603
NOTE
OPERATION RESCUE V. PLANNED
PARENTHOOD, INC.:
A JUDICIAL SHOWDOWN OVER SIDEWALK
COUNSELORS AND FIRST AMENDMENT
RIGHTS
*
Table of Contents
I. INTRODUCTION ........................................................................604
II. RECITATION OF THE CASE.......................................................606
A. Facts.................................................................................606
B. Lower Court Decisions....................................................607
C. The Texas Supreme Court’s Decision............................609
D. The Concurring and Dissenting Opinions ....................610
III. ANALYSIS.................................................................................610
A. Background.....................................................................610
1. Early Doctrine Governing Content-Neutral
Statutory Restrictions on Free Speech...................610
2. The Madsen Standard for Injunctions..................611
3. The Application of the Madsen Rule in
Schenck v. Pro-Choice Network ............................613
4. Resolving the Issue of Sidewalk Counseling
Based upon Madsen and Schenck.........................614
B. Operation Rescue’s Arguments for “Sidewalk
Counseling” .....................................................................614
1. The First Amendment Protects Peaceful
Sidewalk Counseling..............................................615
2. The State Has No Interest in Protecting
* This paper was the winner of the 1999 Porter & Hedges, L.L.P. Award for
an outstanding paper in the area of constitutional law.
604 HOUSTON LAW REVIEW [37:603
Citizens from Upsetting Speech.............................617
3. Sidewalk Counseling Is Analogous to
Missionary Activity in Labor Protests and
Leaflet Distribution................................................618
C. The Historical Context of Sidewalk Counseling...........623
D. Legal Precedent Justifying a Ban on Sidewalk
Counseling.......................................................................624
1. Sidewalk Counseling Is Conduct Not Protected
by the First Amendment.........................................625
2. The Captive Audience Doctrine Justifies
Regulation...............................................................627
3. Past Violent Behavior Justifies the Ban...............629
4. Protecting Medical Facilities Justifies Speech
Restrictions..............................................................630
E. Implications of Operation Rescue.................................632
IV. CONCLUSION ...........................................................................632
“The baby killing center (abortion clinic) is a storefront on
Main Street. All those who are entering the clinic have no
hope. They have given up on all that is good and are
about to murder their own child. . . . Will you please go
tell them . . . .”
1
I. INTRODUCTION
The scene evolves on a narrow walkway that marks the
entrance into an abortion clinic in Houston, Texas.
2
Abortion
protesters chant, sing, and shout.
3
Some protesters act as
“sidewalk counselors,”
4
offering pro-life literature to people
entering the clinic.
5
Although these interchanges are often
peaceful, angry confrontations sometimes erupt when the
sidewalk counselors “get in the faces” of patients and yell anti-
abortion slogans.
6
It is against this backdrop that the Texas
1. Operation Rescue West, Do Something (visited Mar. 16, 2000)
<http://www.operationrescue.org/dosomething/>.
2. See Operation Rescue v. Planned Parenthood, Inc., 975 S.W.2d 546, 549-50
(Tex. 1998) (describing protest actions at a number of abortion clinics).
3. See id. at 550.
4. See id. This Note uses the term “sidewalk counselor” to refer to anti-
abortion protesters who approach clinic patients individually in an attempt to
initiate one-on-one anti-abortion counseling.
5. See id. (“These encounters were often peaceful efforts to convey information
in a helpful, persuasive way . . . .”).
6. See id.
2000] OPERATION RESCUE V. PLANNED PARENTHOOD 605
Supreme Court rendered its decision in Operation Rescue v.
Planned Parenthood, Inc.
7
Few issues in the history of United States jurisprudence
have divided the courts, the political system, and indeed the
nation more starkly than that of a woman’s right to a legal
abortion.
8
Although over twenty-five years have elapsed since the
Supreme Court determined that a woman’s constitutional right
to privacy included the decision to have an abortion,
9
bitter
altercations frequently erupt between pro-choice advocates and
pro-life activists.
10
In Texas, as in many states across the nation,
the long-standing feud continues today.
11
At the heart of the
current debate is whether the First Amendment guarantee of
free speech allows abortion protesters to approach women
seeking abortion services.
12
This Note contends that the Texas Supreme Court, under
the guise of adherence to the First Amendment principles
articulated by the United States Supreme Court in Madsen v.
Women’s Health Center, Inc.
13
and Schenck v. Pro-Choice
7. 975 S.W.2d 546 (Tex. 1998).
8. See, e.g., KRISTIN LUKER, ABORTION AND THE POLITICS OF MOTHERHOOD 1-
2 (1984) (noting that the abortion issue incites political turmoil because “the two
sides share almost no common premises and very little common language”).
9. See Roe v. Wade, 410 U.S. 113, 164-66 (1973) (striking down as
unconstitutionally broad a Texas statute that restricted elective abortions).
10. See generally Carolyn Thompson, Slain Abortion Doctor Had Voiced
Concerns He Might Die Violently, HOUS. CHRON., Oct. 26, 1998, at 2A (reporting that
slain physician Barnett Slepian had frequently been the target of aggressive anti-
abortion protestors prior to his murder). See also CYNTHIA GORNEY, ARTICLES OF
FAITH (1998) (detailing continuing conflicts between pro- and anti-abortion activists
in Missouri after Roe v. Wade); NAT HENTOFF, LIVING THE BILL OF RIGHTS (1998)
(describing the Supreme Court’s Webster v. Reproductive Health Services decision,
which expanded state power to broaden restrictions on abortion, as one of the
“term’s most controversial”); GARY E. MCCUEN, ABORTION VIOLENCE AND
EXTREMISM (1997) (presenting diametrically opposed commentary on Roe v. Wade
from across the political spectrum).
11. See, e.g., Planned Parenthood v. Casey, 505 U.S. 833 (1992) (striking down
a state statute that required spousal notice of a planned abortion as
unconstitutional); Portland Feminist Women’s Health Ctr. v. Advocates for Life,
Inc., 62 F.3d 280 (9th Cir. 1995); Libertad v. Welch, 53 F.3d 428 (1st Cir. 1995)
(using the Racketeer Influenced and Corrupt Organizations Act to assert claims
against anti-abortion groups); Birth Control Ctrs., Inc. v. Reizen, 743 F.2d 352 (6th
Cir. 1984) (challenging a state regulatory scheme, which applied to freestanding
abortion-providing clinics, on both federal equal protection and due process
grounds); Operation Rescue, 975 S.W.2d 546 (narrowing the scope of an injunction,
which created buffer zones at abortion clinics and physicians’ residences, on free
speech grounds).
12. See Operation Rescue, 975 S.W.2d at 554. The petitioners claimed that the
injunction violated their First Amendment right to free expression.
13. 512 U.S. 753 (1994).
606 HOUSTON LAW REVIEW [37:603
Network,
14
unjustifiably mandated that sidewalk counselors be
allowed within fixed buffer zones around abortion clinics.
Moreover, this Note argues that a complete buffer zone is
warranted when previous injunctive relief has failed to safeguard
a woman’s access to abortion services. This Note maintains
further that an injunction prohibiting sidewalk counseling does
not offend the First Amendment.
Part II of this Note discusses the Texas Supreme Court’s
Operation Rescue v. Planned Parenthood, Inc. decision, in which
the court fashioned permanent injunctive relief restricting pro-
life activists from protesting within a buffer zone around abortion
clinics, but allowed a maximum of two sidewalk counselors inside
the buffer zone.
15
Part III charts a brief history of content-neutral
restrictions on free speech in traditional public forums under the
First Amendment and analyzes the arguments supporting the
admission of sidewalk counselors inside buffer zones. Part III
also argues that legal precedent supports a ban on sidewalk
counseling and examines the implications of the court’s holding
in Operation Rescue.
This Note argues that sidewalk counseling may be
prohibited based upon several legal theories: 1) sidewalk
counseling is conduct that is not protected by the First
Amendment, 2) women seeking abortions are a captive audience
and thus may be protected from certain speech, 3) past violent
behavior warrants tighter restrictions on otherwise protected
expression, and 4) medical facilities should enjoy protection from
certain types of expressive activity.
Part IV concludes that the Texas Supreme Court erred in its
Operation Rescue holding because the court ignored the
government’s role in protecting a woman’s right to unrestricted
access to abortion clinics. Based upon the facts in Operation
Rescue, the Texas Supreme Court should have upheld the buffer
zone completely and banned sidewalk counseling.
II. RECITATION OF THE CASE
A. Facts
Operation Rescue is a national activist organization opposed
to abortions.
16
During the 1992 Republican National Convention,
14. 519 U.S. 357 (1997).
15. See Operation Rescue, 975 S.W.2d at 567.
16. See Operation Rescue West, Sidewalk Counselor, (visited Mar. 16, 2000)
<http://www.operationrescue.org/sidewalkcounselor/> (listing several states in which
2000] OPERATION RESCUE V. PLANNED PARENTHOOD 607
the group staged massive protests outside abortion clinics in
Houston, Texas.
17
Operation Rescue’s strategy was to picket local
abortion clinics and the homes of physicians who worked at the
clinics.
18
Prior to the convention, leaders of Operation Rescue
held a press conference to announce their plans.
19
In an effort to
prevent the demonstrations, local clinics and doctors obtained a
temporary restraining order banning anti-abortion protestors
from demonstrating within 100 feet of the clinics.
