plurality in today’s opinion just applies the Davenport test for direct speech regulations to an indirect speech regulation. In Davenport v. Garcia, this Court addressed the ability of a trial court judge to suppress speech with a “gag order.” The gag order at issue in Davenport prohibited an attorney from making any public comment or discussion of a case outside the courtroom. 834 S.W.2d at 6 . After analyzing the history *61 of the free speech provision contained in article I, section 8 of the Texas Constitution, the Court concluded that our free speech guarantee provides greater rights than the First Amendment. Id. at 10 . Our Court then devised a test for gag orders in civil judicial proceedings, holding that such orders withstand constitutional scrutiny “only where there are specific findings supported by evidence that (1) an imminent and irreparable harm to the judicial process will deprive litigants of a just resolution of their dispute, and (2) the judicial action represents the least restrictive means to prevent that harm.” Id. The Court went on to add that it was “fully aware that a prior restraint will withstand scrutiny under this test only under the most extraordinary circumstances.” Id. (emphasis added). The Court then held that the gag order violated the free speech guarantees of article I, section 8 of the Texas Constitution. Id. at 11 .

The gag order at issue in Davenport was obviously a direct regulation on speech. It prevented the attorney from making any comment on her case, except in the narrow confines of the courtroom. In other words, the order prohibited the attorney from ever expounding her thoughts in the public marketplace for ideas. Such a restrictive, direct regulation on speech must be subject to the highest degree of judicial scrutiny. The Court in Davenport correctly analyzed this order as constitutional only if it prohibited an imminent and irreparable harm and it provided the least restrictive means to preclude this harm. The type of direct speech restraint analyzed in Davenport can and should survive constitutional scrutiny “only under the most extraordinary circumstances.”

In contrast, the injunction at issue in this case just regulated the location and manner of expression, rather than precluding wholly the dissemination of the relators’ antiabortion message. The relators were free to express their views anywhere except within a limited area around various abortion clinics in Houston. Consistent with well-reasoned and developed federal and state jurisprudence, this type of indirect regulation of speech is not as egregious as a direct regulation of speech. It should thus be subject to less onerous scrutiny than the gag order test from Davenport v. Garcia.

An indirect time, place, and manner regulation is not as egregious as a direct regulation on the content of speech for several reasons. As mentioned previously, a time, place, and manner regulation does not preclude the dissemination of a thought in the same manner as a direct, content-based regulation. Furthermore, time, place, and manner regulations fundamentally arise from the balancing of two competing interests. For example, in this case, the trial court created this zone in an attempt to balance the free expression rights of the protestors against two rights: the right of women to be free from undue harassment in securing an abortion and the right of the clinic owners to engage in lawful activities without obstruction and intimidation. See also Frisby v. Schultz, 487 U.S. 474, 484-88 , 108 S.Ct. 2495, 2502-04 , 101 L.Ed.2d 420 (1988) (balancing right of privacy in home against First Amendment right to engage in residential picketing); Renton v. Playtime Theatres, Inc., 475 U.S. 41, 50-52 , 106 S.Ct. 925, 930-31 , 89 L.Ed.2d 29 (1986) (balancing freedom of expression against attempt to preserve quality of life by zoning adult theaters); Grayned v. City of Rockford, 408 U.S. 104, 115-20 , 92 S.Ct. 2294, 2302-05 , 33 L.Ed.2d 222 (1972) (bal-áncing right of individuals to demonstrate against interest of educating children without interference from noisy demonstrations); Kovacs v. Cooper, 336 U.S. 77, 86-87 , 69 S.Ct. 448, 453 , 93 L.Ed. 513 (1949) (restricting sound amplification in residential neighborhood); Valenzuela v. Aquino, 853 S.W.2d 512, 518 (Tex.1993) (Gonzalez, J., dissenting) (balancing right of privacy in home against right of free expression). This requisite balancing of competing rights necessitates some discretion on the part of trial courts and legislatures in attempting to resolve these difficult issues. Therefore, I would not require that an indirect restriction on speech be subjected to scrutiny under a “least restrictive means” *62 analysis; I instead would require only that the restriction be narrowly tailored. 3

