Madsen v.Women’sHealth Center, 512 U.S. 753 (1994)

In response to virulent protests at an abortion clinic, a Florida state court judge issued an injunction prohibiting protesters from blocking or interfering with public access to the clinic and from physically abusing those who entered or left the clinic. Six months later the judge broadened the injunction as a result of repeated violations by protesters of the earlier court order. The protesters appealed to the Florida Supreme Court and then to the U.S. Supreme Court on the grounds that the injunction violated their freedom of speech under the First Amendment.

The Court split on the issues, upholding some parts of the injunction and overturning others. In a six-tothree decision Chief Justice William Rehnquist’s majority opinion held that the injunction was content neutral. That is, it did not prohibit speech because the content of that speech was opposed to abortion; it prohibited speech because it intruded upon the rights of those entering and leaving the clinic. Normally a content-neutral regulation limiting speech would be judged on the basis of whether there was a significant governmental interest in infringing upon the speech, that the means were narrowly tailored, and that the regulation left open ample alternative channels of communication. Because this regulation was an injunction and not a legislative enactment, five of the justices in the majority concluded that a more stringent standard should apply: the governmental end must be significant and the means could burden no more speech than necessary.

Using this standard, the majority concluded that the state’s ends were significant (protect the rights of women to seek medical care, ensure public safety and order, promote the free flow of traffic on streets and sidewalks, protect private property, protect medical privacy). In evaluating the means, the majority upheld parts of the injunction establishing a 36-foot buffer zone around the clinic in which protesters could not congregate and a restriction on noise levels (such as bullhorns). However, the majority declared unconstitutional a ban on picket signs or other observable images such as pictures of aborted fetuses, a ban on protesters approaching anyone within 300 feet of the clinic, and a ban on picketing or demonstrating within 300 feet of the residences of clinic staff.

Concurring in part and dissenting in part, Justice John Paul Stevens urged that a more lenient standard be applied to injunctions than legislation or ordinances in that such injunctions are applied only to those who have engaged in illegal activity and not, as in the case of general legislation, to everyone.

Justice Antonin Scalia, joined by justices Clarence Thomas and Anthony Kennedy, also concurred in part and dissented in part. Justice Scalia urged the Court to subject injunctions to even stricter scrutiny than that in the majority opinion. He noted that injunctions are imposed by a single individual and not by a legislative body, so the opportunity for abuse was greater. Consequently, the justice would require strict scrutiny of injunctions, meaning that the ends must be compelling and the means to achieve them necessary and narrowly tailored. Under that standard, the three-justice minority would have declared all of the provisions unconstitutional.

The precedent established in this case is used to balance the rights of those seeking the services of abortion clinics and the rights of those seeking to protest, including the case of Schenck v. Pro-Choice Network of Western New York, 519 U.S. 357 (1997).

MICHAEL W. BOWERS

References and Further Reading

• Lively, Donald E. et al. First Amendment Law: Cases, Comparative Perspectives, and Dialogues. Cincinnati, OH: Anderson, 2003, pp. 343–358.
• Sullivan, Kathleen M., and Gerald Gunther. Constitutional Law, 14th ed. New York: Foundation Press, 2001, pp. 1215–1218.

Cases and Statutes Cited

• Schenck v. Pro-Choice Network of Western New York, 519 U.S. 357 (1997)

See also Anti-Abortion Protest and Freedom of Speech; Content-Neutral Regulation of Speech; Freedom of Speech: Modern Period (1917–Present); Freedom of the Press: Modern Period (1917–Present); Frisby v. Schultz, 487 U.S. 474 (1988); O’Brien Content-Neutral Free Speech Test