378
Opinion of the Court
individual moves, maintaining 15 feet of separation. But this would be difficult to accomplish at, for instance, the GYN Womenservices clinic in Buffalo, one of the respondent clinics. The sidewalk outside the clinic is 17-feet wide. This means that protesters who wish to walk alongside an individual entering or leaving the clinic are pushed into the street, unless the individual walks a straight line on the outer edges of the sidewalk. Protesters could presumably walk 15 feet behind the individual, or 15 feet in front of the individual while walking backwards. But they are then faced with the problem of watching out for other individuals entering or leaving the clinic who are heading the opposite way from the individual they have targeted. With clinic escorts leaving the clinic to pick up incoming patients and entering the clinic to drop them off, it would be quite difficult for a protester who wishes to engage in peaceful expressive activities to know how to remain in compliance with the injunction.9 This lack of certainty leads to a substantial risk that much more speech will be burdened than the injunction by its terms prohibits. That is, attempts to stand 15 feet from someone entering or leaving a clinic and to communicate a message—certainly protected on the face of the injunction—will be hazardous if one wishes to remain in compliance with the injunction.10 Since there may well be other
9 We suspect that these floating buffer zones would also be quite difficult for a district court to enforce. Contempt proceedings would likely focus on whether protesters who thought they were keeping pace with the targeted individual from a distance of 15 feet actually strayed to within 14 or 13 feet of the individual for a certain period of time.
10 Significantly, the District Judge himself expressed this same concern at the September 27 TRO hearing, stating his understanding that a "moving" buffer zone would be quite infeasible. Nevertheless, the terms of the TRO and the injunction provide exactly that, and the District Court never authoritatively put a limiting construction on the injunction.
Justice Breyer in dissent places great stress on the District Court's statement at this September 27 hearing, and concludes that the District
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