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 Spector, joined by Justice Baker, concurring in part and dissenting in part.

For the most part, I concur in the Court's judgment. But the record before us demonstrates that the district court's permanent injunction burdened no more speech than necessary by barring all protest activity, including sidewalk counseling, within the designated buffer zones at the various clinics while allowing protesters on nearby sidewalks. See Madsen v. Women's Health Ctr., Inc. , 512 U.S. 753, 776 (1994). The Court's decision to allow Petitioners to perform sidewalk counseling within the buffer zones may well endanger clinic patients' health. Moreover, in modifying the injunction, the Court fails to consider the effect of boisterous, unpredictable, and occasionally violent nearby crowds on attempts at peaceful interaction. I respectfully dissent.

I strongly agree with the Court that the boundaries in free speech cases must not be dictated by the subject matter of the dispute. Instead, these cases require highly individualized decisions based upon the particular evidence presented by the parties. The absolute buffer zone was intended to do more than prevent "unjustifiable annoyance and obstruction." S.W.2d at . Instead, there is evidence that the defendants' efforts to persuade clinic patients not to undergo abortions endangered patients' health. The Supreme Court has recognized that similar public health concerns may justify restrictions even on otherwise protected activities. See Beth Israel Hosp. v. National Labor Relations Bd. , 437 U.S. 483, 505 (1978).

The record in this case contains ample evidence to support the conclusion that it was necessary to exclude all demonstrators, including sidewalk counselors, from the buffer zone in order to protect the significant governmental interest of protecting clinic patients' health and ensuring women safe access to medical services provided by the clinics. In the Court's own words,

Some protesters . . . acted as "sidewalk counselors", approaching people who drove or walked towards clinics and offering them anti-abortion literature. These encounters were often peaceful efforts to convey information in a helpful, persuasive way, but sometimes protesters were confrontational, coming within inches of patients' faces and shouting at them, causing respondents to have to provide "escorts" to shield patients from protesters. . . . Physicians reported increased respiration, heart rate, and blood pressure among [patients who encountered protesters], which at times required sedatives to treat.

S.W.2d at .

Ignoring the district court's unchallenged finding that "Defendants' aggressive and harassing manner of protesting and sidewalk counseling of clinic patients increases the medical risks attendant to the abortion procedure" and the evidence supporting that finding, the Court concludes that the ban on sidewalk counseling within the buffer zones is overbroad because it proscribes "peaceful conduct." Id. at . But the district court established an absolute buffer zone only after narrower restrictions in the temporary injunction failed to ameliorate the medical risks created by the defendants' tactics. Judy Reiner, the director of one of the clinics, testified that sidewalk counselors "try to block the patients from coming into the clinic. . . . I have seen on dozens and dozens of occasions women coming into our clinic literally shaking, crying, scared to death." One doctor testified that stress makes abortion a much more dangerous procedure, potentially causing seizures or even cardiac arrest. He also testified that stress was more likely to occur when patients have to traverse protesters. And contrary to the Court's assertion that no evidence indicated that "peaceful and unobtrusive" sidewalk counseling harmed patients, a psychologist testified that, against the backdrop of clinic protests, the mere presence of anti-abortion activists within the buffer zones, even silent ones, increased the stress experienced by clinic patients and personnel. All of this testimony was uncontroverted.

The Court, however, disregards this medical testimony. Instead, it gives great weight to the testimony of two sidewalk counselors, who testified that their activities were peaceful and unobtrusive. Both of these witnesses, however, denied any direct involvement with the defendants, and both admitted that they did not know how sidewalk counselors affiliated with Operation Rescue or Rescue America conducted their activities. More importantly, there was evidence that some counselors acting in concert with the defendants did "very aggressive so-called sidewalk counseling. . . . Blocking patients, yelling and screaming at patients, following them." This activity continued in the face of prohibitions in the temporary injunction barring that very conduct. On this record, the district court's conclusion that the exclusion of all sidewalk counselors from the buffer zones was necessary to minimize the medical risks to patients was more than reasonable.

