Operation Rescue-National a/k/a Operation Rescue, Rescue America, Dallas Rescue, Rev. Phillip L. "Flip" Benham, Bob Jewitt, Don Treshman, and Rev. Keith Tucci, Petitioners

Planned Parenthood of Houston and Southeast Texas, Inc., AAA Concerned Women's Center, Inc., Aaron's Family Planning Clinic of Houston, Inc., A-Z Women's Health Services, P.A., Downtown Women's Center a/k/a Downtown Women's Clinic, et al., Respondents

Justice Gonzalez, concurring in part and dissenting in part.

The pivotal issue that divides this Court is whether an individual may approach a woman seeking an abortion to leaflet or make a personal appeal to consider alternatives to abortion without significant risk of arrest and prosecution. The Court's modification of the injunction permits two sidewalk counselors to enter the buffer zones around four clinics but forces them to stop counseling and retreat (i.e., "cease and desist") when the woman seeking an abortion states a desire to be left alone. I concur insofar as the judgment does not presumptively prohibit peaceful sidewalk counseling. However, I dissent with respect to the "cease and desist" provision, because it chills protected speech far beyond that necessary to accomplish the injunction's legitimate goals.

It is difficult in any First Amendment case to entirely divorce one's personal views of the message conveyed from the speaker's constitutional right to convey it. My views on when life begins and abortion are well known. See Nelson v. Krusen , 678 S.W.2d 918, 935 (Tex. 1984) (Gonzalez, J., concurring and dissenting); Krishnan v. Sepulveda , 916 S.W.2d 478, 484-85 (Tex. 1995) (Gonzalez, J., dissenting); Edinburg Hosp. Auth. v. Treviño , 941 S.W.2d 76, 86-87 (Tex. 1997) (Gonzalez, J., dissenting). I believe that a human being is created at the moment of conception, and that abortion is the taking of a human life. I acknowledge that those with opposite views are just as passionate in their belief. But as hard as it may be, we must constantly remind ourselves that this case is not about the relative merits of pro- and anti-abortion viewpoints; this case is about the First Amendment right of free speech that happened to arise in the context of abortion picketing. Whenever the subject of abortion comes up tangentially to another issue, it tends to monopolize and distort the discussion. I fear Justice O'Connor's observation is correct:

This Court's abortion decisions have already worked a major distortion in the Court's constitutional jurisprudence. Today's decision goes further, and makes it painfully clear that no legal rule or doctrine is safe from ad hoc nullification by this Court when an occasion for its application arises in a case involving state regulation of abortion.

Thornburgh v. American College of Obstetricians and Gynecologists , 476 U.S. 747, 814 (1986) (O'Connor, J., dissenting). We must be ever vigilant that we not allow this issue, which has polarized the country, to subvert constitutional guarantees. What we say today should apply tomorrow equally to persons on either side of the abortion issue, workers demonstrating for better conditions, and political picketers of all stripes.

With that in mind, I turn now to put the issues in context by reviewing some important facts. The record indicates that many different groups and individuals, some strident, others peaceful and prayerful, demonstrated at respondents' abortion clinics. Some of the activities, such as the blockades and sit-ins, were the result of petitioners' concerted activities, and this laid the predicate for the trial court's injunction. However, the testimony of two key witnesses and recent judicial experience shows that the trial court's injunction -- barring all "demonstrating," including sidewalk counseling, within designated buffer zones -- unnecessarily chills peaceful moral suasion by non-parties. The tradition of our nation's courts to carefully tailor anti-picketing injunctions to allow a few "missionaries" within otherwise speech-free buffer zones and the Texas Constitutional mandate to use "least restrictive means" require that our courts be exacting when crafting speech-restrictive injunctions. The offending conduct here can easily be addressed without abrogating all peaceful sidewalk counseling.

Janet Hafernik and Mary Hall Kleypass testified that they offered "sidewalk counseling" at the Planned Parenthood clinic, the Houston Women's Clinic, and the West Loop Clinic -- three of the four clinics in which we uphold the buffer zones -- during the same time period petitioners conducted their demonstrations. Hafernik and Kleypass conducted these activities for four and six years, respectively, one or two times a week. Kleypass described her efforts as follows:

Q. [W]hen you engage in sidewalk counseling would you describe for the Court what you do or did at that time?

A. Yes. I approach the woman coming in and extend to her help and assistance. I have literature with me that is information about the development of the baby as well as a place where she could go for help. And I tell her that I care about her, that I want to help her and give her information that she is not going to get in the abortion clinic.

. . . .

Q. Let me ask you this, in sidewalk counseling, is intim[id]ating the woman you're talking to a factor in sidewalk counseling?

