Valenzuela v. Aquino

SPECTOR, Justice,

dissenting.

This case involves far more than claims of negligently-inflicted emotional distress. This case involves a clash between the right to privacy and the right to engage in expressive conduct. By failing to resolve or even address this issue, the majority needlessly prolongs this litigation and effectively endangers a family’s most basic rights. I dissent.

I.

The petitioners are South Texans For Life — a group devoted to “picketing and educating people that abortions are wrong” 1 — and nine individual demonstrators. The respondents are Dr. Eduardo Aquino; his wife, Mercedes Aquino; and their four young children. Dr. Aquino maintains an obstetrics and gynecological practice, a small part of which is devoted to providing abortion services.

Beginning in 1982, members of South Texans for Life regularly picketed Dr. Aquino’s offices. Not once did Dr. Aquino *521 attempt to stop or interfere with the picketing, even after his personal safety was threatened.

In 1988, the demonstrators decided to escalate their campaign by picketing the Aquinos’ residence. For at least a month, the demonstrators gathered weekly in front of the Aquinos’ home to sing, pray, and carry placards. 2 On each occasion, the protest activities began at 4:30 p.m., shortly after the Aquino children returned from school and several hours before Dr. Aquino was expected home from the office.

The demonstrations — which involved as many as twenty-five participants — created a circus-like spectacle in the Aquinos’ neighborhood. Neighbors gathered to watch, and at times police cars lined the streets near the Aquino home. Noise from the activities was audible inside the Aqui-nos’ house. The demonstrators photographed the Aquino home, videotaped it, and carried binoculars to view it. On one occasion, when Ms. Aquino attempted to leave the house for groceries, one of the demonstrators followed her in his car. Additionally, when Dr. Aquino arrived home, the demonstrators forced him to cross their picket line and sought to intimidate him by shouting, among other things, “Aren’t you afraid?”

While the demonstrations were taking place outside the home, the household would be in an uproar, with children crying and locking themselves in their rooms. Ms. Aquino, overcome with anxiety for her family’s safety, was “screaming, crying, running around the house,” and literally shaking with fear.

The demonstrations outside the Aquinos’ home were eventually stopped, but their effects on the family remain. Ms. Aquino has been diagnosed as suffering from post-traumatic stress disorder, and must rely on antidepressants to relieve her nervous condition. The oldest son, Eddie, became hostile and aggressive; at the recommendation of a psychiatrist, he was placed in a psychiatric institution and then sent to live with an aunt in Paraguay. The academic performance of the other two sons began to suffer, and they showed other signs of emotional distress as well. Additionally, the commotion around the Aquinos’ home damaged the family’s social relationships with friends and classmates.

The Aquinos turned to the Texas courts for relief. After obtaining a temporary injunction, 3 the Aquinos proceeded to trial seeking damages and a permanent injunction to prevent further invasions of their privacy.

Based on a jury verdict for the Aquinos, the trial court awarded the family actual and punitive damages for the emotional distress they had suffered. Additionally, after considering the evidence and arguments, the trial court issued a permanent injunction ordering the demonstrators to refrain from picketing within 400 feet of the center of the Aquinos’ lot.

The court of appeals upheld the trial court’s injunction, noting the “significant governmental interest in protecting the privacy and domestic tranquility of the home,” and concluding that “[t]he injunction in the instant case is narrowly tailored to serve such an interest.” 800 S.W.2d 301, 305 . However, the court of appeals set aside the award of damages for the Aquinos’ emotional distress, concluding that such an award violated the demonstrators’ freedom of speech under the Texas and United States Constitutions. Id. at 309 .

II.

Today, over five years after the Aquinos first sought relief, the majority dissolves the trial court’s injunction and remands the *522 entire cause to the trial court. Unlike the court of appeals, however, the majority does not address the extent to which a court may impose limitations on free expression. Rather, the majority bases its decision primarily on Boyles v. Kerr, 855 S.W.2d 593 , in which this court has abolished the tort of negligent infliction of emotional distress. 4

The main basis on which the Aquinos sought injunctive relief was not, in fact, a claim for negligent infliction of emotional distress; rather, it was a claim for invasion of privacy. The recitation of facts in the Aquinos’ petition begins, “The picketing of Plaintiffs’ home by Defendants is an invasion of their privacy. Specifically, said picketing is an unreasonable intrusion upon the seclusion of Plaintiffs.” 5 At trial, the Aquinos submitted a jury question asking whether the picketing was “focused or directed toward the plaintiff’s residence,” based on a United States Supreme Court decision holding that such picketing can be prohibited in the interest of privacy. 6 At the trial court’s subsequent hearing on the permanent injunction, the Aquinos’ counsel stated that they sought injunctive relief “in order to prevent further invasion of the plaintiffs’ privacy in this case.”

