Petitioner
Judy Madsen, et al.
Respondent
Womens Health Center, Inc.
Petitioner's Claim
Portions of an injunction limiting the activities of abortion protesters violate First Amendment rights to free speech.
Chief Lawyer for Petitioner
Matthew D. Staver
Chief Lawyer for Respondent
Talbot D'Alemberte
Justices for the Court
Harry A. Blackmun, Ruth Bader Ginsburg, Sandra Day O'Connor, William H. Rehnquist (writing for the Court), David H. Souter, Clarence Thomas
Justices Dissenting
Anthony M. Kennedy, Antonin Scalia, John Paul Stevens
Place
Washington, D.C.
Date of Decision
30 June 1994
Decision
The injunction is upheld in part and reversed in part.
Significance
The mixed verdict could be viewed as a victory for either side, although petitioners prevailed on most parts of their claim.
In 1992 the operators of the Aware Woman Center for Choice, a facility that conducted abortion counseling and performed abortions at their clinic in Melbourne, Florida, were subjected to daily picketing and confrontation of their patients by Operation Rescue, a group opposed to abortion. A Florida state court issued an injunction prohibiting the protesters from (1) "physically abusing" persons entering or leaving the clinic; (2) entering the clinic; and (3)obstructing access to or exit from the clinic. Six months after the injunction was issued, the clinic operators claimed that access to the clinic was still being obstructed and that the activities of the protesters, which includedsinging, the use of bullhorns, the carrying of placards, and approaching those entering or leaving the clinic, had a physically harmful effect on patientsof the clinic. Protesters also picketed in front of the homes of those who worked at the clinic.
In response the Court amended the original injunction, increasing the limitson the activities of the protesters. The amended injunction prohibited the protesters from (1) entering the clinic or clinic property; (2) "blocking, impeding, inhibiting, . . . or obstructing or interfering" with access to or exitfrom the clinic; (3) coming within 36 feet of the property line of the clinic; (4) using sound amplification equipment, including bullhorns, and making other loud noises such as singing or yelling from 7:30 a.m. to noon Monday through Saturday; and from displaying images "observable to . . . those inside the clinic"; (5) approaching any person going to the clinic while within 300 feet of the clinic, unless "such person indicates a desire to communicate"; persons not wishing to communicate may not be threatened or harassed; (6) demonstrating within 300 feet of the residences of clinic staff; this also appliedto "those acting in concert" with the demonstrators; (7) harassing of persons entering or leaving the clinic or the residences of clinic staff; (8) harassing clinic staff; (9) inciting others to commit any of the prohibited acts.
Different members of the protest group appealed in two separate actions, oneto the Florida Supreme Court and to the U.S. District Court of Appeals. The court of appeals issued a ruling that the injunction was unconstitutional on First Amendment grounds, as an "actual prohibition of speech" to prevent a "potential hindrance" of the exercise of abortion rights. Shortly after, the Florida Supreme Court held the injunction to be constitutional because it was "content-neutral" and served a legitimate government interest. The Supreme Court granted certiorari to resolve the two conflicting decisions.
Standards of Scrutiny
The Court has traditionally closely examined any government action which impairs or abridges any fundamental constitutional right. Exactly how closely theCourt must examine the action or rule in question, however, depends on the specific facts at hand. According to precedent, the action is weighed according to one of two standards. "Strict scrutiny" entails the closest, most skeptical view of the government's intentions and the effects of the action on therights of those affected. When First Amendment issues are at stake, strict scrutiny is necessary if the abridgment of speech hinges on its content; such abridgment is "content-based" and may be used by the government to suppress the expression of certain opinions. Such a rule must be "necessary to serve a compelling state interest and . . . narrowly drawn to achieve that end." (Carey v. Brown, [1980]). If the rule is "content-neutral," a less stringent standard prevails: it must be: "narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication(U.S. Postal Service v. Council of Greenburgh Civic Associations, [1981]).
The petitioners argued that the buffer zones (sections 3 and 5 of the injunction) and bans on noise and display of images (section 4) were unconstitutional content-based abridgments of free speech, in particular because they did not apply to abortion rights supporters who also demonstrated in the area. Theconsent requirement (section 6) was an unconstitutional prior restraint on speech; further, the inclusion of the phrase "and those acting in concert withthem" was vague and overbroad. The rest of the injunction was not challenged.
The Majority Opinion
The majority upheld parts of the injunction and struck down others. The record of fact found by the lower court was accepted by the majority, which notedthe petitioners "studiously refrained" from challenging it and to the FloridaSupreme Court stated that the question at hand was one of law only. In making its decision, the Court first examined the injunction in order to determinewhat level of scrutiny to apply. They rejected the petitioners' contention that the injunction was content-based, finding that, while addressed to a specific group which held a certain view, it was addressed to that group becauseof their past conduct rather than its views: "There is no suggestion in thisrecord that Florida law would not equally restrain similar conduct directed at a target having nothing to do with abortion."
