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

No. 95-1065 \

G )

In The

Supreme Court of the United States

October Term, 1995

e

PAUL SCHENCK, et al.,

VS.

Petitioners,

PRO-CHOICE NETWORK OF WESTERN

NEW YORK, et al.,

S

Respondents.

On Writ Of Certiorari To The

Court Of Appeals For The Second Circuit

¢

BRIEF OF AMICI CURIAE, AMERICAN CIVIL

LIBERTIES UNION FOUNDATION OF FLORIDA,

INC., AMERICAN CIVIL LIBERTIES UNION OF

OHIO FOUNDATION, INC. AND INDIANA CIVIL

LIBERTIES UNION IN SUPPORT OF NEITHER

PARTY AND SUGGESTING REVERSAL

¢

Scott T. GREENWOOD

Joan M. ENGLUND

AMERICAN Crvit LIBERTIES

UNION OF OHIO

FOUNDATION, INC.

1266 West Sixth Street

Suite 200

Cleveland, Ohio 44113

(216) 781-6276

RicHARD A. WapPLES

INDIANA Crvit Liserties UNION

1031 East Washington Street

Indianapolis, Indiana 46202

(317) 635-4059

Counsel for amici

COCKLE LAW BRIEF

OR CALL

PRINTING CO.,

COLLECT (402) 342-2831

James K. GREEN

(Counsel of Record)

ANDREW H. KayTon

AMERICAN Crvit LIBERTIES

UNION FOUNDATION

oF FLoripa, INc.

225 N.E. 34th Street

Suite 102

Miami, Florida 33137

(305) 576-2337

CO., (800) 225-6964

iv

Ill.

TABLE OF CONTENTS

THE APPLICABLE STANDARD

THE FLOATING BUFFER ZONE AND CEASE

AND DESIST PROVISIONS ARE INCOMPAT-

IBLE WITH THE MADSEN STANDARD

UNDER THE STATED FINDINGS OF THE DIS-

B. The Contested Injunction Provisions Fail to

Meet the Proper Constitutional Standard ..

CLARIFICATION OF THE MADSEN STAN-

TABLE OF AUTHORITIES

Page

Cases CITED:

Bray v. Alexandria Women’s Health Clinic, 506

US. 267 C1OGGD .. cvccvccccsccescucseccensseeeaeuee 10

Califano v. Yamaski, 442 U.S. 682 (1979) ............. 5

Carroll v. President & Commissioners of Princess

Anne, 393 U.S. 175 (1968) ............eee eens. passim

City of Houston v. Hill, 482 U.S. 451 (1987)......... 13

Collin v. Smith, 578 F.2d 1197 (7th Cir.), cert.

dented, 430 US. 916 CIGVED.. . osavccsvecssscuuueeuees )

Cox v. Louisiana, 379 U.S. 536 (1965) ................ 2

Gompers v. Buck’s Stove & Range Co., 221 U.S.

GBB CIDER)... cccvccvccseccceucesesunsenn eee 6

Madsen v. Women’s Health Center, 114 S. Ct. 2516

(RODE) .. . ov cccceccceusoces eons enn aeneee passim

Milk Wagon Drivers Union v. Meadowmoor

Dairies, 312 U.S. 287 (1941)........... 2, 6, 10, 13, 14

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

(SPP. a, & & Fo oe

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

bg | Rr re 2

Pro-Choice Network of Western New York v.

Schenck, 67 F.3d 377 (2d Cir. 1995) ..... 2, 3, 8, 9, 15

Pro-Choice Network v. Project Rescue, 799 F.

Supp. 1417 (W. D. N. Y. 1992)......... 6%.

