dissenting.
By voice, pamphlet or placard some citizens of the United States are actively engaged in a vigorous debate on the sidewalks, streets and other public places adjacent to health care facilities located in cities and towns across the country. The debate is also heard in the nation’s capítol.1
*1174Unlike the Senators who are given a privilege on the floor of the Senate, the citizen demonstrators in this case claim a right to free speech protected by the First Amendment. So it is that I address the question whether speech incident to demonstration activity in the vicinity of health care facilities may be proscribed by city ordinance.
The City of Phoenix enacted Ordinance No. G3705 requiring any person engaged in demonstration activity within 100 feet of a health care facility to withdraw at least eight feet away from any person who requests it. Because I believe the ordinance is not narrowly tailored and overly burdens protected speech, I respectfully dissent.
I
In 1993, due to concerns about harassment outside health care facilities, the City of Phoenix enacted an ordinance limiting “demonstration activity” near such clinics. The ordinance in effect allowed individuals within 100 feet of all designated facilities to create a “bubble” around themselves. The ordinance requires all persons engaging in “demonstration activity” to withdraw a distance of eight feet when requested to do so. Specifically, the ordinance provides:
ORDINANCE NO. G3705
AN ORDINANCE AMENDING CHAPTER 23, ARTICLE 1 OF THE PHOENIX CUT CODE, BY ADDING SECTION 23-10.1, RELATING TO UNIMPEDED ACCESS TO HEALTH CARE FACILITIES; AND DECLARING AN EMERGENCY.
WHEREAS, unimpeded access to health care services is critically and uniquely important to the public health, safety and welfare; and
WHEREAS, persons attempting to access health care facilities are subject to harassing or intimidating activity tending to impede their access to those facilities by demonstrators approaching within extremely close proximity; and
WHEREAS, such activity near health care facilities creates a “captive audience” situation where persons seeking services cannot avoid the area outside the facilities, and their physical and emotional conditions may make them especially vulnerable to the adverse physiological and emotional effects of such harassing or intimidating activities directed at them from extremely close proximity; and
WHEREAS, such activity in extremely close proximity tends to undermine a person’s right to privacy and interference with a person’s right to seek legitimate health care treatment and counseling; and
WHEREAS, this ordinance does not preclude all protesting, picketing, demonstrating, leafleting [sic] or educational activities near a health care facility but is a necessary time, place and manner restriction intended to reconcile and protect the First Amendment rights of demonstrators and the rights of persons using health care facilities to be free from direct confrontation, hindrance, harassment, intimidation and harm; and
WHEREAS, existing law does not adequately protect such access to health care facilities; NOW THEREFORE,
*1175BE IT ORDAINED by the Council of the City of Phoenix as follows:
SECTION 1. Chapter 23, Article 1, Phoenix City Code, is amended by adding section 23-10.1 to read:
Sec. 23-10.1 IMPEDING ACCESS TO HEALTH CARE FACILITIES.
A It is unlawful for any person, in the course of demonstration activity within the access area of a health care facility, to fail to withdraw upon a clearly communicated request to do so to a distance of at least eight (8) feet away from any person who has made the request.
B. For purposes of this section:
1. “Access area” means any portion of a public street or other public place or any place open to the public within one hundred (100) feet of an exterior wall or entryway of a health care facility.
2. “Demonstration activity” includes but is not limited to protesting, picketing, distributing literature, attempting to impede access, or engaging in oral protest, education or counseling activities.
3. “Health care facility” means any hospital, clinic, office, building or other place used to provide medical, psychological, nursing or other health care services, including family planning counseling and pregnancy-related services.
C. For purposes of this section, distance shall be measured from that part of the closest demonstrator’s body that is nearest to the closest part of the requesting person’s body. The term “body” includes any natural or artificial extension of a person’s body including but not limited to an outstretched arm or a hand-held sign.
SECTION 2. WHEREAS, the immediate operation of the provisions of this ordinance is necessary for the preservation of the public peace, health and safety, an EMERGENCY is hereby declared to exist, and this ordinance shall be in full force and effect from and after its passage by the Council as required by the City Charter and is hereby exempted from the referendum clause of said Charter.
PASSED by the Council of the City of Phoenix this 17th day of November, 1993.
