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

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REVEREND PAUL SCHENCK AND DWIGHT SAUNDERS,

Petitioners,

Pro-CHOICE NETWORK OF WESTERN NEw York, ef al.

BRIEF FOR THE CITY OF PHOENIX, ARIZONA,

AS AMICUS CURIAE SUPPORTING RESPONDENTS

DAVDD A. STRAUSS

Special Assistant City Attorney

1111 East 60th Street

Chicago, IL 60687

(312) 702-9601

RODERICK G. MCDOUGALL *

City Attorney

MARVIN A. SONDAG

Assistant City Attorney

200 West Washington Street

Phoenix, AZ 85003

(602) 262-4557

* Counsel of Record

Wison - Eras Prierrine Co., bec. - 789-0096 - WasHincTON, D.C. 20001

a a —— a i _—_—— —

BEST AVAILABLE COPY”

QUESTION PRESENTED

Amicus will address the following question:

Whether the First Amendment is violated by an injunc-

tion that requires petitioners to move fifteen feet away

from any person seeking access to a health services facility

who specifically indicates a desire that petitioners move

away.

ARGUMENT:

I. THE COURT SHOULD CONTINUE TO AP-

PLY A LESS RESTRICTIVE STANDARD TO

GENERAL LEGISLATION LIMITING THE

TIME, PLACE, AND MANNER OF DEMON-

STRATIONS THAN IT APPLIES TO INJUNC-

TIONS AIMED AT SPECIFIC INDIVIDUALS..

Il. THE REQUIREMENT THAT PETITIONERS

MOVE A SHORT DISTANCE AWAY FROM

AN INDIVIDUAL TO WHOM THEY ARE

SPEAKING, UPON A SPECIFIC REQUEST

BY THAT INDIVIDUAL, DOES NOT VIO-

LA™E THE FIRST AMENDMENT ..........

(iii)

TABLE OF AUTHORITIES

Cases: Page

Beth Israel Hospital v. NLRB, 487 U.S. 483

SETTTIIID csssnecevammnindeniaséauensiiaienaiteshastidididapiidaisansiiimtaaireatie 21

Bolger v. Youngs Drug Products Corp., 463 U.S.

Gar GP cccinseresensenenicticieinienaniintamnninnsins 22-23

Boos v. Barry, 485 U.S. 312 (1988) ........................... 20-21

Cameron v. Johnson, 390 U.S. 611 (1968) —............ 17

Cantwell v. Connecticut, 310 U.S. 296 (1940)... 19

Carmichael v. Southern Coal Co., 301 U.S. 495

a eee 12

Cohen v. California, 403 U.S. 15 (1971) ~............ 16-17, 19,

20-21

Coz v. Louisiana, 379 U.S. 586 (1965) —................. 17

Edwards v. City of Santa Barbara, 883 F. Supp.

1879 (C. D. Cal.), vacated, 70 F.3d 1277 (9th

GR CD dctinsstiicertitneapecipenniesigceiiaaniihheiaaascaeanilied elias iitnatbaais 9

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

ee eee 16-17, 21

Feiner v. New York, 340 U.S. 315 (1951) —.......... 19

Forsyth County v. The Nationalist Movement, 505

Sen Lee a eee 18-19

Frisby v. Schultz, 487 U.S. 474 (1988) ............ 9, 14, 15, 16

GTE Sylvania v. Consumers Union, 445 U.S. 375

ES ene nee 11

Hill v. City of Lakewood, 911 P.2d 670 (Colo. Ct.

App. 1995), petition for cert. filed, No. 95-1905

(i yy————————————— 9

Houston, City of v. Hill, 482 U.S. 451 (1987)... 20-21

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

AAA T eS ee eR ae eT ITD 20-21

International Society for Krishna Consciousness,

Ine. v. Lee, 505 U.S. 672 (1992) .....................-----. 17-18

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

TERETE ese At SN a Oe 17

Madsen v. Women’s Health Center, Inc., 114 8. Ct.

ERE ee ene ane passim

Martin v. City of Struthers, 319 U.S. 141 ( 1943)... 13

NLRB v. Baptist Hospital, Inc., 442 US. 773

a 21

TABLE OF AUTHORITIES—Continued

Page

New York Times Co. v. United States, 403 U.S. 713

RRR SR Sone era sora ae een 11

Perry Educ. Assn. v. Perry Local Educators’ Assn.,

Or 9

RAV v. City of St. Paul, 505 U.S. 377 (1992)... 20

Renton, City of, v. Playtime Theatres, Inc., 475

A 12

Rowan v. United States Post Office, 397 U.S. 728

I ccc na il ei 13-15, 22-23

Sabelko v. City of Phoenix, 68 F.3d 1169 (9th Cir.

1995), petition for cert. filed, No. 95-1415

I wets 1-2

Schneider v. State, 308 U.S. 147 (1939). 17

Spence v. Washington, 418 U.S. 405 (1974) 16

Terminiello v. Chicago, 337 U.S. 1 (1949)... 19

United States v. Kokinda, 497 U.S. 720 (1990). 17

Vance v. Universal Amusement Co., 445 U.S. 308

a 11

Walker v. City of Birmingham, 388 U.S. 307

ROR EE RPE RE rs ce US 11

Ward v. Rock Against Racism, 491 U.S. 781

ETE EEE ee Vanesa eee eos Ue 9

Statutes and Municipal Ordinances:

SEES a ene ee 13, 15

89 U.S.C. § 4009(a) (1964 ed., Supp. VI) eat 15

Colo. Rev. Stat. § 18-9-122 0.0. 9

Phoenix City Code, § 23-10.1 000 . 1-2,8

Santa Barbara [CA] Municipal Code ch. 9.99........ 9

Miscellaneous:

Levy, Leonard W., Emergence of a Free Press

RIBERA A, Se maa iie 11

In THE

Suprene Court of the United States

OCTOBER TERM, 1996

No. 95-1065

REVEREND PAUL SCHENCK AND DWIGHT SAUNDERS,

. Petitioners,

Pro-CHOICE NETWORK OF WESTERN NEw YORK, et ai.

On Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

BRIEF FOR THE CITY OF PHOENIX, ARIZONA,

AS AMICUS CURIAE SUPPORTING RESPONDENTS

INTEREST OF THE AMICUS CURIAE

An ordinance of the City of Phoenix, Section 23-10.1

of the Phoenix City Code, makes it unlawful for any

person “in the course of demonstration activity” within

100 feet of a health care facility to “fail to withdraw

upon a clearly communicated request to do so to a dis-

tance of at least eight (8) feet away from any person

who has made the request.” The constitutionality of Sec-

tion 23-10.1 was upheld by the United States Court of

Appeals for the Ninth Circuit in Sabelko v. City of

Phoenix, 68 F.3d 1169 (1995). A petition for a writ of

certiorari seeking to review the Ninth Circuit’s judgment

in that case was filed on March 4, 1996 (Sabelko v. City

of Phoenix, No. 95-1415) and is pending before this

Court.

Petitioners both here and in No. 95-1415 assert that

Section 23-10.1 is similar to Paragraph 1(c) of the in-

junction at issue in this case. See 95-1415 Pet. 10; 95-

1065 Pet. Br. 36 & n.21. The continued pendency of

the certiorari petition in No. 95-1415 suggests that the

Court may dispose of that petition in light of its decision

in this case. Because the ultimate decision on the con-

stitutionality of the City’s ordinance may, therefore, be

affected by the decision in this case, the City of Phoenix

has a direct and immediate interest in this case.

STATEMENT

Petitioners are two individuals who, together with nu-

merous other individuals and various organizations, were

sued by respondents in the United States District Court

for the Western District of New York. Respondents as-

serted that petitioners and their co-defendants were mem-

bers of a conspiracy that sought, through illegal means,

to obstruct access to various health care facilities that

provide abortions. Pet. App. A-5 to A-6. After extensive

proceedings, the district court issued a preliminary injunc-

tion that forbade petitioners and the other defendants

from, among other things, “demonstrating within fifteen

feet” of “any person or vehicle seeking access to” a health

services facility in the Western District of New York at

which abortions are performed. Pet. App. A-34.

Paragraph l(c) of the injunction further provided,

however, that “sidewalk counseling consisting of a con-

versation of a non-threatening nature by not more than

two people with each person or group of persons they are

seeking to counsel shall not be prohibited.” Pet. App.

A-34 to A-35. But paragraph I(c), as subsequently

modified, went on to provide that any persons engaged in

such “sidewalk counseling” were to “cease and desist from

such counseling,” and adhere to the fifteen foot restriction,

whenever “the targeted person or group ‘indicates, either

verbally or non-verbally, that they do not wish to be coun-

seled’” (id. at A-35, A-29; citation omitted).

Petitioners challenged the injunction, including para-

graph I(c), on a variety of grounds. In the decision

below, the United States Court of Appeals for the Second

Circuit, sitting en banc, rejected petitioners’ claim that

paragraph 1(c) violates the First Amendment. See Pet.

App. A-16 to A-17. Two opinions each were joined by

a majority of the judges on the en banc court of appeals.

The opinion of the court, written by Judge Oakes,

began by outlining the facts, found by the district court,

that formed the basis for the injunction. Paragraph 1(c)

was concerned with a practice that petitioners and their

co-defendants called “sidewalk counseling,” which consists

of “{djemonstrators[’] approach[ing] patients entering the

clinics, offer[ing] them anti-abortion literature, and try-

[ing] to convince them not to have an abortion.” Pet.

App. A-10. But while petitioners “contend[] that this

sidewalk counseling is done in a peaceful manner,” in fact

“the demonstrators often become angry and frustrated

when patients persist in entering the clinic.” /bid. The

court of appeals, quoting the district court’s findings, then

described the conduct of the defendants in this case (id.

at A-10 to A-11; citation omitted):

The “counselors” then turn to harassing, badgering,

intimidating and yelling at the patients * * * in order

to dissuade them from entering. They continue to do

so even after the patients signal their desire to be

left alone. The “sidewalk counselors” often crowd

around patients, invade their personal space and

raise their voices to a loud and disturbing level.

“Many of the sidewalk counselors,” the court of appeals

noted, “have been arrested on more than one occasion for

harassment, yet persist in harassing and intimidating pa-

tients, patient escorts, and medical staff.” /d. at A-11.

The court of appeals also noted extensive evidence about

the harmful medical effects of the practices in which

petitioners and their co-defendants engaged. /bid.

On the basis of this record, the court of appeals con-

cluded that the restriction contained in paragraph 1(c)

“burden[s] [no] more speech than necessary to accomplish

its goal” and is therefore constitutional under this Court’s

decision in Madsen v. Women's Health Center, Inc., 114

S. Ct. 2516 (1994). Pet. App. A-33 (brackets in origi-

nal; internal quotation marks omitted); see 114 S. Ct. at

2525. The court noted that paragraph 1(c) allows peti-

tioners, or any two “sidewalk counselors,” to approach

“their target audience face-to-face * * * without being

invited.” Pet. App. A-28. The “counselors,” the court of

appeals further noted, “need not retreat unless expressly

rejected by a counselee, and then only to a distance of

fifteen feet.” /bid. The court stated that the purpose of

paragraph I(c) was to “provide a vulnerable group of

medical patients with some relief from the duress caused

by unwelcome physical proximity to an extremely vocal

group of demonstrators.” Pet. App. A-30. The court con-

cluded that “[t}his purpose is content-neutral, as it is the

demonstrators’ physical proximity which is regulated

rather than their message.” Jbid. The court of appeals

also upheld the district court’s conclusion that, without a

provision like paragraph 1(c), “women seeking access to

the clinics [would be] ‘captive’ to [petitioners’] invasive

conduct and unable to ‘walk away’” (Pet. App. A-31;

citation omitted).