Youngdahl v. Rainfair, 355 U.S. 131 (1957)............ 7

TABLE OF AUTHORITIES - Continued

Page

CONSTITUTIONS:

First Amendment, United States Constitution

UTEP POPSCERC SSC edScccecccccccccn.. 1, 2, 8, 12, 13

OrHer REFERENCEs:

Freedom of Access to Clinics Ent

18 USC. § 248 rance Act of 1994,

BRIEF FOR AMICI CURIAE

INTEREST OF AMICI

Amici are state affiliates of the American Civil Liber-

ties Union in Florida, Ohio and Indiana. Each is a sep-

arately incorporated, non-profit public interest law

organization devoted to protecting constitutional rights

and civil liberties. Amici represent clients who have

engaged in public protest activities and against some of

whom injunctive relief is currently being sought by pri-

vate parties seeking court-imposed restrictions on those

protest activities. Those clients’ interests and rights under

the First Amendment may be impacted directly by the

Court's decision in this case. Amici believe that the First

Amendment analysis undertaken in the circuit court deci-

sion under review is inconsistent with the proper stan-

dards established by this Court, and if left uncorrected,

could have a damaging effect generally on the rights of

protesters well outside the particular controversyof abor-

tion.

°

INTRODUCTION AND SUMMARY OF ARGUMENT

The grant of certiorari in this action contemplates a

determination whether two provisions of a 1992 injunc-

tion issued by the United States District Court for the

Western District of New York are consistent with the First

Amendment. One contested provision of the injunction

imposes a fifteen-foot “floating” buffer zone, which

attaches not only to the entrances and driveways of clinic

private property, but also to “any vehicle or person seek-

ing access to or leaving such facilities,” including non-

patients and non-health care providers. Pro-Choice Net-

work of Western New York v. Schenck, 67 F.3d 377, 393 (2d

Cir. 1995) (en banc) (“Schenck”). The second contested

provision provides an exception to the buffer zone for up

to two “sidewalk counselors” who may engage in “con-

versation of a non-threatening manner.” These desig-

nated individuals must “cease and desist” and retreat

outside the floating buffer zone, however, if a recipient of

their message “wants to not have counseling, wants to

leave, or walk away.” 67 F.3d at 390.

These injunctive measures reflect novel and unwar-

ranted exercises of judicial power limiting speech,

imposed by the district court under an improper stan-

dard. In prior cases before this Court involving labor

disputes, racial and civil rights disputes and student pro-

tests, restrictions on public protest activities have been

tempered by careful fidelity to core First Amendment

principles, even when speech has been accompanied by

acts of violence, obstruction and threats. See, e.g., Milk

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

(1941); Carroll v. President & Commissioners of Princess

Anne, 393 U.S. 175 (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. 536

(1965). The Court’s one decision addressing restrictions

on an anti-abortion protest, Madsen v. Women’s Health

Center, 114 S. Ct. 2516 (1994), expressed its close adher-

ence to the constitutional standards established in these

earlier cases. 114 S. Ct. at 2526.

Because Madsen permitted imposition of a buffer

zone at an abortion clinic, however, the decision may

have spawned exceptions to the Milk Wagon/Carroll line of

precedent that the Court did not intend.' Here, for exam-

ple, the Second Circuit - nominally applying Madsen -

upheld the district court’s injunction under an analysis

which broadly extends captive-audience doctrine to tra-

ditional public fora and which transforms unwanted ver-

bal messages into a “constructive blockade” meriting

injunctive relief. See Schenck, 67 F.3d at 383 and 393. These

interpretations of Madsen border on de facto content-based

restrictions, and if left uncorrected, could have chilling

consequences well beyond the abortion protest context.

The Second Circuit’s decision provides a strong indica-

tion that the standard articulated for injunctions in Mad-

sen, 114 S. Ct. at 2525 (“burdens no more speech than

necessary” to serve a significant government interest),

without more, furnishes insufficient guidance to ensure

First Amendment standards are applied in the anti-abor-

tion protest context in a manner consistent with other,

equally divisive public protest contexts noted above.

