Madsen v. Women's Health Center, Inc., 512 U.S. 753, 47 (1994)

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

Opinion of Scalia, J.

bombings, destruction of trucks, beatings of drivers, arson, and armed violence. We noted that the "picketing . . . was set in a background of violence," id., at 294, which was "neither episodic nor isolated," id., at 295, and we allowed the ban on picketing "to prevent future coercion," id., at 296, as part of a state court's power "to deal with coercion due to extensive violence," id., at 299. We expressly distinguished the case from those in which there was no "[e]ntanglement with violence." Id., at 297. In Youngdahl v. Rainfair, Inc., supra, we refused to allow a blanket ban on picketing when, even though there had been scattered violence, it could not be shown that "a pattern of violence was established which would inevitably reappear in the event picketing were later resumed." Id., at 139.

The utter lack of support for the Court's test in our jurisprudence is demonstrated by the two cases the opinion relies upon. For the proposition that a speech restriction is valid when it "burden[s] no more speech than necessary to accomplish a significant government interest," the Court cites NAACP v. Claiborne Hardware Co., supra, and Carroll v. President and Comm'rs of Princess Anne, supra, at 184. But as I shall demonstrate in some detail below, Claiborne applied a much more stringent test; and the very text of Carroll contradicts the Court. In the passage cited, Carroll says this: "An order issued in the area of First Amendment rights must be couched in the narrowest terms that will accomplish the pin-pointed objective permitted by constitutional mandate and the essential needs of the public order." 393 U. S., at 183. That, of course, is strict scrutiny; and it does not remotely resemble the Court's new proposal, for which it is cited as precedential support. "Significant government interest[s]" (referred to in the Court's test) are general, innumerable, and omnipresent—at least one of them will be implicated by any activity set in a public forum. "Essential needs of the public order," on the other hand, are factors of exceptional application. And that an injunction

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