Judge Winter’s concurring opinion, also joined by a

majority of the court, embraced what it described as the

“somewhat broader principle” that “the First Amendment

does not, in any context, protect coercive or obstructionist

conduct that intimidates or physically prevents individuals

from going about ordinary affairs.” Pet. App. A-37.

Specifically, Judge Winter stated, “there is no right to

invade the personal space of individuals going about law-

ful business, to dog their footsteps or chase them down

a street, to scream or gesticulate in their faces, or to do

anything else that cannot be fairly described as an attempt

at peaceful persuasion.” /d. at A-42.

Judge Winter acknowledged that “the legal breathing

space afforded the protestor in defining coercion or ob-

struction may vary according to the forum and ability of

the audience to avoid the protest at little cost.” Pet. App.

A-43. In this case, however, Judge Winter stated, there

was “a considerable amount of obstruction and bullying

by both the protestors and the self-described counselors.”

Ibid. Specifically, Judge Winter noted, “some of the coun-

selors in the instant matter have in the past resorted to

bullying as soon as their proffer of advice was rebuffed”

(id. at A-45). Judge Winter reasoned that “[a] nose-

to-nose confrontation is hardly essential to a conveying

of the protestors’ views and will, given their history of

intimidation, be reasonably perceived by those seeking to

enter the clinic as intimidating.” Jd. at A-44. He accord-

ingly concluded that there is “no First Amendment barrier

to a requirement that, once the would-be counselors have

had an opportunity to offer advice and it is declined, they

must respect the buffer area applicable to protestors.” /d.

at A-45.

Judges Meskill and Altimari dissented. They stated,

among other things, that “[a]s long as the injunction en-

sures access to the clinics,” and “patients approaching the

clinics * * * can escape the unwanted message simply by

continuing to walk towards and entering the clinic.” Pet.

App. A-64. Further, the dissenters said, “[wJhile coun-

selors may cause distress to those attempting to enter the

clinics, such offense is an inevitable cost of free expression

under the First Amendment.” /d. at A-65.

SUMMARY OF ARGUMENT

I. Although this case concerns the constitutionality of

an injunction, the Court’s decision is likely to influence

litigation over city ordinances and other legislation that

has some similarities to the injunction at issue here. The

Court may, therefore, wish to reaffirm the principle that

general legislative measures are subject to a less stringent

standard of review than injunctions. Because legislative

measures apply to a broad class of people, instead of just

a limited group of named individuals, there is a built-in

political check against the possibility that legislation will

restrict speech unduly. An individual who wishes to chal-

lenge a legislative measure can take advantage of a variety

of procedural protections that are not available to a per-

son who challenges an injunction. And the inherent diff-

erences between the legislative and judicial processes—

courts must act on the basis of an adjudicative record,

whereas legislatures can, and indeed should, draw on a

broader range of sources of information—make it appro-

priate to allow a legislature more leeway in justifying its

actions.

II. The concept underlying paragraph 1(c) of the in-

junction at issue here—that a speaker may approach an

individual entering a health care facility but must move a

short distance away from any individual who so requests

—is fully consistent with the First Amendment.

A. 1. Paragraph 1(c), and measures like it, impose

only a narrow and limited restriction on individuals who

wish to engage in expressive activities. Petitioners are free

to speak, jeer, and wave placards even at individuals en-

tering a health care clinic, so long as they stay fifteen feet

away. Moreover, petitioners, or any other pair of demon-

strators, are free to approach such individuals and speak

to them face to face. The only limitation paragraph 1(c)

imposes is that if those individuals specifically object, pe-

titioners must move back a few paces before resuming

their expressive activity.

This modest limitation on petitioners’ conduct protects

interests of the first magnitude. The Court has repeatedly

ruled that the First Amendment does not give anyone a

right to force unwelcome speech on an individual who

objects. This principle applies even to unwanted mail. A

fortiori, it should apply to highly instrusive conduct like

that in which petitioners seek to engage.

2. Petitioners suggest that an individual’s interest in

not being subjected to such conduct vanishes once an

individual leaves the home. This Court’s decisions do not

support such an implausible rule. On the contrary, the

Court’s decisions dealing with the regulation of speech in

public places have emphasized that speakers are allowed

a greater latitude in such places precisely because unwill-

ing listeners can, if they wish, simply avert their eyes, walk

away, or otherwise minimize their exposure to the speech

that they find objectionable or intrusive.

Measures like paragraph l(c) are designed precisely to

ensure that unwilling listeners will be able to exercise this

prerogative to avert their eyes and walk away— in this

case, unwilling listeners who are not random members of

the public but who are entering a health care facility and

are therefore particularly vulnerable.

B. A measure like paragraph |(c) does not constitute

an impermissible “audience veto” of speech. The notion

of an “audience veto” or a “heckler’s veto” is that the

hostility of some members of an audience should not be a

justification for restricting a speaker’s ability to speak to

other members of the audience, or members of a broader

audience. It does not mean that a speaker has a right to

continue to force speech on the very individual who has

indicated a desire not to be subjected to it. In any event,

paragraph 1(c) does not compel petitioners to stop speak-

ing to anyone: it only requires them to move a short

distance away from a specific individual who specifically

objects. There is no “veto” of any speech—only of physi-

cally confrontational tactics.

C. The decision below is fully consistent with the por-

tion of Madsen that invalidated a restriction on approach-

ing persons entering a clinic who did not “indicate[] a

desire to communicate.” The Madsen restriction was both

more broad and more vague. Perhaps most important,

the Madsen restriction placed the burden on the speaker

to obtain consent to approach a person; paragraph 1(c)

allows petitioners to speak to anyone unless and until that

person specifically objects. That distinction is crucial un-

der the Court’s decisions.

D. Measures like paragraph 1(c) therefore present no

special concerns under the First Amendment. The only

remaining question is whether paragraph l(c) itself is

an appropriate remedy in this case. In view of the history

of intimidation and harassment revealed by the record,

the district court’s decision to impose this remedy, upheld

by the court of appeals, was plainly warranted.

