dissenting (with whom Judge ALTIMARI concurs):
Today thirteen of this Court’s judges give approval to an injunction that seriously infringes on the constitutional rights of freedom of speech and expression. The reasons for this judgment are stated in two separate opinions, expressing two separate rationales. I refer to the two opinions as the Judge Oakes opinion and the Judge Winter opinion rather than calling either the majority opinion because each has garnered the support of more than half of the members of the in banc court. In my view, neither opinion provides an adequate foundation for the Court’s ultimate decision. I therefore dissent.
A careful examination of the entire record in this ease should lead to one conclusion: the inclusion of both the buffer zone and the cease and desist provisions in the injunction fails the analysis enunciated in Madsen v. Women’s Health Center, — U.S. -, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994). Indeed, as I read the record, what was done by appellants — the picketing, the leafletting, the voicing of protest — was done in the finest tradition of the First Amendment, hardly justifying so sweeping an abridgement of free speech. Regrettably, the majority today concludes otherwise, embarking this Court on an ill-fated journey whose destination is the dilution of the public forum doctrine, the very core of the First Amendment. To such a result I cannot agree.
I
Permeating Judge Oakes’ analysis is the belief that we should simply defer to the district court’s decision, relying on its familiarity with the facts and background of this dispute. In fashioning its injunction, however, the district court proceeded under the “reasonable time, place, and manner” standard. See, e.g., Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 2758, 105 L.Ed.2d 661 (1989); Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45, 103 S.Ct. 948, 954, 74 L.Ed.2d 794 (1983). Subsequently, the Supreme Court decided Madsen, holding that the evaluation of injunctions restricting speech required a “more stringent application of general First Amendment principles.” See — U.S. at -, 114 S.Ct. at 2524. In an attempt to convince the reader that the injunction craft*400ed under the more lenient “time, place, and manner” standard also satisfies the more “rigorous,” id., Madsen standard, Judge Oakes’ opinion ignores much of the record and misstates some of what it does not ignore..
Judge Oakes’ opinion properly acknowledges that the Madsen standard is the appropriate starting point for our analysis of the injunction in this case. Consequently, the opinion purports to apply Madsen’s standard for evaluating the constitutionality of content neutral injunctions restricting expressive conduct in a traditional public forum: “whether the challenged provisions of the injunction burden no more speech than necessary to serve a significant government interest.” Id. at -, 114 S.Ct. at 2525. Indeed, Judge Oakes peppers his opinion with references to the Madsen test, citing to it no fewer than ten times. See, e.g., Oakes op. at Discussion I (“We conclude that the fifteen-foot buffer zones burden no more speech than necessary to accomplish the governmental interests at stake in this case.”); Oakes op. at Discussion II (“We agree, and we conclude that the ‘cease and desist’ provision passes the Madsen test in that it ‘bur-dents] [no] more speech than necessary to accomplish its goal.’ ”). Yet, remarkably, the analysis fails to adhere to Madsen even once, as evidenced by the opinion’s ultimate approval of two provisions of an injunction that clearly ban significantly more speech than necessary to achieve the injunction’s legitimate goals.
A. The Buffer Zone
One who reads the Oakes opinion must wonder how any disagreement (let alone a dissent) could exist ambng members of this Court regarding the so-called buffer zone, given that the opinion leaves the unmistakable impression that the facts of this case are so similar to those in Madsen. See, e.g., Oakes op. at Discussion I (“The Madsen trial court imposed its arguably more restrictive buffer zone on the basis of a record comparable to that considered by the district court in this case.”). This impression is no accident; indeed, it is purposefully created. For without this mischaracterization the opinion simply could not fit this case into the Madsen rule.
In Madsen, despite an earlier injunction prohibiting the protestors from blocking access to the clinic, crowds of up to 400 people stood, knelt and sat in the public street leading up to the clime and in the clinic’s entryways, thereby physically preventing potential patients from entering the clinic and slowing the flow of vehicular traffic. See Operation Rescue v. Women’s Health Center, 626 So.2d 664, 667 (Fla.1993), aff'd in part, rev’d in part, Madsen v. Women’s Health Center, — U.S. -, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994). As patients’ ears approached the clinic driveways, moreover, the throngs swarmed the vehicles, “running along side of and in front of [them], pushing pamphlets in car windows.” Operation Rescue, 626 So.2d at 678 (quoting injunction). The demonstrations at times required the presence of nearly fifty police officers to control the crowds, to ensure the flow of traffic, and to permit patients to enter the clinics. Additionally, the trial court found the demonstrations infused with violence, cataloging the incidents of unlawful acts in its opinion. For instance, threats were made to clinic staff, patients and employees — “[o]n [one] occasion [a clinic] doctor was followed as he left the clinic by a person ... who communicated his anger to the doctor by pretending to shoot him from the adjoining vehicle.” Id. Phone lines were jammed, making it impossible for the clinic to summon emergency aid. The court further noted that stalking of patients and staff was a tactic regularly employed by the demonstrators. In short, the clinic in Mad-sen was subject to the type of “rescue” demonstration activity more aptly described as a “blockade.” See Pro-Choice Network of Western N.Y. v. Project Rescue Western N.Y., 799 F.Supp. 1417, 1424 (W.D.N.Y.1992) (explaining that “blockade” is a large-scale demonstration where demonstrators “sit or lay in the entrances of the clinic in an attempt to block access to and egress from the clinic”).