The temporary injunction allowed up to four sidewalk counselors within the buffer zones, but prohibited counselors from yelling, shouting, or speaking louder than a normal speaking voice and from engaging in behavior intended or reasonably likely to intimidate or harass clinic patients. It also prohibited defendants from "inhibiting, impeding, obstructing or interfering with . . . free and unmolested ingress and egress" to the clinics and from "touching, physically abusing, intimidating, or harassing any individual attempting to enter or exit" the clinics. The evidence in this case clearly establishes that those measures, along with a cease and desist provision, were ineffective. Nevertheless, the Court relies upon the same restrictions to protect the significant governmental interests threatened by the defendants' confrontational sidewalk counseling. S.W.2d at , .

The other dissenting Justice takes the position that we cannot conclude that the measures in the temporary injunction were ineffective because "[t]he record does not show that efforts to enforce the temporary injunction overwhelmed police resources or that protestors were arrested for aggressively confronting patients." Id. at (Gonzalez, J., concurring and dissenting). But, while the record does not clearly indicate that any of the defendants were arrested for violating the temporary injunction, several of the defendants were held in contempt for violating the temporary restraining order. And there is evidence that police were called to at least one clinic "on many, many, many occasions."

More importantly, I find it hard to believe that any jurist would take the position that a court cannot provide a remedy when there is evidence that the law has been violated, as there is in this case, simply because the record does not reflect that anyone has been arrested or that police resources have not been "overwhelmed." That position is particularly troubling when there is medical evidence, as in this case, that a violation could endanger women's lives. Unlike the labor cases cited by the other dissenting Justice, the absolute buffer zone in this case was intended to do more than insure unimpeded access or to shield clinic patients from speech that they may not wish to hear; it was intended to protect patients from the adverse medical consequences that might result from encounters with protesters.

Neither this Court nor the United States Supreme Court has ever denied the power of trial courts to expand injunctive relief when narrower restrictions prove ineffective, merely because no one has been arrested. To the contrary, the Supreme Court has emphasized the courts' power to modify injunctive relief when the circumstances warrant it. "Each case must turn on its own circumstances. It is a case for the flexible remedial power of a court of equity which may try one mode of restraint, and if it fails or proves to be too drastic, may change it. " American Steel Foundries v. Tri-City Cent. Trades Council , 257 U.S. 184, 206 (1921) (emphasis added).

In this case, the Court concedes that the district court was justified in banning protesters from the buffer zones because, "[g]iven that the temporary injunction's restrictions on sound levels had proved ineffective, the district court could resort to stronger measures." S.W.2d at . The same rationale justifies the ban on sidewalk counseling within the buffer zones. See Madsen , 512 U.S. at 770 ("We also bear in mind the fact that the state court originally issued a much narrower injunction, providing no buffer zone, and that this order did not succeed in protecting access to the clinic."). And in Schenck v. Pro-Choice Network , the Supreme Court considered abortion protesters' contention that a fixed buffer zone was unnecessarily broad because unchallenged provisions of the injunction at issue banned trespassing, excessive noise, and blocking or impeding access to facilities that performed abortions. 117 S. Ct. 855, 869 (1997). Mirroring the Court's position in this case, the protesters argued that "in light of these provisions, the only effect of a ban on 'demonstrating' within the fixed buffer zone is 'a ban on peaceful, nonobstructive demonstrations on public sidewalks or rights of way.'" Id. (quoting Petitioners' Brief at 47).

The Supreme Court was unpersuaded, observing that

[t]his argument . . . ignores the record in this case. Based on defendants' past conduct, the District Court was entitled to conclude that some of the defendants who were allowed within 5 to 10 feet of clinic entrances would not merely engage in stationary, nonobstructive demonstrations but would continue to do what they had done before . . . . The ban on 'blocking, impeding, and obstructing access' was therefore insufficient by itself to solve the problem, and the fixed buffer zone was a necessary restriction on defendants' demonstrations.

Id. Similarly, the record here belies the Court's conclusion that the complete buffer zone "burdened more speech than necessary by proscribing peaceful conduct." S.W.2d at .