A. It's absolutely the opposite of what we would try to do. When I talked to people in training them to be sidewalk counselors, I stress to them the importance of our demeanor, our approach to be gentle, our eye contact, our nonverbal cues, everything we do is gentle and inviting. We don't carry signs or yell or scream. The object is to love the woman. You can't love the woman with all that other stuff.

. . . .

Q. Just for the record and for the Court's information, specifically, what do you say to a woman who is a stranger to you when you approach her on the sidewalk in front of an abortion facility?

A. I say, Hello. May I give you some information that you are not going to receive in there? I have information to help you. We have alternatives. We have assistance, financial, medical, housing, clothing, food, whatever you would need, and I have some information on the development of your baby that they will also not give you in the abortion facility.

Janet Hafernik offered similar testimony about her activities. On cross-examination, she indicated that she did not harass patients who did not want to talk:

Q. When you're outside a clinic, you don't yell at patients, right?

A. Right.

Q. Why is that?

A. Because basically, when you yell, you scare the women. They're already nervous going in.

Q. And you don't think it's right to try and scare someone to make them do what you want them to do?

A. No, it's got to come out of love.

Q. You don't try to physically restrain women from going into a clinic?

A. Right.

Q. You do sometimes take them by the arm?

A. Yes, if they're agreeable to that.

Q. Okay. Do you walk along side them?

A. Sometimes, but usually you're just kind of standing in a small area. Sometimes you have to walk to get out of the way of cars coming in or something.

Q. If a woman coming into a clinic indicates to you -- I believe you said some women are very angry that you're there and don't want to hear what you have to say; is that right?

A. True.

Q. When those women are angry and don't want to hear what you have to say, do you allow them to walk on unmolested?

A. Yes.

Both Kleypass and Hafernik testified that they could not effectively sidewalk counsel without direct interaction with the patient:

Q. When you conduct sidewalk counseling, where do you go on the public sidewalk typically?

A. Typically at the point where the person would enter, and if they're coming in a car, I [Kleypass] approach the car on the side and hold out my information. If they're walking, I do the same thing, and I will smile and offer it to them.

Q. Could you sidewalk counsel from across the street of an abortion facility?

A. I would not call that sidewalk counseling, because it would not be able to include the interaction between the girl and myself. It would be more of a yelled appeal than it would counseling.

Q. Can you sidewalk counsel by shouting?

A. That wouldn't be sidewalk counseling. I suppose that you can make your opinion known or offer help, but that wouldn't be counseling, because you would be missing the interactiveness of an encounter one on one.

Q. Well, why don't you just stand across the street and offer sidewalk counseling to them?

A. Like I said, you can offer help, you cannot really counsel. Counseling is done one on one. . . .

Q. In order to successfully sidewalk counsel, what, if any, factor, is your initiating the conversation?

A. That is very important, because the women sometimes have been told things about us or about others that aren't true. A lot of times they're upset, their heads are down, and they are closed off. A gentle voice saying, Hi, can I help you, is a very important way in helping them to look up and interact.

. . . .

Q. Why can't you just hold [a] sign up across the street expressing your opposition to abortion?

A. I could, but again, that would not be sidewalk counseling.

Kleypass's and Hafernik's sidewalk counseling activities were fairly well-received. Hafernik testified that approximately half the women were willing to talk or take her literature, that many were interested in her information, and that she successfully persuaded as many as one out of every ten women she counseled to choose an alternative to abortion. Respondents made no effort to controvert the testimony of Kleypass or Hafernik.

The dissent believes that we should give little weight to the testimony of Kleypass and Hafernik, because both witnesses denied direct involvement with petitioners. See ___ S.W.2d at ___ (Spector, J., dissenting). Indeed, for the purposes of obtaining the injunction, respondents made no effort to characterize Kleypass or Hafernik as acting in concert with petitioners. But respondents needed rather little evidence to accuse other individuals of conspiring with petitioners. Persons who gave one of the named defendants a ride from the airport, attended an anti-abortion conference or seminar at which one or more defendants were present, owned one of defendants' T-shirts, bumper stickers, or other publications, or had their activities announced or recommended by one of the defendants were accused of acting in concert. In short, any contact, association or relationship with, or recommendation by a defendant was useful evidence of conspiracy. Allegations of conspiracy have long been used as a bludgeon against the First Amendment and a dragnet to suppress sympathizers of politically unpopular movements. See, e.g., Whitney v. California , 274 U.S. 357, 365-72 (1927) (sustaining conviction of member of Communist Labor Party, which had adopted resolution advocating violent revolution even though defendant had presented a resolution advocating peaceful means).

