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

Supreme Court, U.S.

FILED

A) UN 5S 1996

No. 95-1065

CLERK |

IN THE

Supreme Court of the United States

OCTOBER TERM, 1995

y

REVEREND PAUL SCHENCK |

and DWIGHT SAUNDERS,

Petitioners,

V.

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

5

AMICUS BRIEF OF LIBERTY COUNSEL

IN SUPPORT OF PETITIONERS

>

Mathew D. Staver

(Counsel of Record)

Frederick H. Nelson

Nicole Arfaras Kerr

Kevin J. Tang

Liberty Counsel

1900 Summit Tower Blvd.

Suite 560

Orlando, FL 32810

(407) 875-2100

Counsel for Amicus

;

2

bd

ee

J a2

p ent)»

| 4

Entering The Speech-Restrictive

’ ry tw" aa oe ;

Beg So tae Ee

. >.

1. The 15-foot floating speech free

zones burden substantially more

speech than necessary ............ 20

a. The "cease and desist" provision is

content-based ............... 23

b. The "cease and desist" provision is

viewpoint-based.............. 26

II.

AN INJUNCTION RESTRICTING SPEECH

IMPOSED IN THE ABSENCE OF A PRIOR

UNSUCCESSFUL NON-SPEECH-RESTRICTIVE

INJUNCTION IS AN UNCONSTITUTIONAL

PRIOR RESTRAINT ......... 28

CONCILIATION on cece t eee ee Oe 30

TABLE OF AUTHORITIES

PAGE

CASES:

Bantam Books, Inc. v. Sullivan,

ED nc cee eee eeece 28, 30

Boos v. Barry,

485 U.S. 312 (1988) ..... 3, 9, 17, 22, 24, 25, 27

Cantwell v. Connecticut,

i io tw oe ce os 16

Carroll v. President & Comm'rs of Princess Anne,

| Fe fe 3, 15, 17, 28, 29

City of Cincinnati v. Discovery Network, Inc.,

a 27

City of Houston v. Hill,

a ik eg ee ee 6. 16

Clark v. Community for Creative Nonviolence,

ES ee 26

Coates v. City of Cincinnati,

Ce ce ce eee eee 26

Cohen v. California,

ee Ce ek pe ce ec 22

Cox v. Louisiana,

EE EES 26

Dorman v. Satti,

Erznoznik v. City of Jacksonville,

pi ® Ff Peer Pee PERE 22

Forsyth County v. The Nationalist Movement,

Se i, Ge, Eo 06S 6-0:00 6:0'0-0'e 9, 25, 29

Frisby v. Schultz,

Gy a SD i ccceest devote, 18, 21

Howard Gault Co. v. Texas Rural Legal Aid,

848 F.2d 544 (Sth Cir. 1988) .............. 18

Hustler Magazine, Inc. v. Falwell,

4 ) § fear eee ke ee 9

ISKCON v. Lee,

2 F&F ee re 21

Kovacs v. Cooper,

Se ees ee ae 20

Lamb's Chapel v. Center Moriches Union Free School Dist. ,

Sp a Gh, See Gc 00 68 SPE Cee EEN 25

Loper v. New York City Police Dep't,

See Come Gs GUND ccc ccesewbecdes 26

Lovell v. Griffin,

ee ee ED cccccsecveutdewaees 28

Madsen v. Women’s Health Center, Inc. ,

114 S. Ct. 2516 (1994)............. 2, passim

iv

862 F.2d 432 (2d Cir. 1988) .............. 26

Vv

Members of the City Council of City of Los Angeles v.

Taxpayers for Vincent,

ED occa cess beeteces 27

NAACP v. Claiborne Hardware Co. ,

458 U.S. 886 (1982) ............ 3, 10, 15, 26

National Society of Professional Engrs. v. United States,

EE. 4c so 60 6 oe be 0 we & o's 6

Near v. Minnesota,

re, Sl en heen deel 28

Nebraska Press Ass'n v. Stuart,

ea eee el ey 28

New York Times Co. v. Sullivan,

GO a 16, 20

New York Times Co. v. United States,

rr. a og Wipe a's bo os « 28, 30

Organization for a Better Austin v. Keefe,

aD. 656 06 tbe t's se ees 9, 10

Perry Education Ass'n v. Perry Local Educators’ Ass'n,

SE Pe, ¢odedeeWe bes wes 21, 22, 27

Police Dep't of Chicago v. Mosley,

Dé tab ts bee ob ded nes 25

Pro-Choice Network of Western New York v. Project Rescue

Western New York,

799 F. Supp. 1417 (W.D.N.Y. 1992) .... 7, passim

vi

Pro-Choice Network of Western New York v. Project Rescue

of Western New York,

fA > | 1. fe eee eer 19

Pro-Choice Network of Western New York v. Schenck,

67 F.3d 377 (2d Cir. 1995) (en banc) .... 6, 7, 8,9

R.A.V. v. City of St. Paul,

Se a es Se avccatoesae 25, 26, 27

Regan v. Time, Inc.,

gE ee ere ere 25

Rowan v. United States Post Office Dep't,

Be Ge Sn 6 6 0 co CNUs FES Ce’ 17, 21

Schacht v. United States,

EE 6 o o'nud's CHO wee can eee 27

Shuttlesworth v. City of Birmingham,

er a ED. wg 6 66 Calais 6.40 oe wee 29

Simon & Schuster v. New York Crime Victims Bd. ,

te. Se fd re eee 25, 27

Southeastern Promotions, Ltd. v. Conrad,

ee OD on 6 5 6 « kee és wa cues 28

Terminiello v. Chicago,

ft See eee 17

Texas v. Johnson,

ek! Se ee 9, 17, 20, 27

Vii

Thomas v. Collins,

CN 9

Thornhill v. Alabama,

ta uc bs 5 og a 6 0 26, 28, 29

Town of Barrington v. Blake,

Be ES ED ng cc ce cc ccccces 18

United Mine Workers of America v. Bagwell,

RL ree 5

Vance v. Universal Amusement Co. ,

re Bre ete ase 8 6 ue 28

Ward v. Rock Against Racism,

ee oe eg bo 6 6-08 808 16

Whitney v. California,

i, 2 is os ee ww 6456 a8 21, 26

Widmar v. Vincent,

I ar 15, 25

Wygant v. Jacksonville Bd. of Educ.,

nn oo ¢ aon 5 6s te B08 0498.4 17

OTHER AUTHORITIES:

Blasi, Toward a Theory of Prior Restraint: A Central

Linkage, 66 Minn. L. Rev. 11 (1981) ......... 30

Staver, Injunctive Relief and the Madsen Test,

14:2 St. Louis U.Pub.L.Rev. 456-494 (1995) .... 5

No. 95-1065

IN THE

Supreme Court of the United States

OCTOBER TERM, 1995

4

REVEREND PAUL SCHENCK

and DWIGHT SAUNDERS,

Petitioners,

V.

