Concurring and Dissenting. — I concur in the opinion of the court to the extent it affirms the judgment granting plaintiff a permanent injunction and reverses the order awarding plaintiff attorney fees as against defendants John Walker and Operation Rescue. I dissent from the affirmance of the trial court’s order awarding plaintiff attorney fees against the answering defendants.
Defendants attack the order for attorney fees on two grounds: (1) plaintiff failed to establish the financial burden of private enforcement is disproportionately greater than its stake in the litigation and (2) the award of attorney *1677fees in these circumstances unconstitutionally burdens defendants’ rights of free speech. I agree the order is infirm on both grounds.
I
Code of Civil Procedure section 1021.5 permits the award of attorney fees to a successful party in any action resulting in “the enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement ... are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any.”
Defendants contend the plaintiff failed to establish that the financial burden of private enforcement warrants an award of attorney fees. I agree. Despite being a nonprofit organization, plaintiff’s operations are significant, with four clinics in Northern California. In 1990, plaintiff had a budget of $2.4 million. Plaintiff receives its operating income from fundraising and fees for services rendered, with the greater portion coming from the latter. Fees range anywhere from $10 for minor services to $295 for an abortion. In 1988 plaintiff received $1,427,746 in fees. In 1989 the amount was $1,865,440 and in 1990 it was $2,346,891.
In 1988 the clinic saw 2,500 patients. This number grew to 3,500 in 1989, and to 6,000 in 1990. Of the 6,000 patients seen in 1990, 2,500 to 3,000 had abortions performed. Due to the conduct of picketers, attendance of patients at the clinic on Saturdays dropped by as much as 50 percent. According to Shauna Heckert, the clinic’s administrator, patients “would want to change to a different facility.” Because a substantial number of patients who needed the clinic’s services obtained them elsewhere, plaintiff asserts the picketing caused it “a tremendous financial loss.”
“The financial burden of private enforcement requirement means that an award of attorney fees under section 1021.5 . . .is only appropriate when the cost of the claimant’s legal victory transcends his or her personal interest — i.e., when the necessity for pursuing the lawsuit placed a burden on the plaintiff out of proportion to his or her individual stake in the matter. [Citation.]” (Luck v. Southern Pacific Transportation Co. (1990) 218 Cal.App.3d 1, 30 [267 Cal.Rptr. 618].)
Plaintiff was defending its very existence as a fee-for-service entity. As plaintiff’s customers fell off because of defendants’ activities, plaintiff’s ability to meet operating expenses was threatened. Given the size of plaintiff’s operations and its annual revenue, a $99,000 legal bill is not out of proportion to plaintiff’s stake in the litigation.
*1678Although the relief granted vindicated plaintiff’s interest in the controversy, the injunctive decree hardly represents a “ringing declaration” of the right of women to an abortion. (See Pacific Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 158, 167 [188 Cal.Rptr. 104, 655 P.2d 306].) The decree simply ensures undisturbed access to plaintiff’s facility of fee paying customers who choose to patronize plaintiff’s clinic rather than some other similar facility. Its effect is no different than an injunction against union members picketing their employer’s business in a labor dispute. In such cases, the injunction allows the employer to continue the beneficial use of its business premises. The fact that the injunction also frequently enables nonstriking employees who are strangers to the litigation to resume the pursuit of their livelihoods is simply an incidental effect.
The claimant bears the burden of establishing its litigation costs are out of proportion to its personal stake in the matter. (Beach Colony II v. California Coastal Com. (1985) 166 Cal.App.3d 106,113 [212 Cal.Rptr. 485].) Plaintiff did not meet this burden.
II
Defendants renew their trial court contention that the attorney fees award chills the exercise of their First Amendment rights. Again, I agree.
“[E]xpression on public issues ‘has always rested on the highest rung of the hierarchy of First Amendment values.’ Carey v. Brown, 447 U.S. 455, 467 [65 L.Ed.2d 263, 273, 100 S.Ct. 2286]. ‘[S]peech concerning public affairs is more than self-expression; it is the essence of self-government.’ Garrison v. Louisiana, 379 U.S. 64, 74-75 [13 L.Ed.2d 125, 132-133, 85 S.Ct. 209]. There is a ‘profound national commitment’ to the principle that ‘debate on public issues should be uninhibited, robust, and wide-open.’ New York Times Co. v. Sullivan, 376 U.S. 254, 270 [11 L.Ed.2d 686, 700, 84 S.Ct. 710, 95 A.L.R.2d 1412].” Thus spoke the United States Supreme Court in NAACP v. Claiborne Hardward Co. (1982) 458 U.S. 886, 913 [73 L.Ed.2d 1215, 1236, 102 S.Ct. 3409].