The danger that all pro-life demonstrators will be indiscriminately lumped together with petitioners is illustrated by the testimony of Judy Reiner, a Planned Parenthood abortion clinic director:

Q. Is it possible that any pro-lifer in Houston, Texas, goes out and protests on a regular basis whether it be outside Planned Parenthood or be it in a residential picket without getting instructions from Rescue America or Operation Rescue National?

A. I don't believe the individuals who come to Planned Parenthood or who are at various specific times in front of doctors' houses are doing this independently, no. I do believe they are working in concert with Operation Rescue and Rescue America.

. . . .

Q. Is it your testimony that no one goes to a clinic unless they have been asked to go to the clinic by Operation Rescue or Rescue America or one of my seven defendants?

A. It's very obvious that demonstrations are organized, that people are not appearing spontaneously. So in that respect, yes.

. . . .

Q. What are the criteria that you utilize for determining whether or not someone is an operative of Operation Rescue or of my seven or of Rescue America?

A. I think it's very obvious from the tapes of certain individuals, including the individuals that you represent, are in fact the leadership or providing direction, and I guess if you want to say those people are operatives, they are operatives of those two organizations. They clearly represent their goal, and they clearly use their tactics.

Reiner's testimony raises a troubling question: what kinds of associations, incidental or deliberate, can there be between a nonparty and petitioners before the nonparty will be branded as acting in concert and burdened by the injunction's provisions? In Elfbrandt v. Russell , 384 U.S. 11 (1966), the Supreme Court asked a similar question on behalf of state employees whose job security was jeopardized by ties with communist organizations:

People often label as "communist" ideas which they oppose; and they often make up our juries. "[P]rosecutors too are human." Would a teacher be safe and secure in going to a Pugwash Conference? Would it be legal to join a seminar group predominantly Communist and therefore subject to control by those who are said to believe in the overthrow of the Government by force and violence? Juries might convict though the teacher did not subscribe to the wrongful aims of the organization. And there is apparently no machinery provided for getting clearance in advance.

Id. at 16-17 (citations and footnotes deleted). Similarly, in Noto v. United States , 367 U.S. 290 (1961), the Court warned:

[T]here is a danger that one in sympathy with the legitimate aims of such an organization, but not specifically intending to accomplish them by resort to violence, might be punished for his adherence to lawful and constitutionally protected purposes, because of other and unprotected purposes which he does not necessarily share.

Id. at 299-300. There is a similar risk that the speech of nonviolent pro-life demonstrators will be suppressed by accusing them of having ties with the violent elements of the anti-abortion movement.

Even if no attempts are made to link Kleypass, Hafernik, or other non-parties with petitioners, their activities are still gravely burdened by a speech-free injunction against petitioners. It is difficult for law enforcement officers to know, in advance, who is and is not acting in concert. Not surprisingly, similar injunctions involving absolute buffer zones have been enforced against all pro-life demonstrators, regardless of the demonstrators' affiliation with the defendants in the original injunction proceeding. See, e.g., Madsen v. Women's Health Ctr., Inc. , 512 U.S. 753, 795-97, 815-20 (1994) (Scalia, J., concurring and dissenting); Cheffer v. McGregor , 6 F.3d 705, 707, 710-11 (11 ^th Cir. 1993), vacated , 41 F.3d 1422 (11 ^th Cir. 1994) (en banc) (per curiam) (remanded for reconsideration in light of Madsen ); Hoover v. Wagner , 47 F.3d 845, 846-47, 850-51 (7 ^th Cir. 1995); McKusick v. City of Melbourne , 96 F.3d 478, 484-86 (11 ^th Cir. 1996); Gottfried v. Medical Planning Servs., Inc. , 142 F.3d 326, 328 (6 ^th Cir. 1998) (all recounting incidents in which pro-life demonstrators acting independently of the parties subject to the underlying injunction were arrested or chilled by the threat of arrest). As these cases illustrate, to ignore the chilling effect of the injunction on non-parties "screens reality" and is inconsistent with First Amendment jurisprudence. NAACP v. Claiborne Hardware Co. , 458 U.S. 886, 924 (1982). We must "not hesitate[] to take into account possible applications of the [injunction] in other factual contexts besides that at bar." NAACP v. Button , 371 U.S. 415, 432 (1963).

In McKusick , the city attorney defended Melbourne's practice of arresting all anti-abortion protestors found within the Madsen 36-foot buffer zone:

We can only enforce the injunction by bringing before the court those persons who by their objective behavior, do certain things that we believe are violative of the injunction. The City of Melbourne cannot decide whether or not they intended to support them or whether or not they were members of Operation Rescue. These people do not wear badges saying, "I'm with Operation Rescue" when they're picketing and protesting out there.