PRO-CHOICE NETWORK OF

WESTERN NEW YORK, ET AL.,

Respondents.

o

On Writ of Certiorari To The

United States Court of Appeals

For The Second Circuit

¢

AMICUS BRIEF OF LIBERTY COUNSEL

IN SUPPORT OF PETITIONERS

¢

Mathew D. Staver

(Counsel of Record)

Frederick H. Nelson

Nicole Arfaras Kerr

Kevin J. Tang

Liberty Counsel

1900 Summit Tower Blvd.

Suite 560

Orlando, FL 32810

(407) 875-2100

Counsel for Amicus

ooo OOOOOeeSSSO OM

2

INTEREST OF AMICUS'

Liberty Counsel is a non-profit civil liberties education

and legal defense organization whose purpose is to promote

respect for the worth and dignity of all human life, including

the life of the unborn child from the moment of conception.

Liberty Counsel’s activities include educating the public

regarding civil liberties and the interaction between law and

individual freedo -- especially as related to use of

traditional public fora for discussion of controversies

impacting society. As part of advancing Liberty Counsel’s

purpose, education is provided through interaction with

attorneys and members of the academic community,

publication of articles and journals in law reviews, providing

legal counsel where appropriate, and filing amicus curiae

briefs on a variety of issues.

Liberty Counsel files this brief in support of the

Petitioners to assist this Court in rendering a reasoned decision

regarding the Madsen test. Attorney Mathew D. Staver was

lead counsel in the Madsen case and having argued that case

before this Court herein attempts to lend his assistance in the

proper application of Madsen to the facts within the record.

SUMMARY OF ARGUMENT

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

2516 (1994), this Court created a new test to distinguish

between injunctions and ordinances. Under the new Madsen

test, this Court determined that a content-neutral injunction

must “burden no more speech than necessary to serve a

' This brief is filed with permission of all the parties. The letters

granting consent of the parties are attached hereto with the filing of this

brief.

3

significant government interest." Jd. at 2525. Madsen

created a new four-part test to analyze speech-restrictive

injunctions. The Second Circuit’s en banc decision fails to

satisfy the four-part test created by the Madsen Court.

Even assuming, arguendo, the court correctly followed

the new Madsen test in creating the speech-restrictive

injunction, under the Madsen test an injunction which burdens

more speech than necessary is unconstitutional. In Madsen,

this Court explained that the phrase "burden no more speech

than necessary to serve a significant government interest" was

equivalent to the "precision of regulation" standard utilized in

NAACP v. Claiborne Hardware Co., 458 U.S. 886, 910-11

(1982), and the Carroll v. President & Comm’rs of Princess

Anne, 393 U.S. 175, 183 (1968), standard which requires an

injunction be "couched in the narrowest terms that will

accomplish the pin-pointed objective.” Madsen, 114 S. Ct. at

2526. The speech-restrictive I5-foot floating zones and the

"cease and desist" provision both fail the "precision of

regulation" and “pin-pointed objective" standards reaffirmed

by Madsen.

The Madsen test applies only to injunctions which are

neither prior restraints nor content-based restrictions.

Petitioners assert that the challenged provisions are both

content and/or viewpoint-based and act as a prior restraint on

free speech rights. If this Court determines the challenged

provisions are content or viewpoint-based, the Madsen test is

inapplicable, but the provisions are then subject to the "most

exacting scrutiny." Boos v. Barry, 485 U.S. 312, 321 (1988).

If this Court determines the challenged provisions are content

or viewpoint-based, then those provisions also act as a prior

restraint on free speech in traditional public fora. The

injunction in Carroll was content-neutral, but was analyzed as

a prior restraint. Carroll, 393 U.S. at 181. Therefore, under

4

any appropriately applied analysis, the challenged provisions

must fail because they either “burden more speech than

necessary" or they fail to meet strict scrutiny.

ARGUMENT

I.

THE SPEECH-RESTRICTIVE INJUNCTION IS

UNCONSTITUTIONAL BECAUSE IT FAILS

THE MADSEN TEST.

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

2516 (1994), this Court created a new test to distinguish

between injunctions and ordinances. In creating this new

standard, this Court held that "when evaluating a content-

neutral injunction, we think that our standard time, place, and

manner analysis is not sufficiently rigorous. We must ask

instead whether the challenged provisions of the injunction

burden no more speech than necessary to serve a significant

government interest." /d. at 2525. As stated by this Court,

the Madsen test applies only to injunctions which are neither

prior restraints nor content-based restrictions. Requiring that

regulations on free speech be "narrow and precise”, this Court

noted:

An order issued in the area of First Amendment

rights must be couched in the narrowest terms that

will accomplish the pin-pointed objective permitted

by constitutional mandate and the essential needs of

the public order. ... [I]n other words, the order

must be tailored as precisely as possible to the exact

needs of the case.

Id. at 2526 (quoting Carroll v. President & Comm'rs of

Princess Anne, 393 U.S. 175, 183-84 (1968)).

5

This Court held in Madsen that speech-restrictive

injunctions warrant more rigorous scrutiny because unlike

legislative enactments they are ready tools for censorship.

Madsen, 114 S. Ct. at 2524. Noting that injunctions mostly

target specific persons or groups, are issued by « single judge

and often carry stiffer penalties for violation of the terms, this

Court held that such "[i]njunctions . . . carry greater risks of

censorship and discriminatory application than do generally

applicable ordinances." I/d.; cf. United Mine Workers of

America v. Bagwell, 114 §. Ct. 2552, 2563 (1994) ("[w]here

a single judge, rather than a legislature, declares a particular

sanction . . . such deference is less appropriate") (citing

Madsen, 114 S. Ct. at 2516).

Madsen began its inquiry into the new test by stating that

under general equity principles, injunctive relief affecting

speech is permissible only upon a showing that: (1) the

defendant has violated, or imminently will violate, some

provision of statutory or common law;* (2) there is a

cognizable danger of recurrent violation;’ (3) a non-speech-

restrictive injunction preventing the repeated illegal conduct

has proven ineffective to protect the significant government

interests because the defendant has repeatedly violated the

injunction;* and (4) a subsequent speech-restrictive injunction

may not burden more speech than necessary to serve a

significant government interest.°

2 Madsen, 114 S. Ct. at 2524 n.3 (quoting United States v. W. T.

Grant Company, 345 U.S. 629, 633 (1953)).

> Id.

* Id. at 2526-27.

5 Id. at 2525-26; see Mathew D. Staver, Injunctive Relief and the

Madsen Test, 14:2 St. Louis U.PuB.L.REV. 456-494 (1995).

