Planned Parenthood Ass'n of Cincinnati, Inc. v. Project Jericho

• Decision Date: 20 June 1990
• Docket Number: Nos. 89-579,89-592,s. 89-579
• Citation: 556 N.E.2d 157,52 Ohio St.3d 56
• Parties: PLANNED PARENTHOOD ASSOCIATION OF CINCINNATI, INC., Appellee and Cross-Appellant, v. PROJECT JERICHO; Antczak et al., Appellants and Cross-Appellees.
• Court: Ohio Supreme Court

Page 56

52 Ohio St.3d 56

556 N.E.2d 157

PLANNED PARENTHOOD ASSOCIATION OF CINCINNATI, INC., Appellee and Cross-Appellant, v. PROJECT JERICHO; Antczak et al., Appellants and Cross-Appellees.

Nos. 89-579, 89-592.

Supreme Court of Ohio.

Submitted Feb. 14, 1990.

Decided June 20, 1990.

Syllabus by the Court

1. The First Amendment guarantees the right to communicate views and to express dissension. Demonstrators may speak, march, picket, leaflet, carry signs or otherwise act to inform or persuade others of their beliefs. These rights, however, do not include the right to imperil public safety or to harass others in exercise of their rights.

2. The First Amendment does not preclude reasonable restrictions relating to time, place and manner of expression so long as they (1) are content-neutral, (2) are tailored to serve a significant government interest, and (3) leave alternative channels of communication open.

3. Persons acting in concert or participation with a party against whom an injunction has been issued must have actual notice of the injunction in order to be bound by it.

4. A defendant class action may be certified pursuant to Civ.R. 23. Application of the rule to defendant class actions requires considerations different from those applicable to plaintiff class actions, but a trial court, before certifying a defendant class action, must make the same affirmative findings required under Civ.R. 23 for plaintiff class actions.

Appellee and cross-appellant, Planned Parenthood Association of Cincinnati, Inc., operates the Margaret Sanger Clinic, which provides counseling and medical services, including abortions, to women.

Clinics which offer abortion services in Cincinnati have been picketed since 1974. The Margaret Sanger Clinic temporarily moved to 3332 Vine Street in January 1986, because its facilities had been destroyed by a firebomb. Although individual responsibility was never established, a pipe bomb was found in the temporary Vine Street clinic in February 1987.

As a result of picketing at the clinic, appellee filed a verified complaint for a temporary restraining order, preliminary injunction and permanent injunction against Project Jericho, Right to Life of Greater Cincinnati, Inc., Americans Against Abortion, James Condit, Jr., Jonathan Brockhoeft, Tracy Antczak, Ray Loebker, John Doe and other unnamed persons and organizations. The complaint alleged that defendants collectively or individually disrupted the operation of the clinic, harassed and intimidated staff and patients, blocked access to the building and created traffic problems. The court issued a temporary restraining order against Jonathan Brockhoeft on March 31, 1986.

On April 4, 1986, after five days of proceedings, the court issued a preliminary injunction against Condit, Brockhoeft, Antczak and Loebker and dissolved the temporary restraining order against Brockhoeft. The injunction prohibited the named defendants from shouting or chanting so loud as to be heard inside the clinic and from blocking the sidewalk. Defendants were ordered to secure their picket signs so that normal winds would not blow them into the street.

As to the remaining defendants, the court ruled that Project Jericho was only a name or slogan. The court found that Americans Against Abortion was a Texas organization that was not participating in picketing at the clinic. The court found that Right to Life of Greater Cincinnati had encouraged picketing and had disseminated information about where picketing was occurring but that it did not control or actually participate in the activities enumerated in the complaint. Therefore, the court did not enter a preliminary injunction against any of these.

On April 3, 1986 (while the motion for preliminary injunction was pending), appellee filed a motion to certify a defendant class action and, by an amended complaint, requested that the class be enjoined from interfering with the operation of the clinic, harassing patients and staff and blocking access to the clinic. Tenants in the apartment building next to the clinic later moved to intervene as plaintiffs. Intervenors alleged that picketers threatened people entering and leaving the vicinity; "blocked access on the sidewalk" in front of the apartment building and clinic; that picketers' signs obstructed a view of the street, causing traffic hazards; and that picketers screamed so loud that they could be heard in the intervenors' apartments, thus invading their privacy and disrupting their lives. Intervenors sought certification of the action as a defendant class action and an injunction preventing defendants and those acting in concert with them from creating a nuisance.