McKusick , 96 F.3d at 484. The Hoover and McKusick courts denied these non-parties any relief on grounds of federalism and comity, leaving the non-parties in a catch-22: forego their First Amendment right to demonstrate or suffer probable arrest. See Hoover , 47 F.3d at 850-52; McKusick , 96 F.3d at 488-89. These cases illustrate the difficulty of undoing an injunction's unintended chilling effects once it becomes final.

The injunction may chill a large gathering of peaceful picketers, unaffiliated with defendants, from congregating within the buffer zone. While I am troubled by this, the chilling effect is less objectionable because the injunction allows a few persons, without significant threat of arrest, to approach others peacefully in an attempt to leaflet or engage in moral suasion. The sidewalks across the street give the remaining demonstrators an effective alternative forum for communicating their message to broader audiences (e.g., the media or the driving public). But see Schneider v. Town of Irvington , 308 U.S. 147, 163 (1939) ("[O]ne is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place."). But the dissent would impose an intolerable burden on speech by deterring all sidewalk counselors from entering the buffer zone. This would prevent any effective means of communicating with the only person whose opinion about abortion makes any difference in the end -- the clinic patient.

The dissent argues that an absolute buffer zone is justified because even peaceful interactions with patients may be stressful, consequently endangering their health. The State's legitimate interest in the physical health and safety of clinic patients may justify numerical limitations and noise restrictions to minimize the stress likely to be produced by yelling, shouting, crowding, and touching. See, e.g., Kovacs v. Cooper , 336 U.S. 77, 86-87 (1949) (restricting sound amplification in residential neighborhoods). That interest does not, however, justify criminalizing peaceful, face-to-face pro-life appeals because they may stress a patient by exacerbating her moral anxiety about having an abortion. See Madsen , 512 U.S. at 773-74 (declining to extend reasoning of International Society for Krishna Consciousness, Inc. v. Lee , 505 U.S. 672, 684 (1992), which upheld a prohibition on face-to-face solicitation in airport terminals, in striking down provision prohibiting uninvited approaches within 300 feet of clinic).

The State does not have a legitimate interest in prohibiting speech because the content of the message is emotionally upsetting or causes psychological harm. "The emotive impact of speech on its audience is not a 'secondary effect.'" Boos v. Barry , 485 U.S. 312, 321 (1988); see also Hustler Magazine, Inc. v. Falwell , 485 U.S. 46, 55 (1988) (noting the Court's "longstanding refusal to [punish speech] because the speech in question may have an adverse emotional impact on the audience"). "Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea." Terminiello v. City of Chicago , 337 U.S. 1, 4 (1949). "As a general matter . . . citizens must tolerate insulting, and even outrageous, speech in order to provide adequate breathing space to the freedoms protected by the First Amendment." Boos , 485 U.S. at 322 (internal quotation marks omitted), quoted approvingly in Madsen , 512 U.S. at 774.

I concede that moral confrontation, and even the mere presence of anti-abortion demonstrators in the vicinity of the clinics, will be emotionally upsetting. However, that cannot justify keeping pro-life speech out of sight and out of mind. In Consolidated Edison Co. v. Public Service Commission , 447 U.S. 530 (1980), Justice Stevens distinguished speech offensive because of its form from speech offensive because of its content:

[A] communication may be offensive in two different ways. Independently of the message the speaker intends to convey, the form of his communication may be offensive -- perhaps because it is too loud or too ugly in a particular setting. Other speeches, even though elegantly phrased in dulcet tones, are offensive simply because the listener disagrees with the speaker's message. The fact that the offensive form of some communication may subject it to appropriate regulation surely does not support the conclusion that the offensive character of an idea can justify an attempt to censor its expression.

Id. at 546-48 (Stevens, J., concurring). Similarly, a demonstrator's speech may be stressful in different ways. It may be stressful because the demonstrator shouts, crowds, or touches the patient. Alternatively, as is sometimes the case with sidewalk counseling, the speech may be stressful because it increases the woman's anxiety and guilt about her consent to the killing of her baby. Restrictions may not be imposed against peaceful forms of communication that induce stress only because of the moral content of the message.

The Court's solicitude for the health and well-being of clinic patients is reflected in many of the injunctive provisions it upholds. The Court severely restricts petitioners' means and methods of communicating their opposition to abortion, both inside and outside the buffer zones. Clinic access is preserved by "restraining the troublesome mass of protestors to a location across the street." See Horizon Health Ctr. v. Felicissimo , 638 A.2d 1260, 1273 (N.J. 1994) (emphasis added). "Aggressive" confrontations with patients are eliminated by the prohibitions against shouting, yelling, touching, and physical abuse. Incidentally, some of the injunctive restrictions on the form of communications approved here would be constitutionally suspect in other contexts. See Ex Parte Tucker , 220 S.W. 75, 76 (Tex. 1920) ("There can be no liberty in the individual to speak, without the unhindered right to speak. It cannot co-exist with a power to compel his silence or fashion the form of his speech."); Claiborne Hardware , 458 U.S. at 928 ("Strong and effective extemporaneous rhetoric cannot be nicely channeled in purely dulcet phrases. An advocate must be free to stimulate his audience with spontaneous and emotional appeals . . . .").