6

The first two prongs of the above test are applicable to

any injunction because injunctive relief is an equitable

remedy.° Thus, prongs one and two must be met before the

entry of any injunction. After prongs one and two are met, a

court must attempt to restore law and order by a non-speech-

restrictive injunction, and only after that injunction proves to

be ineffective may a subsequent speech-restrictive injunction

be issued. Yet, even the speech-restrictive injunction may not

burden more speech than necessary to serve a significant

government interest. See id. at 2525-26.

The interest identified in Madsen was maintaining

physical access to the clinic. Because this Court concluded

that the first (the non-speech-restrictive) injunction was

inadequate to protect access, and concluded that the named

defendants repeatedly violated the first injunction, this Court

was willing to uphold certain speech-restrictive portions of the

second (speech-restrictive) injunction. Consequently, the

second injunction, known in the Madsen case as the amended

permanent injunction, was literally four steps removed from

illegal activity.’ In this case, the Second Circuit’s en banc

decision fails to satisfy the four-part test created by the

Madsen Court."

® Madsen, 114 S. Ct. at 2524 n.3.

” Madsen cited National Society of Professional Engrs. v. United

States, 435 U.S. 679, 697-98 (1978), for the proposition that an injunction

may restrict what would normally be protected expressive activities when

in the context of that restriction the violator is known to have repeatedly

engaged in illegal conduct. Madsen, 114 S. Ct. at 2527.

* The Second Circuit en banc in Pro-Choice Network of Western New

York v. Schenck, 67 F.3d 377 (2d Cir. 1995) (en banc), though not

articulating Madsen as a four-part test, analyzed the injunction utilizing this

format and found the 15-foot buffer zone and "cease and desist" provisions

7

A. There Was No Violation Or Threatened Violation

Of Statutory Or Common Law.

As this Court instructed in Madsen, before instituting any

injunction the court must first determine that the person or

entity being enjoined has violated or imminently will violate

some statutory or common law. Madsen, 114 S. Ct. at 2524

n.3. In this case, the District Court granted the TRO and the

preliminary injunction prior to the development of the Madsen

test. Pro-Choice Network of Western New York v. Project

Rescue Western New York, 799 F. Supp. 1417 (W.D.N.Y.

1992). Following the reasoning in Madsen, the initial

question is what statutory or common law was threatened

which might warrant an injunction.

It is undisputed that Petitioners agreed to a voluntary

injunction prohibiting "rescues" or "blockades" of the clinics.

"Prior to the preliminary injunction hearing, defendants

stipulated that the physical ‘blockade’ type of ‘rescue’

demonstration may be enjoined." Pro-Choice Network, 799

F. Supp. at 1424 n.5. Because all the parties agreed that no

"blockades" of a clinic would ever occur, the government's

interest in protecting access and assuring that the right to

abortion was not infringed was satisfied. No possible

violation of any "statutory or common law" could occur. In

fact, the record reveals that the District Court specifically

found that "there have been no physical ‘blockades’ since the

Court issued the TRO." /d. at 1424.5. Although the TRO

might have been warranted to protect access on September 28,

1990, following the teaching of Madsen, the preliminary

injunction provisions challenged herein were not needed for

two reasons: (1) there was no cognizable danger of recurrent

to be constitutional under the heightened scrutiny demanded by Madsen.

Pro-Choice Network, 67 F.3d at 395.

8

violations; and (2) the TRO and preliminary injunction began

with speech-restrictive provisions without first determining

whether less speech-restrictive provisions could protect access

to the clinics. The true error in this case is the use of a

federal court’s judicial power to silence speech which some

might find "stressful."

In misinterpreting the Madsen test and ignoring the clear

record, the Second Circuit en banc decision cited what it

believed were two techniques used by pro-life demonstrators

to prevent individuals from entering or exiting abortion

clinics. First, it found that the demonstrator’s activities

amounted to a "constructive blockade" because the picketing

outside the clinics caused persons to feel "stress" while

entering and exiting the facilities. Pro-Choice Network, 67

F.3d at 396. In the mind of the en banc court, the purpose of

these "constructive blockades" was to intimidate individuals

from attempting to utilize the abortion facility. Jd. The

second technique which the en banc court addressed was what

it called "sidewalk counselling." In this technique, the pro-

life demonstrators approached patients entering the clinic and

offered them pro-life literature in an attempt to speak to them

about the consequences of having an abortion. This, the court

found, was also too intimidating to be permitted. In making

their conclusions, both the District Court and the Second

Circuit en banc found that the stress caused by pro-life

activities sometimes caused women to forego their right to an

abortion. The en banc panel concluded: "The timid have a

right to go about their business, and it is no embarrassment

for federal court to say so." Id.

Although protecting the "timid" might be a commendable

avocation of some, asserting that the federal judiciary has the

duty to protect us from speech which might upset us is

contrary to this Court’s long precedent. Quite to the contrary,

9

the First Amendment protects such speech -- even speech

which some find offensive. "[T]he fact that society may find

speech offensive is not a sufficient reason for suppressing it.

Indeed, if it is the speaker’s opinion that gives offense, that

consequence is a reason for according it constitutional

protection.” Hustler Magazine, Inc. v. Falwell, 485 U.S. 46,

55 (1988) (quoting FCC v. Pacifica Foundation, 438 U.S.

726, 745 (1978)). “If there is a bedrock principle underlying

the First Amendment, it is that the Government may not

prohibit the expression of an idea simply because society finds

the idea itself offensive or disagreeable." Texas v. Johnson,

491 U.S. 397, 414 (1989). Stress induced by speech or other

listener reaction caused by speech-related activity is not a

legitimate basis for regulating activities protected by the First

Amendment. See Forsyth County v. The Nationalist

Movement, 112 S. Ct. 2395, 2403 (1992); Boos v. Barry, 485

U.S. 312, 321 (1988). The excuse that someone has caused

another person stress has never been used as proof that an

individual has violated statutory or common law.

Even if actions amount to coercive activity, no statutory

or common law is violated. If the First Amendment means

anything, it means "free trade and the opportunity to persuade,

not merely to describe facts." Thomas v. Collins, 323 U.S.

516, 537 (1945). The en banc decision held that speech

activity which is coercive is not constitutionally protected.

Pro-Choice Network, 67 F.3d at 395. However, as this Court

stated in Organization for a Better Austin v. Keefe:

The claim that expressions [are] intended to exercise

a coercive impact . . . does not remove them from

the reach of the First Amendment. Petitioners

plainly intended to influence respondent’s conduct by

their activities; this is not fundamentally different

from the function of a newspaper.

10

402 U.S. 415, 419 (1971) (citations omitted). This Court

took an even stronger stand in NAACP v. Claiborne Hardware

Co., 458 U.S. 886, 910-11 (1982), declaring: "Speech does

not lose its protective character, however, simply because it

may embarrass others or coerce them into action." In reality,

once the right of access to the clinic is guaranteed, there is no

valid basis to institute a speech-restrictive injunction.