ARGUMENT

I. THE COURT SHOULD CONTINUE TO APPLY A

LESS RESTRICTIVE STANDARD TO GENERAL

LEGISLATION LIMITING THE TIME, PLACE, AND

MANNER OF DEMONSTRATIONS THAN IT

APPLIES TO INJUNCTIONS AIMED AT SPECIFIC

INDIVIDUALS.

This case concerns the constitutionality of an injunction

that applies only to petitioners and certain other named

individuals and groups. Some of the provisions found

in the injunction, however, including the restriction in

paragraph I(c), are comparable in certain respects to

restrictions found in legislative enactments. For example,

as we have said, Section 23-10.1 of the City Code of the

City of Phoenix makes it unlawful for a demonstrator

near a health care facility to refuse to move eight feet

away from any individual who makes “a clearly com-

municated request” that the demonstrator withdraw.’

' The Phoenix ordinance (which is set forth at 95-1415 Pet. App.

56a-58a) applies to the “access area” of a health care facility, which

is defined as any portion of a public street “or other public place

or any place open to the public” that is “within one hundred (100)

feet of an exterior wall or entryway of a health care facility.”

§ 23-10.1(B) (1). “Demonstration activity,” as defined by the ordi-

nance, “includes but is not limited to protesting, picketing, dis-

tributing literature, attempting to impede access, or engaging in

oral protest, education, or counseling activities.” § 23-10.1(B) (2).

The ordinance also defines “[{h]ealth care facility” and specifies

how to measure the eight-foot distance. § 23-10.1(B) (3) and (C).

Other jurisdictions have adopted somewhat similar mea-

sures. See, e.g., Santa Barbara [CA] municipal Code ch.

9.99 (quoted in Edwards v. City of Santa Barbara, 883

F. Supp. 1379, 1394-95 (C. D. Cal.), vacated, 70 F.3d

1277 (9th Cir. 1995)); Colo. Rev. Stat. § 18-9-122,

upheld in Hill v. City of Lakewood, 911 P. 2d 670

(Colo. Ct. App. 1995), petition for cert. filed, No. 95-

1905 (May 24, 1996).

These legislative measures differ in significant respects

both from each other and from paragraph I(c) of the

injunction at issue here. But the Court’s decision on the

constitutionality of paragraph 1(c) may influence litiga-

tion over legislative measures of this kind. For this rea-

son, the Court may wish to reaffirm a central feature of

its holding in Madsen v. Women’s Health Center, Inc.,

114 S. Ct. 2516 (1994)—that in reviewing injunctions

like the one at issue here, the Court will engage in “a

somewhat more stringent application of general First

Amendment principles” than it does when it reviews

generally applicable legislation. /d. at 2524. In other

words, legislative measures containing restrictions com-

parable to paragraph l(c) are to be judged by a more

lenient standard than the Court will apply to paragraph

1(c) in this case.

Under Madsen, a general legislative enactment is judged

according to the established standard “set forth in Ward

v. Rock Against Racism, [491 U.S. 781 (1989)], and

similar cases.” 114 §. Ct. at 2524. That standard, as the

Court said, is whether a measure is “narrowly tailored to

serve a significant governmental interest.” /bid., quoting

Ward, 491 U.S. at 791, and citing Perry Educ. Assn. v.

Perry Local Educators’ Assn., 460 U.S. 37, 45 (1983).

See also Frisby v. Schultz, 487 U.S. 474, 481 (1988).

In the case of an injunction, by contrast, the courts must

pay more “close attention to the fit between the objectives

of [the] injunction and the restrictions it imposes on

speech.” Madsen, 114 S. Ct. at 2525. The question

becomes “whether the challenged provisions of the injunc-

tion burden no more speech than necessary to serve a

significant government interest.” [bid.

The Court in Madsen gave several reasons for using

different standards. Perhaps most important, legislation,

unlike an injunction, applies not to specific, identified per-

sons, but to a wide range of individuals. This feature of

legislation itself is a safeguard against threats to First

Amendment interests. See 114 S. Ct. at 2524. The

City of Phoenix’s ordinance, for example, applies to all

demonstrators at health care facilities. It applies no

matter what the demonstrators’ views are about abortion;

it also applies to individuals who are demonstrating not

about abortion but about the use of animals for medical

experimentation, a physician’s political activities, a labor

dispute, the availability of alternative medicine, or any

other subject. If a city council or state legislature, acting

on such a broad-gauge basis, were to consider a measure

that unduly limited speech, the many affected groups and

individuals would be able to mobilize to defeat the mea-

sure in the legislative process. Thus general legislation

comes with a built-in political check that helps ensure

that the measure will not be too restrictive of free

expression.

In addition, while an injunction is a means of resolv-

ing a dispute between particular parties, “[o]rdinances

represent a legislative choice regarding the promotion of

* * * societal interests.” Madsen, 114 S. Ct. at 2524.

That is, the range of social interests at stake when a city

council or a state legislatiure acts is usually broader than

the interests affected by an injunctive remedy afforded in

a lawsuit between private parties. The legislative choice,

reflecting as it does the judgment of elected representa-

tives about the public interests at stake, is entitled to a

high degree of deference.

In fact, the difference in the treatment of legislative

and judicial restrictions on expression has roots that go

deeper than the decision in Madsen. While the Court

in Madsen held that injunctions like the one at issue here

are not “prior restraints” within the meaning of such

cases as New York Times Co. v. United States, 403

U.S. 713 (1971), and Vance v. Universal Amusement

Co., 445 U.S. 308 (1980), see 114 S. Ct. at 2524 n.2,

many of the reasons for the historical concern with prior

restraints have to do with the differences between legisla-

tive measures and court orders.

