Petitioners Brief — Schenck v. Pro-Choice Network of Western NY
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No.
Supreme Court of the Gnitet
OCTOBER TERM, 1995
REVEREND PAUL SCHENCK AND
DWIGHT SAUNDERS,
Petitioners,
PRO-CHOICE NETWORK OF WESTERN NEW YORK, et al.,
Respondents.
On Writ of Certiorari to the
United States Court of Appeals
for the Second Circuit
BRIEF FOR PETITIONERS
JAY ALAN SEKULOW* VINCENT P. MCCARTHY
JAMES M. HENDERSON, SR. JOSEPH P. SECOLA
WALTER M. WEBER McCARTHY & SECOLA
AMERICAN CENTER FOR P.O. Box 1108
LAW & JUSTICE 8 South Main Street
1000 Thos. Jefferson St., N.\W. New Milford, CT 06776
Suite 304 (860) 355-0923
Washington, D.C. 20007
(202) 337-2273
KEITH A. FOURNIER THOMAS P. MONAGHAN
JOHN G. STEPANOVICH THE NEW HOPE LIFE CENTER,
AMERICAN CENTER FOR ACLJ-NEw HopPE
LAW & JUSTICE 6375 New Hope Road
1000 Regent University Drive New Hope, KY 40052
Virginia Beach, VA 23464 (502) 549-7020
(804) 579-2489
* Counsel of Record
Attorneys for Petitioners y
.
= 5
PRESS OF BYRON 8S. ADAMS ¢ WASHINGTON, D.C. ¢ 1-800-347-8208 O \
QUESTIONS PRESENTED
1. In Madsen v. Women’s Health Center, 114 S. Ct. 2516
(1994), this Court rejected the “reasonable time, place and
manner” analysis for injunctions and instead mandated the
more rigorous standard of “whether the challenged provisions
of the injunction burden no more speech than necessary to
serve a significant government interest.” In NAACP v.
Claiborne Hardware Co., 458 U.S. 886 (1982), this Court
required “precision of regulation” with regard to injunctive
relief which burdens speech, protecting and separating peaceful
speech from unprotected and non-speech activities. Against this
background the first question presented is:
Whether the in banc decision of the Second Circuit Court of
Appeals erred in upholding a provision of an injunction
which prohibits all speech within overlapping fifteen foot
floating no-speech zones (which create fifteen-foot no-speech
zones around the abortion facility entrances and driveways
and all pedestrians and vehicles) on public sidewalks and
streets outside abortion facilities as the most precise way to
ensure access to the abortion facility and promote public
health and safety in the context of overwhelmingly peaceful
demonstrations and a lack of any finding that a less restrictive
injunction could not accomplish the same goals.
2. Again, in the context of the Madsen and Claiborne
decisions above, and particularly this Court’s holding in Madsen
that “no-approach” zones are unconstitutional restrictions on
free speech:
Whether the Second Circuit’s in banc decision upholding the
“cease and desist” provision in the injunction below, based as
it is on the dislike by a communicatee of the words being
spoken by a communicator, is in conflict with this Court’s
decision in Madsen which held that the “no-approach” zone
(i)
il
burdened more speech than necessary and which reaffirmed
the unconstitutionality of content-based restrictions on
speech under the First Amendment to the United States
Constitution.
PARTIES
The names of both petitioners appear in the caption of this
case. Neither of the petitioners is a corporation. See Rule 29.6.
The respondents are as follows: Pro-Choice Network of
Western New York; Buffalo GYN Womenservices, P.C.; Erie
Medical Center; Paul J. Davis, M.D.; Shalom Press, M.D.;
Barnett Slepian, M.D.; Morris Wortman, M.D.; Highland
Obstetrical Group, P.C.; and Alexander Women's Group.
Page
Es 0.4 cd cn dpoeececnssessens i
tt iia week denne cecendageneesesess il
EE vii
eis he ok ohn ec db cen cebe< 1
a di divcduseacdesctiesoccctece 1
CONSTITUTIONAL PROVISIONS ................. 1
STATEMENT OF THE CASE ...........-.ceeceeees 2
iia. oe ened ieee cen eeentenhtns « 2
I tin oie dite nen dabes copes as 5
SUMMARY OF ARGUMENT ...................-. 14
ee 17
eT dae eh pach nde gu Lapibesbeootes 17
Il. THE CHALLENGED INJUNCTIVE PROVISIONS
RESTRICT CLASSIC FREE SPEECH IN PUBLIC
ED Dike 6 vedmed daddsecewssane cececcoeccce 19
Il. INJUNCTIVE RESTRICTIONS ON SPEECH
TRIGGER A HEIGHTENED CONSTITUTIONAL
STANDARD OF REVIEW .............220005: 22
Restraint Doctrine or the Heightened Scrutiny of
EE Ch SWhadabeces6ecbetsbsdceddendsccee 22
B. The Speech-Restrictive Injunctive Provisions Here
Fail the Prior Restraint Test .................- 24
vi
TABLE OF CONTENTS—Cont’d
Page
C. Madsen Establishes Demanding Constitutional
Analysis for Speech-Restrictive Injunctions ...... 26
IV. THE FIFTEEN-FOOT ZONES AND THE CEASE-
AND-DESIST PROVISION FAIL FIRST
AMENDMENT SCRUTINY FOR WANT OF A
SUPPORTING INTEREST .....-.-----00eeeee 31
V. THE CEASE-AND-DESIST PROVISION VIOLATES
THE FIRST AMENDMENT .........--+++++++ 34
A. The Madsen Decision Compels the Invalidation of
the "Cease and Desist" Provision ........-+++-- 34
B. The "Cease and Desist" Provision Imposes an
"Audience Veto.” ........- ee eeeccececceeeess 38
C. The "Cease and Desist” Provision Imposes an
Unconstitutional Licensing Scheme on Speech .... 39
D. The "Cease and Desist" Provision is
Unconstitutionally Vague ........--++00e+ee5> 40
E. The Captive Audience Doctrine is Inapplicable ... 41
VI. THE FIXED AND FLOATING BUBBLE ZONES
VIOLATE THE FIRST AMENDMENT .......-- 44
CONCLUSION ...... ccc e cece eee eeeeeeneeeees 50
APPENDIX TO BRIEF FOR PETITIONERS
Decision and Order of the District Court (on Motion to
Dismiss) (W.D.N.Y. July 30, 1993) ......---++++-0+: la
vu
TABLE OF AUTHORITIES
Cases Page
Board of Airport Comm'rs v. Jews for Jesus, Inc.,
_ See 47
Boos v. Barry, 485 U.S. 312 (1988) ................. 19, 22
Bray v. Alexandria Women's Health Clinic,
506 U.S. 263 (1993) ...... 00... cece 8, 11, 15, 31, 33
Brockett v. Spokane Arcades Inc., 472 U.S. 491
ah CeBbde eh al ensihbte ccéeiciecescccesdc 33
Cantwell v. Connecticut, 310 U.S. 296 (1940) ........ 20, 38
Carlson v. California, 310 U.S. 106 (1940) ............. 19
Carroll v. President of Princess Anne,
a eee 23, 26
City of Houston v. Hill, 482 U.S. 451 (1987) ... 17, 20, 41, 45
City of Lakewood v. Plain Dealer Publishing Co.,
i 40
Cohen v. California, 403 US. 15 (1971) ............ 21, 42
Cornelius v. NAACP Legal Defense and Educ. Fund, Inc.,
a NE eT 20
Cox v. Louisiana, 379 U.S. 536 (1965) ...............-. 39
DeJonge v. Oregon, 299 U.S. 352 (1931) ............... 47
Doran v. Salem Inn, Inc., 422 U.S. 922 (1975) ........ 29, 31
Edwards v. South Carolina, 372 US. 339 (1963) ......... 43
Erznoznik v. City of Jacksonville,
EE 42
po lye ; Nationalist Movement,
8 EE 16, passim
Frisby v. Schultz, 487 U.S. 474 (1988) ........ 22, - 43, 46
eo cone of Rockford, 408 U.S.
Se ee 30, 43,
Gregory v. City of Chicago, kone
Hill v. City of Lakewood, 911 P.2d 670 (Colo. Ct. App.
1995), cert. denied, No. 95SC593 (Colo. Feb. 26, 1996),
petition for cert. filed sub nom. Hill v. Colorado, 64 US.L.W.
_ (U.S. May __, 1996) (No. 95-__) «--- eee eens 28, 36
Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988) ...... 21
ISKOON v. Lee, 505 U.S. 672 (1992)... .. 2c eee eee 22, 39
Jones v. City of Opelika, 316 U.S. 584 (1942) .....-+.+5+: 37
Jones v. City of Opelika, 319 U.S. 103 (1943)... 6... 000 37
Lehman v. City of Shaker Heights, 418 U.S. 298
OU ica ccivctassdaesdeiabvecve sees ccedba 42
Lovell v. Griffin, 303 US. 444 (1938) ......0.220eee ees 20
Madsen v. Women's Health Center, Inc., 114 S.
Re tn eer 11, passim
Martin v. Struthers, 319 U.S. 141 (1943) «2.2... e eee eee 21
McIntyre v. Ohio Elections Comm'n, 115 S. Ct.
GRAND oken cee EO is 005 Vevsessece 19
Members of City Council v. Taxpayers for
Vincent, 466 U.S. 789 (1984) .. 0... cee cere ee eee eee 24
Memphis v. Light, Gas & Water Division v.
Crt GECB. 1 GD vicsccesesscncccccseseeses 29
Meyer v. Grant, 486 U.S. 414 (1988) ...---- seer sere es 20
NAACP v. Claiborne Hardware Co., 458 U.S. 886
ee FS eee oy: 21, 25, 29, 39, 43
National Socialist Party of America v. Village
of Skokie, 432 US. 43 (1977) ....0.s0eeceeeeeeeees 22
Nebraska Press Ass'n v. Stuart, 427 U.S. 539
(1976) wc cece cece cence eee eeeeeceeereneeeeenee 25
New York Times, Co. v. Sullivan, 376 U.S. 254
MM ci ov cxversgddipdasesdagacdsvecnite sess 21
New York Times Co. v. United States, 403 U.S. 713
(1971)... cece eee cece erence eeeeeereeeenenenee 25
Organization for a Better Austin v. Keefe, 402
BE. DIG cis vcevvcavysvsesdiiteeees 15, passim
Perry Educ. Ass'n v. Perry Local Educators’ Ass'n,
eee 22, 28
Planned Parenthood Shasta-Diablo, Inc. v. Williams,
10 Cal. 4th 1009, 898 P.2d 402, 43 Cal. Rptr. 2d 88 (1995),
petition for cert. filed, 64 U.S.L.W. 3287 (U.S. Oct. 6, 199
a pa anette ai
Pro-Choice Network of Western New York v. Project
Rescue Western New York [P.C. Network I], 799
F. Supp. 1417 (W.D.N.Y. 1992) .............. 1, passim
Pro-Choice Network of Western New York v. Project
Rescue Western New York [P.C. Network II], 828 F.
Supp. 1018 (W.D.N.Y. 1993) .............. 1, 5, 11, 32
Pro-Choice Network of Western New York v. Walker,
So 1, 11
Pro-Choice Network of Western New York v. Schenck
[P.C. Network II, 67 F.3d 359 (2d Cir. 1994) . 1, 12, 33, 43
Pro-Choice Network of Western New York v. Schenck
[P.C. Network IV), 67 F.3d 377 (2d Cir. 1995)... . 1, passim
R.A.V. v. City of St. Paul, 505 U.S. 377
EVES ce 38
Rizzo v. Goode, 423 US. 362 (1976) .................. 39
Roe v. Wade, 410 US. 113 (1973) .................... 48
Rowan v. United States Post Office, 397 U.S. 728
(Se GS ga a a a 42
Sabelko v. City of Phoenix, 68 F.3d 1169 (9th Cir.
1995), petition for cert. filed, 64 U.S.L.W.
3625 (U.S. Mar. 5, 1996) (No. 95-1415) ........... 28, 36
Shuttlesworth v. Birmingham, 394 U.S. 147 (1969) . 16, 39, 40
Simon & Schuster, Inc. v. Members of New York
State Crime Victims Board, 502 U.S. 105 (1991) .... 38, 39
Southeastern Promotions, Ltd v. Conrad, 420 U.S. 546
(SF eon ea ip aa 24
xX
Texas v. Johnson, 491 U.S. 397 (1989) «0... cece cece eens 33
Thornburgh v. American College of Obstetricians
and Gynecologists, 476 U.S. 747 (1986) ........+200+5 18
Thornbill v. Alabama, 310 U.S. 88 (1940) ....... 28, 43, 46
Tinker v. Des Moines Indep. School Dist., 393
RI oo cncidaiavaebess «ite cabiobe 42
United States v. Eichman, 496 U.S. 310 (1990) ........ 17, 21
United States v. Grace, 461 U.S. 171 (1983) .... 19, 28, 42, 47
Constitutional Provisions, Statutes, & Rules
USS. Const. amend. I ........- see e cece ereeeee 1, passim
28 US.C. § 12541) .. 0... ccc ccecccecccccccccevccees | 1
SN IES, 5 hh d0Ke edd 7, passim
Sup. Ct. R. 24.1(a) 2... eee cece eee reer e eee eeees 34
Fed. R. App. P. 41(a) ...--- ee cece cece eee cree nees 12
Fed. R. Civ. P. 65(d) 0... 0. cece cece e eee e eee eeneees 29
DECISIONS BELOW’
The decision of the district court granting a preliminary
injunction is reported as Pro-Choice Network of Western New
York v. Project Rescue Western New York, 799 F. Supp. 1417
(W.D.N.Y. 1992) (Pet. App. A-138). The later decision of the
district court dismissing respondents’ claim under 42 U.S.C. §
1985(3) and declining to vacate the preliminary injunction is
reported as Pro-Choice Network of Western New York v. Project
Rescue Western New York, 828 F. Supp. 1018 (W.D.N.Y. 1993)
(Br. App. 1a). The decision of the Second Circuit dismissing an
appeal from certain civil contempt judgments is reported as Pro-
Choice Network of Western New York v. Walker, 994 F.2d 989 (2d
Cir. 1993) (Pet. App. A-116). The decision of the Second
Circuit panel in the present appeal is reported as Pro-Choice
Network of Western New York v. Schenck, 67 F.3d 359 (2d Cir.
1994) (Pet. App. A-79). The decision of the in banc Second
Circuit in the present appeal is reported as Pro-Choice Network
of Western New York v. Schenck, 67 F.3d 377 (2d Cir. 1995) (in
banc) (Pet. App. A-1).
JURISDICTION
The in banc U.S. Court of Appeals for the Second Circuit
entered its decision and judgment in this case on September 28,
1995. Petitioners filed their petition for writ of certiorari on
December 27, 1995. This Court granted the petition on March
18, 1996. This Court has jurisdiction under 28 U.S.C. § 1254(1).
CONSTITUTIONAL PROVISIONS .
The first amendment to the United States Constitution
provides as follows:
1. In this brief, "Pet. App.” refers to the Appendix to the Petition
for Writ of Certiorari, "Br. App.” refers to the Appendix to this brief,
and "JA" refers to the Joint Appendix.
2
Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press; or the
right of the people peaceably to assemble, and to petition
the Government for a redress of grievances.
U.S. Const. amend. I.
STATEMENT OF THE CASE
Facts
Respondents (plaintiffs below) consist of the Pro-Choice
Network of Western New York, an organization "dedicated to
maintaining . . . access to . . . abortion," Second Amended
Complaint (2d Am'd Cplt.] {5 (JA 35), along with various
abortion facilities and physicians who practice abortion, 2d
Am'd Cplt. {4 6-13 (JA 35-36).
Petitioners Rev. Paul Schenck, a minister, and Dwight
Saunders, an attorney, are two of the numerous individuals and
organizations named as defendants in the present case.’ 2d
Am'd Cplt. 44 17, 20 (JA 38, 39). The defendants are all
"opposed to abortion and dedicated to the pro-life movement."
Pro-Choice Network of Western New York v. Project Rescue
Western New York [P.C. Network I], 799 F. Supp. 1417, 1422
(W.D.N.Y. 1992) (footnote and internal quotation marks
omitted). Respondents accused the defendants of engaging in
"disruption of the operations of abortion . . . facilities." 2d
Am'd Cplt. {4 14-65 (JA 37-53).
2. At the time of the evidentiary hearings in this case, Rev. Paul
Schenck had already served ten years as pastor of New Covenant
Tabernacle, an Assemblies of God congregation in Tonawanda, New
York, and was pursuing a doctoral degree in ministry. Dkt. 140, pp. 1843-
44 (Tr. of 11/1/91). Dwight Saunders maintained a private legal practice
in Williamsville, New York. JA 39.
3
The district court found that the defendants organize and
participate in pro-life demonstrations’ at abortion facilities
throughout Western New York. 799 F. Supp. at 1423. The
court expressly found that these demonstrations “are usually
peaceful in nature," though there "often" are "emotionally
charged encounters" between demonstrators, patients, and
patient "escorts." Id.
The district court identified three different types of pro-life
demonstrations: (1) physical blockades; (2) "constructive"
blockades; and (3) "sidewalk counseling.” Jd.
With respect to the first category, defendants stipulated, prior
to the preliminary injunction hearing, that the court could
enjoin physical blockades. Id. at 1424 n.5. See also Pet. App. A-
134 (text of stipulation). As the court found, "there have been
no physical ‘blockades’ since the [district cJourt issued the
TRO." 799 F. Supp. at 1424 n.5.