The fact that a demonstration causes stress in no way

violates statutory or common law. Thus, there was no

violation or threatened violation of statutory or common law.

Therefore, the speech-restrictive provisions are unjustified.

B. There Was No Cognizable Threat Of Continued

Violation Of The Law.

The second element needed to justify the institution of an

injunction is that there is a cognizable threat of continued

violation of the law. Madsen, 114 S. Ct. at 2524 n.3. The

only conceivable, cognizable threat of a legal violation is the

blockading of access to the clinics. By the parties stipulation,

the District Court instituted an injunction against physical

blockades. At the time the preliminary injunction was

entered, the pro-life picketers had never blocked or attempted

to blockade any clinic since the entry of the TRO. Any

threatened violation beyond this is simply a fallacious

justification for the speech-restrictive injunction.

C. A Non-Speech-Restrictive Injunction Designed To

Prevent Violation Of The Law Was Not

Attempted Prior To Entering The Speech-

Restrictive Injunction.

Before issuing a speech-restrictive injunction, a court

must establish the insufficiency of a non-speech-restrictive

11

injunction. In Madsen, this Court found that a speech-

restrictive injunction was necessary because a non-speech-

restrictive injunction had been repeatedly violated. Madsen,

114 S. Ct. at 2526-27. Like Madsen, in this case the

significant government interest is to protect access to the

clinics. The Madsen Court held that the "state court seems to

have had few other options to protect access given the narrow

confines around the clinic." This Court assumed that the

first injunction failed to protect access to the clinic and thus

allowed more radical measures. The Court gave deference to

the state court’s familiarity with the factual background and

concluded:

We also bear in mind that the fact that the state court

originally entered a much narrower injunction,

providing no buffer zone, and that this order did not

succeed in protecting access to the clinic. The

failure of the first order to accomplish its purpose

may be taken into consideration in evaluating the

constitutionality of the broader order. '°

In Madsen, this Court clearly stated that it would uphold the

speech-restrictive injunction only because the first injunction

did not effectively protect access to the clinic. In this case,

the District Court did not enter a finding that Petitioners had

* Madsen, 114 S. Ct. at 2527. In upholding the portion of the 36-foot

buffer zone at the clinic entrance and driveway, this Court focused on two

factors: (1) an assumption that the protestors had violated a prior non-

» cuntetion tntenation aiid wan tantinetiee in eaatentatan tes

ingress and egress; and (2) the narrow confines of the clinic which

included a strip of sidewalk approximately four-feet wide and 37-feet long

that connected the two parking lots. /d. If the first factor was absent, this

Court might not have upheld the 36-foot zone at the clinic entrunce.

° Id.

12

engaged in a “rescue” or had actually “blocked access" to the

clinic. Rather, the District Court actually found that:

defendants stipulated that the physical "blockade"

type of “rescue” demonstration may be enjoined.

Thus, the evidence adduced at the preliminary

injunction hearing centered on the constructive

"blockade" type of demonstration and "sidewalk

counseling." Commendably, there have been no

physical “blockades” since the Court issued the

TRO."

The record clearly reveals that “there have been no

physical ‘blockades’ since the Court issued the TRO." Jd. As

held in Madsen, the interest is to protect access to the clinic.

Although Respondents wish to direct this Court to past acts of

“blockades” prior to the entry of the TRO or after entry of the

preliminary injunction, at the time the preliminary injunction

was issued the District Court’s findings were clear -- the

government interest in protecting access to the clinic was

achieved. It is the record before the District Court at the time

it entered the speech-restrictive preliminary injunction that is

relevant to this Court’s inquiry. Because the District Court’s

record at that time reveals there had been no “blockades” of

the clinics, the speech-restrictive injunction was not warranted

because access to the clinic was not thwarted.

'' Pro-Choice Network, 799 F. Supp. at 1424 n.5 (emphasis supplied).

Because the Madsen test was established in 1994, after the District Court

entered its ruling in 1992, the District Court did not have the benefit of

this Court’s guidance regarding analysis of content-neutral injunctions.

However, both the Second Circuit panel and en banc decisions, which are

the focus of the present controversy, were handed down after this Court

decided the Madsen case and the facts in this case still center upon the

record presented to the District Court for the 1992 decision.

13

The error of the District Court is understandable because

it did not have the teaching of Madsen in 1992. Yet the

Second Circuit’s en banc decision, looking at the injunction in

light of Madsen, should have determined that granting a

speech-restrictive injunction without evidence of the need for

such a broadly sweeping prohibition on free speech cannot

meet the new Madsen test. As is required by Madsen, a court

must first attempt to implement a less restrictive injunction.

In this case, the speech-restrictive injunction was granted at

the very beginning adding even more fuel to the fire of this

controversy. Following the dictates of Madsen, a court is

required to attempt a less restrictive (non-speech-restrictive)

injunction before ever granting the more speech-restrictive

provisions -- the 15-foot floating buffer zones and the "cease

and desist" provisions.’ Had the District Court entered a

less restrictive injunction, and then found that injunction failed

to meet the asserted government interest -- clinic access -- a

more restrictive injunction would be warranted.

Respondents wish to assert a "bootstrap" argument by

claiming that portions of the original injunction were

repeatedly violated following entry of the TRO thereby

creating the need for further regulation -- i.e. the speech-

restrictive injunction. First, Respondents contradict the clear

record, because although First Amendment activities continued

at or near the subject clinics, access to the clinics was never

denied by any “rescue” or “blockade” after entry of the TRO.

See Pro-Choice Network, 799 F. Supp. at 1424 n.5. Second,

Respondents point to various violations of the two provisions

challenged herein. Yet, violations of these overbroad and

speech impinging provisions are more likely simply because

they are so very vague ("floating 15-foot zones") and

® The original TRO contains the provisions challenged herein -- the

15-foot floating buffer zones and the “cease and desist” provision.

14

overbroad ("cease and desist"). Third. any other acts claimed

to have occurred subsequent to the entry of the preliminary

injunction should not be considered by this Court because such

acts were not considered by the District Court in making the

findings supporting the preliminary injunction.

In Madsen, this Court upheld a speech-restrictive

injunction only after finding that a narrower, non-speech-

restrictive injunction failed to protect unfettered ingress to and

egress from the clinic. Jd. at 2527. In this case, there has

been no such finding. Neither the Second Circuit en banc nor

the District Court decision alleged that the pro-life

demonstrators engaged in illegal conduct which was not

remedied by the injunction against physical blockades.

Nothing demonstrates that a non-speech-restrictive injunction

would fail to protect unfettered ingress to and egress from a

clinic. The District Court did not even make a determination

that a non-speech-restrictive injunction would fail. The court

simply announced that it perceived the existence of a problem

and proceeded to banish the First Amendment as it applies to

pro-life demonstrators.