20
Shortly thereafter, leaders of Operation Rescue violated the
restraining order while demonstrating at Houston-area clinics.
21
The district court issued a temporary injunction, which
prohibited demonstrations within 100 feet of the clinics, but
allowed four demonstrators to approach within twenty-five feet of
the clinics.
22
Under the injunction, one demonstrator was allowed
to approach people entering or leaving the clinics for the purpose
of one-on-one counseling.
23
This demonstrator was required to
stay at least ten feet from the patient, unless the patient
permitted the demonstrator to come closer.
24
The demonstrators
repeatedly violated the order, often yelling at patients or coming
within inches of the patients’ faces and shouting at them.
25
B. Lower Court Decisions
Two years later, the clinics and doctors petitioned the court
for a permanent injunction against the demonstrators.
26
They
also filed suit based upon claims of civil conspiracy, tortious
interference, and invasion of privacy and property rights.
27
At
trial, evidence demonstrated that some protests were peaceful—
demonstrators merely chanted, prayed, or carried signs.
28
Other
protests, however, were more aggressive.
29
At these
demonstrations, protestors yelled at patients, often using
Operation Rescue supporters conduct sidewalk counseling).
17. See Operation Rescue, 975 S.W.2d at 549-50.
18. See id. at 550.
19. See id.
20. See id.
21. See id. (describing the violation as intentional).
22. See id. (noting the injunction was “nearly as restrictive as the temporary
restraining order”).
23. See id.
24. See id.
25. See id. at 550-51 (“[M]any of the protestors’ activities described in the
record clearly violated [the injunction’s] prohibitions.”).
26. See id.
27. See id. at 551.
28. See id. at 550.
29. See id.
608 HOUSTON LAW REVIEW [37:603
bullhorns.
30
The demonstrators also attempted to block access to
the clinics by lying down in front of the clinics.
31
Some of the
demonstrators chained their necks to clinic fixtures.
32
They glued
the clinic locks shut, threw bottles and rocks at the buildings,
and tossed butyric acid through the windows of the clinics, filling
the offices with a nauseating smell.
33
The demonstrators also
approached patients individually, attempting to disseminate pro-
life literature.
34
As a result of these aggressive tactics, some
patients required assistance to get past the demonstrators and
into the clinics.
35
The doctors at the abortion clinics reported that patients
were physically affected by the demonstrations.
36
Patients
exhibited nervousness, accelerated heart rates, and increased
blood pressure and often required a sedative to treat these
symptoms.
37
Moreover, physicians and their families were
threatened, and at least one physical altercation occurred
between a doctor and a demonstrator.
38
The trial court awarded the abortion clinics and doctors a
permanent injunction and assessed $1.2 million in compensatory
and punitive damages against Operation Rescue.
39
The trial
court explained that the injunction “would ‘serve several
significant governmental interests,’” including protecting access
to healthcare, promoting public safety, preserving property
rights, and ensuring the balance of competing constitutional
rights.
40
The permanent injunction prohibited the demonstrators
from entering onto the clinics’ premises without permission;
obstructing the clinics’ entrances; interfering with anyone
attempting to enter or exit the clinics; touching, physically or
verbally abusing, or harassing patients; and demonstrating
within established buffer zones.
41
The demonstrators were also
prohibited from using any sound amplification devices such as
30. See id. (noting that demonstrators also played loud music in an effort to
disturb people).
31. See id.
32. See id.
33. See id.
34. See id. (revealing that the sidewalk counselors occasionally became
confrontational by coming very close to patients and shouting at them).
35. See id. at 550-51.
36. See id. at 551.
37. See id.
38. See id. at 550.
39. See id.
40. See id.
41. See id.
2000] OPERATION RESCUE V. PLANNED PARENTHOOD 609
bullhorns or speakers.
42
The court of appeals affirmed without
modification.
43
C. The Texas Supreme Court’s Decision
The Texas Supreme Court determined that portions of the
injunction unduly burdened the protestors’ right to free speech.
44
The court explained that restrictions on free speech are analyzed
by considering two factors: 1) whether the forum is public or
private and 2) whether the speech restriction is content based or
content neutral.
45
The court concluded that the injunction at
issue was a content-neutral restriction involving a public forum.
46
In its analysis of the Operation Rescue injunction,
47
the
court employed the standard of review articulated by the United
States Supreme Court in Madsen v. Women’s Health Center,
Inc.
48
The Madsen standard requires that “the injunction burden
no more speech than necessary to serve a significant government
interest.”
49
The Texas Supreme Court declared that the Madsen
standard applied to a content-neutral injunction that regulates
free speech in a public forum.
50
The court then applied the
Madsen rule to the facts of the case and upheld many of the
injunction’s buffer zone provisions, but stopped short of
approving the complete buffer zone provision.
51
Instead, the court
modified the injunction to allow two “sidewalk counselors” inside
the buffer zone.
52
Under this scheme, only one protester may
approach a patient, and the protester must retreat at the
patient’s request.
53
The court upheld the buffer zones around the
residences of four doctors who performed abortions.
54
42. See id. at 553.
43. See id.
44. See id. at 564 (emphasizing that the injunction proscribed both peaceful
conduct and aggressive protestor actions).
45. See id. at 556 (citing Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460
U.S. 37, 44-46 (1983)).
46. See id.
47. See id.
48. 512 U.S. 753 (1994).
49. See id. at 765. The Madsen standard is discussed fully in Part III.A.2 infra.
50. See Operation Rescue, 975 S.W.2d at 557.
51. See id. at 560-68 (examining each abortion facility that petitioned the court
to determine whether the evidence supported a grant of injunctive relief restricting
access to each particular clinic).
52. See id. at 567.
53. See id. The requirement that a sidewalk counselor retreat when told to do
so by a patient is generally known as a “cease and desist” provision. See, e.g.,
Schenck v. Pro-Choice Network, 519 U.S. 357, 383-85 (1997) (allowing two sidewalk
610 HOUSTON LAW REVIEW [37:603
D. The Concurring and Dissenting Opinions
Justice Spector filed an opinion, concurring in part and
dissenting in part.
55
Justice Spector disagreed with the majority’s
finding that the buffer zones burdened more speech than
necessary.
56
Justice Spector also expressed concern that allowing
two sidewalk counselors inside the buffer zones may endanger
the patients’ safety.
57
Justice Gonzalez also filed an opinion, concurring in part
and dissenting in part.
58
Justice Gonzalez asserted that the
central issue in the case was whether a person may approach a
woman seeking an abortion to discuss her other options without
the risk of arrest and prosecution.
59
Justice Gonzalez concurred with the majority’s sanction of
peaceful sidewalk counseling.
60
Justice Gonzalez’s dissent
focused on the injunction’s cease and desist provision, which, in
his opinion, “chills protected speech far beyond that necessary to
accomplish the injunction’s legitimate goals.”
61
III. ANALYSIS
A. Background
1. Early Doctrine Governing Content-Neutral Statutory
Restrictions on Free Speech. The United States Supreme Court
clarified the test for content-neutral restrictions on free speech in
Perry Education Ass’n v. Perry Local Educators’ Ass’n.
62
Perry
arose out of a dispute between two local teachers’ unions.
63
The
Perry Education Association (PEA) was elected to represent
teachers in collective bargaining with the school district.
64
As
part of the collective bargaining agreement, the PEA was granted
counselors, who were subject to a cease and desist provision, inside a buffer zone).
54. See Operation Rescue, 975 S.W.2d at 568-69 (emphasizing the heightened
governmental interest in protecting residential privacy).
55. See id. at 570 (Spector, J., concurring in part and dissenting in part).
56. See id. (Spector, J., concurring in part and dissenting in part).
57. See id. (Spector, J., concurring in part and dissenting in part) (stressing the
inherently volatile nature of abortion protests).
58. See id. at 573 (Gonzalez, J., concurring in part and dissenting in part).
59. See id. (Gonzalez, J., concurring in part and dissenting in part).
60. See id. (Gonzalez, J., concurring in part and dissenting in part).
61. Id. (Gonzalez, J., concurring in part and dissenting in part).
62. 460 U.S. 37, 45 (1983).
63. See id. at 39.
64. See id. at 38-39.
2000] OPERATION RESCUE V. PLANNED PARENTHOOD 611
exclusive access to the schools’ mail system and teacher
mailboxes.
65
Perry Local Educators’ Association (PLEA), a rival
teacher’s union, argued that its restricted access to the school
mail system violated PLEA’s First and Fourteenth Amendment
rights.
66
The Perry Court characterized the state’s power to restrict
communication in traditionally public forums as “sharply
circumscribed.”
67
The Court explained that the state may impose
content-neutral restrictions on “the time, place, and manner of
expression” that are “narrowly tailored to serve a significant
government interest” and permit alternative methods of
communication.
68
By contrast, a restriction based upon the
content of the speech or message is subject to strict scrutiny.
69
Under the strict scrutiny analysis, the government must show
that the restriction is narrowly drawn to serve a compelling
governmental interest.
70
The Perry Court found that the school
mail system was not a traditional public forum, and thus the
restriction was not subject to this test.
71
2. The Madsen Standard for Injunctions. The Supreme
Court developed a new test for content-neutral injunctions
restricting speech in Madsen v. Women’s Health Center, Inc.
72
The Court distinguished this new, more rigorous test from the
time, place, and manner standard that it applied to ordinances
and other statutory restrictions.
