First Amendment Facelift?: Rehnquist Court Crafts New Scrutiny Level for Content-neutral, Speech Restricting Injunctions in Madsen v. Women's Health Center - Richard A. Griggs

• Publication year: 1995

First Amendment Facelift?: Rehnquist Court Crafts New Scrutiny Level for Content-Neutral, Speech Restricting Injunctions in Madsen v. Women's Health Center

Recently, in Madsen v. Women's Health Center,¹ the United States Supreme Court evaluated the constitutionality of an injunction that had completely prohibited antiabortion protestors from coming within a thirty-six foot "speech-free" buffer zone around an abortion clinic.² Petitioners, Judy Madsen³ , Ed Martin, and Shirley Hobbs, are officers of Rescue America⁴ and members of Operation Rescue.⁵ The predominant goal of these two antiabortion, activist organizations is to shut down abortion clinics throughout the country.⁶ Respondents, Women's Health Center, Inc., Aware Woman Center for Choice, Inc., EPOC Clinic, Inc., and Central Florida Women's Health Organization, Inc., operate abortion clinics throughout central Florida.⁷ The crusade against the Aware Woman Center for Choice, Inc. ("Aware Women") of Melbourne, Florida and numerous other abortion clinics in central Florida was mounted by Operation Rescue in 1991⁸ shortly after the arrival of Operation Rescue's newest office in central Florida.⁹ Picketing and demonstrating by antiabortion protestors led Women's Health Center to ask a Florida state court to enjoin Operation Rescue and others from engaging in certain activities against Aware Women, its patients and staff.¹⁰ On October 25, 1991, the court entered a temporary injunction.¹¹ Women's Health Center requested and received long-term relief in the form of a permanent injunction almost a year later, on September 30, 1992.¹² Despite the permanent injunction, protestors continued to impede access to the clinic by congregating on the street leading up to the clinic and marching in front of the clinic's driveways.¹³ Roughly six months later, after scores of complaints by Women's Health Center and extensive evidentiary hearings, Robert B. McGregor, a Seminole County trial judge, amended the inadequate permanent injunction. He concluded that prior orders had "proved insufficient 'to protect the health, safety and rights of women in Brevard and Seminole County, Florida, and surrounding counties seeking access to [medical and counseling] services.'"¹⁴ This modified injunction prohibited a broader array of antiabortion protest activities¹⁵ and, consequently, drew significant from Operation Rescue.¹⁶ The Florida Supreme Court heard Operation Rescue's challenge in Operation Rescue v. Women's Health Center,¹⁷ found the injunction content-neutral, applied intermediate scrutiny, and upheld the amended injunction.¹⁸ The United States Court of Appeals for the Eleventh Circuit heard a separate challenge for the same injunction in Cheffer v. McGregor¹⁹ shortly before the Florida Supreme Court announced its decision in Operation Rescue. The Court of Appeals, however, found the injunction content-based, applied heightened scrutiny, and struck down the injunction.²⁰ The United States Supreme Court granted certiorari to resolve the tension between the Florida Supreme Court and the United States Court of Appeals over the appropriateness of Judge McGregor's amended state court injunction.

Chief Justice Rehnquist, writing for a majority of the Court, upheld the establishment of a thirty-six foot "speech-free" buffer zone around the public property portions of Aware Woman.²¹