For example, an individual has the option of violating

a Statute or ordinance and then defending a subsequent

prosecution on the ground that the measure is unconsti-

tutional. That option is ordinarily unavailable when a

person wishes to challenge the constitutionality of an in-

junction. See, e.g., GTE Sylvania, Inc. v. Consumers

Union, 445 U.S. 375, 386-87 (1980); Walker v. City of

Birmingham, 388 U.S. 307 (1967). In some circum-

stances at least, private parties may initiate civil contempt

proceedings against persons who violate an injunction; by

contrast, the enforcement of a statute or ordinance rests

with public officials. That provides an extra check on ex-

cessive interference with expression. Moreover, a person

charged with violating a legislative enactment is ordinarily

entitled to a trial by jury—historically an especially im-

portant right in the protection of freedom of expression.

See Leonard W. Levy, Emergence of a Free Press 37-44

(1985) (describing jury nullification in trial of John Peter

Zenger). Civil contempt proceedings can be tried without

a jury. For all of these reasons as well, it is appropriate to

apply a less restrictive standard to legislative enactments.

Perhaps the most basic reason to apply different stand-

ards to legislative enactments and judicial decrees, how-

ever, is that the legislative and judicial processes are them-

selves fundamentally different. The Court's holding in

Madsen that different standards apply to legislation and

injunctions rests in part on these differences, “quite apart

from First Amendment considerations” (114 S. Ct. at

2525). An injunction is based on adjudicative proceed-

ings focused on the conduct of the specific individuals

named in the injunction. It is therefore reasonable for

the Court to pay more “close attention to the fit between

the objectives of an injunction and the restrictions it im-

poses on speech” (ibid.) and to expect an injunction to

be “tailored by a trial judge to afford more precise relief

than a statute” will ordinarily afford. Id. at 2524.

But a legislature, unlike a court, is not limited to rem-

edying specific violations that have been proved in an

adjudicative proceeding. It is not required to base its

actions on findings of fact about the precise problem its

legislation seeks to remedy. See, e.g., City of Renton v.

Playtime Theatres, Inc., 475 U.S. 41, 50-52 (1986).

Elected representatives are entitled to draw on a wider

range of sources of information, not all of which can be

reduced to an evidentiary record. This is precisely the

legislative body’s comparative advantage—its “informed

acquaintance with local conditions to which the legisla-

tion is to be applied.” Carmichael v. Southern Coal Co.,

301 U.S. 495, 510 (1937). For these reasons, the re-

quirement that Madsen imposed on court orders limiting

expressive activity—a close nexus between a specific con-

dition requiring a remedy and the specific prohibition

chosen to remedy it—is simply not appropriate in the

case of a city ordinance or other general legislative

measure.

Il. THE REQUIREMENT THAT PETITIONERS MOVE

A SHORT DISTANCE AWAY FROM AN INDIVID-

UAL TO WHOM THEY ARE SPEAKING, UPON A

SPECIFIC REQUEST BY THAT INDIVIDUAL,

DOES NOT VIOLATE THE FIRST AMENDMENT.

Judged by the standard appropriate to injunctive rem-

edies, the requirement of paragraph 1(c) does not violate

the First Amendment. Under Madsen, of course, the con-

stitutionality of paragraph I(c) depends on an assess-

ment of the specific facts in the record. But many of the

arguments advanced by petitioners and their supporting

amici suggest that the concept underlying paragraph 1(c)

and similar legislative measures—a requirement that dem-

onstrators move a short distance away from an individual

who asks them to do so—necessarily raises serious ques-

tions under the First Amendment. This suggestion is

entirely incorrect.

A. 1. In Rowan v. United States Post Office, 397 US.

728 (1970), the Court unanimously upheld the constitu-

tionality of a statute providing that any persons who

object to mailings from a particular sender can insist that

the sender remove their names from all of its mailing lists

and refrain from mailing them any materials in the future.

See id. at 732-35; 39 U.S.C. § 3008. The Court acknowl-

edged that this statute would restrict expression to some

degree: “To make the householder the exclusive and

final judge of what will cross his threshold undoubtedly

has the effect of impeding the flow of ideas, information,

and arguments that, ideally, he should receive and con-

sider.” 397 U.S. at 736. Nonetheless, the Court held, the

statute was constitutional because “[nJothing in the Con-

stitution compels us to listen to or view any unwanted

communication, whatever its merit” (id. at 737.)

Rowan relied in part on Martin v. City of Struthers,

319 U.S. 141 (1943), where the Court, speaking through

Justice Black, invalidated a municipal ordinance that

forbade the door-to-door distribution of literature but ex-

plicitly ruled that “[a] city can punish those who call at

a home in defiance of the previously expressed will of the

occupant” (id. at 148). The Court explained that “{t}his

or any similar regulation leaves the decision as to whether

distribut[o]rs of literature may lawfully call at a home

where it belongs—with the homeowner himself.” /bid.

The same principles control this case. Like the meas-

ures upheld in Rowan and approved in Martin, paragraph

1(c) leaves speakers free to approach, and speak to,

whomever they please. Paragraph 1|(c) merely ensures

that an unwilling target of such expressive activity will

have some way to avoid being relentlessly subjected to it.

“If [such a] prohibition operates to impede the flow of

even valid ideas, the answer is that no a has a —

even * ’ ideas on an unwilling recipient.

pny 397 ud a 738. As the Court has recently re-

affirmed, the government's interest in prohibiting “speech

directed primarily at those who are presumptively un-

willing to receive it” is not only permissible under the

First Amendment; it is “substantial and justifiable.” Frisby

v. Schultz, 487 U.S. at 488.

In fact, on any plausible scale of First Amendment

values, the constitutionality of paragraph l(c) follows

a fortiori from the principle recognized in Rowan. Un-

wanted mail is far less intrusive than speakers who posi-

tion themselves literally inches from an individual and

refuse to move away when asked to do so. If the gov-

ernment may protect the interest in being free from un-

wanted mail, even though such mail can be immediately

discarded, then surely it may protect individuals’ inter-

est in having people who confront them on the street back

off a few paces.

