The Supreme Court/The Supreme Court.iso/pc/ascii/1994/94_1450/94_1450.za

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SUPREME COURT OF THE UNITED STATES
MICHAEL LAWSON and DAVID CRIST v. ELRICK
MURRAY and BELINDA MURRAY
on petition for writ of certiorari to the supreme
court of new jersey
No. 94-1450.  Decided May 30, 1995

  The petition for a writ of certiorari is denied.
  Justice Scalia, concurring.
  Last Term's decision in Madsen v. Women's Health
Center, Inc., 512 U. S. ___ (1994), has damaged the First
Amendment more quickly and more severely than I
feared.  In this case the New Jersey courts asserted the
power to enjoin residential picketing by antiabortion
demonstrators that was explicitly found to have been
peaceful and in violation of no state statute or rule of
common law.  It is one thing for the courts to enforce by
injunction a general, content-neutral state law (civil or
criminal) against all residential picketing, or to enjoin
particular individuals from continuing residential
picketing that they have conducted in an unlawful
manner (e.g., with the accompaniment of violence).  It is
quite another thing for the courts to enjoin particular
individuals from conducting lawful residential picketing
that they have conducted in a lawful manner in the
past.  That is an unconstitutional prior restraint.
  Respondents are Elrick Murray, an obstetrician-
gynecologist who performs abortions, and his wife.  The
two petitioners planned a demonstration at respondents'
residence on Sunday, January 20, 1991.  On the ap-
pointed day, they and 56 other picketers met two
policemen near respondents' house; received instruction
from the policemen in basic picketing protocol; and were
escorted to the sidewalk running in front of respondents'
house and 10 neighboring houses.  The protestors,
carrying signs, walked in a single-file loop on the
sidewalk past respondents' house; the picketing lasted
about an hour, and -[n]o instances of trespass, violence
or disorderly conduct were reported.-  App. to Pet. for
Cert. 90a (App.).
  In February 1991, respondents filed suit against peti-
tioners and others in state court, seeking damages and
injunctive relief for various common-law torts: invasion
of privacy (including interference with the use and
enjoyment of respondents' residence), intentional inflic-
tion of emotional distress, interference with contractual
relations, and others.  The Chancery Division of the trial
court entered a temporary restraining order.  After a
hearing on the merits, the trial court denied respondents
damages on the ground that respondents had not made
out any of their tort claims.  See id., at 92a-97a.  The
court then went on to make the following rulings, which
converted the proceeding from a tort suit for damages
and injunctive relief into a proceeding for imposition of
a judicial prior restraint:
      -In addition to these claims, this court must also
consider equitable principles when determining the
appropriateness of injunctive relief.
      -Plaintiffs have a privacy interest irrespective of
their potential tort claim. . . .
      -It can operate to limit First Amendment rights,
even where the intrusion is not tresspatory [sic] or
otherwise obstructed.
      -The Court of equity has the inherent authority to
balance that interest against First Amendment
rights.
      -In other words, this court does not accept defend-
ants' position that no injunction can issue unless a
crime or an expressed tort has been committed.-  Id.,
at 97a (emphases added; citations omitted).
The court then -balanced- the equities and, on the
strength of Frisby v. Schultz, 487 U. S. 474 (1988),
found that respondents' interests in residential privacy
justified an injunction restraining -defendants and all
persons in active concert or participation with them . . .
from picketing in any form . . . within 300 feet- of
respondents' home.  App. 106a.
  The Appellate Division and the New Jersey Supreme
Court affirmed.  When petitioners sought certiorari we
granted their petition, vacated the judgment, and
remanded for reconsideration in light of our decision in
Madsen.  See Lawson v. Murray, 512 U. S. ___ (1994).
On remand, the New Jersey Supreme Court affirmed the
trial court's injunction in part and modified it in part.
The court acknowledged (as it had stated even more
clearly in its first opinion) that the injunction was -not
imposed to remedy unlawful conduct,- 138 N.J. 206, 225,
649 A.2d 1253, 1263 (1994), but rejected petitioners'
claim that the injunction therefore constituted an invalid
prior restraint.  In the alternative, the court relied on
an asserted -captive audience- exception to the prior
restraint doctrine.  See id., at 226, 649 A.2d, at 1263.
