Back to
case page
The Free Speech website, http://faculty-web.at.nwu.edu/commstud/freespeech/
Springfield Planned Parenthood v. Jones |
It is for the Executive Branch (i.e., the police) to enforce public order, not the courts: |
[Justice Scalia, dissenting in Schenck] The Court proceeds from there to make a much more significant point: An injunction on speech may be upheld even if not justified on the basis of the interests asserted by the plaintiff, as long as it serves "public safety." "[I]n assessing a First Amendment challenge, a court . . . inquires into the governmental interests that are protected by the injunction, which may include an interest in public safety and order. . . . Here, the District Court cited public safety as one of the interests justifying the injunction. . . . [T]he fact that `threat topublic safety' is not listed anywhere in respondents' complaint as a claim does not preclude a court from relying on the significant governmental interest in public safety in assessing petitioners' First Amendment argument." Ante, at 16-17.
This is a wonderful expansion of judicial power. Rather than courts' being limited to according relief justified by the complaints brought before them, the Court today announces that a complaint gives them, in addition, ancillary power to decree what may be necessary to protect--not the plaintiff, but the public interest! Every private suit makes the district judge a sort of one man Committee of Public Safety. There is no precedent for this novel and dangerous proposition. In Madsen, the Court says, "it was permissible to move protesters off the sidewalk and to the other side of the street in part because other options would block the free flow of traffic on the streets and sidewalks." Ante, at 16; see also Madsen, 512 U.S., at 769 . But acknowledging, as we did in Madsen, that some remedial options are eliminated because they conflict with considerations of public safety is entirely different from asserting, as the Court does today, that public safety can provide part of the justification for the remedy. 3 The only other case cited by the Court is Milk Wagon Drivers v. Meadow moor Dairies, Inc., 312 U.S. 287, 294 -295 (1941). Ante, at 16. But Meadowmoor upheld an injunction against a union's intimidation of storekeepers, not because "the public interest" demanded it, but because the storekeepers were customers of the plaintiff dairy, which it was the purpose and effect of the intimidation to harm. 312 U.S., at 294 -295. We have in our state and federal systems a specific entity charged with responsibility for initiating action to guard the public safety. It is called the Executive Branch. When the public safety is threatened, that branch is empowered, by invoking judicial action and by other means, to provide protection. But the Judicial Branch has hitherto been thought powerless to act except as invited by someone other than itself. That is one of the reasons it was thought to be "the least dangerous to the political rights of the [C]onstitution"-- because it "can take no active resolution whatever" and "may truly be said to have neither force nor will, but merely judgment." The Federalist No. 78, p. 396 (M. Beloff ed. 1987). It is contrary to the most fundamental principles of separation of powers for the District Court to decree measures that would eliminate obstruction of traffic, in a lawsuit which has established nothing more than trespass. 4
|
Back to |
The Free Speech website, http://faculty-web.at.nwu.edu/commstud/freespeech/ |
|