Amicus Curiae Brief — Schenck v. Pro-Choice Network of Western NY

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eee MAY 17 1996

ES TE a

Supreme Coort, U.S.

F I LED

In THE

Supreme Court of the United Staten

OCTOBER TERM, 1995

REVEREND PAUL SCHENCK and DWIGHT SAUNDERS,

7 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 THE AMERICAN FEDERATION OF LABOR

AND CONGRESS OF INDUSTRIAL ORGANIZATIONS AS

AMICUS CURIAE IN SUPPORT OF NEITHER PARTY

JONATHAN P. HIATT

815 16th Street, N.W.

Washington, DC 20006

MARSHA S. BERZON

177 Post Street

San Francisco, CA 94108

LAURENCE GOLD *

1000 Connecticut Avenue, N.W.

Washington, DC 20036

(202) 833-9340

* Counsel of Record

WILSON - Erzs PRINTING Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

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TABLE OF AUTHORITIES

CASES Page

Board of Airport Commissioners v. Jews for Jesus,

Fane, GB UE. GED CHBBS) cnmenennusmnenn 1

Boos v. Barry, 485 U.S. 312 (1988) ....................... 14, 25, 27

Bose Corp. v. Consumers Union, 466 U.S. 485

CRED ccccstersocnssssusnctssessitunsicienticiimiinean 24

Bray v. Alexandria Womens Health Clinic, 506

eR FF ee ae 9

Carroll v. President & Commissioners of Princess

Anne, SB UG. B66 CHEE) cnninunieneenen 5, 6

City of Houston v. Hill, 482 U.S. 451 (1987) ........... 15, 16

Coates v. City of Cincinnati, 402 U.S. 611 (1971).. 27

Cohen v. California, 408 U.S. 15 (1971) ................. 24, 25

Cox v. Louisiana, 379 U.S. 586 (1965) .................... 5

DeBartolo v. Florida Gulf Coast Trades Council,

PRS BE 8, ee ee 1

Erznoznik v. City of Jacksonville, 422 U.S. 205

CRITI <ccsccnasciuctencntesisitiiasiaine 24

First National Bank v. Bellotti, 485 U.S. 765

FR es ee 24

Frisby v. Shultz, 487 U.S. 474 (1988) .................... 1, 28

Gooding v. Wilson, 405 U.S. 518 (1972) ................... 26

Hague v. CIO, 307 U.S. 496 (1989) ........................... 1,19

Heffron v. International Society for Krishna Con-

sciousness, 452 U.S. 640 (1981) ............................. 1,19

Howard Gault Co. v. Texas Rural Legal Aid, 848

et £ f: SS as 12

International Society for Krishna Consciousness

©. Tae, GES Ge, Gas CD cececenicasscscccrsueninninentas 1

Leathers v. Medlock, 499 U.S. 489 (1991) .............. 22

Lehman v. City of Shaker Heights, 418 U.S. 298

} | ENE ne 27

Madsen v. Womens Health Center, 114 S.Ct. 2516

CRIED accsssnssectecosssnstasiinecteentismsaauan passim

Miami Herald Publishing Co. v. Tornillo, 418 U.S.

BER CIE censccsssstrsttinsistinimin 22

Milk Wagon Drivers Union v. Meadowmoor

Dairies, 312 U.S. 287 (1940) .........................00000-.. 5,7

NAACP v. Claiborne Hardware, 458 U.S. 886

CIEE <ce<ccncossnpsecnnsecounsesssnsisinnbidiseniaimanaaaa 5, 20, 21, 22, 25

NLRB v. Fruit Packers, 377 U.S. 58 (1964) ........... 1

iii

TABLE OF AUTHORITIES—Continued

Page

Organization for a Better Austin v. Keefe, 402 U.S.

415 (1971) .. 5, 29

Planned Parenthood ‘Shasta-Diablo, Ine. v. Wit

liams, 10 Cal. 4th 1010 (1995) ial s

Schneider v. State, 308 U.S. 147 (1989)... 1

Terminiello v. City of Chicago, 337 U.S. 1 (1949). 26

Texas v. Johnson, 491 U.S. 397 (1989)... 25

Thomas v. Collins, 323 U.S. 516 (1945)... 1, 20

Thornhill v, Alabama, 310 U.S. 736 (1940) _.1, 15, 21, 22

United Food & Commercial Workers Intern. Union

v. IBP, Inc., 857 F.2d 422 (8th Cir. 1988). 12

United States v. Grace, 461 U.S. 171 (1983) ......_- 19, 20

United States v. Kokinda, 497 U.S. 720 (1990). 1

Winters v. New York, 333 U.S. 507 (1948)... 24

STATUTES

ee 9

N.Y. Civ. Rights Law § 40-c... i)

MISCELLANEOUS

Antonio R. Damasio, Emotion, Reason, and the

Human Brain (1994). 25

Frankfurter & Greene, The Labor Injunction

Te 2,11

BRIEF FOR THE AMERICAN FEDERATION OF LABOR

AND CONGRESS OF INDUSTRIAL ORGANIZATIONS AS

AMICUS CURIAE IN SUPPORT OF NEITHER PARTY

INTEREST OF THE AMICUS CURIAE

This brief amicus curiae for the American Federation

of Labor and Congress of Industrial Organizations, a fed-

eration of 75 national and international unions represent-

ing approximately 13,000,000 working men and women,

is filed with the consent of the parties as provided for

in the Rules of this Court.

Historically, the AFL-CIO, and its affiliated unions,

have had a vital interest in the First Amendment rights

of citizens to disseminate their views on the public streets

by picketing, handbilling and other communicative means.

Indeed, many of the leading cases that this Court has de-

cided in the First Amendment area have involved the

efforts of union members to engage in such expressive

activities.' That being so, the AFL-CIO has filed briefs

as an amicus curiae in a substantial number of this Court’s

recent cases involving the exercise of First Amendment

rights on the streets.”

The AFL-CIO and its affiliated unions have also, over

the years, had a vital interest in the scope of the courts’

power to enjoin expressive activities in the public demon-

stration context. The labor movement knows at first hand

1 See, e.g., Hague v. CIO, 307 U.S. 496 (1939); Schneider v.

State, 308 U.S. 147, 155 (1939); Thornhill v. Alabama, 310 U.S.

80 (1940); Thomas v. Collins, 323 U.S. 516 (1945); NLRB v.

Fruit Packers, 377 U.S. 58 (1964); DeBartolo v. Florida Gulf

Coast Trades Council, 485 U.S. 568 (1988).

2 See, e.g., International Society for Krishna Consciousness v.

Lee, 505 U.S. 672 (1992); United States v. Kokinda, 497 U.S. 720

(1990) ; Frisby v. Schultz, 487 U.S. 474 (1988); Board of Airport

Commissioners v. Jews for Jesus, Inc., 482 U.S. 569 (1987); Heff-

ron v. International Society for Krishna Consciousness, 452 U.S.