73
Under facts similar to those in
Madsen, the Texas Supreme Court in Operation Rescue relied
upon the Madsen standard in determining the constitutionality
of the injunction in the case.
74
In Madsen, abortion protesters repeatedly violated a
temporary injunction that prohibited the harassment of clinic
personnel and patients at abortion clinics and at private
residences.
75
A Florida state court issued an amended injunction
65. See id. at 39.
66. See id.
67. See id. at 45 (defining “public forums” as “places which by long tradition or
by government fiat have been devoted to assembly and debate” and providing the
example of public streets and parks as “quintessential public forums”).
68. See id.
69. See id.
70. See id.
71. See id. at 46.
72. 512 U.S. 753, 765 (1994).
73. See id.
74. See Operation Rescue v. Planned Parenthood, Inc., 975 S.W.2d 546, 557
(Tex. 1998).
75. See Madsen, 512 U.S. at 758-61.
612 HOUSTON LAW REVIEW [37:603
that restricted the anti-abortion protesters’ access to the clinics
and their methods of protest.
76
The Florida Supreme Court
upheld the injunction.
77
The lower state court’s decision was also challenged in
federal district court.
78
While the matter was before the Florida
Supreme Court, the federal district court’s refusal to enjoin the
state court’s injunction was appealed to the United States Court
of Appeals for the Eleventh Circuit.
79
The Eleventh Circuit found
that the injunction was content based and neither served a
compelling state interest nor was narrowly tailored to achieve
that end.
80
Thus, the court reasoned, the injunction
unconstitutionally infringed upon the protesters’ First
Amendment rights.
81
The United States Supreme Court granted
certiorari to resolve the dispute between the Florida Supreme
Court and the Eleventh Circuit regarding the injunction.
82
The Madsen Court upheld the thirty-six-foot buffer zone,
explaining that it was necessary in light of the previous
injunction’s failure to protect access to the clinic.
83
The Court
chose not to speculate regarding the appropriateness of the size
of the buffer zone, but rather deferred to the state court’s
judgment on the issue.
84
Thus, the Court upheld the absolute
buffer around the clinic, thereby closing the area off to all
protesters, including sidewalk counselors.
85
The Court explained that the standard for injunctions
restricting speech or other expression requires a significant
government interest.
86
Further, the injunction may impose no
more of a burden on speech than is necessary to protect that
interest.
87
The government interests identified and upheld in
Madsen were protecting a woman’s freedom to seek medical
76. See id. at 759-60 (noting that protestors were prohibited from the following:
1) making excessive noise by using sound-amplification devices; 2) yelling, singing or
chanting; 3) approaching patients seeking abortions within 300 feet of the clinic
unless the patient expressed an interest in speaking with the protester; and 4)
demonstrating within 300 feet of the clinic employees’ private residences).
77. See id. at 761.
78. See id.
79. See Cheffer v. McGregor, 6 F.3d 705, 706-07 & n.3 (11th Cir. 1993).
80. See id. at 710-11.
81. See id. (characterizing the dispute as “between an actual prohibition of
speech and a potential hindrance to the free exercise of abortion rights”).
82. See Madsen, 512 U.S. at 762.
83. See id. at 770.
84. See id. at 769-70 (stressing the state court’s familiarity with the factual
history of the case).
85. See id.
86. See id. at 765.
87. See id.
2000] OPERATION RESCUE V. PLANNED PARENTHOOD 613
services associated with pregnancy and preserving the public
safety.
88
The Court found that the injunction’s noise restriction
and buffer zone provisions burdened no more speech than
necessary to stop the targeted unlawful conduct and, therefore,
upheld those provisions of the injunction.
89
3. The Application of the Madsen Rule in Schenck v. Pro-
Choice Network.
90
Only three years after deciding Madsen, the
Supreme Court applied the Madsen rule in Schenck v. Pro-Choice
Network. Like the Madsen demonstrators, the anti-abortion
demonstrators in Schenck harassed both doctors and patients at
abortion clinics.
91
For instance, the protesters engaged in large-
scale blockades in which groups used their bodies to stop cars
from entering the clinic parking lot.
92
Sidewalk counselors
approached women heading toward the clinics, attempting to
hand out literature and dissuade them from having an abortion.
93
If the women ignored them, the sidewalk counselors yelled at the
women and occasionally pushed, shoved, or grabbed them.
94
To
prevent future blockades, the district court issued a temporary
restraining order that established a fifteen-foot buffer zone, but
allowed two sidewalk counselors inside.
95
However, a cease and
desist provision required sidewalk counselors to retreat if
patients indicated that they did not want counseling.
96
The court
issued a permanent injunction after protesters repeatedly
violated the temporary restraining order.
97
The permanent
injunction modified the temporary order in two ways. First, it
extended the buffer zone by creating a “floating buffer” around
people and vehicles coming and going from the facilities.
98
Second, it attached a fifteen-foot retreat requirement to the cease
and desist provision.
99
88. See id. at 767-68.
89. See id. at 776.
90. 519 U.S. 357 (1997).
91. See id. at 362-63.
92. See id. at 362.
93. See id. at 363.
94. See id. The patients and clinic staff were not the demonstrators’ sole
targets; police officers, including the deputy police chief, were also harassed. See id.
at 364.
95. See id. at 362.
96. See id. at 364.
97. See id. at 366.
98. See id.
99. See id. at 366-67. This provision required sidewalk counselors to move at
least 15 feet from clinic patrons who were not receptive to sidewalk counseling. See
id.
614 HOUSTON LAW REVIEW [37:603
The Supreme Court upheld the injunction’s fixed buffer zone
provision that allowed two protesters inside the zones to offer
“sidewalk counseling” to patients seeking abortion services.
100
The Court also upheld the injunction’s cease and desist
provision.
101
4. Resolving the Issue of Sidewalk Counseling Based upon
Madsen and Schenck. Although it initially appears that
Schenck’s admission of two sidewalk counselors inside the buffer
zone conflicts with Madsen’s complete buffer zone provision, an
analysis of the cases’ procedural histories reveals a commonality
of judicial deference to the decisions of the lower courts.
102
In
both cases, the Supreme Court evaluated and upheld the lower
courts’ recommended injunctive relief.
103
And in both cases, the
Supreme Court considered the nature and escalation of violent
activity leading up to the lower courts’ orders for injunctive
relief.
104
Yet in Operation Rescue, the Texas Supreme Court
modified the lower court’s injunction by injecting a provision that
allowed sidewalk counseling,
105
thus distinguishing Operation
Rescue from Madsen and Schenck.
B. Operation Rescue’s Arguments for “Sidewalk Counseling”
The Texas Supreme Court concluded that the district court’s
prohibitions against sidewalk counseling and other public
expression were unconstitutionally broad.
106
The court employed
two legal arguments to support sidewalk counseling inside buffer
zones. First, it asserted that peaceful sidewalk counseling was
not harmful to the health of patients.
107
Second, the court
asserted that the state did not have an interest in protecting
citizens from upsetting speech.
108
Justice Gonzalez provided a
100. See id. at 380-83.
101. See id. at 383-85.
102. Compare id. at 380-81, with Madsen v. Women’s Health Ctr., Inc., 512 U.S.
753, 769-70 (1994).
103. Refer to Parts III.A.2 & III.A.3 supra (discussing the Court’s First
Amendment analyses of the Madsen and Schenck injunctions).
104. See Madsen, 512 U.S. at 769-70 (opining that “some deference must be
given to the state court’s familiarity with the facts and the background of the
dispute between the parties”); see also Schenck, 519 U.S. at 381.
105. See Operation Rescue v. Planned Parenthood, Inc., 975 S.W.2d 546, 567
(Tex. 1998). The lower court’s injunction established a complete buffer zone. See id.
at 551-53. The modified injunction allowed two demonstrators within the zone. See
id. at 567.
106. See id. at 563-64 (pointing out the original injunction’s restrictions against
prayer and the distribution of anti-abortion literature).
107. See id.
108. See id. at 564.
2000] OPERATION RESCUE V. PLANNED PARENTHOOD 615
third argument that sidewalk counseling was analogous to
missionary activity in labor disputes, which the courts have
determined is protected by the First Amendment.
109
1. The First Amendment Protects Peaceful Sidewalk
Counseling. The Operation Rescue court reviewed the statements
of two sidewalk counselors who testified that their interactions
with abortion clinic patrons were intended to be peaceful and
were most successful when conducted in a nonthreatening
manner.
110
Because these witnesses were not members of
Operation Rescue, their testimony represented only a subjective
account of the sidewalk counseling methods employed by the
petitioners.
111
The witnesses testified that when they counseled, they
would merely approach women entering the clinics, offer
literature regarding alternatives to abortion, and attempt to
persuade the women not to get an abortion.
112
The counselors
stated that it was necessary that sidewalk counselors approach
women in a quiet, nonthreatening way in order to effectively
communicate the message without frightening the women
away.
113
The clinics’ expert witnesses testified about the extreme
emotional distress caused by sidewalk counseling.
114
One
psychologist testified that “protesting, including leaflet
distribution, traumatized patients and staff members.”
115
Another expert testified that “demonstrations caused lingering
fear and stress among patients and staff members, and that a
complete buffer zone was necessary to avoid continued emotional
abuse.”
116
The court rejected this recommendation.
