Schenck v. Pro-Choice Network of Western N. Y.
Annotate this Case
519 U.S. 357 (1997)
OCTOBER TERM, 1996
SCHENCK ET AL. v. PRO-CHOICE NETWORK OF WESTERN NEW YORK ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
No. 95-1065. Argued October 16, 1996-Decided February 19, 1997
Respondents, upstate New York abortion doctors and clinics and an organization dedicated to maintaining access to abortion services, filed a complaint in the District Court seeking to enjoin petitioners, other individuals, and three organizations from engaging in blockades and other illegal conduct at the clinics. The record shows that, before the complaint was filed, the clinics were subjected to numerous large-scale blockades in which protesters marched, stood, knelt, sat, or lay in clinic parking lot driveways and doorways, blocking or hindering cars from entering the lots, and patients and clinic employees from entering the clinics. In addition, smaller groups of protesters consistently attempted to stop or disrupt clinic operations by, among other things, milling around clinic doorways and driveway entrances, trespassing onto clinic parking lots, crowding around cars, and surrounding, crowding, jostling, grabbing, pushing, shoving, and yelling and spitting at women entering the clinics and their escorts. On the sidewalks outside the clinics, protesters called "sidewalk counselors" used similar methods in attempting to dissuade women headed toward the clinics from having abortions. The local police were unable to respond effectively to the protests due, in part, to the fact that the defendants harassed them verbally and by mail. The District Court issued a temporary restraining order (TRO), and later, after the protests and sidewalk counseling continued, a preliminary injunction. As relevant here, injunction provisions banned "demonstrating within fifteen feet ... of ... doorways or doorway entrances, parking lot entrances, driveways and driveway entrances of [clinic] facilities" (fixed buffer zones), or "within fifteen feet of any person or vehicle seeking access to or leaving such facilities" (floating buffer zones). Another provision allowed two sidewalk counselors inside the buffer zones, but required them to "cease and desist" their counseling if the counselee so requested. In its accompanying opinion, the District Court, inter alia, rejected petitioners' assertion that the injunction violated their First Amendment right to free speech. The en banc Court of Appeals affirmed.
358 SCHENCK v. PRO-CHOICE NETWORK OF WESTERN N. Y.
Held: The injunction provisions imposing "fixed buffer zone" limitations are constitutional, but the provisions imposing "floating buffer zone" limitations violate the First Amendment. Pp.371-385.
(a) Because Madsen v. Women's Health Center, Inc., 512 U. S. 753, bears many similarities to this case and because many of the parties' arguments depend on the application of Madsen here, the Court reviews that decision. In Madsen, the Court said that "standard time, place, and manner analysis is not sufficiently rigorous" for evaluating contentneutral injunctions that restrict speech, and held, instead, that the test is "whether the challenged provisions ... burden no more speech than necessary to serve a significant government interest." Id., at 765. Pp. 371-374.
(b) Petitioners' argument that no significant governmental interests support the injunction at issue is rejected. Given the factual similarity between this case and Madsen, the Court concludes that the governmental interests underlying the injunction there-ensuring public safety and order, promoting the free flow of traffic on streets and sidewalks, protecting property rights, and protecting a woman's freedom to seek pregnancy-related services, 512 U. S., at 767-768-also underlie the injunction here, and in combination are certainly significant enough to justify an appropriately tailored injunction to secure unimpeded physical access to the clinics. Pp. 374-376.
(c) The floating buffer zones are struck down because they burden more speech than is necessary to serve the relevant governmental interests. Such zones around people prevent defendants-except for sidewalk counselors tolerated by the targeted individual-from communicating a message from a normal conversational distance or handing out leaflets on the public sidewalks. This is a broad prohibition, both because of the type of speech restricted and the nature of the location. Leafletting and commenting on matters of public concern are classic forms of speech that lie at the heart of the First Amendment, and speech in public areas is at its most protected on public sidewalks, a prototypical example of a traditional public forum. See, e. g., Boos v. Barry, 485 U. S. 312, 322. Although a record of abusive conduct sometimes makes a prohibition on classic speech in limited parts of a public sidewalk permissible, see, e. g., Madsen, supra, at 769-770, the Court need not decide whether the governmental interests involved would ever justify a separation zone measured by the distance between targeted individuals and protesters, since the fact that this broad speech prohibition "floats" renders it unsustainable on this record. Protesters on the public sidewalks who wish to communicate their message to a targeted individual and to remain as close as possible (while maintaining an acceptable conversational distance) must move as the individual moves, maintaining 15 feet