The Court should clarify that, under Madsen, an

injunction is not narrowly tailored to “burden no more

speech than necessary” to serve a significant government

interest unless “the essential needs of the public order”

are at stake and the injunctive decree is “couched in the

' Significantly, the decision in Madsen was premised “on

the assumption that the evidence and testimony before the [trial]

court supported its findings . . . ”, since the petitioners in that

case never certified the factual record on appeal. 114 S.Ct. at

2527-28 (emphasis added). The Court in that case strictly

refrained from engaging in the independent review of the

record it ordinarily undertakes in cases involving the First

Amendment. See, e.g., NAACP v. Claiborne Hardware, 458 U.S. at

915-16 n. 50.

narrowest terms that will accomplish the pin-pointed

objective.” See Carroll v. President and Comm'rs of Princess

Anne, 393 U.S. at 183. Consistent with this standard,

judicial power creating a buffer zone should be exercised

only when the plaintiffs have stated a proper cause of

action against the defendants; a prior injunction, apply-

ing only to unlawful conduct, has failed to contain the

unlawful activity; the defendants’ unlawful activity per-

vasively threatens the public order; the order allows

retention of fundamental free speech rights in each loca-

tion; and the order is narrowly tailored so that any

speech-felated restriction has an articulated and direct

relation to the curbing of unlawful conduct.

Amici believe that, when tested fairly against these

standards, the two injunctive provisions at stake in this

case are unnecessarily restrictive. Particularly since the

Second Circuit chose to apply Madsen standards post-hoc

to a pre-Madsen order constructed by the district court

under a “reasonable time, place and manner” standard, it

would be proper for this Court, after clarifying the

proper standards, to remand the case for an initial deter-

mination by the district court under those standards, in

view of a trial judge’s discretionary role in fashioning

injunctions.

S

ARGUMENT

I. The Applicable Standard

In Madsen v. Women's Health Center, 114 S. Ct. 2516,

2525 (1994), this Court adopted the following applicable

standard: “Whether the challenged provision of the injunc-

tion burdens no more speech than necessary to serve a

significant government interest.” The Court observed that

“ ‘injunctive relief should ‘e no more burdensome to the

defendants than necessary to provide complete relief to

the plaintiffs.’” 114 S. Ct. at 2525 (quoting Califano v.

Yamaski, 442 U.S. 682, 702 (1979)). Citing NAACP v.

Claiborne Hardware, 458 U.S. at 916 and Carroll v. President

and Comm'rs Princess Anne, 393 U.S. at 183-84, the Court

further noted that “when sanctionable ‘conduct occurs in

the context of constitutionally protected activity .. . ’

‘precision of regulation is demanded.’ ” Id. Significantly,

the Court stressed that the standard articulated in Madsen

is the functional equivalent of Carroll's requirement that an

injunction be “couched in the narrowest terms that will

accomplish the pin-pointed objective” of the injunction.

Madsen, 114 S. Ct. at 2526 (“We fail to see a difference

between the two standards.”)

The standard adopted in Madsen reflects a conception

that neither the state nor private parties “ordinarily”

should rely on injunctions to serve their interests in regu-

lating abusive expression. Such injunctions come to the

Court “bearing a heavy presumption against constitu-

tional validity.” Carroll, 393 U.S. at 181. Although not

content-based per se (Madsen, 114 S. Ct. at 2523-24), such

injunctions nonetheless are directed specifically against

particular speakers, organizations, and protests, and

reflect judge-created norms untethered from a more

broad-based legislative process. See Madsen, 114 S. Ct. at

2424 (“Injunctions carry greater risks of censorship and

discriminatory application than do general ordinances.”)

They also can be enforced through civil proceedings,

without jury trials or a criminal standard of proof. See

generally Gompers v. Buck's Stove & Range Co., 221 U.S. 418,

426-27 (1911).