The district court used the second category—"constructive
blockades"~as a label for "demonstrating and picketing" at
abortion facilities. Jd. at 1424. The court found that these
demonstrations did not "physically block{] patient access to the
clinics," id. The court found the purpose of these
demonstrations to be "to prevent or dissuade patients from
entering the clinic." Jd. The court pejoratively described the
demonstrators as creating a “gauntlet of harassment and
intimidation in the hope that the patients will turn away before
entering.” Jd. This "harassment and intimidation" apparently
consisted of "demonstrators . . . congregat{ing]” near driveway
entrances and parking lots, making "loud and disruptive noises,”
3. The district court used the term “rescue” demonstrations to refer
to all pro-life demonstrations. Because the term “rescue” more
commonly refers to a pro-life "sit-in" or "blockade," this brief wil! avoid
using this potentially confusing term.
4
and "chant{ing] persistently,” id. "At times," the court added,
demonstrators "yell" at people, "crowd around people," and
"grab, push and shove" people. Jd.
The third category of pro-life activity the district court found
to have taken place was "sidewalk counseling." "Sidewalk
counseling consists of proffering literature to women entering
[abortion] facilities and trying to convince them not to undergo
an abortion." Jd. The court found that, “because of the highly
emotional nature of the abortion issue," even peaceful
counseling can become “a charged encounter" between
counselors, patients, and "escorts." Jd. at 1425.
The district court found that respondent Pro-Choice
Network of Western New York “organizes some of its
members to serve as escorts for [abortion] patients .. . ." Jd. at
1421-22. These "escorts":
become frustrated and angry by the persistence of the "sidewalk
counselors." The patient escorts often respond by raising their
voices in order to drown out the “counselors message, and
attempt to block and impede the "sidewalk counselors" from
following the patients... . [Tjhe evidence adduced at the
hearings clearly shows that their behavior often serves only to
exacerbate an already difficult situation.
Id. at 1425 n.6.
The court found that "the decision to undergo an abortion is
. . . difficult and stressful" and that exposure to pro-life
demonstrations can cause "additional stress and anxiety." Id. at
1427. The district court did not dispute that the "additional
stress" experienced by women who encountered demonstrators
resulted in large part from (1) the message of the demonstrators
and sidewalk counselors; and (2) the misconduct of the pro-
abortion "escorts."
Course of Proceedings
Respondents filed suit in the U.S. District Court for the
Western District of New York on September 24, 1990, JA 1.
Respondents sought immediate injunctive relief, alleging that
defendants planned to conduct a "rescue" blockade, four days
later, somewhere in western New York. JA 33-34, 59.
Respondents’ complaint’ listed seven causes of action,
including one federal claim and six state-law claims. The federal
claim alleged a violation of 42 U.S.C. § 1985(3). JA 33, 64.°
The state claims alleged viclation of, inter alia, New York Civil
Rights Law and common law trespass. JA 65, 66.
The same day that respondents filed their complaint, the
district court granted an order to show cause why a temporary
restraining order (TRO) should not issue and setting a hearing
on the TRO for September 26, 1990 (i.e., two days later). At
that hearing the district court orally granted a TRO. JA 2. The
next day, the court signed a written TRO. JA 1.
The TRO applied to all abortion facilities in the Western
District of New York (which includes Buffalo and Rochester).
The order enjoined a miscellany of misconduct, including
4. By the time the district court issued the preliminary injunction
which is the subject of this appeal, respondents had filed an Amended
Complaint (dkt. 24) (JA 3), a Second Amended Complaint (dkt. 36) (JA
4), and a Third Amended Complaint (dkt. 72) (JA 8). These amendments
did not alter the causes of action alleged. For ease of reference, this brief
will cite to the Second Amended Complaint, which appears in the Joint
Appendix (JA 31). See also Notation regarding Third Amended
Complaint (JA 78).
5. The district court subsequently dismissed this claim. See Pro-
Choice Network of Western New York v. Project Rescue Western New York
[P.C. Network IT], 828 F. Supp. 1018 (W.D.N.Y. 1993) (Br. App. 1a).
6
trespass, blocking or obstructing access, physically abusing or
tortiously harassing persons entering or leaving abortion
facilities, and making excessive noise that disturbs patients or
staff. JA 23. The TRO also enjoined defendants from
(a) .. . demonstrating within 15 feet of any person seeking
access to or leaving such facilities, except that sidewalk
counseling by no more than two persons as specified in
paragraph (b) shall be allowed;
(b) . . . Provided, however, that sidewalk counseling,
consisting of a conversation of a nonthreatening nature by
not more than two people with each person 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 who wants to, or who is
sought to be counseled who wants to not have counseling,
wants to leave, or walk away, they shall have the absolute
right to do that, and in such event the persons seeking to
counsel that person shall cease and desist from such
counseling of that person.
JA 23. This TRO remained in effect, first by extension and
then by consent, pending the district court's ruling on
respondents’ motion for a preliminary injunction. JA 2 (dkt.
17), 3 (entry for 10/19/90; dkt. 34; dkt. 35).
As the district court found, defendants "complied with the
TRO by holding a peaceful demonstration, rather than a
‘blockade,’ on September 28, 1990." P.C. Network I, 799 F.
Supp. at 1422.
At a hearing on October 4, 1990, the district court gave a
"clarification" of the scope of the TRO. JA 27. In response to
concerns expressed about the applicability of the order to clergy
preaching against abortion in church, the court stated that the
TRO "is directed to activities at the sites chosen for
demonstration.” JA 29.
On October 22, 1990, respondents moved for contempt
sanctions against defendants Bonnie Behn and Carla Rainero for
allegedly violating the TRO on one date. JA 3 (dkt. 29, 30); see
JA 103. On December 6 and 14, 1990, respondents moved for
civil contempt sanctions against defendant Nancy Walker for
allegedly violating the TRO on three separate dates. JA 4 (dkt.
40, 41, 44, 45); see JA 80. On March 26, 1991, respondents
Schenck, nonparty Rev. Robert Schenck, and defendant Project
Rescue Western New York, for allegedly violating the TRO on
one date. JA 8 (dkt. 74); see JA 122-23.
For purposes of the preliminary injunction, the defendants
offered to stipulate to the entry of an injunction barring them
from blocking or obstructing access or trespassing. Defendants’
Stipulations (Pet. App. A-134).
From February 1991 through January 1992, the district court
held evidentiary hearings on both the propriety of a
preliminary injunction and the merits of various civil contempt
charges. JA 4-16. Based upon the evidence presented at these
hearings, the district court granted a preliminary injunction on
February 14, 1992. JA 16 (dkt. 126); Pet. App. A-138.
The district court acknowledged the well-established
requirements for granting a preliminary injunction. P.C
Network I, 799 F. Supp. 1428. With regard to the necessity of
showing a likelihood of success on the merits, the court held
that respondents had made the requisite showing on three of
their claims. First, the district court ruled that respondents
were likely to prevail on their federal claim under 42 U.S.C. §
1985(3).° 799 F. Supp. at 1429-31. Second, the district court
ruled that "[hJaving demonstrated a likelihood of success on the
merits of their federal § 1985(3) claim, [respondents] have also,
by definition, demonstrated a likelihood of success of their
claim under [the state antidiscrimination statute,] § 40-c." 799
F. Supp. at 1431. Third, the district court held that respondents
were likely to prevail on their state trespass claim. Jd. at 1431-
32. Given these holdings, the district court declined to address
"whether a preliminary injunction should be granted based on
[respondents'] other state law claims." Jd. at 1432 n.11.
The preliminary injunction, like the TRO, applied to all
abortion facilities in the Western District of New York. Pet.
App. A-183. The injunction renewed the prohibition on
trespassing, blocking or obstructing access, physically abusing
patients or staff of abortion facilities, and making excessive
noise. Pet. App. A-183 to A-184. In place of the TRO's ban on
"tortiously harassing,” the preliminary injunction forbade
"grabbing, touching, pushing, shoving or crowding” persons
coming or going at abortion facilities. Pet. App. A-184. The
injunction also enjoined defendants from:
(b) demonstrating within fifteen feet from either side or
edge of, or in front of, 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;
6. This Court subsequently rejected the application of this same
statute in a similar case. Bray v. Alexandria Women's Health Clinic, 506
U.S. 263 (1993). In light of Bray, the district court later dismissed
respondents’ § 1985(3) claim. Br. App. 1a.
9
(c) . . . provided, however, that sidewalk counseling
consisting of a conversation of a nonthreatening 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.
Pet. App. A-183 to A-184. The district court did not attribute
any special significance to the arbitrary fifteen-foot distance the
court selected for its injunctive zones.
Petitioners appealed from the preliminary injunction. JA 17
(dkt. 136).
The district court subsequently ruled on the contempt
motions heard prior to the issuance of the preliminary
injunction. The court granted the motion in part as to
defendant Nancy Walker, JA 79 (dkt. 238), granted the motion
as to defendants Bonnie Behn and Carla Rainero, JA 102 (dkt.
241), and granted the motion as to petitioner Paul Schenck,
nonparty Rev. Robert Schenck, and Project Rescue Western
New York, JA 121 (dkt. 250).’ The court found that for one
7. On January 3, 1992, after the hearings on the preliminary
Paul Schenck and nonparty Rev. Daren Drzymala of violating the TRO.
JA 15 (dkt. 124). The district court did not hold hearings on this motion
10
incident Walker was guilty of trespass (entering a parking lot),
harassment (following a group of three women closely and
loudly admonishing them that “Abortion is murder, you'll go
to hell, we can help you, don't go in there”), failing to cease and
desist counseling (when asked to leave them alone) and entering
the fifteen-foot fixed zone (following the women to within
some four feet of an entrance). The court found that for
another incident Walker was guilty of harassment (following
two women closely while "importun{ing]" them loudly), failing
to cease and desist counseling (when asked to leave them alone),
and entering the fifteen-foot fixed zone (by following the
women to the entrance). JA 83-87, 95-96. The court found that
for one incident Behn and Rainero were guilty of failing to
cease and desist counseling a woman and her two male
companions when the woman asked them to leave her alone.
JA 106-09, 116-17. The court found that the Revs. Paul and
Robert Schenck were guilty of trespassing (by entering the
alcove portion of a building entrance), blocking (by standing
briefly at that entrance, although the court did not find that the
Schencks intended to block anyone or that anyone was trying
to enter), and “encouraging . . . aiding, [and] abetting" each
other to violate the TRO. The court also found Rev. Paul
Schenck guilty for incidents that same day of trespass
(reentering the alcove), blocking vehicular access (by standing
too close to a car while counseling the occupants), and failing to
cease and desist counseling a young couple (after the woman
"held up her hand to signal” Rev. Schenck to cease and her
companion ultimately "threatened to strike Schenck"). JA 126-
33, 143-44. The court held each contemnor liable for a $10,000
“civil” sanction plus attorney fees and costs. J.A. 101, 119, 149.
until after issuance of the preliminary injunction. See JA 18-19.
11
The alleged contemnors all appealed their contempt judgments.’
Petitioners’ temporarily withdrew their appeal of preliminary
injunction, by stipulation, pending this Court's decision in a
case reviewing the use of 42 U.S.C. § 1985(3) against pro-life
activists. After that decision issued, see Bray v. Alexandria
Women's Health Clinic, 506 U.S. 263 (1993), petitioners
temporary withdrawal of the appeal pending the Second
Circuit's ruling in the contempt appeals of Walker, Behn, and
Rainero.
Meanwhile, the district court, in light of this Court's Bray
decision, dismissed respondents’ claim under 42 U.S.C. §
1985(3). P.C. Network II, 828 F. Supp. 1018 (Br. App. 1a). The
district court declined, however, to relinquish pendent
jurisdiction over the respondents’ state law claims, and likewise
declined to vacate the preliminary injunction. /d.
Petitioners then simultaneously appealed from the district
court's refusal to vacate the preliminary injunction and
reactivated their appeal from the original order granting the
preliminary injunction.
A panel of the Second Circuit heard both of petitioners’
appeals together on March 24, 1994. JA 20. While the appeals
were under submission, this Court decided Madsen v. Women's
Health Center, Inc., 114 S. Ct. 2516 (1994). After receiving letter
. briefs addressing Madsen, see JA 21, the panel issued its opinion
8. None of these appeals have yet been decided on the merits. The
Second Circuit dismissed the appeals of Walker, Behn, and Rainero,
holding that a party may not appeal an interlocutory judgment of civil
contempt. Pro-Choice Network of Western New York v. Walker, 994 F.2d
989 (2d Cir. 1993) (Pet. App. A-116). The appeals of Paul and Robert
Schenck were settled and dismissed by stipulation.
12
on September 6, 1994. Pro-Choice Network of Western New York
v. Schenck [P.C. Network IIT], 67 F.3d 359 (2d Cir. 1994) (Pet.
App. A-79).
The Second Circuit panel unanimously upheld the district
court's refusal to vacate the preliminary injunction and upheld
the bulk of the injunctive provisions. By a divided vote, the
panel overturned as unconstitutional the 15-foot speech-free
zones and the cease-and-desist requirement for sidewalk
counselors. Senior Circuit Judge Oakes dissented from the
panel's decision to reverse these portions of the injunction.
Respondents sought and obtained a 10-day extension of time
to file a petition for rehearing. When that extended period
elapsed and respondents had still filed no petition, the mandate
of the court of appeals issued.’ Respondents then filed an
untimely petition for rehearing with suggestion for rehearing in
banc. Respondents moved for leave to file out of time and to
recall the mandate. The Second Circuit granted the motion and
recalled the mandate. See JA 21.
The Second Circuit granted rehearing in banc limited to the
two portions of the injunction which the panel had held
unconstitutional. JA 150. Whereas the district court had, in
the interim, modified the injunction to comply with the panel's
ruling, Chief Judge Jon Newman ordered that the original
preliminary injunction be reinstated. JA 152.”°
9. The issuance of the mandate raises the question whether the
Second Circuit lacked jurisdiction to act further in the appeal.
10. Judge Newman's extraordinary sua sponte order refers to the
mandate as having issued "inadvertently." This is false. The clerk of the
Second Circuit properly issued the mandate when respondents failed to
file a timely petition for rehearing. Fed. R. App. P. 41(a).
13
After a new round of briefing and oral arguments, the in banc
Second Circuit issued its decision upholding the preliminary
injunction in full, with one minor modification. Pro-Choice
Network of Western New York v. Schenck [P.C. Network IV], 67
F.3d 377 (2d Cir. 1995) (in banc) (Pet. App. A-1).
The fifteen judges sitting for the Second Circuit's in banc
ruling produced five separate opinions. Nine judges signed onto
the lead opinion of Judge Oakes. Ten judges signed onto an
opinion Judge Winter wrote “concurring in the result." Two
judges (who were among those signing onto the Winter
opinion) joined onto another opinion, by Judge Jacobs,
concurring in the result. In addition, the two members of the
original panel majority each wrote dissenting opinions.
The Second Circuit upheld the preliminary injunction as
written, with one modification. The preliminary injunction
had required sidewalk counselors to "cease and desist" from
such counseling “if anyone or any group of persons who is
sought to be counseled wants to not have counseling, wants to
leave, or walk away," Pet. App. A-184 (emphasis added).
Viewed literally, this provision required sidewalk counselors to
read the mind (or heart) of the person counseled in order to
know whether to “cease and desist." The district court,
however, had stated that the "cease and desist" provision applied
whenever the person spoken to “indicates, either verbally or
nonverbally, that they do not wish to be counseled . . . ." P.C.
Network I, 799 F. Supp. at 1434. The Second Circuit ruled that
requiring persons being counseled to “indicate,” verbally or
nonverbally, their unwillingness to be counseled, "accords a
common sense meaning to the provision and makes clear at
what point counseling must cease." 67 F.3d at 391. The Second
Circuit therefore "direct[ed] the district court on remand to so
modify the language of the injunction.” Jd.
14
SUMMARY OF ARGUMENT
The decision of the in banc Second Circuit, upholding the
preliminary injunction at issue here, strikes at the heart of the
public forum doctrine of the First Amendment. Never in the
history of American jurisprudence has this Court upheld an
injunction prohibiting peaceful, non-threatening speech on
public sidewalks outside a business facility in the absence of a
showing that access to the facility is obstructed. “[WJhat was
done by [petitioners] ~ the picketing, the leafletting, the voicing
of protest - was done in the finest tradition of the First
Amendment, hardly justifying so sweeping an abridgement of
free speech.” 67 F.3d at 399 (Meskill, J., dissenting). Yet the
court below upheld drastic restrictions on such expressive
activity in traditional public fora outside all abortion facilities
in the Western District of New York.
The Second Circuit justified these sweeping restrictions as
necessary to protect the right of “[t}he timid . . . to go about
their business,” id. at 396 (Winter opinion). The court opined
that
targeted persons, whether they be customers of a business,
residents of a particular house, workers at a firm, the
trustees of a university, military recruiters, delegates at a
political convention, or patients and employees of an
abortion clinic, are not voluntarily exposed to protests.
Id. Whether in a public forum or a nonpublic forum, id. At
397, expressive activity, the court below held, must yield to
injunctive restraint, even if “no one is physically injured, traffic
moves, and private property is not invaded,” id This
“unprecedented and unwarranted incursion on freedom of
speech,” id. at 410 (Altimari, J., dissenting), essentially creates
a new “right” — the right “not to be hassled in public.”
The preliminary injunction (1) forbids petitioners from
15
"demonstrating" within fifteen feet of any entrance or driveway
of any abortion facility ("fixed buffer zones"); (2) forbids
petitioners from “demonstrating” within fifteen feet of "any
person or vehicle” coming to or going from any abortion
facility (the "floating bubble zones"); (3) allows no more than
two people to enter these various zones in order to engage in
"sidewalk counseling consisting of a conversation of a
nonthreatening nature," except that if "anyone or any group of
persons” counseled "indicates, either verbally or non-verbally,
that they do not wish to be counseled,” the counselors must
"cease and desist from such counseling" and thereafter abide by
the fifteen-foot zones (“cease and desist" provision).