As this Court stated in Davenport , a speech restriction will meet the exacting “least restrictive means” test in only the “most extraordinary circumstances.” Why should restrictions attempting to balance such delicate, competing rights be subject to such exacting scrutiny? I agree that the right of free speech is the most important right in our free society, but I also believe that the enjoyment of this right cannot always trample on the rights of others. I see no reason to create such a limited “least restrictive means” test for an indirect speech regulation. 4 Our research has failed to locate any other jurisdiction in this nation that utilizes such a stringent test. 5 In fact, previous Texas cases, including cases decided under article I, section 8 of the Texas Constitution, have utilized the time, place, and manner test. 6 But these cases, along with all the other state and federal jurisprudence on this matter, are conspicuously absent from the plurality’s opinion today.

However, I am a vigorous proponent of the right of free expression, and I have on many occasions expressed my belief that the free speech guarantees of the Texas Constitution are greater than the guarantees provided by the First Amendment. See, e.g., Casso v. Brand, 776 S.W.2d 551, 564 (Tex.1989) (Gonzalez, J., concurring and dissenting); Channel 4, KGBT v. Briggs, 759 S.W.2d 939, 944 (Tex.1988) (Gonzalez, J., concurring). This is now also the opinion of this Court. Davenport, 834 *63 S.W.2d at 10 . Consistent with “Texas’ strong and longstanding commitment to free speech,” id. at 7 , I would modify the time, place, and manner test to reflect the greater free speech guarantee contained in article I, section 8. Rather than utilizing the normal standard requiring that the restriction be narrowly tailored to serve an significant government interest, I would require that the restriction be narrowly tailored to serve a compelling government interest. 7

Thus, under the Texas Constitution, I would hold that a time, place, and manner restriction is valid if it is content neutral, narrowly tailored to serve a compelling government interest, and it leaves open ample alternative communicative channels. Such a modified time, place, and manner test would allow courts and legislative bodies to adequately balance competing interests in indirectly regulating speech. Furthermore, this test would still maintain our proper commitment under the Texas Constitution to our broad freedom of expression guarantee since balancing would occur only if the government’s interest was “compelling.” 8

*64 III.

Although I differ from the plurality opinion in the method by which I analyze the constitutionality of these temporary restraining orders, I reach the same result. As stated in the plurality opinion, the temporary restraining orders the relators violated in this case contained numerous restrictions, such as prohibitions on trespassing on clinic property, blockading or impeding access to a clinic, invading clinic property, harassing or intimidating clinic staff or patients, and demonstrating in a twenty-five foot arc of any person seeking access to the clinic. However, the relators were charged with violating only the one-hundred foot distance limitation of the order. See 859 S.W.2d at 3. Thus, I must only determine whether the one-hundred foot distance limitation survives constitutional scrutiny under the modified time, place, and manner test of the Texas Constitution.

I commence this analysis by determining whether the temporary restraining orders in this case are content neutral. I believe that the orders are indeed content neutral. The restraining orders apply equally to all protests; no differentiation is made based upon the particular message conveyed by the relators. It is true that the restraining orders only applied to the relators, but that is because they are the only defendants the clinics have established create the requisite threat of harm to support injunctive relief. See generally Northeast Women’s Center v. McMonagle, 939 F.2d 57 , 67 (3d Cir.1991); New York NOW v. Terry, 886 F.2d 1339 , 1363 (2d Cir.1989), cert. denied, 495 U.S. 947 , 110 S.Ct. 2206 , 109 L.Ed.2d 532 (1990); Medlin v. Palmer, 874 F.2d 1085, 1090 (5th Cir.1989); Portland Feminist Women’s Health Center v. Advocates for Life, 859 F.2d 681, 686 (9th Cir.1988); Hirsh v. City of Atlanta, 261 Ga. 22 , 401 S.E.2d 530, 533 (1991), cert. denied, — U.S. -, 112 S.Ct. 75 , 116 L.Ed.2d 49 (1991); Planned Parenthood v. Project Jericho, 52 Ohio St.3d 56 , 556 N.E.2d 157, 162 (1990); Bering v. SHARE, 106 Wash.2d 212 , 721 P.2d 918, 926 (1986), cert. dism’d, 479 U.S. 1050 , 107 S.Ct. 940 , 93 L.Ed.2d 990 (1987).