As a consequence, and as the Court has taken pains

to emphasize in the past, only the most exceptional cir-

cumstances warrant imposition of governmental author-

ity to curb speech:

[T]he right of free speech cannot be denied by

drawing from a trivial rough incident or a

moment of animal exuberance the conclusion

that otherwise peaceful picketing has the taint

of force .. . [The] protestor’s right to free speech

in the future cannot be forfeited because of dis-

sociated acts of past violence. Nor may a state

enjoin peaceful picketing because it may pro-

voke violence in others.

Milk Wagon Drivers, 312 U.S. at 293 and 296.7 The Court

subsequently has stressed that a ban on otherwise lawful,

peaceful expressive activity can be justified only where “a

2 Milk Wagon Drivers provides a paradigm of when an

injunction curbing speech activities may be appropriate. There,

the court documented “violence on a considerable scale,”

including “more than fifty instances of window-smashing;

explosive bombs causing substantial injury . . . ; [five] stench

bombs,” several wrecked trucks, arson of a store and two trucks,

severe beatings of a store-keeper, a trucker and workers, one

shooting and a number of threatened shootings. 312 U.S. at

291-92. The conduct described by the district court in this case

does not appear to rise to the level of violence encountered in

Milk Wagon Drivers. Compare Pro-Choice Network v. Project Rescue,

799 F.Supp. 1417, 1424 (W.D.N.Y. 1992) (“[D]Jemonstrators

crowd around people trying to enter the facilities . . . and grab,

push and shove the patients, patient escorts and staff.”)

pattern of violence was established which would inevita-

bly reappear in the event picketing were later resumed.”

Youngdahl v. Rainfair, 355 U.S. 131 (1957) (declining to

permit ban on peaceful picketing under Milk Wagon

Drivers because “[w]hat violence there was was scattered

in time and much of it was unconnected with the picket-

ing”); NAACP v. Claiborne Hardware, 458 U.S. at 923, 924

n.67 (“this case is not like Milk Wagon Drivers

... in which the Court held that the presence of violence

justified an injunction against both violent and non-

violent activity. The violent conduct present in that cases

was pervasive .. . [T]he injunction must be modified to

restrain only unlawful conduct. . . ”).> Cf. Carroll, 393

U.S. at 180 (speech loses “the broad guarantee of the First

Amendment” only in those “special, limited circum-

stances in wh ch speech is . . . interlaced with burgeoning

violence.”).

II. The Floating Buffer Zone and Cease and Desist

Provisions are Incompatible with the Madsen Stan-

dard Under the Stated Findings of the District

Court

The district court in this case created a floating fif-

teen foot buffer zone using a “reasonable time, place and

manner” standard of analysis. Coupled with the cease

and desist provision of the injunction, the “floating”

3 Instructively, Claiborne Hardware characterized past

unlawful acts (including shots fired at several homes, a brick

thrown through a windshield, two beatings and damage to

private property) as “isolated acts of violence during a limited

period.” 458 U.S. at 924.

nature of the buffer zone effectively imposes on pro-

testors a thirty foot swath around each individual and

vehicle entering a clinic, without beginning and without

end. The Second Circuit upheld these restrictions, relying

in part on a rationale that persons in a public forum

seeking access to an abortion clinic are a captive audience

who should be free from unwanted speech. Schenck, 67

F.3d at 392. The Second Circuit’s analysis reflects misap-

plication of the Madsen standard.‘

A. The Appropriate “Significant” Government

Interests

The district court identified three governmental

interests underlying the injunction: (1) protecting the

health and safety of patients; (2) securing public safety by

preventing physical blockades and preventing defendants

from “abusing, grabbing, touching, pushing, shoving or

crowding persons entering or leaving the clinics[;]” and

(3) “ensuring ‘that the constitutional rights of one group

are not sacrificed in the interest of the constitutional

rights of another.’ ” Pro-Choice Network v. Project Rescue,

799 F. Supp. 1417, 1433 (W. D. N. Y. 1992). The Second

* For purposes of First Amendment analysis, it is

particularly important in the abortion context that, without

minimizing the very grave and abhorrent violent acts that have

occurred at some clinics, courts resist ascribing the motivations

and tactics of individuals committing those acts to all organized

and active protest against abortion activities. As with any social

protest movement, be it in areas of labor, civil rights, or anti-war

efforts, abortion protestors hold wide disparities in beliefs

about appropriate speech, conduct and tactics.