Injunctive restrictions on expressive activity face rigorous
scrutiny. The prior restraint doctrine renders many such
injunctions presumptively unconstitutional. F.g., Organization
for a Better Austin v. Keefe, 402 U.S. 415 (1971). Even
injunctions which do not trigger the prior restraint doctrine
face heightened constitutional review. Madsen v. Women's
Health Center, Inc., 114 S. Ct. 2516 (1994). Under either
standard, the restrictions challenged here are unconstitutional.
First, the "floating bubbles," "fixed buffers,” and "cease and
desist" restrictions all fail for want of a countervailing private
interest, i.e., a supporting cause of action. The district court
predicated its injunction upon a finding that respondents were
likely to prevail on three of their claims. The district court has
dismissed the first of these claims (brought under 42 U.S.C.§ -
1985(3)), on the merits, in light of a subsequent decision of this
Court (Bray v. Alexandria Women's Health Clinic, 506 U.S. 263
(1993)). The district court's ruling on the second claim (brought
under a state antidiscrimination statute) rested, “by definition,"
on the court's holding regarding the first claim, and so falls with
it. The third cause of action is state trespass, which cannot
16
justify restrictions on nontrespassory expressive activity. In
short, the challenged injunctive restrictions on expressive
activity in public forum property no longer have any legal legs
on which to stand. The First Amendment forbids — under ary
test — a restriction on speech which is not appropriately tailored
to further some countervailing interest. In this case,
respondents have no competing claim (on which they are likely
to prevail) even to place in the balance, much to override
petitioners’ rights; hence, these injunctive restrictions are
unconstitutional.
The "cease and desist" provision independently violates the
First Amendment. First, by cutting off even peaceful
communication and subjecting speech in a public forum to the
consent of the audience, the "cease and desist" provision is
indistinguishable from the "no approach" zone this Court
overturned in Madsen, 114 S. Ct. at 2529. Even apart from the
square holding of Madsen, the “cease and desist" provision
founders upon several important First Amendment doctrines.
This restriction imposes an impermissible "audience veto," e.g.,
Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992),
and subjects speech to an unconstitutional, wholly arbitrary
licensing scheme, e.g., Shuttlesworth v. Birmingham, 394 U.S. 147
(1969). This restriction is also unconstitutionally vague,
requiring petitioners on pain of hefty contempt sanctions to
decipher "verbal or nonverbal indications” that a person or
group of persons might not want to be counseled. The "captive
audience doctrine" cannot save this restriction because the
injunction operates in a public forum where the audience is free
to leave.
The "fixed buffer zones" and "floating bubble zones” are
factually unjustifiable. The record in this case contains neither
a Madsen-esque history of persistent obstruction (as a majority
17
of the Second Circuit agreed, 67 F.3d at 397 (Winter, J.,
concurring-ten judges), 399 (Meskill, J., dissenting-two judges))
nor a failure of an initially narrower injunction. Indeed, the
court imposed floating bubble zones in the initial TRO, i.e., as
a first resort. These invisible speech-free zones prohibit far
more speech than necessary, banning even peaceful picketing,
leafletting, and verbal communications. The prohibition of
“demonstrating” in these zones is also unconstitutionally vague.
The "fixed bubble zones” reveal a gross lack of tailoring.
This arbitrary, one-size-fits-all restriction applies to many
different facilities regardless of their varying physical
characteristics.
The "floating bubble zones” effectively ban all demonstrating
as they waft along streets and sidewalks, forcing demonstrators
to scurry and dodge-or stay home. Moreover, the floating
zones are vague with regard to where they appl~ (i.e., how far
from an abortion business) and to whom (a “person . . . seeking
access to or leaving [abortion] facilities,” but not to anyone else)
and gravely chilling in that it is impossible to gauge fifteen-foot
distances precisely, especially when both the floating bubble
and the "demonstrator" are moving.
ARGUMENT
I. INTRODUCTION
Speech that is popular or pleasant has little need for
constitutional protection. City of Houston v. Hill, 482 U.S. 451,
462 n.11 (1987). The true test of the right to free speech, under
the First Amendment to the United States Constitution, is the
strength of the protection that right affords to speech that is
unpopular, unpleasant, disturbing, or even despised. E.g.,
United States v. Eichman, 496 U.S. 310 (1990) (flag burning).
The allegation has been made that judges and even Supreme
18
Court Justices deciding cases in the abortion context have
“worked a major distortion in . . . constitutional jurisprudence,"
and that "no legal rule or doctrine is safe from ad hoc
nullification” in such litigation. Thornburgh v. American College
of Obstetricians and Gynecologists, 476 U.S. 747, 814 (1986)
(O'CONNOR, J., joined by REHNQUIST, J., dissenting);
Madsen v. Women's Health Center, Inc., 114 S. Ct. 2516, 2535
(1994) (SCALIA, J., joined by KENNEDY and THOMAS, JJ.,
dissenting). The notion of impartial adjudication — the core of
any judicial system - obviously requires the rejection of this
pernicious "abortion distortion factor.""
"Our task, of course, is to resolve the issue by constitutional
measurement, free of emotion and of predilection." Roe v.
Wade, 410 U.S. 113, 116 (1973). Of Forsyth County v. Nationalist
Movement, 505 U.S. 123, 124 (1992) ("In this case, with its
emotional overtones, we must decide whether the free speech
guarantees of the First . . . Amendment{] are violated . . .").
Accordingly, this Court must address the present petition
independent of the national controversy out of which it arises.
Four of the Second Circuit judges below expressly opined
that abortion had distorted that court's analysis of the appeal.
67 F.3d at 398 (Jacobs, J., joined by Mahoney, J., concurring)
(charging lead opinion with being "message specific"); id. at 404
(Meskill, J., joined by Altimari, J., dissenting) ("Once again, we
see the abortion ad hoc nullification machine at work"). It is
therefore particularly important for this Court forcefully to
reject the notion that Roe v. Wade, 410 U.S. 113 (1973),
somehow created an exception to the First Amendment. There
11. The severity of the temptation to sacrifice neutral principles in
abortion cases was starkly illustrated in the court below by the
appearance of the U.S. Department of Justice and the national ACLU as
amici in support of restrictions on speech in public places.
19
are not different First Amendment rules for abortion protesters
on the one hand, and news reporters, civil rights demonstrators,
and so forth, on the other. Free speech is not the exclusive
prerogative of those embracing politically favored causes or
fashionable points of view.
Il. THE CHALLENGED INJUNCTIVE PROVISIONS
RESTRICT CLASSIC FREE SPEECH IN PUBLIC
FORA.
The fixed and floating 15-foot speech-free zones and the
"cease-and-desist" provision restrict classic forms of peaceful
expression in public fora, namely, picketing and sidewalk
counseling.
Picketing consists of the carrying of placards or banners while
standing or walking in a particular location. Picketing
represents both a public witness directed to all passersby and a
reproach to those patronizing or performing the work of the
picketed facility. A picketer's activity expresses many different
messages, including: the testimony of one's mere willingness to
stand up in public; the calling of attention to a given facility
engaged in some controversial practice; and, the visual
broadcasting of a particular message displayed on a sign or
banner. "The carrying of signs and banners, no less than the
raising of a flag, is a natural and appropriate means of conveying
information on matters of public concern." Carlson v.
California, 310 U.S. 106, 112-13 (1940). Accord United States v.
Grace, 461 U.S. 171 (1983); Boos v. Barry, 485 U.S. 312 (1988).
Sidewalk counseling consists of personal communication with
pregnant women, their companions, or passersby, typically by
conversation or by the distribution of written literature. Cf
799 F. Supp. at 1424. "[H]anding out leaflets in the advocacy of
a politically controversial viewpoint . . . is the essence of First
Amendment expression." McIntyre v. Ohio Elections Comm'n,
20
115 S. Ct. 1511, 1519 (1995) (and cases cited). See also
Organization for a Better Austin v. Keefe, 402 US. 415 (1971);
Lovell v. Griffin, 303 U.S. 444 (1938). The sidewalk counselor
seeks not so much to broadcast a message to the world as to
touch the mind, heart, and conscience of particular individuals.
The goal of the sidewalk counselor is to offer information and
assistance to help a woman carry her baby to term.” The
sidewalk counselor may also offer a final appeal to the
conscience of those struggling with their own ambivalence over
the distressing decision to abort an unborn child.” Such verbal
persuasion and protest rest at the very heart of the right to free
speech. City of Houston v. Hill, 482 U.S. 451 (1987); Cantwell v.
Connecticut, 310 U.S. 296 (1940). "In a face-to-face encounter
there is a greater opportunity for the exchange of ideas and the
propagation of views," Cornelius v. NAACP Legal Defense and
Educ. Fund, Inc., 473 U.S. 788, 798 (1985); for this reason, “the
most effective, fundamental, and perhaps economical avenue of
political discourse [is] direct one-on-one communication."
Meyer v. Grant, 486 U.S. 414, 424 (1988).
12. Dkt. 88a, pp. 1255-56, 1265-67, 1271-72 (Tr. of 3/26/91)
(witness Karen Prior).
13. Respondent Morris Wortman, M.D.., testified as follows:
Q. Have you ever had a woman come in for a scheduled
abortion who seemed uncertain or ambivalent about it? A. Every
week. Every day.
Q. It's a regular occurrence then, I take it? A. Absolutely.
Q. It's daily? A. Daily.
Dkt. 92, p. 930 (Tr. of 3/20/91). Some women change their minds after
talking with sidewalk counselors. Lg, dkt. 88a, pp. 1272 (Tr. of
3/26/91). One such woman testified in this case. Dkt. 91, pp. 1825-51
(Tr. of 4/1/91).
21
Ideally, picketers and sidewalk counselors will practice
perfect charity with all persons, firm resolution in their
dedication to principle, and unflinching patience in the face of
hostility to their message. Nevertheless, some picketers and
counselors will occasionally fail to say just the right thing in
just the right way. Some may even utter what seein to be
"vehement, caustic, and sometimes unpleasantly sharp attacks"
upon the views or conduct of their hearers. Cf New York
Times, Co. v. Sullivan, 376 U.S. 254, 270 (1964). This does not
distinguish pro-life activists from adherents to any other cause.
Nor does this consideration place picketing and sidewalk
counseling outside abortion facilities beyond the bounds of
the aggressive and disputatious as well as to the meek and
acquiescent.” Martin v. Struthers, 319 U.S. 141, 149 (1943)
(Murphy, J., concurring). While rhetoricians may debate the
relative merits of verbal “honey” and "vinegar," the freedom of
speech depends upon no judgment as to the wisdom, prudence,
or polity of given communications. “Strong and effective
extemporaneous rhetoric cannot be nicely channeled in purely
dulcet phrases." NAACP v. Claiborne Hardware Co., 458 U.S.
886, 928 (1982). Indeed, this Court has repeatedly recognized
constitutional protection even for such “deeply offensive"
speech as “virulent ethnic and religious epithets, see Terminiello
v. Chicago, 337 U.S. 1 (1949), vulgar repudiations of the draft,
see Coben v. California, 403 U.S. 15 (1971), and scurrilous
caricatures, see Hustler Magazine, Inc. v. Falwell, 485 U.S. 46
(1988)." United States v. Eichman, 496 U.S. 318-19 (1990). Accord
Madsen v. Women's Health Center, Inc., 114 S. Ct. 2516, 2529
(1994) (“insulting, and even outrageous, speech”).
In the present case, petitioners’ expressive activity takes place
on public sidewalks and streets, "the archetype of a traditional
public forum.” Forsyth County, 505 U.S. at 130 (internal
22
quotation marks and citation omitted). See Perry Educ. Ass'n v.
Perry Local Educators’ Ass'n, 460 U.S. 37, 45 (1983); Boos, 485
U.S. at 318; Frisby v. Schultz, 487 U.S. 474, 480-81 (1988). "At
the heart of our jurisprudence lies the principle that in a free
nation citizens must have the right to gather and speak with
other persons in public places." ISKCON v. Lee, 505 U.S. 672,
696 (1992) (KENNEDY, J., joined in pertinent part by
Blackmun, STEVENS, and SOUTER, JJ., concurring in
judgment). Therefore, "regulation of speech on government
property that has traditionally been available for public
expression is subject to the highest scrutiny." /d. at 678
(majority opinion of REHNQUIST, C_J., joined by White,
O'CONNOR, SCALIA, and THOMAS, JJ.).
In sum, the preliminary injunction at issue here "operates at
the core of the First Amendment,” Frisby v. Schultz, 487 U.S.
474, 479 (1988), by imposing restrictions on classic forms of
speech in traditional public fora.
Ill. INJUNCTIVE RESTRICTIONS ON SPEECH
TRIGGER A HEIGHTENED CONSTITUTIONAL
STANDARD OF REVIEW.
In the present case, an even higher level of scrutiny applies
because the restrictions at issue come in the form of an
injunction. Madsen, 114 S. Ct. at 2524-26.
A. SeassiRemsiesien lnleneions Toiesse Dishes sho Pei
Reaiieniieand he Heie! ateal
Madsen.
Some injunctions qualify as prior restraints. Jd. at 2524 n.2.
("Prior restraints do often take the form of injunctions”)
(citations omitted). Indeed, this Court has typically reviewed
injunctive restrictions on expressive activities as presumptively
unconstitutional prior restraints. E.g., National Socialist Party
23
of America v. Village of Skokie, 432 U.S. 43 (1977) (per curiam)
(injunction against marches, distribution of pamphlets, and
display of materials); Organization for a Better Austin v. Keefe,
402 US. 415 (1971) (injunction against distribution of
literature); Carroll v. President of Princess Anne, 393 U.S. 175
(1968) (court order restraining public rallies and meetings).
Even when a particular an injunction does not constitute a
prior restraint, injunctive restrictions on expressive activity
violate the right to free speech unless, at a minimum, the
restrictions “burden no more speech than necessary to serve a
significant government interest." Madsen, 114 S. Ct. at 2525.
The Madsen Court explained further, id. at 2526, that this test
is equivalent to the test set forth in the earlier case of Carroll v.
President of Princess Anne, 393 U.S. 175 (1968):
An order issued in the area of First Amendment rights
must be couched in the narrowest terms that will
accomplish the pin-pointed objective permitted by
constitutional mandate and the essential needs of public
order. .. . In other words, the order must be tailored as
precisely as possible to the exact needs of the case.
Carroll, 393 U.S. at 183-84. See Madsen, 114 S. Ct. at 2526."
In the present case, the speech-restrictive portions of the
preliminary injunction are subject to the traditional rule of
prior restraints, rather than the exceptional Madsen category of
content-neutral injunctions which restrict speech only
“incidentally,” in a limited manner, in response to prior
unlawful conduct. Madsen, 114 S. Ct. at 2524 n.2. In particular,
the "cease and desist” provision imposes a licensing scheme on
14. Carroll was a prior restraint case. 393 U.S. at 181. By
simultaneously invoking Carroll while claiming not to apply prior
24
speech — a classic prior restraint — regardless of whether the
injunction as a whole fits inside or outside of the Madsen
exception to the prior restraint doctrine. Infra § V(C).
But regardless of whether the correct standard of review here
is prior restraint analysis or Madsen scrutiny, the injunctive
restrictions at issue are unconstitutional.
2 aes ais )
ays aay ocr, sag aemmeomamee i meee aT
“Any prior restraint on expression comes to this Court with
a ‘heavy presumption’ against its constitutional validity."
Keefe, 402 U.S. at 419 (and cases cited). “Respondent{s] thus
carr{[y] a heavy burden of showing justification for the
imposition of such a restraint." Jd. “In order to be held lawful,
[a prior restraint], first, must fit within one of the narrowly
defined exceptions to the prohibition against prior restraints,
and, second, must have been accomplished with procedural
safeguards that reduce the danger of suppressing constitutionally
protected speech.” Southeastern Promotions Ltd. v. Conrad, 420
U.S. 546, 559 (1975).
Respondents have failed to carry this heavy burden.
The speech of pro-life picketers and sidewalk counselors can
entail a broad variety of expressions - everything from silent
witness, to polite offers of information, to urgent entreaties, to
pointed criticisms, to emotional exclamations. Such speech,
however characterized, cannot be relegated wholesale to the
forbidden categories of obscenity or "fighting words." On the
contrary, pro-life speech "is entitled to the fullest possible
measure of constitutional protection," Members of City Council
v. Taxpayers for Vincent, 466 U.S. 789, 816 (1984) (listing, as
example, "Abortion is Murder"). Hence, no exception to the
prior restraint doctrine can justify the injunctive restrictions at
25
issue.
Moreover, this case presents no extraordinary, overriding
need to suppress speech. In Keefe, this Court held that a private
citizen's allegations of coercion, intimidation, and invasion of
residential privacy were insufficient to justify a prior restraint.
In Nebraska Press Association v. Stuart, 427 U.S. 539 (1976), this
Court found that a private citizen's competing constitutional
right to a fair trial under the Sixth Amendment was insufficient
to justify a prior restraint. In New York Times v. United States,
403 U.S. 713 (1971), this Court held that even national security
interests fell short of justifying a prior restraint. A fortiori, the
prior restraint in this case - which seeks only to prevent alleged
“harassment” — is plainly unconstitutional.
In the context of protected expressive activities, such as
picketing, leafletting, and pure verbal communication, a court
may "restrain only unlawful conduct and persons responsible for
conduct of that character." NAACP v. Claiborne Hardware Co.,
458 U.S. 886, 924 n.67 (1982) (emphasis added). In short,
An order issued in the area of First Amendment rights
15. In Claiborne Hardware, this Court reviewed a state court order
activists. This Court held that “the presence of activity protected by the
First Amendment imposes restraints on the grounds that may give rise to
damages liability and on the persons who may be held accountable for
those damages.” Jd. at 916-17 (citation omitted). “For the same reasons,”
this Court continued, “the permanent injunction” imposed against the
activists “must be dissolved." Jd at 924 n.67. This Court declared that the
lower court, on remand, “may wish to vacate the entire injunction" if the
facts indicated that the order was “no longer necessary”; at a minimum,
however, “the injunction must be modified to restrain only unlawful
conduct and the persons responsible for conduct of that character,” id.