The second prong of this modified time, place, and manner test is whether the restraining order is narrowly tailored to serve a compelling government interest. The clinics identified two interests for the restraining order: the right of women to be .free from undue harassment in securing their right to an abortion and the right of the clinic owners to engage in lawful activities without obstruction and intimidation. However, these interests, while indeed compelling, are adequately served by the remaining portions of the orders that were not violated. The orders prohibited trespassing on clinic property, blockading or impeding access to a clinic, invading clinic property, harassing or intimidating clinic staff or patients, and demonstrating in a twenty-five foot arc of any person seeking access to the clinic. These prohibitions adequately serve the two compelling government interests involved in this case. Thus, there is no compelling interest in keeping the relators one-hundred feet from all clinic entrances, exits, and parking lots when access to the clinic has been guaranteed by the other, more narrowly drawn prohibitions of the temporary restraining orders. In other words, the one-hundred foot free speech zones in this case are not narrowly tailored to serve any compelling interest not already served by the other restrictions in the temporary restraining orders.

Therefore, under the modified time, place, and manner test, the one-hundred foot distance limitation in the temporary restraining orders violates article I, section 8 of the Texas Constitution. I thus concur in the judgment of the Court that relators be discharged.

. See, e.g., Hague v. C.I.O., 307 U.S. 496, 515-16 , 59 S.Ct. 954, 963-64 , 83 L.Ed. 1423 (1939) (plurality opinion of Roberts, J.); Cox v. New Hampshire, 312 U.S. 569, 574-76 , 61 S.Ct. 762, 765 , 85 L.Ed. 1049 (1941); Planned Parenthood v. Operation Rescue, 406 Mass. 701 , 550 N.E.2d 1361, 1370 (1990); Iranian Muslim Organization v. City of San Antonio, 615 S.W.2d 202, 205-06 (Tex.1981); Olvera v. State, 806 S.W.2d 546, 548-50 (Tex.Crim.App.1991); Bering v. SHARE, 106 Wash.2d 212 , 721 P.2d 918, 931 (1986), cert. dism'd, 479 U.S. 1050 , 107 S.Ct. 940 , 93 L.Ed.2d 990 (1987).

. See, e.g., Konigsberg v. State Bar of California, 366 U.S. 36, 61-71 , 81 S.Ct. 997, 1012-17 , 6 L.Ed.2d 105 (1961) (Black, J., dissenting); Baker, Unreasoned Reasonableness: Mandatory Parade Permits and Time, Place, and Manner Restrictions, 78 Nw.U.L.Rev. 937 (1983). However, it is interesting to note that Justice Black, recognized as the chief proponent of the absolutist view that all regulations on speech are unconstitutional, possessed a very limited view of what actually constituted "speech.” For example, Justice Black wrote in Street v. New York, 394 U.S. 576, 610 , 89 S.Ct. 1354, 1374 , 22 L.Ed.2d 572 (1969) (Black, J., dissenting), that flag burning was in no way protected speech, a position that has been rejected by the Court. Similarly, Justice Black did not believe that the right of free speech broadly granted “a constitutional right to engage in the conduct of picketing or patrolling, whether on publicly owned streets or on privately owned property.” Cox v. Louisiana, 379 U.S. 559, 578 , 85 S.Ct. 476, 468 , 13 L.Ed.2d 487 (1965) (Black, J., dissenting). His opinion in these cases and other similar cases has led commentators to believe that the absolutist view requires a preliminary balancing test on what actually constitutes protected “speech.” See, e.g., Tribe § 12-2; Rotunda, Nowak & Young, Constitutional Law: Substance and Procedure § 20.7 (1st ed. 1986).