Circuit accepted these interests as “significant.” 67 F.3d at

387.

The significance of the second government interest

appears uncontroversial, but the first proffered interest

warrants careful examination by the Court. While pro-

tecting the health and safety of its citizens is of course a

strong government interest in the abstract, a too-easy

acceptance that health and safety concerns are a “signifi-

cant” government interest under Madsen opens the door

to a new form of heckler’s veto advanced in the guise of

medical gloss. The recipient of an uncomfortable or

unwanted message need only provide medical testimony

that exposure to that message could adversely affect his

or her physical or mental health in order to enjoin the

speech at issue. For example, a business owner with high

blood pressure could banish labor picketers to a large

buffer zone because of the potential health-related conse-

quences of hearing the picketers’ taunts. A midwestern

community with a large population of elderly concentra-

tion camp survivors could restrict a planned neo-Nazi

march based on evidence of mental and physical medical

risks presented by such speech. Cf. Collin v. Smith, 578

F.2d 1197 (7th Cir.), cert. denied, 439 U.S. 916 (1978).

In this case, the district court’s findings concerning

increased health risks to patients stemming from peti-

tioners’ demonstration activity are notably unquantified

and hypothetical. See Pro-Choice Network v. Project Rescue,

799 F. Supp. at 1427 (finding increased stress and anxiety

“can” cause patients to have elevated blood pressure,

hyperventilate, require sedation, require counseling, and

become agitated, thereby “increasing the risks associated

with surgery,” but not specifying what or how serious

10

those risks are). While the health risks may very well be

quantifiable and real, such concerns should not assume

the mantle of a “significant” government interest war-

ranting restrictions on fundamental rights of free speech

without particularized evidence and findings of a clear

and present danger of serious medical harm by the trial

court. Otherwise, as in the decision below, “the guaran-

tees of the Bill of Rights [may] be defeated by insubstan-

tial findings of fact screening reality.” Milk Wagon Drivers,

312 U.S. at 293.5

B. The Contested Injunction Provisions Fail to

Meet the Proper Constitutional Standard

In Madsen this Court struck as unconstitutional the

functional equivalent of the floating buffer zone imposed

by the district court in this case. That provision restrained

protestors from physically approaching any person seek-

ing abortion services within three hundred feet of the

clinic. 114 S. Ct. at 2529. Similar to the “bubble” provision

in Madsen, which was instituted to prevent patients from

being “stalked” and “shadowed”, 114 S. Ct. at 2529, the

buffer zone, coupled with the cease and desist provisions

5 The third proffered government interest appears

misconceived, insofar as this case, properly understood, does

not involve a balancing of constitutional rights. A private

party’s attempts to prevent individuals from performing or

undergoing abortions does not violate any provision of the

Constitution. See Bray v. Alexandria Women's Health Clinic, 506

U.S. 267-78 (1993). The only potential constitutional violations

in this action inhere in the speech restrictions imposed by the

lower federal courts.

11

in this case, fails to meet the proper constitutional stan-

dard under Carroll and Madsen.

The floating buffer zone broadly restricts speech

directed to individuals who are neither patients nor

health care providers. Its thirty foot swath effectively

prevents protestors from conversing with and presenting

written material to other individuals in a non-obstructive

and non-threatening manner.® Permitting two sidewalk

counselors to breach the floating buffer zone does not

meaningfully ameliorate this significant restriction on the

speech of all other protestors.

