Ex parte Tucci

Decision Date30 June 1993
Docket NumberD-2823,D-2824,D-2820,Nos. D-2809,D-2819,D-2822,D-2821,s. D-2809
Citation859 S.W.2d 1
PartiesEx Parte Reverend Keith TUCCI. Ex Parte Randall TERRY. Ex Parte Patrick MAHONEY. Ex Parte Wendy WRIGHT. Ex Parte Flip BENHAM. Ex Parte Joseph SLOVENIC. Ex Parte Bob JEWITT.
CourtTexas Supreme Court
OPINION

DOGGETT, Justice.

We consider the scope of our state constitutional guarantee of freedom of expression. Keith Tucci, Randall Terry, Joseph Slovenic, Patrick Mahoney, Wendy Wright, Flip Benham, and Robert Jewitt were convicted of civil contempt for public protests in which each of them disregarded a provision of a temporary restraining order. As relators, they bring this original habeas corpus proceeding asserting that they have been confined for expression which is protected under article I, section 8 of the Texas Constitution.

I.

The importance attached to freedom of expression in our state's jurisprudence is reflected in the longstanding rule that one imprisoned for disregarding a court order restraining speech may challenge the underlying restraint as void through a habeas proceeding such as this. Texas courts have repeatedly granted habeas relief to release those confined for disregarding an unconstitutional restriction on varying types of expression. See Ex parte Henry, 147 Tex. 315, 215 S.W.2d 588 (1948) (peaceful picketing); Ex parte Tucker, 110 Tex. 335, 220 S.W. 75 (1920) ("vilifying, abusing or using opprobrious epithets"); Ex parte McCormick, 129 Tex.Crim. 457, 88 S.W.2d 104 (1935) (gag order); Ex parte Foster, 44 Tex.Crim. 423, 71 S.W. 593 (1903) (gag order). 1 As we concluded in Ex Parte Henry:

One cannot be punished for contempt for violating an order which a court has no authority to make.

215 S.W.2D AT 597. 2

Underlying our state law is the principle that speech delayed often translates into speech denied. 3 The Texas approach represents the converse of the federal collateral bar rule, which was relied upon in Walker v. City of Birmingham, 388 U.S. 307, 87 S.Ct. 1824, 18 L.Ed.2d 1210 (1967), to bar the release of Dr. Martin Luther King, Jr. and others from the Birmingham jail for disregarding unconstitutional restrictions upon their civil rights marches. Citizens must not "be muffled pending outcome of ... proceedings" to dissolve an injunction, since

[t]he ability to exercise protected protest at a time when such exercise would be effective must be as protected as the beliefs themselves.... It is a flagrant denial of constitutional guarantees to balance away this principle in the name of "respect for judicial process." To preach "respect" in this context is to deny the right to speak at all.

388 U.S. at 349, 87 S.Ct. at 1847 (Brennan, J., dissenting). Nor is Texas alone in recognizing the unduly restrictive nature of a collateral bar rule. See, e.g., In re Berry, 68 Cal.2d 137, 65 Cal.Rptr. 273, 280, 436 P.2d 273, 280 (1968) (en banc); Wood v. Goodson, 253 Ark. 196, 485 S.W.2d 213, 217 (1972); State ex. rel. Superior Court v. Sperry, 79 Wash.2d 69, 483 P.2d 608, 611 cert. denied, 404 U.S. 939, 92 S.Ct. 272, 30 L.Ed.2d 252 (1971); Phoenix Newspapers, Inc. v. Superior Court, 101 Ariz. 257, 418 P.2d 594, 596 (1966). 4

II.

Fearful that former President George Bush would weaken the Republican Party's opposition to a woman's constitutional right to choose whether to have an abortion, Relators initiated "Operation G.O.P." to express vehemently their anti-choice views during the 1992 Republican National Convention in Houston. To attract maximum attention, Relators scheduled their protests at local family planning clinics. Concerned that they and their clients would be caught up in the intra-Republican crossfire, these clinics, joined by others, obtained temporary restraining orders to protect clinic access. Nevertheless, Relators gave various speeches--one imploring President Bush to appoint additional anti-choice judges and others condemning abortions--within a judicially prohibited area of "one-hundred (100) feet" from "either side of or in front of any doorway entrance or exit, parking lot, parking lot entrance or exit, driveway, or driveway entrance or exit" of a clinic.