Since the adoption of the Bill of Rights, First Amendment rights, while technically guaranteed, have been balanced the rival interests of states. Consequently, freedom of speech, while secured by the Constitution, does not confer an absolute right to speak. The State may punish those who abuse this freedom by speaking. For example, in 1878, in Reynolds v. United States,²² the Supreme Court cautioned that the guarantees of the First Amendment remain subject to regulation for the protection of society.²³ With foundations like these in place, the Court was braced for a future of resolving clashes between these two competing institutions. In 1939, in Schneider v. New Jersey,²⁴ the Court dealt with ordinances from four separate municipalities that banned or greatly restricted the dissemination of handbills.²⁵ In invalidating the regulations, the Court insisted that when a government violation of rights is asserted, the courts must look closely toward the effect of the challenged legislation and must assess the substance of the reasons offered for the legislation.²⁶ A year later, in Cantwell v. Connecticut ²⁷ the Court, relying on Reynolds, demanded that the power to regulate must be exercised in a way that does not unduly infringe First Amendment freedoms.²⁸ Broad guidelines, like those set forth in Schneider and Cantwell, were finally given in Shelton v. Tucker.²⁹ Reenlarging constitutional safeguards, the Court in Shelton maintained that, even though government interests may be significant, those interests could not be "pursued by means that broadly stifle fundamental personal liberties when the end [could] be more narrowly achieved."³⁰ The Court in Shelton essentially instructed future courts to pay closer attention to the fit between the objectives of a regulation and the restrictions imposed by it. The refinement and restatement of tenets applicable to injunctive relief ran a parallel course to the establishment of general principles guiding the confrontation between protected personal rights and state interests. In 1928, the Court in Swift & Co. v. United States³¹ explained that an action for an injunction dealt primarily with future violations rather than past violations.³² In 1953, modest gloss was added to Swift & Co. by United States v. W.T. Grant Co.³³ when the Court held that a court should only issue an injunction if there is a cognizable danger of recurrent violation.³⁴ Major developments in this area, that eventually spawned the standard for Madsen, continued in a series of decisions focussed on civil rights. In 1956, the Virginia Legislature amended several state statutes to make the activities of the National Association for the Advancement of Colored People ("NAACP") fall within the definition of improper solicitation of legal business under Virginia law.³⁵ Fiery complaints by the NAACP were heard in the Supreme Court in NAACP v. Button.³⁶ Justice Brennan, writing for a majority of the Court, held the Virginia statutes unconstitutional, noting that the activities of the NAACP were protected by the First Amendment.³⁷ Importantly, the Court noted that Virginia's statutes failed to advance any significant state interests and maintained, relying in part on Shelton and Schneider, that "[bjroad prophylactic rules in the area of free expression are suspect."³⁸ Rather, according to the Court, "\p]reci-sion of regulation must be the touchstone in an area so closely touching our most precious freedoms."³⁹ In Keyishian v. Board of Regents of the University of New York,⁴⁰ teachers challenged the constitutionality of New York's anticommunism statutes in 1967. In this case, the Court embraced Button's "precision of regulation" requirement and declared that since "First Amendment freedoms need breathing space, government [could] regulate in the area only with narrow specificity."⁴¹ The language of Button and its progeny later proved to be the harbinger for

Madsen's novel approach. While past decisions which narrowed the breach of state interest-based regulation in the protected rights arena dealt predominately with ordinances, in 1968, Carroll v. President & Commissioners of Princess Anne⁴² added injunctive relief to the kettle. Petitioners in Carroll were identified a white supremacist organization⁴³ which hosted rallies, amplified by a public address system, in the township of Princess Anne, Maryland.⁴⁴ Speeches at these rallies were militantly racist, targeting primarily African-Americans and Jewish-Americans with language that was insulting, threatening and derogatory.⁴⁵ Officials of the county and township sought injunctive relief.⁴⁶ Justice Fortas, further tightening past precedent, declared that an "order issued in the area of First Amendment rights must be couched in the narrowest terms that will accomplish the pin-pointed objective permitted by constitutional mandate and the essential needs of the public order."⁴⁷ Reiterating Shelton's requirement, the Court in Carroll maintained that the State could not regulate in ways that broadly quelled personal liberties when the end could be more narrowly achieved.⁴⁸ Some form of narrow tailoring was thus demanded in this context. In 1979, the Court in Califano v. Yamasaki,⁴⁹ laying more groundwork for Madsen, reiterated the general rule, independent from First Amendment considerations, that "injunctive relief should be no more burdensome to the defendants than necessary to provide complete relief to the plaintiffs."⁵⁰ The stage was thus set for NAACP v. Claiborne Hardware Co.⁵¹ In 1966, a local branch of the NAACP launched a boycott of white merchants in Claiborne County, Mississippi.⁵² The NAACP wanted civic and business leaders to comply with an extensive list of demands for racial justice and equality.⁵³ The merchants filed an action for damages and sought to enjoin any future boycotts.⁵⁴ The Mississippi Supreme Court found the boycott illegal because of the presence of force, violence, and threats.⁵⁵ The merchants' action eventually reached the United States Supreme Court which found the nonviolent elements of the NAACP's activities entitled to protection.⁵⁶ The Court, however, held that the First Amendment has no refuge for violence.⁵⁷ Justice Stevens, relying on Button, Carroll, and Keyishian, wrote that when sanctionable conduct⁵⁸ "occurs in the context of constitutionally protected activity . . . 'precision of regulation' is demanded."⁵⁹ Curiously, evolvement of the constitutional framework that formed the background of the Court's unprecedented decision in Madsen essentially ended with Justice Stevens's majority opinion in Claiborne Hardware Co.

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