On the other side of the ledger, the statute upheld in

Rowan barred a speaker from using a very important

medium of communication—the postal system—to reach

any addressee who objected to even one of the speaker's

mailings. Such a restriction has a far more dramatic

effect on speech than a measure like paragraph I(c).

Measures like paragraph 1(c) do not bar any communi-

cation from any speaker to any recipient; they simply

require that the speaker not stand physically close to

an individual who explicitly indicates that that is her

wish.”

2In addition, unlike paragraph 1(c) and similar measures, the

statute upheld in Rowan was, in an important respect, content-based.

2. Petitioners and some amici seek to draw a sharp

distinction between speech that enters the home and

speech in public places, asserting that measures like para-

graph I(c) are acceptable only to protect the height-

ened privacy interests present in the home. See, e.g., Pet.

Br. 42; AFL Am. Br. 28; Fam. Res. Coun. Am. Br.

10-13.° It is true, of course, that the Court has recog-

nized the strength of the interest in protecting the home

against unwanted intrusions. See, e.g., Frisby, 487 U.S.

at 484-85. But paragraph I(c) hardly protects patients

seeking access to health care facilities from all unwanted

intrusions. They can be approached by any two individ-

uals, who can continue to speak to the patients until the

patients affirmatively object. Even then, a patient can

be subjected to shouting, chanting, jeering, and the wav-

ing of placards by large crowds of people, all directed

specifically at the patient, from as close as fifteen feet

The Rowan statute provides that the Postal Service will order a

sender to remove an addressee from its mailing list if the addressee

“in his sole discretion believes” that a “pandering advertisement”

received from that sender was “erotically arousing or sexually

provocative.” 39 U.S.C. §4009(a) (1964 ed., Supp. VI), quoted at

397 U.S. at 730; see 39 U.S.C. 3008(a). While an addressee’s deci-

sion to terminate mailings is not reviewed by any government

official, see 397 U.S. at 739 n.6—so in practice addressees can

terminate mailings for any reason they wish—the statute still

requires addressees to conclude that the materials were “erotically

arousing or sexually provocative.” Some addressees might refuse

to invoke such a statute if their objection to the material rested on

other grounds.

Paragraph 1(c) does not have this content-based character. It

permits individuals to rebuff petitioners and their co-defendants

for any reason whatever. In this respect, too, the constitutionality

of paragraph 1(c) follows a fortiori from Rowan.

’“AFL Am. Br.” refers to the brief of the American Federation

of Labor and Congress of Industrial Organizations as amici curiae.

“Fam, Res. Coun. Am. Br.” refers to the amicus curiae brief of the

Family Research Council, “FL ACLU Am. Br.” refers to the brief

filed by the American Civil Liberties Union of Florida, et al., as

amici curiae.

away. Any of these activities could obviously be banned

in - Prom Pach a home. See Frisby, 487 U.S. at 486-87.

Therefore it cannot possibly be said that respondents, in

defending the constitutionality of paragraph I(c), are

trying to extend to public places the standards that should

apply only to the home.

There is an even more important error in petitioners’

argument, however. A principal reason that the Court

has extended a broader protection to speech in public

places is, as the Court has repeatedly said, that when

individuals are in public places they = ——— “?_

speech that find objectionable. For example,

pln sare v. Kony } Jacksonville, 422 U.S. 205 (1975),

the Court struck down an ordinance that forbade drive-in

movie theaters from showing films that displayed nudity

on a screen visible from a public place. But in explaining

why the ordinance “cannot be justified as a means of

preventing significant intrusions on privacy,” the Court

noted that “the screen of a drive-in theater is not ‘so

obtrusive as to make it impossible for an unwilling in-

dividual to avoid exposure to it.’” Jd. at 212 (citation

omitted). The ordinance was unconstitutional, the Court

stated, because it “seeks only to keep these films from

being seen from * * * places where the offended viewer

readily can avert his eyes.” Ibid. Similarly, in Cohen v.

California, 403 U.S. 15 (1971), where the Court over-

turned the conviction of a person who displayed a vulgar

political slogan on a jacket he wore in a courthouse, the

Court, in responding to the argument that the speech was

being forced on an unwilling audience, stated that [t}hose

in the * * * courthouse could effectively avoid further

bombardment of their sensibilities simply by averting their

eyes.” Id. at 21. See also Spence v. Washington, 418

U.S. 405, 412 (1974).

Cohen and Erznoznick, of course, invalidated measures

that were, unlike paragraph 1(c), based on the content

of expression. See 403 U.S. at 18; 422 U.S. at 211-12.

Even so, the Court was careful to note, as a predicate

for invalidating the measures, that it was possible for

viewers to minimize their exposure to the expression if

they found it objectionable. In cases involving non-

content-based regulation of expression, even in the most

public of places, the Court has even more vigorously pro-

tected the interest in allowing people to avoid speech if

they so choose.

For example, Schneider v. State, 308 U.S. 147 (1939),

invalidated a ban on handbilling in the streets; but as the

Court has recently emphasized, “[i]n Schneider * * * we

spoke of a right to distribute literature only ‘to one willing

to receive it.’” Frisby, 474 U.S. at 485, quoting Schneider,

308 U.S. at 162. See also Lehman vy. City of Shaker

Heights, 418 U.S. 298, 304 (1974) (plurality opinion);

id. at 307-08 (Douglas, J., concurring). In Cox v. Lou-

isiana, 379 U.S. 536 (1965), the Court, while invalidating

the convictions of civil rights demonstrators, went out of

its way to emphasize that “[a] group of demonstrators

could not insist upon the right to cordon off a street, or

entrance to a public or private building, and allow no

one to pass who did not agree to listen to their exhorta-

tions.” Id. at 555. See also Cameron v. Johnson, 390

U.S. 611, 616-17 (1968). This is, in substance, exactly

the “right” on which petitioners “insist” here: the right

to force any individuals who wish to enter a health care

facility to “listen to their exhortations” face-to-face.