The majority declined to follow the path of strict scrutiny but was unsatisfied with intermediate scrutiny as well, noting that injunctions "carry greaterrisks of censorship and discriminatory application than do general ordinances." It thus took a middle road in examining the sections of the injunction indispute, adopting the standard that to be constitutional they should "burdenno more speech than necessary to serve a significant government interest." Applying this standard to the contested sections of the injunction, they foundas follows: The 36-foot buffer zone (section 3) was not unduly burdensome inpart. The majority noted that one petitioner admitted that protesters wouldstill be only 10 or 12 feet away from the driveway of the clinic. Further, the protesters "can still be seen and heard from the clinic parking lots." Thepart of the zone that extended to the private property to the north and westof the clinic was too restrictive, however, since there was no evidence of protesters impeding access to the clinic while located on that property. The noise restrictions (section 4) were upheld on the ground that such limitation was necessary to protect the health of clinic patients, but the prohibition of"observable images" was found to be too broad an infringement of speech, since those inside the clinic could close the curtains if they were upset by anyimages displayed. Prohibiting the demonstrators from approaching clinic patients within 300 feet of the clinic (section 5) was struck down as overly burdensome; the First Amendment does not protect citizens from being confronted with speech they find offensive. The 300-foot buffer zone around residences (section 6) and the prohibition of use of sound amplification at those sites was struck down as overly broad. A "limitation on the time, duration, and number of pickets outside a smaller zone could have accomplished the desired result." The mention of parties acting "in concert with the petitioners was not held to be too broad or vague; in any case, because it named persons other thanthe petitioners, the petitioners lacked standing to challenge it.
Justice Souter issued a concurring opinion, which accepted the reasoning of the majority. He noted that petitioners themselves accepted a legitimate government interest of public safety, the free movement of traffic, and property rights. He wanted to clarify the holding regarding the "in concert" provision,declaring that it was "a matter to be taken up in individual cases, and notto be decided on the basis of protesters' viewpoints."
Stevens Dissents in Part
Justice Stevens dissented on the issue of the level of scrutiny to be appliedto injunctions and on the majority disposition of the 300-foot buffer zone around the clinic. On the scrutiny issue, he stated that injunctions should betreated more leniently than legislation. The same regulation when enacted asstatute might well be unconstitutional, but injunctions apply "solely to [specific parties] who, by engaging in illegal conduct, have been judicially deprived of some liberty--the normal consequence of illegal activity." Souter also rejected the majority finding regarding the 300-foot buffer zone, declaring that it proscribed conduct, not speech, noting that the trial judge found this necessary to protect clinic patients from stalking and shadowing by protesters.
Scalia Dissents
Scalia dissented from all parts of the majority opinion upholding the injunction. He also disagreed regarding the level of scrutiny to be applied to all such restrictions. All should be subjected to strict scrutiny because of the risk of suppression of unpopular points of view. His rejection of the injunction rested largely on his rejection of the trial court's finding of facts. This rejection was largely based on a videotape submitted by the respondents inwhich he found no egregious violation, in fact no violation, of the originalinjunction. In Scalia's opinion, the trial court judge found without evidencethat protesters were blocking access to the clinic; the videotape showed a slowing of traffic and a delay of cars entering the parking lot that was the normal, inevitable result of congestion when a crowd gathers, not tortious behavior on the part of respondents. Since there was no violation of the original injunction, it was unnecessary to extend it further. He did not address theissue of violence in the antiabortion movement or the petitioners' acceptance of the trial court's finding of facts.
Impact
No contemporary issue is more contentious than abortion. In recent years there have been acts of vandalism, arson, invasions, and shootings (some fatal) by radical antiabortion activists. The Court apparently made its decision withthis in mind. Some decried the decision; in a Connecticut Law Tribunearticle, Bruce Fein called it a "blunderbuss attack on free speech." In theMaryland Journal of Contemporary Issues Heather O'Connor called it "astep in the right direction," but said that other precedents existed to support further action: "The Court had authority and opportunity to go further inprotecting states' interests and the safety of women . . . The Court failed to do so, allowing the violence . . . to continue." The Court used the "Madsen test" in Schenck v. Pro-Choice Network of Western New York (1997) to limit injunctive restrictions on abortion protesters. So while upholding some protection for those seeking abortions and the clinics that perform them, Madsen is likely to be used to protect the protesters' rights.
Related Cases
Judy Madsen, et al.
Respondent
Womens Health Center, Inc.
Petitioner's Claim
Portions of an injunction limiting the activities of abortion protesters violate First Amendment rights to free speech.