640 (1981).

that this power can be used overbroadly. See Frankfurter

& Greene, The Labor Injunction (1930). Indeed, recog-

nition of that danger led Congress to pass the Norris-

LaGuradia Act, 29 U.S.C. § 101, et seq., which protects

against such abuses in federal court proceedings.

Because of its interest both in the substantive First

Amendment protection for communication on the public

streets and in the scope and nature of speech-limiting in-

junctions, the AFL-CIO filed a Brief Amicus Curiae in

Support of Neither Party in Madsen v. Women’s Health

Center, U.S. , 114 S. Ct. 2527 (1994), and

is filing a Brief Amicus Curiae in Support of Neither

Party in this case as well.

SUMMARY OF ARGUMENT

I. In Madsen v. Women’s Health Center, US.

——, 114 S. Ct. 2516, 2529 (1994), this Court held

that to be constitutional speech-limiting injunctions must

“burden no more speech than necessary to serve a sig-

nificant government interest.” Applying this constitutional

standard, the Madsen Court held that where there was a

history of access-blocking demonstrations outside a clinic

where abortions were performed, an injunction could limit

“focused picketing” demonstrations near the entrance to

the clinic to an area thirty-six feet from clinic property

and ten to twelve feet from the cars entering the clinic’s

parking lot.

The injunction issued in this case in an attempt to pre-

vent interference with abortion clinic access that is both

broader and narrower than the one in Madsen. Evaluat-

ing its constitutional validity is complicated by several

factors, among them that the primary legal basis for the

injunction was reversed by the district court some time

after the injunction issued; the injunction is a generic one

applicable throughout the Western District of New York,

not adapted as was the Madsen injunction to the configura-

tion of the particular clinic; and the courts below did not

explain why the injunction as issued forbids all forms of

communication including leafietting and similar orderly,

expressive corduct within its “buffer zone” when the

articulated concern is with “in your face” tactics that

involve crowding, yelling at, and the following of, indi-

viduals entering and leaving the clinic. The explanations

for these lapses are that the district court issued its in-

junction before Madsen was decided and applied a looser

“time, place and manner,” standard and that in reviewing

that injunction a majority of the en banc Second Circuit,

joining an opinion by Judge Winter, proceeded on the

basis that all at-the-site communicative appeals asking

those planning to use a site facility to forego, on a prin-

cipled basis, their intended course of action is speech

entitled to only the most limited First Amendment pro-

tection.

Il. There is no doubt that an underlying concern of

the Winter majority—controlling the abusive confronta-

tions practiced by the defendants in this case as “sidewalk

counselling”—could be constitutionally accomplished by a

carefully drafted injunction. But the broader proposition

embraced by that opinion—that the First Amendment

does not protect or protects only to a very limited extent

all at-the-site persuasive activity—has been rejected by

this Court in the past and should be rejected again.

This Court held long ago, and has repeated many times

since, that the public streets are an area in which govern-

mental authority to restrict speech is at its nadir. Com-

munication on the streets is protected when it persuades

to action as well as when it simply provides information

or abstract thoughts. And, persuasive speech at the site

at which a responsive action is requested, rather than on

a remote unconnected street corner, is constitutionally

protected as well.

First, the general First Amendment commitment to

speaker autcnomy includes the speaker's right to select

her own audience, rather than to address a governmentally-

defined audience that is much broader than the group of

people likely to be interested in the communication or to

respond to its persuasive appeal.

Second, the First Amendment protects speech that ap-

peals to emotion as well as to reason, including emotions

such as shame and social ostracism, and does not police

the response time available to addressees where the re-

quested response is a lawful one. _

Third, the First Amendment applies where the ad-

dressee is on the street in order to reach some specific

location for an important purpose as well as where the

addressee is furthering an aimless or idle pursuit. Such

individuals are not a “captive audience” in the very lim-

ited sense used in this Court’s cases—they are neither

necessarily exposed for a prolonged period to a commu-

nication nor are they entitled to the protection from all

unwanted speech accorded in the unique situation of

one’s own home. Indeed, recognition of a right to be

free on public streets from appeals to community re-

sponsibility over private preference, would be to take

sides on the merits of the moral issue the speaker raises

an anathema under the First Amendment and in the free

society that Amendment safeguards.

ARGUMENT

This case is closely related factually to Madsen v.

Women's Health Center, U.S. ——. 114 S. Ct. 2516

(1994) and the injunction here raises constitutional issues

equally closely related.

(A) Madsen sets out the standard for determining the

validity of injunctive “buffer zone” restrictions on speech

activity in the form of a demonstration. Madsen is thus

in the line of this Court’s cases setting the constitutional

parameters on the courts’ authority to meet illegal action

—such as obstruction of access to buildings, vandalism

or assault—by those engaged in otherwise constitutionally

protected speech activity on the public streets, through

injunctions that ban both the illegal action and the de-

fendant’s speech activity.

Injunctions against a defendant’s speech activity predi-

cated on the trial court’s judgment as to what is necessary

to provide complete relief to a plaintiff with good legal

claims against the defendant, as Madsen recognizes, not

only run against the First Amendment’s grain but do so

through a process that carries a greater potential for

point-of-view based/content-based discrimination than an

across-the-board legislative limitation on a defined class

of speech activity on the public streets.* That being so,

% The generic problem addressed in these cases long antedates

the recent abortion controversy. The labor movement, the civil

rights movement, and the student and antiwar movements have

all pressed strongly-held viewpoints through a combination of

fully-protected speech activity and street actions that obstruct,

illegally intrude on, or even physically endanger others. See, e.g.,

Milk Wagon Drivers Union v. Meadowmoor Dairies, 312 U.S. 287

(1940); Carroll v. President & Comm'rs of Princess Anne, 393

U.S. 176 (1968); Organization for a Better Austin v. Keefe, 402

U.S. 415 (1971); NAACP v. Claiborne Hardware, 458 U.S. 886

(1982); cf. Cox v. Louisiana, 379 U.S. 5386 (1965).

* While the reasons spelled out in the Madsen opinion provide a

more than sufficient base for the Court’s holding, they are not

the Madsen Court concluded that to pass constitutional

muster speech-limiting injunctions must “burden no more

speech than necessary to serve a significant government

interest,” or, in an alternative synonymous formulation,

must be “ ‘couched in the narrowest terms that will ac-

complish the pin-pointed objective’ of the injunction.”

114 S. Ct. at 2525, 2526 (quoting Carroll v. President

and Comm'rs of Princess Anne, supra, 393 U.S. at 183)

(emphasis added) ).

The Madsen standard, then, both recognizes that a

range of governmental non-speech interests can justify

a speech-limiting injunction and closely polices that jus-

tification to assure that the speech limitation is in all its

aspects in truth necessary to protect that governmental

interest. And, Madsen shows that this developing stand-

ard is not merely formulaic, but requires a detailed judi-

cial consideration of whether each speech limitation in-

cluded in an injunction is narrowly tailored both with

regard to the kinds of speech activity restricted and with

regard to the size and location of the restricted area.