After hearing the arguments at the permanent injunction hearing, the trial court prefaced its issuance of injunctive relief with the following:

I believe Texas recognizes a right to privacy. This right, I believe, includes the right to be free from willful intrusions into one’s personal life at home and at work — this right to be left alone from unwanted attention that may be caused by picketing or other unwanted demonstrations; and I believe that it is protected by injunctive relief.

In its final judgment, the trial court, “having considered the evidence and arguments,” found and concluded that the Aqui-nos were entitled to injunctive relief. The Petitioners never complained that the basis for the injunction was unclear, because it was in fact unmistakably clear: the trial court was seeking to protect the Aquinos’ residential privacy.

Injunctive relief is “designed primarily to grant relief against the threatened violation of a right when legal remedies are inadequate.” See Garland v. Shepherd, 445 S.W.2d 602, 604 (Tex.Civ.App.—Dallas 1969, no writ); see also Ex parte Tucker, 110 Tex. 335, 338 , 220 S.W. 75, 76 (1920); see generally 6 L. Lowe, Remedies: Injunctions and Other Extraordinary Proceedings § 2 (Texas Practice 1973). When a right of privacy is recognized, “equity nearly always gives injunctive relief because of the obvious inadequacy of damages.” George L. Clark, Principles op Equity 316 (1937) (citations omitted). Moreover, equitable relief does not depend on recovering damages for past violations of the right; so long as the evidence and jury findings establish the likelihood of future violations, 7 injunctive relief is appropriate. See Dan B. Dobbs, Remedies: Damages-Equity-Restitution 120 (1973); State v. Texas Pet Foods, 591 S.W.2d 800, 803 (Tex.1979). 8

*523 By the uncontroverted evidence, and a jury finding that the picketing was “focused or directed” at their residence, the Aquinos clearly established that their right to residential privacy was threatened. See Frisby v. Schultz, 487 U.S. 474, 487 , 108 S.Ct. 2495, 2504 , 101 L.Ed.2d 420 (1988); Klebanoff v. McMonagle, 380 Pa.Super. 545 , 552 A.2d 677, 679 (1988). Thus, in-junctive relief was warranted to protect the Aquinos’ common-law right.

Nevertheless, the majority asserts that the injunctive relief cannot stand because the Aquinos failed to prove the elements of an invasion of privacy under section 652B of the Restatement (Second) of Torts. The majority cites no authority for the proposition that section 652B — which expressly refers to liability — also applies to a request for injunctive relief.

Even if section 652B does apply, the Aquinos have still met their burden. The only elements of a claim under this section are (1) an intentional intrusion upon the solitude or seclusion of another, which (2) would be highly offensive to a reasonable person. The first of these two requirements is satisfied by the jury finding that the picketing was “focused or directed” toward the Aquinos’ residence. See Frisby v. Schultz, 487 U.S. at 486-88 , 108 S.Ct. at 2503-04 (“focused” or “directed” picketing may be banned to protect residential seclusion). Additionally, because of this same finding, the second requirement was established as a matter of law. As the U.S. Supreme Court forcefully explained, focused residential picketing is, by its nature, highly offensive to the ordinary person:

The devastating effect of targeted picketing on the quiet enjoyment of the home is beyond doubt_ The resident is figuratively, and perhaps literally, trapped within the home, and because of the unique and subtle impact of such picketing is left with no ready means of avoiding the unwanted speech. Thus, the ‘evil’ of targeted residential picketing, ‘the very presence of an unwelcome visitor at the home,’ is ‘created by the medium of expression itself.’

Frisby v. Schultz, 487 U.S. at 486-87 , 108 S.Ct. at 2503-04 (citations omitted).

Disregarding Frisby , the majority asserts that unresolved factual disputes made injunctive relief improper. In fact, almost all of the essential facts were uncontested. The Petitioners did not deny that they had planned and engaged in a continuing course of conduct that included weekly picketing outside Dr. Aquino’s residence. Nor did they deny that they sought to intimidate Dr. Aquino; one of the Petitioners, for example, testified as follows:

Question: ... [Y]ou admitted a moment ago that your purpose of picketing at his home was to intimidate the doctor; is that right?

Answer: Yes, sir. 9

Nor did the Petitioners deny that they intended to interfere with Dr. Aquino’s privacy. Another of the Petitioners testified as follows:

Question: Didn’t you consider your conduct to be an invasion of his privacy by picketing the home where his wife and children were?

Answer: Yes, sir. 10

In other parts of their testimony, as the majority notes, the Petitioners sought to cast their conduct in different terms; but at no point did the Petitioners deny that their foremost objective was intimidation.