117
The court focused its evaluation of the health risks
associated with sidewalk counseling on the sidewalk counselors’
testimony that “their activities were peaceful and unobtrusive;
109. See id. at 580 (Gonzalez, J., concurring in part and dissenting in part)
(arguing that sidewalk counseling is a unique form of communication worthy of
protection, analogous to missionaries in labor protests).
110. See id. at 563-64.
111. See id. at 571 (Spector, J., concurring in part and dissenting in part)
(highlighting the witnesses’ ignorance of Operation Rescue’s sidewalk counseling
methods).
112. See id. at 562-63.
113. See id.
114. See id.
115. Id.
116. Id.
117. See id. at 563-64 (noting that the doctors testified only about harm caused
by aggressive conduct).
616 HOUSTON LAW REVIEW [37:603
indeed, to be successful, . . . sidewalk counselors could not
frighten people away.”
118
The court contended that this form of
sidewalk counseling was not harmful to patients.
119
However,
this analysis did not address the sidewalk counselors’ actual
conduct in the instant case.
120
Although the psychologists did not
offer evidence of past violent activity, the record was replete with
accounts of sidewalk counselors who had pushed, prodded, and
yelled at women entering the clinics.
121
Ignoring this evidence,
the court invoked the principle that “the threat must come
from . . . conduct and not merely from . . . speech”
122
and struck
down an absolute ban on protesters within the buffer zone.
123
The majority refused to consider the actual conduct that led
the district court to ban all protest activity inside buffer zones.
124
The record before the court clearly reflected that on several
occasions sidewalk counselors approached people who drove or
walked toward the clinics, offering anti-abortion literature.
125
If
patients did not respond to peaceful overtures, the encounters
often grew confrontational, requiring clinic workers to shield the
patients from aggressive protesters.
126
Ultimately, many of these
situations became chaotic shouting matches, resulting in patients
being pushed and prodded by protesters.
127
In light of the
evidence that these aggressive episodes created a health risk to
patients,
128
the court’s analysis on this point is flawed.
The court justified modifying the district court’s ban on
sidewalk counseling by arguing that allowing two protesters
within the buffer zone protected the demonstrators’ right to
engage in peaceful speech.
129
The court ignored the fact that it
was not peaceful speech that compelled the injunction—it was
118. Id. at 563.
119. See id. at 563-64.
120. See id. at 563-65 (hypothesizing that future sidewalk counseling would be
peaceful and quiet).
121. See id. at 550-51.
122. Id. at 564.
123. See id. at 563-64.
124. See id. at 571 (Spector, J., concurring in part and dissenting in part). The
temporary injunction issued by the lower court allowed four sidewalk counselors
inside the buffer zones, but prohibited them from physically intimidating clinic
patients. See id. (Spector, J., concurring in part and dissenting in part). These
measures did not stop the protesters from harassing the patients and clinic staff. See
id. (Spector, J., concurring in part and dissenting in part).
125. See id. at 550.
126. See id. at 550-51.
127. See id. at 551.
128. See id.
129. See id. at 567.
2000] OPERATION RESCUE V. PLANNED PARENTHOOD 617
the protesters’ boisterous, abusive, and threatening behavior.
130
This approach reflects an attempt to examine the sidewalk
counselors’ activity by focusing only on the content of their
speech while ignoring their conduct. Although the content of
protected speech can be offensive, violent conduct accompanying
such speech supports a curtailment of First Amendment
rights.
131
2. The State Has No Interest in Protecting Citizens from
Upsetting Speech. The court in Operation Rescue acknowledged
that “protecting the health and safety of clinic patients is . . . a
legitimate state interest that justifies limitations on threatening
conduct.”
132
However, threatening speech alone will not trigger
state protection.
133
Justice Gonzalez supported his argument for the sidewalk
counseling provision with a vigorous discussion of free speech
jurisprudence.
134
He reminded the court that the “State does not
have a legitimate interest in prohibiting speech because the
content of the message is emotionally upsetting or causes
psychological harm.”
135
Justice Gonzalez also argued that the
Supreme Court has traditionally refused to restrict speech solely
on the ground that the message has a negative emotional impact
on the listener.
136
Moreover, he characterized the sidewalk
counselors’ activity as “peaceful, . . . pro-life appeals [that] may
stress a patient by exacerbating her moral anxiety about having
an abortion.”
137
The seminal case on this subject is Boos v. Barry.
138
In Boos,
the Supreme Court struck down a city ordinance that prohibited
citizens from displaying signs in front of a foreign nation’s
130. See id. at 550-51.
131. See Grayned v. City of Rockford, 408 U.S. 104, 116 (1972) (arguing that
“where demonstrations turn violent, they lose their protected quality as expression
under the First Amendment”).
132. Operation Rescue, 975 S.W.2d at 564.
133. See id.
134. See id. at 576-78 (Gonzalez, J., concurring in part and dissenting in part).
135. Id. at 578 (Gonzalez, J., concurring in part and dissenting in part) (citing
Boos v. Barry, 485 U.S. 312, 321 (1988)); see also Cornelius v. NAACP Legal Defense
& Educ. Fund, Inc., 473 U.S. 788, 806 (1985) (finding that speech may not be
restricted solely to silence the speaker’s message); NAACP v. Claiborne Hardware
Co., 458 U.S. 886, 910 (1982) (arguing that “[s]peech does not lose its protected
character, however, simply because it may embarrass others or coerce them into
action”).
136. See Operation Rescue, 975 S.W.2d at 578 (Gonzalez, J., concurring in part
and dissenting in part).
137. Id. (Gonzalez, J., concurring in part and dissenting in part).
138. 485 U.S. 312 (1988).
618 HOUSTON LAW REVIEW [37:603
embassy if the signs subjected that nation to “public
disrepute.”
139
The Court asserted that “citizens must tolerate
insulting, and even outrageous, speech in order to provide
adequate ‘breathing space’ to the freedoms protected by the First
Amendment.”
140
Applying Boos’s reasoning, Justice Gonzalez argued that
although “moral confrontation” may prove to be “emotionally
upsetting,” restricting “pro-life speech” was not justified.
141
Justice Gonzalez cited Consolidated Edison Co. v. Public
Service Commission
142
to illustrate the distinction between
speech that offends because of its form and that which offends
because of its content.
143
In Consolidated Edison, the Court
pointed out that certain offensive forms of speech might warrant
appropriate regulation.
144
The Court held, however, that if the
offensive character of an idea is the only issue, censorship of that
speech is not justified.
145
Justice Gonzales focused on the content of the sidewalk
counselors’ speech, finding that such speech was “stressful
because it increas[ed] the woman’s anxiety and guilt about her
consent to the killing of her baby.”
146
This reasoning again
ignores the most traumatic health effects on patients resulting
from the sidewalk counselors’ physically threatening activities.
147
3. Sidewalk Counseling Is Analogous to Missionary Activity
in Labor Protests and Leaflet Distribution. Justice Gonzalez
asserted that prohibiting all sidewalk counselors from entering
the buffer zone unnecessarily burdened free speech.
148
He analogized the sidewalk counselors in this case to labor
139. See id. at 315.
140. Id. at 322 (quoting Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 56
(1988)) (internal quotations omitted).
141. See Operation Rescue, 975 S.W.2d at 578 (Gonzalez, J., concurring in part
and dissenting in part).
142. 447 U.S. 530 (1980).
143. See Operation Rescue, 975 S.W.2d at 578-79 (Gonzalez, J., concurring in
part and dissenting in part).
144. See Consolidated Edison Co., 447 U.S. at 546-47 (asserting that
communication may be offensive either because of the message or because of the
form).
145. See id. at 548.
146. Operation Rescue, 975 S.W.2d at 579 (Gonzalez, J., concurring in part and
dissenting in part).
147. Refer to Part II.B supra (recounting various acts of violence by protesters
and the consequent harm experienced by patients).
148. See Operation Rescue, 975 S.W.2d at 578 (Gonzalez, J., concurring in part
and dissenting in part).
2000] OPERATION RESCUE V. PLANNED PARENTHOOD 619
movement picketers.
149
In American Steel Foundries v. Tri-City
Central Trades Council,
150
the Supreme Court confirmed labor
picketers’ right to send missionaries into a zone similar to the
buffer zone in Operation Rescue.
151
The labor picketers’ face-to-
face interactions were similar to the sidewalk counselors’
methods in Operation Rescue.
152
In American Steel Foundries, the Court examined a
restraining order against labor protesters who were picketing an
employer.
153
The steel mill and the labor union were involved in a
dispute over wages.
154
The union posted a sign in front of the mill
announcing the strike and formed a picket line.
155
Shortly
thereafter, a series of assaults occurred, injuring employees who
attempted to cross the picket line.
156
As the dispute grew more
heated, “violent methods were pursued . . . in such a way as to
characterize the attitude of the picketers as continuously
threatening.”
157
Many employees slept in the plant because they
were afraid to attempt to go home.
158
In evaluating the constitutionality of the injunction, the
Court asked, “How far may men go in persuasion and
communication and still not violate the right of those whom they
would influence?”
159
The Court recognized that “[w]e are a social
people” and that merely approaching one another to
communicate is generally not viewed as aggressive or
obtrusive.
160
The Court warned, however, that if “the offer [to
communicate] is declined, as it may rightfully be, then
persistence, importunity, following and dogging become
unjustifiable annoyance and obstruction.”