For these reasons, the 15-foot bubble zone and "cease and

desist" provisions violate the Madsen test because they

substantially burden the Petitioners’ right to free speech

without establishing the need for such a speech-restrictive

injunction and without showing the ineffectiveness of a non-

speech-restrictive injunction.

D. The Injunction Burdens More Speech Than

Necessary.

Even assuming, arguendo, that the District Court

correctly followed the Madsen test regarding proper procedure

when entering the preliminary injunction, under the Madsen

15

test an injunction which burdens more speech than necessary

is unconstitutional. Madsen, 114 S. Ct. at 2525. In adopting

this new standard for content-neutral injunctions, the Madsen

Court confirmed that this standard was similar to the

"precision of regulation" demanded in Claiborne Hardware,

458 U.S. at 916, and the Carroll standard which requires an

injunction be “couched in the narrowest terms that will

accomplish the pin-pointed objective." Carroll, 393 U.S. at

183. This Court stated the requirement that the speech-

restrictive injunction “burden no more speech than necessary

to serve a significant government interest" was equivalent to

the standard utilized in Claiborne Hardware and Carroll.

Madsen, 114 S. Ct. at 2526.

The facts in Claiborne Hardware were more egregious

than the facts in Madsen. In March 1966, several hundred

African-Americans implemented a boycott in Claiborne

County, Mississippi. This boycott included "acts of physical

force and violence" including "[i)ntimidation, threats, social

ostracism, vilification, and . . . the stationing of guards in the

vicinity of white-owned businesses." Claiborne Hardware,

454 U.S. at 894-95. The. Mississippi Supreme Court

permanently enjoined the boycott but this Court reversed,

finding that each element of the boycott was a protected form

of speech. /d. at 907-08. "Precision of regulation" is

demanded when “conduct occurs in the context of

constitutionally protected activity." Jd. at 916. This Court

concluded that the injunction "must be dissolved" or "modified

to restrain only unlawful conduct and the persons responsible

for conduct of that character." /d. at 924 n.67.

As in Claiborne Hardware, the injunction instituted by

the District Court must be dissolved or modified to the extent

it regulates lawful conduct. In Madsen, this Court held that

"injunctive relief should be no more burdensome to the

16

defendants than necessary to provide complete relief to the

plaintiffs." Madsen, 114 S. Ct. at 2525 (citing Califano v.

Yamasaki, 442 U.S. 682, 702 (1979)). "A state may not

unduly suppress free communication of views, religious or

other, under the guise of conserving desirable conditions."

Cantwell v. Connecticut, 310 U.S. 900, 905 (1940). This

Court laid out the principle for this policy in New York Times

Co. v. Sullivan, 376 U.S. 254, 720-21 (1963):

Those who won our independence believed that

public discussion is a political duty; and that this

should be a fundamental principle of the American

government. They recognized the risk to which all

human institutions are subject. But they knew that

order cannot be secured merely through fear of

punishment for its infraction; that it is hazardous to

discourage thought, hope and imagination. . . ."

Government "may not regulate expression in such a

manner that a substantial portion of the burden on speech does

not serve to advance its goals." Ward v. Rock Against

Racism, 491 U.S. 781, 799 (1989); see also City of Houston

v. Hill, 482 U.S. 451, 464-67 (1987) (requiring that

regulations on free speech be “narrow and precise").

An order issued in the area of First Amendment

rights must be couched in the narrowest terms that

will accomplish the pin-pointed objective permitted

by constitutional mandate and the essential needs of

the public order. In this sensitive field, the State

may not employ “means that broadly stifle

fundamental personal liberties when the end can be

more narrowly achieved" .... In other words,

the order must be tailored as precisely as possible to

the exact needs of the case.

17

Carroll, 393 U.S. at 183-84 (1968) (quoting Shelton v.

Tucker, 364 U.S. 479, 488 (1960)). A regulation "is not

narrowly tailored if a less restrictive alternative is readily

available." Boos, 485 U.S. at 329; see also Wygant v.

Jacksonville Bd. of Educ., 476 U.S. 267, 280 n.6 (1986)

(plurality opinion).

Respondents cite Rowan v. United States Post Office

Dep’t, 397 U.S. 728 (1970), as justification for the 15-foot

zones and "cease and desist" provision, claiming that

unwilling targets have a First Amendment right to be left

alone. However, the question is more appropriately phrased:

"Do Respondents have a First Amendment right to freely

access public fora for their speech while imposing a $10,000

fine and imprisonment upon persons for continuing to talk

after Respondents say “shut up"? Like the provision struck

down in Madsen, any “offensive” or "unwanted" speech could

be construed as intimidating, inviting dispute and even stirring

people to anger.'’ Thus, anyone could claim intimidation

and raise the specter of the injunction granting Respondents a

$10,000 windfall per offense.

The injunction creates a narrow exception which allows

two individuals to enter the 15-foot zone for the purpose of

"sidewalk counseling". Even the right to free speech under

the "sidewalk counseling” provision is illusory because under

the "cease and desist" provision the clinic has merely to send

a pro-choice escort into the area of the pro-life speaker to

utter the word, “stop,” which silences the pro-lifer person’s

right to free speech. In effect, the injunction’s "cease and

desist" provision grants the clinic a government license to

silence all speech within traditional public fora. The penalty

'? See Johnson, 491 U.S. at 408-09; Terminiello v. Chicago, 337 U.S.

1, 4 (1949).

18

for a single violation is "civil damages of $10,000 per day for

the first violation . . . and/or may subject them to criminal

contempt proceedings .. . ." Pro-Choice Network, 799 F.

Supp. at 1441. One reason this Court created the new

Madsen test was because injunctions often carry stiffer

penalties for violation of the terms. Madsen, 114 S. Ct. at

2524. Additionally, “each successive violation of [the

injunction] shall subject the contemnor to a civil contempt fine

double that of the previous fine and/or civil contempt

proceedings ...." Jd. (emphasis supplied). In just seven

days, the fine of just one person could rise to over $640,000.

Even more interesting is that the injunction awards "that any

amount collected thereunder shall be paid to the [clinic] at

which the violation occurred." /d. Thus, the fines are all

payable to the clinic holding the license to silence the speech.

Indeed, the clinics could stop performing abortions altogether

and simply gather in the fines accumulated from those not

withdrawing the required 15-feet in an expeditious manner.

Under the injunction, a person walking within 15-feet of

an “unwilling listener" cannot discuss pro-life beliefs with

another individual or distribute pro-life literature. In essence,

the person must keep silent in order to avoid prosecution.

The injunction has created numerous undeterminable and

forever moving "no-speech zones" of silence punishable by the

wrath of the court if the silence is broken. This general

prohibition against free speech within traditional public fora

is not narrowly tailored.'* As such, this Court should not

retract from the dictates of Madsen by allow speech-restrictive

injunctions to be entered without stringently scrutinizing those

injunctions which burden First Amendment rights.

