Pro-Choice Network of Western New York v. Schenck

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ALTIMARI, Circuit Judge,

dissenting:

I am saddened by our holding today. Because I believe that the majority of the Court has departed from a proud tradition of zealously protecting the most fundamental of the freedoms bequeathed to us by our forefathers — the right to speak freely, on a sidewalk or street corner — I respectfully dissent. Unlike the challenged injunction, which I agreed in the original majority opinion was content neutral, I believe that Judge Oakes’s decision is content based. Were abortion not the issue, our original disposition would have occasioned little interest and no notoriety. I write separately only to add a few thoughts to the fine dissenting opinion of Judge Mes-kfll, in which I concur.

In Madsen v. Women’s Health Center, Inc., — U.S. -, 114 S.Ct. 2516, 129 *410L.Ed.2d 593 (1994), the Supreme Court articulated a new test to be applied to content-neutral injunctions. The original panel opinion did nothing more than apply the new standard to the injunction issued by the district court. We concluded that two of the several challenged provisions burdened more speech than necessary and thus violated the rule established in Madsen. Having searched thoroughly the record, I am at peace with our initial conclusion. Despite the preferred status that has been conferred upon pure speech as exercised in traditional public fora, both majorities today disregard their solemn duties to jealously guard that speech.

The “floating bubble zone” established by the district court, and now reaffirmed by the Court, is an unprecedented and unwarranted incursion on freedom of speech. In Madsen, reviewing a factual record that revealed far more intransigence than was present here, the Court upheld a 36 foot buffer zone to “protect[] unfettered ingress to and egress from the clinic,” — U.S. at -, 114 S.Ct. at 2527, and to ensure that the protesters did not block traffic on the narrow street that afforded vehicular access to the clinic parking lot. The bubble zone was justified by two conditions: (1) protesters whose zeal and belligerence demanded some sort of buffer zone; and (2) a physical setting that left the state court with “few other options to protect access” to the clinic. Id. As is clear from the original majority opinion, neither of these circumstances obtains here.

Had the protesters in question today in fact infringed the rights of the women seeking access to the clinic, I would be the first to uphold restraints against them. I remain persuaded, however, that the protesters tread only upon the sidewalks and streets — a protected setting for the free exercise of persuasive speech — and not upon the constitutional rights of those individuals seeking access to the clinics. Without reciting a record already familiar to the reader, I shall say only that I am perplexed by the Court’s apparent disregard of the district court’s commendation of Project Rescue’s compliance with the TRO, see Pro-Choice Network of Western New York v. Project Rescue Western New York, 799 F.Supp. 1417, 1424 n. 5 (W.D.N.Y.1992), a finding that speaks volumes to the lack of necessity for this overreaching injunction. Further, it is undisputed that the unusually restrictive physical setting of the Madsen clinic is not duplicated here. It is clear that here, where most of the injunction was upheld, see, e.g., Injunction ¶ 1(c) (precluding crowding); see also Pro-Choice Network v. Schenck, 67 F.3d at 372-374 (2d Cir.1994), any bubble zone is more burdensome than necessary, much less one which amorphously wafts along immuring any individual coming or going from the clinic. The insidious nature of the bubble is apparent when one considers that it is (1) invisible: a protester may not know that a person has stepped inside a bubble; and (2) chillingly ill-defined: not only does the injunction fail to identify the distance a bubble may travel, but, even if the distance were somehow divined by the district court, a protester has no way of ascertaining that information.