Thus, the Madsen Court exhaustively considered not

only each separate provision of the injunction, but also,

in painstaking detail, “each portion of [its] buffer zone[s]”.

114 §. Ct. at 2527. In so doing, the Court struck down

all aspects of the injunction in question that created

prophylactic no-speech “buffer zones” with one exception

—the injunction providing for a limitation on demonstra-

exhaustive. Other considerations also support the conclusion that

injunctions limiting speech often carry more First Amendment

dangers than generally-applicable ordinances controlling speech in

public places, including: the availability of enforcement of the

injunction through civil contempt proceedings, without the safe-

guards available in criminal trials; the fact that both the decision

to seek injunctive relief and the decision to charge contempts are

often in the hands of individuals with strongly held ideological

views or practical interests directly opposed to those of the defend-

ants, rather than in the hands of neutral prosecutors; and the

limitations on the defendant’s right to challenge an injunction on

constitutional grounds if charged with a violation of its terms.

tions “within 36 feet of the property line of the clinic”

on the one side of the clinic nearest its entrance and its

parking lot, “as a way of ensuring access to the clinic.”

114 §S. Ct. at 2526.

That aspect of the injunction was upheld: (1) in

recognition that the demonstrators would be “at a dis-

tance no greater than /0 to twelve feet” from their princi-

pal target, “the cars [entering] the parking lot” (114 S. Ct.

at 2527 (emphasis supplied) ); (2) on the understanding

that the injunction was for the purpose of protecting clinic

access and for no other purpose (id.); (3) on the further

understanding that the injunction banned the kind of

“focused picketing” the Court had long distinguished from

handbilling and solicitation which, in contrast, “cannot

be completely banned in public places” (id.); and (4)

because an earlier injunction, proscribing only non-speech

activity, “did not succeed in protecting access to the

clinic” (id.).° At the same time, Madsen disapproved the

thirty-six foot buffer zone insofar as it applied to the

non-entrance sides- of the clinic, as not “necessary to pro-

tect access to the clinic.” /d.

5 The courts below were of the view that the failure of a first in-

junction restricting only illegal acts is not essential to the validity

of a “buffer zone” restriction. We believe Madsen’s discussion

of this point and its repeated invocation of Milk Wagon Drivers

v. Meadowmoor Dairies, supra, is sufficient to show the opposite.

114 8. Ct. at 2527, 2529. Absent a record of pervasive violence or

obstruction which justifies an injunction removing the demonstra-

tors from the scene for a time so as to diffuse conflict and to re-

move any implicit threat of violence, enjoining speech rather than

conduct in the first instance, among other vices, makes it all but

impossible later to determine the necessity for a speech-limiting

injunction, and as a general matter should not be permitted.

We recognize that here the defendants essentially stipulated to

the continuation of the original temporary restraining order, pre-

mised on a complaint alleging pervasive obstruction through hu-

man blockades for many months. In such a situation it may well

be that the defendants should not be heard now to complain that

the record was not sufficient to justify the original speech

limitations.

(B) The injunctive provision here is both broader and

narrower than the one approved in Madsen. In the first

regard, the injunction is not limited to demonstration

activity nor are its prohibitions tailored to a particular

location near a particular clinic at which defendant wrong-

doing had occurred in the past. Rather, the injunction

reaches beyond demonstrations to “handbilling and solicit-

ing”; applies generically to all locations at which abor-

tions are performed in the Western District of New York;

and creates a “bubble buffer zone” (of fifteen feet from

any indi¥idwal-or car entering or leaving the clinic, or

from any entrance or exit or parking lot or driveway)

that is in actual practice considerably broader in some

respects than the “buffer zone” approved in Madsen, prin-

cipally because of its “floating” nature. In the last re-

gard, the reflexive tape measure reaction of the courts

below—that this 15-foot “buffer zone” is less restrictive

of speech than the one in Madsen which reached thirty-

six feet from the clinic entrances and exits there—is sim-

ply wrong. Rather, the “buffer zone” here places speakers

further from their addressees in entering cars than the one

in Madsen, and applies to addressees on foot and in cars

considerably more than fifteen feet from the entrances and

exits to the clinics.

That the “buffer zones” differ in this respect does not,

of course, answer the question whether the injunction in

this case is valid, any more than the conclusion that the

“buffer zone” here is narrower would do so. Rather, the

very point of Madsen, ignored not only by the opinions

below in this case but in other opinions applying Madsen,

is that injunctions are not statutes applicable to all speak-

ers in an undifferentiated manner, but are justifiable, if

at all, by particular speaker conduct and by particular

circumstances.*®

* Compare, e.g., Planned Parenthood Shasta-Diablo, Inc. v. Wil-

liams, 10 Cal. 4th 1010, 1021 (1995) (approving sixty-foot no-speech

“buffer zone” allowing demonstrations only across a busy four-

lane road from the clinic because a thirty-six foot zone was allowed

At the same time, the injunction here was issued

against individual defendants with a long and docu-

mented history of physically blockading clinics in the

covered area.’ And, the injunction does not have the

feature faulted by the Madsen Court in striking down

aspects of the 36-foot buffer zone there. This injunc-

tion covers only clinic entrances and exits and individuals

entering or leaving, not areas near the clinics but not

implicated by access-limiting activity. While it may be

that these circumstances would justify the injunction, the

lower courts have left their justification theory entirely

opaque. Three factors explain this discontinuity.

First, the procedural posture of this case is such that

it is not possible to identify with any precision the legal

wrongs the injunction is intended to remedy. The district

court, at the time the preliminary injunction was issued,

determined that the plaintiffs had shown a likelihood of

success on the merits as to three of their causes of action

—a federal cause of action for violation of 42 U.S.C.

§ 1985(3), a state cause of action for violation of N.Y.

Civ. Rights Law § 40-c (prohibiting discrimination or har-

assment on the basis of sex in the exercise of civil rights),

and a state cause of action for trespass. 799 F. Supp.

1417, 1432 (1992). Subsequently, however, the district

court determined that under this Court’s decision in Bray

v. Alexandria Women’s Health Clinic, 506 U.S. 263

(1993), the § 1985(3) cause of action had to be dismissed.

in Madsen and the difference “is a relatively smal] difference in

degree”) ; id. at 1033 (Kennard, J., dissenting) (the “buffer zone”

was not valid because of the greater difficulty, as compared to

Madsen, of communicating a message to patients and employees

driving and walking to the clinic, and because a prior more limited

injunction which allowed some communication in the zone had, on

the record, succeeded in protecting access.)

™In form, moreover, the injunction allowed for some speech ac-

tivity within the “buffer zone,” although in such circumscribed

terms as to negate that allowance. See pp. 14-15 & n.12, infra.

828 F. Supp. 1018, 1020 (1993).* On appeal, defend-

ants argued that the remaining two causes of action could

not support the injunction, since the state civil rights

provision does not authorize injunctive relief and the

trespass cause of action is too narrow to justify relief

having nothing to do with trespass. 67 F.3d 359, 367

(1994). The Second Circuit panel, however, declined

to rule “whether the injunction exceeds its state law basis

and whether, if so, other state law and federal law bases

exist for this injunction” because that issue was not prop-

erly raised. 67 F.3d at 368.