(emphasis added).
26
must be couched in the narrowest terms that will
accomplish the pin-pointed objective permitted by
constitutional mandate and the essential needs of public
order. ...In other words, the order must be tailored as
precisely as possible to the exact needs of the case.
Carroll, 393 U.S. at 183-84. It follows that injunctive provisions
which restrict peaceful, public expression in traditional public
forum property violate the doctrine of prior restraints. Rather
than limit itself to unlawful activities, such as blockading or
trespass, the injunction in this case bans a broad range of
peaceful expressive activity, including picketing, leafletting, and
even mere conversation.
Therefore the speech-restrictive portions of the preliminary
injunction, i.e., the floating bubble and fixed buffer zones and
the "cease and desist” requirement, are unconstitutional prior
restraints on speech.
C. Madsen Establishes D ——
sachets for Gnaeths Retarieains talenial
In Madsen v. Women's Health Center, Inc., 114 S. Ct. 2516
(1994), this Court recognized a limited exception to the prior
restraint doctrine.
In Madsen, this Court confronted a "36-foot buffer zone
around the clinic entrances and driveway,” 114 S. Ct. at 2530.
This Court upheld the zone in part and struck it down in part.
Id. Insofar as this Court upheld the 36-foot zone, its ruling
reflected the highly unusual factual circumstances at the
abortion facility in Melbourne, Florida:
— the Madsen defendants had "repeatedly" interfered with the
physical access of patients and staff, id. at 2526;
— the physical layout of the area produced “narrow confines"
for traffic, id. at 2527;
27
— a previous, narrower injunction failed to protect access, id.
at 2527-28.
Especially important to this Court in Madsen was the factual
finding, which the Madsen defendants did not properly
challenge on appeal, that the "presence" of protesters "standing,
marching, and demonstrating” near the entrance "interfered
with ingress and egress,” id. at 2527-28. As a matter of fact,
therefore, allowing the Madsen defendants to remain on the
adjacent sidewalk was “not a viable option,” id. at 2527.
By simultaneously striking down the 36-foot zone as applied
to adjacent private property, this Court in Madsen established
important outer limits to the use of “buffer zones": "Absent
evidence that [defendants] . . . have obstructed access to the
clinic, blocked vehicular traffic, or otherwise unlawfully
interfered with the clinic's operation, [a] buffer zone fails to
serve the significant government interests” at stake. Jd. at 2528.
The in banc Second Circuit in the present case rejected two
crucial factors in the Madsen analysis: first, the need for initial
resort to a narrower, nonspeech-restrictive injunction before
imposing broader restrictions; and second, the need for a
showing of pervasive lawbreaking to which the broader
injunction provides a remedial measure. These factors are not
mere incidental features of Madsen; rather, they represent
Madsen holds that speech-restrictive injunctions trigger a
stricter standard of review than speech-restrictive ordinances.
114S. Ct. at 2524-26. Yet Madsen upheld a ban on even peaceful
demonstrating on an entire sidewalk. Jd. at 2526-28. An
ordinance or statute imposing such a ban would clearly violate
28
a vast array of this Court's precedents,” precedents which
Madsen did not purport to overrule. Hence, the Madsen
decision must depend upon the rather extraordinary factual
circumstances this Court identified. Otherwise, it would follow
from Madsen that courts could issue speech-restrictive
injunctions virtually upon demand.” Furthermore, whereas
Madsen sets a stricter standard for injunctions than for
ordinances and statutes, if Madsen is not limited to the unusual
facts of that case, it would follow a fortiori that ordinances or
statutes imposing speech-free zones would pass constitutional
muster."
Misreading Madsen would distort that ruling into a large-scale
amputation of this Court's First Amendment jurisprudence, as
16. Eg. Thornhill v. Alabama, 310 U.S. 88 (1940) (ban on picketing
outside premises of business unconstitutional); United States v. Grace, 461
U.S. 171 (1983) (ban on display of sign or banner on sidewalk outside
Supreme Court neice =n these quintessen ue ym
not ibit all communicative ‘
oan a OS 481 (1988); Perry Educ. Ass'n v. Perry Local
Educators’ Ass'n, 460 U.S. 37, 45 (1983).
17. Some lower courts have done precisely this. £g., Planned
Parenthood Shasta-Diablo, Inc. v. Williams, 10 Cal. 4th 1009, 898 P.2d 402,
43 Cal. Rptr. 2d 88 (1995) (upholding, after remand in light of Madsen,
injunction banishing all picketing and sidewalk counseling from
sidewalk adjacent to an abortion business even where access was not an
issue), petition for cert. filed, 64 U.S.L.W. 3287 (U.S. Oct. 6, 1995) (No. 95-
576).
18. Regrettably, lower courts have misread Madsen in precisely this
manner. E.g., Hill v. City of Lakewood, 911 P.2d 670 (Colo. Ct. App.
1995), cert. denied, No. 95SC593 (Colo. Feb. 26, 1996), petition for cert.
filed sub nom. Hill v. Colorado, 64 US.L.W. _ (U.S. May __, 1996) (No.
95-__); Sabelleo v. City of Phoenix, 68 F.3d 1169 (9th Cir. 1995), petition
for cert. filed, 64 U.S.L.W. 3625 (U.S. Mar. 5, 1996) (No. 95-1415).
29
reflected in the decision below. By contrast, taking Madsen at
its word, and in the context of the body of this Court’s
precedents, the proper constitutional review of an injunction
entails the following searching analysis:
1. Have the plaintiffs satisfied the requirements for
equitable relief in general, i.e., shown irreparable harm and a
likelihood of success of the merits upon one or more claims?
E.g., Doran v. Salem Inn, Inc., 422 U.S. 922, 931 (1975); Madsen,
114 S. Ct. at 2524 n.3.
2. Is the injunctive remedy tailored to the particular causes
of action for which the plaintiffs have shown a likelihood of
success? Madsen, 114 S. Ct. at 2523 ("the court hearing the
action is charged with fashioning a remedy for a specific
deprivation, not with the drafting of a statute addressed to the
general public"). |
3. Is the injunction limited to those defendants who
threaten the irreparable harm in question? Jd. at 2524 n.3;
NAACP v. Claiborne Hardware Co., 458 U.S. at 924 n.67; Rizzo
v. Goode, 423 U.S. 362, 375 (1976); Memphis v. Light, Gas &
Water Division v. Craft, 436 U.S. 1, 8 (1978).
4. Is the injunction sufficiently definite to satisfy Rule
65(d)? See Rule 65(d), Fed. R. Civ. P. ("Every order granting an
injunction . . . shall be specific in terms [and] shall describe in
reasonable detail . . . the act or acts sought to be restrained").
If the injunction restricts only conduct, not speech, and the
answer to all of the preceding questions is affirmative, the
analysis ends here and the injunction is upheld. If the
injunction imposes restrictions on expressive activity, however,
the analysis proceeds with the following:
5. Does the injunction fall within the Madsen exception to
the prior restraint doctrine (i.e., the order only restricts speech
30
indirectly, only restricts expressive activity because of prior
unlawful conduct, and only imposes content-neutral restrictions)?
Madsen, 114 S. Ct. at 2524 n.2.
6. Do the restrictions on expressive activity represent a
"last resort,” rather than a “first resort," because a narrower
injunction has failed? Jd. at 2527-28.
7. Have the enjoined parties engaged in pervasive unlawful
conduct making restrictions on expressive activity the only
viable option? Jd.
8. Are there overriding government interests (in addition
to the necessary private interests) that support the government
action entailed in a court's imposition of the particular
restrictions at issue? Jd. at 2525-26.
9. Are the terms of the injunction narrowly tailored to
both the private interests and the government interests so as to
further these interests while burden burdening no more speech
than necessary? Jd. at 2523, 2525.
10. Are the terms of the injunction sufficiently clear to avoid
unconstitutional vagueness? E.g., Grayned v. City of Rockford,
408 U.S. 104, 108-09 (1972).
Again, if the answers to all of these inquiries is affirmative,
the analysis ends and the injunction is upheld. If, on the
contrary, the answer to any of the foregoing questions is
negative, the injunction violates the First Amendment and the
offending terms must be modified or deleted.
By no means does Madsen grant courts carte blanche authority
to create injunctive “floating speech-free zones" and other
restrictions on speech at every demonstration site. On the
contrary, only application of the thorough analysis set forth
above comports with both Madsen and the entirety of this
Court's previous decisions and affords the respect due the
31
freedom of speech in this nation. As demonstrated below, the
speech-free zones and the "cease-and-desist” provision fail to
satisfy this governing standard.
IV. THE FIFTEEN-FOOT ZONES AND THE CEASE-
AND-DESIST PROVISION FAIL FIRST AMEND-
MENT SCRUTINY FOR WANT OF A SUP-
PORTING INTEREST.
The preliminary injunctive restrictions at issue must fail for
want of underlying private interests.
To obtain a preliminary injunction, a plaintiff must
demonstrate, inter alia, a likelihood of success on the merits of
one or more underlying claims. E.g., Doran v. Salem Inn, Inc.,
422 U.S. 922, 931 (1975). These underlying claims then supply
the "legs" on which the injunction must "stand" in the face of
First Amendment scrutiny. Madsen, 114 S. Ct. at 2523 ("the
court hearing the action is charged with fashioning a remedy for
a specific deprivation, not with the drafting of a statute
addressed to the general public"), 2525 ("injunctive relief should
be no more burdensome to the defendants than necessary to
provide complete relief to the plaintiffs") (internal quotation
marks and citation omitted), 2526 (injunction must be written
in “the narrowest terms that will accomplish the pin-pointed
objective") (internal quotation marks and citation omitted).
In the present case, the district court initially held that
respondents were likely to prevail on three of their claims: (1)
the federal “deprivation” claim under 42 U.S.C. § 1985(3); (2) a
state statutory antidiscrimination claim analogous to § 1985(3);
and, (3) a state trespass claim. 799 F. Supp. at 1429-32.
This Court subsequently rejected the legal underpinnings of
respondents’ § 1985(3) claim. See Bray v. Alexandria Women's
Health Clinic, 506 U.S. 263 (1993). In the wake of Bray, the
district court in the present case dismissed respondents’ §
32
1985(3) claim, thereby removing that cause of action as a
possible supporting basis for the injunction. Pro-Choice
Network of Western New York v. Project Rescue Western New
York, 828 F. Supp. 1018 (W.D.N.Y. 1993) (Br. App. la).
The district court's ruling that respondents were likely to
prevail on their state antidiscrimination claim rested squarely
upon the court's ruling regarding § 1985(3). See 7” F. Supp. at
1431 (success on state claim follows "by definition from success
on § 1985(3) claim). Thus, the district court's holding regarding
this claim topples "by definition” with the § 1985(3) claim.
The only other claim for which the district court held
respondents likely to prevail was respondents state trespass
claim. Thus, that claim provides the sole equitable and
constitutional basis for the current preliminary injunction.
The preliminary injunction already enjoins all trespassing at
abortion facilities. Pet. App. A-183. Plainly, a trespass ae
cannot also support restrictions on nontrespassory activity,
as " free zones" or a “cease and desist” order in public
forum property. Absent an underlying foundation in the
lawsuit, these speech-restrictive terms of the injunction become
totally gratuitous and, hence, violative of the First Amendment
under ary standard of review.”
19. The district court already acknowledged that “if plaintiffs file
an amended complaint setting forth a [new] § 1985(3) claim, the Court
will likely be required to hold « supplemental hearing vo reevaluate
plaintiffs’ ability, after Bray, to establish, by a preponderance of
evidence, their likelihood of success on [that claim]... . 828 F. Supp. at
1026. The district court perceived no immediate need to undertake this
task, however, because the court had grounded the preliminary
injunction not only on § 1985(3) but also on two statelaw claims. Id. at
1026 n.4. This ignores the possiblity that “even though the Disc
Court had jurisdiction over state-law claims, judgment on those
33
The Second Circuit declined to address the question whether
the injunctive restrictions failed for want of corresponding
underlying causes of action. 67 F.3d at 367 (panel); 67 F.3d at
386 (in banc). The court reasoned that this was a question of
state law, and, because petitioners had not yet raised the state
law issue in the district court, that court should be the first to
address it. Jd.
The approach of the Second Circuit is fundamentally flawed.
The want of underlying meritorious claims supporting
restrictions on speech is itself a factor in the constitutional review.
First Amendment analysis requires assessment of the
countervailing interests; if there simply are no bases upon which
to rest the challenged injunctive restrictions on speech, those
restrictions must fall. Cf Madsen, 114 S. Ct. at 2523, 2525;
Texas v. Johnson, 491 U.S. 397, 403-04 (1989) (when assessing
whether an asserted interest justifies a restriction on speech, one
“possibility is that the . . . asserted interest is simply not
implicated on these facts, and in that event the interest drops
out of the picture").”
alone cannot support the injunction that was entered.” Bray, 506 U.S. at
285. As noted in the text, the probability of respondents’ success on one
of these claims (antidiscrimination) rested solely on their failed § 1985(3)
claim. And the other state-law claim - trespass - cannot support
20. Even if the lack of underlying causes of action were purely a
question of state law, the Second Circuit ought to have reached the issue.
This Court has long counseled that courts should "never . . . anticipate a
question of constitutional law in advance of the necessity of deciding it,”
Brockett v. Spokane Arcades Inc., 472 U.S. 491, 501 (1985) (internal
lack of a supporting cause of action and proceeding to the constitutional
merits, the Second Circuit turned the established adjudicative order
upside down.
See
An injunctive restriction cannot be necessary where the party
seeking the relief is not likely to prevail on any claim pertinent
to that restriction. The restrictions on nontrepassory expressive
activity at issue here are unconstitutional for want of
corresponding private interests.
V. THE CEASE-AND-DESIST PROVISION
VIOLATES THE FIRST AMENDMENT.
A. TheMadsen Decision C 1s she Invalidetion of 1
"C | Desist" Provisi
In Madsen, this Court struck down as unconstitutional an
injunctive provision virtually identical to the "cease and desist"
provision at issue here. Madsen was eminently correct in so
ruling, and there is no reason to reach a different result here.
The "no approach” restriction in Madsen enjoined the Madsen
defendants:
At all times on all days, in an area within three-hundred
(300) feet of the Clinic, from physically approaching any
person seeking the services of the Clinic unless such person
indicates a desire to communicate by approaching or by
inquiring of the [defendants]. In the event of such
invitation, the [defendants] may engage in communications
consisting of conversation of a non-threatening nature and
by the delivery of literature within the three-hundred (300)
foot area but in no event within the 36 foot buffer zone.
Should any individual decline such communication,
otherwise known as sidewalk counseling, that person shall
have the absolute right to leave or walk away and the
[defendants] shall not accompany such person, encircle,
The nonconstitutional aspects of this error, namely, the absence
of an essential element of equitable relief, is plain and evident on the
record. Hence, the Court has the discretion to decide the case on this
basis as well. See Rule 24.1(a).
35
surround, harass, threaten, or physically or verbally abuse
Semen whe choam am to commeniaats with
114 S. Ct. at 2532 n.3 (quoted in opinion of STEVENS, J.
to ail communications, however peaceful. Further, this
restriction made the speakers’ right to communicate dependent
upon the consent of the audience. This Court held that these
features doomed the Madsen "no approach" provision:
(It is difficult, indeed, to justify a prohibition on all
uninvited approaches of persons seeking the services of the
clinic, regardless of how peaceful the contact may be,
without burdening more speech than necessary to prevent
Ee ee See cam w the dinie Absent
evidence protesters’ speech is independently
proscribable (ie., “fighting words” or threats), or is so
infused with violence as to be indistinguishable from a
As a general matter, we have indicated that in public debate
our Own citizens must tolerate insulting, and even
Outrageous, speech in order to provide adequate breathing
space to the freedoms protected by the First Amendment.
Provision; it burdens more speech than is necessary to
prevent intimidation and to ensure access to the clinic.
Id. at 2529 (internal quotation marks, citation, and footnote
omutted; emphasis in original).
The "cease and desist" provision in the instant case is likewise
of how peaceful." The “cease and desist” provision, like the "no
approach" zone in Madsen, creates an “audience veto” by
36
imposing a “consent requirement" upon the speech and
handbilling of sidewalk counselors.
These obvi ae ey of this
provision. Yet some lower courts — like the Second Circuit in
this case — have refused to follow Madsen on this very point,
claiming instead to have found some purported basis for
distinguishing Madsen.” Such efforts to nullify Madsen's clear
holding are specious.
The Oakes opinion below emphasized a difference in the way
the "no approach" zone in Madsen worked. In Madsen, sidewalk
counselors could not approach unless invited, whereas in the
67 F.3d at 390. This distinction is irrelevant.
First, this distinction does not touch upon the rationale
Madsen gave for its holding. The no invitation/disinvitation
distinction alter the reality that in both cases, the speakers’
freedom to communicate rests at the mercy — the consent — of
the audience.
Second, the distinction between denial of consent and
revocation of consent is legally insubstantial. This Court
rejected any supposed difference of this kind long ago:
To say that he who is free to withhold at will the privilege
of publication exercises a power of censorship prohibited
by the Constitution, but that he who has unrestricted
21. Eg, Sabelko v. City of Phoenix, 68 F.3d 1169 (9th Cir. 1995),
petition for cert. filed, 64 U.S.L.W. 3625 (U.S. Mar. 5, 1996) (No. 95-1415);
Hill v. City of Lakewood, 911 P.2d 670 (Colo. Ct. App. 1995), cert. denied,
No. 95$C593 (Colo. Feb. 26, 1996), petition for cert. filed sub nom. Hill v.
