Madsen v. Women's Health Center, Inc. Brief Amici Curiae

    No. 93-880

In The

^upmttP (Emtrt of %  luttrit States
October Term, 1993

Judy Madsen, et al.,
Petitioners,

Women’s Health Center, Inc., et al, 
_ _ _ _ _  Respondents.

On Writ of Certiorari to the 
Supreme Court of Florida

BRIEF OF PEOPLE FOR THE AMERICAN WAY, 
THE ANTI-DEFAMATION LEAGUE,

THE AMERICAN JEWISH CONGRESS, 
AMERICANS FOR RELIGIOUS LIBERTY,

THE RELIGIOUS COALITION 
FOR REPRODUCTIVE CHOICE, AND 

THE NAACP LEGAL DEFENSE & 
EDUCATIONAL FUND, INC.

AS AMICI CURIAE IN SUPPORT OF RESPONDENTS

Elliot M. Mincbeeg 
Lawrence S. Ottinger 
P eople for the American Way 
2000 M Street, NW 
Suite 400
Washington, D.C. 20036 
(202) 467-4999
[Of Counsel Listed 
on Inside Cover]
April 1,1994

J oseph N. Onek *
Richard McMillan, J r.
Amy L. Schreiber 
Ian K. Sweedler 
E lizabeth W. Newsom 
Crowell & Moring 
1001 Pennsylvania Avenue, NW 
Washington, D.C. 20004 
(202) 624-2500 
* Counsel of Record for 

Amici Curiae

W i l s o n  -  E p e s  P r i n t i n g  C o . ,  In c . -  7 8 9 - 0 0 9 6  - W a s h i n g t o n . D . C .  2 0 0 0 1



Of Counsel:
Ruth L. Lansner 
Steven M. F reeman 
J oan S. Peppajrd 
Anti-Defamation League 
823 United Nations Plaza 
New York, N.Y. 10017
Marc D. Stern 
Lois C. Waldman 
American J ewish Congress 
15 E. 84th Street 
New York, N.Y. 10028
Richard F. Wolfson 
American J ewish Congress 
Southeast Region 
420 Lincoln Road 
Suite 601
Miami Beach, FL 33139 
Ronald Lindsay
Americans for Religious Liberty
P.O. Box 6656
Silver Spring, MD 20916
E laine R. J ones 
Theodore M. Shaw 
Charles Stephen Ralston 
NAACP Legal Defense & 

E ducational F und, I nc.
99 Hudson Street 
16th Floor
New York, NY 10013



QUESTION PRESENTED
Whether, in the context of a pattern of illegal conduct 

and violations of previous injunctions, a court may con­
stitutionally impose specific time, place and manner 
restrictions on individuals and organizations and those 
acting in concert with them to prohibit blocking access 
to a medical facility, harassing the facility’s patients and 
staff, engaging in activities that threaten patients’ health, 
and harassing and picketing staff members at their homes.

(i)





TABLE OF CONTENTS
Page

QUESTION PRESENTED .... ............. ............................. i

TABLE OF AUTHORITIES .......................................... . iv

INTEREST OF AMICI CURIAE.... ............................ 1

INTRODUCTION AND SUMMARY OF ARGUMENT.. 5

ARGUMENT...................    6
I. THE INJUNCTION IS CONTENT NEUTRAL.. 6

A. The Injunction Is Not Content Based Simply
Because It Is Directed At Speakers Whose 
Views Are Known......... .........    6

B. The Restrictions Imposed By The Injunction
Are Content Neutral....... ..................................  7

C. The Injunction’s Application To Persons Act­
ing In Concert With Named Defendants Does
Not Render It Content Based ........................ . 8

II. THE INJUNCTION IS NARROWLY TAI­
LORED TO SERVE A SIGNIFICANT GOV­
ERNMENTAL INTEREST AND LEAVES 
SUFFICIENT ALTERNATIVE AVENUES OF
COMMUNICATION ACCESSIBLE TO THE 

V  SPEAKER  ....................... ................................. 12
III. THE INJUNCTION MAY BE EASILY 

AMENDED TO AVOID ANY UNANTICI­
PATED CONSEQUENCES RESTRICTING 
FIRST AMENDMENT AND OTHER RIGHTS.. 18

CONCLUSION....................................................................... 20

(iii)



IV
TABLE OF AUTHORITIES

CASES: Page
Alemite Mfg. Corp. v. Staff, 42 F.2d 832 (2d Cir.

1930)............................................................................  6,11
Alger v. Peters, 88 So. 2d 903 (Fla. 1956) ............ 6,10
Beth Israel Hosp. v. NLRB, 437 U.S. 483 (1978).... 8,12
Burson v. Freeman, 112 S. Ct. 1846 (1992) ......... . 8,17
Carroll v. Presidents and Comm’rs of Princess

Anne, 393 U.S. 175 (1968) .....      17
Chase Nat’ l Bank v. Norwalk, 291 U.S. 431 (1934).. 11
Cheffer v. McGregor, 6 F.3d 705 (11th Cir. 1993).. 7,10
Florida Jai Alai, Inc. v. Southern Catering Servs.,

388 So. 2d 1076 (Fla. Dist. Ct. App. 1980)..... . 9
Frisby v. Schultz, 487 U.S. 474 (1988) .................. . 12,17
Hill, Darlington & Grimm v. Duggar, 177 So. 2d

