Ex Parte Tucci

859 S.W.2d 1, 36 Tex. Sup. Ct. J. 1154, 1993 Tex. LEXIS 100, 1993 WL 233435

• Court: Texas Supreme Court
• Decided: June 30, 1993
• Docket: D-2809, D-2819, D-2820, D-2821, D-2822, D-2823, D-2824
• Status: Published

Opinions

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 businesses⁵ claimed injury would result from trespasses, blocked access and the intimidation of patients, staff and customers. This court has recognized that “[c]on-stitutional 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:

[tjrespassing 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.

Relying upon this fundamental state guarantee, our courts have repeatedly rejected both legislative and judicial attempts to restrict expression. The earliest writings are those of our sister court, the Texas Court of Criminal Appeals. In granting habeas relief to an arrested news dealer, that court declared violative of article I, section 8 an ordinance of the City of Seguin forbidding the sale of a particular Chicago newspaper:

The power to suppress one concedes the power to suppress all.... The doctrine of the constitution must prevail in this state, which clothes the citizen with liberty to speak, write, or publish his opinion on any and all subjects.

Ex parte Neill, 32 Tex.Crim. 275, 22 S.W. 923, 924 (1893). In Ex parte Foster, 44 Tex.Crim. 423, 71 S.W. 593 (1903), the same constitutional guarantee precluded a judicial attempt to suppress publication of testimony in a murder trial by the editor of the Houston Chronicle. See also Ex parte McCormick, 129 Tex.Crim. 457, 88 S.W.2d 104 (1935). In striking down a Disloyalty Act adopted during World War I, the court similarly emphasized that “the use of [particular] language per se [cannot be made] a felony ... without offending against [this] provision of the Bill of Rights.” Ex parte Meckel, 87 Tex.Crim. 120, 220 S.W. 81, 84 (1920).

In our civil jurisprudence, the “constitutional guaranty of liberty of speech” was accorded early respect, precluding an injunction to restrain publication of a libel. Mitchell v. Grand Lodge Free & Accepted Masons, 56 Tex.Civ.App. 306, 121 S.W. 178, 179 (Dallas 1909, no writ). Our court’s first use of section eight to safeguard speech came in Ex parte Tucker, 110 Tex. 335, 220 S.W. 75, 76 (1920), where habeas relief was accorded to one held in contempt for violating an injunction by making “slanderous epithets to the female telephone operators” during a labor dispute. In thereafter refusing to enjoin publication of an alleged libelous article, the court in Strange v. Biggers, 252 S.W. 826 (Tex.Civ.App.—Dallas 1923, no writ), declared that

freedom of speech will necessarily end when supervision by a court of equity of the expressions and sentiments of the individual is allowed to begin.

See also Pirmantgen v. Feminelli, 745 S.W.2d 576, 579 (Tex.App.—Corpus Christi 1988, no writ) (holding unconstitutional injunction barring dissemination of allegedly libelous letter).

Consistent with this jurisprudence and the history of our state constitution, this court announced in Davenport that restrictions must be targeted at the effect of expression rather than at the expression itself. There, “an imminent and irreparable harm to the judicial process [that] deprive[s] litigants of a just resolution of their dispute” was determined to be the effect of expression to which a judicial order could be directed. 834 S.W.2d at 10. Second, we emphasized the need to ensure that any limitation “represents the least restrictive means to prevent that harm[ful effect.]” Id.

That same standard controls here. Freedom of expression may not be restricted solely on grounds that its exercise will have the effect of producing imminent and irreparable harm. Restraints may be imposed only if the injunctive relief granted encompasses the least restrictive means of protecting against the alleged harmful effect. In resolving both whether the alleged effect was imminent and irreparable and whether the temporary injunctive relief granted here was the least restrictive means to prevent that harm, we look to the injury asserted, the relief requested, and the underlying evidence.