161
The American Foundries Court found that, in our society,
the opportunity to stop one another in an attempt to
communicate and share information is not a violation of another
149. See id. at 580 (Gonzalez, J., concurring in part and dissenting in part).
150. 257 U.S. 184 (1921).
151. See id. at 206. The Court allowed one missionary to remain in front of the
plant. See id.
152. See Operation Rescue, 975 S.W.2d at 580 (Gonzalez, J., concurring in part
and dissenting in part) (noting that the United States Supreme Court recognizes the
right of activists to pursue converts through personal confrontation).
153. See American Steel Foundries, 257 U.S. at 193-94.
154. See id. at 196.
155. See id.
156. See id. at 197-98.
157. Id. at 200.
158. See id.
159. Id. at 204.
160. See id.
161. Id.
620 HOUSTON LAW REVIEW [37:603
person’s rights.
162
Thus, the Court allowed one “missionary” to
approach employees entering or leaving the plant.
163
A number of
cases have followed the reasoning of American Steel Foundries by
limiting, rather than prohibiting, picketing activity.
164
Justice Gonzalez’s offer of labor picketers as a model in
support of the Operation Rescue court’s decision to allow sidewalk
counseling ignores a critical detail of the American Steel
Foundries injunction.
165
As Justice Spector pointed out in her
dissent, the American Foundries provision that allowed one
missionary to approach employees was to the exclusion of all
other picketing activity at the site.
166
Based upon the facts in
Operation Rescue, the provision to allow two sidewalk counselors
inside the buffer zone would be more tolerable if it also
prohibited the boisterous crowds of anti-abortion protesters from
gathering on the sidewalk across the street from the clinics.
167
Some commentators have argued that the right to personally
approach and offer information to a person is at the heart of First
Amendment jurisprudence.
168
Another argument is that sidewalk
162. See id.
163. See id. at 206. The Court reasoned 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.”
Id.; accord United Auto., Aircraft & Agric. Implement Workers v. Wisconsin
Employment Relations Bd., 351 U.S. 266, 269-70 (1956) (upholding a state board
order limiting the number of picketers around an employer’s entrances).
164. See, e.g., Bakery & Pastry Drivers & Helpers Local 802 v. Wohl, 315 U.S.
769, 775 (1942) (allowing a limited number of picketers in front of bakeries). The
Court in Wohl remarked:
[T]here are no findings and no circumstances from which we can draw the
inference that the publication was attended or likely to be attended by
violence, force or coercion, or conduct otherwise unlawful or oppressive; and
it is not indicated that there was an actual or threatened abuse of the right
to free speech through the use of excessive picketing.
Id.
165. See American Steel Foundries, 257 U.S. at 206-07 (mandating that “all
other [missionaries are] enjoined from congregating or loitering at the plant or in the
neighboring streets by which access is had to the plant, [and] that [the
missionaries] . . . shall not in their single efforts at communication or persuasion
obstruct an unwilling listener by . . . dogging his steps”).
166. See Operation Rescue v. Planned Parenthood, Inc., 975 S.W.2d 546, 572
(Tex. 1998) (Spector, J., concurring in part and dissenting in part).
167. See id. (Spector, J., concurring in part and dissenting in part) (pointing out
that in American Steel Foundries, the United States Supreme Court allowed
missionaries to the exclusion of all other demonstrators “‘to prevent the inevitable
intimidation of the presence of groups of pickets.’” (quoting American Steel
Foundries, 257 U.S. at 207)).
168. See Darrin Alan Hostetler, Face-to-Face with the First Amendment:
Schenck v. Pro-Choice Network and the Right to “Approach and Offer” in Abortion
Clinic Protests, 50 STAN. L. REV. 179, 179 (1997) (arguing that “the Court has
inadvertently trampled on a fundamental First Amendment value that figures
2000] OPERATION RESCUE V. PLANNED PARENTHOOD 621
counseling is a protected activity because of the value that the
First Amendment places on personal communication.
169
In Martin v. City of Struthers,
170
the Supreme Court
addressed the issue of whether door-to-door leafleting could be
restricted by a city ordinance without offending the First
Amendment.
171
In Martin, the petitioner, a member of the
Jehovah’s Witnesses, was fined for violating a city ordinance
forbidding handbilling at private residences.
172
The City
advanced two primary objectives in support of the ordinance.
173
First, the City noted that Struthers, Ohio was an industrial
community where most of the residents were employed in the
iron and steel industry.
174
The City asserted that the protection
of the “householders from annoyance, including intrusion upon
the hours of rest” was an important goal.
175
The City argued that
citizens frequently worked on swing shifts, meaning they worked
nights and slept during the day, so that “casual bell ringers”
would interfere with the citizens’ ability to sleep.
176
The City also contended that the statute served a public
safety interest because many criminals posed as missionaries to
gain access to homes they planned to burgle.
177
The criminals
posed as canvassers in an effort to discover whether a house was
vulnerable to burglary.
178
The Supreme Court struck down the law as overbroad.
179
The Court pointed out that “[w]hile door to door distributors of
prominently in free speech jurisprudence: the right of an individual to personally
‘approach and offer’ a message or idea to another person through face-to-face
contact”); see also Alan E. Brownstein, Rules of Engagement for Cultural Wars:
Regulating Conduct, Unprotected Speech, and Protected Expression in Anti-Abortion
Protests-Section II, 29 U.C. DAVIS L. REV. 1163, 1173 (1996) (noting that
demonstrators have limited opportunities to communicate the anti-abortion message
with patients).
169. See, e.g., Meyer v. Grant, 486 U.S. 414, 424 (1988) (emphasizing that the
First Amendment protects the right to advocate a cause by the most effective
means); Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 798
(1985) (reasoning that face-to-face encounters afford a greater opportunity to
exchange ideas). But see International Soc’y for Krishna Consciousness, Inc. v. Lee,
505 U.S. 672, 684 (1992) (stating that “face-to-face solicitation presents risks of
duress that are an appropriate target of regulation”).
170. 319 U.S. 141 (1943).
171. See id. at 141-42.
172. See id.
173. See id. at 144.
174. See id.
175. Id.
176. See id.
177. See id.
178. See id.
179. See id. at 149.
622 HOUSTON LAW REVIEW [37:603
literature may be either a nuisance or a blind for criminal
activities, they may also be useful members of society engaged in
the dissemination of ideas in accordance with the best tradition
of free discussion.”
180
Furthermore, the Court found that the
“[f]reedom to distribute information to every citizen wherever he
desires to receive it is so clearly vital to the preservation of a free
society that, putting aside reasonable police and health
regulation of time and manner of distribution, it must be fully
preserved.”
181
Finally, the Court opined that dangers associated
with distribution may be controlled by other legal means, so that
“stringent prohibition [of distribution] can serve no purpose but
that forbidden by the Constitution, the naked restriction of the
dissemination of ideas.”
182
A major distinction between Martin and Operation Rescue is
the element of violence prominent in the abortion clinic cases,
which stems from the combination of sidewalk counselors, crowds
of picketers, and patients.
183
The Jehovah’s Witnesses in Martin
did not resort to violence during their attempts to communicate
with Struthers residents.
184
In fact, the Court pointed out in
Martin that one of the reasons for striking down the statute was
that the residents had other, less restrictive means of denying
solicitors access to their homes.
185
For example, the homeowner
could choose not to answer the door or simply close the door if the
homeowner did not want to listen to the message.
186
When a woman approaches an abortion clinic to secure
services offered within its walls, she is not in the same position
as the homeowners in Martin.
187
If she wishes to avoid the
protestors’ message, she cannot simply close a door on the
protestors. There are no alternative means for getting into the
clinic without some form of confrontation with the sidewalk
counselor. Therefore, the Martin rationale for allowing
180. Id. at 145.
181. Id. at 146-47.
182. Id. at 147.
183. See SUSAN FALUDI, BACKLASH 400, 411 (1991) (recounting acts of violence
against abortion clinic employees and patients).
184. Refer to Part II.B supra (describing abortion protestors’ use of physical
violence during protest blockades).
185. See Martin, 319 U.S. at 148.
186. See id. (asserting that homeowners’ ability to decline the message was a
preferred alternative to government restriction of expression).
187. See Deborah A. Ellis & Yolanda S. Wu, Of Buffer Zones and Broken Bones:
Balancing Access to Abortion and Anti-Abortion Protestors’ First Amendment Rights
in Schenck v. Pro-Choice Network, 62 BROOK. L. REV. 547, 580 (1996) (indicating
that women entering abortion clinics were unable “to avoid either the initial or
subsequent communication . . . because they could not physically remove
themselves” without foregoing desired medical treatment).
2000] OPERATION RESCUE V. PLANNED PARENTHOOD 623
missionaries to leaflet does not apply to the facts of Operation
Rescue.
188
C. The Historical Context of Sidewalk Counseling
The ban against sidewalk counseling may not be adequately
analyzed without first putting the matter in the proper context.
This context often includes offensive or even violent acts by the
protestors.
189
For example, in Madsen, Schenck, and Operation
Rescue, acts of violence were rampant prior to the issuance of
temporary restraining orders.
190
In these cases, the defendants
continued the violent behavior after receiving notice that such
activities had been enjoined by a court order.
191
Some sidewalk counselors, in their zeal to persuade patients,
utilize extremely graphic materials. For example, protestors have
thrust “plastic replicas of fetuses on patients attempting to enter
the clinic.”
192
This is just one of the methods abortion protesters
use to discourage patients from getting abortion services.
