Portland Feminist Women's Health Center v. Advocates for Life, Inc.
| Citation | 859 F.2d 681 |
| Decision Date | 06 October 1988 |
| Docket Number | 86-4140,Nos. 86-4102,Nos. 1,s. 1,s. 86-4102 |
| Parties | PORTLAND FEMINIST WOMEN'S HEALTH CENTER; an Oregon nonprofit corporation; Leila Whittemore; Geri Craig; and Amy Aycrigg, and Jane Doesthrough 3, Plaintiffs-Appellees, v. ADVOCATES FOR LIFE, INC.; an Oregon nonprofit corporation; Priscilla Martin; Don Ayers; Fred Ritcherson; George Knezevich; Alice Buhler; Andrew Burnett; Kathy McNassar aka Kathy Stewart; Kathleen Walsh; Alta Austin; Shirley Barnard; Brian Clowes; Dan Muir; Christians in Action an unincorporated association; and John Doesthrough 100, Defendants- Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Henry Kane, Beaverton, Or., and William D. Bailey, Portland, Or., for appellants.
Barbara L. Nay, Stoel Rives Boley Jones & Grey, Portland, Or., for appellees.
Michael Stokes Paulsen, Center for Law & Religious Freedom, Merrifield, Va., and Thomas O. Alderman, Christian Civil Liberties Union, Eugene, Or., for amicus.
Appeal from the United States District Court for the District of Oregon.
Before HUG, FARRIS and CANBY, Circuit Judges.
This appeal challenges the constitutionality of a preliminary injunction issued by the district court in litigation still pending before it. We are called upon to determine whether the preliminary injunction is impermissibly vague and whether it abridges protected First Amendment rights of the appellants.
Appellants are a nonprofit corporation that engages in right-to-life advocacy, and seven of its members; an unincorporated association that engages in right-to-life advocacy and one of its members; one hundred Doe members of the two organizations; and four additional individuals (hereinafter, "the advocates"). These parties are defendants in litigation brought in district court by the appellees as plaintiffs. Appellees are a nonprofit corporation that provides medical treatment for women at its facility, including pregnancy testing, abortions, gynecological service, preventive health care, and reproductive counseling; five of its employees; and one individual client (hereinafter, "the clinic").
The clinic brought an action against the advocates that was based on several spirited demonstrations in front of the clinic's building. The complaint sought both equitable relief and damages for conspiracy to prevent exercise of federal constitutional rights; violation of Oregon's civil racketeering statutes; interference with business relations; intentional infliction of emotional distress; assault; and defamation. The clinic moved for a preliminary injunction, and the motion was brought before a magistrate for an evidentiary hearing.
The magistrate recommended to the district court that a preliminary injunction be issued based on his findings of fact. We quote the material portions of these findings:
Findings from the preliminary injunction hearing
The evidence showed that the following conduct has taken place. Defendants and others ("demonstrators") gather at the Center 1 for demonstrations against abortion on days on which abortions and other medical procedures are performed. The number of demonstrators vary from fewer than ten to a number approaching 160. These demonstrations have occurred on a fairly regular basis since 1984 and are likely to continue in the future in a similar manner in which they have taken place in the past unless the court orders otherwise.
Demonstrators often crowd around the Foster Road entrance to the Center with large signs and other objects. These signs and objects are waved at clients and client escorts in a threatening manner and used to impede direct passage into the Center. Demonstrators scream and yell at Center clients, escorts, and staff, sometimes inches away from their faces, as they enter and exit the Center. Demonstrators press literature on clients and employees who have indicated they do not wish to talk or receive such literature. Demonstrators bump, grab, and push persons wishing to enter the Center in an effort designed to impede passage. Demonstrators chant, shout, and scream from the sidewalk alongside the Center in a manner which is calculated to be and is in fact heard inside the Center on the second floor where medical procedures are being performed.
The noise, intimidation, and threatening acts caused or made by the demonstrators makes the provision of medical care in the Center very difficult. This conduct raises the risk of medical complications and injury to clients. Some clients are upset and visibly shaken from having to maneuver their way through the demonstrators. This condition sometimes leads to incomplete or inaccurate health history reports which the client completes soon after entry to the Center. Clients and staff find it difficult to relax and concentrate. The atmosphere inside the Center is often tense during high-pitched demonstrations. On many occasions, the noise generated by demonstrators prevents conversation inside the Center, and makes procedures such as blood pressure measurement difficult.