Encompassed within this large “speech-free” zone around each of the clinics was not just clinic property and the area immediately in front of entrances and exits of the clinics and their parking lots, but public streets and sidewalks as well. This restriction had the effect of closing to protestors during the Republican Convention the entire city block on which the Planned Parenthood clinic was located, and displacing them across several of Houston's busiest streets. The one-hundred foot limitation similarly barred protests during this critical time on public streets and sidewalks near the other clinics.

The one-hundred foot speech-free zone provision of the temporary restraining order here bears a striking resemblance to that at issue in Ex Parte Henry prohibiting strikers from picketing “on, across, at or near or within 100 feet of the railroad tracks” being used to transport freight into their employer’s plant. 215 S.W.2d at 590. In voiding that injunction, this court concluded that

So long as the pickets did not physically obstruct the spur tracks and thereby nullify or seriously impair the right of the railways to use the street, they had the same right to use the streets as the railways had.

Id. at 597. Unless such a restriction is proved to be the least restrictive means of guarding against an irreparable and imminent injury, it is an impermissible infringement on our state constitutional right of free expression. While the one-hundred foot limitation here, simply by the mere fact of distance, might have had the general effect of preserving clinic access and protecting patients, staff and customers against intimidation and harassment, it was not proved at the trial court hearing that this large zone was the least restrictive means for guarding against these injuries. Although a map of the Planned Parenthood facility was referred to at the hearing on the restraining orders, it was not admitted into evidence. As to the other clinics, no evidence was offered regarding their location and physical facilities. It was recognized at the hearing that these varied widely, from free-standing buildings on heavily travelled city streets to smaller facilities in high-rise offices.

Those opposing the one-hundred foot speech free zone argued to the trial court that it was not tailored to the circumstances of each individual clinic. Rather than offering specific evidence justifying a particular distance for each clinic, those seeking the restraint urged a uniform restriction for “administrative convenience.” As our sister court has noted, “the argument of convenience can have no weight as against those safeguards of the constitution which were intended by our fathers for the preservation of the rights and liberties of the citizen.” Ex parte McCormick, 88 S.W.2d at 107. Nor was it shown that the other provisions of the temporary restraining orders provided inadequate protection. In fact, the parties seeking injunctive relief were not even in agreement as to the necessity of the one-hundred foot limitation; the State of Texas maintained that a thirty-foot zone was adequate to protect against any threatened injury.

Given the potential harmful impact of Relator’s demonstrations on the fundamental constitutional right of privacy of women desiring access to these clinics, her decision to grant emergency relief is understandable. However, our state constitution requires that we enforce its stringent preference for freedom of expression even for those who advocate interference with other constitutional rights. Without specific findings supported by evidence that the 100-foot speech-free zone was the least restrictive means to ensure unimpeded access to clinics and guard against intimidation and harassment, we hold that this limitation in the restraining orders violates article I, section 8 of the Texas Constitution.

Throughout the nation, peaceful antiabortion picketing has given way to increasing incidents of violence, vandalism and trespass, as well as blockading of clinic entrances denying women their right to seek reproductive health services, including abortions.⁹ Effective injunctive relief is available to protect against these harms. There may well be situations in which prohibiting demonstration within a limited area is essential to protecting a woman’s right to choose whether to have an abortion.¹⁰ Here, though, the limited record before the trial judge at the hearings on temporary restraining orders did not support a one-hundred foot ban on speech. We should not be understood as saying the trial judge could not, following a more complete evidentiary hearing on permanent injunction, impose restrictions around the Houston clinics, either using a limited geographical ban on activity or restricting the number of protestors. Every such restriction must, however, be justified by a proper evidentiary showing that such measures are essential to preserve the right of clinic access, and that each satisfies fully the standard we have required under the Texas Constitution.

