Schenck v. Pro-Choice Network of Western N. Y., 519 U.S. 357, 33 (1997)

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

Opinion of Scalia, J.

District Court (in the exercise of its discretion) chose not to issue—viz., an absolute ban on all protesters within the 15-foot zone. Ante, at 381, n. 11.

The Court asserts (in carefully selected words) that "the District Court was entitled to conclude that the only way to ensure access was to move back the demonstrations." Ante, at 380 (emphasis added). And again: "[T]he District Court was entitled to conclude on this record that the only feasible way to shield individuals within the fixed buffer zone from unprotected conduct . . . would have been to keep the entire area clear of defendant protesters." Ante, at 381, n. 11 (emphasis added). And (lest the guarded terminology be thought accidental), yet a third time: "Based on [the defendants'] conduct, the District Court was entitled to conclude . . . that the only way to ensure access was to move all protesters away from the doorways." Ante, at 381 (first emphasis added; second in original). But prior to the question whether it was entitled to conclude that is the question whether it did conclude that. We are not in the business (or never used to be) of making up conclusions that the trial court could permissibly have reached on questions involving assessments of fact, credibility, and future conduct—and then affirming on the basis of those posited conclusions, whether the trial court in fact arrived at them or not.1 That is so even in ordinary cases, but it is doubly true when we review a trial court's order imposing a prior restraint upon speech. As we said in NAACP v. Claiborne Hardware Co., 458 U. S. 886 (1982), when a court decides to impose a speech-restrictive injunction, the conclusions it reaches must be "supported by findings that adequately disclose the[ir]

1 The Court's lengthy citation of cases standing for the proposition that an appellate court can affirm on a mandatory legal ground different from that relied upon by the trial court, ante, at 384, n. 12, has no relevance to the question whether an appellate court can substitute its own assessments of past facts, of future probabilities, and hence of injunctive necessities, for the assessments made (and required to be made) by the trial court.

389

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