In Ex Parte Tucci , 859 S.W.2d 1, 8 (1993), we struck down the one-hundred foot buffer zones around the clinics contained in the district court's temporary restraining order. The plurality opinion warned that if we rejected the "least restrictive means" test, it would permit "rather substantial adverse effects on speech if masked as directed to some purported goal other than suppression." 859 S.W.2d at 7-8 (Doggett, J., plurality opinion). The controversy over sidewalk counseling underscores the necessity of using "least restrictive means" in order to avert suppression. Today the Court adopts Madsen 's "burden no more speech than necessary" test as its own on the understanding that it incorporates both Tucci 's "least restrictive means" test and Claiborne Hardware 's requirement of precision of regulation. This standard mandates the Court's modification of the injunction to allow limited, peaceful sidewalk counseling.

Given the record and subject matter of this case, it is appropriate to remember the United State Supreme Court's admonition in NAACP v. Button during a time of fierce and widespread opposition to the civil rights movement:

We cannot close our eyes to the fact that the militant Negro civil rights movement has engendered the intense resentment and opposition of the politically dominant white community . . . . In such circumstances, a statute broadly curtailing group activity . . . may easily become a weapon of oppression, however evenhanded its terms appear. Its mere existence could well freeze out of existence all such activity on behalf of the civil rights of Negro citizens.

371 U.S. at 435-36. The same is true today; only the actors and issues are different.

Sidewalk counseling is unlike other modes of political expression. Picketing, sit-ins, and street marches are typically utilized to attract media attention and stimulate public discussion of a political issue. The speech of a sidewalk counselor, by contrast, does not seek the public's attention or promote a political solution to the abortion issue. Rather, a sidewalk counselor directs her message to a very limited audience -- the clinic patient -- seeking to persuade her to choose a life-affirming alternative to abortion.

The testimony of Kleypass shows that forcing sidewalk counselors across the street would significantly impair these activities. The opportunity they have to hold a sign or wear a pro-life T-shirt across the street is not an adequate alternative to sidewalk counseling. "[T]he most effective, fundamental, and perhaps economical avenue of political discourse [is] direct one-on-one communication." Meyer v. Grant , 486 U.S. 414, 424 (1988). "In a face-to-face encounter there is a greater opportunity for the exchange of ideas and the propagation of views . . . ." Cornelius v. NAACP Legal Defense & Educ. Fund, Inc. , 473 U.S. 788, 798 (1985). "Feelings and opinions are recruited, the heart is enlarged, and the human mind is developed, only by the reciprocal influence of men upon each other." Alexis de Tocqueville, Democracy in America 200 (Richard D. Heffner ed., New American Library 1956) (1840).

In several opinions spanning the major political movements of the twentieth century, the Supreme Court has vindicated the right of activists to pursue converts through personal confrontation and focused moral suasion. See, e.g., American Steel Foundries v. Tri-City Cent. Trades Council , 257 U.S. 184, 206-07 (1921) (recognizing the right of labor representatives to confront strike-breakers as they attempted to enter or exit the plant); Martin v. City of Struthers , 319 U.S. 141, 145-49 (1943) (striking down application to religious proselytizing of ordinance prohibiting door-to-door solicitation); Organization for a Better Austin v. Keefe , 402 U.S. 415, 416-20 (1971) (upholding the right of neighborhood activists to organize community pressure against real estate agent who promoted white flight for private gain); Claiborne Hardware , 458 U.S. at 910 ("Speech does not lose its protected character . . . simply because it may embarrass others or coerce them into action.").

More than three quarters of a century ago, the United States Supreme Court vindicated the right of labor picketers to send "missionaries" to plant entrances despite the fact that many picketers had physically abused workers attempting to enter or exit the plant. See American Steel Foundries v. Tri-City Cent. Trades Council , 257 U.S. 184 (1921). Over a period of three weeks, picketers assaulted and wounded several employees attempting to enter a large steel manufacturing plant. See id. at 197-200. Several employees slept in the plant for a week to avoid the violence. Id. at 200. Others so feared attack that they abandoned work. Id. The Court summarized the "attitude" of the demonstrations as follows:

It is idle to talk of peaceful communication in such a place and under such conditions. The numbers of the pickets in the groups constituted intimidation. The name "picket" indicated a militant purpose, inconsistent with peaceable persuasion. The crowds they drew made the passage of the employees to and from the place of work, one of running a gauntlet. Persuasion or communication attempted in such a presence and under such conditions was anything but peaceable and lawful. When one or more assaults or disturbances ensued, they characterized the whole campaign, which became effective because of its intimidating character, in spite of the admonitions given by the leaders to their followers as to lawful methods to be pursued, however sincere.