. I do not disagree with the plurality that the consideration of less restrictive alternatives is relevant to the determination of whether a certain restriction is narrowly tailored to serve the government’s interest. See 859 S.W.2d at 7. However, considering other alternatives is not the same as utilizing a least restrictive alternative test. When utilizing a least restrictive alternative test, this Court could potentially strike down any restriction on speech. This was recognized in Davenport by the Court’s statement that a restriction survives scrutiny under this test only in the "most extraordinary circumstances.” Could an ordinance that prohibited residential picketing in a neighborhood between 9 p.m. and 7 a.m. be unconstitutional because this Court determines that the least restrictive alternative is to disallow picketing only between 10 p.m. and 6 a.m.? I just cannot agree that in every case the least restrictive alternative must be used to regulate speech when competing interests are involved.

. As an indication of how onerous the "least restrictive means” test is, the counsel for the state basically conceded at oral argument that the restraining orders in this case could not survive scrutiny under Davenport .

. The case cited by the plurality, West Virginia Citizens Action Group, Inc. v. Daley, 174 W.Va. 299 , 324 S.E.2d 713 (1984), is not a "least restrictive means" case. The case uses the traditional time, place, and manner test requiring that the restriction is narrowly tailored to serve the government’s interest. The West Virginia court considered the availability of less restrictive alternatives in determining whether the restriction was narrowly tailored to achieve the governmental interest, but the court did not require that the restriction constitute the “least restrictive means” of achieving that objective.

.Many cases from this state have applied the time, place, and manner test to regulations challenged under the First Amendment in accordance with federal law. See, e.g., Iranian Muslim Organization v. City of San Antonio, 615 S.W.2d 202, 205-06 (Tex.1981); Olvera v. State, 806 S.W.2d 546, 548-50 (Tex.Crim.App.1991); Houston Chronicle Pub. Co. v. City of Houston, 620 S.W.2d 833, 837 (Tex.Civ.App.—Houston [14th Dist.] 1981, no writ). Even more importantly, however, several cases from this state have applied versions of the time, place, and manner test to free speech claims specifically alleged under article I, section 8 of the Texas Constitution. State v. Garcia, 823 S.W.2d 793, 797-98 (Tex.App.—San Antonio 1992, pet. ref’d); Lindsay v. Papageorgiou, 751 S.W.2d 544, 549-50 (Tex.App.—Houston [1st Dist.] 1988, writ denied). See generally Valenzuela v. Aquino, 800 S.W.2d 301, 304-05 (Tex.App.—Corpus Christi 1990), rev’d in part on other grounds, 853 S.W.2d 512 (Tex.1993); Lauderback v. State, 789 S.W.2d 343, 347-48 (Tex.App. — Fort Worth 1990, pet. refd). Furthermore, in Maloy v. City of Lewisville, 848 S.W.2d 380, 385 (Tex.App.— Fort Worth 1993, no writ), the Fort Worth Court of Appeals upheld an injunction based on a content-neutral zoning ordinance as a permissible time, place, and manner restriction under the Texas Free Expression Clause while recognizing that Davenport mandated that the Texas Constitution provided broader rights of free expression than the First Amendment. Thus, nothing in the case law of this state prior to today’s plurality opinion even hinted that some version of the time, place, and manner test would not apply to indirect speech regulations under the Texas Constitution.