A least restrictive means requirement ensures that, when a variety of methods are available to prevent harm, our constitution commands the use of that approach which is least intrusive as to individual liberties. The West Virginia Supreme Court has similarly recognized that its “state constitutional free speech provisions would certainly compel” the use of a “less restrictive alternatives” analysis. West Virginia Citizens Action Group, Inc. v. Daley, 174 W.Va. 299, 324 S.E.2d 713, 725 (1984). Nor does this requirement differ significantly from the appropriate interpretation of the meaning of “narrowly tailored” under the better reasoned federal jurisprudence. See, e.g., Project 80’s, Inc. v. City of Pocatello, 876 F.2d 711 (9th Cir.1989); Pursley v. City of Fayetteville, 820 F.2d 951 (8th Cir.1987); City of Wateska v. Illinois Public Action Council, 796 F.2d 1547 (7th Cir.1986), aff'd mem., 479 U.S. 1048, 107 S.Ct. 919, 93 L.Ed.2d 972 (1987); Wisconsin Action Coalition v. City of Kenosha, 767 F.2d 1248 (7th Cir.1985); Association of Community Org. for Reform Now v. City of Frontenac, 714 F.2d 813 (8th Cir.1983).

The eventual, unfortunate repudiation of this protective standard by the United States Supreme Court in Ward v. Rock Against Racism, 491 U.S. 781, 798-99, 109 S.Ct. 2746, 2757-58, 105 L.Ed.2d 661 (1989), has justifiably met with criticism.¹¹ By now merely requiring that the means chosen “promotes a substantial government interest that would be achieved less effectively ” otherwise, id. at 799, 109 S.Ct. at 2758 (emphasis supplied), that Court tolerates rather substantial adverse effects on speech if masked as directed to some purported goal other than suppression. This lesser standard dilutes constitutional speech protections and assures that there will be “trampl[ing] on the rights of others” ¹²: those who express unpopular views.

Unless alternative methods of protecting against harm are considered, courts cannot evaluate whether the means selected are narrowly directed to that objective. See id. at 806, 109 S.Ct. at 2762 (Marshall, J., dissenting). As explained by the commentator upon whom Justice Gonzalez relies, 859 S.W.2d at 59-60 (Gonzalez, J., concurring), consideration of less restrictive alternatives "is relevant to deciding whether government has in fact left too little opportunity for communicative activity, whether for speakers or for listeners.” Laurence H. Tribe, American Constitutional Law § 12-23 (2d ed. 1988).

To provide speech the full protection guaranteed by article I, section 8, our evaluation of restrictions must consider whether the method of preventing harm constitutes the least restrictive means.¹³ In concurring in today's judgment, despite their protestations to the contrary, Justice Gonzalez and Chief Justice Phillips¹⁴ do, in fact, evaluate lesser intrusive means of preventing harm in determining whether the 100-foot speech-free zone may be upheld. Both note, as do I, the other less restrictive provisions of the trial court’s temporary order which appear designed to protect the right of clinic access.¹⁵ It is preferable, however, not just to employ a least restrictive means analysis here, but to reaffirm it clearly as an essential element of our jurisprudence. This ensures more consistent judicial consideration that cannot waver depending on a judge’s personal approval or disapproval of the message that has been restricted.

Today our court continues to favor the growth and enhancement of freedom not its constraint. The fact that vigorous debate of public issues in our society may produce speech considered obnoxious or offensive by some is a necessary cost of that freedom.¹⁶ Our Constitution calls on this court to maintain a commitment to expression that is strong and uncompromising for friend and foe alike.

Accordingly, Relators remain discharged.

Concurring opinion by PHILLIPS, C.J., joined by CORNYN, J.

1 . Conversely, in Ex parte Pierce, 342 S.W.2d 424 (Tex.), cert. denied, 366 U.S. 928, 81 S.Ct. 1650, 6 L.Ed.2d 388 (1961), we appropriately denied ha-beas relief after determining that the underlying order was constitutional.

2 . While claiming that Texas’ repudiation of the collateral bar rule has nothing to do with affording special protection for speech, Chief Justice Phillips relies exclusively upon cases in which this court permitted collateral review of court orders restricting freedom of expression. 859 S.W.2d at 37 (Phillips, C.J., concurring). I certainly do agree, however, that this court’s review in a habeas proceeding is not limited to whether the underlying order unconstitutionally infringes upon that particular right; an order unconstitutional on any grounds is not enforceable by contempt.

