SUPREME COURT OF THE UNITED STATES
Syllabus
SCHENCK et al. v. PRO CHOICE NETWORK OF WESTERN NEW YORK et al.
certiorari to the united states court of appeals for the second circuit
No. 95-1065. Argued October 16, 1996 -- Decided February 19, 1997
Respondents, upstate New York abortion doctors and clinics and an organization
dedicated to maintaining access to abortion services, filed a complaint in the District
Court seeking to enjoin petitioners, other individuals, and three organizations from
engaging in blockades and other illegal conduct at the clinics. The record shows that,
before the complaint was filed, the clinics were subjected to numerous large scale
blockades in which protesters marched, stood, knelt, sat, or lay in clinic parking lot
driveways and doorways, blocking or hindering cars from entering the lots, and patients
and clinic employees from entering the clinics. In addition, smaller groups of protesters
consistently attempted to stop or disrupt clinic operations by, among other things, milling
around clinic doorways and driveway entrances, trespassing onto clinic parking lots,
crowding around cars, and surrounding, crowding, jostling, grabbing, pushing, shoving,
and yelling and spitting at women entering the clinics and their escorts. On the sidewalks
outside the clinics, protesters called "sidewalk counselors" used similar methods in
attempting to dissuade women headed toward the clinics from having abortions. The
local police were unable to respond effectively to the protests due, in part, to the fact that
the defendants harassed them verbally and by mail. The District Court issued a temporary
restraining order (TRO), and later, after the protests and sidewalk counseling continued, a
preliminary injunction. As relevant here, injunction provisions banned "demonstrating
within fifteen feet . . . of . . . doorways or doorway entrances, parking lot entrances,
driveways and driveway entrances of [clinic] facilities" ("fixed buffer zones"), or "within
fifteen feet of any person or vehicle seeking access to or leaving such facilities" ("floating
buffer zones"). Another provision allowed two sidewalk counselors inside the buffer
zones, but required them to "cease and desist" their counseling if the counselee so
requested. In its accompanying opinion, the District Court, inter alia, rejected petitioners'
assertion that the injunction violated their First Amendment right to free speech. The en
banc Court of Appeals affirmed.
Held: The injunction provisions imposing "fixed buffer zone" limitations are
constitutional, but the provisions imposing "floating buffer zone" limitations violate the
First Amendment. Pp. 12-26.
(a) Because Madsen v. Women's Health Center, Inc., 512 U.S. 753, bears many
similarities to this case and because many of the parties' arguments depend on the
application of Madsen here, the Court reviews that decision. In Madsen, the Court said
that "standard time, place, and manner analysis is not sufficiently rigorous" for evaluating
content neutral injunctions that restrict speech, and held, instead, that the test is "whether
the challenged provisions . . . burden no more speech than necessary to serve a significant
government interest." Id., at 765. Pp. 12-14.
(b) Petitioners' argument that no significant governmental interests support the injunction
at issue is rejected. Given the factual similarity between this case and Madsen, the Court
concludes that the governmental interests underlying the injunction there--ensuring
public safety and order, promoting the free flow of traffic on streets and sidewalks,
protecting property rights, and protecting a woman's freedom to seek pregnancy related