This appeal also involves demonstrations outside abortion clinics. Unlike Madsen, however, our case does not, as the district court specifically found, involve a full-fledged *401“blockade.” See id. at 1424 n. 5 (“Commendably, there have been no physical ‘blockades’ since the Court issued the [temporary restraining order].”). Rather, on the public sidewalks in front of family planning clinics in the Western District of New York, a group of five to forty activists distributed literature about abortion and abortion alternatives, engaged in “sidewalk counseling” in an effort to inform and educate, picketed, carried signs, sang, participated in prayer vigils, chanted and shouted anti-abortion slogans. The record, moreover, is clear: the protestors obeyed, not disobeyed, the district court’s temporary restraining order (TRO), which prohibited them from blocking access to the clinics. At no time did the appellants organize en masse sit-ins, lay down in entryways, link hands or chain themselves together, trespass on clinic premises, or make any other attempt to physically blockade clinic property in an effort to deprive women of their constitutional right to choose an abortion. Indeed, the demonstrations generally were orderly and peaceful, a fact Judge Oakes himself acknowledges. See Oakes op. at Background II-A (“The demonstrations are mostly peaceful in nature.”); see also Pro-Choice, 799 F.Supp. at 1423. With this more accurate picture of the record in mind, I address the constitutionality of the buffer zone.
Paragraph 1(b) of the injunction creates a “First Amendment free zone” around the clinics, banning, as it does, the entire universe of expressive activity within fifteen feet of the clinics, except for the allowance of two sidewalk counselors. The district court provided for the buffer zone in an effort to ensure “unfettered access” to the clinics as well as to “prevent defendants from crowding patients and invading their personal space.” Pro-Choice, 799 F.Supp. at 1434.1 As the original panel determined, this restriction burdens more speech than necessary to accomplish these goals. See Pro-Choice Network v. Schenck, 67 F.3d 359, 370-371 (2d Cir.1994).
Significantly, paragraph 1(b) is cumulative. Other portions of the injunction, left intact by the panel majority’s opinion, prohibit all obstructionist activities, thereby promoting the aforementioned goals. Specifically, paragraph 1(a) of the injunction, without any buffer zone, prohibits protestors from “trespassing on, sitting in, blocking, impeding, or obstructing access to, ingress into or egress from any facility, including, but not limited to, the parking lots, parking lot entrances, driveways, and driveway entrances, at which abortions are performed.” Indeed, in the words of the district court, paragraph 1(a) covers
obstructing and impeding access to and egress from the clinics, congregating in private driveways and parking lots, surrounding the cars of patients and staff as they try to enter the driveways and parking lots of the clinics, and crowding, shoving or interfering with patients and staff as they approach the clinic on foot.
Pro-Choice, 799 F.Supp. at 1434. Paragraph 1(c), moreover, bars protestors from “physically abusing, grabbing, touching, pushing, shoving, or crowding” any clinic staff member or patient. Id. at 1440 (emphasis added). Finally, paragraph 1(d) enjoins “using any mechanical loudspeaker or sound amplification device or making any excessively loud sound which injures, disturbs, or endangers the health or safety of any patient or employee of a health care facility at which abortions are performed.” Id.
The inescapable conclusion is that “the [buffer] zone provision ... forbids conduct even beyond that which would obstruct or impede access.” Pro-Choice, 67 F.3d at 370. Indeed, within the fifteen-foot buffer zone, the preliminary injunction restricts such sacrosanct First Amendment conduct as holding a placard containing an antiabortion message, passive leafletting or handbilling, silent picketing and even the mere voicing of protest. The Supreme Court, however, consis*402tently has confirmed not only the constitutionally protected status of such activities but their importance in our society. See, e.g., Boos v. Barry, 485 U.S. 312, 318, 108 S.Ct. 1157, 1162, 99 L.Ed.2d 333 (1988) (stating that law prohibiting display of certain signs “operates at the core of the First Amendment”); Carey v. Brown, 447 U.S. 455, 466-67, 100 S.Ct. 2286, 2293, 65 L.Ed.2d 263 (1980) (“Public-issue picketing, an exercise of ... basic constitutional rights in their most pristine and classic form, has always rested on the highest rung of the hierarchy of First Amendment values.”) (quotation and citation omitted, alteration in original); Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 1577, 29 L.Ed.2d 1 (1971) (“This Court has often recognized that the activity of peaceful pamphleteering is a form of communication protected by the First Amendment.”). In light of the extensive protection provided to patients by the other provisions of the injunction, the district court had to establish a specific need for the additional blanket prohibitions imposed by the buffer zone. See Madsen, — U.S. at -, 114 S.Ct. at 2525 (instructing courts to pay “close attention to the fit between the objectives of an injunction and the restrictions it imposes on speech”); Carroll v. President & Comm’rs of Princess Anne, 393 U.S. 175, 184, 89 S.Ct. 347, 353, 21 L.Ed.2d 325 (1968) (instructing courts to tailor injunctive relief “as precisely as possible to the exact needs of the ease”). Here, the record simply does not support such a need.2
In fact, the district court took great pains to note that the demonstrators had complied with the original TRO, which contained no buffer zone provision around clinic entrances. See Pro-Choice, 799 F.Supp. at 1424 & n. 5. The TRO likewise enjoined the demonstrators from “trespassing on, sitting in, blocking, impeding or obstructing access to, ingress into or egress from any facility .... at which abortions are performed.” Id. at 1440. The demonstrators’ post-TRO activities generally did not obstruct or impede access to the clinics, thereby providing no justification for the addition of a buffer zone prohibiting otherwise peaceful protest. Absent evidence that the protestors undermined the district court’s goal of ensuring access, cf. Madsen, — U.S. at -, 114 S.Ct. at 2527-28 (finding failure of first injunction a factor justifying buffer zone), the addition of paragraph 1(b) clearly burdens more speech than necessary to serve the significant government interests relied on by the district court.
