Madsen v. Women's Health Center, Inc., 512 U.S. 753, 31 (1994)

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Cite as: 512 U. S. 753 (1994)

Opinion of Stevens, J.

though arguably raised by petitioners' briefs, are not properly before the Court.

After correctly rejecting the content-based challenge to the 36-foot buffer zone raised by the first question in the certiorari petition, the Court nevertheless decides to modify the portion of that zone that it believes does not protect ingress to the clinic. Petitioners, however, presented only a content-based challenge to the 36-foot zone; they did not present a time, place, and manner challenge. See n. 1, supra. They challenged only the 300-foot zones on this ground. Ibid. The scope of the 36-foot zone is thus not properly before us.6 Izumi Seimitsu Kogyo Kabushiki Kaisha v. U. S. Phillips Corp., 510 U. S. 27 (1993) (per curiam).7

6 Indeed, it is unclear whether these challenges were presented to the Florida Supreme Court. In their appeal to that court, petitioners did not even file the transcript of the evidentiary hearings, contending that the "sole question presented by this appeal is a question of law." See Appellants' Motion in Response to Appellees' Motion to Require Full Transcript and Record of Proceedings in No. 93-00969 (Dist. Ct. App. Fla.), p. 2. Because petitioners argued that the entire decree was invalid as a matter of law, without making any contention that particular provisions should be modified, it appears there was no argument in that court about the size or the shape of the buffer zones.

Even if the question were properly presented here, I fully agree with the Florida Supreme Court's refusal to quibble over a few feet one way or the other when the parties have not directed their arguments at a narrow factual issue of this kind. Operation Rescue v. Women's Health Center, Inc., 626 So. 2d 664, 673 (1993). Moreover, respect for the highest court of the State strongly counsels against this sort of error correction in this Court.

7 Even assuming that a time, place, and manner challenge to the 36-foot zone is fairly included within the first question presented, petitioners' brief challenges the entire 36-foot zone as overbroad and seeks to have it invalidated in its entirety. Nowhere in their briefs do they argue that the portion of the zone on the north and west sides of the clinic should be struck down in the event the Court upholds the restrictions on the front and east. As such, we do not have the benefit of respondents' arguments why those portions, if considered severally from the other portions of the zone, should be upheld. Moreover, the existence in the record of facts found by the

783

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