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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0684%3A16

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1997
- **Citation:** 519 U.S. 357

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0684%3A16. Public record. Not legal advice.