The Supreme Court/The Supreme Court.iso/pc/ascii/1993/93_880/93_880.zx

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SUPREME COURT OF THE UNITED STATES
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No. 93-880
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JUDY MADSEN, et al., PETITIONERS v. WOMEN'S
HEALTH CENTER, INC., et al.
on writ of certiorari to the supreme court of
florida
[June 30, 1994]

  Justice Stevens, concurring in part and dissenting in
part.
  The certiorari petition presented three questions,
corresponding to petitioners' three major challenges to
the trial court's injunction.  The Court correctly and
unequivocally rejects petitioners' argument that the
injunction is a -content-based restriction on free speech,-
ante, at 6-8, as well as their challenge to the injunction
on the basis that it applies to persons acting -in concert-
with them.  Ante, at 20-21.  I therefore join Parts II
and IV of the Court's opinion, which properly dispose of
the first and third questions presented.  I part company
with the Court, however, on its treatment of the second
question presented, including its enunciation of the
applicable standard of review.

                      I
  I agree with the Court that a different standard
governs First Amendment challenges to generally
applicable legislation than the standard that measures
such challenges to judicial remedies for proven wrongdo-
ing.  See ante, at 8-9.  Unlike the Court, however, I
believe that injunctive relief should be judged by a more
lenient standard than legislation.  As the Court notes,
legislation is imposed on an entire community, ibid.,
regardless of individual culpability.  By contrast,
injunctions apply solely to an individual or a limited
group of individuals who, by engaging in illegal conduct,
have been judicially deprived of some liberty-the
normal consequence of illegal activity.  Given this
distinction, a statute prohibiting demonstrations within
36 feet of an abortion clinic would probably violate the
First Amendment, but an injunction directed at a
limited group of persons who have engaged in unlawful
conduct in a similar zone might well be constitutional.
  The standard governing injunctions has two obvious
dimensions.  On the one hand, the injunction should be
no more burdensome than necessary to provide complete
relief, Califano v. Yamasaki, 442 U. S. 682, 702 (1979).
In a First Amendment context, as in any other, the
propriety of the remedy depends almost entirely on the
character of the violation and the likelihood of its
recurrence.  For this reason, standards fashioned to
determine the constitutionality of statutes should not be
used to evaluate injunctions.
  On the other hand, even when an injunction impinges
on constitutional rights, more than -a simple proscrip-
tion against the precise conduct previously pursued- may
be required; the remedy must include appropriate
restraints on -future activities both to avoid a recurrence
of the violation and to eliminate its consequences.-
National Society of Professional Engineers v. United
States, 435 U. S. 679, 697-698 (1978).  Moreover, -[t]he
judicial remedy for a proven violation of law will often
include commands that the law does not impose on the
community at large.-  Teachers v. Hudson, 475 U. S.
292, 309-310, n. 22 (1986).  As such, repeated violations
may justify sanctions that might be invalid if applied to
a first offender or if enacted by the legislature.  See
United States v. Paradise, 480 U. S. 149 (1987).
  In this case, the trial judge heard three days of
testimony and found that petitioners not only had
engaged in tortious conduct, but also had repeatedly
violated an earlier injunction.  The injunction is thus
twice removed from a legislative proscription applicable
to the general public and should be judged by a stan-
dard that gives appropriate deference to the judge's
unique familiarity with the facts.