The only disputed aspect of the Aquinos’ privacy claim concerned whether the picketing was focused upon the Aquinos’ residence: the Petitioners claimed that they had not focused on Dr. Aquino’s house in particular, but were picketing his neighbors’ homes as well. At Dr. Aquino’s request, this issue was submitted to the jury. *524 The jurors rejected the Petitioners’ contention, expressly finding that the picketing was “focused or directed” toward the Aqui-nos’ residence.

The injunction in this case is supported by the pleadings, the evidence, and the jury’s affirmative finding on the only disputed fact issue relevant to the invasion of privacy: namely, whether the Petitioners’ picketing was focused on the Aquinos’ residence. Thus, irrespective of this court’s decision in Boyles v. Kerr, the injunctive relief granted by the trial court should still stand to protect the Aquinos from further invasions of privacy.

III.

Because the viability of the trial court’s injunction is not affected by Boyles v. Kerr, this court has an obligation to consider whether the injunction interferes with the Petitioners’ freedom of speech under the Texas and United States Constitutions. This court has unquestionably treated peaceful picketing as a constitutionally-protected right. See, e.g., International Union of Operating Eng’rs v. Cox, 148 Tex. 42 , 219 S.W.2d 787, 792-93 (1949) (union members’ right to picket protected under the First and Fourteenth Amendments); Ex parte Henry, 147 Tex. 315, 325-26 , 215 S.W.2d 588, 592 (1948) (picketing by union members in front of plant entrance). Moreover, we recently recognized that the free speech provision in the Texas Bill of Rights, Tex. Const, art. I, § 8, provides greater rights of free expression than its federal equivalent. Davenport v. Garcia, 834 S.W.2d 4, 10 (Tex.1992). Thus, prior restraints on speech presumptively violate the Texas Constitution, even if not the federal constitution. Id.

But Texas law has also extended broad protection to the right of privacy. In the seminal Texas case, this court noted that, the right of privacy has been defined as “the right of an individual to be left alone, to live a life of seclusion.” Billings v. Atkinson, 489 S.W.2d 858, 859 (Tex.1973) (upholding homeowner’s recovery based on illegal wiretap at his residence). So important is this right in Texas that, independent of the federal constitution, the Texas Constitution protects personal privacy from unreasonable intrusion. Texas State Employees Union v. Texas Dep’t of Mental Health and Mental Retardation, 746 S.W.2d 203, 205 (Tex.1987).

One important function of the right of privacy has been to preserve the sanctity of the home. This court has long viewed the household as a sanctuary — “a place of residence for the family, where the independence and security of a home may be enjoyed,” free from “harassment and disturbance.” Iken v. Olenick, 42 Tex. 195, 198 (1875); see also Porter v. Southwestern Public Service Co., 489 S.W.2d 361, 365 (Tex.Civ.App.—Amarillo 1973, writ ref’d n.r.e.) (zoning ordinances may be used to protect residential area from free exercise of property rights). This view has been central to our privacy jurisprudence; for example, in describing the Texas Constitution’s protection of privacy, this court noted that two provisions in our bill of rights “guarantee the sanctity of the individual’s home and person against unreasonable intrusion.” Texas State Employees Union, 746 S.W.2d at 205 (discussing Tex. Const, art. I, §§ 9, 25). Accordingly, Texas courts have viewed harassment in one’s residence as an intrusion upon seclusion in violation of the right of privacy. See Donnel v. Lara, 703 S.W.2d 257 (Tex.App.—San Antonio 1985, writ ref’d n.r.e.).

The conduct involved in this case represents a threat to other privacy rights as well. The right of privacy “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” Roe v. Wade, 410 U.S. 113, 153 , 93 S.Ct. 705, 727 , 35 L.Ed.2d 147 (1972); see also Texas State Employees Union, 746 S.W.2d at 205 (citing Roe v. Wade). Increasingly, however, the ability of women and families to make this decision has been severely constricted. Targeting doctors as the “weak link” in the provision of abortion services, organizations across the state and nation have used a strategy of harassment and intimidation to “dissuade skilled clinicians from entering this field or convince them to quit.” David A. Grimes, Clini *525 cians Who Provide Abortions: The Thinning Ranks, 80 Obstetrics & Gynecology 719, 721 (1992). These efforts have succeeded, in large part, in making abortion services unavailable: as of 1988, 83 percent of United States counties had no identified provider of abortion services. Id. at 719. Dr. Grimes concludes that “[c]ommunities must curb the harassment of clinicians”; otherwise, he warns, “the legacy of Roe v. Wade may become an empty promise.” Id. at 722.