No. 95-1065
 PAUL SCHENCK and DWIGHT SAUNDERS, PETITIONERS v. PRO CHOICE
NETWORK OF WESTERN NEW YORK et al.
on writ of certiorari to the united states court of appeals for the second circuit
[February 19, 1997]
Justice Scalia, with whom Justice Kennedy and Justice Thomas join, concurring in part
and dissenting in part.
Instead of evaluating the injunction before us on the basis of the reasons for which it was
issued, the Court today postulates other reasons that might have justified it and
pronounces those never determined reasons adequate. This is contrary to the settled
practice governing appellate review of injunctions, and indeed of all actions committed
by law to the initial factfinding, predictive and policy judgment of an entity other than the
appellate court, see, e.g., SEC v. Chenery Corp., 318 U.S. 80 (1943). The Court's opinion
also claims for the judiciary a prerogative I have never heard of: the power to render
decrees that are in its view justified by concerns for public safety, though not justified by
the need to remedy the grievance that is the subject of the lawsuit. I dissent.
The most important holding in today's opinion is tucked away in the seeming detail of the
"cease and desist" discussion in the penultimate paragraph of analysis: There is no right
to be free of unwelcome speech on the public streets while seeking entrance to or exit
from abortion clinics. Ante, at 24-25. "As we said in Madsen [v. Women's Health Center,
Inc., 512 U.S. 753 (1994)], quoting from Boos v. Barry, 485 U.S. 322,  [a]s a general
matter, we have indicated that in public debate our own citizens must tolerate insulting,
and even outrageous, speech in order to provide adequate breathing space to the freedoms
protected by the First Amendment.' " Ibid. (internal quotation marks omitted). But the
District Court in this case (like the Court of Appeals) believed that there was such a right
to be free of unwanted speech, and the validity of the District Court's action here under
review cannot be assessed without taking that belief into account. That erroneous view of
what constituted remediable harm shaped the District Court's injunction, and it is
impossible to reverse on this central point yet maintain that the District Court framed its
injunction to burden "no more speech than necessary," Madsen v. Women's Health
Center, Inc., 512 U.S. 753, 765 (1994), to protect legitimate governmental interests.
The District Court justified the "fixed buffer" provision of the injunction on two separate
grounds, each apparently tied to a different feature of the provision. First, the court said,
the fixed buffer zone was "necessary to ensure that people . . . seeking access to the
clinics will not be impeded." Pro Choice Network of Western New York v. Project
Rescue Western New York, 799 F. Supp. 1417, 1434 (WDNY 1992). And second, "the
 clear zones' will prevent defendants from crowding patients and invading their personal
space." Ibid. Thus, the fixed buffer had a dual purpose: In order to prevent physical
obstruction of access, it excluded crowds of protesters from a 15 foot zone around clinic
entrances, while permitting two nonobstructive "sidewalk counselors" to enter that zone.
(Allowing a small number of protesters is a common practice in picketing injunctions,
e.g., MineWorkers v. Bagwell, 512 U.S. 821, 823 (1994), and of course a required
practice when no more than that is necessary, see Madsen, supra, at 765.) And the second
purpose of the fixed buffer provision, the purpose that justified the requirement that even
the two nonobstruc tive sidewalk counselors "cease and desist" if the "targeted person"

SUPREME COURT OF THE UNITED STATES
 No. 95-1065
 PAUL SCHENCK and DWIGHT SAUNDERS, PETITIONERS v. PRO CHOICE
NETWORK OF WESTERN NEW YORK et al.
on writ of certiorari to the united states court of appeals for the second circuit
[February 19, 1997]
Chief Justice Rehnquist delivered the opinion of the Court.
The question presented is whether an injunction that places restrictions on demonstrations
outside abortion clinics violates the First Amendment. We uphold the provisions
imposing "fixed bubble" or "fixed buffer zone" limitations, as hereinafter described, but
hold that the provisions imposing "floating bubble" or "floating buffer zone" limitations
violate the First Amendment.
Respondents include three doctors and four medical clinics (two of which are part of
larger hospital complexes) in and around Rochester and Buffalo in upstate New York.
These health care providers perform abortions and other medical services at their
facilities. The eighth respondent is Pro Choice Network of Western New York, a not for
profit corporation dedicated to maintaining access to family planning and abortion
services.
On September 24, 1990, respondents filed a complaint in the District Court for the
Western District of New York against fifty individuals and three organizations--
Operation Rescue, Project Rescue Western New York,
and Project Life of Rochester. The complaint alleged that defendants had consistently
engaged in illegal blockades and other illegal conduct at facilities in the Western District
of New York where abortions were performed. (For convenience, we refer to these
facilities as "clinics" throughout.) The complaint alleged one federal and six state causes
of action: conspiracy to deprive women seeking abortions or other family planning
services of the equal protection of the laws, in violation of Rev. Stat. §1980, §42 U.S.C.
1985 (3); discrimination against and harassment of women seeking abortions and other
family planning services, in violation of N. Y. Civ. Rights Law §40-c (McKinney 1992)
and N. Y. Exec. Law §296 (McKinney 1993); trespass; tortious interference with
business; tortious harassment; false imprisonment; and intentional infliction of emotional
harm. The complaint alleged that a large blockade was planned for September 28, and
requested that the court issue a temporary restraining order (TRO) to stop it. The
complaint also sought a permanent injunction and damages.
Before the complaint was filed, the clinics were subjected to numerous large scale
blockades in which protesters would march, stand, kneel, sit, or lie in parking lot
driveways and in doorways. This conduct blocked or hindered cars from entering clinic
parking lots, and patients, doctors, nurses, and other clinic employees from entering the
clinics.
In addition to these large scale blockades, smaller groups of protesters consistently
attempted to stop or disrupt clinic operations. Protesters trespassed onto clinic parking
lots and even entered the clinics themselves. Those trespassers who remained outside the
clinics crowded around cars or milled around doorways and driveway entrances in an
effort to block or hinder access to the clinics. Protesters sometimes threw themselves on