' See Frisby v. Schultz, 487 U.S. 474, 479 (1988); Howard Gault Co.

v. Texas Rural Legal Aid, 848 F.2d 544 (Sth Cir. 1988); Town of

Barrington v. Blake, 568 A.2d 1015 (R.1. 1990).

19

1. The 15-foot floating speech free zones burden

substantially more speech than necessary.

The injunction, provision (a), provides complete

protection against "blocking, impeding, or obstructing access

to, or egress from any [clinic]." Pro-Choice Network, 799 F.

Supp. at 1440. The injunction will operate to fine and

imprison any person actually thwarting anyone’s right to an

abortion. However, provision (b) of the injunction goes on to

create 15-foot bubble zones around the front of doorways,

parking lot entrances or any person or vehicle seeking access

to an abortion clinic. The 15-foot zones burden more speech

than necessary to guarantee the right of access to the clinic

and their need to protect access has not been established. An

injunction which burdens speech witho: it first establishing the

insufficiency of a mnon-speech-restrictive injunction is

unconstitutional. Madsen, 114 S. Ct. at 2427.

The 15-foot bubble zones forbid speech even when the

speech-related conduct in no way obstructs or impedes access

to the abortion clinic. As the Second Circuit panel noted, "the

bubble zone provision prohibits a defendant from standing on

a sidewalk near the clinic, within 15-feet of anyone seeking

ingress to or egress from the clinic, holding a sign imprinted

with an anti-abortion message." Pro-Choice Network of

Western New York v. Project Rescue of Western New York, 67

F.3d 359, 370 (2d Cir. 1994). The provision does allow an

exception permitting two people to enter the zone to converse

with others. However, as soon as any person, even a clinic

escort, objects to the pro-life speaker’s message by

implementing the "cease and desist" section in provision (c),

the speaker must assume complete silence and withdraw at

least 15-feet. Thus, like the unconstitutional "no approach"

zone in Madsen, the injunction still leaves the power of

censorship in the hands of the listener.

20

This Court noted that as "a general matter, we have

indicated that in public debate our own citizens must tolerate

insulting, and even outrageous speech, in order to provide

adequate breathing space to the freedom protected by the First

Amendment." If this Court’s teaching means anything at all,

freedom of speech carries a preferred position under the

Constitution. See Kovacs v. Cooper, 336 U.S. 77, 95 (1949).

This “constitutional protection does not turn upon ‘the truth,

popularity, or social utility of the ideas and beliefs which are

offered.’" New York Times Co., 376 U.S. at 721 (quoting

NAACP v. Button, 371 U.S. 415, 445 (1963)). As discussed,

infra, by placing control over speech with the listener the

District Court abandoned these principles for a new policy

designed to silence unpopular views. Provision (a) is fully

able to protect the asserted government interest -- access to the

clinic. Provision (b) does not serve to protect any interest

which is not already protected and therefore is not necessary

to serve any government interest. Johnson, 491 U.S. at 410,

412 n.8. The court simply failed to justify the need for the

15-foot bubble zone provision. This provision burdens more

speech than necessary to protect access to the clinic. Madsen,

114 S. Ct. at 2525. Thus, the provision is unconstitutional.

2. The "cease and desist" provision burdens

substantially more speech than necessary.

The "cease and desist" provision is unconstitutional

because, like the 15-foot bubble zone provision, the need for

this speech-restrictive provision was not established. The

"cease and desist" provision is indistinguishable from the 300-

foot "no approach zone” struck down in Madsen. Madsen,

114 S. Ct. at 2529. Within 300-feet of the clinic, a pro-life

person could not distribute literature or speak with any

individual unless a person indicated a desire to communicate.

Id. This Court held that it would not justify a prohibition on

21

all uninvited approaches of persons "regardless of how

peaceful the contact may be, without burdening more speech

than necessary to prevent intimidation and to ensure access to

the clinic." /d.

This Court struck down the 300-foot "no approach zone"

for the same reason it should now strike down the "cease and

desist" provision -- any other conclusion will result in the

abolishment of the public forum doctrine. The founding

fathers "believed that freedom to think as you will and to

speak as you think are means indispensable to the discovery

and spread of political truth... . Believing the power of

reason as applied through public discussion, they eschewed

silence coerced by law -- the argument of force in its worst

form." Whitney v. California, 274 U.S. 357, 374-75 (1929)

(Brandeis, J., concurring). Reverence for free speech is

nowhere more important than in quintessential public fora

which from time immemorial have been open for public

debate. It is undisputed that the injunction affects traditional

public fora -- specifically the public streets and sidewalks

surrounding the clinics. Frisby, 487 U.S. at 479; ISKCON v.

Lee, 112 S. Ct. 2711, 2716-17 (1992) (Kennedy, J.,

concurring); Perry Education Ass'n v. Perry Local Educators’

Ass'n, 460 U.S. 37, 45 (1983).

In an attempt to weave its way around this blatant

violation of the well settled public forum doctrine, the court

applied the "captive audience” doctrine. Pro-Choice Network,

799 F. Supp. at 1435-38. The "captive audience” doctrine

stands for the principle that in certain situations a listener has

a right not to be exposed to an unwanted message. See

Rowan, 397 U.S. at 738. The court held that individuals

attempting to enter or leave the clinic are a “captive audience"

of the pro-lifer speaker. Pro-Choice Network, 799 F. Supp.

at 1436.

22

The "captive audience" doctrine does not apply in this

situation. In each of the cases cited by the District Court to

justify its speech-restrictive injunction, the site where the

speech took place was a non-traditional public forum or the

speech was projected so broadly (by sound trucks) that it

could not be escaped by leaving the public forum. In this

case, the speech is taking place in traditional public fora --

including a public sidewalk. See Perry Educ. Ass'n, 460 U.S.

at 45; Boos, 485 U.S. at 318. The “captive audience"

doctrine does not apply in traditional public fora. See

Erznoznik v. City of Jacksonville, 422 U.S. 205, 211 (1975);

Cohen v. California, 403 U.S. 15, 21 (1971). Any individual

seeking ingress to or egress from the clinic, as well as any

pro-choice escort working for the clinic, can roam freely

without regard to any boundaries and censor pro-life speakers

at will merely by approaching and whispering the word

"stop."

