Abortion Clinic Buffer Against Protest Upheld : Supreme Court: Limited ban to preserve patients’ rights does not violate First Amendment, justices say.

In a victory for abortion rights advocates, the Supreme Court said Thursday that judges and lawmakers can create a “buffer zone” around an abortion clinic and prevent protesters from picketing and chanting on the street and sidewalks in front of the facility.

This limited ban on peaceful protest does not violate the First Amendment’s guarantee of freedom of speech, the court ruled on a 6-3 vote, as long as it is deemed necessary to preserve the patient’s right to freely enter a clinic.

But a Florida judge went too far, the court said, when he barred protesters from holding up photos of aborted fetuses and prohibited them from seeking to speak with any patient or staff member within 300 feet of a clinic in Melbourne, Fla. Those restrictions on free speech “sweep more broadly than necessary” to protect access to the clinic and therefore are unconstitutional, the justices said.

The decision was one of several announced on the last day of the high court’s 1993-94 term. In other rulings, the justices:

* Limited the 1965 Voting Rights Act by ruling that states need not create the maximum possible number of legislative seats for blacks and Latinos.

* Struck down a $52-million contempt fine assessed against the United Mine Workers and said such criminal-like punishments can only be imposed by a jury, not by a judge alone.

The court’s opinion in the abortion protest case is likely to have a wide impact, not only on the continuing battle over abortion, but also on emerging areas of street protests, such as those by AIDS activists who have targeted Catholic church officials and by animal-rights advocates who have tried to shut medical research labs.

When faced with aggressive and persistent protesters, judges have been forced to draw a line dividing protected free speech from illegal harassment and interference with the rights of others. Thursday’s ruling (Madsen vs. Women’s Health Center, 93-880) marks the high court’s first detailed pronouncement on the issue, which has arisen in scores of cases involving abortion clinics.

The case arose from the long-running battle outside the Aware Woman Center in Melbourne, on the central Florida coast south of Cape Canaveral. The leaders of Operation Rescue, an anti-abortion group, had pledged to shut the clinic through round-the-clock protests.

The clinic’s owner complained that her patients and staff suffered under “mob rule.” But the abortion opponents said the First Amendment protected their right to picket, pray and chant on the street and the sidewalk next to the clinic.

Last year, faced with evidence that the protesters were continually impeding patients’ right to enter the clinic, a state judge imposed a broad injunction. It created a 36-foot buffer zone outside the clinic’s driveway. Police were told to arrest any protester who picketed, prayed or even walked in that area.

The judge also barred loud chanting during surgical hours and prohibited the display of signs and photos that might upset patients. In addition, he said protesters must stay 300 feet from the homes of the clinic’s patients and employees.

Writing for the court, Chief Justice William H. Rehnquist upheld part of the injunction and struck down other parts. In doing so, he announced several important clarifications of the law.

First, a judge’s order is not unconstitutional simply because it targets a particular group of protesters and restricts their free-speech rights.

An injunction “by its very nature” targets people who probably are attempting to convey a similar message, Rehnquist said. Abortion protesters were targeted at the Florida clinic, he said, not because of “their anti-abortion message (but) because they repeatedly violated” earlier court orders.

Second, injunctions can be upheld if they are no broader “than necessary to serve a significant governmental interest.” In this case, officials had “a strong interest in protecting a woman’s freedom to seek lawful medical and counseling services in connection with her pregnancy,” he said.

Third, any person whose words or actions “could be interpreted as threats or veiled threats” is not protected from punishment under the First Amendment, Rehnquist declared.

Most states, including California, recently have enacted laws against “stalking.” But some legal experts have questioned whether it is constitutional to make it a crime to follow someone or to harass them with unwanted comments.

Rehnquist’s opinion suggests that anti-stalking laws can be upheld when there is evidence of threatening behavior. However, he also struck down part of the Melbourne injunction that protected clinic workers from being stalked or “shadowed” at all times and in all locations, calling this too broad an infringement on free speech.

“Absent evidence that the protesters’ speech . . . is infused with violence . . . or a threat of physical harm,” it cannot be made illegal, the chief justice said.

Fourth, injunctions can restrict noise levels to protect the welfare of patients but cannot restrict signs and posters. “It is much easier for the clinic to pull up its curtains than for a patient to stop up her ears,” he said.

Fifth, an injunction can ban “targeted residential picketing” directly in front of a doctor’s home but it cannot go so far as to prohibit any picketing in the neighborhood. The Melbourne injunction went too far, he said, when it barred any protest activities within 300 feet of an employee’s residence.

Lawyers said the ruling appears to clear up any constitutional doubts about the newly enacted federal law designed to protect access to abortion clinics. The law, signed by President Clinton in spring, makes it a federal crime to block access to a clinic or to intimidate women seeking abortions. The law already has been challenged on free-speech grounds.

The court’s ruling “is a slam-dunk win for women, doctors and health care workers,” said Eleanor Smeal, president of the Feminist Majority Foundation, which helped defend the Melbourne clinic.

But Nancy Skinner, a co-chair for Pro-Choice Orange County, says the decision is not a clear-cut victory for either side.

“We’re obviously pleased that access will be improved,” Skinner said. “But they can still show their ugly pictures and talk to women before they get to the free zone.”

Lawyers for anti-abortion protesters said the ruling has “devastating consequences for the pro-life movement.”

“Part of today’s Supreme Court opinion has transformed public sidewalks normally open for expressive activity into a type of Tian An Men Square,” said Mat Staver, an Orlando, Fla., attorney who represented the three abortion protesters who had challenged the injunction.

In a vehement dissent, which he read from the bench, Justice Antonin Scalia accused his colleagues of making abortion protesters a “disfavored class” who were not accorded the same free-speech protections as labor picketers and civil rights protesters. Justices Anthony M. Kennedy and Clarence Thomas joined in Scalia’s dissent.

Although Rehnquist and Scalia are usually linked as the conservative leaders of the high court, they have differed often on the First Amendment.

The chief justice usually sides with the government, regardless of the issue, but Scalia has often insisted on broad protection for free speech.

Five years ago, Scalia cast a key vote to strike down laws against flag-burning as a violation of free expression, while Rehnquist dissented strongly. Earlier this week, Rehnquist cast a key vote to uphold some regulation of cable television, while Scalia said he would strike down the rules as a violation of free speech.

The ruling in the mine worker’s case also involved a challenge to a judge’s order.

In a 9-0 decision, the justices put new limits on the power of judges to issue fines for contempt. Although judges can force an organization to pay for losses it has caused, they cannot punish someone without a jury trial, the court said in the case (International Union vs. Bagwell, 92-1625).

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Times staff writer Tammerlin Drummond contributed to this report.