Chief Lawyer for Petitioner
Matthew D. Staver
Chief Lawyer for Respondent
Talbot D'Alemberte
Justices for the Court
Harry A. Blackmun, Ruth Bader Ginsburg, Sandra Day O'Connor, William H. Rehnquist (writing for the Court), David H. Souter, Clarence Thomas
Justices Dissenting
Anthony M. Kennedy, Antonin Scalia, John Paul Stevens
Place
Washington, D.C.
Date of Decision
30 June 1994
Decision
The injunction is upheld in part and reversed in part.
Significance
The mixed verdict could be viewed as a victory for either side, although petitioners prevailed on most parts of their claim.
In 1992 the operators of the Aware Woman Center for Choice, a facility that conducted abortion counseling and performed abortions at their clinic in Melbourne, Florida, were subjected to daily picketing and confrontation of their patients by Operation Rescue, a group opposed to abortion. A Florida state court issued an injunction prohibiting the protesters from (1) "physically abusing" persons entering or leaving the clinic; (2) entering the clinic; and (3)obstructing access to or exit from the clinic. Six months after the injunction was issued, the clinic operators claimed that access to the clinic was still being obstructed and that the activities of the protesters, which includedsinging, the use of bullhorns, the carrying of placards, and approaching those entering or leaving the clinic, had a physically harmful effect on patientsof the clinic. Protesters also picketed in front of the homes of those who worked at the clinic.
In response the Court amended the original injunction, increasing the limitson the activities of the protesters. The amended injunction prohibited the protesters from (1) entering the clinic or clinic property; (2) "blocking, impeding, inhibiting, . . . or obstructing or interfering" with access to or exitfrom the clinic; (3) coming within 36 feet of the property line of the clinic; (4) using sound amplification equipment, including bullhorns, and making other loud noises such as singing or yelling from 7:30 a.m. to noon Monday through Saturday; and from displaying images "observable to . . . those inside the clinic"; (5) approaching any person going to the clinic while within 300 feet of the clinic, unless "such person indicates a desire to communicate"; persons not wishing to communicate may not be threatened or harassed; (6) demonstrating within 300 feet of the residences of clinic staff; this also appliedto "those acting in concert" with the demonstrators; (7) harassing of persons entering or leaving the clinic or the residences of clinic staff; (8) harassing clinic staff; (9) inciting others to commit any of the prohibited acts.
Different members of the protest group appealed in two separate actions, oneto the Florida Supreme Court and to the U.S. District Court of Appeals. The court of appeals issued a ruling that the injunction was unconstitutional on First Amendment grounds, as an "actual prohibition of speech" to prevent a "potential hindrance" of the exercise of abortion rights. Shortly after, the Florida Supreme Court held the injunction to be constitutional because it was "content-neutral" and served a legitimate government interest. The Supreme Court granted certiorari to resolve the two conflicting decisions.
Standards of Scrutiny
The Court has traditionally closely examined any government action which impairs or abridges any fundamental constitutional right. Exactly how closely theCourt must examine the action or rule in question, however, depends on the specific facts at hand. According to precedent, the action is weighed according to one of two standards. "Strict scrutiny" entails the closest, most skeptical view of the government's intentions and the effects of the action on therights of those affected. When First Amendment issues are at stake, strict scrutiny is necessary if the abridgment of speech hinges on its content; such abridgment is "content-based" and may be used by the government to suppress the expression of certain opinions. Such a rule must be "necessary to serve a compelling state interest and . . . narrowly drawn to achieve that end." (Carey v. Brown, [1980]). If the rule is "content-neutral," a less stringent standard prevails: it must be: "narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication(U.S. Postal Service v. Council of Greenburgh Civic Associations, [1981]).
The petitioners argued that the buffer zones (sections 3 and 5 of the injunction) and bans on noise and display of images (section 4) were unconstitutional content-based abridgments of free speech, in particular because they did not apply to abortion rights supporters who also demonstrated in the area. Theconsent requirement (section 6) was an unconstitutional prior restraint on speech; further, the inclusion of the phrase "and those acting in concert withthem" was vague and overbroad. The rest of the injunction was not challenged.
The Majority Opinion
The majority upheld parts of the injunction and struck down others. The record of fact found by the lower court was accepted by the majority, which notedthe petitioners "studiously refrained" from challenging it and to the FloridaSupreme Court stated that the question at hand was one of law only. In making its decision, the Court first examined the injunction in order to determinewhat level of scrutiny to apply. They rejected the petitioners' contention that the injunction was content-based, finding that, while addressed to a specific group which held a certain view, it was addressed to that group becauseof their past conduct rather than its views: "There is no suggestion in thisrecord that Florida law would not equally restrain similar conduct directed at a target having nothing to do with abortion."
