Robbinsdale Clinic, P.A. v. Pro-Life Action Ministries

515 N.W.2d 88, 1994 Minn. App. LEXIS 328, 1994 WL 133308

• Court: Court of Appeals of Minnesota
• Decided: April 19, 1994
• Docket: C1-93-1951
• Status: Published

Opinions

OPINION

SCHUMACHER, Judge.

Following a hearing before the district court, appellant Lori Driver was found in contempt for communicating with a patient of respondent Robbinsdale Clinic, P.A. (Clinic) and for attempting to communicate with the patient’s parents. We reverse.

FACTS

In response to a request by Clinic, the district court permanently enjoined a number of parties, including Driver, from harassing people within “Zone A,” an area of several square blocks surrounding Clinic. Driver was also enjoined from acting in concert with other people if doing so would result in prohibited activity.

On March 26, 1993, Driver discovered that a woman (Patient X) had an appointment at Clinic. Later that day, Driver left two telephone messages at Patient X’s home, asking that Patient X call her. When Patient X did not return the calls, Driver went to Patient X’s home during the evening of March 26 and left anti-abortion literature and a plastic model of a fetus on Patient X’s doorstep.

On March 27, the day of Patient X’s appointment, Driver again called Patient X. Apparently under the mistaken impression that Patient X was a minor who lived with her parents, Driver left a message asking that Patient X’s parents call about an emergency concerning Patient X. Patient X reported the call to Clinic. A Clinic representative called the number left by Driver, pretended to be Patient X’s father, and discovered that it was the number for the Robbins-dale Women’s Center. This organization was located in Zone A and had ties to anti-abortion groups with which Driver was affiliated. The Robbinsdale Women’s Center staff member who answered the Clinic representative’s call told him that Patient X had gone in for an abortion that day.

As a result of these alleged violations of the permanent injunction, the Clinic moved to have Driver found in contempt. The court granted the motion. After Driver’s first appeal was dismissed by this court, the district court reaffirmed the findings and conditions found in its original contempt order and ordered Driver to report to the workhouse.

ISSUES

1. Does the evidence support the finding of contempt?

2. Did Driver waive her challenge to the injunction’s constitutional validity?

3. May Driver constitutionally be held in contempt for communicating with a Clinic patient?

4. May Driver constitutionally be held in contempt for her attempt to communicate' with the parents of a Clinic patient?

ANALYSIS

1. Driver claims that Patient X did not live in Zone A and that she cannot be held in contempt for acts committed' outside this area. The record is completely silent as to Patient X’s address or identity, in large part because Driver failed to raise this issue during her contempt hearing. In any event, the absence of findings or evidence in the record that Patient X lived in Zone A makes it impossible to support a conclusion that Driver violated the terms of the permanent injunction when she left the first two messages on Patient X’s answering machine or when she left the anti-abortion materials on Patient X’s doorstep.

Nevertheless, Clinic alternatively claims that Driver’s actions justify a finding of contempt because they were initiated and taken in concert with individuals located within Zone A. Therefore, in order to avoid further litigation in this matter, we will address Driver’s constitutional arguments at this time. See Mitchell v. Morten, 237 Minn. 245, 251, 54 N.W.2d 333, 337 (1952) (issues may be resolved on appeal when relevant parts of record are clear and doing so would avoid unnecessary expense and delay).

2. Clinic contends that Driver waived her objections to the constitutionality of the injunction by failing to appeal when the injunction was first issued. We disagree.

The Minnesota Supreme Court has not decided whether, on appeal from a conviction for violation of an injunction, a contemner can challenge the injunction’s facial constitutional validity. State v. Errington, 310 N.W.2d 681, 683 n. 1 (Minn.1981). We do not resolve that issue here. Driver, however, does not challenge the facial validity of the injunction.¹ Rather, she challenges the way in which the district court applied the injunction at her contempt hearing, claiming that her actions may not constitutionally be classified as harassment. Until Driver was found in contempt, and thus made aware that the district court considered her actions to constitute harassment, she had no reason to challenge the injunction. Driver’s inability to foresee that a facially acceptable injunction might subsequently be applied in a constitutionally suspect manner should not and does not result in a waiver of her right to challenge the constitutionality of the district court’s application of the injunction.

