Cite as: 512 U. S. 753 (1994)
Opinion of Scalia, J.
pedestrians off the paved portion of Dixie Way, and (2) enabling cars to cross the public sidewalk at the clinic's driveways without having to slow down or come to even a "momentary" stop, there are surely a number of ways to protect those interests short of banishing the entire protest demonstration from the 36-foot zone. For starters, the Court could have (for the first time) ordered the demonstrators to stay out of the street (the original injunction did not remotely require that). It could have limited the number of demonstrators permitted on the clinic side of Dixie Way. And it could have forbidden the pickets to walk on the driveways. The Court's only response to these options is that "[t]he state court was convinced that [they would not work] in view of the failure of the first injunction to protect access." Ante, at 769. But must we accept that conclusion as valid—when the original injunction contained no command (or at the very least no clear command) that had been disobeyed, and contained nothing even related to staying out of the street? If the "burden no more speech than necessary" requirement can be avoided by merely opining that (for some reason) no lesser restriction than this one will be obeyed, it is not much of a requirement at all.
But I need not engage in such precise analysis, since the Court itself admits that the requirement is not to be taken seriously. "The need for a complete buffer zone," it says, "may be debatable, but some deference must be given to the state court's familiarity with the facts and the background of the dispute between the parties even under our heightened review." Ante, at 769-770 (emphasis added). In application, in other words, the "burden no more speech than is necessary" test has become an "arguably burden no more speech than is necessary" test. This renders the Court's intermediate-intermediate scrutiny not only no more stringent than plain old intermediate scrutiny, but considerably less stringent.
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