The “sidewalk counselor” provision more

egregiously sweeps protected speech into its prohibition,

and can effectively suppress all dialogue, without serving

any significant government interest. Instructively, this

Court noted in Madsen:

Absent evidence that the protestors’ speech is

independently proscribable (i.e. ‘fighting words’

or threats), or is so infused with violence as to

be indistinguishable from a threat of physical

harm, [the provision prohibiting demonstrators

from physically approaching patients unless

invited to do so] cannot stand.

114 S. Ct. at 2529. Yet, in this case - even when ‘fighting

words’ or threats of violence are wholly absent - any

recipient of a sidewalk counselor’s message can subjec-

tively transform pure speech into impermissible conduct,

© Ironically, by keeping demonstrators so far back they

must raise their voices to be heard, it also undermines the more

polite level of political discourse the provision apparently is

intended to advance.

12

exposing the sidewalk counselor to possible arrest and

detention, by “indicat[ing], either verbally or non-ver-

bally, that they do not wish to be counseled.” Pro-Choice

Network, 799 F. Supp. at 1434. Such a provision hardly

bears material distinction from the provision struck in

Madsen prohibiting all uninvited approaches of persons

entering a clinic. See Madsen, 114 S. Ct. at 2529.

The district court acknowledged the substantial

speech interest protestors have in conversing with and

offering written material to patients. Pro-Choice Network,

799 F. Supp. at 1432. (“There is no question that defen-

dants’ activities constitute a form of political speech pro-

tected by the First Amendment. Defendants are entitled

to express their views on abortion, ‘particularly when

standing on a public sidewalk where, since time imme-

morial, the authority to regulate speech is sharply

restricted.’ ”) (citations omitted). But it erroneously con-

cluded that these interests were adequately accommo-

dated by its provision permitting only two protestors to

approach the patient to converse and offer literature. 799

F. Supp. at 1434 (“In an attempt to accommodate fully

defendants’ First Amendment rights, the Court . . . has

made an exception to the ‘clear zones’ for sidewalk coun-

selors.”). By limiting the number of sidewalk counselors,

the court substantially and unnecessarily burdened the

speech interest of all other protestors.

III. Clarification of the Madsen Standard

The infirmities of the present injunction suggest that

the standard enunciated in Madsen needs ciarification in

order to instruct federal courts on adequately protecting

13

free expression rights in injunctions restricting protest.

Several principles are suggested by the Court’s own

injunction cases, by First Amendment principles, and by

the Madsen and Carroll standards themselves.

First, there should be no injunction without an

express finding that the plaintiffs have stated a valid

cause of action against the defendants who are to be

restricted by the injunction. Injunctions are remedies to

be imposed when a cause of action is proven or has a

probability of success, and are not an opportunity for

free-wheeling judicial activism seeking to promote social

order. “The First Amendment recognizes, wisely we

think, that a certain amount of expressive disorder not

only is inevitable in a society committed to individual

freedom, but must itself be protected if that freedom

would survive.” City of Houston v. Hill, 482 U.S. 451, 472

(1987).

Second, except in the “flagrant violence” situation,

see Milk Wagon Drivers, any injunction should ordinarily

be limited, in the first instance, to restraining illegal

conduct. NAACP v. Claiborne Hardware, 458 U.S. at 924

n.67. If and only if that restraint fails to curb the illegal

conduct is there any basis at all for believing that a

broader injunction is necessary. Moreover, an incremental

and location-specific approach should be required. The

continuation of certain illegal conduct after an initial

injunction would not justify a speech-restricting injunc-

tion that controls conduct of a different kind or in a

different location.