It is not the clinic entrants who are captive in this case,

it is the pro-life speakers who are captive to the whim of

individuals who can silence them at will. Like the decretal

portion regarding "invited contact" found unconstitutional in

Madsen, the "cease and desist" provision is not limited to a

small geographical area. Rather, the "cease and desist"

provision is all around the clinics anywhere a floating 15-foot

bubble zone might exist. If the pro-life speaker is simply

standing on the sidewalk with a picket sign and a pro-choice

escort approaches her and says, "Stop," she must immediately

withdraw at least 15-feet. Because the pro-life speaker is now

within the escort’s 15-foot zone, the escort may quickly and

effectively censor her First Amendment rights by merely

pursuing her to anywhere she runs. Because the 15-foot zone

is always moving, the pro-life person must continue to retreat

until the pro-choice escort decides to give up the pursuit.

Consequently, this provision truly abolishes the public forum

23

doctrine because it may extend to any area -- even outside of

the area immediately surrounding a clinic. Such a novel

“floating no-speech zone" certainly burdens "more speech than

necessary" and should be found unconstitutional. Madsen,

114 S. Ct. at 2525.

a. The “cease and desist" provision is

content-based.

The “cease and desist" provision is much like the

provisions struck down in Madsen which prohibited

"intimidating" persons and limiting speech to a “conversation

of a non-threatening nature." Madsen, 114 S. Ct. at 2529.

In fact, the principle justification used by the District Court in

granting the "cease and desist" provision was that persons felt

"stressed" and "intimidated" by the pro-life speaker's

message. Madsen also struck down a provision stating that

once invited contact had been initiated, the person associated

with the clinic could end the communication by stating such

words as “stop,” “withdraw,” “back off," "get away," “leave

me alone," or words or actions of similar import. /d. Like

this case, in Madsen, when the desire to end the contact was

made known, the pro-life speaker was required to immediately

terminate the contact and leave the presence of the person

protected by the injunction. /d.

In Madsen, the “invited contact" provision hinged on the

emotive impact of the listener by using such words as

“positive interest" and by providing that the listener

affirmatively make the invitation to speak prior to the

attempted contact. This Court held:

[I}t is difficult, indeed, to justify a prohibition on all

uninvited approaches of persons seeking the services

of the clinic, regardless of how peaceful the contact

24

may be, without burdening more speech than

necessary to prevent intimidation and to ensure

access to the clinic. Absent evidence that the

protestor’s 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, . . . this provision

cannot stand. "As a general matter, we have

indicated that in public debate our own citizens must

tolerate insulting, and even outrageous speech, in

order to provide adequate breathing space to the

freedoms protected by the First Amendment. '°

Yet, the “burden no more speech than necessary" Madsen

test is only applicable to content-neutral injunctions. /d. If

the injunction is content-based, the Madsen test does not even

apply. Jd. Yet, even under the content-neutral “burden no

more speech then necessary” test, this Court found the consent

justified the injunction by finding that the protesters’ actions

caused stress to individuals entering and leaving the abortion

clinic. However, stress is merely the emotive impact or

"listener reaction” caused by speech. "The emotive impact of

speech on its audience is not a ‘secondary effect."" Boos, 485

U.S. at 321. Intellectual and emotive impact of speech is the

primary impact of speech. A regulation which regulates

speech due to its primary impact is content-based and is

subject to the “most exacting scrutiny." /d. Because the

protesters have not blocked clinic access, the only reason an

individual would not want to enter the clinic would be due to

the emotive and intellectual impact of the protests. An

injunction, where the predominant intent is to regulate the

'S Id. (quoting Boos, 485 U.S. at 322) (emphasis supplied) (citations

and quotations omitted).

25

primary effects of speech, is content-based. /d. If this Court

determines that the "cease and desist" provision is content-

based, then the Madsen test is inapplicable and the provision

is then subject to strict scrutiny. /d.

"The First Amendment generally prevents government

from proscribing speech, or even expressive conduct, because

of disapproval of the ideas expressed. Content-based

regulations are presumptively invalid." R.A.V. v. City of St.

Paul, 112 S. Ct. 2538, 2542 (1992). “If there is a bedrock

principle underlying the First Amendment, it is that

government may not prohibit the expression of an idea simply

because society finds the idea itself offensive or disagreeable."

Simon & Schuster v. New York Crime Victims Bd., 112 S. Ct.

501, 509 (1991). Clearly the "government may not grant the

use of a forum to people whose views it finds acceptable, but

deny use to those wishing to express less favorable or more

controversial views.” Police Dep't of Chicago v. Mosley, 408

U.S. 92, 95-96 (1972); see also Lamb’s Chapel v. Center

Moriches Union Free School Dist., 113 S. Ct. 2141 (1993);

Widmar v. Vincent, 454 U.S. 263 (1981). Content-based

regulations simply cannot be tolerated. See Forsyth County,

112 S. Ct. at 2404; Regan v. Time, Inc. , 468 U.S. 641, 648-

49 (1984). Stressing its disdain for content-based

prohibitions, this Court stated that "[aJny restriction on

expressive activity because of its content would completely

undercut the ‘profound national commitment to the principle

that debate on public issues should be uninhibited, robust and

wide open.’" Mosley, 408 U.S. at 95-96 (quoting New York

Times Co., 376 U.S. at 270)."*

‘* "Regulations which permit the government to discriminate on the

basis of the content of the message cannot be tolerated under the First

Amendment.” Simon & Schuster, 112 S. Ct. at 508. Content-based

regulations of speech constitute “censorship in a most odious form” and

26

To be content-neutral, the "cease and desist" provision

must be “justified without reference to the content of the

regulated speech." Clark v. Community for Creative

Nonviolence, 468 U.S. 288, 293 (1984). In Coates v. City of

Cincinnati, 402 U.S. 611, 612-14 (1971), this Court struck

down an ordinance restricting speech if it was annoying to

those passing by. If the First Amendment protects begging,

Loper v. New York City Police Dep't, 999 F.2d 699 (2d Cir.

1993), critical picketing, Thornhill v. Alabama, 310 U.S. 88

(1940), in-person urging of a boycott outside a targeted

business, Claiborne Hardware, 458 U.S. at 907-08, and

verbal “harassment” and "interference" with hunters, Dorman

v. Satti, 862 F.2d 432 (2d Cir. 1988), it should also protect

speech which some persons might find “objectionable”.

Madsen, 114 §S. Ct. at 2529.

b. The “cease and desist" provision is

viewpoint-based.

Not only is the “cease and desist" provision content-

based, it is also viewpoint-based. The provision not only

regulates a broad class of speech (abortion speech), but further

restricts a subclass of that speech (anti-abortion speech) "based

on hostility -- or favoritism -- toward the underlying message

expressed." R.A.V., 112 S. Ct. at 2545. The injunction

allows speech favoring abortion rights because such would be

non-threatening to the person seeking the services of the

clinic. Thus, within the category of abortion speech, only

speech favoring abortion is permitted while speech opposing

abortion is damned.

clearly violate the first amendment. Cox v. Louisiana, 379 U.S. 536, 581

(1965) (Black, J., concurring). “Education is the proper and preferable

alternative to censorship.” Whitney, 274 U.S. at 360.