  Although I dissented in Madsen, I do not believe that
the opinion for the Court in that case -approve[d]
issuance of an injunction against speech . . . even when
there has been found no violation, or threatened viola-
tion, of a law.-  512 U. S., at ___ (Scalia, J., dissenting)
(emphasis in original) (slip op., at 22).  To the contrary,
the Court did obeisance to the venerable principle that
-[i]njunctions . . . are remedies imposed for violations (or
threatened violations) of a legislative or judicial decree,-
id., at ___ (slip op., at 8) (citing United States v. W. T.
Grant Co., 345 U. S. 629 (1953)), no matter how little
that principle was honored in application.  See also 512
U. S., at ___ (slip op., at 9) (-[I]njunctions . . . afford
more precise relief than a statute where a violation of
the law has already occurred-); id., at ___, n. 3 (slip op.,
at 9, n. 3) (-Under general equity principles, an injunc-
tion issues only if there is a showing that the defendant
has violated, or imminently will violate, some provision
of statutory or common law, and that there is a cogniza-
ble danger of recurrent violation-) (internal quotation
marks omitted).
  The Federal Constitution does not, of course, directly
require that an injunction issue only in such circum-
stances.  But where injunctions that prohibit speech are
concerned, the Free Speech and Free Press Clauses of
the First Amendment impose that requirement indi-
rectly.  All speech-restricting injunctions are prior re-
straints in the literal sense of -`administrative and
judicial orders forbidding certain communications when
issued in advance of the time that such communications
are to occur'- (emphasis omitted).  Alexander v. United
States, 509 U. S. ___, ___ (1993) (slip op, at 5).  Prece-
dent shows that a speech-restricting -injunction- that is
not issued as a remedy for an adjudicated or impending
violation of law is also a prior restraint in the condem-
natory sense, that is, a prior restraint of the sort
prohibited by the First Amendment.
  In Organization for a Better Austin v. Keefe, 402 U. S.
415 (1971), the state courts enjoined the petitioner from
distributing literature or picketing anywhere within the
city limits, on the same ground that the New Jersey
courts expressed here: -the public policy of the [State]
strongly favored protection of the privacy of home and
family- from the speech activities.  Cf. 138 N.J., at 224,
649 A.2d, at 1263 (-the injunction was entered pursuant
to the [trial] court's authority to grant equitable relief to
enforce a valid public policy of this State- protecting
residential privacy).  We held the injunction to be an
unconstitutional prior restraint, reasoning that -the
injunction operates, not to redress alleged private wrongs,
but to suppress [speech] on the basis of previous
publications.-  402 U. S., at 418-419 (emphasis added).
Keefe relied on Near v. Minnesota ex rel. Olson, 283
U. S. 697 (1931), the foundation case in this area, where
we struck down a state-court order that enjoined a
newspaper from publishing malicious, scandalous or
defamatory material.  We found the order to be an
unconstitutional prior restraint, observing that the
statute which authorized the order -is not aimed at the
redress of individual or private wrongs,- id., at 709, and
that -the object of the statute is not punishment, . . .
but suppression,- id., at 711.  See also id., at 715; Hirsh
v. Atlanta, 495 U. S. 927 (1990) (Stevens, J., concurring
in denial of stay) (distinguishing injunctive relief against
-a class of persons who have persistently and repeatedly
engaged in unlawful conduct- from -a naked prior
restraint against . . . a group that did not have a
similar history of illegal conduct-).