193
Patients are often so unnerved by the sidewalk counselors
that they turn away from the clinics and return to their cars.
194
188. See id. at 580-81 (referring to the fact that women entering clinics
“‘cannot . . . shut out sounds so easily or quickly, and often cannot do so at all’”
(alteration in original) (quoting Franklyn S. Haiman, Speech v. Privacy: Is There a
Right Not to Be Spoken To?, 67 NW. U. L. REV. 153, 183 (1972))).
189. Refer to Part III.A.2 supra (reasoning that in Madsen the complete buffer
zone was justified based upon the protesters’ history of violent behavior).
190. Refer to Parts II.A and III.A.2-3 supra (recounting protest activities that
compelled injunctive relief). In Operation Rescue, aggressive demonstration tactics
were utilized:
Protesters yelled, used bullhorns, and played loud music to disturb people
in clinics and homes. Protesters tried to block access to clinics by lying down
in front of an entrance en masse, and even invaded the premises and
chained their necks to cement blocks or to fixtures within the clinic. . . . .
Some protesters also 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 the respondents to have to provide “escorts” to shield patients
from protesters.
Operation Rescue v. Planned Parenthood, Inc., 975 S.W.2d 546, 550 (Tex. 1998).
191. Refer to Parts III.A.2-3 supra (highlighting the protestors’ repeated
disregard of court orders).
192. See Planned Parenthood Shasta-Diablo, Inc. v. Williams, 898 P.2d 402, 404
(Cal. 1995).
193. See Armes v. City of Philadelphia, 706 F. Supp. 1156, 1159 (E.D. Pa. 1989)
(describing the efforts of anti-abortion protesters to talk approaching patients out of
keeping medical appointments for abortion services).
194. See Operation Rescue v. Women’s Health Ctr., Inc., 626 So. 2d 664, 668
(Fla. 1993) (recounting one doctor’s comment that “he observed some patients turn
624 HOUSTON LAW REVIEW [37:603
Patients who enter the clinics are often “visibly shaken, crying,
and nervous.”
195
Moreover, physicians reported “increased
respiration, heart rate, and blood pressure among patients,
which at times required sedatives to treat.”
196
In many cases,
sidewalk counseling clearly has a detrimental effect on the
health of women entering abortion clinics.
197
The combination of
violent acts and health risks has justifiably sparked opposition to
this method of protest.
198
D. Legal Precedent Justifying a Ban on Sidewalk Counseling
The Texas Supreme Court erred in permitting two sidewalk
counselors inside buffer zones that were designed to protect
abortion clinics and their patients.
199
The protection of a woman’s
unrestricted access to an abortion clinic justifies heightened
restrictions on expressive activity in the form of sidewalk
counseling.
200
Legal precedent allows the courts to fashion
stringent relief without offending the First Amendment.
201
Several doctrines support curtailing the activities of the
sidewalk counselors: 1) sidewalk counseling is a form of conduct
that is not protected by the First Amendment; 2) women
pursuing abortion services are a “captive audience” and should be
away from the crowd in the driveway to return at a later date”), aff’d in part and
rev’d in part sub nom. Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753 (1994).
195. Operation Rescue, 975 S.W.2d at 551.
196. Id.
197. See, e.g., Catherine Cozzarelli & Brenda Major, The Effects of Anti-Abortion
Demonstrators and Pro-Choice Escorts on Women’s Psychological Responses to
Abortion, 13 J. SOC. & CLINICAL PSYCHOL. 404, 406-23 (1994) (exposing the
detrimental effects of anti-abortion demonstrators on women seeking abortion
services).
198. See generally Robert O’Harrow, Jr., Booklet Preaches, Teaches Violence,
WASH. POST, Jan. 17, 1995, at A8 (reporting on a federal grand jury investigation of
anti-abortion protest tactics); Kevin Merida, House Approves Bill to Combat Violence
at Abortion Clinics, WASH. POST, Nov. 19, 1993, at A11 (noting the passage of a bill
making obstruction of access to abortion clinics a federal crime).
199. See Operation Rescue, 975 S.W.2d at 570 (Spector, J., concurring in part
and dissenting in part) (arguing that the lower court’s permanent injunction
burdened no more speech than necessary to protect clinic patients’ health).
200. See Leslie Gielow Jacobs, Nonviolent Abortion Clinic Protests: Reevaluating
Some Current Assumptions About the Proper Scope of Government Regulations, 70
TUL. L. REV. 1359, 1369-70 (1996) (asserting that proponents of the Freedom of
Access to Clinic Entrances (FACE) Act of 1994, 18 U.S.C. § 248 (1994) argue that
restrictions on free speech are required “to protect abortion seekers and providers
from physical and emotional injury, and to vindicate the constitutional right to
choose abortion, which the protests threaten to render practically unavailable”). The
FACE Act prohibits protesters from interfering with unfettered access to abortion
clinics. See 18 U.S.C. § 248.
201. Refer to Part III.D infra (discussing doctrinal justifications for speech
restrictions).
2000] OPERATION RESCUE V. PLANNED PARENTHOOD 625
afforded protection against certain forms of speech; 3) the history
of violent activity by sidewalk counselors justifies rigorous
restraints, such as a complete ban on sidewalk counseling; and 4)
the unique nature of medical facilities allows restriction of
expressive activity.
1. Sidewalk Counseling Is Conduct Not Protected by the
First Amendment. If sidewalk counseling threatens a woman’s
constitutional right to choose to have an abortion,
202
may it be
proscribed without offending the First Amendment? Some
proponents of a ban on sidewalk counseling contend that protest
activity is conduct, not speech, and may therefore be restricted.
203
Courts have been tempted to characterize protest activities, such
as physically blocking access to the abortion clinics, shoving
pamphlets into the faces of the patients, and yelling, as conduct
rather than speech.
204
This distinction is significant because First
Amendment protects speech, but not all types of conduct.
It is well settled that certain types of expressive conduct are
protected by the First Amendment.
205
Anti-abortion protesters
have asserted that their activity is expressive conduct equivalent
to burning an American flag.
206
The distinction between flag
burning and sidewalk counseling is found in the intent behind
the expression.
207
If the intended function of the activity is to
harm private listeners, restriction of the expression is
permissible under the Constitution.
208
202. See Alan E. Brownstein & Stephen M. Hankins, Pruning Pruneyard:
Limiting Free Speech Rights Under State Constitutions on the Property of Private
Medical Clinics Providing Abortion Services, 24 U.C. DAVIS L. REV. 1073, 1182-85
(1991) (arguing that violent abortion protests infringe on the right to privacy in
having an abortion by intruding on the physician-patient relationship, threatening
to publicize the woman’s decision to abort the pregnancy, causing patients to
experience emotional distress, and disrupting the operations of abortion clinics and
neighboring establishments).
203. See Laurence J. Eisenstein & Steven Semeraro, Abortion Clinic Protest and
the First Amendment, 13 ST. LOUIS U. PUB. L. REV. 221, 238 (1993) (positing that
courts should address the harm caused by the protester’s message, rather than the
message itself).
204. See id. at 230. “Judges seem content to rest on the notion that protestors
are engaged in ‘conduct’ and not ‘speech,’ sometimes coupled with the notion that
this conduct is treading on the constitutional rights of others.” Id. at 233.
205. See, e.g., Texas v. Johnson, 491 U.S. 397, 420 (1989) (affording First
Amendment protection to citizens who burned an American flag); Brown v.
Louisiana, 383 U.S. 131, 142-43 (1966) (holding that a silent library sit-in is a
constitutionally protected form of expression).
206. See Eisenstein & Semeraro, supra note 203, at 230.
207. See id. at 237.
208. See id. at 239.
626 HOUSTON LAW REVIEW [37:603
Under this doctrine, the harm must be intentionally inflicted
upon a private person.
209
Although flag burning may produce
emotional and perhaps even physical effects, these are not the
expression’s intended results.
210
If the purpose of the speech is to
make a political statement, the First Amendment protects the
expressive conduct.
211
Aggressive sidewalk counseling and other forms of violent
protest are intended to intimidate.
212
This conduct is targeted at
women in an effort to dissuade them from exercising their
constitutional right to an elective abortion.
213
The intent of the
protestors’ conduct is to emotionally or physically harm patients
who seek abortions and to harass or frighten medical
professionals who provide abortion services.
214
Politically motivated expressive behaviors, such as flag
burning or sit-ins, are constitutionally sacred.
215
Constitutional
libel law instructs that speech that defames the government is
clearly protected.
216
A law forbidding individuals from making
negative expressions aimed at the government would likely be
declared unconstitutional.
217
However, defamatory speech
directed at private individuals is subject to a lawsuit for libel and
slander.
218
The different levels of protection afforded by the legal
system highlight the deferential treatment that is reserved for
political free speech, unlike communication aimed at private
individuals.
219
“[W]here the message is directed to a private
person, and particularly where the subject matter is also private,
evidence that the manner of speech causes emotional harm
should justify regulation.”
220
209. See id. at 238.
210. See id.
211. See United States v. Eichman, 496 U.S. 310, 319 (1990) (characterizing this
principle as a foundation of the First Amendment).
212. See Operation Rescue v. Planned Parenthood, Inc., 975 S.W.2d 546, 550
(Tex. 1998) (discussing protesters’ tactics aimed at shutting down women’s clinics).