Katherine Sabelko and Nancy Barto (collectively “Sabelko”) are pro-life leafletters and “sidewalk counselors” who engage in activity outside abortion clinics in Phoenix. As sidewalk counselors they distribute literature and attempt to orally communicate the alternatives to abortion. After the passage of the ordinance, Sabelko curtailed her activities and speech because of fear of prosecution under the ordinance. Viewing the ordinance as an unconstitutional infringement of speech, Sabelko filed this action pursuant to 42 U.S.C. § 1983 seeking declaratory and injunctive relief. The district court granted the injunction and declared the ordinance unconstitutional. The City of Phoenix timely appealed.
II
The first step in any First Amendment inquiry is to determine whether the ordinance is content or viewpoint neutral. I agree with the court’s opinion that the ordinance is content-neutral and I will not repeat that analysis. A content-neutral restriction on speech must be “‘narrowly tailored to serve a significant governmental interest, and ... leave open ample alternative channels for communication of the information.’ ” Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 2753, 105 L.Ed.2d 661 (1989) (quoting Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 3069, 82 L.Ed.2d 221 (1984)). Narrow tailoring requires that the means chosen do not “burden substantially more speech than is necessary to further the government’s legitimate interests.” Id., 491 U.S. at 799, 109 S.Ct. at 2758. More precisely; “[a] statute is narrowly tailored if it targets and eliminates no more than the exact source of the ‘evil’ it seeks to remedy.” Frisby v. Schultz, 487 U.S. 474, 485, 108 S.Ct. 2495, 2503, 101 L.Ed.2d 420 (1987).
It is undeniable that the City of Phoenix’s interest in protecting access to health care facilities is substantial. The government “has a strong interest in protecting a worn-*1176an’s freedom to seek lawful medical or counseling services in connection with her pregnancy.” Madsen v. Women’s Health Center, Inc., — U.S. -, -, 114 S.Ct. 2516, 2526, 129 L.Ed.2d 593 (1994). On its face the ordinance appropriately seeks to protect the users of the facilities from “harassing or intimidating activity tending to impede ... access to those facilities,” and the “adverse physiological and emotional effects” of the harassment. Although the City of Phoenix’s interests are sufficiently substantial to support an appropriately tailored ordinance, Ordinance No. G3705 lacks such tailoring.
It is a touchstone of First Amendment jurisprudence that “[government may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals.” Ward, 491 U.S. at 799, 109 S.Ct. at 2758. The ordinance’s consent provision does just that. Anybody in the area around the facility, whether they be a patient or otherwise, are free to effectively silence any speech they find objectionable by invoking the “bubble.” The aims of the ordinance — to allow access, eliminate harassment and prevent intimidating activity — are served. But in so doing, the peaceful communicator expressing a protected viewpoint is also chilled.
Especially disturbing is the fact that the eight-foot bubble would prevent leafletting or handbilling. Once the bubble is invoked, it would be nearly impossible for any written communication to be distributed at any time. For example, an individual could immediately invoke the “bubble” once in the 100-foot buffer zone and prevent any handbilling on the sidewalks or streets that provide public access to the health care facility. Patient escorts acting in support of the facility could invoke the “bubble” preventing access to patients who may otherwise have at least glanced at the written materials before themselves invoking the “bubble.” Although the First Amendment does not guarantee a ■willing listener or recipient, it does protect the “opportunity to win their attention.” Kovacs v. Cooper, 336 U.S. 77, 87, 69 S.Ct. 448, 453, 93 L.Ed. 513 (1948). Strategic use of the “bubble” could eviscerate that opportunity.
Even more disturbing, the ordinance allows any person to invoke the “bubble.” A number of people acting in concert can create a buffer around the facility exceeding eight feet and that would effectively prevent all peaceful communication. The entire 100-foot buffer zone could be turned into a no speech zone if a sufficient number of escorts occupied the zone and invoked the “bubble.” The Supreme Court teaches that “[precision of regulation must be the touchstone” of any restriction on speech. The ordinance’s broad sweep goes too far. NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 340, 9 L.Ed.2d 405 (1963) (citations omitted).
