Schenck v. Pro Choice Network of Western New York
Decided on Feb. 19, 1997; 519 US 357

The injunction provision imposing a "fixed buffer zone" limitations is constitutional, because it protects the government's interest in public safety but the "floating buffer zone," limiting demonstrators' access within fifteen feet of people or cars, violates the First Amendment.



A. Issues Discussed:
Abortion, First Amendment

B. Legal Question Presented:

Are the following provisions unconsitutional: fixed buffer zones around abortion clinics, floating buffer zones around people and vehicles seeking access to or leaving abortion clinics, and an optional "cease and desist" command for sidewalk counselors inside the abortion clinic buffer zones?


A. Background:

"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."

On certiorari, the US Supreme Court affirmed in part and reversed in part the judgment of the United States Court of Appeals for the Second Circuit.

B. Counsel of Record:
Opposing Side
Unavailable Unavailable
C. The Arguments:
Opposing Side
Unavailable Unavailable
Opposing Side
Lucinda M. Finley argued the cause for respondents. With her on the brief were Martha F. Davis and Deborah A. Ellis.

Acting Solicitor General Dellinger argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Assistant Attorney General Patrick, Deputy Solicitor General Bender, Beth S. Brinkmann, and Jessica Dunsay Silver.

Briefs of amici curiae urging affirmance were filed for the State of Connecticut et al. by Richard Blumenthal, Attorney General of Connecticut, and Jennifer C. Jaff, Assistant Attorney General, joined by the Attorneys General for their respective jurisdictions as follows: Gale A. Norton of Colorado, Robert A. Butterworth of Florida, Calvin E. Holloway, Sr., of Guam, Margery S. Bronster of Hawaii, Pamela Carter of Indiana, Carla J. Stovall of Kansas, J. Joseph Curran, Jr., of Maryland, Scott Harshbarger of Massachusetts, Hubert H. Humphrey III of Minnesota, Deborah T. Po-ritz of New Jersey, Tom Udall of New Mexico, Frankie Sue Del Papa of Nevada, Michael F. Easley of North Carolina, Theodore R. Kulongoski of Oregon, Jeffrey L. Amestoy of Vermont, Christine O. Gregoire of Washington, and Darrell V. McGraw, Jr., of West Virginia; for the State of New York by Dennis C. Vacco, Attorney General, Victoria A. Graffeo, Solicitor General, Barbara G. Billet, Deputy Solicitor General, and Robert A. Forte, Assistant Attorney General; for the City of Phoenix, Arizona, by David A. Strauss, Roderick G. McDougall, and Marvin A. Sondag; for the American Civil Liberties Union et al. by Steven R. Shapiro, Marjorie Heins, Elliot Mincberg, and Lois Waldman; for the American College of Obstetricians and Gynecologists et al. by Elaine Metlin, Laura B. Feigin, Ann E. Allen, Roger K. Evans, and Eve W. Paul; for the Feminist Majority Foundation et al. by Talbot D'Alemberte; and for the American Medical Women's Association et al. by Eve C. Gartner.

Jay Alan Sekulow argued the cause for petitioners. With him on the briefs were Vincent P. McCarthy, Joseph P. Secola, Thomas P. Monaghan, James M. Henderson, Sr., Walter M. Weber, Keith A. Fournier, and John G. Stepanovich.

Briefs of amici curiae urging reversal were filed for the American Civil Liberties Union Foundation of Florida, Inc., et al. by James K. Green and Richard A. Waples; for the Family Research Council by Cathleen A. Cleaver; for Liberty Counsel by Mathew D. Staver; and for the Rutherford Institute by Anne-Marie Amiel and John W. Whitehead.


The Supreme Court held that:

"The injunction provisions imposing 'fixed buffer zone' limitations are constitutional, but the provisions imposing 'floating buffer zone' limitations violate the First Amendment.

[In] Madsen v. Women's Health Center...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.'

Petitioners' argument that no significant governmental interests support the injunction at issue is rejected...

[T]he governmental interests underlying the injunction [in Madsen]--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 services, also underlie the injunction here, and in combination are certainly significant enough to justify an appropriately tailored injunction to secure unimpeded physical access to the clinics.

The floating buffer zones are struck down because they burden more speech than is necessary to serve the relevant governmental interests. Such zones around people prevent defendants--except for sidewalk counselors tolerated by the targeted individual--from communicating a message from a normal conversational distance or handing out leaflets on the public sidewalks... Leafletting and commenting on matters of public concern are classic forms of speech that lie at the heart of the First Amendment, and speech in public areas is at its most protected on public sidewalks, a prototypical example of a traditional public forum...

The fixed buffer zones around the clinic doorways, driveways, and driveway entrances are upheld...

[P]etitioners' contention that the 'cease and desist' provision limiting the sidewalk counselors exception in connection with the fixed buffer zone violates the First Amendment. This limitation must be assessed in light of the fact that the entire exception for counselors was an effort to enhance petitioners' speech rights. Moreover, the 'cease and desist' provision is not content based simply because it allows a patient to terminate a protester's right to speak when the patient disagrees with the message being conveyed. Counselors remain free to espouse their message outside the 15-foot zone, and the condition on their freedom to espouse it within the zone is the result of their own previous harassment and intimidation of patients."

The United States Supreme Court affirmed in part and reversed in part the United States Court of Appeals for the Second Circuit judgment.

Justice Vote: 9 Pro vs. 0 Con
  • Rehnquist, W. Pro (Wrote majority opinion)
  • Stevens, J. Pro (Joined majority opinion)
  • O'Connor, S. Pro (Joined majority opinion)
  • Kennedy, A.Pro (Joined majority opinion)
  • Souter, D. Pro (Joined majority opinion)
  • Thomas, C. Pro (Joined majority opinion)
  • Ginsburg, R. Pro (Joined majority opinion)
  • Scalia, A. Pro (Wrote concurring dissenting opinion)
  • Breyer, S. Pro (Wrote concurring dissenting opinion)

The ACLU, as amicus curiae, urged affirmance of the judgment of the United States Court of Appeals for the Second Circuit; the Supreme Court affirmed in part and reversed in part in a 9-0 vote, giving the ACLU an apparent win.