dissenting.
I agree that the failure of the defendant-appellant, Sharon T. McKee, to have filed a motion to quash forecloses her from making a facial challenge to the injunction entered pursuant to Neb. Rev. Stat. § 42-924 (Reissue 1993). Stated another way, having violated the protection order and having failed to move to quash this proceeding against her, she is limited to challenging the application, that is to say, the enforcement, of the order; she cannot challenge its issuance or its provisions.
I also agree that the standard to be applied in previolation facial challenges to content-neutral injunctions is to ask whether the questioned provisions burden no more speech than necessary to serve a significant government interest. Schenck v. Pro-Choice Network of Western N.Y., 519 U.S. 357, 117 S. Ct. 855, 137 L. Ed. 2d 1 (1997); Madsen v. Women’s Health Center, Inc., 512 U.S. 753, 114 S. Ct. 2516, 129 L. Ed. 2d 593 (1994).
I respectfully submit, however, that the Schenck-Madsen standard does not control in a challenge to an injunction or pro*109tection order as applied or enforced, which is the challenge presented here. Contrary to the majority’s reading of People ex rel. Gallo v. Acuna, 14 Cal. 4th 1090, 929 P.2d 596, 60 Cal. Rptr. 2d 277 (1997), I do not understand it to apply the Schenck-Madsen standard to an “as applied” challenge. The trial court in People ex rel. Gallo entered a preliminary injunction prohibiting the appellants, alleged to be members of a street gang, from engaging in certain behavior in a particular neighborhood, including standing, sitting, walking, driving, gathering, or appearing in public view together, and confronting, intimidating, annoying, harassing, threatening, challenging, provoking, assaulting, battering, or assaulting and battering any neighborhood resident known to have complained about gang activities. Unlike the situation here, the People ex rel. Gallo appellants had not violated the injunction and did not allege that a specific instance of its enforcement violated their constitutional rights. Thus, while the appellants argued that as applied to their conduct, it was broader than constitutionally sustainable, they challenged the granting of the injunction on its face. I therefore submit that People ex rel. Gallo does not extend the Schenck-Madsen standard to an as applied or enforced challenge.
Moreover, if the People ex rel. Gallo court had done so, the extension would not have been required by the Schenck-Madsen holdings. Because an injunction binds only those named in it or in privity with them, In re Contempt of Liles, 217 Neb. 414, 349 N.W.2d 377 (1984), every challenge to an injunction can be said, in that sense, to be an as applied challenge. I suggest it was in recognition of that fact that the People ex rel. Gallo court, in holding there had been no abuse of discretion in granting the injunction, wrote: “Our conclusion with respect to the defendants’ ‘overbreadth’ claim does, not mean they may not be heard to complain that the provisions of the preliminary injunction— as applied to them and their conduct in [the neighborhood] — are broader than constitutionally sustainable.” (Emphasis in original.) 14 Cal. 4th at 1114, 929 P.2d at 611, 60 Cal. Rptr. 2d at 292.
Whether an injunction or protection order burdens no more speech than necessary to serve a significant government interest is irrelevant when the only issue properly before the court is *110whether the conduct alleged to have violated the injunction is constitutionally protected. In Board of Trustees, State Univ. of N. Y. v. Fox, 492 U.S. 469, 483, 109 S. Ct. 3028, 106 L. Ed. 2d 388 (1989), the U.S. Supreme Court reasoned that because one asserting the commercial-speech narrow-tailoring rule may not challenge facially a statute as overbroad, the relevant “as applied” inquiry becomes, “Ts . . . appellants’ advertisement outside the scope of basic First Amendment protection?’ ” (Emphasis in original.) Thus, in the instant case, instead of being concerned with whether the injunction burdened no more speech than necessary to serve a significant government interest, the majority should have been concerned with whether, in the context of her conduct, McKee’s speech was protected by the First Amendment.
The U.S. Supreme Court has expressly recognized that “both the content and the context of speech are critical elements of First Amendment analysis ...” FCC v. Pacifica Foundation, 438 U.S. 726, 744, 98 S. Ct. 3026, 57 L. Ed. 2d 1073 (1978). As noted in Federal Election Com’n v. Furgatch, 807 F.2d 857, 863 (9th Cir. 1987), cert. denied 484 U.S. 850, 108 S. Ct. 151, 98 L. Ed. 2d 106:
The problem of the context of speech goes to the heart of some of the most difficult First Amendment questions. The doctrines of subversive speech, “fighting words,” libel, and speech in the workplace and in public fora illustrate that when and where speech takes place can determine its legal significance. In these instances, context is one of the crucial factors making these kinds of speech regulable. First Amendment doctrine has long recognized that words take part of their meaning and effect from the environment in which they are spoken.
According to the U.S. Court of Appeals for the 11th Circuit, “Whether words are ‘fighting’ words, that is, words ‘which by their very utterance inflict injury or tend to incite an immediate breach of the peace,’[citation omitted] depends ‘upon the circumstances of their utterance.’ ” Wilson v. Attaway, 757 F.2d 1227, 1246 (11th Cir. 1985). In short, while the First Amendment certainly protects McKee in expressing her antiabortion views in some contexts, it does not protect her in all contexts.
*111I fail to see how accosting Dr. Winston D. Crabb at the parking lot to his office, following him into his office building at a distance of 6 to 8 feet, calling him a baby killer while 3 to 4 feet from him by proclaiming that he needs to “stop killing babies,” and telling him that calling the police would be to no avail falls under the protection of the First Amendment. McKee did not approach Crabb to debate her opinions about abortion; she confronted him to harass and abuse him and perhaps to provoke him into responding inappropriately or even illegally. “ ‘ “Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument”. . .’ ” State v. Schmailzl, 243 Neb. 734, 741, 502 N.W.2d 463, 468 (1993) (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S. Ct. 766, 86 L. Ed. 1031 (1942)).
I would thereform affirm the judgment of the district court in its entirety.
Grant, J., Retired, joins in this dissent.