734 (Fla. Dist. Ct. App. 1965)  ............................  19
Hirsh v. Atlanta, 495 U.S. 927 (1990)------- ------- 17

V Miami v. Miami Dolphins, Ltd., 374 So. 2d 1156
(Fla. Dist. Ct. App. 1979)...... ..................- ........ 9

Milk Wagon Drivers Union, Local 753 v. Meadow-
moor Dairies, 312 U.S. 287 (1941) .................. 16,17,18

Minneapolis Star & Tribune Co. v. Minnesota
Comm’r of Revenue, 460 U.S. 575 (1983) -------  17

NAACP v. Claiborne Hardware Co., 458 U.S. 886
(1982)............................. ..................................... ...... 15

National Soc’y of Professional Eng’rs v. United
States, 435 U.S. 679 (1978) .................. ..........16,17,18

NLRB v. Baptist Hosp., 442 U.S. 773 (1979).......  8,12
Perry Educ. Ass’n v. Perry Local Educators’ Ass’n,

460 U.S. 37 (1983) ..................................................-  12
U Shop Rite, Inc. v. Richard’s Paint Mfg. Co., 369

So. 2d 1033 (Fla. Dist. Ct. App. 1979) ................ 9
Ward v. Rock Against Racism, 491 U.S. 781

(1989).........................................................................  7 ,8
STATUTES AND RULES:

17U.S.C. §502................................................. .......-...... 17
Fed. R. Civ. P. 65 (d ) ............................. ~~.......... ........  9,18
Fla. R. Civ. P. 1.610 (c ) ..................... ................. .......... 9,18

OTHER AUTHORITIES:
Melville B. Nimmer, Nimmer on Freedom of 

Speech (1984)  ..........................................................  17



In The

§it|tnmt? ( ta r t  nf tlu> Initrft Biutm
October Term, 1993

No. 93-880

Judy Madsen, et al.,
Petitioners,

Women’s Health Center, Inc., et al.,
Respondents.

On Writ of Certiorari to the 
Supreme Court of Florida

BRIEF OF PEOPLE FOR THE AMERICAN WAY, 
THE ANTI-DEFAMATION LEAGUE,

THE AMERICAN JEWISH CONGRESS, 
AMERICANS FOR RELIGIOUS LIBERTY,

THE RELIGIOUS COALITION 
FOR REPRODUCTIVE CHOICE, AND 

THE NAACP LEGAL DEFENSE & 
EDUCATIONAL FUND, INC.

AS AMICI CURIAE IN SUPPORT OF RESPONDENTS

INTEREST OF AMICI CURIAE

The undersigned amici are civil rights, civil liberties, 
and religious organizations whose members are deeply 
concerned about both sets of rights and interests at stake 
in this case: the First Amendment right of free expres­
sion and the right to reproductive choice protected by the 
due process clauses of the Fifth and Fourteenth Amend­
ments. Amici believe that, when properly interpreted, the 
trial court’s amended injunction imposes reasonable and



2

content-neutral time, place and manner restrictions 
against specific parties who intentionally and repeatedly 
violated the court’s previous, more narrow injunctions 
against illegal behavior. As amici explain below, as a 
result of these factors, as well as because the amended 
injunction applies only to specific parties and those acting 
in concert with them and not to all who oppose abortion, 
and because of its adaptability to particular circum­
stances, the injunction ensures access to reproductive 
medical care consistent with the protection of First 
Amendment freedoms, and should be upheld.

People For the American Way (“People For”) is a 
nonpartisan, education-oriented citizens’ organization es­
tablished to promote and protect civil and constitutional 
rights, including First Amendment freedoms, the consti­
tutional right to privacy, and women’s rights to reproduc­
tive choice. Founded in 1980 by a group of religious, 
civic and educational leaders devoted to our nation’s 
heritage of tolerance, pluralism and liberty, People For 
now has over 300,000 members nationwide. People For 
has frequently represented parties and filed amicus curiae 
briefs before this Court in litigation seeking to defend 
First Amendment rights. People For also has participated 
in litigation protecting women’s rights to reproductive 
choice. People For is filing this amicus brief because this 
case implicates the organization’s dual concerns of en­
suring women safe access to reproductive medical care, 
including abortion, and fully protecting First Amendment 
freedoms. Based on the specific record in this case, the 
trial court’s amended injunction accomplishes both of 
these purposes by narrowly enjoining conduct of parties 
who have repeatedly harassed and violated the rights of 
patients and health professionals, while leaving those par­
ties ample avenues for free expression.

The Anti-Defamation League (“ADL”) is a human 
relations organization established over 80 years ago “to 
secure justice and fair treatment to all citizens alike.” 
ADL is committed to safeguarding principles of religious



3

and individual liberty, including freedom of speech and 
association, the right to privacy, and reproductive free­
dom. The right to abortion, and the right to oppose abor­
tion, raise sharp conflicting and competing interests, 
which must be accommodated. ADL believes the injunc­
tion at issue, which establishes content-neutral parameters 
for abortion protests, accomplishes that accommodation. 
The injunction respects the rights of individuals to voice 
their opinions, and, at the same time, protects the ability 
of other individuals to exercise their constitutional rights. 
In support of these principles, ADL has filed briefs in this 
Court in such cases as Wisconsin v. Mitchell, 113 S. Ct. 
2194 (J993); Bray v. Alexandria Women’s Health Clinic, 
113 S. Ct. 753 (1993); Planned Parenthood of South­
eastern Pennsylvania v. Casey, 112 S. Ct. 2791 (1992); 
Hodgson v. State of Minnesota, 497 U.S. 417 (1990); 
and Frazee v. Illinois Dep’t of Employment Sec., 489 
U.S. 829 (1989).