3. Before a party may be held in contempt, a court must determine whether the underlying order is valid. River Towers Ass’n v. McCarthy, 482 N.W.2d 800, 803 (Minn.App.1992), yet. for rev. denied (Minn. May 21, 1992). A First Amendment challenge to an injunction is analyzed using the same principles applied to other restrictions on speech challenged under U.S. Const, amend. I. See id. A restriction on First Amendment rights is not entitled to a presumption of constitutionality. State v. Casino Mktg. Group, 491 N.W.2d 882, 885 (Minn.1992), cert. denied, — U.S.-, 113 S.Ct. 1648, 123 L.Ed.2d 269 (1993).

The district court did not find that Driver participated in any enjoined behavior other than harassment. Specifically, the court found Driver in contempt for (1) making two telephone calls to Patient X’s home and leaving a call-back request each time; (2) leaving “material of a sensitive and personal nature” (that is, anti-abortion literature and a plastic fetus) on Patient X’s doorstep; and, (3) attempting to inform Patient X’s parents that Patient X had undergone an abortion. The question we face is whether, consistent with First Amendment principles, Driver’s actions may be classified as harassment for the purpose of finding her in contempt. We hold that they may not.

An injunction that prohibits harassment is generally considered a time, place, or manner restriction, since it claims to regulate the way in which a communication is made, not the actual content of the communication. Northeast Women’s Ctr. v. McMonagle, 939 F.2d 57, 63 (3d Cir.1991). In this case, however, the injunction was not applied in a content neutral manner, as demonstrated by the fact that Driver was found in contempt because of the nature of the material she left on Patient X’s doorstep. See Virginia State Bd. of Pharmacy v. Virginia Citizens Consumers Council, 425 U.S. 748, 771, 96 S.Ct. 1817, 1830, 48 L.Ed.2d 346 (1976) (content neutral restrictions regulate without reference to content of regulated speech). Accordingly, there must be a compelling state interest to justify finding Driver in contempt for her attempts to communicate with Patient X. See R.A.V. v. City of St. Paul, — U.S.-,-, 112 S.Ct. 2538, 2549-50, 120 L.Ed.2d 305 (1992) (content based restriction will not be allowed unless necessary to serve compelling state interest). We conclude that the district court’s interpretation of the injunction renders it too broadly tailored to support any state interest presently before us. Cf. United States v. Local 560, 974 F.2d 315, 344 n. 16 (3d Cir.1992) (overbreadth attack on injunction considered as argument that injunction is not tailored narrowly enough).

It is constitutionally permissible for the state to restrict the communication of information to the home of an unwilling recipient. Frisby v. Schultz, 487 U.S. 474, 484-85, 108 S.Ct. 2495, 2502, 101 L.Ed.2d 420 (1988). Similarly, a visitor cannot demand that a residential occupant listen to the visitor’s message. Kovacs v. Cooper, 336 U.S. 77, 86, 69 S.Ct. 448, 453, 93 L.Ed. 513 (1949). In short, there is no right to force speech into an unwilling listener’s home. Frisby, 487 U.S. at 485, 108 S.Ct. at 2502.

Nonetheless, restrictions must be tailored narrowly so as to protect only those recipients who are unwilling to receive the communications. Id. at 485, 108 S.Ct. at 2503; see also Consolidated Edison Co. v. Public Serv. Comm’n, 447 U.S. 530, 542 n. 11,100 S.Ct. 2326, 2336 n. 11, 65 L.Ed.2d 319 (1980) (even if state has compelling interest in protecting recipients of objectionable mail, state could simply require sender to stop mailing to people who object); Rowan v. United States Post Office Dep’t, 397 U.S. 728, 736-37, 90 S.Ct. 1484, 1490, 25 L.Ed.2d 736 (1970) (person may be prevented from mailing information to residence once told to stop by resident); Martin v. City of Struthers, 319 U.S. 141,147-48, 63 S.Ct. 862, 865-66, 87 L.Ed. 1313 (1943) (state can prohibit door-to-door leafletting only where occupant has told distributer of leaflets to stay away). Each of these holdings presuppose that the resident has expressed an unwillingness to listen to the visitor’s message. When the state prohibits communication without any prior indication that a resident is unwilling to receive it, violence is done to the premise that the First Amendment protects not only the right to communicate information, but the right to receive it. See Kleindienst v. Mandel, 408 U.S. 753, 762-63, 92 S.Ct. 2576, 2581, 33 L.Ed.2d 683 (1972) (First Amendment protects right to receive ideas and information).