Because of the vital privacy interests at stake, I would hold that the trial court’s injunction is a valid restriction of the Petitioners’ right to engage in expressive conduct. Individuals are not required to become captives in their own homes, with no “recourse of escape” from intrusive, unwanted speech. Carey v. Brown, 447 U.S. 455, 479 , 100 S.Ct. 2286, 2299 , 65 L.Ed.2d 263 (1980) (Rehnquist, J., dissenting); see also Frisby v. Schultz, 487 U.S. at 487 , 108 S.Ct. at 2504 ; Klebanoff, 552 A.2d at 679 . Unlike the half-mile prohibition previously set aside, 763 S.W.2d at 45, the present 400-foot prohibition, measured from the center of the residential lot, is not so broad as to preclude all picketing or other activities in the surrounding neighborhood. Nor does this prohibition foreclose the Petitioners’ right to express their views through alternate channels. The injunction does, however, preclude picketing focused on the Aquino household. Because such picketing interferes with the Aquinos’ right of privacy, it is not protected under either the Texas or the United States Constitutions. See Frisby v. Schultz, 487 U.S. at 486-87 , 108 S.Ct. at 2503-04 ; Garcia v. Gray, 507 F.2d 539, 544-45 (10th Cir.1974); Degregory v. Giesing, 427 F.Supp. 910, 915 (D.Conn.1977); Hall v. Hawaiian Pineapple Co., 72 F.Supp. 533, 537 (D.Haw.1947); Dayton Women’s Health Center v. Enix, 68 Ohio App.3d 579 , 589 N.E.2d 121, 127 (1991); Town of Barrington v. Blake, 568 A.2d 1015, 1020-21 (R.I.1990); Klebanoff, 552 A.2d at 679 ; Wauwatosa v. King, 49 Wis.2d 398 , 182 N.W.2d 530, 536-37 (1971).

IV.

The injunction ordered by the trial court is not invalidated by Boyles , nor is it invalidated by constitutional rights of free expression. However, because “debate on public issues should be uninhibited, robust, and wide-open,” New York Times v. Sullivan, 376 U.S. 254 , 84 S.Ct. 710 , 11 L.Ed.2d 686 (1964), I agree with the court of appeals that the award of damages in this case cannot stand.

For this same reason, I regret that the majority has avoided discussion of the serious issues this cause presents. An “uninhibited, robust, and wide-open” discussion of the Aquinos’ right to privacy could finally resolve this litigation, and would guide future courts and litigants in dealing with the tension between rights of privacy and of expressive conduct. Unfortunately, the parties will now have to resume their dispute in the lower courts and elsewhere before their questions are finally answered.

. Trial testimony of Elíseo Valenzuela, Jr.

. The signs bore messages including the following: "God Gives Life, Aquino Takes Away,” "Nice House Dr. Eduardo, How Many Babies Paid the Price,” "We Want a New Boat! Are You Pregnant," and "Beware Abortionist in Your Block.”

. The temporary injunction — which prohibited a wide range of conduct, including all residential picketing within one-half mile of the Aquinos’ home — was later dissolved on the ground that it was overly broad. Valenzuela v. Aquino, 763 S.W.2d 43 (Tex.App.—Corpus Christi 1988, no writ).

. I have dissented from the decisions in both Boyles and a companion cause, Twyman v. Twyman, 855 S.W.2d 619 (Tex.1993). My disagreement with the majority in this cause, however, extends well beyond my objections to the disposition of Boyles and Twyman .

. This is apparently a reference to section 652B of the Restatement (2d) of Torts (“Intrusion upon Seclusion"), which describes a widely-recognized form of invasion of privacy.

. Frisby v. Schultz, 487 U.S. 474 , 108 S.Ct. 2495 , 101 L.Ed.2d 420 (1988).

. In equity cases, as in other cases, disputed questions of fact must be decided by the jury. Tex. Const, art. V, § 10; State v. Credit Bureau of Laredo, Inc., 530 S.W.2d 288, 292-93 (Tex.1975).

.In Texas Pet Foods , the jury, while finding many statutory violations, had failed to find a violation of a specific statutory provision; yet this court nonetheless upheld an injunction prohibiting future violations of that provision, reasoning that the trial court "obviously concluded, from the many other specific violations found by the jury, that the injunction was necessary and justified under the circumstances.” 591 S.W.2d at 804 . Thus, as to that statutory provision, a permanent injunction was upheld even without a determination of legal liability.

In attempting to distinguish Texas Pet Foods , the majority fails to even acknowledge the key fact of that case: “In addition to enjoining the *523 specific violations found by the jury, the trial court further enjoined Texas Pet Foods from an activity which the jury failed to find was occurring.” Id. This court unanimously concluded that "[t]he trial court was not precluded by the jury’s failure to answer special issue No. 1 affirmatively from exercising its equity jurisdiction and finding that injunctive relief from future violations under these circumstances was warranted.” Id.

. Trial testimony of Eliseo Valenzuela, Jr.

. Trial testimony of Charles W. Bolton.