The American Jewish Congress (“AJC”) is a national 
organization of American Jews founded in 1918 and com­
mitted to the preservation of the civil liberties and civil 
rights of Jews and of all Americans. AJC has filed many 
briefs in this Court supporting First Amendment rights 
and free expression. In addition, AJC believes that a 
woman’s freedom to choose whether, when, or if to bear 
children, and to obtain medical and counselling services 
in connection with that freedom, must and should be pro­
tected as an essential constitutional liberty.

Americans for Religious Liberty (“ARL”) is a nation­
wide nonprofit educational organization dedicated to de­
fending religious freedom and freedom of conscience. 
ARL has appeared before the Supreme Court in a num­
ber of amicus curiae briefs in defense of the right of all 
women to freedom of choice in dealing with problem 
pregnancies.

The Religious Coalition for Reproductive Choice is 
comprised of 36 national religious organizations that have



4

official pro-choice policies. The Coalition’s purpose is to 
ensure that every woman is free to make decisions about 
when to have children according to her own conscience, 
without government interference. The Coalition’s primary 
role is educating the public to make clear that abortion 
can be a moral, ethical, and religiously responsible 
decision.

The NAACP Legal Defense & Educational Fund, Inc. 
(“LDF”) is a non-profit corporation formed to assist 
African Americans in securing their constitutional and 
civil rights and liberties. For many years LDF has pur­
sued litigation to secure the basic civil and economic 
rights of low-income African American families and in­
dividuals. Litigation to ensure the non-discriminatory de­
livery as well as the adequacy of health care and hospital 
services available to African American communities has 
also been a long-standing LDF concern. See, e.g., Bryan 
v. Koch, 627 F.2d 612 (2d Cir. 1980) (challenging the 
closing of Sydenham public hospital in Harlem under 
Title VI of the Civil Rights Act of 1964). LDF has also 
worked on behalf of African Americans struggling with 
the burden of poor health and discriminatory and inade­
quate health care services.

LDF is particularly concerned with the growing rates 
of poverty among African Americans and with the num­
ber of single female-headed African American families 
that are living in poverty. Health care for low-income 
uninsured women and their families is a matter of great 
concern to LDF. Through its Poverty & Justice Program, 
LDF is challenging the barriers to economic advancement 
to help to improve the economic status and living con­
ditions of the many in poverty.1

1 The parties’ letter of consent to the filing of this brief has been 
filed with the Court pursuant to Rule 37.3.



5

INTRODUCTION AND SUMMARY OF ARGUMENT

This case arises in the context of a sustained campaign 
to interfere with the operation of a family planning clinic 
where abortions are performed and to intimidate and 
harass the clinic’s staff and patients. The initial judicial 
response was a brief order that simply prohibited certain 
organizations and individuals from blocking access to the 
clinic and physically abusing persons who worked at or 
used the clinic. J.A. 9. When this order failed to provide 
adequate protection to the clinic, its staff and its patients, 
and when the evidence established a concerted pattern of 
violation of the court’s orders and continued harassment 
and disruption, the court entered a more detailed in­
junction that imposed specific time, place and manner 
restrictions on the defendants and those acting in con­
cert with them. The Supreme Court of Florida, find­
ing that the “demonstrators’ tactics have impaired the 
functioning . . .  of . . .  a licensed medical facility and 
have placed in jeopardy the health, safety and rights of 
Florida women,” upheld the amended injunction. Opera­
tion Rescue v. Women’s Health Ctr., 626 So. 2d 664, 
675 (Fla. 1993).

Petitioners, who are anti-abortion activists, challenged 
the amended injunction on First Amendment grounds. 
They invoke concerns*—prior restraint, content-based re­
strictions, overbreadth—-that are central to First Amend­
ment jurisprudence. But these concerns are not controll­
ing on the facts of this case.

In this case, the court entered its injunction only after 
holding a full evidentiary hearing that revealed a history 
and pattern of illegal conduct and violations of previous 
injunctions. In this case, the court imposed time, place 
and manner restrictions that are content neutral and are 
narrowly tailored to protect significant governmental in­
terests without materially affecting petitioners’ ability to 
express and promote their views. And in this case, the 
court’s doors remain open to clarify any provisions in the



6

injunction that may unintentionally impinge on First 
Amendment rights.

ARGUMENT

I. THE INJUNCTION IS CONTENT NEUTRAL.

Petitioners contend that the injunction issued by the 
Florida court is content based, that it imposes restrictions 
on demonstrators because of their anti-abortion beliefs 
and seeks to stifle the expression of anti-abortion views. 
In light of the facts of this case, however, this contention 
is without merit.

A. The Injunction Is Not Content Based Simply Be­
cause It Is Directed At Speakers Whose Views Are 
Known.

An injunction, unlike an ordinance, must be directed 
at specific persons.12 Thus, an injunction enforcing even 
the most traditional and non-controversial time, place and 
manner restrictions will usually be directed against some­
one whose political or social views are well known. This 
does not mean, however, that the injunction is content 
based.

