Inc. Madsen v. Women's Health Center

The Court has traditionally closely examined any government action which impairs or abridges any fundamental constitutional right. Exactly how closely the Court 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 the rights 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. The consent requirement (section 6) was an unconstitutional prior restraint on speech; further, the inclusion of the phrase "and those acting in concert with them" was vague and overbroad. The rest of the injunction was not challenged.