3 . See Note, Defiance of Unlawful Authority, 83 Harv.L.Rev. 626, 635 (1970) (noting that the collateral bar rule may stifle freedom of expression).

4 . Relying solely on the collateral bar rule to decide this case, the dissent, in a series of contradictions, suggests that, in appropriate cases, constitutional challenges may be permitted by those jailed for exercising their right of free expression, while at the same time making clear that an appropriate case will never arise. One exception that "may apply” occurs when an order is "transparently invalid,” 859 S.W.2d at 65 (Hecht, J., dissenting), a term the dissent employs yet refuses to define. This exception, allegedly "may account for several of the Texas free speech cases,” though we are not told which ones. Id. at 69. This exception apparently protects some forms of speech but not others such as demonstration by Relators in Houston. Perhaps forgetting that this case involves the right of free expression, the dissent announces that "Relators’ circumstances are similar to those we described ... over a half century ago," in a case involving attempted collection of a cigarette tax. Id. at 70 (citing Ex parte Kimberlin, 126 Tex. 60, 86 S.W.2d 717 (1935)).

A second exception seemingly recognized by the dissent would permit collateral review in cases involving civil, as opposed to criminal, contempt. Id. at 68. Here, Relators were jailed until they purged themselves of contempt by swearing future compliance with the trial court’s order. Even though this case involves civil contempt, the dissenting justices nonetheless refuse to review the constitutionality of the underlying order.

Yet these purported exceptions are only a mirage, since even "transparently invalid" orders or unconstitutional ones forming the basis for civil contempt must be appealed prior to their violation. The dissent would require an attempt to appeal the underlying order restricting speech no matter how limited the time available. Id. at 70 n. 26 (relying on In re Providence Journal Co., 820 F.2d 1354 (1st Cir.1987) (en banc) (requiring attempt to appeal, even when time available is a matter of hours)). The dissent would deny Relators relief because they "made no effort to seek review by appeal.” 859 S.W.2d at 70. Relators are thus faulted for failing to pursue a remedy not available under Texas law, which prohibits an appeal of a temporary restraining order.

The dissent also suggests a possible exception to the collateral bar rule when an appeal of an order restricting expression cannot be timely prosecuted. But determination of how much time must be spent pursuing an appeal prior to speaking out in violation of a court order necessarily places courts in the position of evaluating the importance of the timing of the speech. Judges, then, would be elevated to censors required to examine the content of the speech to determine whether or not the message could wait a week, two weeks, a month or years until an appeal is prosecuted. If Relators could not have obtained a ruling on an appealable temporary injunction and subsequent emergency appeal until the second day of the Republican convention, would their rights be adequately protected? What if no ruling were possible until the very last day? Would the dissent require silence in the meantime?

Of course, what the dissent is truly demanding are not exceptions, but strict enforcement of the collateral bar rule, which is supposedly essential to the ability of “trial courts to enforce orders in volatile situations.” Id. at 69. Our decision today, however, in no way lessens the power of a trial court to render an order in accord with the Texas constitutional standard and to enforce that order through the power of contempt. Contrary to the dissent, I cannot see how justice is served by leaving imprisoned those found to have violated an order shown to be unconstitutional.

5 . Adkins Architectural Antiques and Brian G. Martinez D.D.S., two businesses adjoining the Planned Parenthood Clinic on Berry Street, joined the clinic’s request for a restraining order.

6 . Similarly, the temporary restraining order applicable to the other clinics barred "[tjrespass-ing on, sitting in, blocking, impeding or obstructing access to, ingress into or egress from any part of any of the buildings, the clinics’ parking lots and any of the clinics’ or parking lots’ entrances and driveways.”

7 .Near identical provisions were included in the order applicable to the other clinics.

8 . Tex. Const, art. I, § 8, provides in full that: Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press. In prosecutions for the publication of papers, investigating the conduct of officers, or men in public capacity, or when the matter published is proper for public information, the truth thereof may be given in evidence. And in all indictments of libels, the jury shall have the rights to determine the law and the facts, under the direction of the court, as in other cases.

