New York State Nat. Organization for Women v. Terry

• Decision Date: 20 September 1989
• Docket Number: 908,D,979,907,OB-GYN,978,Nos. 906,s. 906
• Citation: 886 F.2d 1339
• Parties: NEW YORK STATE NATIONAL ORGANIZATION FOR WOMEN; New York City Chapter of the National Organization for Women; National Organization for Women; Religious Coalition for Abortion Rights--New York Metropolitan Area; New York State National Abortion Rights Action League, Inc.; Planned Parenthood of New York City, Inc.; Eastern Women's Center, Inc.; Planned Parenthood Clinic (Bronx); Planned Parenthood Clinic (Brooklyn); Planned Parenthood Margaret Sanger Clinic (Manhattan);Pavilion; the Center for Reproductive and Sexual Health; VIP Medical Associates; Bill Baird Institute (Suffolk); Bill Baird Institute (Nassau); Dr. Thomas J. Mullin; Bill Baird; Reverend Beatrice Blair; Rabbi Dennis Math; Reverend Donald Morlan; Pro Choice Coalition, Plaintiffs-Appellees, City of New York, Plaintiff-Intervenor-Appellee, v. Randall TERRY, Operation Rescue, Rev. James P. Lisante, Thomas Herlihy, John Does and Jane Does, Defendants-Appellants. ockets 88-7873, 88-7915, 88-7969, 88-9103, 89-7121.
• Court: U.S. Court of Appeals — Second Circuit

Page 1339

886 F.2d 1339

14 Fed.R.Serv.3d 922

NEW YORK STATE NATIONAL ORGANIZATION FOR WOMEN; New York

City Chapter of the National Organization for Women;

National Organization for Women; Religious Coalition for

Abortion Rights--New York Metropolitan Area; New York State

National Abortion Rights Action League, Inc.; Planned

Parenthood of New York City, Inc.; Eastern Women's Center,

Inc.; Planned Parenthood Clinic (Bronx); Planned

Parenthood Clinic (Brooklyn); Planned Parenthood Margaret

Sanger Clinic (Manhattan); OB-GYN Pavilion; the Center for

Reproductive and Sexual Health; VIP Medical Associates;

Bill Baird Institute (Suffolk); Bill Baird Institute

(Nassau); Dr. Thomas J. Mullin; Bill Baird; Reverend

Beatrice Blair; Rabbi Dennis Math; Reverend Donald Morlan;

Pro Choice Coalition, Plaintiffs-Appellees, City of New York, Plaintiff-Intervenor-Appellee, v. Randall TERRY, Operation Rescue, Rev. James P. Lisante, Thomas Herlihy, John Does and Jane Does,

Defendants-Appellants.

Nos. 906, 907, 908, 978, 979, Dockets 88-7873, 88-7915,

88-7969, 88-9103, 89-7121.

United States Court of Appeals, Second Circuit.

Argued March 6, 1989.

Decided Sept. 20, 1989.

Joseph P. Secola, Milford, Conn. (George J. Mercer, The Rutherford Institute of

Conn., Milford, Conn., Michael P. Tierney, New York City, A. Lawrence Washburn, Jr., Albany, N.Y., of counsel), for defendants-appellants

David D. Cole, New York City (Mary M. Gundrum, Rhonda Copelon, Center for Constitutional Rights, New York City, Alison Wetherfield, Sarah Burns (D.C. Bar only), NOW Legal Defense & Educ. Fund, New York City, Judith Levin, Rabinowitz, Boudin, Standard, Krinsky & Lieberman, of counsel), for plaintiffs-appellees.

Kristin M. Helmers, New York City, Office of the Corp. Counsel, City of New York, for plaintiff-intervenor-appellee.

Before CARDAMONE and PRATT, Circuit Judges and LASKER, District Judge ^*.

CARDAMONE, Circuit Judge:

The principal question presented on this appeal is whether the First Amendment grants Operation Rescue (appellants) the right to engage in activities designed to deny access to abortion clinics to women seeking the services they provide. We must determine if the limitations placed by the district court on appellants' actions and speech square with the constitutional rights guaranteed all citizens under the First Amendment. We think they do.

Insofar as appellants' attempts to block ingress and egress to plaintiffs' clinics resulted in Operation Rescue demonstrators' physical presence on the clinics' premises, they were trespassers without right, constitutional or otherwise, to be there. Insofar as appellants' rights of free speech were exercised in close proximity to individual women entering or leaving the clinics so as to tortiously assault or harass them, appellants' rights ended where those women's rights began. There is no constitutional privilege to assault or harass an individual or to invade another's personal space. Hence, the tortious interference with the constitutional rights of those entering or leaving the clinics subjects appellants' First Amendment rights to the limitations contained in the injunction that is the subject of this appeal.

Defendants Randall Terry and Operation Rescue appeal from a judgment of the United States District Court for the Southern District of New York (Ward, J.) entered on January 10, 1989, which denied defendants' motion to dismiss; granted plaintiff New York State National Organization for Women's (N.O.W.) and plaintiff-intervenor City of New York's (City) motions for summary judgment on their claims under 42 U.S.C. Sec. 1985(3) (1982) and the New York common law of trespass and public nuisance, respectively; and permanently enjoined defendants from impeding or obstructing ingress into and egress from medical facilities during anti-abortion demonstrations.