PAUL SCHENCK and DWIGHT SAUNDERS, PETITIONERS v. PRO CHOICE
NETWORK OF WESTERN NEW YORK et al.
on writ of certiorari to the united states court of appeals for the second circuit
[February 19, 1997]
Justice Breyer, concurring in part and dissenting in part.
Words take on meaning from context. Considered in context, the preliminary injunction's
language does not necessarily create the kind of "floating bubble" that leads the Court to
find the injunction unconstitutionally broad. See Part II-C, supra. And until quite
recently, no one thought that it did. The "floating bubble" controversy apparently arose
during oral argument before the en banc Court of Appeals. The Court of Appeals then
gave the District Judge, who has ongoing responsibility for administering the injunction,
an initial opportunity to consider the petitioners' claim and, if necessary, to clarify or
limit the relevant language. 67 F. 3d 377, 389, n. 4 (CA2 1995) (en banc). The Court of
Appeals' response, in my view, is both legally proper and sensible. I therefore would
affirm its judgment.
The preliminary injunction's key language prohibits demonstrating "within fifteen feet of
any person or vehicle seeking access to or leaving such facilities." This language first
appeared in the temporary restraining order (TRO), where it defined the precise scope of
the order's prohibition against blocking "ingress into or egress from" facilities. That
portion of the TRO enjoined the defendants from
"trespassing on, sitting in, blocking, impeding or obstructing access to, ingress into or
egress from any facility at which abortions are performed in the Western District of New
York, including demonstrating within 15 feet of any person seeking access to or leaving
such facilities . . . ." App. 23 (emphasis added).
Before the District Court issued the TRO, Reverend Schenck asked whether this language
would create a floating bubble. The District Court replied:
"THE COURT: I don't think that was the intent. . . . [W]e're talking about . . . free access.
. . . It's not a moving 15 feet.
"REV. SCHENCK: So in other words, you're speaking of the facility itself?
"THE COURT: I think that's what we were talking about . . . . We're talking fifteen feet
from [e.g., a doorway] . . . to go right out to where ever you're going. . . . [M]y gosh, you
would never be able . . . to deal with that if it was a moving length.
"It's fifteen feet from the entrance . . . . [Y]ou have to apply common sense . . . and [an
interpretation of the language creating a moving zone] would not in any way at all be a
fair interpretation of what we're talking about.
"REV. SCHENCK: Well, I'm glad you pointed that out . . . . [T]here is, I think, a very
high degree of ambiguity . . . and no one . . . said what we're talking about here is 15 feet
from an entranceway.
"THE COURT: I think everyone is clear on that now." App. to Reply Brief for Petitioner
A-2 to A-3.
The identical key language (with the added words "or vehicle") then found its way into
the preliminary injunction, issued 16 months later, where its presence apparently
remained subject to the "no float" understanding that the District Court had called "clear."
The preliminary injunction simply separated the key language from the words that had
immediately preceded it in the TRO (the "trespassing on, sitting in, blocking . . . ingress

     No.95-1065
     In the
     Supreme Court of the United States
     October Term, 1995

     Reverend Paul Schenck, et al.,
     Petitioners,

     v.

     Pro-Choice Network of Western New York, et al.,
     Respondents.

