The U.S. Supreme Court might end up drawing new parameters to prevent judges from issuing orders that step on the free-speech rights of abortion opponents, strikers and other protesters.
Several justices hinted at the need for such guidelines during an hourlong argument Thursday on the constitutionality of a Florida judge's restrictions on abortion protests.
"What standards should we employ to test the validity of injunctions like this one?" asked Justice Sandra Day O'Connor. "I'm not aware that we ever have" come up with any such standards.
Justice Antonin Scalia said court orders limiting protests at clinics could have a "chilling effect" on free speech.
And Justice Anthony Kennedy said such court orders are more dangerous than laws limiting protests because while laws apply to everyone, "certain people are being singled out" in court orders, possibly to limit what those people are saying.
The case, Madsen vs. Women's Health Center Inc., is one of the most significant that the court will decide in this term, which ends in July.
That is because about two dozen judges nationwide -- including U.S. District Judge Richard J. Arcara of Buffalo -- have issued abortion-protest limits similar to the ones at issue in the Florida case.
The state judge in Florida had ordered local police to arrest any abortion protester who pickets within 36 feet of the entrance to a Melbourne clinic or within 300 feet of the residence of a clinic employee. Judge Robert McGregor imposed the order last April, a few days after an abortion doctor was shot to death in Pensacola.
If the high court does draw up standards for when judges can limit protests, that decision will affect labor unions, animal-rights protesters and anyone else who might want to set up a picket line.
For that reason, the AFL-CIO filed a brief in the case noting the danger that court orders might infringe on the constitutional rights of strikers.
In Wednesday's argument, U.S. Solicitor General Drew Days III took issue with organized labor's concerns, saying, "We don't agree with the AFL-CIO that you need a test" to determine when a court order violates free-speech rights.
But Justice Ruth Bader Ginsburg quickly replied that there could well be a need for such a test. "This country has a long history of enjoining its labor unions, its political protesters, students in the 1960s," she said. "Doesn't that call for particular care rather than a lighter brand of review?"
Mat Staver, who represented three Operation Rescue members, told the justices that his clients can't speak freely because of the court order barring them from within 36 feet of the abortion clinic, and setting up a 300-foot zone in which protesters can't talk to abortion patients unless the patients show interest in the protesters' comments.
"The injunction is overkill," Staver said. "Rather than using a surgeon's scalpel, this injunction cuts with a butcher's knife."
After Staver appeared to indicate that he thinks all court injunctions are unconstitutional, Scalia said: "You now have me thoroughly confused."
Florida State University President Talbot D'Alemberte, representing the clinic, didn't fare much better.
He argued that the protests should be limited because they made abortion patients so nervous that they needed more sedatives.
In response, Scalia said: "Are you saying that any speech can be limited if it affects someone's vital signs? Can I wear a sign that says: 'Heart condition -- please don't upset me?' "