Colorado, 64 US.L.W.__ (U.S. May __, 1996) (No. 95-_).
37
power to withdraw the privilege does not, would be to
ignore history and deny the teachings of experience, as well
as to perpetuate the evils at which the First Amendment
was aimed.
_ 22. In Jones, it was a governmental agent who had the
unrestrained and unreviewable discretion,” id at 600, to revoke
permission to speak. That the present case involves the consent of a
Private actor makes no difference. Here, as in Madsen, it is the
government that enforces the private actor's "veto" by contempt of court.
Thus, while a private party's exclamation "Shut up!” itself implicates no
38
plainly runs afoul of Madsen's square holding.
B. The"C { Desist” Provision I
“Audience Veto,"
This Court has long condemned “audience veto" provisions.
E.g., Forsyth County v. Nationalist Movement, 505 U.S. 123, 134-
35 (1992) ("Speech cannot be financially burdened, any more
than it can be punished or banned, simply because it might
offend a hostile mob") (footnote and citations omitted). “The
or resentment does not render the expression unprotected."
R.A.V. v. City of St. Paul, 505 U.S. 377, 414 (1992) (White, J.,
joined by Blackmun, O'CONNOR, and STEVENS, JJ.,
concurring in the judgment). “Indeed, if it is the speaker's
opinion that gives offense, that consequence is a reason for
according it constitutional protection." Simon & Schuster, Inc.
v. Members of New York State Crime Victims Board, 502 U.S. 105,
118 (1991) (internal quotation marks and citations omitted).
Accord Madsen, 114 S. Ct. at 2529 (overturning injunctive ban
on display of "images observable inside abortion facility; "[tJhe
only plausible reason a patient would be bothered . . . would be
if the patient found the expression contained in such images
In Simon & Schuster, this Court went so far as to disclaim any
legitimacy for a state “interest in limiting whatever anguish
[crime] victims may suffer from reliving their victimization.”
502 U.S. at 118. In Cantwell v. Connecticut, 310 U.S. 296 (1940),
this Court held that the First Amendment shielded Jehovah's
beliefs. The desire to insulate abortion patrons from efforts to
dissuade them cannot qualify as a legitimate justification for an
requires people to put up with annoyance and uninvited
39
persuasion.” ISKCON wv. Lee, 505 US. 672, 712 n.* (1992)
(SOUTER, J., joined by Blackmun and STEVENS, JJ., concurring
expressive activity in public places to the unbridled discretion
of a licensor. E.g., Shuttlesworth v. Birmingham, 394 US. 147
(1969); Cox v. Louisiana, 379 US. 536 (1965); Lovell v. Griffin,
303 U.S. 444 (1938). Such laws impose an impermissible prior
mem era aoe Yet the
abortion businesses, backed by the federal contempt power, to
expel any unwanted speakers from a circle fifteen feet in radius.
This “consent” scheme stifles any speech that "may strike at
40
prejudice and preconceptions and have profound unsettling
effects as it presses for acceptance of an idea.” Terminiello v.
Chicago, 337 US. 1, 4 (1949). Furthermore, "the mere existence
of the licensor’s unfettered discretion . . . intimidates parties
into censoring their own speech, even if the discretion and
power are never actually abused.” City of Lakewood v. Plain
Dealer Publishing Co., 486 U.S. 750, 757 (1988). "The First
Amendment prohibits the vesting of such unbridled discretion
in a government official." Forsyth County, 505 US. at 133
(footnote omitted). In the same way, the First Amendment
prohibits the government from deputizing private citizens as
unbridled censors of speech in public fora. Government "may
not empower its licensing officials [- here, ‘anyone or any
group of persons,’ Pet. App. A-184 -] to roam essentially at
will, dispensing or withholding permission to speak, assemble,
picket, or parade, according to their own opinions . . . .’
Shuttlesworth, 394 U.S. 147, 153 (1969).
D. The'C t Desig” F 1 Tecoees
How does a "group of persons” indicate something? If a
woman continues to listen while her companion or an escort
yells "Back off!” may the counselors speak to the woman? See
67 F.3d at 391 n.5 (declining to decide this). More practically,
what counts as a “verbal and nonverbal indication" of a desire
not to be counseled? Respondents’ counsel thought the
obligation triggered “by gestures, facial expressions, 4
companion saying no,” dkt. 65, at 1322 (Tr. of 2/14/91)
41
Caren othe sive "leave me alone or words to that
ect, or gestures which could be interpreted to comport with the
word leave me alone," id. at 1323 (emphasis added), by "a shaking
of a head or walking away,” dkt. 88b, at 1336 (Tr. of 3/26/91)
or by “any typeof speech or body act which would indicat a
to be counseled, id. at 1337. Does inui
to walk to or from the abortion facility 29 camera
leave, or walk away,” and therefore qualify as a nonverbal
Pes massty injunction seems to contemplate this. Pet. App. A-
district court interpreted a wave of the hand, and
merely holding up a hand, as sufficient when holding petitioner
De he amaamnys for falhase to ome and desta. JA
, about grunts, skeptical looks, or the failure to make
is limitless. What if the person counseled is willing to hear out
a rejection of one counselor "is i * si
ah pt applicable to all ‘sidewalk
The Second Circuit sought to justify the " ;
“f cease and desist”
ay angen anr ites dee ¢8 67 F.3d at 392.
faulty reasoning threatens the First Amendment. The
42
captive audience doctrine does not apply to auditors and
viewers who are free to come and go in a public forum.
The captive audience doctrine does not strip constitutional
protection from all unwelcome speech. On the contrary:
While this Court has recognized that government may
properly act in many situations to prohibit intrusion into
the privacy of the home of unwelcome views and ideas
which cannot be totally banned from public dialogue . . . .
we have at the same time consistently stressed that we are
often "captives" outside the sanctuary of the home and
subject to objectionable speech.
Cohen v. California, 403 U.S. 15, 21 (1971) (internal quotation
marks and citations omitted). Thus, this doctrine applies "only
when the speaker intrudes on the privacy of the home... or
the degree of captivity makes it impractical for the unwilling
viewer or auditor to avoid exposure." Erznoznik v. City of
Jacksonville, 422 U.S. 205, 209 (1975) (citations and footnotes
omitted). "These situations are different from the traditional
settings [i.e., public fora] where First Amendment values
inalterably prevail." Lehman v. City of Shaker Heights, 418 US.
298, 302 (1974) (plurality). "Nothing in the Constitution
compels us to /isten to or view any unwanted communication,
whatever its merit," Rowan v. United States Post Office, 397 U.S.
728, 737 (1970); nevertheless, the Constitution does not permit
a disgruntled auditor or viewer to "silence dissidents simply as
a matter of personal predilections," Cohen, 403 US. at 21.
People are regularly "captives" of whatever expressive activity
happens to take place where they are obligated to be. The
witness, party, or attorney who must attend a court hearing, of
Cohen v. California, 403 U.S. 15 (1971); United States v. Grace,
461 U.S. 171 (1983), the student who must go to school, of.
Tinker v. Des Moines Indep. School Dist., 393 U.S. 503 (1969);
a ee ee
|
|
|
43
Grayned 2. City of Rockford, 408 U.S. 104 (1972), the citizen
with business at a government building, cf Edwards v. South
Carolina, 372 U.S. 229 (1963), and most definitely the employee
desiring to keep his job in a particular store, of. Thornhill v
Alabama, 310 U.S. 88 (1940); NAACP v. Claiborne Modwore
Co., 458 U.S. 886 (1982) — each of these has no choice but to
attend the place in question. But the "captive audience"
doctrine does not abrogate the First Amendment in these
places, as the above-cited cases illustrate.
As the original panel majority below explained, "Although
the prospective counselee need not listen to the counselor, she
does not have the right to stop the counselor's comauenication
absent any evidence that the communication is independent!
proscribable," 67 F.3d at 371 (citing Madsen) (emphasis in
original). "[H]owever insistent the sidewalk counselor may be
the counselee on the public street or sidewalk can escape the
unwanted message simply by continuing to walk towards and
entering the clinic." P.C. Network IV, 67 F.3d at 406 (Meskill
J., dissenting). As Madsen forcefully reiterated, "As a snend
matter, we have indicated that in public debate our own citizens
must tolerate insulting, and even outrageous, speech in order to
ae adequate breathing space to the freedoms protected by
the First Amendment." 114 S. Ct. at 2529 (internal quotation
marks and citations omitted).
Thus, while protection of a person "captive" in hi
might justify an ordinance banning picketing sh saa
front of that home, Frisby v. Schultz, 487 U.S. 474, 484-85 (1988)
concern for shielding even a resident cannot justify bans i
leafletting on residential streets, Organization for a Better Austin
v. Keefe, 402 U.S. 415, 420 (1971), or marching past that same
house, Gregory v. City of Chicago, 394 U.S. 111 (1969). And
while concern for "the patient held ‘ captive’ by medical
44
circumstance," Madsen, 114 S. Ct. at 2526, may justify
restrictions on noise audible to that patient sitting inside a
facility, id. at 2528, no such concern can justify barring speakers
from approaching and addressing that very same patient on a
public way, id. at 2529.
Sidewalk counseling can be (and generally is) completely
peaceful. Indeed, in this case the "cease and desist” provision
only applies to "conversation of a nonthreatening nature,” Pet.
App. A-184, because only such counseling is permitted within
the fifteen-foot zones, id. Thus, the "cease and desist" provision
operates exclusively to subject peaceful conversation to an
audience veto. As Judge Altimari pointed out below, this
represents "an unprecedented and unwarranted incursion on
freedom of speech." 67 F.3d at 410 (dissent).
VI. THE FIXED AND FLOATING BUBBLE ZONES
VIOLATE THE FIRST AMENDMENT.
The preliminary injunction constructs invisible fifteen-foot
speech-free zones which prohibit "demonstrating" within
fifteen feet of any "doorways or doorway entrances, parking lot
entrances, driveways and driveway entrances" of any abortion
facilities in the Western District of New York as well as within
fifteen feet of "any person or vehicle seeking access to or
leaving” any abortion facility in the Western District of New
York ("floating bubble zones"). Pet. App. A-183. These
speech-free zones violate the First Amendment.
As discussed above, Madsen held that a fixed buffer zone could
be a valid remedial measure if the factual circumstances were so
extreme as to warrant such relief. Madsen did not approve of
"floating" bubble zones; on the contrary, this Court invalidated
a similar "no approach” restriction that effectively created
floating bubble zones around patients within 300 feet of an
abortion facility. 114 S. Ct. at 2529. Supra § V(A). In any
45
event, the speech-free zones at issue here do not pass muster
under the stringent Madsen standard.
| First, no extraordinary record of pervasive lawlessness exi
in this case. The district court found that the hilineiiatens
were “usually peaceful in nature," 799 F. Supp. at 1423, and that
even the so-called "constructive blockades" were not "physically
blocking patient access," id. at 1424; see also id. at 1424 n.5. A
clear majority of the in banc Second Circuit forthrightly agreed
that this case does not present the record of lawlessness that this
Court faced in Madsen. 67 F.3d at 39% (Winter opinion - ten
judges), 400-01 (Meskill dissent - two judges). But instead of
reversing the zones on this basis, the Second Circuit dismissed
the need for supporting facts: “an extensive record of coercion
or obstruction is not required” to justify speech-free zones, the
court held. Jd. at 396 (Winter opinion). With a stroke of the
pen, the Second Circuit thereby severed the Madsen result from
its exceptional factual moorings, distorting that decision into a
carte blanche authority for erecting buffer zones to protect “[t]he
timid from the "chilling effect" of demonstrations. 67 F.3d at
396 (Winter opinion). This is, of course, the First Amendment
turned upside down. "If absolute assurance of tranquility is
required, we may . well forget about free speech. Under such
a4 requirement, the only ‘free speech' would consist
platitudes. That kind of speech does not need ss
protection." City of Houston v. Hill, 482 U.S. 451, 462 n.11
(1987) (editing marks, quotation marks, and citation omitted).
Patent are
? of a narrower inj i
Compare Madsen, 114 S. Ct. at 2527-28. The TRO imposed
floating bubble zones just days after respondents filed suit. JA
23. There was no initial effort to secure access with a less
restrictive, speech-protective injunction. The district court then
46
added the fixed buffer zones in the preliminary injunction
without identifying any need for this expanded restriction.
Third, the speech-free zones prohibit far more speech than
necessary. In Madsen, this Court ruled that speech-restrictive
injunctions trigger a stricter standard of review that the "time,
place, and manner" analysis governing ordinances and —
of general applicability. 114S. Ct. at 2524-26. a th an,
an injunctive restriction that fails the —— —
requirement of time, place, and manner analysis, at “
ipso facto violates the "more stringent Madsen requiremen . -
that the injunction "burden no more speech than necessary,
at 2525. A statute or ordinance "is narrowly tailored if it targets
and eliminates no more than the exact source of the evil .
seeks to remedy." Frisby v. Schultz, 487 US. 474, 485 (198 )
(citation omitted). Consequently, an anti-speech injunction
must be at least as tightly focused in its proscriptions.
The fixed and floating fifteen-foot speech-free zones at issue
here reflect no such narrow tailoring. These zones do not a
specifically at evils within the allowable areas of State contro
but, on the contrary, sweep[] within [their] ambit other
activities that in ordinary circumstances constitute an exercise
of freedom of speech or of the press.” Thornhill v. Alabama,
310 U.S. 88, 98 (1940). “Without interfering with normal me
activities, daytime picketing and handbilling on public groun
_.. can effectively publicize” the speakers’ message. Grayned,
408 U.S. at 118-19. Yet the zones prohibit even re
sacrosanct First Amendment conduct as holding a placar
containing an antiabortion message, passive leafletting A
handbilling, silent picketing and even the mere rer. ~
protest.” 67 F.3d at 401 (Meskill, J., dissenting). Such a bro -
ban is not “necessary for the maintenance of peace and
tranquility on the public sidewalks surrounding the building,
47
United States v. Grace, 461 U.S. 171, 182 (1983) (emphasis
added); hence, these restrictions violate Madsen's narrow
tailoring requirement. Other parts of the preliminary
injunction already prohibit all trespassing, obstructive conduct,
and disruptive noise, Pet. App. A-183 to A-184; all that the
speech-free zones add are a ban on peaceful, nonobstructive
demonstrations on public sidewalks or rights of way.
Governmental restrictions on expressive activity "can find
constitutional justification only by dealing with the abuse [of
rights]. The rights themselves must not be curtailed.” DeJonge
v. Oregon, 299 U.S. 352, 364 (1931).
Fourth, the ban on “demonstrating” in the fixed and floating
speech-free zones is unconstitutionally vague. Petitioners
cannot know with any certainty what the term "demonstrating"
includes. The dissent to the Second Circuit's in banc decision
described this term as including "the entire universe of
expressive activity,” 67 F.3d at 401, and the majority opinions
did not question this interpretation. If this view is correct, the
buffer and bubble zones are truly "First Amendment free
zones,” cf. Board of Airport Comm'rs v. Jews for Jesus, Inc. 482
U.S. 569, 574 (1987). On the other hand, if "demonstrating"
includes some subset of the universe of expression, then the
contours of this term are vague.
Some activities clearly constitute demonstrating, e.g.,
picketing or holding a rally. The district court construed
sidewalk counseling - leafletting and conversation - to be a
"form of demonstrating,” Pet. App. A-183. Respondents
interpret demonstrating to include scolding abortion staff for
their work. Pst. App. A-208 (exhibit to contempt request).
What about a silent vigil? Wearing a pro-life tee-shirt or
button? Praying the rosary? These are not abstract hypothetical
questions~individuals engaging in "demonstrating" have to stay
48
fifteen feet from facility entrances and cease their
"demonstrating" whenever someone coming from or going to
the facility (i.e., radiating a floating bubble), passes within
fifteen feet. As with the other speech-restrictive portions of the
preliminary injunction, the result is that the exercise of free
speech becomes analogous to walking through a mine field. If
the goal is to crush pro-life expression at abortion facilities, one
could hardly devise a better means.
The fixed and floating speech-free zones suffer from
additional constitutional defects specific to their respective
prohibitions.
For their part, the fixed buffer zones reflect no consideration
whatsoever of geographical features. Compare Madsen, 114 S.
Ct. at 2527 (noting importance of specific physical setting).
These fifteen-foot zones represent an arbitrary, one-size-fits-all
approach to at least a half dozen different abortion facilities. JA
35-36. Rather than tailor an order to a particular location,” as
in Madsen, the district court issued a blanket "solution" for the
entire Western District of New York. Pet. App. A-183. If this
order is constitutional, site analysis becomes a farce and fifteen-
foot "no demonstration” zones become standard fare at all
picketed facilities.
The floating zones, meanwhile, are tantamount to a total ban
on picketing and leafletting anywhere in the vicinity of an
abortion facility. A person walking down a sidewalk en route
to or leaving an abortion facility "emanates" a "zone of silence"
23. The facilities here present a variety of physical layouts. The
Buffalo Gyn Womenservices facility at 1241 Main Street, for example,
shares a building with, inter alia, a post office. Dkt. 81 at 189 (Tr.
3/7/91). The Erie Medical Center on 50 High Street, meanwhile,
occupies the fifth floor of a multi-tenant facility which also houses, inter
alia, a restaurant and a pharmacy. Jd. at 237-38.
