# Amicus Curiae 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%3A13 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1997 - **Citation:** 519 U.S. 357 ## Text 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 © > o > - . . SUMMARY OF ARGUMENT leet ttt tttet ttt td € . } ad ‘ ‘ | “ i : “ - - » . A r * 7 . ad log i a7 Sf . | , > ‘ : . , a £ > - 7. ‘ J P , ; Ul » F * e / ; & Ad » , i ‘ - . he oF 7 . , a 7 we * 7 ty! « an v . ’ ys ° ; . i a Fase r : = F F * a* ik s é F " +f - * ” + at v * ts . a Lp gest R ’ { ° oo 4 P \ 4 a 7 - j i - . ; — aa : ‘ a ‘ > * ; be ~ > f te \ if s 8 s « > 7 , 5 ‘ ™~ el . e 5 « 4 7 . a ‘ 7 ii 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 ll cae of “a reduction in emotional reactivity and ng’). 26 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- 27 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. "BEST AVAILABLE COPY® 28 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. 29 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 30 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, 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0684%3A13. Public record. Not legal advice.