Each Relator was fined $500 and committed to the Harris County jail for six months or for a lesser time if purged of contempt by paying the fine and announcing in open court a willingness to abide by the restraining orders. All seven sought habeas relief, asserting that the contempt judgment by which they were incarcerated was based upon a void, unconstitutional temporary restraining order. After the court of appeals denied relief, this court ordered Relators released upon bond.

III.

In support of the temporary restraining orders, it was asserted that clinic demonstrations posed an immediate and irreparable threat to the ability of women to seek counseling at the clinics and, if desired, to obtain abortion-related services without intimidation, threats of violence, harassment or physical obstruction. A woman's right to terminate a pregnancy is constitutionally protected. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). We have found merit in the reasoning of this decision in recognizing our own independent right of privacy under the Texas Constitution in Texas State Employees Union v. Texas Dep't of Mental Health and Mental Retardation, 746 S.W.2d 203, 205 (Tex.1987) (citing Roe ); see also Diamond Shamrock Ref. and Mktg. Co. v. Mendez, 844 S.W.2d 198, 203 (Hightower, J., concurring) (emphasizing the imperative nature of the right to privacy under the Texas Constitution); Amy Johnson, Abortion, Personhood, and Privacy in Texas, 68 Tex.L.Rev. 1521 (1990). Without unimpaired access to appropriate counseling and medical facilities, a woman's constitutional guarantee of choice would be no choice at all.

Additionally, the clinics and intervenor businesses 5 claimed injury would result from trespasses, blocked access and the intimidation of patients, staff and customers. This court has recognized that "[c]onstitutional protection of the rights of free speech and assembly does not license ... obstruction of public ways or of entrances to and exits from places of business." Ex Parte Pierce, 342 S.W.2d at 427.

Uncontroverted evidence offered in support of the temporary restraining orders established that the threat of injury posed by Operation G.O.P. to the women plaintiffs' right of access to the clinics and to the ability of clinics and businesses to operate was both imminent and irreparable.

IV.

The trial court issued two temporary restraining orders containing a number of provisions clearly directed to protecting against the specific injuries alleged by the women, clinics and businesses. Access was assured by injunctive relief that barred:

[t]respassing on, physically invading, entering without consent, damaging, sitting in, blocking, impeding or obstructing access to, ingress into or egress from any part of the Planned Parenthood facility ..., including the entrances and exits, the parking lots ..., and any of the clinic's or parking lots' entrances and driveways. 6

To ensure access to the facilities in question, the trial judge further enjoined "obstructing or interfering in any way with the entrance or exit of pedestrian or vehicle traffic to or from this one block of Berry Street." Additionally, the temporary restraining orders contained four independent provisions to guard against intimidation and harassment that prohibited:

Demonstrating within twenty-five (25) feet of any person seeking access to or leaving the clinic, its parking lots, or intervenors' businesses or parking lots, or in any way impeding such person's entrance to or exit from the clinic, parking lots or businesses;

Physically abusing, grabbing, intimidating, harassing, touching, pushing, shoving, or crowding persons entering or leaving, working at, or using any services at Planned Parenthood's above-referenced facility or at the intervenors' businesses;

Harassing, intimidating or physically abusing any doctor, health care professional, or other staff member, employee or volunteer who assists in the provision of services at the Planned Parenthood facility; and

Making any sound or noise (whether by mechanical loudspeaker, sound amplification device or otherwise) that is so loud that it disturbs, injures, or endangers the health or safety of any patient or staff person of the ... facility. 7

The contempt convictions were not, however, based on violations of these provisions drawn to protect against specific injuries. Rather, confinement of relators was premised solely on their having disregarded portions of the temporary restraining orders that barred:

Demonstrating within one-hundred (100) feet from either side of or in front of any doorway entrance or exit, parking lot, parking lot entrance or exit, driveway, or driveway entrance or exit at [any of the] clinics[s] or parking lots.

Relators thus do not attack any of the other provisions of the restraining orders but challenge only the one-hundred foot limitation as unconstitutional.

V.

In reviewing the validity of the particular one-hundred foot limitation in these orders, we must look first to our Texas Constitution. See Davenport v. Garcia, 834 S.W.2d 4, 12 (Tex.1992). With its broad command that " '[e]very person shall be at liberty to speak ... opinions on any subject,' 8 article one, section eight ... provides greater rights of free expression than its federal equivalent." Id. at 10. "[I]ts language demonstrates Texas' strong and longstanding commitment to free speech." Id. at 7.

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