Under general equity principles, “an injunction issues

only if there is a showing that the defendant has violated,

or imminently will violate, some provision of statutory

or common law,” and to prevent recurrences of those

violations. Madsen, 114 S. Ct. at 2524 n.3. And,

Madsen adds a requirement that any speech-limiting in-

junction provision be necessary to remedy a law viola-

tion. Thus, while the court below’s decision not to rule

on a question not properly raised cannot be faulted in

its own terms, that decision means that its Madsen in-

quiry rests on an uncertain base. For the likelihood of

success with respect to any state cause of action suffi-

cient to support the injunction is a matter left in abeyance.

The district court, it is true, determined that the injunc-

tion is justified on the basis of several significant state

interests, including the “governmental interest of ensuring

that abortions are performed safely” (799 F. Supp. at

1433), “public safety” (id.) and protection of the con-

stitutional right to obtain an abortion (id.). But injunc-

tive relief must be justified not by significant govern-

mental interests in the abstract, but by those significant

governmental interests that are expressed in a legal norm

that has been violated.

8 Although plaintiffs were accorded leave to amend the complaint

with respect to the § 1985(3) cause of action, they have not yet

done so as far as we can ascertain.

In the absence of clarity about the statutory or common

law violation underlying the injunction—for example,

whether that law relates only to protection of private

property, as does trespass law, or relates to the protection

of medical privacy or of constitutional rights—it is diffi-

cult to determine whether each speech-limiting aspect of

the injunction is or is not truly necessary to provide relief

for that violation.®

Second, the injunction here is a generic one, applicable

to locations known and unknown in western New York

at which abortions are performed. As a consequence, the

injunction is not—and could not—be tailored to the geo-

graphic layout of any particular location, as was the

Madsen injunction. In particular, while the fifteen foot

limitation was explained by the district court as neces-

sary safely to allow for cars turning into parking lots or

driveways (Sept. 27, 1990 Tr. 36), at least some of the

clinics in the Western District are presumably approach-

able from public property on foot as well as by car. And,

Madsen’s “necessity” standard at the very least would

appear to require differentiating such areas, providing

for one limitation at those entrances where individuals are

approaching in cars and lesser limitations more amenable

to normal spoken communication and handbilling at en-

trances where individuals are approaching on foot.”

Third, and of equal importance, the lower courts have

not in terms of the Madsen standard explained why it is

“necessary” to limit forms of communicative activity other

* The importance of relating the substance of speech-limiting

injunctions to actual causes of action, as opposed to justifications

for speech restrictions based on ad hoc judicial determinations of

interests and equities, is demonstrated by the abuses that developed

during the heyday of the now discredited government by labor

injunction regime when that principle was ignored. See Frank-

furter & Greene, The Labor Injunction (1980).

1° This point could also be accommodated to some degree by

altering the “floating” aspect of injunctions like the one here so

as to apply differentially to cars and to pedestrians.

than “sidewalk counselling” within the fifteen-foot float-

ing “bubble buffer zone.” The felt need to end harassing

and intimidating “counselling” techniques absent some

explanation otherwise, can, of course, be implemented by

allowing e.g., orderly handbilling and sign carrying within

the fifteen-foot area, while forbidding grabbing, touching,

pushing, shoving, or crowding (799 F. Supp. at 1440),

as well as the unwanted following of individuals entering

and leaving the clinic. By going further, the “buffer

zone” provision effectively forbids non-abusive forms of

direct communication and does so without explanation.”

41 It is quite possible that the reason that orderly handbillers,

sign-holders and other such speakers were not accommodated by

the district court is that the defendants had no interest in such

speech activity and did not ask for such an accommodation. And,

unlike statutes, injunctions appropriately are limited to the indi-

viduals actually before the court, and are shaped by their litiga-

tive strategies and decisions. Our point, then, is not that this

injunction must necessarily be modified to accommodate orderly

forms of speech not now permitted and not practiced by the actual

defendants, but that this Court take care not to sanction, as presump-

tively valid, injunctions reaching such benign means of expression.

We note that even if there are circumstances involving prior

violence, obstruction or tortious harassment in which an injunction

barring all communicative activity that brings the speakers within

fifteen feet of the addressee could be valid, it is almost certain

that a generally-applicable statute so providing would not be. For

the inability to engage in such traditional communicative activity

would, for reasons developed in Part II, infra, substantially burden

free speech rights of a substantial number of individuals who have

not engaged in any wrongdoing. Absent some particularized basis for

believing that all the individuals affected will engage in wrong-

doing, a “time, place or manner” restriction of this kind would

therefore be overbroad on its face. This comparison illustrates,

then, that despite the lesser standard of scrutiny recognized in

Madsen for legislation, the tailored nature of injunctions means

that speech restrictions can be valid in injunctions when identical

restrictions would be invalid if applied across-the-board. See Howard

Gault Co. v. Texas Rural Legal Aid, 848 F.2d 544 (5th Cir. 1988)

(holding statute providing for across-the-board limitations on

peaceful picketing invalid); United Food & Commercial Workers

Intern. Union v. IBP, Inc., 857 F.2d 422 (8th Cir. 1988) (same).

The foregoing is not to say that the injunction as

issued (or as slightly modified in the ways suggested

above) can not be retroactively justified on the Madsen

standard on the basis of the voluminous record in this

case made in the district court after the close scrutiny

mandated by Madsen. Our point, rather, is that neither

lower court has provided that scrutiny or undertaken

the justification task that Madsen lays out. In the

case of the district court, the failure of explanation

is almost certainly due to the fact that the injunction

issued before Madsen and that the trial court followed

the then-standard—and looser—‘“time, place and manner”

standard. In the case of the en banc Second Circuit,

the lapses just discussed as surely reflect the view of ten

of the fifteen judges on that court that at-the-site ap

peals to “targeted audiences,” in whatever form, are

not entitled to the full protection of the First Amend-

ment. 67 F.3d at 394 (opinion of Winter, J., for ten

judges (hereafter “Winter opinion” or “Winter majority” ) ).

As we now show, that is not a proper understanding of

the First Amendment’s reach.

The Winter majority rests its opinion squarely on the

proposition that this case concerns a class of speech ac-

tivity on the public streets that can be enjoined without

the kind of record of reneated unlawful conduct involved

in Madsen, and without regard to Madsen’s stringent “nar-

rowest terms” test. See 67 F.3d at 396 (“an extensive

record of coercion or obstruction is not necessary to

justify an injunction requiring physical separation[;] iso-

lated threats or obstructions” are sufficient. )

According to the Winter majority, this disfavored class

covers speech activity on the public streets—including

efforts by 2 speaker to talk to, or to handbill, an ad-

dressee—“targeted at specific individuals . . . at locations

difficult or inconvenient for them to avoid”, including

addressees who are “customers of a business, residents of

a particular house, workers at a firm, the trustees of a

university, military recruiters, delegates at a political con-

vention, or patients and employees of an abortion clinic.”