Appellants challenge the constitutionality of a series of injunctions issued during the course of this litigation, as well as the substantive grounds upon which the permanent injunction is based. See New York State Nat'l Org. for Women v. Terry, 704 F.Supp. 1247 (S.D.N.Y.1989) (decision on the merits resulting in permanent injunction); New York Nat'l Org. for Women v. Terry, 697 F.Supp. 1324 (S.D.N.Y.1988) (contempt order of October 27, 1988). For the reasons that follow the district court's judgment is modified, leaving in place the permanent injunction, and as modified, it is affirmed.

BACKGROUND

I State Court Proceedings

Plaintiffs commenced this action in New York State Supreme Court on April 25, 1988 seeking declaratory and injunctive relief to restrain Operation Rescue from blocking access to medical facilities providing abortions. The complaint alleged eight separate causes of action: violations of New York Civil Rights Law Sec. 40-c and New York Executive Law Sec. 296; public nuisance; interference with the business of On April 28, 1988 a temporary restraining order (TRO) that did not expressly enjoin Operation Rescue from blocking access to health care facilities was issued in New York state court. On May 2, 1988, as a result of a demonstration outside a Manhattan abortion clinic, a second TRO was issued that enjoined Operation Rescue from "trespassing on, blocking, obstructing ingress into or egress from any facility at which abortions are performed in the City of New York, Nassau, Suffolk or Westchester Counties from May 2, 1988 to May 7, 1988." See 697 F.Supp. 1324, 1327 n. 3 (S.D.N.Y.1988). On May 3, 1988 Operation Rescue held a demonstration in Queens outside another abortion clinic at which several hundred participants were arrested. At a hearing held in state court, the City's application to intervene was granted. Defendants then successfully petitioned to remove the suit to federal district court based upon the claim asserted pursuant to 42 U.S.C. Sec. 1985(3).

medical facilities; trespass; infliction of emotional harm on patients and employees of medical facilities; tortious harassment of patients and employees of medical facilities; false imprisonment of patients and employees of medical facilities; and conspiracy to deny women seeking abortion or family planning services the equal protection of the laws and equal privileges and immunities, in violation of 42 U.S.C. Sec. 1985(3).

II District Court Proceedings

A. The May 4 TRO and Contempt Proceedings

On May 4, 1988 Southern District Judge Ward continued the state court's TRO, but modified it substantially in light of the events of the previous day. In addition to the prohibitions on obstructing ingress and egress, the district court added coercive sanctions of $25,000 for each day that defendants violated the TRO, and required defendants to give advance notification to the City of the location of any planned demonstration. Judge Ward also ruled that failure to give such advance notice would make Operation Rescue liable for excess costs incurred by the City. The district court, as had the state court, granted the City's motion to intervene. Defendants moved on May 5 to vacate the TRO issued the day before for plaintiffs' alleged failure to comply with Fed.R.Civ.P. 65(c). The district court denied the motion on May 6, and we denied defendants' application to stay the TRO pending an expedited appeal.

Operation Rescue demonstrated in Hicksville, New York and in Manhattan, on the mornings of May 5 and May 6, respectively. It is undisputed that its leader, defendant Randall Terry, was aware of the TRO but did not alter his written instructions to demonstrators to continue to obstruct access to the abortion clinic. New York City police also read the TRO twice over a megaphone to demonstrators during the May 6 blockade. When the demonstrators failed to comply, 320 of them were arrested.

On May 31, 1988 plaintiffs sought civil contempt sanctions against defendants pursuant to Fed.R.Civ.P. 70 and 18 U.S.C. Sec. 401 (1982) as a consequence of the events of May 5th and 6th. The district judge granted the motion and denied defendants' cross-motion to dismiss. In a judgment entered November 4, 1988 defendants Operation Rescue and Terry were held jointly and severally liable for $50,000 in civil contempt sanctions to be paid to plaintiff N.O.W., see 697 F.Supp. at 1329, and in a judgment dated September 9, 1988 for $19,141 to be paid to the City for its costs that resulted from defendants' failure to give advance notice of either demonstration. In so holding, the court rejected Operation Rescue's contentions that the various plaintiffs and plaintiff-intervenor lacked Article III standing and that the contempt proceeding was criminal in nature rather than civil. See id. at 1329-34, 1336-38.

B. The October 27 Preliminary Injunction

Meanwhile, on October 7, 1988, plaintiffs moved to modify the earlier May 2 order that had enjoined defendants from May 2 to May 7. Plaintiffs sought to broaden the injunction to include the period October

                28-30, 1988 in response to Operation Rescue's plan to conduct on those dates a "National Day of Rescue."    Following a hearing, the trial court on October 2 replaced its earlier TRO with an order containing the same terms as its May 4th TRO.  Defendants' application for a stay of that order was denied because counsel was unable to represent that defendants would desist from further demonstrations pending appeal.  An application for a stay pending appeal was also denied in this Court.  Notwithstanding the modified preliminary injunction, several hundred Operation Rescue followers conducted demonstrations at Dobbs Ferry, New York and at Deer Park in Suffolk County, New York on October 29, blocking in each instance ingress to and egress from an abortion clinic for several hours
                

C. The Discovery Dispute

On May 31, 1988 plaintiffs served defendants with two notices of deposition requesting information regarding employment, assets and income pursuant to Fed.R.Civ.P. 30 and 34. Claiming privilege under the First, Fourth, Fifth and ...