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Law School Case Brief

Schenck v. Pro-Choice Network of W. N.Y. - 519 U.S. 357, 117 S. Ct. 855 (1997)


It is difficult to justify a prohibition on all uninvited approaches regardless of how peaceful a contact may be. Absent evidence that a protesters' speech is independently proscribable (i. e., "fighting words" or threats), or is so infused with violence as to be indistinguishable from a threat of physical harm, a provision of an injunction that establishes a "no-approach" zone cannot stand. As a general matter, courts indicate 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 U.S. Const. amend. I. The "consent" requirement alone invalidates such a provision; it burdens more speech than is necessary to prevent intimidation and to ensure access to a clinic.


Respondent abortion clinics were subjected to numerous large-scale blockades at which protesters marched, stood, knelt, sat, or lay in clinic parking lot driveways and doorways, blocking or hindering cars from entering the lots, as well as blocking or interfering with patients and clinic employees from entering the clinics. Consequently, respondent abortion clinics, together with upstate New York abortion doctors and an organization dedicated to maintaining access to abortion services, filed a complaint in the District Court seeking to enjoin petitioners from engaging in blockades and other illegal conduct at the clinics. The District Court issued a temporary restraining order (TRO), and later, after the protests and "sidewalk counseling" continued, a preliminary injunction. The injunction provisions banned demonstrations: (i) within 15 feet of the clinics' doorways or doorway entrances, parking lot entrances, driveways, and driveway entrances (Fixed Buffer Zones); and (ii) within15 feet of any person or vehicle seeking access to or leaving the clinics (Floating Buffer Zones). The injunction allowed two sidewalk counselors inside the buffer zones, but required them to "cease and desist" their counseling if the counselee so requested. In its accompanying opinion, the District Court, inter alia, rejected petitioners' assertion that the injunction violated their First Amendment right to free speech, the judgment which the Court of Appeals for the Second Circuit en banc affirmed. The United States Supreme Court granted the petition for certiorari review.


Did the injunction violate the petitioners’ First Amendment right to free speech?


No, with respect to the injunction provisions imposing Fixed Buffer Zones; yes, with respect to the injunction provisions imposing Floating Buffer Zones.


The United States Supreme Court held that the injunction provisions imposing Fixed Buffer Zone limitations were constitutional. According to the Court, there were significant governmental interests underlying the injunction, i.e., ensuring public safety and order, promoting the free flow of traffic on streets and sidewalks, protecting property rights, and protecting a woman’s freedom to seek pregnancy-related services. The Court averred that these interests were significant enough to justify an appropriately tailored injunction to secure unimpeded physical access to the clinics.

However, the Court held that the Floating Buffer Zones were unconstitutional as they burden more speech than was necessary to serve the relevant governmental interests. Such zones around people prevented petitioners--except for sidewalk counselors tolerated by the targeted individual--from communicating a message from a normal conversational distance or handing out leaflets on the public sidewalks. Such prohibition was a broad one, both because of the type of speech restricted and the nature of the location. According to the Court, leafletting and commenting on matters of public concern were classic forms of speech that lie at the heart of the First Amendment, and speech in public areas was at its most protected on public sidewalks, a prototypical example of a traditional public forum.

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