67 F.3d at 396.

This is a curious classification, to say the least, since

Madsen itself involved at-the-site appeals to a “targeted”

audience attempting to influence the actions of members

of that audience at that site, just as this case does. And

Madsen specifically holds that in this context, as well as

others, the First Amendment requires that “ ‘our citizens

must tolerate insulting, and even outrageous, speech’ ”

(114 S. Ct. at 2529, quoting Boos v. Barry, 485 U.S.

312, 322 (1988)), and invalidates blanket injunctive

prohibitions on orderly forms of face-to-face communica-

tion. Id.

The Winter opinion’s classification is curious as well

because the underlying concern expressed several times—

that face-to-face communication concerning contentious

issues can lead to unprotected conduct such as pursuing un-

willing addressees, crowding addressees at less than arm’s

length, screaming at addressees at decibel levels above

the tolerable—could have been met separately by en-

joining such harassing conduct through a set of carefully

drafted provisions that do not at the same time sweep

in handbillers and peaceful sign carriers and quiet if per-

sistent oral appeals from a civil distance.“ The estab-

12 The injunction at issue in Madsen prohibited all communica-

tive approaches to a patient of the clinic unless invited; here, such

approaches are permitted, but the intended addressee (or a person in

the same group as the addressee) can pretermit al] communication

before it begins by indicating in any fashion a desire not to listen.

The net effect is to elevate the desire of the intended audience to

avoid any communication whatever above the speaker’s attempt,

however unintrusive, polite, and respectful to begin a dialogue—a

result rejected by Madsen.

18 The injunction in this case does reach some of this conduct—

crowding, for example, as well as pushing and shoving—but does

lished First Amendment law does permit limitations

on communicative behavior that turns into harassment

through incessant repetition, intolerable noise levels, or

physical crowding at closer than formal conversational

distance. But the recognition that precise regulation of

such conduct is consistent with the First Amendment,

does not serve, as the Winter opinion posits, to justify

an injunction reaching non-harassing, at-the-site, persuas-

ive appeals that the addressee alter her intended behavior.

That is the central teaching of Thornhill v. Alabama, 310

U.S. 736 (1940) repeatedly reaffirmed many times since.

And, as we now show, properly so.

(A) Almost ten years ago, this Court considered a

case arising out of the following incident and the crim-

inal conviction the incident generated:

[Respondent Raymond Wayne] Hill observed a

friend, Charles Hill, intentionally stopping traffic on

a busy street, evidently to enable a vehicle to enter

traffic. Two Houston police officers, one of whom

was named Kelley, approached Charles and began

speaking with him. According to the District Court,

“shortly thereafter: Hill began shouting at the offi-

cers “in an admitted attempt to divert Kelley's at-

tention from Charles Hill.” .. . Hill first shouted

“Why don’t you pick on somebody your own size?”

pick on somebody

Hill, 482 U.S. 451, 453-54 (1987).]

The testimony showed that Raymond Wayne Hill, the

executive director of the Houston Human Rights League,

not attempt to delineate further with specificity the kind of abusive

tactics by the “sidewalk counselors” intended to be proscribed.

his “motivation was to stop [the officers] from hitting

Charles.” 482 U.S. at 454 n.1.

Thus, like the antiabortion protestors in this case and

the union protestors in Thornhill, Mr. Hill, it appears, was

communicating with individuals he deeply believed to be

engaging in activity both morally wrong and profoundly

hurtful of others, in a last ditch effort to convince them

not to engage in that activity.

This Court overturned as unconstitutional Hill’s con-

viction under a city ordinance that made it unlawful for

an individual to “in any manner oppose, molest, abuse

or interrupt any police officer in the execution of his

duty.” 482 U.S. at 455. The Court stressed that “the

First Amendment protects a significant amount of verbal

criticism and challenge,” including such speech directed

to an individual engaged in or about to engage in the dis-

favored activity. Id. at 461-63. That being so, the

Housing ordinance “criminalizes a substantial amount of

constitutionally protected speech . . . [,] and is facially

invalid.” Id. at 466-67.

Justice Powell’s concurring opinion adds that there is

sometimes a “fine line” between legitimate criticism of

the police and “speech . . . functionally indistinguishable

from conduct” such as “persistently attempting to en-

gage the officer in conversation while the officer is direct-

ing traffic at a busy intersection” or “run[ning] beside [an

officer pursuing a suspected felon] shouting at the officer”

and that Hill was on the protected speech side of the line.

482 U.S. at 479 (Powell, J., concurring). And, in re-

sponse to Justice Powell’s point the Hill Court noted that

his examples “might constitutionally be punished under

a properly tailored statute” and emphasized “[wjhat a

municipality may not do . . . and what Houston has done

in this case, is to attempt to punish such conduct by

broadly criminalizing speech .. .” id. at 462 n.11. Thus,

Hill demonstrates both that the kind of harassing tac-

tics the Winter majority focused on here can be pro-

hibited through “properly tailored” provisions and that

over-broad provisions prohibiting such conduct and

trenching on free speech are not consistent with the First

Amendment.

While Hill differs from this case in many regards—

the most obvious being that the speech activity there was

directed at government officials, and involved the con-

stitutionality of a criminal ordinance—that case speaks

to the issue here in a powerful voice. For Hill's reasoning

and result demonstrate that the Winter majority’s ration-

ale for relegating at-the-site persuasive speech activity on

public streets to a First Amendment backwater cannot

possibly support that result.

(B) Mr. Hill, labor handbillers promoting a consumer

boycott of an unfair employer, animal rights activists

seeking such a boycott of a fur store, and anti-war pro-

testors standing in front of a military recruiter’s office

seeking to dissuade potential enlistees are all on the pub-

lic streets and are all making use of the streets to engage

in direct, in-person persuasion of an individual or indi-

viduals who are not out for an aimless stroll but to fur-

ther some plan of action.

In the Hill situation, for example, the policeman is on

the scene to monitor the area; in the labor and animal

rights Situations, potential customers are approaching

stores in which they are considering buying something;

and in the war protestor situation the potential recruit

is considering entry into the military services.

In all these instances, the activists seek to address

fellow citizens precisely because of the latters’ purpose in

being on the public street. And, in all instances, the ac-

tivists are seeking as their first preference an immediate

response by the addressee—not striking a blow in making

an arrest, turning away from the abortion clinic, the store

or the recruitment office.

At the same time, the activists’ appeals can have a com-

municative impact even where the addressee does not

immediately accept that appeal. Thus, even if the police-

man in Hill made an arrest using unnecessary force, a

policeman so dramatically addressed is more likely to

consider the proper means of effectuating his next arrest

than one who reads a letter to the editor discussing an

improper arrest. Similarly, the pregnant woman, the mili-

tary recruit or the shopper may go forward with her

immediate plan of action, but in so doing and afterwards

may nonetheless give thought to the matter of conscience

raised by the activist. Indeed, in an era of informa-

tional and persuasive overload through a variety of im-

personal and commercial media, the long-term impact on

listeners of the fact that some of their fellow citizens care

enough about a particular moral, political, social or re-

ligious issue to take the time and effort personally to

communicate their views is likely to have persuasive force

of its own.