The City of San Jose in its amicus curiae brief focuses our attention on the threatening and harassing activity that the ordinance is designed to prevent. Harassment, threats and physical obstruction of climes has long been subject to injunctive relief and Congress has now made such behavior criminal. Congress, addressing such concerns, passed the Freedom of Access to Clinic Entrances Act of 1994 (hereinafter “FACE”), 18 U.S.C. § 248. The intentional use of force or physical obstruction to block clinic entrances is a crime. At least one circuit has concluded that FACE does not impede peaceful protesting traditionally protected by the First Amendment. See American Life League v. Reno, 47 F.3d 642 (4th Cir.) (upholding FACE as a content-neutral, narrowly tailored restriction on protected speech), cert. denied, — U.S. -, 116 S.Ct. 55, 133 L.Ed.2d 19 (1995). Unlike FACE, the Phoenix ordinance broadly sweeps at peaceful communication that lies at the core of the First Amendment.
Ill
I end my discussion with Madsen. In Madsen, the Supreme Court considered an injunction imposed by a Florida court to prevent protesters from impeding access to a clinic. Concluding that an injunction is subject to a more stringent level of scrutiny then a content-neutral, generally applicable statute, the Court examined “each contested provision of the injunction to see if it burdens more speech than necessary to accomplish its goal.” — U.S. at -, 114 S.Ct. at 2526. *1177The injunction contained a variety of provisions restricting expressive activity by protesters outside the clinic. The City of Phoenix relies heavily on Madsen’s conclusion that a 36-foot buffer zone established in the injunction burdened no more speech than necessary. The City of Phoenix argues that because the more burdensome 36-foot buffer zone was upheld under an even more stringent standard, Ordinance No. G3705 does not improperly infringe on speech. What the City fails to acknowledge is that the buffer zone was imposed in Madsen after the protesters continued to ignore court orders and impeded access to the clinic. Id. at -, 114 S.Ct. at 2524. After repeated failures to protect the entrance to the clinic, the state court was left with no choice but to enforce a broader injunction to protect the government interests at stake.
Also included in the Madsen injunction was a provision that prohibited protesters from “approaching any person seeking the services of the Clinic unless such person indicates a desire to communicate.” Id. at -, 114 S.Ct. at 2516. Despite recognizing that protecting patients from being “stalked” or “shadowed” was a legitimate goal, the Court had little difficulty invalidating the provision, concluding that “[t]he ‘consent’ requirement alone invalidates this provision; it burdens more speech than is necessary to prevent intimidation and to ensure access to the clinic.” Id. at -, 114 S.Ct. at 2529. Madsen’s consent provision is functionally indistinguishable from the one at issue here. In Madsen, all uninvited approaches were barred; here, all unwanted approaches are barred. The effect is the same; more speech than necessary is effectively silenced.
As the Court has often stated, and recently repeated in Madsen, “ ‘[a]s a general matter, we have indicated that 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.’ ” Madsen, — U.S. at -, 114 S.Ct. at 2529 (quoting Boos v. Barry, 485 U.S. 312, 322, 108 S.Ct. 1157, 1164, 99 L.Ed.2d 333 (1988)). I believe that Phoenix Ordinance No. G3705 impermis-sibly encroaches on First Amendment freedoms and its enforcement should be enjoined.
. Protected by the privilege of the Speech or Debate Clause, U.S. Const, art. I, § 6, the remarks of several Senators are reported in the Congressional Record, 141 Cong.Rec. S8862-63 (daily ed. June 22, 1995).
*1174Mr. SMITH.
In illustration No. 4, the abortionist takes a pair of scissors and inserts the scissors into the back of the skull and then opens the scissors up to make a gap in the back of the skull in order to insert a catheter to literally suck the brains from the back of that child's head.
That is what happens in the so-called partial-birth abortion.
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Ms. MOSELEY-BRAUN.
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The extreme agenda, I think, is pretty evident. I have never seen anything as horrific, as horrendous, as awful, as ugly and graphic as the posters and the doll figure I saw on the floor a few minutes ago. It is outrageous to bring something like that on the floor of the U.S. Senate to make whatever point. Whether you are for or against choice, to bring that kind of graphic depiction of ugliness on this floor, I think, only serves the purpose of inflaming people around an issue that really inflames and divides the American people, and that does go to the heart of the opposition's extreme agenda here.