Finally, in International Society for Krishna Conscious-

ness, Inc. v. Lee, 505 U.S. 672 (1992), the Court upheld

a ban on face-to-face solicitation in airports, citing, among

other things, the difficulty that the targets of such solicita-

tion will have in disentangling themselves from the solici-

tors (id. at 683-84) and the “risks of duress” (id. at 684)

—among them, the risk that the solicitor “will target the

most vulnerable” (ibid.)—as well as the danger of “ ‘in-

timidatifon]’” (id. at 689 (O'Connor, J., concurring),

citing United States v. Kokinda, 497 U.S. 720, 734-34

(1990) (plurality opinion); see also 505 U.S. at 705

(Kennedy, J., concurring). If solicitation can be banned

in a place where there is no reason to believe that any

particular target will be especially vulnerable or will find

the solicitation unwelcome, then surely the conduct in

which petitioners wish to engage—approaching individuals

whom they know to be highly vulnerable, and who have

explicitly indicated that their approach is unwelcome—

can also be banned.

In fact, the dissenters in Lee, who would have invali-

dated the ban on solicitation, explained that they dis-

counted the risk of coercion or intimidation precisely

because the targets of the solicitation retained the ability

to escape from the solicitor. “While a solicitor can be

insistent, a pedestrian * * * can simply walk away or

walk on.” 505 U.S. at 713 (Souter, J., dissenting). In

contrast, a target of petitioners’ speech cannot “walk

away” if petitioners have, as they contend, a constitutional

right to remain in close proximity to her the entire time

she is on public property. Whatever the merits of bans

on solicitation in variovs contexts, this should leave no

doubt about the general validity of measures like para-

graph 1(c); they are designed to preserve precisely the

right of the target of a speaker’s aggressive behavior to

“walk away” from the speaker.

B. 1. Petitioners further assert that paragraph 1(c) is

invalid because it constitutes an “audience veto” (e.g.,

Pet. Br. 38-39). This argument rests on a simple mis-

understanding of the Court’s decisions. The Court has

ruled that the hostility of some members of a speaker's

audience is generally not a reason to restrict a speaker's

ability to reach other members of the audience, or mem-

bers of a broader audience. The Court has never sug-

gested that there is a right to persist in forcing speech

on the very listeners who do not want to be subjected

to it.

For example, in Forsyth County v. The Nationalist

Movement, 505 U.S. 123 (1992), the case on which peti-

tioners principally rely, the Court invalidated an ordi-

nance that imposed a fee on demonstrators who used

public property. The Court noted that the amount of the

fee depended on the extent to which the demonstrators

would need protection from a hostile audience. Jd. at

134-36 & n.12. Speakers who “wish[ed] to express views

unpopular with bottle-throwers” would therefore face

greater financial burdens if they wanted to reach any

audience at all. /d. at 134.

It is in this sense that a “heckler” may not “veto” a

person’s speech: a heckler’s opposition may not ordi-

narily be the reason to restrict the speaker's ability to

reach others. See, e.g., Cohen, 403 U.S. at 23; Feiner v.

New York, 340 U.S. 315, 325-27 (1951) (Black, J.,

dissenting); Terminiello v. Chicago, 337 U.S. 1 (1949).4

But of course paragraph 1(c) does not restrict speech in

this way. Paragraph 1(c) does not have the slightest

effect on petitioners’ ability to reach a willing audience.

In fact, paragraph 1(c) leaves petitioners free to speak

to anyone they like, in any way they like, except for

face-to-face confrontations with a specific individual who

has specifically requested them to move away. Even then,

petitioners may continue to speak to that individual from

a reasonable distance. There is no “veto” of anyone's

speech—only of physically confrontational tactics.

2. Similarly, petitioners and some amici cite this

Court’s statements to the effect that “citizens must tolerate

*In fact, no case demonstrates more clearly the weakness of

petitioners’ contention than the seminal “hostile audience” decision,

Cantwell v. Connecticut, 310 U.S. 296 (1940). Cantwell, a religious

proselytizer, requested permission before playing a phonograph

record to passers-by on the street; when his audience was offended

by the message, and told Cantwell so, Cantwell promptly stopped

playing the record and moved on. /d. at 302-03, 308-09 (1940).

The Court, in overturning Cantwell’s conviction for breach of the

peace, specifically noted: “we find only an effort to persuade a

willing listener to buy a book or to contribute money” (id. at 310;

emphasis added).

insulting, and even outrageous, speech.” Boos v. Barry,

485 U.S. 312, 322 (1988). See, e.g., AFL Am. Br. at

14; see also Pet. Br. 38; FL ACLU Am. Br. 13. The

dissenters in the court of appeals asserted, in the same

vein, that the emotional harm that petitioners would inflict

on patients trying to enter the clinics “is an inevitable

cost of free expression under the First Amendment.” Pet.

App. A-65. But the cases on which petitioners rely, in-

cluding Boos, involved content-based laws in which the

government made the determination which speech was

unacceptably “insulting” or “outrageous.” See, ¢.g.,

R.A.V. v. City of St. Paul, 505 U.S. 377 (1992);

Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988);

City of Houston v. Hill, 482 U.S. 451, 459-60, 462-63

(1987); Boos, 485 U.S. at 318-21; Cohen v. California,

supra.®

As the Court has repeatedly emphasized, what makes

these cases troubling from the point of view of the First

Amendment is precisely that it is the government—not

5 The single case cited for this point by petitioners and their

supporting amici that involved a non-content-based restriction was

Madsen, which we discuss at pages 21-23 below.

One of the amici, somewhat oddly, places a great deal of emphasis

on City of Houston v. Hill, supra. See AFL Am. Br. 15-17. We note

that the facts of Hill, recounted at length in the amicus brief

(Br. 15), not only bear little resemblance to what is at issue here

but were not the basis for the Court’s ruling in Hill; the Court

expressly declined to decide “whether the ordinance has been un-

constitutionally applied to Hill.” 482 U.S. 458 n.6. The Court

decided the case on overbreadth grounds. /d. at 467. (Amicus also

inaccurately states that the Court overturned Hill’s conviction.