Nonetheless, according to the Winter majority, such

efforts to persuade “targeted audiences”—at a time and

place that asks for an imminent response—are at the

bottom of the free speech hierarchy and as such are en-

titled to only the most limited First Amendment protection.

This posit, as we understand it, recognizes that an

activist leafletting the general public on a randomly

selected downtown street about police abuse or the general

evils of abortion or of low wages or of war or of killing

animals, or even about the desirability of boycotting

abortion clinics, military recruitment offices, or certain

stores, comes within the First Amendment's full pro-

tection.

The Winter majority’s claim rather, is that such pro-

tection is lost when that individual seeks to make her

appeal more effective by moving to a location, still on a

public street, where the audience is composed of indi-

viduals whose very presence demonstrates that her message

speaks to the addressee’s situation.

ment jurisprudence first, proponents of a cause who ad-

dress the general public on random street corners do en-

gage in speech activity fully protected by the Constitution.

This Court has repeatedly made clear that the First

Amendment protects a citizen’s right broadly to dissemi-

nate ideas to the public at large while present on those

open public locations where the public traditionally

gathers, including, particularly and preeminently, ordi-

nary public streets.

“Communicating thoughts between citizens, and dis-

cussing public questions” is a “use of the streets and

public places that has, from ancient times, been a part of

the privileges, immunities, rights and liberties of citizens.”

Hague v. CIO, 307 U.S. 496, 501 (1939). Thus, “streets,

sidewalks, and parks, are considered, without more, to be

‘public forums’” (United States v. Grace, 461 U.S. 171,

177 (1983)), as to which “the government's ability to

permissibly restrict expressive conduct is very limited”

(id.).

At the same time, the public streets, of course, are

used by the citizenry not simply for loitering, for recrea-

tion and for social intercourse but as a “necessary conduit

in. . . daily affairs.” Heffron v. International Society for

Krishna Consciousness, 452 U.S. 640, 651 (1981).

Individuals use the streets as an indispensable means of

reaching all manner of destinations vital to their lives—

clothing stores, drugstores, food stores, lawyers’ offices,

doctors’ offices, schools, courthouses, government office

buildings, convention centers, and so on.

That being so, it would reduce the First Amendment

protection to the vanishing point to hold that the citizen

right to make use of the ordinary public streets to com-

municate with other citizens lapses near the entrance to

every facility which the addressee has an important rea-

son to enter. In recognition of that consequence the

Court has rejected the efforts to so limit free speech on

the public streets:

Traditional public forum property occupies a spe-

cial position in terms of First Amendment protection

and will not lose its historical character for the

reason that it abuts . . . property that has been dedi-

cated to a use other than as a forum for public

expression. [United States v. Grace, supra, 461 U.S.

at 180.]

It is well-established law, as well, that the right to com-

municate on the ordinary public streets extends not only

to the right to propound abstract ideas or to provide in-

formation concerning religious, political, social and moral

issues—that war is bad, for example, or that African-

American workers suffer employment discrimination, or

that cutting trees endangers the spotted owl—but also

specifically to exhort the addressees, in the common in-

terest, to advance a cause by putting aside their narrow,

individual interests and by altering the behavior their

individual interests would dictate. The First Amendment

extends

to more than abstract discussion, unrelated to action.

... “Free trade in ideas” means free trade in the

opportunity to persuade to action, not merely to

describe facts. [Thomas v. Collins, 323 U.S. 516,

537 (1945).]

That is why Mr. Hill’s effort to persuade a police-

man to stop an abusive arrest was within the free speech

protection. And, similarly, the First Amendment pro-

tects the right “through personal solicitation” to re-

quest private citizens “to join . . . [in] common cause” by

refusing to do something the addressee has every right as

an individual to do—for example, shopping at a particular

store or joining the army or attending a particular meet-

ing—because such a refusal would be in a larger social

interest. NAACP v. Claiborne Hardware, supra, 458 U.S.

at 909.

In the labor dispute context, for example, this Court

more than fifty years ago recognized that the fact that

“some of those reached [may] refrain from entering into

advantageous relations with the business establishment

which is the scene of the dispute” does not deplete the

First Amendment protections accorded the speaker seek-

ing that result:

Every expression of opinion on matters that are im-

portant has the potentiality of inducing action in the

interests of one rather than another group in

society. But the group in power at any moment may

not impose penal sanctions on peaceful and truthful

discussion of matters of public interest merely on a

showing that others may thereby be persuaded to

take action inconsistent with its interests. [Thornhill

v. Alabama, supra, 310 U.S. at 104] *

See also NAACP vy. Claiborne Hardware, supra, 458 U.S.

at 909 (reaffirming Thornhill’s protection of speech seek-

ing to induce individuals not to trade with businesses

because of the businesses’ employment practices).

(D) The question then becomes whether, as the Win-

ter majority posits, the strong protection accorded the

free speech right of each citizen to advocate a moral or

social cause on the public streets, and to request the

addressee to abstain from actions that the latter might

otherwise undertake, becomes attenuated when the speaker

chooses to present her argument to “specific individuals

targeted at locations difficult or inconvenient for them to

avoid.” 67 F.3d at 396.

As Hill shows, this Court’s cases answer that question

by affirming that the First Amendment protection does

extend to speakers who are at the site that is at the center

of their concern and of their addressees’ interest, rather

than at remote sites, and who are asking for an immediate

rather than a future response. See Thornhill v. Alabama,

4 Although Thornhill is usual'y referred to as a picketing case,

in fact the incident that gave rise to the case involved no patrolling

or other conduct now thought to define picketing. Rather, Thornhill

approached a worker outside a struck plant and asked him not to

work that day. The worker was not threatened, nor was he “in

fear.” 310 U.S. at 94. And, after hearing Thornhill’s exhortation,

the worker did decide not to work.

supra, 310 U.S. at 91-92, 105-106 (statute forbidding

protestors from going “near... the... place of business

of any person . . . for the purpose of. . . inducing other

persons not to trade with . . . such persons” as limited

or restricted in its application to such action as takes

place at the scene of the labor dispute” is unconstitu-

tional); NAACP v. Claiborne Hardware, supra, 458 US.

at 903, 909-910. Those precedents could not be more

right.

i) Contrary to the suggestion in the Winter majority

a the pte dh free selection of the intended audi-

ence is an integral part of the freedom of speech. The

speaker’s “targeting” of her audience is the norm for

newspapers, magazines, radio and television stations,

charitable solicitors, political candidates and lobbyists.

And, speakers select their audiences because speakers are

finite beings: It is normally a waste of time and effort to

reach an undifferentiated audience with a message mean-

ingless to many of them; it costs more to reach a larger

audience; and speech addressed to everybody tends to be

so diffuse as to reach nobody.