Id . at 205. The district court issued a restraining order enjoining the defendants "from picketing or maintaining at or near the premises of the complainant, or on the streets leading to the premises of said complainant, any picket or pickets." Id. at 194.

Nevertheless, the United States Supreme Court reversed the restraining order's complete prohibition on picketing as violating Section 20 of the Clayton Act. That section declared, in pertinent part, that:

no such restraining order or injunction shall prohibit any person or persons . . . from ceasing to perform any work or labor, or from recommending, advising, or persuading others by peaceful means so to do; or from attending at any place where any such person or persons may lawfully be, for the purpose of peacefully obtaining or communicating information, or from peacefully persuading any person to work or to abstain from working.

Id. at 202. The Supreme Court asked the pivotal question which we again face today:

How far may men go in persuasion and communication and still not violate the right of those whom they would influence? In going to and from work, men have a right to as free a passage without obstruction as the streets afford, consistent with the right of others to enjoy the same privilege. We are a social people and the accosting by one of another in an inoffensive way and an offer by one to communicate and discuss information with a view to influencing the other's action are not regarded as aggression or a violation of that other's rights. If, however, the offer is declined, as it may rightfully be, then persistence, importunity, following and dogging become unjustifiable annoyance and obstruction which is likely soon to savor of intimidation. From all of this the person sought to be influenced has a right to be free and his employer has a right to have him free.

Id. at 204 (emphasis added). The Court then crafted the following balance between the rights of the employees and the rights of the picketers:

We think that the strikers and their sympathizers engaged in the economic struggle should be limited to one representative for each point of ingress and egress in the plant or place of business and that all others be enjoined from congregating or loitering at the plant or in the neighboring streets by which access is had to the plant, that such representatives should have the right of observation, communication and persuasion but with special admonition that their communication, arguments and appeals shall not be abusive, libelous or threatening, and that they shall not approach individuals together but singly, and shall not in their single efforts at communication or persuasion obstruct an unwilling listener by importunate following or dogging his steps. . . . The purpose should be to prevent the inevitable intimidation of the presence of groups of pickets, but to allow missionaries.

Id. at 206-07 (emphasis added).

American Steel Foundries cannot be distinguished on the ground that the Court considered only section 20 of the Clayton Act, and not freedom of speech. The Court repeatedly emphasized that section 20:

introduces no new principle into the equity jurisprudence of those courts. It is merely declaratory of what was the best practice always. Congress thought it wise to stabilize this rule of action and render it uniform.

Id. at 203; see also id. at 206 ("[W]e must have every regard to the congressional intention manifested in the act and to the principle of existing law which it declared . . . .") (emphasis added); Senn v. Tile Layers Protective Union , 301 U.S. 468, 478 (1937) ("Members of a union might, without special statutory authorization by a State, make known the facts of a labor dispute, for freedom of speech is guaranteed by the Federal Constitution."). Later Supreme Court opinions have been even stronger in endorsing the right of peaceful picketing. See, e.g., Bakery & Pastry Drivers & Helpers Local 802 v. Wohl , 315 U.S. 769, 775 (1942) (reversing an injunction against peaceful picketing); Claiborne Hardware , 458 U.S. at 910 (reversing damages award and injunction against "store watchers," although record was replete with intimidation, stating that "[s]peech does not lose its protected character . . . simply because it may embarrass others or coerce them into action").