  The very episode before us illustrates the reasons for
this distinction between remedial injunctions and
unconstitutional prior restraints.  The danger that
speech-restricting injunctions may serve as a powerful
means to suppress disfavored views is obvious enough
even when they are based on a completed or impending
violation of law.  Once such a basis has been found,
later speech may be quashed, or not quashed, in the
discretion of a single official, who necessarily knows the
content and viewpoint of the speech subject to the
injunction; the injunction is enforceable through civil
contempt, a summary process without the constitutional
protection of a jury trial; and the only defense available
to the enjoined party is factual compliance with the
injunction, not unconstitutionality, see In re Felmeister,
95 N.J. 431, 445, 471 A.2d 775, 782 (1984); In re
Carton, 48 N.J. 9, 16, 222 A.2d 92, 96 (1966).  But the
threat to the First Amendment becomes positively
alarming when violation of the law is not even a
necessary prelude to this expansive discretion-when the
defendant's prior speech (and proposed future speech)
has been expressly found not to constitute a crime or
common-law tort, and the only basis for the injunction
is a nebulous -public policy- of the State enforced by an
inherent equitable power.  See 138 N.J., at 225, 649
A.2d, at 1263.  This is by definition a policy of enjoining
in advance speech that the State does not punish after
the fact-that is to say, a policy narrowly tailored to
nothing but the suppression of lawful speech.  And even
that damning assessment assumes, of course, that such
a -public policy- even exists in state law, which is highly
questionable here.  The New Jersey courts have given
equitable relief against residential picketing not violative
of state law only in this case and another recent case
involving abortion protestors.  See Boffard v. Barnes,
136 N.J. 32, 642 A.2d 338 (1994).  The temptation in
cases involving issues of social controversy-precisely the
cases where the First Amendment's protections are most
needed-will always be for judges to discern a -policy-
against whatever-speech-looks-bad-at-the-moment.
  Even our Madsen decision was, as I read it, unwilling
to invite such consequences by cutting prior-restraint
doctrine loose from the requirement that injunctions be
remedial.  The prior-restraint argument advanced by
petitioners in that case was summarily rejected in a
footnote with the observation that
-[n]ot all injunctions which may incidentally affect
expression . . . are `prior restraints' . . . .  Here
petitioners are not prevented from expressing their
message in any one of several different ways; they
are simply prohibited from expressing it within the
. . . zone [covered by the injunction].  Moreover, the
injunction was issued not because of the content of
petitioners' expression, . . . but because of their prior
unlawful conduct.-  Madsen, 512 U. S., at ___, n. 2
(emphasis added) (slip op. at 8, n. 2).
The New Jersey Supreme Court read this footnote to
mean that even an injunction not imposed to remedy or
prevent unlawful conduct may nonetheless be valid,
depending on an assessment of -factors- such as content-
neutrality and availability of alternative channels of
communication.  See 138 N.J., at 221-226, 649 A.2d, at
1261-1263.  But such factors determine the validity of
subsequent restraints, see, e.g., Simon & Schuster, Inc.
v. Member of New York State Crime Victims Bd., 502
U. S. 105, 116 (1991); Ward v. Rock Against Racism, 491
U. S. 781, 791 (1989), and to make them conclusive of
the validity of prior restraints as well would destroy the
doctrine that prior restraints are specially disfavored,
see Patterson v. Colorado ex rel. Attorney General of
Colorado, 205 U. S. 454, 462 (1907) (Holmes, J.);
Nebraska Press Assn. v. Stuart, 427 U. S. 539, 598
(1976) (Brennan, J., concurring in judgment).  The
presence of such validating factors is a necessary and
sufficient condition for the constitutionality of a subse-
quent punishment, but merely a necessary condition for
the constitutionality of a prior restraint, which requires
in addition that it be remedial.  It is improper to
attribute a different meaning to the ambiguous Madsen
footnote, which after all appeared in an opinion that
elsewhere purported to honor the requirement that
speech-restricting injunctions be remedial.
  The principal ground for the decision below, then, does
not apply Madsen but expands it, and contracts the
First Amendment pari passu.  I think it of vital impor-
tance that Madsen quickly be limited to what it said,
rather than what it did.  I nonetheless do not vote to
grant certiorari here, for two reasons: The alternative
ground for the court's decision (existence of a -captive
audience- exception to the doctrine of prior restraint),
while a highly questionable basis for a discretionary
injunction power, presents no clear conflict with the
decisions of other courts and could prevent us from
reaching the Madsen issue.  And clarification of Madsen
is in any event unlikely to occur in another case
involving the currently disfavored class of antiabortion
protesters.  Accordingly, I concur in the denial of
certiorari.