Mandating that a speaker must address a much broader

audience than she wishes to address in order to speak

at all is to place a heavy and pointless burden on the

right to speak. An order that the Boston Globe, if it is

to print at all, must set up distribution systems and ship

newspapers to Des Moines, New Orleans, and Seattle as

well as to the Boston area, for example, would impose a

financial burden on the freedom of speech at least as

serious as a tax on newspapers and magazines (see, ¢.g.,

Leathers v. Medlock, 499 U.S. 439, 447 (1991)), and

would interfere with the newspaper’s editorial determina-

tion—in this instance, to tailor its content to the Greater

Boston audience—as least as much as an order to print

retractions for misstatements (see, e.g., Miami Herald

Publishing Co. v. Tornillo, 418 U.S. 241, 255-58

(1974)).

Thus, the First Amendment commitment to speaker

autonomy cannot be squared with governmental dictation

of the speaker’s audience. Rather, given its impact such

dictation is a form of direct censorship.

(ii) The Winter opinion is also mistaken in_ its

premise that the First Amendment fully protects only

“purely rational” means of persuasion and therefore

enables the government to impose a period of repose to

assure a fully considered, rather than impetuous, re-

sponsive decision. According to that opinion, communi-

cations that use “shame”, “epithets”, “strong language”

or breach “rules of etiquette” are not exercises in pro-

tected free speech but are “coercive conduct” that is

tolerated under limited circumstance to avoid chilling

“real” free speech. 67 F.3d at 395-96."

The First Amendment, however, protects the communi-

cation of strongly felt emotions meant to induce an im-

mediate commitment in the manner of evangelical preach-

ers, just as the Amendment protects the circulation of

well-formed syllogisms appropriate to philosophical re-

flection—and must do so to serve its free speech purposes.

It is not the case that the First Amendment's only

Office is to foster fully reasoned exchanges that are part of

a searching, deliberative decisionmaking process. Rather,

the free speech protection advances as well “(t]he indi-

vidual’s interest in self-expression” (First National Bank v.

* Throughout its opinion the Winter majority uses the term

“coercive conduct” in a manner that clearly applies to words rather

than action, and that assumes that the very same words can be

“coercive” or not depending upon “the forum and the ability of

the audience to avoid the protest at little cost.” 67 F.3d at

397. Thus, while one is tempted to agree that the First Amend-

ment does not protect “coercive conduct” because the Amend-

ment does not protect conduct at all, it is plain that the Winter

majority uses the term “coercive conduct” to refer to speech

deemed to be unprotected because of the speech’s emotional

content and the relationship between the audience and the location

at which the speech is uttered, and not to nonexpressive activity.

Bellotti, 435 U.S. 765, 777 n.12 (1978)), recognizing

that “(t]he freedom to speak one’s mind is . . . an aspect

of individual liberty—and thus a good unto itself” (Bose

Corp. v. Consumer's Union, 466 U.S. 485, 503-04

(1984)).

The Winter majority would denigrate this aspect of

the First Amendment's rationale as one that makes “the

First Amendment . . . a governmental version of a

psychiatrist’s couch.” 67 F.3d at 395. That bespeaks a

small minded view of protecting each citizen’s expres-

sional autonomy. As this Court has recognized, the

breadth of the First Amendment’s protection advances

“the common quest for truth and the vitality of society

as a whole’. Bose Corp., supra, 466 U.S. at 504 (em-

phasis supplied ) :

The constitutional right of free expression is

powerful medicine in a society as diverse and popu-

lous as ours. It is designed and intended to remove

governmental restraints from the arena of public

discussion. . . . in the hope that use of such freedom

will ultimately produce a more capable citizenry

and more perfect polity and in the belief that no

other approach would comport with the premise of

individual dignity and choice upon which our politi-

cal system rests. [Cohen v. California, 403 U.S. 15,

24 (1971).]*

Equally to the point, First Amendment jurisprudence

recognizes that putting the interest in autonomous self-

expression to the side, communication directed at stirring

the listener’s emotions is not of lesser value than that

16 See also Erznoznik v. City of Jacksonville, 422 U.S. 205, 210

(1975) (“our pluralistic society [is] constantly proliferating new

and ingenious forms of expression”); Winters v. New York, 333

U.S. 507, 510 (1948) ( (“We do not accede to appellee’s suggestion

that the constitutional protection for a free press applies only to

the exposition of ideas. ... What is one man’s amusement, teaches

another’s doctrine.”’).

directed at stimulating the mind’s abstract reasoning

processes:

Much linguistic expression serves a dual communi-

cative function: it conveys not only ideas capable of

relatively precise, detached explication, but other-

wise inexpressible emotion as well. We cannot sanc-

tion the view of the Constitution that, while solici-

tous of the cognitive content of individual speech,

has little or no regard for that emotive function

which practically speaking may be the more impor-

— [Cohen v. California, supra, 403 U.S.

The “emotive impact of speech is not a “secondary ef-

fect’” unrelated to the content of the expression itself.”

Texas v. Johnson, 491 U.S. 397, 412 (1989), quoting

Boos v. Barry, supra, 485 U.S. at 321. Rather, the right

to persuade includes the speaker's right, through her

choice of words, themes and images, to communicate the

fervency of her views as well as their cognitive content,

and to appeal to emotions such as shame, sympathy, and

desire for social acceptance as a basis for decisionmak-

ing. NAACP v. Claiborne Hardware, supra, 458 U.S.

at 910-11 (First Amendment protects “persuasion . . . to

join the boycott through social pressure and the ‘threat’

of social ostracism” )."”

Candidates for public office, for example, do not lose

their First Amendment protections in fashioning their

campaigns because they seek to enlist voters to their side

through the emotive force of their appeals, rather than

*7 Recent research into the anatomy and functioning of the

human brain has confirmed the insight in Cohen that effective

decisionmaking depends at least as much, if not more, on emotional

understandings as on abstract reasoning. See Antonio R. Damasio,

Emotion, Reason, and the Human Brain (1994); see especially

id. at 34-51 (recounting the case of a formerly successful indi-

vidual who, after suffering brain damage, retained his intellectual

mental capacities “[b]ut his ability to make decisions was im-

> ll cae of “a reduction in emotional reactivity and

ng’).

through reasoned demonstrations of the superiority of

their candidacy or of their public policy positions.

Speech that is “provocative and challenging” is more

likely than rote repetition of known truths to “strike at

prejudices and preconceptions and have profound un-

settling effects as it presses for the acceptance of an

idea.” Terminiello v. City of Chicago, 337 U.S. 1, 4

(1949). Thus, such speech serves to open up the rational

faculties so that new ideas can be considered on their

merits, rather than rejected out of habit or tradition and

is protected by the First Amendment for that very reason.

See Gooding v. Wilson, 405 U.S. 518, 525 (1972) (dis-

tinguishing such speech from “fighting words”, which may

be proscribed ).