In an effort to justify the imposition of the buffer zone the Judge Oakes opinion simply asserts that “despite an initial injunction, protestors continued to impede access to the climes” and that there was an “extensive record documenting Project Rescue’s harassment and intimidation of patients.” Oakes op. at Discussion I. Such ambiguous statements, however, hardly prove adequate to assure the ‘“precision of regulation’” demanded by Madsen. Madsen, — U.S. at -, 114 S.Ct. at 2524 (quoting NAACP v. Claiborne Hardware Co., 458 U.S. 886, 921, 102 S.Ct. 3409, 3430, 73 L.Ed.2d 1215 (1982)). A thorough study of the record fails to convince me that Judge Oakes’ assertions are even justified, given that the pickets were peaceful, there were no threats or acts of violence, and the protestors generally obeyed the TRO. In fact, the bulk of the testimony given at the preliminary injunction hearing pertained to events taking place prior to the *403district court’s granting of the TRO — a factor the district court apparently failed to recognize when establishing the buffer zone.
One can only assume, then, that Judge Oakes relies on the five instances of contempt to which he briefly alludes. See Oakes op. at Background, section I.3 Surprisingly, the opinion fails to analyze these violations of the TRO to support the ultimate finding of the demonstrators’ intransigence, even though close examination of the factual basis for such an essential conclusion is the customary practice in First Amendment cases. See, e.g., Claiborne Hardware, 458 U.S. at 915-16 n. 50, 102 S.Ct. at 3420 n. 50 (“We must make an independent examination of the whole record ... so as to assure ourselves that the judgment does not constitute a forbidden intrusion on the field of free expression.”) (quotations and citations omitted). Importantly, only two of the five contempt violations stemmed from obstructionist behavior, a point well noted in the original panel majority opinion. See Pro-Choice, 67 F.3d at 370.4 One was a March 26, 1991 incident involving Reverends Robert and Paul Schenck in which the two men blocked a doorway to a clinic, and the other was a January 1, 1992 incident involving Reverend Paul Schenck and Daren Drzymala, in which they blocked a facility’s driveway. In no way do I condone such behavior nor denigrate the two findings of contempt. However, the Supreme Court’s First Amendment jurisprudence clearly requires more than two isolated incidents over the course of one and one-half years before a court may banish an entire protest demonstration from a given area. See Claiborne Hardware, 458 U.S. at 915-20, 102 S.Ct. at 3426-29 (discussed infra, Part II).
In sum, while deference must be given to the district court’s findings, “no constitutional freedom, least of all the guarantees of the Bill of Rights, [may] be defeated by insubstantial findings of fact screening reality.” Milk Wagon Drivers Union v. Meadowmoor Dairies, 312 U.S. 287, 293, 61 S.Ct. 552, 555, 85 L.Ed. 836 (1941). The reality here is that the TRO, with similar provisions to the preliminary injunction’s paragraphs 1(a) and (c) and without the over-inclusive buffer zone, effectively secured “unfettered access” to the abortion facilities, thereby making the buffer zone around the clinics more burdensome than necessary under Madsen.
Further demonstrating its failure to adhere to the newly enunciated Madsen test, the Oakes opinion factors that appellants “can still picket, carry signs, pray, sing or chant in full view of people going into the clinic or just passing by,” Oakes op. at Discussion I, into its analysis. Considerations of whether the injunction leaves open alternative channels of communication is an element under the previously used time, place, and manner test, see Ward, 491 U.S. at 791, 109 S.Ct. at 2753, and is not controlling here. As Madsen made clear, “standard time, place, and manner analysis is not sufficiently rigorous” in evaluating injunctions restricting expressive conduct. Madsen, — U.S. at -, 114 S.Ct. at 2525. Indeed, while fifteen feet seems trivial to Judge Oakes, the testimony at the preliminary injunction hearing indicated that with respect to some of the clinics, particularly the one at 1241 Main Street in Buffalo, fifteen feet puts the demonstrators in front of an entirely different building. At other clinics, in more suburban locales, the buffer zone is considerably larger than fifteen feet as a practical matter, unless appellants attempt to protest in the middle of the street. None of appellants’ objectives will be served by a demonstration in front of a building other than one housing an abortion clinic nor at the other end of the block on the other side of the street. As our own Judge Mansfield stated, “the effectiveness of any demonstration depends on its proximity to the target and the relevant audience.” Concerned Jewish Youth v. McGuire, 621 F.2d 471, 482 *404(2d Cir.1980) (Mansfield, J., dissenting), cert. denied, 450 U.S. 913, 101 S.Ct. 1352, 67 L.Ed.2d 337 (1981). Accordingly, on this record I would uphold the panel’s decision to strike the buffer zone as burdening more speech than necessary to achieve the identified goals.