Take the example of a protest group that believes the 
United States is reducing military expenditures tco 
quickly and therefore launches a campaign to “wake up 
America” by broadcasting its message by sound truck in 
residential neighborhoods at 1:00 in the morning. A 
court that was requested to enjoin the 1:00 a.m. sound 
truck campaign would certainly know the views of the 
speaker and the content of the challenged speech. But 
this does not mean that an injunction against the protest 2

2 “ ‘[A] court of equity is as much so limited as a court of law; 
it cannot lawfully enjoin the world at large, no matter how broadly 
it words its decree.’ ” Alger v. Peters, 88 So. 2d 903, 907 (Fla. 
1956) (quoting Alemite Mfg. Cor-p. v. Staff, 42 F.2d 832 (2d Cir. 
1930) (Hand, J .)) .



7

group barring any sound trucks between 10:00 p.m. and 
8:00 a.m. is content based. As long as there is no reason 
to believe that an injunction would not be issued against 
other speakers in similar circumstances, the injunction 
should be regarded as content neutral. “Government reg­
ulation of expressive activity is content neutral so long as 
it is ‘justified without reference to the content of the 
regulated speech.’ ” Ward v. Rock Against Racism, 491 
U.S. 781, 791 (1989).

This same reasoning must be applied to the Florida 
courts and the numerous other courts throughout the na­
tion now struggling with the issues raised by demonstra­
tions at abortion clinics. Obviously, these courts know 
the views of the demonstrators, just as in years past they 
would have known the views of the demonstrators at 
draft boards, university admissions buildings or segregated 
lunch counters, The fact that the courts know the views 
of each of these speakers is immaterial, so long as that 
knowledge does not form the basis for the injunction and 
the injunction is otherwise consistent with the First 
Amendment. The content neutrality of an injunction de­
pends on the nature of the restrictions it imposes, not on 
the views of the persons being enjoined.'*

B. The Restrictions Imposed By The Injunction Are 
Content Neutral.

The injunction in this case is clearly content neutral 
on its face; its time, place and manner restrictions do not 
refer to any particular content or message. It is also 3

3 The majority in Cheffer v. McGregor, 6 F.3d 705 (11th Cir. 
1993) argued that a restriction on the speech of “the Republican 
Party, the state Republican Party, George Bush, Bob Dole, Jack 
Kemp and all persons acting in concert or participation with 
them. . . .” could not be content neutral. That argument is clearly 
incorrect. If those organizations and individuals engaged in the 
use of sound trucks at 1:00 a.m., a decision to restrict such conduct 
would certainly appear to be content neutral, absent evidence of 
discriminatory enforcement.



8

content neutral in objective. As the Court stated in Ward, 
491 U.S. at 791, “[t]he government’s purpose is the con­
trolling consideration. A regulation that serves purposes 
unrelated to the content of expression is deemed neutral 
. . . .” The purposes served by the injunction here are 
obvious. First, the injunction seeks to assure access to the 
clinic to employees, patients and other invitees. Second, 
it seeks to protect patients and staff from being physically 
abused, harassed and intimidated as they enter the clinic. 
Third, the injunction seeks to protect the health of clinic 
patients by reducing noise during periods of medical 
treatment. Fourth, the injunction seeks to prohibit de­
fendants from extending their harassment of clinic em­
ployees by invading the privacy of employees’ homes. 
None of these objectives is related to the content of the 
regulated expression.4

C. The Injunction’s Application To Persons Acting In 
Concert With Named Defendants Does Not Render 
It Content Based.

Petitioners argue that the injunction in this case was 
applied to persons accused of “acting in concert” with the 
named defendants in a manner that makes the injunction

4 Only one restriction in the injunction can arguably be considered 
content based: the bar against “images observable” to patients dur­
ing surgery and recovery hours. In the context of paragraph 4 of 
the injunction, the restriction appears aimed at protecting patients 
from visual “noise” or clutter, irrespective of the content of the 
images. But even if this restriction is deemed content based, the 
state has the requisite compelling interest in imposing it. Patients 
undergoing surgery or in recovery are certainly at least as in need 
of protection from disturbing speech or proselytizing as voters on 
the way to the polls. See Burson v. Freeman, 112 S. Ct. 1846, 1851 
(1992). See also Beth Israel Hosp. v. NLRB, 437 U.S. 483, 509 
(1978) (Blackmun, J., concurring) ; NLRB v. Baptist Hasp., 442 
U.S. 773, 783-84 n.12 (1979) (hospitals may shield patients from 
upsetting speech). In another era, a court would not have been 
barred from shielding servicemen undergoing surgery from the 
chants and placards of anti-war protesters.



9

content based. This argument is unsupported by the 
record.

It is correct that the injunction applies not only to 
specific organizations and individuals but also to “all per­
sons acting in concert or participation with them.” The 
“in concert” language is taken directly from the Florida 
Rule of Civil Procedure 1.610(c), which provides that 
“every injunction shall be binding on the parties and on 
those parties in active concert or participation with them.” 
The language of the Florida rule is essentially identical 
to that which appears in Federal Rule of Civil Procedure 
65(d).