(iii) The final premise of the Winter majority’s anal-

ysis is that at-the-site advocacy of a cause is “inherently

coercive” because the audience’s presence at the site is

dictated by the desire to meet a need and is, thus not

“voluntary” (67 F.3d at 396), and because the communi-

cation asks the listener for moral, social, or political rea-

sons to suffer the “cost” (id.) of foregoing the individ-

ual’s intended action at that site. In this, the Winter

majority is, once again, wrong.

Most people using the public streets are going some-

where for some purpose. Thus, exposure to communica-

tive activity on city streets pleading a moral or social

cause is normally both involuntary and inconvenient in

the Winter majority’s terms. And, this exposure does not

differ with regard either to voluntariness or inconvenience

when it is in front of a facility the addressee wishes to

enter rather than on a street the addressee must traverse

to reach that facility; in either case, the addressee can

avoid the location, but only at the “cost” the Winters

majority posits. 67 F.3d at 396.

Thus, the Winters majority’s modest proposal for limit-

ing the scope of free speech by advocates of a cause on

the public streets is in fact its death warrant. If this de-

gzee of intrusion on the addressee’s interests overcomes

the free speech right, that right has no substance.

This Court has so recognized and has repeatedly held

that the short-term inconvenience or annoyance of limited

exposure to an unwanted message for the limited time it

takes to pause to consider a speaker’s address and then

to walk or drive past the speaker if that is the addres-

see’s desire is not a basis for ending free speech on the

public streets but the inevitable and acceptable cost of free

speech. See, e.g., Coates v. City of Cincinnati, 402 U.S.

611, 615-16 (1971) (“The First and Fourteenth Amend-

ments do not permit State to make criminal the exercise

of the right of assembly simply because its exercise may

be annoying to some people”); Boos v. Barry, supra, 485

U.S. at 321 (shielding diplomatic personnel from unwel-

come speech on public sidewalks abutting the embassy

where they work is not a justification consistent with the

First Amendment) .”

While the Winter majority supposed otherwise, the

situation here in fact has nothing to do with the so-called

“captive audience” situations. The latter class is com-

posed of situations in which an individual in a nonpublic

forum is forced to suffer repetitive exposure to speech

that may go on for hours or days as part of her daily

rounds, not to exposures on public streets that take min-

utes or seconds from time to time. See, Lehman v. City

of Shaker Heights, 418 U.S. 298, 302-04 (1974) (dis-

tinquishing the “captivity” of a passenger on a bus from

street speech encounters); Madsen, 114 S. Ct. at 2529

(discussing “captive audience” analysis only with respect

to those in the clinic and not with respect to those on

the public streets). Individuals not in an enclosed loca-

% Where the message is communicated only through signs or

handbills, the addressee will be an unwillingly subject either fleet-

ingly or not at all, since she can refuse to read the handbil! or can

avert her eyes from the signs. Erznoznik v. City of Jacksonville,

supra, 422 U.S. at 210.

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tion but on a street can cut off unwanted expression by

walking or driving on.

By the same token the Winter majority’s attempt to

metastasize this Court’s cases providing particular pro-

tection against unwanted speech within the home into a

general protection against all unwelcome expression flies

in the face of the very precedents cited. It is difficult to

imagine clearer language stating that the cases culminat-

ing in Frisby v. Shultz, supra, cannot be freely extrapo-

lated from their context than Frisby’s declaration that

“(T lhe home is different... . Thus, we have repeatedly

held that individuals are not required to welcome un-

wanted speech into their own homes .. .” 487 USS. at

485; see also id. at 484 (“Our prior decisions have often

remarked on the unique nature of the home... .”). Frisby

and its precursors that recognize a heightened privacy

interest in the home are thus at the opposite end of the

spectrum from cases involving speech on the ordinary

public street where privacy interests have the least force.

The Winter majority was also of the view that speech

activity directed at those approaching a site whose mes-

sage seeks to dissuade the addressees from carrying through

a contemplated course of action there is not free speech

but coercive conduct that denies the addressees their free-

dom. This is what we take to be the point of the court

below’s insistence that the Constitution “require[s] that

individuals who are subject to advocacy be left free to

make up their own minds and to adhere to their convic-

tions or intended courses of conduct should they remain

unpersuaded.” 67 F.3d at 395.

That view supposes that each citizen enjoys a right

to act as he desires without being subject to direct com-

municative efforts to dissuade him from that action. But

we know of nothing in this Court’s decisions or in the

Constitution that creates such a right. And, in the ab-

sence of that right, recognizing the legitimacy of at-the-

site advocacy does not deny the “targeted audience” any

legally cognizable freedom interest.

To be sure individuals who are insulated from those

who question the rightness of their actions are more

likely to carry through than those who must determine to

act after being faced with such a question. That likelihood

is not however a basis for silencing the speaker. As the

Court made clear in Organization for a Better Austin

v. Keefe, supra, 402 U.S. at 419-420, publicizing an

individual’s offensive business practices is not an “in-

vasion of privacy” that can be enjoined consistently with

the First Amendment even though “the expressions were

intended to exercise a coercive impact on respondent” to

sign an agreement to end those practices.

Indeed, the labor dispute example demonstrates the

degree to which it would compromise the public dialogue

to give credence to the claim that a “targeted audience”

is unfairly “coerced” by at-the-site speech that asks the

addressee to make an immediate decision on an issue the

speaker believes is of moral or social consequence. Labor

disputes bring to the surface a profound disagreement as

to whether or not the individual’s decision—to buy at or

work in a struck store, for example—is one of purely

private concern, or instead is one that can entail a breach

of a communal responsibility to the public generally (or

to a subgroup thereof). For the government to prevent

free speech on the ground that the addressee’s decision

is in truth purely private and that the speakers’ moral

argument and moral witness are of no consequence be-

cause the latter’s ultimate position is wrong on its merits

would be for the government to take one side of the ar-

gument on where autonomy ends and community begins.

That, we submit is not the government's role in this free

society.

(E) At-the-site persuasive speech activity by its nature

involves corporal beings who are the speakers and others

who comprise the audience—and not disembodied minds

and spirits. To that extent the speech involves an irreduc-

ible element of conduct and the conduct involves an irre-

ducible element of direct contact and of cognate effects on

the site’s human environment. No matter how peaceful

and orderly the speakers are, their very physical presence

and their course of speech activity will have radiating

effects on the audience. Our showing has been that

such speech activity is not taken out of the First Amend-

ment by its persuasive nature, its call for a response or

its inherent physical dimension. And, an integral part of

that showing has been that such communicative activity

is not properly denominated as coercion or some other im-

proper invasion of the “targeted” addressee’s legitimate

freedom to make his own decisions on his course of

action.

CONCLUSION

For the reasons stated above, this Court should reject

the analysis proffered by the Winter majority and sub-

‘eet the injunction in this case to the same stringent

alysis with respect to the necessity of each speech re-

striction applied in Madsen v. Women’s Health Center,

supra.

Respectfully submitted,