During a medical emergency on February 5, 1985, a client of the Center needed to be taken to the hospital. Demonstrators impeded the passage of ambulance attendants who had been called to transport the client to the hospital.
The district court adopted the findings in their entirety and issued the following injunction:
IT IS HEREBY ORDERED that defendants, their agents, servants, employees, and all persons, groups, and organizations acting in concert with one or more of the defendants are enjoined from committing any of the following acts:
1. obstructing the free and direct passage of any person in or out of the Portland Feminist Women's Health Center (the Center);
2. demonstrating or distributing literature on the Foster Road sidewalk in front of the Center in a rectangular zone that extends from the Center's front door to the curb and twelve and one-half feet on either side of a line from the middle of the Center's door to the curb;
3. shouting, screaming, chanting, or yelling during on-site demonstrations;
4. producing noise by any other means which substantially interferes with the provision of medical services within the Center, including counseling;
5. trespassing on Center property;
6. damaging the property of the Center, its employees or clients; and
7. interfering with the Center's receipt of public utility services.
This Order shall remain in effect until further order of the court.
After the injunction was issued, the demonstrations continued, and at a hearing the district court found several of the individual advocates in contempt. We are asked to determine the validity of both the injunction and the contempt citations.
The district court's jurisdiction over the litigation underlying this appeal is based on 28 U.S.C. Sec. 1331 (1982). We have jurisdiction over an appeal from an order issuing a preliminary injunction under 28 U.S.C. Sec. 1292(a)(1).
As a general matter, our review of an order granting a motion for a preliminary injunction is limited to determining whether the order is an abuse of discretion, based on erroneous legal standards, or clearly erroneous findings of fact. Oakland Tribune, Inc. v. Chronicle Publishing Co., Inc., 762 F.2d 1374, 1376 (9th Cir.1985). We apply this standard to our review of the order's sufficiency under preliminary injunction standards. However, we are also called upon to review the injunction for constitutional infirmity. Because the findings of fact are not in dispute, our review of the constitutional issues is de novo. See Jews for Jesus, Inc. v. Board of Airport Comm'rs, 785 F.2d 791, 792 (9th Cir.1986).
The decision whether to issue a preliminary injunction is made under the following standard. "To obtain a preliminary injunction, a party must show either (1) a likelihood of success on the merits and the possibility of irreparable injury, or (2) the existence of serious questions going to the merits and the balance of hardships tipping in its favor." Apple Computer, Inc. v. Formula Int'l, Inc., 725 F.2d 521, 523 (9th Cir.1984). Following an evidentiary hearing and based on findings of fact, the magistrate determined that a preliminary injunction was justified under either standard and recommended issuance of the preliminary injunction. The district court, after appropriate inquiry, adopted the magistrate's findings and recommendation. Appellants do not seriously challenge the magistrate's findings of fact or his determination under the preliminary injunction standard. He explicitly found that the defendants engaged in the offending conduct. We proceed in our analysis on the basis that the findings of fact are not clearly erroneous, and the preliminary injunction standard was satisfied.
Appellants challenge the injunction's content with arguments asserting impermissible vagueness for failure to set forth an objective decibel level for prohibited shouting, yelling, chanting, and noise making. They argue that this purported vagueness has a chilling effect on protected activities and places demonstrators at the mercy of the appellees' subjective standards. Because we are dealing with an injunction the vagueness issue is controlled by Fed.R.Civ.P. 65(d).
Rule 65(d) requires that injunctions "shall be specific in terms; [and] shall describe in reasonable detail ... the act or acts sought to be restrained." The Supreme Court has indicated that the policy behind the rule is "to prevent uncertainty and confusion on the part of those faced with injunctive orders, and to avoid the possible founding of a contempt citation on a decree too vague to be understood." Schmidt v. Lessard, 414 U.S. 473, 476, 94 S.Ct. 713, 715, 38 L.Ed.2d 661 (1974); for general discussion see 11 C. Wright, A. Miller and F. Elliot, Federal Practice and Procedure Sec. 2955 (1973 and Supp.1988). We have interpreted the rule and its policy to...
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