In their activities at plaintiff’s abortion clinic, defendants expressed their views on a national controversy that has deeply divided the country. To say that the manner of expression was robust and uninhibited understates the case. Indeed, it was strident, accusatory and confrontational. “Strong and effective extemporaneous rhetoric cannot be channeled in purely dulcet phrases.” (NAACP v. Claiborne Hardware Co., supra, 458 U.S. at p. 928 [73 L.Ed.2d at p. 1246].) Nevertheless, the defendants’ message was well within the bounds of constitutionally protected speech. For example, defendants *1679shouted “murder, murder, murder,” at women entering the clinic, and implored them not to “kill” their babies. Representative of the messages on the signs and posters displayed by defendants were these: “Abortion Kills Babies, Stop the Holocaust”; “Abortion, the Ultimate Child Abuse”; “Dr. Bruce Steir Butchers Babies Here”; “[Shauna] Heckert’s Baby Hackery”; “Abortion, An Act of Raw Power.”1
Defendants, or at least some of them, also engaged in activities that are not constitutionally protected or otherwise privileged. For example they at times blocked ingress to the building and the parking lot and impeded patients and others attempting to approach and enter the clinic. But it grossly distorts the record to suggest that defendants’ activities involved a continuous, unbroken series of illegal acts unrelieved by the pristine exercise of free expression. In fact, it is the latter, constitutionally protected activity that predominated and thus more accurately characterizes defendants’ activities.2
By their conduct, defendants demonstrated their passionate devotion to what is commonly known as the prolife cause. While I do not condone the unlawful excesses by which defendants’ fervor sometimes manifested itself, I do not doubt that defendants’ underlying purpose was to protest activity which, according to their understanding, was violative of natural law, even though that activity has been expressly sanctioned by the highest judicial tribunal in the land. That is political speech pure and simple, and when lawfully expressed, is entitled to constitutional protection.
Speech and conduct cannot neatly be separated. Indeed, it is difficult to imagine how speech can be an effective vehicle for communication of ideas *1680unaided by conduct of some kind. The precise line between conduct protected as a necessary adjunct to free expression and conduct which cannot claim that protection is not a bright one. It can be ascertained only by a delicate balancing of the competing rights at stake in concrete factual circumstances.
Because defendants’ exercise of free expression collided with plaintiff’s right to engage in lawful activity on its property, defendants’ freedom of expression could be restricted. Defendants were enjoined from conduct which directly interfered with plaintiff’s conduct of lawful activity on its business premises. On the other hand, recognizing the constitutional sanctity of free expression, the court rejected plaintiff’s demand that defendants be precluded from demonstrating in the immediate vicinity of the clinic, i.e., at any location in which their activities could be observed from within the clinic.