Since American Steel Foundries , it has been a common practice of our nation's courts, when fashioning picket-restrictive injunctions, to allow a limited number of pickets within otherwise speech-free buffer zones. See, e.g., United Mine Workers v. Bagwell , 512 U.S. 821, 823 (1994) (not prohibiting but limiting the number of pickets); United Auto., Aircraft & Agric. Implement Workers v. Wisconsin Employ. Relations Bd. , 351 U.S. 266, 269-70 n.3, 275 (1956) (affirming order "[l]imit[ing] the number of pickets around the Kohler Company premises to a total of not more than 200, with not more than 25 at any one entrance"); United Farm Workers v. H. E. Butt Grocery Co. , 590 S.W.2d 600, 602-06 (Tex. Civ. App. -- Corpus Christi 1979, no writ) (affirming but modifying picketing injunction that allowed leafletting); Sabine Area Bldg. Trades Council v. Temple Assocs., Inc. , 468 S.W.2d 501, 501-02 (Tex. Civ. App. -- Beaumont 1971, no writ) (affirming anti-picketing injunction that allowed no more than two pickets within fifty feet of the entrance site); Emhart Indus., Inc. v. Amalgamated Local Union 376 , 461 A.2d 422, 425 (Conn. 1983) (affirming, as modified, injunction that prohibited only mass picketing); Johnson Bros. Wholesale Liquor Co. v. United Farm Workers Nat'l Union , 241 N.W.2d 292, 299 (Minn. 1976) (holding that injunction limiting pickets to three per entrance was reasonable); Westinghouse Elec. Corp. v. United Elec., Radio & Machine Workers Local 601 , 46 A.2d 16, 22 (Pa. 1946) (prohibiting mass picketing after union used pickets to blockade entrances to plants); Arnault v. Bryant , 179 N.E.2d 173, 176 (Ohio Com. Pl. 1961) (limiting picketing to one at a time).

The Supreme Court and our own state courts have reaffirmed the principle announced in American Steel Foundries in reviewing the constitutional validity of anti-picketing statutes. See Thornhill v. Alabama , 310 U.S. 88, 99 (1940) (striking down anti-picketing statute because, among other defects, it "le[ft] room for no exceptions based upon either the number of persons engaged in the proscribed activity, the peaceful character of their demeanor, the nature of their dispute with an employer, or the restrained character [of their discourse]"); Geissler v. Coussoulis , 424 S.W.2d 709, 712 (Tex. Civ. App. -- San Antonio 1967, writ ref'd n.r.e.) (upholding statute permitting no more than two pickets within fifty feet of the entrance of any business because the allowance of two pickets allowed group to "communicate their message to all persons who attempt to enter the [business], be they prospective customers, employees or suppliers"); but see Olvera v. State , 806 S.W.2d 546, 552 (Tex. Crim. App. 1991) (striking down the state's anti-picketing statute as facially overbroad even with its allowance of two picketers).

The dissent believes that a complete prohibition on sidewalk counseling is further justified because the district court found that the temporary injunction, which allowed up to four sidewalk counselors within the buffer zones, was ineffective. See ___ S.W.2d at ___. But the record does not support the dissent's view that the temporary injunction was ineffective. The record does not show that efforts to enforce the temporary injunction overwhelmed police resources or that protestors were arrested for aggressively confronting patients. Compare Claiborne Hardware , 458 U.S. at 903 ("The police made no arrests -- and no complaints are recorded -- in connection with the picketing and occasional demonstrations supporting the boycott."), with Schenck v. Pro-Choice Network , 117 S. Ct. 855, 860 (1997) (observing that efforts to enforce the temporary injunction were ineffective and overwhelmed police resources).

It does not matter that enforcing a qualified buffer zone may be more difficult than enforcing an absolute buffer zone. "[T]he argument of convenience can have no weight as against those safeguards of the constitution which were intended by our fathers for the preservation of the rights and liberties of the citizen." Ex Parte McCormick , 88 S.W.2d 104, 107 (Tex. Crim. App. 1935); accord Ex Parte Tucci , 859 S.W.2d at 6. Every effort should be made to hold individual offenders responsible for their deeds before burdening the speech of peaceful pro-life advocates such as Hafernik and Kleypass. See Claiborne Hardware , 458 U.S. at 920, 933 (urging that individual offenders, rather than the whole group of boycott participants, should be held responsible for their violent deeds).

The dissent would set an astonishingly low threshold for triggering more severe speech prohibitions. It apparently believes that contempt convictions for violations of the trial court's temporary restraining order , which convictions we overturned in Ex Parte Tucci , 859 S.W.2d 1 (1993), and which violations preceded the imposition of the trial court's temporary injunction , justified the trial court's finding that the temporary injunction was ineffective and sterner anti-speech measures were needed. See  ___ S.W.2d at ___. The Court properly sets a high threshold for triggering greater speech restrictions, lest any alleged unproven violation serve as a pretext for burdening more speech than necessary.

While I concur with the Court's allowance for peaceful sidewalk counseling, I dissent with respect to the provision forcing a sidewalk counselor to stop and retreat when a targeted person announces a desire to be left alone. I recognize that the Supreme Court upheld a similar provision in Schenck . See 117 S. Ct. at 868 (holding that the "cease and desist" provision was acceptable because "the District Court was entitled to conclude . . . that the only way to ensure access was to move all protestors away from the doorways"). However, I find Schenck 's reasoning unpersuasive because its conclusion was grounded on an analysis that lacked the benefit of full briefing by the parties. See 117 S. Ct. at 873 (Scalia, J., dissenting) ("The Court's effort to recharacterize that responsibility of special care imposed by the First Amendment as some sort of judicial gratuity is perhaps the most alarming concept in [the] opinion . . . .").