Third, only where controlling the unlawful conduct

at issue is “essential to public order,” Carroll, 393 U.S. at

14

183, can circumstances justify an injunction impinging on

legitimate expressive activity. Thus, only activity that is

pervasively threatening to the safety of others can pro-

vide the necessary predicate. Even if the district court

here legitimately found such a predicate, which appears

doubtful in view of the comparative predicates found in

Milk Wagon Drivers and Claiborne Hardware, it is question-

able whether the same injunctive relief properly should

have been upheld by the Second Circuit, applying Madsen

in 1995. In the interim, the Freedom of Access to Clinic

Entrances Act of 1994, 18 U.S.C. § 248 (“FACE”), proscrib-

ing “force,” “threat of force” and “physical obstruction”

at abortion clinics was enacted. By adding federal law

enforcement capabilities, as well as draconian punish-

ments, the FACE Act reduced, and perhaps eliminated,

the earlier predicate for injunctive relief that ordinary

remedies at law are inadequate. The district court on

remand should consider the need for continued injunc-

tive relief in light of the FACE Act.

Fourth, to be “tailored as precisely as possible to the

exact needs of the case,” Carroll, 393 U.S at 184, each

aspect of any injunction that affects speech activity

should do so in measured increments and to the least

degree necessary for eliminating intolerable unlawful

conduct underlying the injunction. In particular, the

physical area covered by any restriction on communica-

tive activity should be as confined as possible and based

on site-specific justifications. Absent the type of extreme

and pervasive violence found present in Milk Wagon

Drivers, peaceful expressive activity should not be

entirely forbidden within any area. In this case, the

15

injunction upheld by the Second Circuit applies in blan-

ket fashion to seven clinics, and is not remotely tailored

to specific clinics or justified by specific acts indicating a

probability of actual or continued unlawful conduct at

each of the sites.

Lastly, any injunction issued as a result of unlawful

conduct should carefully limit provisions affecting speech

to be narrowly responsive to the pervasive unlawful con-

duct that triggers its issuance. In other words, a direct,

articulable nexus must exist between each speech-related

restriction and the need to curb unlawful conduct. The

fact that some petitioners engaged at one time in some

unlawful, enjoinable conduct should not be an adequate

predicate for a wide-ranging injunction on expressive

activity by them and others.

Here, the district court found that Project Rescue had

in fact complied commendably with the TRO issued ear-

lier in the case. Pro-Choice Network v. Project Rescue, 799 F.

Supp. at 1424 n.5. Therefore, logically there could be no

reasonable finding that the institution of a floating buffer

zone was necessary to prevent future illegal activity. The

Second Circuit sidestepped this peculiar absence of a key

predicate for an injunction by merging both past illegal

activity of protestors and their protected speech into the

rubric of a “constructive blockade” having “the same

goals as the physical blockades.” Schenck, 67 F.3d at

382-83. This concept transforms speech into conduct by

virtue simply of the speech’s content or the speaker's

purpose, and dangerously implies that public fora are

16

reserved only for tepid debates rather than divisive moral

and political issues.”

¢

CONCLUSION

The judgement of the circuit court should be

reversed.

Scott T. GreENwoop

Joan M. ENGLUND

AMERICAN Crvit Liserties

UNION oF OHIO

FouNDATION, INc.

1266 West Sixth Street

Suite 200

Cleveland, Ohio 44113

(216) 781-6276

RicHarp A. Wap tes

INDIANA Civic Liserties UNION

1031 East Washington Street

Indianapolis, Indiana 46202

(317) 635-4059

Respectfully submitted,

James K. Green

(Counsel of Record)

Anprew H. Kayton

AMERICAN Crvi_ LiBerRTiEs

UNION FouNDATION

or Froripa, Inc.

225 N.E. 34th Street

Suite 102

Miami, Florida 33137

(305) 576-2337

Counsel for amici

7 The lower courts in this action appeared to be of the view

that the petitioners’

purpose of deterring patients and staff from

entering a clinic was itself improper, at least if it ever succeeded.

If so, their notion of a “constructive blockade” would

revolutionize First Amendment law if it were applied to picket

lines conducted by labor unions, economic boycotters, or any

number of other groups. One of the ordinary purposes of a

picket line is to dissuade people from crossing it, and success in

that purpose is a vindication, not a violation, of the First

Amendment unless accomplished by physical force or threats.