27

Like the decretal portion of the Madsen injunction, the

"cease and desist" provision gives license to one side of the

abortion debate while squelching the other. See Schacht v.

United States, 398 U.S. 58, 63 (1970) (statute "which leaves

Americans free to praise the war in Vietnam but can send

persons .. . to prison for opposing it, cannot survive in a

country which has the First Amendment"); see also Johnson,

491 U.S. at 417. The pro-life speaker faces viewpoint

censorship because no one on the pro-choice side of the issue

is ever subject to the injunction’s “cease and desist" provision.

Because the "cease and desist" provision leaves control over

protected expression with the listener, the “cease and desist”

provision creates a “consent zone” which is legally

indistinguishable from the "invited contact” zone struck down

in Madsen. This differential treatment based upon viewpoint

should meet with exacting scrutiny. See R.A.V., 112 S. Ct.

at 2544, 2546; Simon & Schuster, 112 S. Ct. at 508; Boos,

485 U.S. at 320-22. To satisfy strict scrutiny the injunction

must be necessary to serve a compelling state interest and

must be narrowly drawn to achieve that end. See Perry, 460

U.S. at 45.

The government may not regulate speech "in ways that

favor some view-points or ideas at the expense of others.”

Members of the City Council of City of Los Angeles v.

Taxpayers for Vincent, 466 U.S. 787, 804 (1984); See also

City of Cincinnati v. Discovery Network, Inc., 113 S. Ct.

1505 (1993). In this case, the injunction is both content and

viewpoint-based. As such, like the "invited contact” provision

in Madsen, the "cease and desist" provision should be found

unconstitutional because it “burdens more speech than

necessary." Madsen, 114 S. Ct. at 2525. In the alternative,

viewpoint-based and must be analyzed under strict scrutiny.

28

Il.

AN INJUNCTION RESTRICTING SPEECH IMPOSED

IN THE ABSENCE OF A PRIOR UNSUCCESSFUL

NON-SPEECH-RESTRICTIVE INJUNCTION IS AN

UNCONSTITUTIONAL PRIOR RESTRAINT.

A prior restraint bears a "heavy presumption" against its

constitutional validity. Bantam Books, Inc. v. Sullivan, 372

U.S. 58, 70 (1963). The state must meet a "heavy burden" to

impose a prior restraint on speech. Nebraska Press Ass'n v.

Stuart, 427 U.S. 539, 560 (1976); New York Times Co. v.

United States, 403 U.S. 713 (1963); Vance v. Universal

Amusement Co., 445 U.S. 308, 315-16 (1980); Near v.

Minnesota, 283 U.S. 697, 713 (1931). The presumption

against prior restraints is heavier, and the degree of protection

broader, than that against limits on expression imposed by

criminal statutes. Society "prefers to punish the few who

abuse rights of speech after they break the law than to throttle

them and all others beforehand." Southeastern Promotions,

Ltd. v. Conrad, 420 U.S. 526, 559-60 (1975) (emphasis in

original). Indeed, this Court has stated that "the prevention

of [prior restraints] was the leading purpose in the adoption of

(the first amendment]." Lovell v. Griffin, 303 U.S. 444, 451

(1938); see also Carroll v. President & Comm'rs of Princess

Anne, 393 U.S. 175, 181 (1968) ("Prior restraint upon speech

suppresses the precise freedom which the First Amendment

sought to protect against abridgement.").'’

' A prior restraint lends “itself to harsh and discriminatory

enforcement by local prosecuting officials, against particular groups

deemed to merit their displeasure, [and] results in a continuous and

pervasive restraint on all freedom of discussion that might reasonably be

regarded within its purview." Thornhill v. Alabama, 310 U.S. 88, 97-98

(1940). Such a deterrent “need not affect total suppression in order to

create a prior restraint.” Conrad, 420 U.S. at 556 n.8. Vesting the right

to suppress speech to the discretion of the decision maker results in a prior

29

The injunction in Carroll was content-neutral but was

analyzed as a prior restraint. Carroll, 393 U.S. at 181. This

Court has traditionally condemned licensing schemes as prior

restraints without regard to content restrictions. Forsyth

County v. The Nationalist Movement, 112 S. Ct. 2395 (1992)

(parade permits); Shuttlesworth v. City of Birmingham, 394

U.S. 147 (1969) (Shuttlesworth II) (public demonstration

permits). “Although a speech-restricting injunction may not

attack content as content . . . it lends itself just as readily to

the targeted expression of particular ideas." Madsen, 114 S.

Ct. at 2538 (Scalia, J., dissenting). Justice Scalia rightly

pointed out that:

Our cases have consistently held that "{ijllicit

legislative intent is not the sine qua non of a

violation of the first amendment.". . . . The vice of

content-based legislation -- what renders it deserving

of the high standard of strict scrutiny -- is not that it

is always used for invidious thought-control

purposes, but that it lends itself to use for those

purposes. And, because of the unavoidable

"targeting. . . precisely the same is true of the

speech-restricting injunction.""*

In other words, the vice of a prior restraint, whether in

a licensing scheme or an injunction, is not that the restriction

is content-based, but that it lends itself to those purposes.

restraint. See Thornhill, 310 U.S. at 90. “It is not merely the sporadic

abuse of power by the censor but the pervasive threat inherent in its very

existence that constitutes the danger to freedom of discussion.” /d. at 97.

* Madsen, 114 S. Ct. at 2539 (Scalia, J., dissenting) (quoting Simon

& Schuster v. New York Crime Victims Bd., 112 S. Ct. 501, 509 (1991))

(citations omitted) (emphasis in original).

30

Whether the decision maker is a judge, or an individual with

whom discretionary licensing power is vested, makes no

difference. The fact that the decision maker is able to make

content-based restrictions is enough for a prior restraint. The

injunction merely serves as a baton by which the government

passes to private individuals the right of prior restraint over

picketers in traditional public fora. Such prior restraints are

presumptively invalid. See New York Times Co., 403 U.S. at

713; Bantam Books, 372 U.S. at 70; see also Blasi, Toward

a Theory of Prior Restraint: A Central Linkage, 66 MINN. L.

REV. 11 (1981).

Provision (a) adequately protects the clinic and the public

without infringing on free expression. Both the 15-foot bubble

zone and "cease and desist" provisions violate the First

Amendment and this Court should find them unconstitutional.

CONCLUSION

In light of the above, this Court should reverse the

judgment of the Second Circuit Court of Appeals.

Respectfully Submitted,

Mathew D. Staver

(Counsel of Record)

Frederick H. Nelson

Nicole Arfaras Kerr

Kevin J. Tang

Liberty Counsel

1900 Summit Tower Blvd.

Suite 560

Orlando, FL 32810

(407) 875-2100

May 17, 1996 Counsel for Amicus