The “in concert” language appears in both the Florida 
and federal rules of procedure because without it any 
injunction would be meaningless. Named defendants 
could circumvent the injunction by arranging for some 
other person to carry out the prohibited acts. The courts 
of Florida have routinely employed the “in concert” lan­
guage without controversy. See, e.g., Florida Jai Alai, 
Inc. v. Southern Catering Servs., 388 So. 2d 1076 (Fla. 
Dist. Ct. App. 1980); Miami v. Miami Dolphins, Ltd., 
374 So. 2d 1156 (Fla. Dist. Ct. App. 1979); U Shop Rite, 
Inc. v. Richard’s Paint Mfg. Co., 369 So. 2d 1033 (Fla. 
Dist. Ct. App. 1979).

Petitioners argue that the judge who entered the injunc­
tion ruled that persons are “acting in concert” simply 
because they advocate anti-abortion positions while pres­
ent in the proscribed buffer zones, and that this ruling 
renders the injunction content based. Petitioners are un­
fairly characterizing the judge’s comments at the hearing. 
The judge repeatedly stated that persons who advocated 
anti-abortion positions could demonstrate to the prosecutor 
or the trial court that they were not “acting in concert.” 
See J.A. 66, 68, 70, 74, 77. In essence, the judge simply 
made the obvious point that the police were unlikely to



10

consider someone advocating a pro-choice position as “in 
concert.” 5

Petitioners also argue that the local police applied the 
“in concert” language in a content-based manner by in­
discriminately arresting persons who indicated through 
speech or images that they held anti-abortion views. 
Amici note that any failure of the police to enforce the 
injunction in a proper manner does not render the terms 
of the injunction content based. Moreover, the Supreme 
Court of Florida only had before it review of “a trial court 
order imposing an amended permanent injunction.” Op­
eration Rescue v. Women’s Health Ctr., 626 So. 2d at 
666. It did not have before it, and did not rule upon, 
the activities of the police in applying the injunction. 
Thus, those activities are not before this Court.

To the extent any confusion remains, this Court should 
make clear that this injunction can not be constitutionally 
applied to every person with an anti-abortion viewpoint 
solely on the basis of that viewpoint. Amici note that 
Florida and federal courts use the same standard to 
determine whether non-parties are subject to the terms 
of an injunction. “ ‘[T ]be only occasion when a person 
not a party may be punished, is when he has helped to 
bring about, not merely what the decree has forbidden, 
because it may have gone too far, but what it has power 
to forbid, an act of a party. This means that the re­
spondent must either abet the defendant, or must be 
legally identified with him.’ ” Alger v. Peters, 88 So. 2d

5 The majority in Cheffer v. McGregor, 6 F.3d 705 (11th Cir. 
1993), were thus clearly incorrect in concluding that the amended 
injunction applies to Ms. Cheffer or any other anti-abortion person 
not acting in concert with named defendants. As Judge Paine 
explained in his dissenting opinion: “When the Amended Perma­
nent Injunction is properly viewed as an injunction, it becomes 
clear that the state court lacks the power to reach Cheffer.” Id. at 
715. The only relief even arguably justified in Cheffer, assuming 
that standing existed, would have been a simple declaration that 
the amended injunction did not apply to Ms. Cheffer.



11

903, 907 (Fla. 1956) (quoting Alemite Mfg. Corp. v. 
Staff, 42 F.2d 832 (2d Cir. 1930) (Hand, J .)). Cf. 
Chase Nafl  Bank v. Norwalk, 291 U.S, 431, 437 (1934) 
(quoting Alemite). Interpreted in this manner, the “in 
concert” provisions of the injunction are clearly proper. 
There have been no contempt convictions in this case of 
persons claiming that they were not “acting in concert” 
with the named defendants. There is thus no basis for 
contending that the Florida courts will apply the injunc­
tion to all anti-abortion demonstrators or be unable prop­
erly to determine whether particular individuals were 
actually “acting in concert” with defendants for purposes 
of enforcing the injunction.

To the extent necessary to protect the rights of individ­
uals not subject to the injunction, amici submit this Court 
may properly emphasize that two independent determina­
tions must be made before the injunction can be enforced 
against any individual: whether that person is violating 
the substantive time, place and manner provisions of the 
injunction, and whether that person is acting in concert 
with named defendants.6 Amici are confident that the 
Florida courts will properly enforce the injunction and 
instruct the police on the meaning of “acting in concert,” 
consistent with any guidance the Court may provide in 
this case. On the record in this case there is no justifica­
tion for invalidating the injunction itself.

6 In practice, there will be many instances in which concerted 
activity is clear. According to testimony in the trial court, defend­
ant Bruce Cadle acknowledged that he was a leader of a group of 
anti-abortion demonstrators and could often be seen directing the 
activities of other demonstrators. See J.A. 265-66, 291, 309-10.



12

II. THE INJUNCTION IS NARROWLY TAILORED TO 
SERVE A SIGNIFICANT GOVERNMENTAL IN­
TEREST AND LEAVES SUFFICIENT ALTERNA­
TIVE AVENUES OF COMMUNICATION ACCESSI­
BLE TO THE SPEAKER.

