Madsen Case: Free Speech and the "Abortion Distortion"

 Notice that the injunction in Madsen is directed at certain named pro-life defendants as well as “all persons acting in concert or participation with” the named defendants.       

It then goes on to enjoin these individuals “at all times on all days” from “congregating, picketing, patrolling, demonstrating, or entering” within a 36-foot buffer zone in front of the abortion clinic.

In his dissent in Madsen, Justice Scalia says (P.1469): "Today's decision...makes it painfully clear that no legal rule or doctrine is safe from ad hoc nullification by this Court when an occasion for its application arises in a case involving state regulation of abortion...."

What do you think Justice Scalia means by this statement?

Is the injunction in Madsen a viewpoint-based restriction on free speech? Notice that the injunction applies not only to the named defendants, but also to "all persons acting in concert or participation
with [the named defendants], or on their behalf." 512 U.S. 759. The casebook edits out some very important facts about how the trial judge interpreted this language from his injunction.

Consider this excerpt from Justice Scalia's dissent in Madsen:

 Following issuance of the amended injunction, a number of persons were arrested for
walking within the 36-foot speech-free zone. At an April 12, 1993, hearing before the trial judge who issued the injunction, the following exchanges occurred:

Mr. Lacy: "I was wondering how we can-why we were
arrested and confined as being in concert with these people
that we don't know, when other people weren't, that
were in that same buffer zone, and it was kind of selective
as to who was picked and who was arrested and
who was obtained for the same buffer zone in the same
public injunction."

The Court: "Mr. Lacy, I understand that those on the
other side of the issue [abortion-rights supporters] were
also in the area. If you are referring to them, the Injunction
did not pertain to those on the other side of the
issue, because the word in concert with means in concert
with those who had taken a certain position in respect
to the clinic, adverse to the clinic. If you are saying
that is the selective basis that the pro-choice were
not arrested when pro-life was arrested, that's the basis
of that selection ... ." Tr. 104-105 (Appearance Hearings
Held Before Judge McGregor, Eighteenth Judicial
Circuit, Seminole County, Florida (emphasis added)).

(512 U.S.  795-796)

 Here is something to be thinking about:

Suppose I went down to Florida and approached this abortion clinic. I have come by myself to protest against abortion. I know nothing about the defendants subject to the injunction; I have never met or spoken to any of them.

As I arrive, I see a number of pro-choice demonstrators standing in front of the clinic and some pro-life pickets standing across the street. I decide to stand directly in front of the clinic with my sign announcing "abortion kills babies." I stand there peacefully and silently. Have I violated the injunction?

Now think about this one:

Suppose this case were set circa 1962 in Selma, Alabama. A trial judge has issued a 36-foot buffer zone in front of a segregated lunch counter that had been the scene of sit-ins and blockades. It contains similar language restricting named defendants plus persons acting "in concert or in participation" with the named defendants.

During Spring Break 1962, you and two of your classmates go down and silently hold up a picket sign calling for passage of civil rights laws. You are arrested (although a group of segregationist speakers was allowed to remain without a hassle).

Is Madsen underprotective of Free Speech? Or is it about right?