     On Writ of Certiorari to the United States Court of Appeals for the Second Circuit

     Brief Amicus Curiae of the American Civil Liberties Union, New York Civil
     Liberties Union, American Jewish Congress, American Jewish Committee, and
     People for the American Way, in Support of Respondents



     TABLE OF CONTENTS

     INTEREST OF AMICI

     INTRODUCTION

     STATEMENT OF THE CASE

     SUMMARY OF ARGUMENT

     ARGUMENT

                I. THE FIRST AMENDMENT PRINCIPLES THAT GOVERN
                THIS CASE ARE WELL-ESTABLISHED AND LEAVE AMPLE
                ROOM FOR PETITIONERS' POLITICAL PROTEST

                II. THE 15-FOOT BUFFER ZONE COMPORTS WITH THE
                CONSTITUTIONAL AND EQUITABLE STANDARDS SET
                FORTH IN MADSEN

                      A. The Injunction Followed Extensive Evidentiary
                      Hearings And Rested Upon Findings Of
                      Obstruction, Harassment, Repeated Disobedience
                      Of The Temporary Restraining Order, And Limited
                      Capacity Of The Police To Maintain Unimpeded
                      Access To The Clinics

                              UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT
                                    No. 1215 -- August Term, 1994
                         (Argued March 24, 1994, Decided September 6, 1994)
                    (Argued in banc April 17, 1995, Decided: September 28, 1995)
                                          Docket No. 92-7302
                                 Pro-Choice Network of Western New
                                 York, Buffalo GYN Women Services,
                                  Erie Medical Center, Paul J. Davis,
                                   M.D., Shalom Press, M.D., Barnett
                                             Slepian, M.D.,
                                          Plaintiffs-Appellees,
                                                   v.
                                 Rev. Paul Schenck, Dwight Saunders,
                                        Defendants-Appellants,
     Project Rescue Western New York, Operation Rescue, James L. Evans, Rev., Ted Cadwallader,
     Rev., David Anderson, Jeffrey Baran, Brian Bayley, Bonnie Behn, Ronald Breymeier, Gilbert
     Certo, Scott Chadsey, Kim Day, Constance Debo, Mark Dent, Wayne Dent, Paul Diemert, Joan
      Giangreco, Delores Glaser, Carmelina Golba, Kevin Golba, Linda Hall, Nancy Hall, Thomas
      Hall, Daniel Hamlin, Rev., James Handyside, Pamela Huffnagle, Donna Johanns, Eric Johns,
       Neal Kochis, Paulette Likoudis, Charles McGuire, Christopher Morrow, Annemarie Nice,
      Nicholas Pukalo, Carla Rainero, Thomas Riley, Patricia Ostrander Linda Ross, David Smith,
       Mark Sterlace, Joyce Strigel, John Thomann, John Tomasello, Paul Waldmiller, Jr., Nancy
       Walker, Leonard Winter, Horace Wolcott, John Does, Jane Doe, The last two names being
     fictitious names, the real names of said defendants being presently unknown to plaintiffs, said
       fictitious names being intended to designate organizations or persons who are members of
        defendant organizations and others acting in concert with any of the defendants who are
      engaging in, or intend to engage in the conduct complained herein, Project Life of Rochester,
                              Gerald Crawford, David Long, Defendants.

Before: NEWMAN, Chief Judge, OAKES, MESKILL, KEARSE, WINTER, MINER,
ALTIMARI, MAHONEY, WALKER, McLAUGHLIN, JACOBS, LEVAL, CALABRESI,
CABRANES, and PARKER, Circuit Judges.

Rehearing in banc of two provisions of a preliminary injunction issued by the District Court for
the Western District of New York (Richard J. Arcara, Judge).

The two provisions of the District Court's injunction that have been reheard by the in banc court
are affirmed, except to the extent modified by the opinion of Judge Oakes, in which Chief Judge
Newman and Judges Kearse, Miner, Walker, Leval, Calabresi, Cabranes, and Parker concur. The
portions of the panel opinion invalidating these two provisions are vacated.

Judge Winter concurs in the result with a separate opinion in which Chief Judge Newman and
Judges Kearse, Mahoney, Walker, McLaughlin, Jacobs, Leval, Calabresi, and Cabranes concur.

Judge Jacobs concurs in the result with a separate opinion in which Judge Mahoney concurs.

Judge Meskill dissents with a separate opinion in which Judge Altimari concurs.