# Petitioners Brief — Schenck v. Pro-Choice Network of Western NY > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0684%3A06 ## Record - **Collection:** Supreme Court brief - **Document type:** Petitioners Brief - **Published:** January 1, 1997 - **Citation:** 519 U.S. 357 ## Text 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 t [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0684%3A06. Public record. Not legal advice.