                     II
  The second question presented by the certiorari
petition asks whether the -consent requirement before
speech is permitted- within a 300-foot buffer zone
around the clinic unconstitutionally infringes on free
speech.  Petitioners contend that these restrictions
create a -no speech- zone in which they cannot speak
unless the listener indicates a positive interest in their
speech.  And, in Part III-D of its opinion, the Court
seems to suggest that, even in a more narrowly defined
zone, such a consent requirement is constitutionally
impermissible.  Ante, at 18-19.  Petitioners' argument
and the Court's conclusion, however, are based on a
misreading of -(5) of the injunction.
  That paragraph does not purport to prohibit speech; it
prohibits a species of conduct.  Specifically, it prohibits
petitioners -from physically approaching any person
seeking the services of the Clinic unless such person
indicates a desire to communicate by approaching or by
inquiring- of petitioners.  App. 59.  The meaning of the
term -physically approaching- is explained by the
detailed prohibition that applies when the patient
refuses to converse with, or accept delivery of literature
from, petitioners.  Absent such consent, the petitioners
-shall not accompany such person, encircle, surround,
harass, threaten or physically or verbally abuse those
individuals who choose not to communicate with them.-
Ibid.  As long as petitioners do not physically approach
patients in this manner, they remain free not only to
communicate with the public but also to offer verbal or
written advice on an individual basis to the clinic's
patients through their -sidewalk counseling.-
  Petitioners' -counseling- of the clinic's patients is a
form of expression analogous to labor picketing.  It is a
mixture of conduct and communication.  -In the labor
context, it is the conduct element rather than the
particular idea being expressed that often provides the
most persuasive deterrent to third persons about to
enter a business establishment.-  NLRB v. Retail Store
Employees, 447 U. S. 607, 619 (1980) (Stevens, J.,
concurring in part and concurring in result).  As with
picketing, the principal reason why handbills containing
the same message are so much less effective than
-counseling- is that -the former depend entirely on the
persuasive force of the idea.-  Ibid.  Just as it protects
picketing, the First Amendment protects the speaker's
right to offer -sidewalk counseling- to all passersby.
That protection, however, does not encompass attempts
to abuse an unreceptive or captive audience, at least
under the circumstances of this case.  One may register
a public protest by placing a vulgar message on his
jacket and, in so doing, expose unwilling viewers, Cohen
v. California, 403 U. S. 15, 21-22 (1971).  Nevertheless,
that does not mean that he has an unqualified constitu-
tional right to follow and harass an unwilling listener,
especially one on her way to receive medical services.
Cf. Grayned v. City of Rockford, 408 U. S. 104, 116
(1972).
  The -physically approaching- prohibition entered by
the trial court is no broader than the protection neces-
sary to provide relief for the violations it found.  The
trial judge entered this portion of the injunction only
after concluding that the injunction was necessary to
protect the clinic's patients and staff from -uninvited
contacts, shadowing and stalking- by petitioners.  App.
56.  The protection is especially appropriate for the
clinic patients given that the trial judge found that
petitioners' prior conduct caused higher levels of -anxiety
and hypertension- in the patients, increasing the risks
associated with the procedures that the patients seek.
Whatever the proper limits on a court's power to restrict
a speaker's ability to physically approach or follow an
unwilling listener, surely the First Amendment does not
prevent a trial court from imposing such a restriction
given the unchallenged findings in this case.
  The Florida Supreme Court correctly concluded:
-While the First Amendment confers on each citizen
a powerful right to express oneself, it gives the
picketer no boon to jeopardize the health, safety,
and rights of others.  No citizen has a right to
insert a foot in the hospital or clinic door and insist
on being heard-while purposefully blocking the door
to those in genuine need of medical services.  No
picketer can force speech into the captive ear of the
unwilling and disabled.-  Operation Rescue v.
Womens Health Center, Inc., 626 So. 2d 664, 675
(1993).
I thus conclude that, under the circumstances of this
case, the prohibition against -physically approaching- in
the 300-foot zone around the clinic withstands peti-
tioners' First Amendment challenge.  I therefore dissent
from Part III-D.


                     III
  Because I have joined Parts I, II, III-E, and IV of the
Court's opinion and have dissented as to Part III-D
after concluding that the 300-foot zone around the clinic
is a reasonable time, place, and manner restriction, no
further discussion is necessary.  See n. 1, supra.  The
Court, however, proceeds to address challenges to the
injunction that, although arguably raised by petitioners'
briefs, are not properly before the Court.
  After correctly rejecting the content-based challenge to
the 36-foot buffer zone raised by the first question in
the certiorari petition, the Court nevertheless decides to
modify the portion of that zone that it believes does not
protect ingress to the clinic.  Petitioners, however,
presented only a content-based challenge to the 36-foot
zone; they did not present a time, place, and manner
challenge.  See n. 1, supra.  They challenged only the
300-foot zones on this ground.  Ibid.  The scope of the
36-foot zone is thus not properly before us.  Izumi
Seimitsu Kogyo Kabushiki Kaisha v.  U. S. Phillips
Corp., 510 U. S. ___ (1993) (per curiam).
  The same is true of the noise restrictions and the
-images observable- provision of -(4).  That paragraph
does not refer to the 36-foot or the 300-foot buffer zones,
nor does it relate to the constitutionality of the -in
concert- provision.  As such, although I am inclined to
agree with the Court's resolution respecting the noise
and images restrictions, I believe the Court should
refrain from deciding their constitutionality because they
are not challenged by the questions on which certiorari
was granted.

                     IV
  For the reasons stated, I concur in Parts I, II, III-E,
and IV of the Court's opinion, and respectfully dissent
from the remaining portions.