Br. 16. Hill was acquitted, not convicted, and brought suit to enjoin

the enforcement of the ordinance. 482 U.S. at 454, 455.) In any

event, the Court made it plain in that case that the fatal constitu-

tional defect in the Houston ordinance was that it restricted speech

with a certain content. See 482 U.S. at 460-62. In fact, the Court

went out of its way to say that a municipality could prevent conduct

comparable to the behavior that paragraph 1(c) enjoins. See, e.g.,

482 U.S. at 462 n.11, quoting id. at 479 (Powell, J., concurring in

part and dissenting in part).

the individual—that is determining that the speech is un-

acceptably offensive. See, e.g., Boos, 485 U.S. at 319;

City of Houston, 482 U.S. at 466-67; Erznoznick, 422

U.S. at 210. A government decision of this kind creates

the risk that government officials’ own disagreement with

the speech, or their desire to suppress the message that

it conveys, influenced their decision. See, e.g., Hustler

Magazine, 485 U.S. at 55; Cohen, 403 US. at 21.

By contrast, a measure like paragraph 1(c) does not

rest on any assessment by government officials of the value

of speech with a certain content. Paragraph 1(c) reflects

only a determination that allowing demonstrators to insist

on confronting their targets face-to-face, when a targeted

individual specifically objects, creates an impermissible

danger of intimidation and harassment. That determina-

tion—amply supported by the record in this case—does

not present the danger that government officials’ evalua-

tion of the speech will impermissilly affect their decision.

The individual targets, not the government, undertake the

evaluation.

Paragraph 1(c) also rests on the judgment that individ-

uals seeking health care should be allowed a small degree

of breathing room so that they might distance themselves

slightly from highly intrusive behavior. See Madsen, 114

S. Ct. at 2528, quoting NLRB v. Baptist Hospital, Inc.,

442 U.S. 773, 783-84 n.12 (1979); cf. Beth Israel Hos-

pital v. NLRB, 437 U.S. 483 (1978). The government

should not ordinarily be in the business of deciding which

speech is too offensive or objectionable. But it does no

such thing when, as here, it merely makes it possible for

certain especially vulnerable classes of people to have a

minimal chance to avoid what they find to be highly

intrusive conduct by speakers.

C. Finally, petitioners rely (Pet. Br. 34-38) on a por-

tion of Madsen that invalidated a provision of the injunc-

tion at issue there. That provision of the Madsen injunc-

tion forbade persons from “physically approaching any

person seeking services of the clinic ‘unless such person

indicates a desire to communicate’ in an area within 300

feet of the clinic.” 114 S. Ct. at 2529. There are, how-

ever, many differences between the provision invalidated

in Madsen and paragraph 1(c). The Madsen injunction

extended 300 feet from the clinic. See 114 S. Ct. at 2529.

The injunction in this case permits petitioners to ap-

proach as close as fifteen feet from the entrances to

clinic buildings and parking lots. See Pet. App. A-34.

In addition, the terms of the Madsen injunction were sig-

nificantly more vague than those of paragraph I(c). For

example, the Madsen injunction, instead of specifying

precise distances, prohibited the defendants from “physi-

cally approaching” persons seeking access to the health

care facilities. 114 S. Ct. at 2529.

Perhaps most important, the injunction in Madsen

forbade communication altogether with any person who

did not consent in advance. Paragraph 1(c) does not do

this; instead, it places the burden on the targets of peti-

tioners’ activities to indicate their desire that petitioners

move away. Paragraph 1(c), unlike the Madsen injunc-

tion, has no application at all until the targets of peti-

tioners’ activities so indicate. Petitioners belittle this dis-

tinction (see Pet. Br. 36-37), but the Court’s decisions

do not; indeed they have emphasized its importance. The

contrast between Bolger v. Youngs Drug Products Corp.,

463 U.S. 60 (1983), and Rowan v. United States Post

Office, supra, illustrates this point. Both cases involved

Statutes that had the effect of forbidding certain mailings

unless the addressee assented. In Bolger the mailings were

commercial advertisements, which are, of course, lower-

value speech. See 463 U.S. at 65-68. The statute in

Rowan applied to high-value speech. One would there-

fore expect the Bolger statute to have received a more

favorable reception.

But the Court invalidated the statute in Bolger and up-

held the statute in Rowan. The crucial distinction was

precisely the difference between the injunction in Madsen

and paragraph I(c). The statute in Bolger forbade the

mailings unless the recipient consented, while in Rowan

the mailings could continue until the recipient affirma-

tively objected. Bolger distinguished Rowan precisely on

this ground: Rowan, the Court noted, involved “ad-

dressees [who had] give[n] notice to a mailer that they

wish[ed] no further mailings” (463 U.S. at 72). The

same distinction—between unsolicited approaches and ap-

proaches that have been specifically rebuffed—distin-

guishes this case from the portion of Madsen on which

petitioners rely.

D. For all of these reasons, a measure that requires

demonstrators to withdraw from close contact with an

individual who so requests is not problematic under the

First Amendment. It does not follow, of course, that

paragraph l(c) is _ necessarily constitutional; under

Madsen, respondents must show the requisite connection

between petitioners’ conduct and the injunction.

The record in this case, however, seems to leave little

doubt that a remedy like paragraph 1(c) is appropriate.

The so-called “counselors” named in the injunction have

a history of “harassing, badgering, intimidating and yelling

at * * * patients” (Pet. App. A-10), even after the

patients ask to be left alone. Indeed, some of these

“counselors” have been convicted of harassing behavior

but have continued to engage in the same practices. /d.

at A-11. In these circumstances the district court was

surely justified in concluding—as the court of appeals

ruled, by a lopsided majority—that petitioners’ future

“counseling” activities would present a serious risk of the

kind of harassing and intimidating conduct that the First

Amendment unquestionably does not protect.

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted,

DAVID A. STRAUSS