B. The Cease and Desist Provision
I next turn to the cease and desist provision. Judge Oakes today declares that those entering or leaving an abortion clinic comprise a special group of privileged citizens, immune from the rigors imposed by the First Amendment and constitutionally permitted, by virtue of their decision to have an abortion, to muzzle those expressing disagreement with their ultimate choice. In its haste to silence those attempting to dissuade women from terminating their pregnancies, however, the Oakes opinion ignores the First Amendment’s “longstanding refusal to [punish speech] because the speech in question may have an adverse emotional impact on the audience.” Hustler Magazine v. Falwell, 485 U.S. 46, 55,108 S.Ct. 876, 881, 99 L.Ed.2d 41 (1988). As Justice O’Connor once noted in another abortion-related case, “it [is] painfully clear that no legal rule or doctrine is safe from ad hoe nullification ... when an occasion for its application arises in a case involving ... abortion.” Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747, 814, 106 S.Ct. 2169, 2206, 90 L.Ed.2d 779 (1986) (O’Connor, J., dissenting). The Oakes opinion’s holding with respect to the cease and desist provision proves to be no exception. Once again, we see the abortion ad hoe nullification machine at work.
We all agree that Madsen is the appropriate starting point for our analysis. Thus, one would think that Madsen’s treatment of a similar, albeit more restrictive, provision would dictate the outcome here. In Madsen the state court had ordered the demonstrators to refrain from physically approaching any person seeking the services of an abortion clinic ‘“unless such person indicates a desire to communicate’ in an area within 300 feet of the clinic.” Madsen, — U.S. at -, 114 S.Ct. at 2529 (quoting injunction). Assessing the provision, the Madsen Court found that it would be difficult to justify enjoining “all uninvited approaches of persons seeking the services of [a] clinic, regardless of how peaceful the contact may be, without burdening more speech than necessary to prevent intimidation and to ensure access to the clinic.” Id. at -, 114 S.Ct. at 2529. Thus, without evidence that the sidewalk counselors’ intended communications were “independently proscribable (i.e., ‘fighting words’ or threats), or [were] so infused with violence as to be indistinguishable from a threat of physical harm,” and none was presented, the provision could not stand. Id. (citation omitted).
Here, as in Madsen, no evidence was introduced before the district court indicating that the attempts of the sidewalk counselors at communicating with the prospective patients, however emotionally charged those encounters might have been, transcended the bounds of protected speech. The communications were not “independently proscriba-ble,” that is, they did not fall into the category of “fighting words” — speech which provokes immediate violence, Chaplinsky v. New Hampshire, 315 U.S. 568, 574, 62 S.Ct. 766, 770, 86 L.Ed. 1031 (1942) — nor could the communications be perceived as so infused with violence as to be indistinguishable from a threat of physical harm. See Milk Wagon Drivers, 312 U.S. at 292-93, 61 S.Ct. at 554-55. Therefore, like the no approach provision in Madsen, see Madsen, — U.S. at -, 114 S.Ct. at 2529, the cease and desist provision at issue in this in banc is incompatible with the most basic principle of free expression: “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.’ ” Boos, 485 U.S. at 322, 108 S.Ct. at 1164 (quoting Falwell, 485 U.S. at 56, 108 S.Ct. at 882). Accordingly, the original panel majority, like the Court in Madsen, found that the cease and desist provision burdened more speech than necessary to serve the previously identified government interests. See Pro-Choice, 67 F.3d at 371-72.
Judge Oakes seeks to avoid the controlling ramifications of Madsen and to justify a total *405departure from its holding by seizing on any distinction, however insignificant, between the two cases. Thus, he tells us that the cease and desist provision here “is far more solicitous of the demonstrators’ right to approach their target audience” than the one examined in Madsen, Oakes op. at Discussion II, as the provision does not completely prohibit sidewalk counselors from initiating conversation with potential counselees. This difference, while real, can hardly serve as the basis for such disparate treatment. Both provisions similarly prove problematic in that they confer on potential counselees the right to control the ability of the sidewalk counselors to engage in otherwise protected expressive speech in a public forum. See Madsen, — U.S. at -, 114 S.Ct. at 2529 (“The ‘consent’ requirement alone invalidates this provision.”). Indeed, while the cease and desist provision provides for no express consent requirement, as did the no approach provision in Madsen, it does so sub silentio, and thereby runs afoul of the First Amendment. See Boos, 485 U.S. at 322, 108 S.Ct. at 1164; Street v. New York, 394 U.S. 576, 592, 89 S.Ct. 1354, 1365, 22 L.Ed.2d 572 (1969) (“It is firmly settled that under our Constitution the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.”).
