Springfield Planned Parenthood v. Jones

What is being limited is conduct, or a form of delivery, not speech.:

Petitioners' "counseling" of the clinic's patients is a form of expression analogous to labor picketing. It is a mixture of conduct and communication. "In the labor context, it is the conduct element rather than the particular idea being expressed that often provides the most persuasive deterrent to third persons about to enter a business establishment." NLRB v. Retail Store Employees, 447 U.S. 607, 619 (1980) (STEVENS, J., concurring in part and concurring in result). As with picketing, the principal reason why handbills containing the same message are so much less effective than "counseling" is that "the former depend entirely on the persuasive force of the idea." Ibid. Just as it protects picketing, the First Amendment protects the speaker's right to offer "sidewalk counseling" to all passers-by. That protection, however, does not encompass attempts to abuse an unreceptive or captive audience at least under the circumstances of this case. One may register a public protest by placing a vulgar message on his jacket and, in so doing, expose unwilling viewers, Cohen v. California, 403 U.S. 15, 21 -22 (1971). Nevertheless, that does not mean that he has an unqualified constitutional right to follow and harass an unwilling listener, especially one on her way to receive medical services. Cf. Grayned v. City of Rockford, 408 U.S. 104, 116 (1972).

The "physically approaching" prohibition entered by the trial court is no broader than the protection necessary to provide relief for the violations it found. The [ MADSEN v. WOMEN'S HEALTH CTR., INC., ___ U.S. ___ (1994) , 6] trial judge entered this portion of the injunction only after concluding that the injunction was necessary to protect the clinic's patients and staff from "uninvited contacts, shadowing and stalking" by petitioners. App. 56. The protection is especially appropriate for the clinic patients given that the trial judge found that petitioners' prior conduct caused higher levels of "anxiety and hypertension" in the patients, increasing the risks associated with the procedures that the patients seek. 5 Whatever the proper limits on a court's power to restrict a speaker's ability to physically approach or follow an unwilling listener, surely the First Amendment does not prevent a trial court from imposing such a restriction given the unchallenged findings in this case.

[Justice Souter, concurring in Hill] Concern about employing the power of the State to suppress discussion of a subject or a point of view is not, however, raised in the same way when a law addresses not the content of speech but the circumstances of its delivery. The right to express unpopular views does not necessarily immunize a speaker from liability for resorting to otherwise impermissible behavior meant to shock members of the speaker's audience, see United States v. O'Brien, 391 U.S. 367, 376 (1968) (burning draft card), or to guarantee their attention, see Kovacs v. Cooper, 336 U.S. 77, 86-88 (1949) (sound trucks); Frisby v. Schultz, 487 U.S. 474, 484-485 (1988) (residential picketing); Heffron v. International Soc. for Krishna Consciousness, Inc., 452 U.S. 640, 647-648 (1981) (soliciting). Unless regulation limited to the details of a speaker's delivery results in removing a subject or viewpoint from effective discourse (or otherwise fails to advance a significant public interest in a way narrowly fitted to that objective), a reasonable restriction intended to affect only the time, place, or manner of speaking is perfectly valid. See Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) ("Our cases make clear ä that even in a public forum the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions 'are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information' " (quoting Clark v. Community for Creative Non&nbhyph;Violence, 468 U.S. 288, 293 (1984))); 491 U.S., at 797 ("[O]ur cases quite clearly hold that restrictions on the time, place, or manner of protected speech are not invalid 'simply because there is some imaginable alternative that might be less burdensome on speech' " (quoting United States v. Albertini, 472 U.S. 675, 689 (1985))). . . .

This is not to say that enforcement of the approach restriction will have no effect on speech; of course it will make some difference. The effect of speech is a product of ideas and circumstances, and time, place, and manner are circumstances. The question is simply whether the ostensible reason for regulating the circumstances is really something about the ideas. Here, the evidence indicates that the ostensible reason is the true reason. The fact that speech by a stationary speaker is untouched by this statute shows that the reason for its restriction on approaches goes to the approaches, not to the content of the speech of those approaching. What is prohibited is a close encounter when the person addressed does not want to get close. So, the intended recipient can stay far enough away to prevent the whispered argument, mitigate some of the physical shock of the shouted denunciation, and avoid the unwanted handbill. But the content of the message will survive on any sign readable at eight feet and in any statement audible from that slight distance. Hence the implausibility of any claim that an anti-abortion message, not the behavior of protesters, is what is being singled out.

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