49
extending fifteen feet in radius. In the face of this "bubble zone
ax which amorphously wafts along immuring any individual
coming or going from the clinic,” 67 F.3d at 410 (Altimari, J.,
dissenting), picketers, leafletters, and anyone else who could be
characterized as demonstrating” must flee from approaching
pedestrians on pain of contempt. In effect, a floating bubble
zone bulldozes all pro-life speech off the sidewalks.“ If a
hapless picketer trying to stay fifteen feet ahead of one
pedestrian should encounter another coming in the opposite
direction, the picketer is trapped without any escape route from
yas If a placard-carrying individual should fail to pay
attention in all directions, a "speech-free bulldozer” may
SNe nents be bas tne 00 conse his sign The only
gimme “rolling blackouts” on speech is to
The floating bubble zones are also unconstitutionally vague,
even aside from the vagueness of the term “demonstrating”
ae He above. There Is simply no way petitioners can know
with any degree of certainty who is a mere passerby (i.e., who
carries no zone) and who is a "person . .. Seeking access to or
leaving [abortion] facilities” (i.e., who carries a fifteen-foot
zone). Nor can petitioners know where the floating zones do
and do not apply. The district court "clarified" the geographical
scope of the TRO by stating that the injunction "1s directed to
activities at the sites chosen for demonstrations," JA 29
(emphasis added), but that is no clarification at all: wherever a
person is “demonstrating” will be by definition the site that
24. It is of course rare that a sidewalk will be more
. than fift
jo Even in the case of such s hypothetically capecious promenade.
ee pentobeee bBiteew bettie” down the path
= crush out pro-life speech by simply walking down the center
even a thirty-foot wide sidewalk.
50
person has chosen for a demonstration. The in banc Second
Circuit refused to remedy this vagueness:
We do not address the issue . . . of how far from a clinic a
floating buffer zone may reach to protect a person “seeking
access to or leaving” the clinic. This is exactly the type of
ssue that is best left to case-by-case adjudication by the
district court. We are confident that the district court will
apply a reasonable geographic scope to the phrase "seeking
access to or leaving."
67 F.3d at 389 n.4. Obviously, the absence of clear geographical
boundaries to the injunction puts petitioners to the untenable
choice of either risking unpredictable contempt judgments or
ceasing to exercise free speech. Grayned, 269 U.S. at 108-09.
The mobile fifteen-foot zones powerfully chill speech.
Petitioners are not state-of-the-art robots outfitted with optical
devices that can precisely and instantaneously calculate a fifteen
foot distance while moving. Whereas a spatial misjudgment
brings with it a $10,000 penalty (or more), Pet. App. A-185,
plus attorney fees, Pet. App. A-186, demonstrators are forced to
maintain a still greater distance to avoid contempt.
In sum, the fixed and floating speech-free zones impose
deeply chilling and flagrantly unconstitutional restrictions on
free speech.
CONCLUSION
This Court should reverse the judgment of the Second
Circuit.
Respectfully submitted,
Jay ALAN SEKULOW * VINCENT
P. MCCAR
JAMES M. HENDERSON, SR. JOSEPH P. SECOLA a
WALTER M. WEBER McCarthy & Secola
‘cae Center for Law P.O. Box 1108
ustice 8 South Main St.
bo oe Jefferson St.N.W. New Milford, CT 06776
(860) 355-0923
Washington, DC 20007
(202) 337-2273 THOMAS P. MONAGHAN
The New Hope Life Center
pt “ FOURNIER ACLJ-New Hope )
OHN G. STEPANOVICH 6375 New Hope Road
— Center for Law New Hope, KY 40052
Justice (502) 549-7020
1000 Regent University Dr.
Virginia Beach, VA 23464 * Counsel of Record
(804) 579-2489 ”
y erin:
May 17, 1996 -
APPENDIX
PRO-CHOICE NETWORK OF WESTERN NEW YORK,
Buffalo Gyn Womenservices, P.C., Erie Medical Center,
Paul J. Davis, M.D., P.C., Shalom Press, M.D., Barnett
Slepian, M.D., Morris Wortman, M.D., Highland
Obstetrical Group, Alexander Women's Group, Plaintiffs,
Vv.
PROJECT RESCUE WESTERN NEW YORK, Operation
Rescue, Project Life of Rochester, Operation Rescue
National, Friends to the Weary, Christian Activist Lifeline,
Christians in Action of Rochester New’ York, Pro-Life
Rescue Movement of Western New York, Rev. Paul
Schenck, Rev. James L. Evans, Rev. Ted Cadwallader,
Dwight Saunders, David Anderson, Jeffrey Baran, Brian
Bayley, Bonnie Behn, Ronald Breymeier, Gilbert Certo,
Scott Chadsey, Kim Day, Constance Debo, Mark Dent,
Wayne Dent, Paul Diemert, Joan Giangreco, Delores
Glaser, Carmelina Golba, Kevin Golba, Linda Hall, Nancy
Hall, Thomas Hall, Rev. Daniel Hamlin, James Handysice,
Pamela Huffnagle, Rev. Johnny Hunter, Donna Johanns,
Eric Johns, Neal Kochis, Paulette Likoudis, Charles
McGuire, Christopher Morrow, Annemarie Nice, Nicholas
Pukalo, Carla Rainero, Thomas Riley, Patricia Ostrander,
Linda Ross, Rev. Robert Schenck, David Smith, Linda
Smith, Mark Sterlace, Joyce Strigel, Karen Swallow-Prior,
Rev. Keith Tucci, Randall Terry, John Thomann, John
Tomasello, Paul Waldmiller, Jr., Nancy Walker, Leonard
Winter, Horace Wolcott, Gerald Crawford, David Long,
John Doe(s) and Jane Doe(s), the last two being fictitious
names, the real names of said defendants being presently
unknown to plaintiffs, said fictitious names being intended
to designate organizations or persons who are members of
defendant organizations, and others acting in concert with
any of the defendants who are engaging in, or intend to
2a
engage in, the conduct complained of herein, Defendants.
No. 90-CV-1004A.
United States District Court,
W.D. New York.
July 30, 1993.
Glenn E. Murray, Lucinda Finley, Isabel Marcus, Buffalo,
NY, for plaintiffs.
Laurence D. Behr, Buffalo, NY, for defendants.
DECISION AND ORDER
ARCARA, District Judge.
INTRODUCTION
Presently before the Court is defendants’ motion to
dismiss the fourth amended complaint and vacate the Court s
February 14, 1992 preliminary injunction. The basis for
defendants’ motion is that dismissal of the federal claim under
42 US.C. § 1985(3) is compelled by the recent decision of the
United States Supreme Court in Bray v. Alexandria Women's
Health Clinic, - US. —, 113 S.Ct. 753, 122 L.Ed.2d 34 (1993),
and without the federal claim, the Court is precluded from
exercising pendent jurisdiction’ over the remaining state-law
claims, or in the alternative, should decline to do so in the
interests of judicial economy, convenience, fairness and
comity. For the reasons set forth below, the Court grants
1. See infra note 7.
3a
defendants’ motion to dismiss as to plaintiffs’ § 1985(3) claim
only, with leave to plaintiffs to amend their complaint; denies
defendants’ motion relative to the continued exercise of
pendent jurisdiction over plaintiffs’ state-law claims; and
denies defendants’ motion to vacate the injunction.
PROCEDURAL BACKGROUND
On February 14, 1992, this Court rendered a Decision and
Order granting plaintiffs’ motion for a preliminary injunction.
Pro-Choice Network of W. New York v. Project Rescue W. New
York, 799 F.Supp. 1417 (W.D.N.Y. 1992). The injunction was
based on a finding of irreparable’ harm and plaintiffs’
likelihood of success on their 42 U.S.C. § 1985(3) claim and
two state law claims: N.Y.Civ.Rights Law § 40-c, and New
York State trespass law. Jd. at 1429-32. The Court noted that
the outcome of Bray, which was at the time pending before the
Supreme Court, could require the Court to revisit its decision.
Id. at 1422 n. 2.
On January 13, 1993, the Supreme Court decided Bray,
holding that the complaint in that case failed to state a claim
upon which relief could be granted under § 1985(3) for an
alleged conspiracy to deprive women of their rights to
interstate travel and to obtain an abortion. — U.S. —, 113
S.Ct. 753.
On January 20, 1993, defendants filed the instant motion
to dismiss the complaint and vacate the injunction based on
their interpretation of Bray that it forecloses the use of §
1985(3) in all abortion protest cases and further, that it is
tantamount to an assertion that this Court never had subject
matter jurisdiction over this action, and therefore has no
ta
authority to continue to exercise jurisdiction over the
state-law claims. Plaintiffs filed a memorandum of law in
opposition to defendants’ motion on February 12, 1993, and
defendants filed a reply memorandum on March 12, 1993.
Prior to oral argument on defendants’ motion, the Second
Circuit Court of Appeals interpreted the Bray decision in
Town of W. Hartford v. Operation Rescue, 991 F.2d 1039 (2d
Cir.1993), leaving open the possibility that plaintiffs seeking
to enjoin the activities of abortion protesters could, after Bray,
state a federal claim under § 1985(3).
This Court heard oral argument on defendants’ motion on
May 5, 1993. At that time, defendants submitted a
supplemental brief in support of their motion, which
addressed Town of W. Hartford. The Court provided plaintiffs
an opportunity to respond to that brief, and specifically to
address the viability of their § 1985(3) claim after Town of W.
Hartford. The last paper relative to this issue was filed May
26, 1993, and defendants’ motion was deemed submitted.
DISCUSSION
Initially, detendants have not specified whether they are
moving for dismissal for lack of subject matter jurisdiction
pursuant to Fed.R.Civ.P. 12(b)(1), or failure to state a claim
pursuant to Rule 12(b)(6). “As frequently happens where
jurisdiction depends on subject matter, the question whether
jurisdiction exists has been confused with the question
whether the complaint states a cause of action."
Montana-Dakota Utils. Co. v. Northwestern Pub. Serv. Co., 341
U.S. 246, 249, 71 S.Ct. 692, 694, 95 L.Ed. 912 (1951).
Where the complaint ‘is so drawn as to seek recovery
Sa
under the Constitution or laws of the United States,’
the district court must entertain the suit unless the
federal claim ‘clearly appear to be immaterial and
made solely for the purpose of obtaining jurisdiction
or where such claim is whoily insubstantial and
frivolous. '
Spencer v. Casavilla, 903 F.2d 171, 173 (2d Cir.1990) (quoting
Bell v. Hood, 327 U.S. 678, 681, 682-83, 66 S.Ct. 773,775, 776
90 L.Ed. 939 (1946)). Defendants assert that Bray sendeced
plaintiffs’ § 1985(3) claim so insubstantial that this Court no
longer has jurisdiction even to decide whether to, in its
discretion, continue to exercise pendent jurisdiction over the
state-law claims. This is an argument that the Court lacks
subject matter jurisdiction and that the complaint must be
dismissed pursuant to Rule 12(b)(1). The Court, however
finds this argument without merit and contrary to the explicit
holding in Bray that "[w]hile respondents’ § 1985(3) causes of
action fail, they were not, Prior to our deciding of this case
wholly insubstantial and frivolous,’ so as to deprive the
District Court of jurisdiction." — U.S. at —, 113 S.Ct. at 768
(quoting Bell, 327 U.S. at 682-83, 66 S.Ct. at 776). Defendants’
reliance on the phrase "prior to our deciding of this case” as
meaning that after January 13, 1993, all such causes of action
are frivolous even if asserted Prior to that date, is a contortion
of the plain meaning of the Court's holding.
The Second Circuit, when presented with a similar
request to find the § 1985(3) claim insubstantial in Town of W.
Hartford, cited the above language in Bray in summaril i
denying the request. 991 F.2d at 1048-49; see also New York
State NOW v, Terry, 961 F.2d 390, 396 (2d Cir.1992) (" Terry
IT") (noting that even if Supreme Court reversed the Fourth
6a
Circuit in Bray, that holding would be of little benefit to
defendants unless Supreme Court also found that the federal
question was, from the inception, wholly insubstantial and
frivolous), vacated, remanded sub nom. Pearson v. Planned
Parenthood Margaret Sanger Clinic, — U.S. —, 113 S.Ct. 1233,
122 L.Ed.2d 640 reinstated, 996 F.2d 1351 (2d Cir.1993); NOW
v. Operation Rescue, 816 F.Supp. 729, 730 (D.D.C. 1993) (court
rejected defendants’ assertion that § 1985(3) claims were so
insubstantial after Bray that it lacked subject- matter
jurisdiction over the action, including the state-law claims);
United States v. Terry, 815 F.Supp. 728, 730 n. 4 (S.D.N.Y.
1993) (noting that "[iJnasmuch as the Preliminary Injunction
was issued prior to the Bray decision, and was not, therefore,
based on claims that were, at the time, ‘wholly insubstantial
and frivolous,’ this Court is not divested of subject-matter
jurisdiction.").
Thus, the Court is not deprived of jurisdiction as a result
of Bray, and must consider whether plaintiffs’ § 1985(3) claim,
as set forth in their fourth amended complaint, states a claim,
after Bray, upon which relief can be granted pursuant to
Fed.R.Civ.P. 12(b)(6).
If dismissal for facial insubstantiality is avoided,
further inquiry into the existence of federal question
jurisdiction . . . turms on the existence of the
underlying claim as pleaded. The existence of such a
claim is of course a necessary predicate for the
existence of federal jurisdiction over it. But if it is
determined on this inquiry that jurisdiction fails
because no such federal claim exists, the proper
disposition is to dismiss on the merits for failure to
state a claim rather than for a want of subject matter
7a
jurisdiction.
Ridenour v. Andrews Fed. Credit Union, 897 F.2d 715, 719 (4th
Cir. 1990) (citing Bell, 327 U.S. at 682, 66 S.Ct. at 776; Mount
Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 279, 97 S.Ct.
a 50 a 471 1977)); see also Town of W. Hartford
v. ation Rescue, 915 F.2d 92, 99-100 (2d Cir.1990):
903 F.2d at 173. Hitech
I. The Viability of Plaintiffs' Section 1985(3) Claim after Bray.
. In general, in order to prevail on a § 1985(3) claim, a
plaintiff must prove that: (1) defendants engaged ni a
conspiracy; (2) for the purpose of depriving, either directly or
indirectly, any person or class of persons of the equal
protection of the laws or of equal privileges and immunities
under the laws; and (3) acted in furtherance of the conspiracy;
(4) whereby a person is either injured in his or her person -
property or deprived of any right or privilege of a citizen of
the United States. See New York State NOW v. Terry, 886 F.2d
1339, 1358 (2d Cir.1989) ("Terry P) (citing Griffin v.
Breckenridge, 403 U.S. 88, 102-03, 91 S.Ct. 1790, 1798, 29
L.Ed.2d 338 (1971), cert. denied, 495 U.S. 947, 110 §.Ct. 2206
109 L.Ed.2d 532 (1990).
The Supreme Court in Bray focused on two requirements:
(1) [a showing that] 'some racial, or perhaps otherwise
class-based, invidiously discriminatory animus [lay] behind the
conspirators’ action,’ [hereinafter "animus" requirement]; and
(2) thet the conspiracy ‘aimed at interfering with rights’ that
are ‘protected against private, as well as official
encroachment.' " [hereinafter "interference" requirement]. i
U.S. at —, 113 S.Ct. at 758 (quoting Griffin, 403 U.S. at 102,
91 S.Ct. at 1798; United Bhd. of Carpenters & Joiners v. Scott,
463 U.S. 825, 833, 103 S.Ct. 3352, 3358, 77 L.Ed.2d 1049
(1983)).
A. Plaintiffs' Fourth Amended Complaint’
Plaintiffs’ first cause of action sets forth a claim under §
1985(3), involving both the right to travel and the right to
obtain an abortion. With respect to the class-based animus
requirement, the fourth amended complaint ("complaint")
alleges that defendants have conspired together for the purpose
of denying women seeking abortions and other family
planning services the equal protection of the laws and equal
privileges and immunities under the law, and further, that
defendants continue to be motivated by an invidiously
discriminatory animus directed at women seeking to exercise
their constitutional and legal right to choose abortions. Item
No. 329, 4 130.
With respect to the right to travel, the complaint alleges
that defendants do not accept decisions of the Supreme Court
that the Constitution protects a woman's right to travel across
state lines to obtain medical care including abortion, id. { 84,
and that defendants’ activities have and continue to disrupt
and prevent the delivery of all health care services to patients
from Western New York, other parts of New York,
Pennsylvania and Ohio. See, e.g., id. qq 94-104.
As to the right to an abortion, plaintiffs allege that
2. Plaintiff's fourth amended complaint was filed on
December 23, 1992. For the most part, it simply added
defendants and updated the case's factual background.
9a
defendants do not accept the decisions of the Supreme Court
that the Constitution guarantees and protects a women's right
to choose abortion and to carry out that decision, and that
they intend to interfere with those rights of women attending
the targeted clinics and providers. Jd. 4 83.
B. The Preliminary Injunction Decision and Order
This Court in its Preliminary Injunction Decision and
Order found that, with respect to the animus requirement:
[ike is clear under Terry that defendants have the
requisite class-based animus. There is uncontroverted
evidence that defendants are opposed to the
constitutional right of a woman to choose to have an
abortion and that the object of their "rescue"
activities is to hinder or prevent women-a group that
is a protected class under § 1985(3)-from exercising
that right.
799 F.Supp. at 1429-30 (citing Terry J, 886 F.2d 1339).
With respect to the interference requirement, this Court
found that plaintiffs had established, by a preponderance of
the evidence, that defendants’ conspiracy infringed both the
right to interstate travel and the right to have an abortion.
[P]laintiffs have presented uncontroverted evidence
that defendants’ "rescue" activities have infringed the
right of women to travel interstate to obtain an
abortion[,) . . . [and that] defendants specifically
target . .. out-of-state patients because they are easily
identifiable.
[With respect to the right to choose to have an
abortion, ] there 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
lla
the record before it, the plaintiffs had not establi
. » the lished that
ce ntaane intended vo hinder the tight to word. The Court
held that deprivation of the right to abortion cannot be
the object of a purely private conspiracy.