Here, Patient X did not object to Driver’s communications before they were conveyed. Clinic implies that we should presume that it acted on behalf of its patients when it sought the injunction, and further presume that its patients do not wish to receive Driver’s message. These presumptions cannot be reconciled with the First Amendment’s guarantee of the right to freely debate matters of public concern. See Frisby, 487 U.S. at 479, 108 S.Ct. at 2499 (topic of abortion is entitled to First Amendment protections given to discussions of other public concerns).

Furthermore, Clime’s position would improperly give a medical facility the power to decide what information may be provided to its clients. As was explained in a similar situation:

The clinic wishes potential clients to be shielded from hearing advocacy with which it disagrees so that they will obtain abortions. But obtaining abortions is not in issue; the availability of abortion services * * * * continues. The clinic’s real complaint is that the choice has been made more difficult because of adverse information communicated to potential patients. Yet making choices more difficult is not the same as eliminating the right to choose. In fact, in a polity where the people are sovereign, informed choice-enhances responsible decision-making. Neither we nor the clinic can cut off the peaceful communication of information, distasteful to some though it may be.

Mississippi Women’s Medical Clinic v. McMillan, 866 F.2d 788, 796 (5th Cir.1989) (footnote omitted). Based on an injunction to which Clinic patients were in no sense a party, Driver may not be held in contempt for communicating with Patient X.

4. Driver’s attempt to call Patient X’s parents raises other questions. At the outset, though, we note that there has been no allegation that Driver unlawfully obtained the information about Patient X’s appointment at Clinic. See The Florida Star v. B.J.F., 491 U.S. 524, 534, 109 S.Ct. 2603, 2609, 105 L.Ed.2d 443 (1989) (under some circumstances government may forbid non-consensual acquisition of sensitive information in private hands).

The Minnesota Supreme Court has never held that the constitutional right of privacy includes a right to prevent the public disclosure of personal information. Keezer v. Spickard, 493 N.W.2d 614, 619 (Minn.App.1992), pet. for rev. denied (Minn. Feb. 12, 1993). In addition, the court has expressly declined to recognize a civil claim for invasion of privacy. Hendry v. Conner, 303 Minn. 317, 319, 226 N.W.2d 921, 923 (1975); see also Stubbs v. North Memorial Medical Ctr., 448 N.W.2d 78, 80-81 (Minn.App.1989) (invasion of privacy action not allowed against physician who published “before” and “after” photographs of patient), pet. for rev. denied (Minn. Jan. 12, 1990).

Finally, even where invasion of privacy claims are recognized, they are generally not allowed where private facts are only communicated to a single person or a small group of people, as was the case here. Restatement (Second) of Torts § 652D cmt. a (1976). Given that Clinic has not shown that Patient X’s constitutional right of privacy was violated, and in light of the fact that a tort claim for invasion of privacy against Driver would not be recognized, we cannot uphold the more constitutionally suspect state action of finding Driver in contempt for attempting to communicate with Patient X’s parents.

DECISION

The record does not support a conclusion that Driver’s first two telephone calls or delivery of materials to Patient X’s home took place within the area described by the permanent injunction. Driver has not waived her challenge to the constitutionality of the district court’s interpretation of the permanent injunction. Driver may not constitutionally be found in contempt for her efforts to communicate with Patient X or Patient X’s parents.

Reversed.

1 . Driver originally contended that the injunction was unconstitutionally vague because it did not define "harassing.” "Harassing” is not an unconstitutionally vague term. Carpenter v. Mattison, 300 Minn. 273, 277, 219 N.W.2d 625, 629 (1974); see also New York State Nat’l Org. for Women v. Terry, 886 F.2d 1339, 1352 (2d Cir. 1989) (“tortious harassment” is sufficiently clear term in injunction when “balanced by language * * * sufficiently clear for defendants to ascertain precisely what they could and could not do"), cert. denied, 495 U.S. 947, 110 S.Ct. 2206, 109 L.Ed.2d 532 (1990). Driver conceded this point at oral argument.