A content-neutral restriction on the time, place or man­
ner of expression is permissible if the restriction is nar­
rowly tailored to serve a significant governmental interest 
and leaves sufficient alternative avenues of communica­
tion accessible to the speaker. See, e.g., Perry Educ. Ass’n 
v. Perry Local Educators’ Ass’n, 460 U.S. 37 (1983). In 
this case there can be no question that the restrictions 
imposed by the injunction serve significant governmental 
interests. First, the injunction protects the health of 
women undergoing abortions by reducing noise levels dur­
ing the period of surgery and recovery and by ensuring 
that women who want abortions can obtain them in a 
timely manner. J.A. 55. See NLRB v. Baptist Hosp., 
442 U.S. 773, 781-84 (1979) (upholding regulations 
restricting speech based on need to avoid disruption of 
patient care and disturbance of patients); see also Beth 
Israel Hosp. v. NLRB, 437 U.S. 483, 509 (Blackmun, 
J., concurring). Second, it protects the ongoing opera­
tions of the clinic and the interests of its clients and em­
ployees by assuring access to and from the clinic without 
harassment and intimidation. J.A. 55.7 Third, it protects 
against defendants’ efforts to extend their campaign of 
harassment of clinic employees by invading the privacy 
of employees’ homes. J.A. 56; see Frisky v. Schultz, 487 
U.S. 474 (1988).

It remains necessary to determine whether the injunc­
tion is narrowly tailored to serve these significant govern­
mental interests. In making that determination, it is ap­

7 In Baptist Hosp., this Court noted that certain expression “may 
disrupt patient care if it interferes with the health-care activities 
of doctors, nurses and staff, even though not conducted in the 
presence of patients.” 442 U.S. at 782 n.U.



13

propriate to review the history of this injunction. The 
record demonstrates that the trial court moved carefully 
in its efforts to craft an injunction that restricts expressive 
activity as little as possible. The court first tried to ad­
dress respondents’ concerns through an injunction that 
simply enjoined petitioners from harassing clients, block­
ing access to the clinic and physically abusing persons 
entering or leaving the clinic. J.A. 5-10. This injunction 
remained in place for six months, during which time, as 
the record shows, the petitioners and other demonstrators 
engaged in conduct that interfered with the operations of 
the clinic through threats, harassment, intimidation, dis­
ruption and physical obstruction. See generally, J.A. 50- 
56. Accordingly, after a full evidentiary hearing, the 
court concluded that its initial injunction was insufficient 
and entered a more specific injunction.

During three days of testimony, the court heard evi­
dence that, despite its previous injunction, there had been 
serious interference with ingress to the clinic. Judge 
McGregor found that the activities of petitioners and 
others demonstrating with them had hindered access to 
the clinic’s parking lots (J.A. 51, 55) and blocked traffic 
on the public street in front of the clinic (J.A. 52, 55). 
The amended injunction therefore permits anti-abortion 
demonstrators to gather on the south side of Dixie Way, 
rather than the north side, to prevent the crowd from 
blocking access to the clinic. J.A. 57-58.

The amended injunction was also directed at conduct 
shown to have posed medical risks to the clinic’s patients. 
Judge McGregor noted testimony that

the demonstrators [ran] along side of and in front of 
patients’ vehicles, pushing pamphlets in car windows 
to persons who had not indicated any interest in 
such literature. As a result of patients having to run 
such a gauntlet, the patients manifested a higher level 
of anxiety and hypertension causing those patients 
to need a higher level of sedation to undergo the sur­
gical procedures, thereby increasing the risk associ-



14

ated with such procedures.8 . . . The doctor also tes­
tified that he observed some patients turn away from 
the crowd in the driveway to return at a later date. 
He testified that such delay in undergoing the proce­
dures also increased the risk associated therewith.

J.A. 54.
The court concluded that the actions of the petitioners 

continued to impede and obstruct both staff and patients 
from entering the clinic and that “the noise associated 
with the demonstrations impermissibly interferes with the 
operation of the clinic and the well-being of its patients.” 
J.A. 55. It was on the basis of these concerns for the 
well-being of the clinic's patients that Judge McGregor 
enjoined loud noises “during surgical procedures and re­
covery periods . . . .” J.A. 59. Finally, the court heard 
testimony that clinic employees and sometimes the minor 
children of clinic employees were accosted in their homes 
by petitioners. Judge McGregor found these actions at 
the homes of clinic staff to be impermissible conduct. 
J.A. 56.

The injunction must be judged in this context and in 
light of the failure of the previous injunction to prevent 
illegal conduct. Given this history, the court was entitled 
to impose an injunction which might be somewhat 
broader in scope than that which would have been appro­
priate ab initio. The initial injunction in this case only 
prohibited patently illegal conduct—trespassing on clinic 
property, blocking access to the clinic and physically 
abusing persons using and working at the clinic. J.A. 9. 
But after hearing the evidence, the court appropriately

« Amici note that it was this testimony that resulted in paragraph 
5 of the injunction prohibiting demonstrators from approaching 
patients within 300 feet of the clinic. Amici believe that this re­
striction, aimed at protecting patients from unwelcome intrusion, 
intimidation and harassment, is content neutral. But even if it is 
not content neutral, the testimony as to the potential harm to pa­
tients establishes a compelling interest for the restriction. See 
note 4, supra.



15

determined that the only way to protect the clinic, its 
staff and its patients was to prohibit conduct that might 
be legal under other circumstances. Thus, to prevent 
demonstrators from blocking access to the clinic, the court 
established a 36-foot buffer zone around the clinic. Simi­
larly, it established buffer zones to protect patients seek­
ing to enter the clinic from unwelcome intrusion and 
physical intimidation and to protect clinic employees 
from extension of the pattern of harassment into their 
homes.