The majority declined to follow the path of strict scrutiny but was unsatisfied with intermediate scrutiny as well, noting that injunctions "carry greaterrisks of censorship and discriminatory application than do general ordinances." It thus took a middle road in examining the sections of the injunction indispute, adopting the standard that to be constitutional they should "burdenno more speech than necessary to serve a significant government interest." Applying this standard to the contested sections of the injunction, they foundas follows: The 36-foot buffer zone (section 3) was not unduly burdensome inpart. The majority noted that one petitioner admitted that protesters wouldstill be only 10 or 12 feet away from the driveway of the clinic. Further, the protesters "can still be seen and heard from the clinic parking lots." Thepart of the zone that extended to the private property to the north and westof the clinic was too restrictive, however, since there was no evidence of protesters impeding access to the clinic while located on that property. The noise restrictions (section 4) were upheld on the ground that such limitation was necessary to protect the health of clinic patients, but the prohibition of"observable images" was found to be too broad an infringement of speech, since those inside the clinic could close the curtains if they were upset by anyimages displayed. Prohibiting the demonstrators from approaching clinic patients within 300 feet of the clinic (section 5) was struck down as overly burdensome; the First Amendment does not protect citizens from being confronted with speech they find offensive. The 300-foot buffer zone around residences (section 6) and the prohibition of use of sound amplification at those sites was struck down as overly broad. A "limitation on the time, duration, and number of pickets outside a smaller zone could have accomplished the desired result." The mention of parties acting "in concert with the petitioners was not held to be too broad or vague; in any case, because it named persons other thanthe petitioners, the petitioners lacked standing to challenge it.
Justice Souter issued a concurring opinion, which accepted the reasoning of the majority. He noted that petitioners themselves accepted a legitimate government interest of public safety, the free movement of traffic, and property rights. He wanted to clarify the holding regarding the "in concert" provision,declaring that it was "a matter to be taken up in individual cases, and notto be decided on the basis of protesters' viewpoints."
Stevens Dissents in Part
Justice Stevens dissented on the issue of the level of scrutiny to be appliedto injunctions and on the majority disposition of the 300-foot buffer zone around the clinic. On the scrutiny issue, he stated that injunctions should betreated more leniently than legislation. The same regulation when enacted asstatute might well be unconstitutional, but injunctions apply "solely to [specific parties] who, by engaging in illegal conduct, have been judicially deprived of some liberty--the normal consequence of illegal activity." Souter also rejected the majority finding regarding the 300-foot buffer zone, declaring that it proscribed conduct, not speech, noting that the trial judge found this necessary to protect clinic patients from stalking and shadowing by protesters.
Scalia Dissents
Scalia dissented from all parts of the majority opinion upholding the injunction. He also disagreed regarding the level of scrutiny to be applied to all such restrictions. All should be subjected to strict scrutiny because of the risk of suppression of unpopular points of view. His rejection of the injunction rested largely on his rejection of the trial court's finding of facts. This rejection was largely based on a videotape submitted by the respondents inwhich he found no egregious violation, in fact no violation, of the originalinjunction. In Scalia's opinion, the trial court judge found without evidencethat protesters were blocking access to the clinic; the videotape showed a slowing of traffic and a delay of cars entering the parking lot that was the normal, inevitable result of congestion when a crowd gathers, not tortious behavior on the part of respondents. Since there was no violation of the original injunction, it was unnecessary to extend it further. He did not address theissue of violence in the antiabortion movement or the petitioners' acceptance of the trial court's finding of facts.
Impact
No contemporary issue is more contentious than abortion. In recent years there have been acts of vandalism, arson, invasions, and shootings (some fatal) by radical antiabortion activists. The Court apparently made its decision withthis in mind. Some decried the decision; in a Connecticut Law Tribunearticle, Bruce Fein called it a "blunderbuss attack on free speech." In theMaryland Journal of Contemporary Issues Heather O'Connor called it "astep in the right direction," but said that other precedents existed to support further action: "The Court had authority and opportunity to go further inprotecting states' interests and the safety of women . . . The Court failed to do so, allowing the violence . . . to continue." The Court used the "Madsen test" in Schenck v. Pro-Choice Network of Western New York (1997) to limit injunctive restrictions on abortion protesters. So while upholding some protection for those seeking abortions and the clinics that perform them, Madsen is likely to be used to protect the protesters' rights.
Related Cases
- Carey v. Brown, 447 U.S. 455 (1980).
- United States Postal Service v. Council of Greenburgh Civic Associations, 453 U.S. 114 (1981).
- International Society for Krishna Consciousness v. Lee, 505 U.S. 672 (1992).
- Operation Rescue v. Women's Health Center, 626 So. 2d 664 (Fla. 1993).
- Schenck v. Pro-Choice Network of Western New York, 519 U.S. 357 (1997).
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