The Court’s treatment of the “cease and desist” provision is even more disquieting. As the Supreme Court has instructed, in certain “traditional settings ... First Amendment values inalterably prevail.” Lehman v. City of Shaker Heights, 418 U.S. 298, 302, 94 S.Ct. 2714, 2717, 41 L.Ed.2d 770 (1974). In this case, the restrained speech occurred on streets and sidewalks outside health facilities. Yet the Court today chooses to disregard the very foundation upon which our First Amendment freedoms are built. It is axiomatic that “all public streets are held in the public trust and are properly considered traditional public fora.” Frisby v. Schultz, 487 U.S. 474, 481, 108 S.Ct. 2495, 2500, 101 L.Ed.2d 420 (1988). Accord Madsen, — U.S. at -, 114 S.Ct. at 2522 (public sidewalks are public fora); Lehman, 418 U.S. at 303, 94 S.Ct. at 2717 (traditional public fora include open spaces, meeting halls, parks, and street corners). And, as perhaps we all need reminding,

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. Speech is often provocative and challenging. It may strike at prejudices and preconceptions *411and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.

Terminiello v. City of Chicago, 337 U.S. 1,4-5, 69 S.Ct. 894, 896, 93 L.Ed. 1131 (1949) (citations omitted).

Resort by the Court to the “captive audience” eases as an effort to evade these bedrock principles rings hollow. The teaching of the captive audience cases is that speech aimed at citizens who are in a place “ ‘as a matter of necessity, not of choice,’ ” Lehman, 418 U.S. at 303, 94 S.Ct. at 2717 (quotation omitted), may be entitled to less protection than speech aimed at citizens who could freely exercise the option to go elsewhere. See, e.g., Frisby, 487 U.S. at 484-85, 108 S.Ct. at 2502-03; Lehman, 418 U.S. at 302-03, 94 S.Ct. at 2716-17 (captive audience on public transportation); Young v. New York City Transit Authority, 903 F.2d at 158 (same). The character of the street — abutting a medical facility — “may well inform the application of the relevant test, but it does not lead to a different test; the [disputed restriction] must be judged against the stringent standards [the Supreme Court has] established for restrictions on speech in traditional public fora_” Frisby, 487 U.S. at 481, 108 S.Ct. at 2500. Moreover, as the Supreme Court directed in Madsen, we are to apply an even more stringent test than the familiar time, place and manner analysis where injunctive relief is concerned. The Court today flouts that instruction.

I do not dispute that people seeking access to clinics may be, in some sense of the word, “captives.” That label, however, suggests only that the state consequently has a legitimate interest in sheltering their physical and psychological well-being. I have no objection to that laudable goal. It is with respect to how that objective is accomplished that I part ways with my colleagues. To my mind, it cannot be said that a prohibition on signs within fifteen feet of an unwilling listener “burden[s] no more speech than necessary.” Nor, I think, can it be said that vesting unwilling listeners — even those “en route to a destination,” — with the absolute power to banish speech to a distance of fifteen feet from a moving target burdens no more speech than necessary. The Court’s ability to construe these provisions such that they pass constitutional muster puts me in mind of Lewis Carroll’s classic passage:

“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean — neither more nor less.”
“The question is,” said Alice, “whether you can make words means so many different things.”
“The question is,” said Humpty Dumpty, “which is to be master — that’s all.”

Alice Through the Looking Glass, Lewis Carroll (1872).

The district court properly found the facts. The Supreme Court gave us the law. And the original majority faithfully applied it, without regard for the subject of the dispute that occasioned issuance of the injunction. The new majorities, however, have sacrificed not only our proper role — to remand a con-eededly flawed injunction for correction by the district court — but also, in the bargain, the “preferred position” of the First Amendment, see Beauharnais v. Illinois, 343 U.S. 250, 285, 72 S.Ct. 725, 745, 96 L.Ed. 919 (1952) (Black, J., dissenting). The question now is “which is to be master — that’s ail.”

As a result, we have compromised [t]he free trade in ideas which the Framers of the Constitution visualized.... In its place there is substituted a new orthodoxy — an orthodoxy that changes with the whims of the age or the day, an orthodoxy which the majority by solemn judgment proclaims to be essential to the safety, welfare, security, morality, or health of society. Free speech in the constitutional sense disappears. Limits are drawn — limits dictated by expediency, political opinion, prejudices or some other desideratum of legislative action.

Id.

Like Alice, I am befuddled by the whimsy effected today. I dissent.