Judge Oakes attempts to circumvent this well-entrenched tenet of First Amendment jurisprudence by reliance on the captive audience doctrine. But it is only where an unreceptive audience is truly “captive” that courts will assure the listener protection from offensive speech. The Supreme Court principally has limited application of the captive audience doctrine in the traditional public forum to those cases in which the speaker intrudes on the privacy of the home or its environs, for the “resident is figuratively, and perhaps literally, trapped within the home.” Frisby v. Schultz, 487 U.S. 474, 487, 108 S.Ct. 2495, 2504, 101 L.Ed.2d 420 (1988) (upholding ordinance banning picketing outside private residences); see also Florida Bar v. Went For It, Inc., — U.S. -, 115 S.Ct. 2371, 132 L.Ed.2d 541 (1995) (upholding ban on lawyer direct-mail solicitations to accident victims and their relatives); Rowan v. United States Post Office Dep’t, 397 U.S. 728, 90 S.Ct. 1484, 25 L.Ed.2d 736 (1970) (upholding statute that allowed householder to remove name from junk mail lists); Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513 (1949) (upholding ban on amplified sound trucks in residential neighborhoods); see generally Eugene Volokh, Freedom of Speech and Workplace Harassment, 39 UCLA L.Rev. 1791, 1832-43 (1992) (arguing captive audience doctrine should not apply to listéners outside their homes). Outside of this context the doctrine has been used sparingly — only when “the degree of captivity makes it impractical for the unwilling viewer or auditor to avoid exposure,” Erznoznik v. City of Jacksonville, 422 U.S. 205, 209, 95 S.Ct. 2268, 2272, 45 L.Ed.2d 125 (1975) (emphasis added), i.e., where the audience is physically constrained by its environment. See Lehman v. Shaker Heights, 418 U.S. 298, 307, 94 S.Ct. 2714, 2719, 41 L.Ed.2d 770 (1974) (Douglas, J., concurring) (recognizing riders on public bus to be a captive audience); cf. Young v. New York City Transit Auth., 903 F.2d 146, 158 (2d Cir.) (noting in dicta that passengers riding on subway are akin to a captive audience), cert. denied, 498 U.S. 984, 111 S.Ct. 516, 112 L.Ed.2d 528 (1990).
It is difficult to see how a person approaching a clinic on a public street or sidewalk can feel a captive of two counselors who are limited to non-threatening speech and are prohibited from “physically abusing, grabbing, touching, pushing, shoving or crowding” the entrant. In fact, in such traditional public fora the Supreme Court consistently has stressed that the conflict between the right of speakers to disseminate their message, however unpleasant, and the desire to protect individuals from hearing it should be resolved in favor of the First Amendment. See, e.g., Erznoznik, 422 U.S. at 212, 95 S.Ct. at 2274 (rejecting captive audience doctrine as basis for upholding ordinance banning the showing of films containing nudity on drive-in movie screens: “The ordinance seeks only to keep these films from being seen from public streets and places where the offended viewer readily can avert his eyes.... Thus, we conclude that the limited privacy interest of persons on public streets cannot justify *406this censorship of otherwise protected speech on the basis of its content.”); Spence v. Washington, 418 U.S. 405, 412, 94 S.Ct. 2727, 2731, 41 L.Ed.2d 842 (1974) (per curiam) (rejecting captive audience doctrine as basis for statute prohibiting improper use of the flag, as “[ajnyone who might have been offended could easily have avoided the display”); Cohen v. California, 403 U.S. 15, 21, 91 S.Ct. 1780, 1786, 29 L.Ed.2d 284 (1971) (reversing conviction based on display of profanity in public courthouse, as those unsettled by speaker’s message “could effectively avoid further bombardment of their sensibilities simply by averting their eyes”); see also International Soc’y for Krishna Consciousness v. Lee, 925 F.2d 576, 586 (2d Cir.1991) (Oakes, G.J., dissenting) (arguing that travelers in airport are not a captive audience as “the Constitution requires those who are offended by the Erishnas to avoid further bombardment ... by averting their eyes”) (quotation omitted), aff'd in part on other grounds, 505 U.S. 672, 112 S.Ct. 2709, 120 L.Ed.2d 669 (1992). By holding otherwise, Judge Oakes’ opinion today pushes the captive audience doctrine further than any appellate court has ever gone — and to a holding completely unsupported by any precedent in our case law.5
Significantly, patients approaching the clinics are not powerless to avoid the message of the sidewalk counselors. Those unwilling to accept non-threatening counseling remain free to do so — however insistent the sidewalk counselors may be, the counselee on the public street or sidewalk can escape the unwanted message simply by continuing to walk towards and entering the clinic. Cf. Lehman, 418 U.S. at 307, 94 S.Ct. at 2719 (Douglas, J., concurring) (“One who hears disquieting or unpleasant programs in public places ... can get up and leave. But the man on the streetcar has no choice but to sit and listen.”) (quotation omitted). As long as the injunction ensures access to the clinics, which it clearly-does, the right to refuse sidewalk counseling remains secure. Moreover, patients are not forced or compelled to read any of the literature distributed to them outside the clinics. See Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 78, 103 S.Ct. 2875, 2886, 77 L.Ed.2d 469 (1983) (Rehnquist, J., concurring) (“the recipient ... ‘may escape exposure to objectionable material simply by transferring [it] from envelope to wastebasket’ ”) (quoting Consolidated Edison Co. v. Public Serv. Comm’n of N.Y., 447 U.S. 530, 542, 100 S.Ct. 2326, 2336, 65 L.Ed.2d 319 (1980)) (alteration in original). While counselors may cause distress to those attempting to enter the clinics, such offense is an inevitable cost of free expression under the First Amendment. “[A] function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.” Terminiello v. Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 895, 93 L.Ed. 1131 (1949). This may be small comfort to those confronted with sidewalk counseling but, as Justice Brennan once wrote, “that minor inconvenience is a small price to pay for the continued preservation of so precious a liberty as free speech.” Lehman, 418 U.S. at 320-21, 94 S.Ct. at 2726 (Brennan, J., dissenting).