The court conducted a six-day, evidentiary hearing on the pending motions. The court found that the evidence established numerous violations of the April 4 injunction. The court also found that when tenants from the apartment building complained to picketers about the noise, the picketers increased their shouting; that the shouting had a menacing character which instilled fear in others; and that "[t]he effect of the unrestrained picketing is not the peaceful presentation of a political or religious opinion, but the attempt to disrupt a medical operation by force or fear." Indeed, some picketers apparently participated in burning the injunction. The court concluded that the picketers' conduct constituted a nuisance which the April 4 injunction had not abated. The court granted the motion to modify the April 4 injunction and conditionally certified a class action.

After the court issued the modified injunction, various defendants were charged with contempt. The court conducted additional evidentiary hearings. Contempt citations were issued. Of those found guilty, eighteen appealed to the Court of Appeals for Hamilton County.

The court of appeals affirmed the findings of contempt resulting from violation of the injunction. The court reversed the conditional certification of a defendant class. Seventeen defendants filed a notice of appeal to this court ¹ and appellee filed a cross-appeal.

The cause is before us pursuant to the allowance of both motions to certify the record.

Laufman, Rauh & Gerhardstein and Alphonse A. Gerhardstein, for appellee and cross-appellant.

Condit & Dressing Co., L.P.A., James J. Condit, John W. Dressing, Charles T. Lester, Jr. and Thomas W. Condit, for appellants and cross-appellees.

Peter J. Kadzik, Elaine Metlin, Frances A. Scibelli, Brown, Cummins & Brown Co., L.P.A., and Amy G. Applegate, urging reinstatement of the trial court's certification of a class for amicus curiae, Planned Parenthood Affiliates of Ohio, Inc.

HERBERT R. BROWN, Justice.

We must determine whether the trial court abused its discretion by finding appellants in contempt for violating the injunction under either Civ.R. 65(D) or Civ.R. 23. We hold that the trial court properly exercised the discretion it had pursuant to both Civ.R. 65(D) and Civ.R. 23.

I First Amendment Considerations

The First Amendment guarantees the right to publicly communicate views and to express dissension. Demonstrators may speak, march, picket, leaflet, carry signs or otherwise act to inform or persuade others of their beliefs. These rights, however, do not include the right to imperil public safety or to harass others in exercise of their rights. United States v. Dickens (C.A.3, 1982), 695 F.2d 765, 772, certiorari denied (1983), 460 U.S. 1092, 103 S.Ct. 1792, 76 L.Ed.2d 359, Galella v. Onassis (S.D.N.Y.1972), 353 F.Supp. 196, 223, affirmed in part and reversed in part (C.A.2, 1973), 487 F.2d 986. " * * * The rights of free speech and assembly, while fundamental in our democratic society, still do not mean that everyone with opinions or beliefs to express may address a group at any public place and at any time. The constitutional guarantee of liberty implies the existence of an organized society maintaining public order, without which liberty itself would be lost in the excesses of anarchy. * * * " Cox v. Louisiana (1965), 379 U.S. 536, 554, 85 S.Ct. 453, 464, 13 L.Ed.2d 471.

The First Amendment does not preclude reasonable restrictions relating to time, place and manner of expression so long as they (1) are content-neutral, (2) are tailored to serve a significant government interest, and (3) leave alternative channels of communication open. United States v. Grace (1983), 461 U.S. 171, 177, 103 S.Ct. 1702, 1706-07, 75 L.Ed.2d 736, citing Perry Edn. Assn. v. Perry Local Educators' Assn. (1983), 460 U.S. 37, 45, 103 S.Ct. 948, 954-55, 74 L.Ed.2d 794. See, also, Heffron v. Internatl. Soc. for Krishna Consciousness, Inc. (1981), 452 U.S. 640, 101 S.Ct. 2559, 69 L.Ed.2d 298; Grayned v. City of Rockford (1972), 408 U.S. 104, 115, 92 S.Ct. 2294, 2302-03, 33 L.Ed.2d 222; Adderley v. Florida (1966), 385 U.S. 39, 47-48, 87 S.Ct. 242, 247-48, 17 L.Ed.2d 149, rehearing denied (1967), 385 U.S. 1020, 87 S.Ct. 698, 17 L.Ed.2d 559.

The injunction before us prohibits screaming, chanting, speaking or singing in a manner intended to reach or which had the effect of reaching patients inside the clinic at 3332 Vine Street; screaming at patients entering or leaving the clinic; blocking the driveway, entrances or exits from the clinic or the public walkway in front of it; and mass picketing. The court limited the numbers of picketers to one stationary picket on the Louis Street sidewalk; one stationary picket on the Shields Street sidewalk and three moving pickets at designated locations. Limits were not placed on the numbers of pickets on the west side of Vine Street.

The injunction is not based upon the subject matter or content of speech and thus meets the first constitutional requirement of content neutrality. Heffron, supra, 452 U.S. at 648, 101 S.Ct. at 2564.

The injunction serves a significant governmental interest. The interest is that trade and commerce be conducted unimpeded by breaches of the peace and threats to...