Viewed in the historical context of First Amendment litigation, there is nothing particularly remarkable about this dispute or its resolution by the trial court. The exercise of free expression through demonstrations and picketing has a venerable history in the political life of our democracy and has played a vital role in influencing public policy. Yet on countless occasions courts have been called upon to rein in demonstrators and picketers whose passion and exuberance in furtherance of their causes has trenched upon the rights of others to engage in lawful activities. For example, union members who broadcast their views in a labor dispute by picketing their employer’s business frequently have been enjoined from conduct that unduly infringes upon the employer’s property rights. And, as in this case, such conduct has often had the incidental effect of interfering with the constitutional rights of third parties. Thus in labor union-employer disputes, picketed frequently prevent nonstriking employees from pursuing their livelihoods. (See Meyer v. Nebraska (1923) 262 U.S. 390, 399 [67 L.Ed. 1042, 1045, 43 S.Ct. 625, 29 A.L.R.1446] cited with approval in Planned Parenthood v. Casey (1992) 505 U.S. [120 L.Ed.2d 674, 696, 112 S.Ct. 2791].) If in those injunction proceedings individual union members (as distinct from the union itself) have been held personally liable for the employer’s attorney fees it has escaped my notice and I would be astounded if it were to be allowed.3
In NAACP v. Claiborne Hardware Co., supra, the defendants, Black persons seeking to achieve racial justice, were sued in state court for acting *1681in concert to boycott a number of White merchants. The boycott was marred by a number of illegal acts. The United States Supreme Court characterized it as “ ‘chameleon-like’ . . . including] elements of criminality and elements of majesty.” (458 U.S. at p. 888 [73 L.Ed.2d at p. 1221].) The Supreme Court reversed a joint and several judgment against defendants and in favor of the White merchants for injunctive relief and damages for business losses due to the boycott plus attorney fees. The court held the nonviolent activities of defendants are entitled to First Amendment protection. (458 U.S. at p. 915 [73 L.Ed.2d at p. 1237].) “While the State legitimately may impose damages for the consequences of violent conduct, it may not award compensation for the consequences of nonviolent, protected activity. Only those losses proximately caused by unlawful conduct may be recovered.” (458 U.S. at p. 918 [73 L.Ed.2d at p. 1240].) “ ‘In this sensitive field, the State may not employ “means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.” Shelton v. Tucker, 364 U.S. 479, 488] [5 L.Ed.2d 231, 237, 81 S.Ct. 247] (1960).’ Carroll v. Princess Anne, 393 U.S. 175, 183-184 [21 L.Ed.2d 325, 332-333, 89 S.Ct. 347].” (458 U.S. at p. 920 [73 L.Ed.2d at p. 1241].)
The court explained: “At times the difference between lawful and unlawful collective action may be identified easily by reference to its purpose. In this case, however, [defendants’] ultimate objectives were unquestionably legitimate. The charge of illegality — like the claim of constitutional protection — derives from the means employed by the participants to achieve those goals. The use of speeches, marches, and threats of social ostracism cannot provide the basis for a damages award. But violent conduct is beyond the pale of constitutional protection.
“The taint of violence colored the conduct of some of the [defendants]. They, of course, may be held liable for the consequences of their violent *1682deeds. The burden of demonstrating that it colored the entire collective effort, however, is not satisfied by evidence that violence occurred or even that violence contributed to the success of the boycott. 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 freestanding trees. The findings of the [state trial judge] ... are constitutionally insufficient to support the judgment that [defendants] are liable for all losses resulting from the boycott.” (458 U.S. at pp. 933-934 [73 L.Ed.2d at p. 1249], italics added.)
In respect to the joint and several judgment against defendants for plaintiff’s attorney fees, the facts here are closely analogous to those in Claiborne. A monetary award for attorney fees has no less a chilling effect on the exercise of First Amendment rights than if the award were denominated one for compensatory damages. Such a distinction would be utterly sophistical. The exaction of money from defendants will burden them with the same baleful economic consequences no matter the label on the judgment. Moreover, notwithstanding the illegal acts of some of the defendants some of the time, defendants’ primary purpose was to communicate their views on a highly controversial issue of great public interest and concern. Most of defendants’ activities in furtherance of that purpose were lawful and thus constitutionally protected. The trial court’s findings do not parse out the legal from the illegal conduct or fix the responsibility individually for illegal acts and the proportionate impact of illegal conduct on plaintiff’s litigation costs.4 Conversely, the trial court made no finding on the extent to which plaintiff’s litigation costs were increased by the unsuccessful effort to limit defendants’ picketing activities to areas further removed from the clinic, *1683relief which the trial court refused presumably because it would be an unreasonable restriction on defendants’ constitutionally protected rights of free expression. The record simply will not support a monetary judgment against defendants the inevitable consequence of which will be to stifle the exercise of First Amendment rights not only by defendants but by all others who in the future will forswear their rights because they cannot afford financial penalties much less financial ruin as the price of exercising constitutionally guaranteed rights.5
By “constitutionalizing” the right to abortion the highest court in the land has preempted any policymaking role by the political branches of government in respect to abortion. Citizens dissatisfied with public policy governing abortion can no longer look to their legislators for change. But the high court did not and could not foreclose further political debate on the subject. This is, after all, the United States of America, not the “Evil Empire.” What the high court did do, however, is to constitute the streets the primary, if not the only, forum for that debate. Debate in the forum of the streets lacks the orderliness and civility of the legislative forum to which citizens could otherwise repair to influence public policy. Street debaters are not governed by Robert’s Rules of Order. Given these realities, we should not be “slow to recognize that the protection of the First Amendment bars subtle as well as obvious devices by which [its guarantees] might be stifled.” (NAACP v. Claiborne Hardware Co., supra, 458 U.S. at p. 932 [73 L.Ed.2d at p. 1248].)