■ Indeed, the patient here is about to choose a course of conduct that is final and irreversible — the termination of the life of a fetus. The choice is a difficult one, perhaps made more so because the information conveyed by the sidewalk counselors may cause the patient to question the wisdom or morality of the earlier decision to terminate the pregnancy. This fact, however, is no reason to give the message less protection than we accord other unwelcome speech, see, e.g., Olivieri v. Ward, 801 F.2d 602, 606-08 (2d Cir.1986) (permitting homosexual group and counter-demonstrators to protest outside St. Patrick’s Cathedral), cert. denied, 480 U.S. 917, *407107 S.Ct. 1371, 1372, 94 L.Ed.2d 687 (1987), commercial speech, see, e.g., New York State Ass’n of Realtors v. Shaffer, 27 F.3d 834, 844 (2d Cir.), cert. denied, - U.S. -, 115 S.Ct. 511, 130 L.Ed.2d 418 (1994), and even pornography. See, e.g., Carlin Communictions v. FCC, 749 F.2d 113, 121-23 (2d Cir.1984) (invalidating regulations on telephone “dial-a-porn” services). It is a sad day for the First Amendment when a message intended to inform women of the consequences of undergoing an abortion occupies a lower rung of protection than that enjoyed by a commercial message on a billboard, see National Advertising Co. v. Town of Babylon, 900 F.2d 551, 556-57 (2d Cir.), cert. denied, 498 U.S. 852, 111 S.Ct. 146, 112 L.Ed.2d 112 (1990), or sexually explicit literature. See 75b Orange Ave. Inc. v. City of West Haven, 761 F.2d 105, 111-13 (2d Cir.1985).
Judge Oakes additionally attempts to justify this gagging of the protestors by asserting that the provision provides “a vulnerable group of medical patients with some relief from the duress caused by unwelcome physical proximity to an extremely vocal group of demonstrators.” Oakes op. at Discussion II. If it is only “unwelcome physical proximity” that needs to be prevented, however, then surely there are ways to do so short of banishing the entire practice of sidewalk counseling at the command of the counselee. See Claiborne Hardware, 458 U.S. at 916, 102 S.Ct. at 3427 (demanding “precision of regulation” in injunctions prohibiting constitutionally protected activity) (quotation omitted).6 But to say that sidewalk counseling may be regulated is not to say that it may be prohibited in its entirety, certainly not at the will of those who dislike the message. See Bolger, 463 U.S. at 71, 103 S.Ct. at 2883 (“[W]e have consistently held that the fact that protected speech may be offensive to some does not justify its suppression.”) (quoting Carey v. Population Servs. Int'l 431 U.S. 678, 701, 97 S.Ct. 2010, 2024, 52 L.Ed.2d 675 (1977)). Indeed, even amicus American Civil Liberties Union, which generally supports appellees’ position on the injunction, views the cease and desist provision as too restrictive in this respect.
Further, Judge Oakes’ reasoning leads me to question the content (and viewpoint) neutrality of the cease and desist provision.7 He claims that it is the demonstrators’ physical proximity that is regulated rather than their message, thus making the provision content and viewpoint neutral. Testimony largely ignored by the opinion, however, indicates that another “extremely vocal group,” the group of patient escorts, is allowed to get physically close to this “vulnerable group of medical patients,” often even closer than the sidewalk counselors themselves. As the district court noted,
[T]he patient escorts also become frustrated and angry by the persistence of the “sidewalk counselors.” The patient escorts often respond by raising their voices in order to drown out the “counselors’” message, and attempt to block and impede the “sidewalk counselors” from following the patients.... [T]he evidence adduced at the hearings clearly shows that their behavior often serves only to exacerbate an already difficult situation.
Pro-Choice Network, 799 F.Supp. at 1425 n.