I would hold that such a provision violates the free speech guarantee of article I, section 8 of the Texas Constitution. The cease and desist provision elevates the right "to be left alone" above the "freedom of speech," and means that a sidewalk counselor can be muzzled before she utters the first word of her appeal. The fact that this burdens more speech than necessary is plainly illustrated by Kleypass's testimony:

Q. What do you do if the women don't appear interested in hearing what you have to say?

A. Well, I appeal to them to take my written information, because many of the women do not want to have conversations, in which case I ask them just to consider the brochures that I have, and I just ask them to take it, and then I leave them alone.

. . . .

Q. Based upon your own knowledge and experience, have there been women who you approached who initially did not want to hear your message and ultimately changed their mind and decided not to have an abortion?

A. Yes. We have had many women who have been very hostile or acted irritated in the beginning, and later came back or turned around right then and there when they felt like I had nothing to gain from them, they really understood that I cared about them, then they became open. And to make a long story short, they felt pressured into having the abortion and when an alternative was provided to them, they took it and did not abort.

I think that it is enough that the injunction prohibits harassment, which would allow the tactful persistence illustrated by Kleypass's testimony.

The "cease and desist" provision, like the no-approach-unless-invited zone that Madsen struck down, see Madsen , 512 U.S. at 774, places the speaker's freedom to communicate at the mercy and consent of the audience. Long ago, the Court recognized that it is no less constitutionally infirm for freedom of speech to be subsequently revoked than initially withheld:

To say that he who is free to withhold at will the privilege of publication exercises a power of censorship prohibited by the Constitution, but that he who has unrestricted power to withdraw the privilege does not, would be to ignore history and deny the teachings of experience, as well as to perpetuate the evils at which the First Amendment was aimed.

Jones v. City of Opelika , 316 U.S. 584, 602 (1942) (Stone, C.J., dissenting), adopted per curiam on reh'g , 319 U.S. 103, 104 (1943).

I have one final point to make. The court of appeals below cited several incidents of vandalism and aggression that occurred during the period of time petitioners staged their demonstrations at Houston-area abortion clinics. See  937 S.W.2d 60, 74-77. The argument that the end justifies the means is "a rule of conduct denounced by all law, human and divine, as being pernicious in policy and false in morals." Ex Parte Milligan , 71 U.S. (4 Wall.) 2, 76 (1866). Such incidents have strained the patience of the public and of the justice system almost to the breaking point. Every intimidating gesture or hateful utterance deafens the public's collective ear to pro-life appeals about the dignity of the unborn. Every act of anti-abortion violence or clinic vandalism devastates the moral credibility of the pro-life message. Petitioners and other anti-abortion protestors would do well to heed Abraham Lincoln's admonition regarding the importance of public sentiment:

With it, nothing can fail; against it, nothing can succeed. Whoever moulds public sentiment, goes deeper than he who enacts statutes, or pronounces judicial decisions. He makes possible the inforcement of these, else impossible.

George McKenna, On Abortion: A Lincolnian Position , Atlantic Monthly, Sept. 1995, at 51, 61. Petitioners, therefore, should be wary of the harm that anti-abortion violence and clinic vandalism does to the peaceful advocates of their cause.

For all of the above reasons, I concur in part and dissent in part.

____________________________

Raul A. Gonzalez

Justice

OPINION DELIVERED: July 3, 1998

Dr. Rosenfeld, a doctor who performs abortions, testified that most patients already experience moral anxiety about having abortions:

Q. All right. Doctor, on the stress that you've testified about of patients, isn't it true that a lot of them are under stress because of what they're about to do, in other words, the termination procedure itself?

A. That's correct. And a lot of them -- in fact, there have been multiple studies that show that indeed the vast majority of patients are very stressful about it and they do feel -- have some considerable guilt about it, and these people just add to that stress and add to this preexisting, that even when they're not there there's concern, and even when they're not there, if there's any question, we always have the patient come back some other time, that there is no difference in getting an abortion done one day as opposed to three days later or five days later.

To paraphrase Justice Brennan, we cannot close our eyes to the fact that the pro-life movement has engendered the intense resentment and opposition of the abortion industry and powerful segments of society. In such circumstances, an injunction broadly curtailing peaceful picketing and court proceedings to enforce the "in concert" provision could easily become a weapon of oppression, however evenhanded the injunction's terms appear. The mere existence of an absolute buffer zone could well freeze out of existence all interpersonal moral suasion on behalf of the unborn.