Schenck v. Pro-Choice Network of Western N. Y., 519 U.S. 357, 31 (1997)

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Cite as: 519 U. S. 357 (1997)

Opinion of Scalia, J.

physical obstruction of access, it excluded crowds of protesters from a 15-foot zone around clinic entrances, while permitting two nonobstructive "sidewalk counselors" to enter that zone. (Allowing a small number of protesters is a common practice in picketing injunctions, e. g., Mine Workers v. Bag-well, 512 U. S. 821, 823 (1994), and of course a required practice when no more than that is necessary, see Madsen, supra, at 765.) And the second purpose of the fixed buffer provision, the purpose that justified the requirement that even the two nonobstructive sidewalk counselors "cease and desist" if the "targeted person" did not wish to hear them, was to assure "personal space" on the public streets—or, as the District Court described it in the next paragraph of its order, "to protect the right of people approaching and entering the facilities to be left alone." 799 F. Supp., at 1435.

The terms of the injunction's cease-and-desist provision make no attempt to conceal the fact that the supposed right to be left alone, and not the right of unobstructed access to clinics, was the basis for the provision:

"[N]o one is required to accept or listen to sidewalk counseling, and . . . if anyone or any group of persons who is sought to be counseled wants not to have counseling, wants to leave, or walk away, they shall have the absolute right to do that, and in such event all persons seeking to counsel that person or group of persons shall cease and desist from such counseling, and shall thereafter be governed by the provisions of [the injunction] pertaining to not demonstrating within fifteen feet of persons seeking access to or leaving a facility." Id., at 1440 (preliminary injunction, paragraph 1(c)) (emphasis added).

It is difficult to imagine a provision more dependent upon the right to be free of unwanted speech that today's opinion rejects as applied to public streets. The District Court's

387

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