Planned Parenthood Shasta-Diablo, Inc. v. Williams , 7 Cal. 4th 860 ( 1994 )

BAXTER, J., Concurring.

Today’s decision will probably receive a fair amount of publicity. Groups on either side of the abortion debate may hail it as a political victory or defeat. In legal circles, it will be cited as support for erecting “buffer zones” around family planning clinics besieged by protestors. (See Operation Rescue v. Women’s Health Center (Fla. 1993) 626 So.2d 664, cert, granted Jan. 21,1994, sub nom. Madsen v. Women’s Health Center, Inc. _U.S. _ [127 L.Ed.2d 98, 114 S.Ct. 907].)

But abortion is not the central issue in this case. The free-speech problems presented could arise in any context. At issue is the extent to which the First Amendment’s protection of political expression is limited by the rights of private citizens to conduct their lawful business without pain or hindrance.

In our society, all presumptions are in favor of unfettered expression, particularly where the forum is public and an issue of broad concern is involved. The First Amendment protects vigorous, even stinging, debate. The burden generally falls on the recipients of an unwanted message to turn away. (See Frisby v. Schultz (1988) 487 U.S. 474, 479-481 [101 L.Ed.2d 420, 428-430, 108 S.Ct. 2495]; Boos v. Barry (1988) 485 U.S. 312, 318 [99 L.Ed.2d 333, 342-353, 108 S.Ct. 1157]; Erznoznik v. City of Jacksonville (1975) 422 U.S. 205, 208-211 [45 L.Ed.2d 125, 130-132, 95 S.Ct. 2268]; Cohen v. California (1971) 403 U.S. 15,20-26 [29 L.Ed.2d 284, 291-295, 91 S.Ct. 1780].)

The question remains, however, whether the same protection applies where the speaker seeks to engage in face-to-face confrontations with individual members of a targeted audience, and where the risk of intimidation, humiliation, or violence is high. What if such tactics are calculated to coerce unwilling targets into a particular course of conduct whether or not they are persuaded by the message the speaker seeks to convey? These issues assume special significance in a media-savvy age, where news coverage may serve as an additional incentive for staging a violent protest.

Such tactics do not necessarily fall within the aegis of the First Amendment. Disruptive conduct need not be tolerated simply because it has a symbolic component or facilitates speech. (United States v. O’Brien (1968) 391 U.S. 367, 376 [20 L.Ed.2d 672, 679-680, 88 S.Ct. 1673].) No individual is expected to endure “fighting words” and vicious personal attacks (Cantwell v. Connecticut (1940) 310 U.S. 296, 309-310 [84 L.Ed. 1213, 1220-1221, 60 S.Ct. 900, 128 A.L.R. 1352]), or to experience hardship or a significant loss of privacy as a result of another’s “free” speech. (Frisby v. Schultz, supra, 487 U.S. 474, 484-487 [101 L.Ed.2d 420, 431-434]; Lehman v. City of Shaker Heights (1974) 418 U.S. 298, 302-304 [41 L.Ed.2d 770, 776-778, 779-780, 94 S.Ct. 2714] (plur. opn. by Blackmun, J.), 306-308 (conc. opn. of Douglas, J.).)

Like the parties and lower courts, the majority applies the rigorous test for evaluating time, place, and manner restrictions on speech in a “public forum.” Such an approach assumes that all protest activities leading up to and affected by the trial court’s injunction constitute “protected speech” under the First Amendment. (Frisby v. Schultz, supra, 487 U.S. 474, 479 [101 L.Ed.2d 420, 428].) I agree that the injunction is entirely sustainable under this test, but I am not certain such solicitude is warranted. In my view, some of the more confrontational activities prompting the “buffer zone” injunction crossed the line from protected expression to unprotected interference with the lawful activities of other citizens. For that additional reason, I conclude the “buffer zone” imposed by the trial court was proper.

George, J., concurred.