9 . See, e.g., David A. Grimes, Jacqueline D. Forrest, Alice L. Kirkman & Barbara Radford, An Epidemic of Antiabortion Violence in the United States, 165 Am.J. of Obstetrics and Gynecology 1263 (1991); Bray v. Alexandria Women’s Health Clinic, — U.S. -, -, & n. 10, 113 S.Ct. 753, 780-81 & n. 10, 122 L.Ed.2d 34 (1993) (Stevens, J., dissenting) (detailing incidents of violence, vandalism and blockading by Operation Rescue).

10 . Although not reviewed under our state constitutional standard, prohibitions encompassing more limited areas have been upheld elsewhere as a means of assuring clinic access. See Portland Feminist Women’s Health Ctr. v. Advocates for Life, 859 F.2d 681, 684 (9th Cir.1988) (12-foot rectangular zone in front of clinic); Thompson v. Police Dept. of New York, 145 Misc.2d 417, 546 N.Y.S.2d 945, 947 (N.Y.Sup.1989) (8 by 15 foot zone in front of clinic entrance).

11 .See, e.g., Paul A. Blechner, First Amendment: Supreme Court Rejection of the Least Restrictive Alternative Test, 1990 Ann.Surv.Am.L. 331 (1991); Gregory L. Lippetz, The Day the Music Died: Ward v. Rock Against Racism, 25 U.S.F. L.Rev. 627 (1991); Carney R. Sherigan, A Sign of the Times: The United States Supreme Court Effectively Abolishes the Narrowly Tailored Requirement for Time, Place and Manner Restrictions, 25 Loyola L.A. L.Rev. 453 (1992).

12 . See 859 S.W.2d at 62 (Gonzalez, J., concurring).

13 . The only authority upon which Justice Gonzalez relies for requiring proof that the competing interest is truly compelling, Bering v. SHARE, 106 Wash.2d 212, 721 P.2d 918 (1986), cert. dismissed, 479 U.S. 1050, 107 S.Ct. 940, 93 L.Ed.2d 990 (1987), in fact reaches a result opposite to the one he endorses today. There, the Washington Supreme Court upheld a geographical ban on speech similar to the one we consider, even though other more specific provisions of the injunction were designed to protect clinic access. See 721 P.2d at 918 (Anderson, J., dissenting in part).

14 . Since most of his lengthy writing has so little to do with today’s decision and so much to do with his fretting over Davenport, Chief Justice Phillips’ concurrence is addressed in an appendix.

15 . While the concurring justices join in today's judgment, they do so in a manner that is directed more by labels than analysis. They resolve the issue presented by classifying the suppression of expression as "indirect” rather than "direct,” 859 S.W.2d at 59-60 (Gonzalez, J., concurring), or as a partial rather than a "total” ban, id. at 27 (Phillips, C.J., concurring), or as a mere “place” restriction rather than a true "prior restraint.” Id. Within the 100 foot areas, a "direct" and "total” ban was imposed to "restrain” speech “prior" to its exercise. Chief Justice Phillips provides no basis for distinguishing between the 100-foot speech free zone we consider today as simply a place restriction, as opposed to a 500-foot limitation, or one set at the number of feet encompassed within the Seguin city limits in 1893. See id. at 27 (conceding latter, at issue in Ex Parte Neill, 32 Tex.Crim. 275, 22 S.W. 923 (1893), is a “prior restraint"). Judicial inquiry is more appropriately focused on whether the restriction, however labelled, is directed solely to the harmful effects of speech and whether its proper objective is accomplished in the least restrictive manner.

16 .In the words of Justice Holmes, genuine freedom of expression requires "not free thought for those who agree with us but freedom for the thought that we hate.” United States v. Schwimmer, 279 U.S. 644, 655, 49 S.Ct. 448, 451, 73 L.Ed. 889 (1929) (Holmes, J., dissenting).