6. If the cease and desist provision truly was aimed at extremely vocal groups who come within “unwelcome physical proximity” to clime patients, then the escorts no doubt should be included in the injunction’s coverage. That they are not, see Oakes op. at n. 5, leads to an inescapable conclusion: Judge Oakes’ term “unwelcome” does not refer to the physical proximity of the demonstrators, but to their message. Such censorship is entirely impermissible under the First Amendment. See Forsyth County v. Nationalist Movement, 505 U.S. 123, 134, 112 S.Ct. 2395, 2403, 120 L.Ed.2d 101 (1992) (“Listeners’ reaction to speech is not a content-neu*408tral basis for regulation.”); R.A.V. v. City of St. Paul, 505 U.S. 377, 381-82, 112 S.Ct. 2538, 2542, 120 L.Ed.2d 305 (1992) (“The First Amendment generally prevents government from proscribing speech ... because of disapproval of the ideas expressed.”); Boos, 485 U.S. at 321, 108 S.Ct. at 1163. I need not dwell on this point for long, as even under the less than strict scrutiny test for content-neutral restrictions on speech, the “cease and desist” provision fails to pass constitutional muster.
I would uphold the panel’s decision to strike the cease and desist provision as burdening more speech than necessary to achieve the significant interests identified by the district court.
II
Judge Winter’s concurring opinion reiterates the unassailable 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.” See, e.g., Grayned v. City of Rockford, 408 U.S. 104, 116, 92 S.Ct. 2294, 2303, 33 L.Ed.2d 222 (1972) (“Of course, where demonstrations turn violent, they lose their protected quality as expression under the First Amendment.”) (footnote omitted); Milk Wagon Drivers, 312 U.S. at 298, 61 S.Ct. at 557 (holding an injunction banning picketing was “justified only by the violence that induced it and only so long as it counteracts a continuing intimidation”). Where attempts to persuade others through the application of force rather than persuasion by reason occur, of course courts should not hesitate to sanction and enjoin such conduct. Indeed, on this ground the original panel majority affirmed the issuance of the preliminary injunction in the first instance and upheld those portions of the injunction restraining the protestors from engaging in violent, unduly coercive or obstructionist behavior. See, e.g., Preliminary Injunction, ¶ 1(a) (barring trespassing, blocking or impeding access to clinics); ¶ 1(c) (enjoining “physically abusing, grabbing, touching, pushing, shoving, or crowding” of clinic patients or staff); ¶ 1(d) (prohibiting “making any excessively loud sound which injures, disturbs, or endangers the health or safety of any patient or employee”).
Where Judge Winter and I part company is in his apparent belief that we may uphold an injunction that sweepingly denies appellants their constitutional right to express their views peaceably without an extensive record documenting coercive, obstructionist or violent conduct. As I read the relevant Supreme Court case law, before an injunction banning both protected and non-protected demonstrative activity may be justified there first must be a showing that such coercive behavior is pervasive, “coloring] the entire collective effort,” Claiborne Hardware, 458 U.S. at 933, 102 S.Ct. at 3436, thereby leading to the conclusion that the offending aspects of a demonstration cannot be separately and less intrusively controlled by any means other than eliminating all peaceful forms of protest. See, e.g., Milk Wagon Drivers, 312 U.S. at 294-96, 61 S.Ct. at 555-56 (upholding injunction on peaceful picketing “to prevent future coercion” because the protesting “was set in a background of violence” which was “neither episodic nor isolated”). This is the very essence of Madsen’s “burdens no more speech than necessary” test. See Madsen, — U.S. at -, 114 S.Ct. at 2526 (‘We think a standard requiring that an injunction ‘burden no more speech than necessary exemplifies ‘precision of regulation.’ ”) (footnote omitted) (quoting Claiborne Hardware, 458 U.S. at 916, 102 S.Ct. at 3427). Indeed, if Madsen's “burdens no more speech than necessary” requirement may be satisfied merely by pointing to a few isolated instances of coercive or obstructionist behavior in a protest, it is not much of a requirement at all.
Perhaps no case better illustrates this point than Claiborne Hardware. Claiborne Hardware also involved protest demonstrations where protected forms of expression were intermixed with unduly coercive activity, far more coercive than that encountered in our case. The protests at issue there centered around a boycott of white-owned businesses by a group of Blacks seeking racial equality and integration. During the boycott “sporadic acts of violence ensued.” 458 U.S. at 902, 102 S.Ct. at 3420. For instance Charles Evers, the leader of the boycott, told a group that “boycott violators would be ‘disciplined’ by their own people *409and warned that the Sheriff could not sleep with boycott violators at night.” Id. Evers further stated: ‘“If we catch any of you going in any of them racist stores, we’re gonna break your damn neck.’” Id. (footnote omitted). In support of the boycott peaceful and orderly pickets were organized outside of white-owned stores. Further, “store watchers” were posted outside of the boycotted stores to identify those who did business with the merchants. Id. at 90S, 102 S.Ct. at 3420. The names of these violators were read at meetings of the local NAACP chapter and published in a local Black newspaper. These boycott violators “were branded as traitors to the black cause, called demeaning names, and socially ostracized for merely trading with whites.” Id. at 904, 102 S.Ct. at 3421 (quotation omitted). Some, moreover, had shots fired at their houses, bricks thrown through their windshields and had their property damaged.