Po of the animus requirement, the Supreme Court
abortion . . . . Such action by private persons satisfies
§ 1985(3)'s “state involvement" requirement.
Furthermore, it cannot be disputed that
defendants’ activities have the object of depriving
women of their right to choose to have an abortion.
Id. at 1430, 1431 (citations omitted).
Plaintiffs’ § 1985(3) cause of action and the Court's
findings in its preliminary injunction decision and order were
based on then-controlling Second Circuit precedent with
respect to the animus and interference requirements.
C. The Animus and Interference Requirements after Bray.
On January 13, 1993, the date of the Supreme Court's
decision in Bray, “the judicial landscape of § 1985(3) was
radically altered." Town of W. Hartford, 991 F.2d at 1045. The
district court in Bray had granted injunctive relief under §
1985(3), based on interference with the right to interstate
travel. That decision was subsequently affirmed by the Fourth
Circuit. See NOW v. Operation Rescue, 726 F.Supp. 1483
(E.D.Va.1989), aff'd per curiam 914 F.2d 582 (4th Cir.1990).
The Supreme Court reversed on essentially two grounds: (1)
that on the record before it, the plaintiffs had not established
the invidious animus element of § 1985(3); and (2) that, also on
To begin with, we reject the apparent conclusion
of the District Court . . . that opposition to abortion
constitutes discrimination against the “class” of
women seeking abortion” .... [T]he class "cannot
be defined simply as the group of victims of the
tortious action.” "Women seeking abortion” is not a
Respondents’ contention, however, is that th
alleged class-based discrimination is directed not at
women seeking abortion” but at women in general.
We find it unnecessary to decide whether that is a
qualifying class under § 1985(3), since the claim that
petitioners’ opposition to abortion reflects an animus
against women in general must be rejected
enditdvddidis tales? mateamenahoon
assertedly benign (though objectively invidious),
scrimination against women. It does demand,
however, at least a purpose that focuses upon women
by reason of their sex-for example . . . , the purpose of
saving” women because they are women from a
combative, aggressive profession such as the practice
of law. The record in this case does not indicate that
petitioners’ demonstrations are motivated by a
12a
purpose (malevolent or benign) directed specifically
at women as a class... . Given this record,
respondents’ contention that a class-based animus has
been established can be true only if one of two
suggested propositions is true: (1) that opposition to
abortion can reasonably be presumed to reflect a
sex-based intent, or (2) that intent is irrelevant, and a
class-based animus can be determined solely by effect.
Neither proposition is supportable.
— US. at —, 113 $.Ct. at 759-60 (quoting Carpenters, 463 U.S.
at 850, 103 S.Ct. at 3367 (Blackmun, J., dissenting)).
In terms of the right to interstate travel, the Supreme
Court held that:
[I]t does not suffice for application of § 1985(3) that
a protected right be incidentally affected. A
conspiracy is not "for the purpose” of denying equal
protection simply because it has an effect upon a
protected right. The right must be “aimed at,"; its
impairment must be a conscious objective of the
enterprise .... [T]he "intent to deprive of a right”
requirement demands that the defendant do more
than merely be aware of a deprivation of right that he
[or she] causes, and more than merely accept it; he
[or she] must act at least in part for the very purpose
of producing it. That was not shown to be the case
here, and is on its face implausible. Petitioners
oppose abortion, and it is: irrelevant to their
opposition whether the abortion is performed after
interstate travel.
l3a
| Respondents have failed to show a conspiracy to
violate the right of interstate travel for yet another
reason: petitioners’ proposed demonstrations would
not implicate that right. The federal guarantee of
interstate travel . . . protects interstate travelers
against two sets of burdens: "the erection of actual
barriers to interstate movement” and “being treated
differently" from intrastate travelers. As far as
appears from this record, the only "actual barriers to
movement” that would have resulted from
Petitioners’ proposed demonstrations would have
been in the immediate vicinity of the abortion
clinics, restricting movement from one portion of the
Commonwealth of Virginia to another. Such a
purely intrastate restriction does not implicate the
right of interstate travel, even if it is applied
intentionally against travelers from other States,
unless it is applied discriminatorily against them.
Id. at —, 113 S.Ct. at 762-63 (citations and footnote omitted).
Although the district court in Bray had not addressed
whether the right to an abortion had been infringed, the
Supreme Court chose to address the issue, and held that the
right to an abortion under the Fourteen Amendment was also
an inadequate basis for respondents’ § 1985(3) claim because
deprivation of the right to an abortion "cannot be the object
of a purely private conspiracy.” Jd. at —, 113 S.Ct. at 764.
The Court held that "[wJhereas, unlike the right of interstate
travel, the asserted right to an abortion was assuredly ‘aimed
at' by the petitioners, deprivation of that federal right
(whatever its contours) cannot be the object of a purely private
l4a
conspiracy.” Id.
D. The Second Circuit's Interpretation of Bray in Town of W.
Hartford v. Operation Rescue.
Given this seemingly clear-cut language in Bray, plaintiffs
in the instant case initially conceded that, after Bray, their §
1985(3) claim was subject to dismissal for failure to state a
claim. See Item No. 349, at 3. Nevertheless, on April 21,
1993, the Second Circuit decided Town of W. Hartford and held
that Bray does not foreclose all resort to § 1985(3) in all cases
involving the obstruction of access to abortion clinics. 991
F.2d at 1048 (holding that such an assertion constitutes an
over-reading of Bray).
The Second Circuit interpreted Bray as setting forth two
grounds for reversal—that on the record before the Supreme
Court, the plaintiffs there had not established the invidious
animus ingredient of § 1985(3), id. at 1045, and that, also on
the record before the Court, the plaintiffs had not established
that defendants intended to hinder the right to travel. Jd. at
1047.
With respect to the animus requirement, the Second
Circuit noted that after Bray: "(1) women seeking abortions do
not constitute a class protected by § 1985(3), and (2), if women
in general constitute a class protected by the statute . . . ‘the
claim that petitioners’ opposition to abortion reflects an
animus against women in general must be rejected.'" Jd. at
1048 (quoting Bray, — U.S. at —, 113 S.Ct. at 759). The Court
nevertheless held that the Supreme Court's analysis of the
animus requirement was tied to che facts there adduced.
"Accordingly, we think that an assessment of the animus
15a
aspect of the case at bar requires a further review, in the light
of the legal principles relating to animus announced in Bray,
of the record evidence bearing on appellants’ motivation." [d.
The Second Circuit also held that:
a determination of whether appellants intended to
and did inhibit a right protected by § 1985(3) — either
the Fourteenth Amendment abortion right, protected
against the state; or the citizenship right to travel
without public or private impediment - calls for
scrutiny of the instant record through the prism of
the Bray Court's pronouncement that "impairment
[of the right] must be a conscious objective of the
enterprise."
Id. (quoting Bray, — U.S. at —, 113 S.Ct. at 762).
The Second Circuit did not specifically address the
Supreme Court's analysis with respect to the right to abortion,
but remanded to the district court to determine, in light of
Bray, whether intent was established to interfere with the right
to abortion as well as the right to interstate travel. Jd. In a
footnote, the Court instructed the district court that "it would
be well .. - to reconsider, in the light of Carpenters v. Scott, 463
U.S. 825, 830-34, 103 S.Ct. 3352, 3357-59, 77 L.Ed.2d 1049
(1983), the state involvement aspect of the [plaintiff's] claim of
interference with the abortion right.” Jd. n. 11.
E. Effect of Bray and T. W. Hi. intiffs’
wok don own of artford on Plaintiffs’ §
Resolution of defendants’ motion to dismiss requires the
16a
Court to accept the material facts alleged in plaintiffs’
complaint as true, Branum v. Clark, 927 F.2d 698, 705 (2d
Cir.1991) (citing Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12
L.Ed.2d 1030 (1964) (per curiam)); Dwyer v. Regan, 777 F.2d
825 (2d Cir.1985), modified on other grounds, 793 F.2d 457 (2d
Cir.1986), and to construe the allegations of the complaint in
the light most favorable to plaintiffs. Papasan v. Allain, 478
U.S. 265, 283, 106 $.Ct. 2932, 2943, 92 L.Ed.2d 209 (1986).
However, even reading the complaint in the light most
favorable to plaintiffs, and accepting the material facts alleged
as true, the Court finds that, after Bray, plaintiffs’ complaint
does not state a claim under § 1985(3) upon which relief can be
granted. The allegations in plaintiffs’ complaint were geared
toward the definition and interpretation of the animus and
interference requirements prior to Bray. The law has since
been redefined, and plaintiffs’ allegations no longer set forth
a cognizable § 1985(3) claim. The allegation that defendants
are motivated by an invidiously discriminatory animus
directed at women seeking abortions, for example, has been
explicitly rejected by the Supreme Court. Bray, — U.S. at —,
113 S.Ct. at 759- 60; see also Town of W. Hartford, 991 F.2d at
1048. Accordingly, plaintiffs’ complaint, in its present form,
fails to state a claim under § 1985(3), and defendants’ motion
to dismiss must therefore be granted as to that claim.
Nevertheless, the Second Circuit in Town of W. Hartford
interpreted Bray not as a requirement that every § 1985(3)
claim in the various abortion protest cases throughout this
Circuit be dismissed outright, but rather as a decision based on
the particular facts of the case, such that district courts in this
Circuit should reconsider their cases and injunctions in light
of the Supreme Court's interpretation of the animus and
17a
interference elements of § 1985(3). Because Town of W.
Hartford clearly affords plaintiffs an opportunity to paand to
conform their § 1985(3) claim to the holding in Bray, the
Court grants plaintiffs leave to file an amended complaint
specifically, an amended § 1985(3) cause of action.’
Defendants assert that Town of W. Hartford requires the
Court to vacate its preliminary injunction. Although the
Second Circuit did vacate the injunction in place in Town of
W. Hariford prior to remanding to the district court, the
injunction at issue there was a permanent injunction and the
Court vacated it with the express intent to allow the district
court to take a fresh look at it in light of Bray. 991 F.2d at
1048. Here, the injunction is preliminary, the record is open,
and discovery is ongoing. This Court is therefore not required
by the holding in Town of W. Hartford to vacate the
preliminary injunction. See also Bray, — U.S. at —, 113 S.Ct
at 768 (Even where § 1985(3) claims were dismissed, Coun
declined to vacate the injunction and dismiss the entire action.
Instead, it remanded the case to the district court to consider
3. Plaintiffs assert that Town of W. Hartford rendered moot
the entire premise of defendants’ motion to dismiss such that the
case remains in the same pendent jurisdiction posture it has been
in all along. Item No. 366, at 7. The Court disagrees
Defendants’ motion to dismiss is not moot because the issue is
whether plaintiffs’ complaint sets forth a § 1985(3) claim under
Bray. The answer to that question is clearly no, and the Second
Circuit's interpretation of Bray in Town of W. Hartford does not
change that result. Town of W. Hartford merely limits Bray 's
dismissal of the § 1985(3) claim to the facts of that case and
affords plaintiffs an Opportunity to amend their § 1985(3) claim
to fit within the holding in Bray.
18a
whether the same scope of injunctive relief was warranted on
the remaining state-law claims.).
In a related argument, defendants assert that plaintiffs are
limited to the record presently before the Court in
establishing their ability to bring their § 1985(3) claim within
Bray. The Court disagrees. This argument involves two
separate considerations — the granting of defendants’ motion
to dismiss the § 1985(3) claim with leave to amend, and the
viability of the preliminary injunction, which is grounded in
part on the § 1985(3) claim.
With respect to the motion to dismiss, there is no
question that a court has authority to grant a motion to
dismiss with leave to amend. See, e.g., Fed.R.Civ.P. 15(a). If
plaintiffs, after further investigation of their ability to bring
their § 1985(3) claim within Bray, decide to amend their
complaint, and set forth a § 1985(3) claim upon which relief
can be granted pursuant to Fed.R.Civ.P. 12(b)(6), plaintiffs
will clearly be able to utilize the discovery process to gather
evidence in support of their amended claim.
With respect to the viability of the preliminary
injunction, if plaintiffs file an amended complaint setting forth
a legally cognizable § 1985(3) claim, the Court will likely be
required to hold a supplemental hearing to reevaluate
plaintiffs’ ability, after Bray, to establish, by a preponderance
of the evidence, their likelihood of success on their § 1985(3)
claim, or sufficiently serious questions going to the merits to
make them a fair ground for litigation and a balance of
hardships tipping decidedly in their favor with respect to that
19a
mp See Tucker Anthony Realty Corp. v. Schlesinger, 888 F.2d
69, 972 (2d Cir.1989). Prior to any such hearing, plaintiffs
would be required to submit memoranda of law sddvming the
legal impact of Bray and Town of W. Hartford on their §
1985(3) claim,* as well as affidavits of fact witnesses settin
forth how they intend to establish the animus and catia
requirements in light of these cases.* In attempting to brin
their § 1985(3) claim within Bray, and establish the
4. The Court notes, however, that the liminary
. . . . . ‘ on
injunction is grounded not only on the § 1985(3) claim, but two
state-law claims as well. Further, the Court has decided to
continue to exercise pendent jurisdiction over the state-law claims
regardless of the ultimate disposition of th
infra at 1027-32. Raita) NN Gaim. See
5. Plaintiffs would, for example, be required to address in
greater detail their previous assertion that the Second Circuit
decision in Spencer v. Casavilla, 903 F.2d 171 (2d Cir.1990), allows
them to establish interference with the right to interstate travel
without establishing a particular intent to disrupt interstate as
opposed to intrastate travellers—an assertion that appears to be
contrary to the explicit holding in Bray. See Item No. 366, at
9-10. Plaintiffs would also be required to address the impact of
the Bray Court's discussion of interference with the right to
abortion, in light of the fact that the Second Circuit did not
specifically address that aspect of the Bray holding in Town of W.
Hartford. 991 F.2d at 1048 n.11. |
6. Town of W. Hartford makes clear that plaintiffs must
establish the animus and interference requirements based on the
re facts of this case. They cannot, for example, rely on
es and theories with respect to the motivation of abortion
protestors in general. Their proffer must be fact-specific.
20a
requirements for a preliminary injunction, plainuffs would
not be constrained by the Court's prior findings in its
preliminary injunction decision and order. The Court's
findings and the evidence presented were based on the
then-controlling interpretation of the animus and interference
requirements in the Second Circuit. To limit plaintiffs to the
record presently before the Court would be tantamount to
requiring them to have anticipated the Supreme Court s ruling
in Bray. In providing plaintiffs an opportunity to fit their §
1985(3) claim within that ruling, Town of W. Hartford cannot
be interpreted as precluding this Court from considering
additional evidence or making new findings of fact in light of
it.
Thus, the Court grants defendants’ motion to dismiss as
to plaintiffs’ § 1985(3) claim only, with leave to plaintiffs to
amend the complaint to bring their § 1985(3) claim within the
holding in Bray.
Il. Pendent Jurisdiction’
Regardless of the ultimate disposition of plaintiffs’ §
7. The instant lawsuit was commenced prior Fo -
mber 1, 1990 effective date of the statute providing or
pra jurisdiction rather than "ancillary" and pendent
jurisdiction. Accordingly, the concept of "pendent" jurisdiction
applies in this case. asiome pe sommapsiccert appear
providing for supplemental jurisdiction essentially codiff .
existing caselaw” on the subject of pendent jurisdiction. See :
USS.C. § 1367; see also Castellano v. Board of Trustees, 937 F.2
752, 758 (2d Cir.), cert. denied, — U.S. —, 112 S.Ct. 378, 116
L.Ed.2d 329 (1991).
2la
1985(3) claim, the Court will continue to exercise pendent
jurisdiction over the six state-law claims.’ The Court makes
this determination at this juncture due to its granting of
defendants’ motion to dismiss the § 1985(3) claim, albeit with
leave to plaintiffs to amend, as well as its determination that
even without the § 1985(3) claim, the Court would be
compelled, under notions of judicial economy, convenience,
fairness and comity, to continue to exercise jurisdiction over
the remaining state-law claims.
A federal court may exercise pendent jurisdiction over
state-law claims "whenever the federal-law claims and state-law
claims in the case ‘derive from a common nucleus of operative
fact’ and are ‘such that [a plaintiff] would ordinarily be
expected to try them all in one judicial proceeding."”
Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 349, 108 S.Ct.
614, 618, 98 L.Ed.2d 720 (1988) (quoting Mine Workers v.
Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218
(1966)). The decision to exercise pendent jurisdiction is within
the discretion of the district court and, in exercising that
discretion, the court should "consider and weigh in each case,
and at every stage of the litigation, the values of judicial
economy, convenience, fairness, and comity in order to decide
whether to exercise jurisdiction... ." Id. 484 U.S. at 350, 108
S.Ct. at 619 (citing Gibbs, 383 U.S. at 726-27, 86 S.Ct. at 1139).
The Court has carefully considered and weighed the values of
judicial economy, convenience, fairness and comity, and finds
8. The six state-law claims are as follows: the New York
Civil Rights Law and trespass claims upon which the preliminary
injunction is in part based, as well as claims for tortious
interference with business, intentional infliction of emotional
harm, tortious harassment, and false imprisonment.
22a
that they point definitively toward retention of jurisdiction
over plaintiffs’ state-law claims in this case.
A. Judicial Economy, Convenience and Fairness.
Defendants assert essentially two arguments in support of
their contention that the judicial economy, convenience and
fairness factors do not point to continued exercise of pendent
jurisdiction over plaintiffs’ state law claims: (1) assuming
plaintiffs’ § 1985(3) claim is ultimately dismissed, it will likely
be dismissed prior to trial, leaving plaintiffs without a federal
claim; and (2) the Court's involvement in this case has not
been substantial, as evidenced by the case's procedural posture.