213. See id.
214. See Jennifer Bullock, Note, National Organization for Women v. Scheidler:
RICO and the Economic Motive Requirement, 26 CONN. L. REV. 1533, 1550 (1994)
(relating one woman’s account of being told by members of Operation Rescue that
abortions could cause her to die, bleed internally, or go into a coma).
215. See Eisenstein & Semeraro, supra note 203, at 238 (noting that the “law
draws meaningful distinctions between speech that harms the government or public
figures and speech that harms private individuals”).
216. See id.
217. See id.
218. See id.
219. See Frederick Schauer, Uncoupling Free Speech, 92 COLUM. L. REV. 1321,
1322 (1992).
220. Eisenstein & Semeraro, supra note 203, at 239.
2000] OPERATION RESCUE V. PLANNED PARENTHOOD 627
2. The Captive Audience Doctrine Justifies Regulation. The
Supreme Court in Madsen explained that “targeted picketing of a
hospital or clinic threatens not only the psychological, but also
the physical, well-being of the patient held ‘captive’ by medical
circumstance.”
221
Based upon this assertion, pro-choice advocates
argue that the captive audience doctrine justifies regulation of
the violent protest methods used at abortion clinics.
222
The Supreme Court applied and clarified the captive
audience doctrine in Frisby v. Schultz.
223
In Frisby, the Supreme
Court evaluated the constitutionality of a city ordinance making
it “unlawful for any person to engage in picketing before or about
the residence or dwelling of any individual.”
224
The petitioners
were anti-abortion activists who expressed their views on
abortion by picketing the home of a doctor who performed the
procedure.
225
Although the protesters were generally peaceful,
the activity “generated substantial controversy and numerous
complaints.”
226
In response, the City passed the ordinance
restricting residential picketing activity.
227
In evaluating the ordinance, the Court concluded, “The First
Amendment permits the government to prohibit offensive speech
as intrusive when the ‘captive’ audience cannot avoid the
objectionable speech.”
228
The Supreme Court upheld the
ordinance on the basis that an individual subjected to targeted
picketing at his home is “figuratively, and perhaps literally,
trapped within the home, and because of the unique and subtle
impact of such picketing is left with no ready means of avoiding
unwanted speech.”
229
The Court explained that the restriction
221. Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 768 (1994).
222. See, e.g., Kathryn D. Piele, Note, Sabelko v. City of Phoenix: Ninth Circuit
Refuses to Burst “Bubble” Protecting Women Entering Health Care Facilities, 75 OR.
L. REV. 1297, 1314 (1996) (arguing that the Madsen Court opened the door to the
use of the captive audience doctrine in abortion demonstration cases).
223. 487 U.S. 474 (1988).
224. Id. at 477.
225. See id. at 476. The record indicated that the petitioners and others picketed
outside the home of the doctor on at least six occasions. See id.
226. Id.
227. See id.
228. Id. at 487; accord International Soc’y for Krishna Consciousness, Inc. v.
Lee, 505 U.S. 672, 685 (1978) (protecting airport patrons from solicitations). But see
Cohen v. California, 403 U.S. 15 (1971). In Cohen, the Court emphasized that “the
mere presumed presence of unwitting listeners or viewers does not serve
automatically to justify curtailing all speech capable of giving offense.” Id. at 21. Mr.
Cohen had been convicted for wearing a jacket with the words, “Fuck the Draft” on
the back, in violation of a California statute that prohibited disturbance of the peace
by offensive conduct. See id. at 16. The Court struck down the statute as offensive to
the First and Fourteenth Amendments. See id. at 26.
229. Frisby, 474 U.S. at 487.
628 HOUSTON LAW REVIEW [37:603
may be upheld provided that it is narrowly tailored to promote a
significant government interest and that there are alternative
means of communication available.
230
Although Frisby applied the captive audience doctrine in the
residential setting, the Court had previously stated that the
doctrine may be applied beyond the private forum only when it is
impractical for the unwilling target to avoid the message.
231
The
threshold question under this doctrine is whether a woman
seeking abortion services is a “captive.”
232
In Lehman v. City of Shaker Heights,
233
the Supreme Court
recognized that the captive audience doctrine was not limited to
the residential setting.
234
Lehman arose when the City denied
petitioner, a political candidate, paid advertising space on the
City’s bus lines.
235
The Lehman Court affirmatively answered the
question of whether bus passengers were a “captive audience.”
236
Thus, the Court found that the City acted within constitutional
boundaries when it limited the types of advertising displayed on
its buses.
237
The Court held that the City reasonably “limited
access to its transit system advertising space in order to
minimize chances of abuse, the appearance of favoritism, and the
risk of imposing upon a captive audience.”
238
Lehman supports
the application of the captive audience doctrine to cases like
Operation Rescue because a woman approaching an abortion
clinic cannot choose not to hear the protesters’ messages and,
thus, is a captive target.
239
230. See id. at 488.
231. See Erznoznik v. City of Jacksonville, 422 U.S. 205, 209 (1975); Lehman v.
Shaker Heights, 418 U.S. 298, 304 (1974) (applying the captive audience doctrine to
passengers on municipally owned buses); Kovacs v. Cooper, 336 U.S. 77, 87 (1949)
(upholding a ban on amplified sound trucks because the broadcasts’ amplification
exceeded the scope of a public forum and invaded private homes, thereby making it
impossible for people to escape the message). But see Sabelko v. City of Phoenix, 120
F.3d 161, 165 (1997) (rejecting application of the captive audience doctrine to a case
involving picketers in front of medical facility).
232. See Ellis & Wu, supra note 187, at 577 (declaring that the Madsen decision
“suggests that the [captive audience] doctrine provides an alternative ground” for
justifying injunctions that restrict free speech in abortion clinic access cases).
233. 418 U.S. 298 (1974).
234. See id. at 299-300, 304 (upholding a city’s ban of political advertising on the
City’s public transit system under the captive audience doctrine).
235. See id. at 299-300 (recounting that the bus line denied petitioner
advertising space because it did not permit political advertising on its buses).
236. See id. at 302 (recognizing that “‘[t]he streetcar audience is a captive
audience’” (quoting Public Utilities Comm’n v. Pollak, 343 U.S. 451, 468 (1952)
(Douglas, J., dissenting))).
237. See id. at 304.
238. Id.
239. Cf. id. (observing that viewers have no choice but to see billboards, unlike
2000] OPERATION RESCUE V. PLANNED PARENTHOOD 629
Just as the Supreme Court applied the captive audience
doctrine to women seeking abortions in Madsen,
240
the Operation
Rescue court could also have applied the doctrine to exclude
sidewalk counselors from its buffer zone.
3. Past Violent Behavior Justifies the Ban. The ban on
sidewalk counselors passes constitutional muster because
Operation Rescue’s past violent behavior justifies broader
restrictions on its freedom of expression.
241
The Supreme Court
upheld a similar sanction in Milk Wagon Drivers Union Local
753 v. Meadowmoor Dairies, Inc.,
242
thereby sustaining an
injunction prohibiting labor union members from picketing in
front of stores.
243
Meadowmoor Dairies involved a labor dispute between a
dairy and a labor union over an alleged violation of their labor
agreement.
244
Meadowmoor Dairies sued the union to enjoin its
disruption of the dairy’s business operations.
245
The union had engaged in various protest activities,
including smashing windows and detonating bombs, which
caused Meadowmoor Dairies substantial injury.
246
The
perpetrators were consistently identified as being union
members.
247
The trial court enjoined future violent acts but
permitted peaceful picketing.
248
The Illinois Supreme Court
reversed the trial court and issued a permanent injunction
the choice available in turning off a radio or not reading a magazine); see also
Franklyn S. Haiman, Speech v. Privacy: Is There a Right Not to Be Spoken To?, 67
NW. U. L. REV. 153, 177-85 (1972) (exploring proposals to expand the captive
audience doctrine); Gary L. Bostwick, Comment, A Taxonomy of Privacy: Repose,
Sanctuary, and Intimate Decision, 64 CAL. L. REV. 1447, 1451-56 (1976) (linking the
privacy interest in preserving repose to the captive audience doctrine).
240. See Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 768 (1994)
(agreeing with the lower court’s determination that women entering abortion clinics
are captive listeners).
241. Cf. National Soc’y of Prof’l Eng’rs v. United States, 435 U.S. 679, 697 (1978)
(concluding that prior violations of the law justified appropriate restraints of First
Amendment freedoms to avoid future recurrences).
242. 312 U.S. 287 (1941).
243. See id. at 291-92.
244. See id.
245. See id.
246. See id. (observing that stench bombs were dropped in five stores; several of
the vendor’s trucks were wrecked; another truck was driven into a river; two other
trucks were burned; several employees who continued to work were beaten severely;
and in one instance, protestors shot at a truck and driver).
247. See id. at 292.
248. See id. (stating that although the master recommended enjoining all
picketing, the trial court chose to allow peaceful picketing).
630 HOUSTON LAW REVIEW [37:603
prohibiting all picketing activity.
249
The United States Supreme
Court granted certiorari to resolve the issue of whether the
injunction unconstitutionally infringed upon the protesters’ free
speech rights.
250
The Court framed the issue in Meadowmoor as whether a
state can enjoin peaceful picketing activities that are intertwined
with episodes of violent and illegal conduct.
251
The Court stressed
that free speech guarantees exist to encourage expression of
ideas by peaceful means.
252
Thus, an idea expressed under
violent circumstances surrenders its claim to constitutional
protection.