I would reverse the judgment for attorney fees in its entirety.
Appellants’ petition for review by the Supreme Court was denied June 1, 1995.
The latter message appears to be a send-up of Justice White’s dissent in Roe v. Wade (1973) 410 U.S. 113 [35 L.Ed.2d 147, 93 S.Ct. 705]. Justice White excoriated the Roe v. Wade majority for its “exercise of raw judicial power” in “fashion[ing] and announc[ing] a new constitutional right for pregnant mothers” without support “in the language or history of the constitution.” (Roe v. Wade, supra, 410 U.S. at pp. 221-222 [35 L.Ed.2d at pp. 195-196] (dis. opn. of White, J.).)
Perpetrators of violence can claim no sanctuary in the First Amendment no matter how pure or well-intentioned their motives or their message. While there is evidence of physical contact between some of the defendants and some of plaintiff’s employees and patients, it was confined to bumping, shoving and blocking and, as the trial court found, was engaged in by partisans on both sides of this controversy. Defendants had no right forcibly to commandeer an audience to hear their message nor to impede access to plaintiff’s clinic, and plaintiff and its agents had no right forcibly to interfere with defendants’ attempts peacefully to communicate. By enjoining defendants from conducting their activities in specified areas adjacent to the clinic, the trial court sought to foreclose any repetition of this conduct. While I do not condone this conduct in any circumstances, given the numbers of persons involved and the period of months in which the protest activities took place, the incidence of, and level of force used in such physical encounters hardly justify the extravagant characterization of defendants’ activities as “violent.”
Unlike abortion rights, property rights and free speech rights enjoy express protection from government infringement in the federal Constitution. Property rights are protected expressly by Amendments V and XIV and implicitly by Amendments II, III and IV. Free speech rights are protected expressly by Amendment I. In contrast, the constitutional right to an abortion derives either from “penumbras . . . formed by emanations from” the specific guarantees of the Bill of Rights (Griswold v. Connecticut (1965) 381 U.S. 479, 484 [14 *1681L.Ed.2d 510, 514, 85 S.Ct. 1678]; Roe v. Wade, supra, 410 U.S. at pp. 152-153 [35 L.Ed.2d at pp. 176-177]) or is subsumed within the “heart of [the] liberty [interest]” “protected by the Fourteenth Amendment,” an interest which, we are told, particularly protects the right “to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” (Planned Parenthood v. Casey, supra, 505 U.S____[120 L.Ed.2d 674, 698].) In time, perhaps, a less vaporous constitutional theory for abortion rights may be divined by jurists even more adept at creative construction, but we must accept the existing handiwork of our judicial betters, unconvincing though it may be. In any event, whatever may be the constitutional provenance of the right to an abortion, the right is not superior to other constitutionally protected rights such as free speech, property rights and the fundamental right to pursue one’s livelihood which is also protected as a function of substantive due process (see Meyer v. Nebraska, supra, 262 U.S. 390 [67 L.Ed. 1042]). The notion implicit in the canon of many supporters of abortion rights that the right to an abortion trumps all other constitutional rights is simply a faddish conceit. In this case, of course, plaintiff does not contend that government is unconstitutionally trenching on its property rights or on the rights of plaintiff’s clients to an abortion. However, defendants do contend government is infringing upon their protected free speech rights by virtue of the judgment against them for plaintiff’s attorney fees.
The majority implies defendants have waived .any claim the trial court erred in failing to distinguish between constitutionally protected and unprotected conduct in assessing attorney fees. (See, e.g., maj. opn., ante, fn. 7 at p. 1672.) From the outset defendants have maintained that fixing them with liability for attorney fees would chill their rights of free speech because their conduct was constitutionally protected. It is clear from the record that a good deal of their conduct was constitutionally protected and the fact that, contrary to defendants’ contention, some was not hardly operates to forfeit their claim to constitutional protection in its entirety.
In opposition to plaintiff’s request for attorney fees, defendants filed declarations of their financial status showing that they are people of very modest resources. In responding points and authorities plaintiff airily dismissed these declarations as “verbal garbage.” Defendants’ declarations stand uncontradicted.