Petitioners contend that the fact that the injunction en­
joins some possibly lawful conduct renders it overbroad 
and not narrowly tailored. They cite a footnote in 
NAACP v. Claiborne Hardware Co., 458 U.S. 886 
(1982), stating that the injunction issued by the Mis­
sissippi courts in that case “must be modified to restrain 
only unlawful conduct and the persons responsible for 
conduct of that character.” Id. at 924 n.67. Claiborne is 
clearly distinguishable. In Claiborne, the NAACP and its 
leaders had organized a lawful economic boycott of cer­
tain white-owned businesses, and no evidence connected 
them to the “isolated acts of violence” which occurred 
during the boycott and caused the damages to plaintiffs, 
Id. at 923. Furthermore, there was no evidence that the 
NAACP and its leaders had committed or ratified any 
illegal acts, or that they had violated a prior injunction 
preventing only unlawful conduct. Id. at 930-31. De­
spite this evidentiary record, the Mississippi court entered 
a large damages award and an injunction which essen­
tially sought to stifle completely the NAACP’s lawful 
efforts to promote economic, political, and social change 
in the local area. Under these facts, this Court reversed 
the damages award and the injunction against the 
NAACP and its leaders.

In sharp contrast, the court’s amended injunction here 
addresses an admittedly illegal blockade of a medical 
clinic by organizations and their leaders who, according 
to detailed evidence, committed numerous illegal and



16

threatening acts. In this case, which does not involve a 
crippling damages award, the court’s original temporary 
and permanent injunctions did not enjoin any constitu­
tionally protected activity. Only after receiving extensive 
evidence that its two prior injunctions had been violated 
did the court carefully tailor specific restrictions that pro­
hibit some possibly lawful activity.

This Court has held that where illegal conduct has been 
demonstrated, a trial court is “empowered to fashion ap­
propriate restraints on the [defendants’] future activities 
both to avoid a recurrence of the violation and to elimi­
nate its consequences.” National Soc’y of Professional 
Eng’rs v. United States, 435 U.S. 679, 697 (1978). This 
is true even though the court may enjoin some otherwise 
lawful activity. As the Court has stated:

While the resulting order may curtail the exercise of 
liberties that the [enjoined party] might otherwise 
enjoy, that is a necessary and, in cases  ̂such as this, 
unavoidable consequence of the violation. . . .  In 
fashioning a remedy, the District Court may, of 
course, consider the fact that its injunction may in- 
pinge upon rights that would otherwise be constitu­
tionally protected, but those protections do not pre­
vent it from remedying the . . . violation.

Id. at 697-98; see also Milk Wagon Drivers Union, Local 
753 v. Meadowmoor Dairies, 312 U.S. 287 (1941).

The injunction also meets the “narrowly tailored” re­
quirement because it clearly leaves sufficient alternative 
avenues of communication accessible to petitioners. Peti­
tioners are free to demonstrate anywhere except within 
36 feet of the clinic and 300 feet of a clinic staffer’s 
home. Petitioners may be as noisy as they wish except 
during the hours of surgery and recovery. They may pre­
sent their views to all persons seeking to enter the clinic 
except that they may not physically approach such per­
sons within 300 feet of the clinic unless invited to do so. 
In short, petitioners have ample means to communicate 
their views concerning abortion to patients and potential



17

patients of the clinic, to employees of the clinic and to 
the public at large.0 In essence, petitioners are restricted 
only in the manner in which they can present their views 
to people who are “captive” in their homes or “captive” 
by virtue of their need for medical treatment. See Frisby 
v. Schultz, 487 U.S. at 484-85 (“[A] special benefit of 
the privacy all citizens enjoy within their walls, which 
the state may legislate to protect, is an ability to avoid 
intrusions.”) .“ 9 10

9 It could be argued, of course, that the 300-foot boundary line 
should be 250 feet or 200 feet. This Court responded to such a 
contention in Burson v. Freeman, 112 S. Ct. 1846, 1857 (1992), by 
stating that “ [w]e do not think that the minor geographical limita­
tions prescribed by [a statute forbidding campaign solicitations 
near polling places] constitute such a significant infringement. 
Thus, we simply do not view the question of whether the 100-foot 
boundary line could be somewhat tighter as a question of ‘constitu­
tional dimension.’ ” As explained in Section III, infra, moreover, 
any problems with a specific boundary line can be remedied while 
preserving the overall injunction.