253
In conclusion, the Court opined, “Such utterance
was not meant to be sheltered by the Constitution.”
254
The Court
ultimately held that the state acted within its power to curtail
otherwise peaceful expression that had become enmeshed in
violence.
255
Meadowmoor Dairies exemplifies the Court’s
acknowledgement of the state’s authority to grant injunctive
relief in the face of illegal acts.
256
Operation Rescue’s history of
violent behavior is well documented.
257
Accordingly, an injunction
against all picketing activity within a buffer zone is justified.
258
4. Protecting Medical Facilities Justifies Speech
Restrictions. As Justice Spector argued in her separate opinion,
“The Supreme Court has recognized that . . . public health
249. See id.
250. See id. at 291.
251. See id. at 292.
252. See id. at 293 (“It was in order to avert force and explosions due to
restrictions upon rational modes of communication that the guarantee of free speech
was given a generous scope.”).
253. See id.
254. Id.
255. See id. at 299 (“Freedom of speech and freedom of the press cannot be too
often invoked as basic to our scheme of society. But these liberties will not be
advanced or even maintained by denying to the states . . . the power to deal with
coercion due to extensive violence.”).
256. See id. at 294 (finding that there is no “doubt that Illinois can protect its
storekeepers from being coerced by fear of window-smashings or burnings or
bombings”).
257. Refer to Part III.C supra (exposing the many violent acts carried out by
protesters against patients and clinic workers).
258. See Operation Rescue v. Planned Parenthood, Inc., 975 S.W.2d 546, 572
(Tex. 1998) (Spector, J., concurring in part and dissenting in part) (arguing that “‘[i]t
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’” (quoting
American Steel Foundries v. Tri-City Cent. Trades Council, 257 U.S. 184, 206
(1921))). Justice Spector argued that in light of the temporary injunction’s failure,
the district court legitimately resorted to stronger safeguards against further
violence. See id. (Spector, J., concurring in part and dissenting in part).
2000] OPERATION RESCUE V. PLANNED PARENTHOOD 631
concerns may justify restrictions even on otherwise protected
activities.”
259
In Beth Israel Hospital v. NLRB,
260
the Supreme
Court determined the legality of a restriction on nonemployee
solicitation within hospital grounds.
261
The Court, relying upon
an earlier NLRB decision,
262
characterized hospitals as special
places subject to special rules.
263
The Court reiterated the
NLRB’s finding “‘that the primary function of a hospital is
patient care and that a tranquil atmosphere is essential to the
carrying out of that function.’”
264
Furthermore, the Court asserted that “‘hospitals may be
justified in imposing somewhat more stringent prohibitions on
solicitation than are generally permitted.’”
265
Specifically,
solicitation may be restricted “‘in strictly patient care areas, such
as the patients’ rooms, operating rooms, and places where
patients receive treatment.’”
266
The restriction is warranted
because “‘[s]olicitation . . . in [patient care] areas might be
unsettling to the patients.’”
267
The restriction in Beth Israel
Hospital was ultimately struck down after the hospital failed to
prove that solicitation was occurring in patient care areas.
268
In NLRB v. Baptist Hospital, Inc.,
269
the Supreme Court
upheld a hospital policy that prohibited solicitation that could be
259. Id. at 570 (Spector, J., concurring in part and dissenting in part); accord
Beth Israel Hosp. v. NLRB, 437 U.S. 483, 505 (1978) (recognizing that a healthcare
facility may restrict otherwise protected employee speech in the interest of
protecting patients); see also Note, Too Close for Comfort: Protesting Outside Medical
Facilities, 101 HARV. L. REV. 1856, 1859, 1862-66 (1988) (arguing that ordinances
creating bubble zones around medical clinics are an appropriate and permissible
way of “balancing the rights of speakers against the privacy interests of certain
unwilling listeners”).
260. 437 U.S. 483 (1978).
261. See id. at 486-87.
262. See St. John’s Hosp. & Sch. of Nursing, Inc., 222 N.L.R.B. 1150 (1976).
263. See Beth Israel Hosp., 437 U.S. at 494-95; see also NLRB v. Baptist Hosp.,
Inc., 442 U.S. 773, 790-91 (1979) (upholding a ban on labor solicitation in patient
care areas); Medlin v. Palmer, 874 F.2d 1085, 1090 (5th Cir. 1989) (upholding an
ordinance that restricted noise levels outside of medical treatment and convalescent
institutions); Portland Feminist Women’s Health Ctr. v. Advocates for Life, Inc., 859
F.2d 681, 686-87 (9th Cir. 1988); Planned Parenthood Ass’n v. Project Jericho, 556
N.E.2d 157, 161-62 (Ohio 1990) (upholding an injunction that restricted protest
activities outside medical clinics).
264. Beth Israel Hosp., 437 U.S. at 495 (quoting St. John’s Hosp., 222 N.L.R.B.
at 1150).
265. Id.
266. Id.
267. Id.
268. See id. at 506-07 (finding that the potential for disruption of patient care
was remote). The evidence revealed that 77% of cafeteria patrons were hospital
employees, and 1.56% were patients. See id. at 490.
269. 442 U.S. 773 (1979).
632 HOUSTON LAW REVIEW [37:603
potentially upsetting to patients.
270
The hospital had previously
instituted a policy that prohibited solicitation in the hospital’s
patient care areas and areas that were accessible to the public.
271
The Court upheld the portion of the policy that prohibited
solicitation in patient care areas,
272
reasoning that the restriction
was “‘necessary to avoid disruption of health-care operations or
disturbance of patients.’”
273
Based upon Baptist Hospital’s
acknowledgment of a need to preserve a tranquil environment in
the medical setting, the Texas Supreme Court should have
preserved the sanctity of the buffer zones in Operation Rescue.
274
E. Implications of Operation Rescue
The implications of the Texas Supreme Court’s holding in
Operation Rescue are the same as those contemplated when
Schenck was decided.
275
On its face, Operation Rescue illustrates
the Texas Supreme Court’s refusal to recognize that the
constitutionally protected right to seek an abortion requires
complete, unencumbered access to abortion facilities.
276
Meanwhile, doctors continue to report that, because of the anti-
abortion movement’s violent reputation, the mere presence of
sidewalk counselors is detrimental to the health of many
patients.
277
IV. CONCLUSION
Roe v. Wade was the first step toward a woman’s access to
abortion services.
278
Sadly, decisions like Operation Rescue erode
270. See id. at 781, 790.
271. See id. at 775 (noting that “[f]or several years . . . the Hospital enforced a
rule against solicitation anywhere on its premises”).
272. See id. at 790.
273. Id. at 781 (quoting the standard in Beth Israel Hospital as the appropriate
standard by which to test the legality of restricting solicitation in a medical setting).
274. Refer to Part III.C supra (establishing that protest activities disrupt
medical treatment).
275. See David G. Savage, You Have a Right to Be Really Annoying, HOUS.
CHRON., Feb. 22, 1997, at 21A (lamenting that the Supreme Court’s decision “came
down on the side of . . . shouting sidewalk protestors”).
276. See Ellis & Wu, supra note 187, at 547-48 (asserting that “[p]rotecting the
safety of patients at reproductive health care facilities is crucial because without
access, the constitutional right to abortion will become a nullity”).
277. Refer to Part III.C supra (describing physicians’ reports of protest-related
health problems in patients).
278. See JAMES DAVISON HUNTER, BEFORE THE SHOOTING BEGINS: SEARCHING
FOR DEMOCRACY IN AMERICA’S CULTURAL WAR 17 (1994) (recognizing that the
landmark Roe v. Wade decision was the first spark in the controversy over how far a
woman’s right to abortion extends).
2000] OPERATION RESCUE V. PLANNED PARENTHOOD 633
the liberties of those attempting to exercise that right.
279
In
Texas, a woman contemplating an abortion wrestles not only
with the medical risks inherent in the abortion procedure itself,
but also with the risk of her physical harm at the hands of angry
protesters before even entering the clinic.
280
Many women prefer to keep their decision to have an
abortion private.
281
Moreover, the protesters’ presence deters
women desiring other clinic services (e.g., examinations) from
seeking care.
282
Ultimately, the use of buffer zones as applied in
Madsen helps ensure women the opportunity to freely exercise
the right to a legal abortion. Operation Rescue continues the
disturbing trend established in Schenck by allowing sidewalk
counselors to pierce the protective haven that buffer zones afford
patients.
Lolita Youmans
279. Cf. Thornburgh v. American College of Obstetricians & Gynecologists, 476
U.S. 747, 766 (1986) (warning that “‘[i]t is inherent in the right to make the abortion
decision that the right may be exercised without public scrutiny and in defiance of
the contrary opinion of the sovereign or other third parties’” (quoting Bellotti v.
Baird, 443 U.S. 622, 655 (1979) (Stevens, J., concurring))).
280. See SUE HERTZ, CAUGHT IN THE CROSSFIRE: A YEAR ON ABORTION’S FRONT
LINE 7 (1991) (asserting that “after the Supreme Court had legalized abortion . . .
picketers were as much a part of the clinic’s routine as pregnancy tests”).
281. See Thornburgh, 476 U.S. at 766 (“A woman and her physician will
necessarily be more reluctant to choose an abortion if there exists a possibility that
her decision and her identity will become known publicly.”).
282. See Bullock, supra note 214, at 1549.