In response the trial court issued a broad permanent injunction. The order enjoined the protestors from stationing the “store watchers” at white-owned businesses; from “persuading” anyone from breaking the boycott; from “using demeaning and obscene language to or about any person” who continued to trade with white-owned businesses; from picketing outside the white-owned businesses; and from employing any violence against any person or causing damage to any property. Id. at 893, 102 S.Ct. at 3415. Despite the evidence of acts of violence and intimidation the Supreme Court nonetheless set aside the injunction. The Court stated that isolated acts of non-First Amendment protected activity could not justify a complete prohibition on all protected forms of expression. Indeed, the Claiborne Hardware Court went on to say:
A massive and prolonged effort to change the social, political, and economic structure of a local environment cannot be characterized as a violent conspiracy simply by reference to the ephemeral consequences of relatively few violent acts. Such a characterization must be supported by findings that adequately disclose the evidentiary basis for concluding that specific parties agreed to use unlawful means, that carefully identify the impact of such unlawful conduct, and that recognize the importance of avoiding the imposition of punishment for constitutionally protected activity. The burden of demonstrating that fear rather than protected conduct was the dominant force in the movement is heavy. A court must be wary of a claim that the true color of a forest is better revealed by reptiles hidden in the weeds than by the foliage of countless free-standing trees.
Id. at 933-34, 102 S.Ct. at 3436.
I fear that Judge Winter’s concurring opinion looks to the proverbial reptiles of this protest to justify the blanket ban on expression imposed by both the buffer zone and cease and desist provisions. Because I believe that appellees have failed to satisfy their “heavy” burden of demonstrating that the instances of coercion and otherwise unprotected conduct were so pervasive as to color the entire demonstrations, I remain firm in my belief that these provisions unconstitutionally restrict appellants’ First Amendment rights.
Ill
I am confident that the members of our Court will soon come to regret the damage wrought to our First Amendment jurisprudence. Under either rationale offered for today’s result the Court effectively reduces Madsen’s “burdens no more speech than necessary” test to a mere cliché.
I dissent.
. The Oakes opinion asserts that the safe performance of abortions was also a goal of the district court in effectuating the buffer zone. The district court, however, never gave this as a stated reason. See Pro-Choice, 799 F.Supp. at 1434. Moreover, Judge Oakes offers no explanation whatsoever as to the correlation between the creation of fifteen foot bubble zones around the clinics and the safe performance of abortions in the clinics.
. The Oakes opinion, quoting the district court with approval, states that appellants’ "noisy, disruptive, invasive, threatening and intimidating activities are clearly inappropriate in [this] setting.” Oakes op. at Discussion I (quoting Pro-Choice, 799 F.Supp. at 1434). While perhaps not obvious from the opinion, these demonstrations did not occur within the health care facilities, they took place on the public sidewalks of the Western District of New York. On public sidewalks, the quintessential public forum, see United States v. Grace, 461 U.S. 171, 177, 103 S.Ct. 1702, 1706, 75 L.Ed.2d 736 (1983), "expressive activity will rarely be incompatible with the intended use of the property, as is evident from the facts that they are 'natural and proper places for dissemination of information and opinion,’ Schneider v. State, 308 U.S. 147, 163 [60 S.Ct. 146, 151, 84 L.Ed. 155] (1939), and from 'time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.' Hague v. CIO, 307 U.S. [496,] 515 [59 S.Ct. 954, 964, 83 L.Ed. 1423] [(1939)].” Cornelius v. NAACP Legal Defense & Educ. Fund, 473 U.S. 788, 817, 105 S.Ct. 3439, 3457, 87 L.Ed.2d 567 (1985) (Blackmun, I., dissenting).
. While Judge Oakes correctly notes that there were six civil contempt motions filed, there were only five contempt judgments entered. The district court found that Pro-Choice had failed to meet its burden of proving one of the incidents alleged. See Pro-Choice Network v. Walker, 994 F.2d 989, 993 (2d Cir.1993).
. The other incidents involved the contemnors' failure to observe the TRO's “cease and desist” provision, a provision whose fatal defects I discuss below.
. The Oakes opinion’s selective quoting from Madsen notwithstanding, that case cannot be read as support for the use here of the “captive audience" doctrine. The Madsen Court simply recognized that women in the clinic were "held 'captive' hy medical circumstance,” Madsen, - U.S. at -, 114 S.Ct. at 2526, thus supporting some of the injunction's restrictions, for example, those on banning loud noise levels or prohibiting the use of sound amplification equipment. This, however, does not mean that the women approaching the clinic are captive, and nothing in Madsen can be read as so holding.
. Ironically, by forcing the counselors to withdraw fifteen feet and to “continue advocating his or her beliefs to the woman who has refused them” from that distance, Oakes op. at Discussion II, the injunction as modified by the Oakes opinion forces those who wish to exercise their First Amendment rights to resort to raising their voices, which inevitably leads to a more hostile environment — something to be avoided.
. I note that the Madsen Court left open the question of whether the no approach provision was content-based. See Madsen, -U.S. at n. 6, 114 S.Ct. at 2529 n. 6.