The Supreme Court held in Gibbs that “if the federal
claims are dismissed before trial . . . the state claims should be
dismissed as well.” 383 U.S. at 726, 86 S.Ct. at 1139; see also
Baylis v. Marriott Corp., 843 F.2d 658, 664 (2d Cir.1988) ("The
basis for retaining jurisdiction is weak when . . . the federal
claims are dismissed before trial."). However, subsequent
Supreme Court decisions made clear that Gibbs "d{id] not
establish a mandatory rule to be applied inflexibly in all cases."
Carnegie-Mellon, 484 U.S. at 350 n. 7, 108 S.Ct. at 619 n. 7
(citing Rosado v. Wyman, 397 U.S. 397, 403-05, 90 §.Ct. 1207,
1213-14, 25 L.Ed.2d 442 (1970)). "Th{at] statement [in Gibbs
] simply recognizes that in the usual case in which all
federal-law claims are eliminated before trial, the balance of
factors to be considered under the pendent jurisdiction
doctrine—judicial economy, convenience, fairness, and
comity-will point toward declining to exercise jurisdiction
over the remaining state-law claims.” Id.
This is not the “usual” case, and the factors of judicial
23a
economy, convenience and fairness can only be served by the
Court's retention of pendent jurisdiction over plaintiffs’
state-law claims. "[E}]ven when federal claims are resolved
before trial, comity does not automatically mandate dismissal
of pendent state claims." Enercomp, Inc. v. McCorhill Pub
ine. 873 F.2d 536, 545 (2d Cir.1989) (citations omined).
‘Trial is simply a convenient benchmark marking the point
by which substantial resources have surely been committed.
If those resources are expended without a trial, the essential
ne of ee rm jurisdiction may be served
Ry, 790F.2d 1341, 1048 thCint986)
Because the Court finds that substantial resources have
been expended in this case, despite its pre-trial procedural
posture, it also rejects defendants’ argument seeking to
minimize and trivialize the nature and extent of this Court's
involvement in this case over the almost three years of its
re There is no dispute that this case is presently in a
scovery posture; that plaintiffs filed a fourth amended
complaint in December 1992; and further, that the Court has
now permitted the filing of a fifth amended complaint to allow
plaintiffs to amend their § 1985(3) claim. However, the list of
motions and issues addressed by this Court over the past three
years is substantial. In addition, such a list is incapable of fully
and adequately reflecting the amount of time and judicial
resources this Court has expended on this case.
Soon after the Court granted plaintiffs’ motion for a
7 rary restraining arse in September 1990, defendants
m a motion to di iss or stay the action pursuant to the
Ssrention doctrine, which the Court denied after extensive
riefing and lengthy oral argument. During the same time
24a
period, from December 1990 to January 1991, the parties, with
the assistance of the Court, attempted unsuccessfully to settle
this action. A hearing on plaintiffs’ motion for a preliminary
injunction was held from March 6, 199% « April 1, 1991.
That motion also required extensive post-hearing briefing and
argument. As noted previously, the Court's decision on
plaintiffs’ motion for a preliminary injunction was ultimately
rendered on February 14, 1992.’
Between February 1991 and January 1992, the Court held
hearings and oral argument on three motions for civil
contempt. The hearing relative to Nancy Walker was held
from February 6, 1991 to February 14, 1991; the Bonnie Behn
and Carla Rainero hearing was held from June 18, 1991 to July
12, 1991; and the hearing relative to the Revs. Paul and Robert
Schenck and Project Rescue was held from October 15, 1991
to January 30, 1992."° The Court considered evidence adduced
at these contempt hearings as well as the evidence presented at
9. Some of the defendants appealed the preliminary
injunction decision to the Second Circuit. See Item No. 136. By
stipulation and order filed April 1, 1993, that appeal, No.
92-7302, was dismissed without prejudice to reinstatement by any
party's counsel within twenty days of this Court's resolution of
the instant motion. Item No. 363.
10. The Court later determined that Rev. Paul Schenck had
contempt motion, and that the possibility existed that a crime
had been committed. Accordingly, the Court referred the matter
to the United States Attorney for "whatever action he deem[ed]
appropriate.” Item No. 250, at 17 n. 9. That matter is still
pending.
25a
the preliminary injunction hearing in determining whether to
grant plaintiffs motion for a preliminary injunction.
rege ag: ; Network, 799 F Supp. at 1421. On May 27 and May
, 992, the Court held a hearing on a fourth motion for civil
cee, Ta nn bet Sheath aah Bon, Bases
ccanmn decisions wore Sled granting cach of the
a civil contempt as to all of the named individuals."
laintiffs were awarded judgments pursuant to the terms of the
fee eth ee ae Omens, co wel cs censsadtile emecnaye
me ame The attorneys’ fees issues continue to involve
; Court Magistrate Judge Carol E. Heckman, to whom
the motions were referred for report and recommendation.
: ba Prins Of 1992, the Court became involved in the
a — Movement's convergence on Buffalo, New York for
termed the Spring of Life." Prior to the
ma pee s commencemen t in late April 1992, the Court
argument on a motion by Children's Hospital to
intervene as a plaintiff; a motion by plaintiffs to modify the
preliminary injunction and amend the complaint; and a
motion by defendants to stay the preliminary injunction
a In a decisio ision and order dated April 16, 1992,
granted Children Hospital's motion to intervene;
denied plaintiffs motion to modify the injunction without
Nancy Walker, No. 92-7854, and Bonnie
, No. , Behn
Rainero, No. 92-7954, for lack of appellate ‘orator
Pro-Choice Network v. Walker, 994 F.2d 989 (2d Cir. May 26.
1993). On June 15, 1993, the appeals in the other two :
cases, Nos. 92-9124 and 92-9202, were reactivated,
Item No.
and are currently pending before the Second Circuit. any
26a
prejudice; and denied defendants’ motion for a stay. Plaintiffs’
motion to amend the complaint was later granted by
Magistrate Judge Heckman, to whom it had been referred.”
As a result of the Spring of Life protests, criminal
contempt charges were instituted against six individuals.
These cases were referred to the United States Attorney's
Office, but after reconsideration, were transferred to two
Court-appointed Special Prosecutors. See Jn re Slovenec, 799
F.Supp. 1441 (W.D.N.Y.1992). Thereafter, the Court became
involved in the complex issue of whether the alleged
contemnors were entitled to a jury trial; ruled on a substantive
motion in limine; and heard the guilty pleas and imposed
sentence on each of the defendants. Finally, in March 1993,
the Court was faced with a recusal motion by defendants.
Moreover, the Court's involvement in this case is
ongoing. During the pendency of the instant motion, there
were alleged violations of the terms of the preliminary
injunction on four separate occasions~April 17, 1993, April 24,
1993, May 1, 1993 and May 15, 1993. The Court was made
aware of such violations in June 1993, when plaintiffs
presented the Court with orders to show cause why certain
named individuals should not be held in civil and criminal
contempt. The Court signed the orders to show cause on July
1, 1993, indicating its intention to proceed criminally against
12. The motion to amend was separately referred to
Magistrate Judge Heckman on September 4, 1992. The entire
case was referred to her on August 19, 1992, for resolution of all
pretrial matters and to hear and report on all dispositive itive motions.
Since that time, Magistrate Judge Heckman has been involved in
the supervision of discovery and other pretrial matters.
27a
the alleged contemnors, and referred the investigation and
prosecution of these cases to the United States Attorney.
Because these alleged violations occurred at a time when the
a injunction was still in place, the Court's
involvement would not end even if the injuncti
vacated prior to their resolution. a.
| Given the above accounting of the Court's involvement
in this action, not to mention the past and future involvement
of the Second Circuit Court of Appeals,” it is clear that
substantial judicial resources have been expended regardless of
the ultimate disposition of the § 1985(3) claim and its timing.
While the Court recognizes that judicial economy should not
be the controlling factor, Kidder, Peabody & Co. v. Maxus
Energy Corp., 925 F.2d 556, 564 (2d Cir.), cert. denied, ~ U.S.
—, 111 S.Ct. 2829, 115 L.Ed.2d 998 (1991), to ignore the
Court's substantial involvement in this case over a period of
almost three years, simply on the ground that the case is in a
pre-trial mode, would be to ignore the reality of scarce judicial
resources and the positive aspects of preventing needless
duplication of legal proceedings in federal and state court. The
Supreme Court has indicated its unwillingness "to defeat the
commonsense policy of pendent jurisdiction—the conservation
of judicial energy and the avoidance of multiplicity of
litigation—by a conceptual approach that would require
jurisdiction over the primary claim at all stages as a
prerequisite to resolution of the pendent claim.” Rosado, 397
U.S. at 405, 90 S.Ct. at 1214.
In addition, this Court's familiarity with the factual and
13. See supra notes 9 and 11.
28a
legal issues involved in this case weighs in favor of the exercise
of pendent jurisdiction, Enercomp, 873 F.2d at 546; Philan Ins.
Ltd. v. Frank B. Hall & Co., 786 F.Supp. 345, 347 (S.D.N.Y.
1992); see also Raucci v. Town of Rotterdam, 902 F.2d 1050,
1055 (2d Cir.1990), and is such that "it would . . . [be] a
pointless waste of judicial resources to require a state court to
invest the time and effort necessary to familiarize itself with
a case well-known to [this Court].” Enercomp, 873 F.2d at 546.
"To require [this Court's efforts] to be duplicated in state
court would hardly . . . serve{ ] the interests of economy,
convenience and fairness that are central to any exercise of
pendent jurisdiction.” Jd. at 545 (citing Gibbs, 383 U.S. at 726,
86 S.Ct. at 1139).
Thus, the Court finds that the judicial economy,
convenience and fairness factors weigh heavily in favor of the
Court retaining pendent jurisdiction over the state-law claims.
B. Comity and Federalism.
The interests of comity and federalism do not point
toward divestiture of pendent jurisdiction in this case.
1. Novel and Unsettled Issues of State Law
Defendants assert that the Court should decline to
exercise jurisdiction over the state-law claims because they
present novel and unsettled issues of state law. See Castellano,
937 F.2d at 758-59; Independent Bankers Assoc. v. Marine
Midland Bank, 757 F.2d 453, 464-65 (2d Cir.1985), cert. denied,
476 U.S. 1186, 106 S.Ct. 2926, 91 L.Ed.2d 554 (1986). While
the Court notes that "[flailure to dismiss a pendent claim after
dismissing a federal claim ‘may be an abuse of the district
29a
— meena can when the state claim involves
questions of state law," Raucci, 902 F.2d at 1054
Robison v. Via, 821 F.2d 913, 925 (2d Cir.1987)), it ae
even if one or two of the state-law claims in this case involve
a novel or unsettled question of New York law, there are six
state-law claims and the Court is not required to consider any
novel question of state law in order to keep the preliminary
inyunction in place. In addition, the Court is familiar with the
state-law claims from the hearing on the preliminary
injunction; the injunction was ultimately based in part on the
Court's finding that plaintiffs were likely to succeed on at least
two of the state-law claims."
2. Prejudice to Plaintiffs
A declination by the Court to exercise jurisdiction over
the state-law claims, assuming the § 1985(3) claim was
ultimately dismissed, would result in substantial prejudice to
plaintiffs in having to relitigate their case in state court, both
in terms of time and expense, and the prejudice associated with
being without an injunction for perhaps an extended period of
time. Contrary to defendants’ continued assertions, the state
court action instituted by plaintiffs prior to the instant federal
court action is not pending in any true meaning of the word.
“14, Aspreviously noted, the Court's preliminary injunct
decision and order only addressed two of plaintiffs’ six state-law
claims~New York Civil Rights Law and trespass~finding that
because those claims and the § 1985(3) claim were sufficient to
grant plaintiffs’ motion for a preliminary injunction, it need not
address whether a preliminary injunction should be granted based
on the other state-law claims. Pro-Choice Network, 799 F.Supp
at 1432 n. 11.
30a
Indeed, such continued assertion by defendants’ counsel is a
clear misrepresentation of what has occurred or is occurring
in state court. No action has taken place in the state case
either by plaintiffs or defendants essentially since the initiation
of the instant lawsuit. Indeed, the Court has been advised by
counsel that the state action has been "marked off" and
stricken from the calendar, and that if it is not restored to the
calendar by November 25, 1993, the action will be determined
abandoned and will be dismissed for neglect to prosecute. See
Item No. 355, Addendum, Letter to Counsel from New York
State Supreme Court Justice Thomas P. Flaherty.
Further, defendants’ federalism and comity arguments are
nothing more than a rehashing of arguments rejected by this
Court when it declined to grant defendants’ abstention
motion. In its abstention decision and order of October 29,
1990, the Court explicitly found that the state and federal
actions were not parallel; that even as of October 1990, the
state action was largely inactive; and that neither the state nor
federal action raised critical state concerns warranting the
Court's abstaining from exercising its jurisdiction over the
federal action. Item No. 34. Even the ultimate failure of
plaintiffs’ § 1985(3) claim would not require a different result.
See Terry II, 961 F.2d at 3% (noting that Bray would have little
impact on the injunction in place there because the order was
fully supported by adequate and independent state-law
grounds); NOW v. Operation Rescue, 816 F.Supp. at 730-31
(holding that District of Columbia-law claims provide
sufficient basis for "retaining federal jurisdiction, enforcing the
Injunction, protecting the previously established rights of
plaintiffs, and vindicating the vital authority of a United States
District Court"); Portland Feminist Women's Health Ctr. v.
Advocates for Life, Inc., 681 F.Supp. 688, 691-92 (D.Or. 1988)
3la
(upholding preliminary injunction against anti-abortion
demonstrators based on pendent state-law claims after §
1985(3) claim was dismissed)."° Fundamentally, with or
without a § 1985(3) claim, this case involves a significant
federal interest in balancing what are in essence, conflicting
rights guaranteed by the United States Constitution—the First
Amendment right of free speech, and the Fourteenth
Amendment right to an abortion. The federal courts have as
much interest in protecting these rights as New York State.
This is so regardless of the Supreme Court's decision in Bray.
3. DiLaura v. Power Authority
Finally, defendants assert that the Court's decision not to
exercise pendent jurisdiction in DiLaura v. Power Auth., 786
F.Supp. 241 (W.D.N.Y. 1991), aff'd, 982 F.2d 73 (2d Cir.1992),
in effect requires the Court to decline to do so here. Initially,
the Court will not be compelled to rule in a particular way
based simply on prior holdings it has made in prior unrelated
cases. Further, the decision whether or not to exercise
pendent jurisdiction is a discretionary one arrived at through
af 15. The Court also notes the following cases in which
injunctions similar in scope to the instant injunction have been
upheld solely on state-law grounds: Parkmed Co. v. Pro-Life
Counselling, Inc., 91 A.D.2d 551, 457 N.Y.S.2d 27 (1st Dept.1982)
(injunction based on New York law enjoining blocking of ingress
and egress, and physically abusing or harassing people seeking
services at abortion clinic); O.B.G.Y.N. Assoc. v. Birthright of
Brooklyn & Queens, Inc., 64 A.D.2d 894, 407 N.Y.S.2d 903 (2d
Dept. 1978) (injunction based on New York law enjoining various
a . picketing, chanting and shouting in vicinity of abortion
clinics).
32a
the careful weighing of various factors which, depending on
the specific facts of the case, may have more or less
application. "[TJhe doctrine of pendent jurisdiction . . . is a
doctrine of flexibility, designed to allow courts to deal with
cases involving pendent claims in the manner that most
sensibly accommodates a range of concerns and values.”
Carnegie-Mellon, 484 U.S. at 350, 108 S.Ct. at 619. To the
extent, however, that the Court's pendent jurisdiction analysis
in DiLaura is relevant to the instant case, the Court finds
defendants’ arguments unpersuasive. The declination to
exercise pendent jurisdiction in DiLaura was based primarily
on a finding that the interests of federalism and comity
strongly supported the dismissal of the state-law claim because
the exercise of pendent jurisdiction "would run contrary to
Congress’ pronounced intent not to invade the jurisdiction of
the States” in the areas of property rights and tort liability.
786 F.Supp. at 254. The Court's decision in DiLaura was also
based on a finding that the considerations of judicial economy,
convenience and fairness were not substantially implicated
where, despite the number of years the case had been pending,
the Court's involvement had been slight and the parties would
not be prejudiced by dismissal of the state claim. Id. at 254-55.
Thus, because this case is not the “usual” case where
dismissal of all federal claims prior to trial would point toward
declining to exercise jurisdiction over the remaining state-law
claims, the Court finds that it would. be a waste of judicial
resources to deny pendent jurisdiction. The Court's decision
to exercise pendent jurisdiction over the state-law claims,
regardless of the ultimate disposition of the § 1985(3) claim,
leaves without question the viability and continued
enforceability of the preliminary injunction.
LL
=
33a
CONCLUSION
For the reasons set forth above, the Court grants
defendants’ motion to dismiss plaintiffs’ § 1985(3) claim
pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim
upon which relief can be granted. However, based on Town
of W. Hartford, the Court grants plaintiffs leave to amend their
fourth amended complaint to attempt to bring their § 1985(3)
claim within the Supreme Court's holding in Bray. Because
the Court wishes to provide plaintiffs sufficient time not only
to evaluate their ability to state a § 1985(3) claim after Bray,
but also their ability to establish facts supporting such a claim,
as required by Town of W. Hartford, the Court grants plaintiffs
until October 1, 1993 to file their amended complaint.
Defendants will have until November 1, 1993 to answer or
otherwise move. If plaintiffs decide not to file an amended
complaint, they should promptly notify the Court so this case
can move forward.
In conjunction with its ruling on defendants’ motion to
dismiss, the Court denies defendants’ motion to vacate the
injunction, and continues, regardless of the ultimate
disposition of the § 1985(3) claim, to exercise pendent
jurisdiction over plaintiffs’ state-law claims.
IT IS SO ORDERED.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.