10 Petitioners also invoke the prior restraint doctrine. This Court, 
however, has not applied the prior restraint doctrine to cases such 
as this, where a remedial injunction is entered only after a full 
evidentiary hearing. See National Soc’y of Professional Eng’rs, 
435 U.S. at 696-99; Milk Wagon Drivers Union, 312 U.S. at 293- 
98. See also discussion in Carroll v. Presidents and Comm’rs of 
Princess Anne, 393 U.S. 175, 179-84 (1968). Nor has this Court 
applied the prior restraint doctrine in cases involving content- 
neutral restrictions except in very limited circumstances. See 
Minneapolis Star & Tribune Co. v. Minnesota•, Comm’r of Revenue, 
460 U.S. 575, 586-87 n.9 (1983). To do so broadly would, inter alia, 
cast doubt on the constitutionality of the venerable injunction pro­
visions of the copyright laws. See 17 U.S.C. § 502; see also Melville 
B. Nimmer, Nimmer on Freedom of Speech § 2.05 [C], at 2-57 
(1984). See also Hirsh v. Atlo/nta, 495 U.S. 927, 927 (1990) 
(Stevens, J., concurring in denial of stay) (explaining that it is 
“entirely proper” to distinguish between “injunctive relief imposing 
time, place and manner restrictions upon a class of persons who 
have persistently and repeatedly engaged in unlawful conduct” and 
an “injunction that constitutes a naked prior restraint against a 
proposed march by a group that did not have a similar history of 
illegal conduct in the jurisdiction where the march was scheduled”).



18

III. THE INJUNCTION MAY BE EASILY AMENDED 
TO AVOID ANY UNANTICIPATED CONSE­
QUENCES RESTRICTING FIRST AMENDMENT 
AND OTHER RIGHTS.

Because this case involves an injunction rather than an 
ordinance or statute, petitioners have an easy remedy if 
certain applications of the injunction might violate the 
First Amendment in ways not anticipated by the court. 
Petitioners can apply to the court to amend or clarify 
the injunction. As in National Soc’y of Professional 
Eng’rs, petitioners “apparently fear[] that the [trial 
court’s] injunction, if broadly read, will block legitimate 
paths of expression . . . .  But the answer to these fears 
is . . . that the burden is upon the proven transgressor 
‘to bring any proper claims for relief to the court’s atten­
tion.’ ” 435 U.S. at 698. See also Milk Wagon Drivers 
Union, 312 U.S. at 298 (“If an appropriate injunction 
were put to abnormal uses in its enforcement . . . .  the 
doors of this Court are always open.”)11

Petitioners contend, for example, that paragraph 6 of 
the injunction, which forbids them from “approaching” 
within 300 feet of the residence of clinic personnel, would 
bar a petitioner from simply living in the same apart­
ment complex with a clinic employee or walking down 
such an employee’s street. But there is no reason to be­
lieve that the Florida court intended to have paragraph 
6 read or enforced in such a manner. Amici assume that 
the Florida court would, if requested by petitioners, 
amend the injunction to permit general “approaches” that

11 Issues of vagueness, like overbreadth, take on a very different 
meaning in the context of an injunction. An injunction, “arising 
out of a particular controversy and adjusted to it, raises totally 
different constitutional problems from those that would be pre­
sented by an abstract statute with an overhanging and undefined 
threat to free utterance.” Milk Wagon Drivers Union, 312 U.S. at 
292. Thus, the standard by which an injunction is measured is 
whether it is specific in its terms and describes in reasonable de­
tail the act or acts sought to be restrained. Fla. R. Civ. P. 1.610(c); 
Fed. R. Civ. P. 65(d).



19

are not specifically directed and targeted at clinic per­
sonnel for the purposes of harassing them. See, e.g., Hill, 
Darlington & Grimm v. Duggar, 111 So. 2d 734 (Fla. 
Dist. Ct. App. 1965) (clarifying injunction at request 
of defendant).

Indeed, to the extent that potential applications of the 
injunction appear to create specific problems, this Court 
may wish to make clear its understanding of the reach 
of the injunction and the constitutional problems that 
would arise if the Florida courts were to interpret the in­
junction too broadly or refuse to make appropriate clar­
ifications. Of course, the Court can strike down partic­
ular provisions of the injunction if it believes they are 
unconstitutionally broad and not susceptible to adequate 
clarification. However, amici do not believe this action 
will be necessary because the record in this case estab­
lishes that the amended injunction appropriately protects 
against harassment and illegal behavior in a manner con­
sistent with First Amendment freedoms.



20

CONCLUSION

For the foregoing reasons, amici respectfully urge that 
the decision of the Supreme Court of Florida be affirmed.

Respectfully submitted,

Elliot M. Mincberg 
Lawrence S. Ottinger 
People for the American Way 
2000 M Street, NW 
Suite 400
Washington, D.C. 20036 
(202) 467-4999
Of Counsel:
Ruth L. Lansner 
Steven M. F reeman 
J oan S. Peppard 
Anti-Defamation League 
823 United Nations Plaza 
New York, N.Y. 10017
Marc D. Stern 
Lois C. Waldman 
American J ewish Congress 
15 E. 84th Street 
New York, N.Y. 10028
Richard F. Wolfson 
American J ewish Congress 
Southeast Region 
420 Lincoln Road 
Suite 601
Miami Beach, FL 33139 
Ronald Lindsay
Americans for Religious Liberty
P.O. Box 6656
Silver Spring, MD 20916
Elaine R. J ones 
T heodore M. Shaw 
Charles Stephen Ralston 
NAACP Legal Defense & 

E ducational F und, Inc.
99 Hudson Street 
16th Floor
New York, NY 10013 
April 1,1994

J oseph N. Onek *
Richard McMillan, J r.
Amy L. Schreiber 
Ian K. Sweedler 
Elizabeth W. Newsom 
Crowell & Moring 
1001 Pennsylvania Avenue, NW 
Washington, D.C. 20004 
(202) 624-2500

* Counsel of Record for 
Amici Curiae