The Court also errs by ignoring the effect that the presence of crowds of vociferous demonstrators outside of the buffer zone may have on sidewalk counselors' efforts to communicate peacefully. In American Steel Foundries , on which the other dissenting Justice heavily relies, the Supreme Court observed that a person's right to be free from "unjustifiable annoyance and obstruction" is not violated when another approaches and simply offers "to communicate and discuss information with a view to influencing the other's action." 257 U.S. at 204. The Supreme Court then explained, however, that attempts to communicate inoffensively assume an "aspect of intimidation" when large, unruly, and occasionally violent crowds gather. Id. Against such a backdrop, "[a]ll information tendered, all arguments advanced and all persuasion used . . . were intimidation." Id. at 205. Accordingly, the Supreme Court crafted an injunction designed to prevent intimidation, as the district court did here. While the injunction in American Steel Foundries allowed a missionary, as the other dissenting Justice here notes, it also prohibited any other demonstrators from congregating at the plant or in the neighboring public streets in order "to prevent the inevitable intimidation of the presence of groups of pickets." Id. at 207. In contrast, as modified by this Court, the injunction here allows both missionaries and intimidating crowds.

The district court's absolute buffer zone is entirely consistent with the Supreme Court's most recent decisions in this area. In Schenck , the Supreme Court struck down a floating buffer zone around people entering and leaving an abortion clinic. The Supreme Court noted that the floating buffer zone prevented the defendants from "communicating a message from a normal conversational distance or handing leaflets to people entering or leaving the clinics who are walking on public sidewalks." Schenck , 117 S. Ct. at 867. The Supreme Court struck down that prohibition because of the difficulty protesters would face in attempting to comply with the injunction in light of the configuration of the sidewalks around the clinics:

Protesters could presumably walk 15 feet behind the individual, or 15 feet in front of the individual while walking backwards. But they are then faced with the problem of watching out for other individuals entering or leaving the clinic . . . . With clinic escorts leaving the clinic to pick up incoming patients and entering the clinic to drop them off, it would be quite difficult for a protester who wishes to engage in peaceful expressive activities to know how to remain in compliance with the injunction. This lack of certainty leads to a substantial risk that much more speech will be burdened than the injunction by its terms prohibits. . . . Since there may well be other ways to both effect such separation and yet provide certainty (so that speech protected by the injunction's terms is not burdened) , we conclude that the floating buffer zones burden more speech than necessary to serve the relevant governmental interests.

Id. at 867-68 (footnotes omitted). In other words, a permissible injunction may be crafted to separate protesters, including sidewalk counselors, from clinic patients, so long as the required separation is clearly defined. The fixed buffer zone in this case comports with that standard.

Other portions of Schenck suggest that the injunction's absolute buffer zone is consistent with the First Amendment. In upholding a fixed buffer zone, the Court noted that

[t]he fact that the injunction allows two sidewalk counselors into the fixed buffer zones . . . does not detract from [the conclusion that the only way to ensure access was to move all protesters away from clinic doorways]. It is clear from the District Court's opinion that its decision to allow two sidewalk counselors inside the buffer zones was an effort to bend over backwards to "accommodate" defendants' speech rights. Because the District Court was entitled to conclude on this record that the only feasible way to shield individuals within the fixed buffer zone from unprotected conduct --especially with law enforcement efforts hampered by defendants' harassment of the police- -would have been to keep the entire area clear of defendant protesters, the District Court's extra effort to enhance defendants' speech rights by allowing an exception to the fixed buffer zone should not redound to the detriment of respondents.

Id. at 868 n.11 (emphasis added).

Based upon the evidence in this case, the injunction properly defined the boundary between the defendants' free speech rights and the significant governmental interests the plaintiffs sought to protect. The line drawn by the district court is "designed to limit no more than the very evil of 'in-your-face' harassment shown by the evidence at trial." 937 S.W.2d 60, 83. Accordingly, I dissent.

Rose Spector

Justice

OPINION DELIVERED: July 3, 1998