. Chief Justice Phillips’ concurring opinion objects to my opinion on the ground that "nothing in the language or purpose of the Texas Free Expression Clause authorizes us ... to afford greater weight in the balancing of interests to free expression than we would under the First Amendment.” 859 S.W.2d at 32 (Phillips, C.J., concurring). Similarly, the Chief Justice commences his opinion by stating: “The decisions of five justices in two opinions are based on the fundamentally flawed premise that the Free Expression Clause of the Texas Constitution, Tex. Const, art. I, § 8, is in some relevant way ‘broader’ or more protective of free expression than the First Amendment to the United States Constitution.” Id. at 16. I will not engage in a lengthy response to his historical conclusions because the Court in Davenport v. Garcia, 834 S.W.2d at 7-10, 13-21 , already has rejected such arguments. However, I feel that a brief response is appropriate.

Chief Justice Phillips’ concurrence utilizes Edgewood Ind. Sch. Dist. v. Kirby, 777 S.W.2d 391, 394 (Tex.1989), as the test for interpreting provisions of the Texas Constitution. 859 S.W.2d at 18. However, he pays mere lip service to a good portion of this test. His opinion does not recognize “the difficulties inherent in determining the intent of voters over a century ago,” and he therefore does not rely "heavily on the literal text" of the constitution, a text that has been expressly recognized by this Court as "more broadly worded" in O’Quinn v. State Bar of Texas, 763 S.W.2d 397, 402 (Tex.1988). Furthermore, his opinion does not discuss that we seek the constitution’s meaning “with the understanding that the Constitution was ratified to function as an organic document to govern society and institutions as they evolve through time.” Edgewood, 777 S.W.2d at 394 . Rather than recognize these other portions of the Edge-wood formulation, the concurrence relies almost exclusively on his own interpretation of the history of the Texas Free Exercise Clause, an interpretation that was rejected by this Court in Davenport .

Moreover, while criticizing the Davenport decision for its failure to note that other jurisdictions possess similar free expression clauses, the concurrence can be criticized for not recognizing expressly that many of these other jurisdictions with similar free expression guarantees have determined that their constitutions provide greater expressive rights than the First Amendment. See, e.g., Robins v. PruneYard Shopping Center, 23 Cal.3d 899 , 153 Cal.Rptr. 854, 859-61 , 592 P.2d 341, 346-48 (1979), aff’d, 447 U.S. 74 , 100 S.Ct. 2035 , 64 L.Ed.2d 741 (1980); Bock v. Westminster Mall Co., 819 P.2d 55, 60 (Colo.1991); State v. Schmid, 84 N.J. 535 , 423 A.2d 615, 626, 630 (1980), dism’d, 455 U.S. 100 , 102 S.Ct. 867 , 70 L.Ed.2d 855 (1982). See also Bering v. SHARE, 106 Wash.2d 212 , 721 P.2d 918, 931 (1986), cert. dism’d, 479 U.S. 1050 , 107 S.Ct. 940 , 93 L.Ed.2d 990 (1987).

As a final point, I would like to address the practical effect of the concurrence’s views. If this Court were to adopt these views, it would mean either that the meaning of the Texas Constitution could not evolve from its meaning in 1875 or that the meaning of the Texas Constitution would change every time the United States Supreme Court issued a decision that cut back on fundamental constitutional guarantees. I cannot accept either of these two alternatives. To state that the Texas Constitution cannot evolve from its intended meaning in 1875 ignores countless decisions of this Court and other courts regarding the evolution of organic constitutional guarantees over time. See, e.g., Davenport, 834 S.W.2d at 10 ; Edgewood, 777 S.W.2d at 374 . To state that the Texas Constitution changes with every subsequent decision of the United States Supreme Court is equally problematic and denies the citizens of Texas an opportunity to have their rights adequately protected.

. Such an approach has been utilized by at least one other state court in interpreting the scope of its free speech guarantee for time, place, and manner restrictions. See Bering v. SHARE, 106 Wash.2d 212 , 721 P.2d 918, 931 (1986), cert. *64 dism'd, 479 U.S. 1050 , 107 S.Ct. 940 , 93 L.Ed.2d 990 (1987).