Share v. Bering: Defining Boundaries for Antiabortion Picketing Near Medical Facilities and Child Welfare

Introduction

The Supreme Court of Washington's decision in Stacie C. Bering, et al., Respondents, v. Share, et al., Appellants (106 Wn. 2d 212, 1986) addresses the contentious intersection of free speech rights and the protection of individuals accessing sensitive medical services. The case revolves around the owners and physicians of a medical building seeking legal injunctions to prevent members of an antiabortion organization, Share, from picketing directly in front of their facility. The core issues pertain to the constitutionality of place and content restrictions imposed on the picketers, balancing First Amendment protections against the rights of patients and medical practitioners to access and provide abortion services without harassment or intimidation.

Summary of the Judgment

In June 1986, the Supreme Court of Washington, sitting en banc, affirmed significant portions of the Superior Court's injunction against Share and its picketers. The Superior Court had previously limited picketing locations to a specific sidewalk and prohibited aggressive behaviors and the use of terms like "kill" and "murder" in proximity to the medical facility and in the presence of children. The Washington Supreme Court upheld the geographical restriction, deeming it a valid content-neutral time, place, and manner limitation that did not infringe upon the picketers' First Amendment rights. Additionally, the court found the prohibition of certain verbal expressions permissible as a means to protect the welfare of children. However, it remanded the case to narrow the scope of the verbal restrictions, specifying that the prohibition should only apply when children below a certain age are present.

Analysis

Precedents Cited

The judgment extensively references pivotal cases that have shaped First Amendment jurisprudence concerning time, place, and manner restrictions:

• Heffron v. International Society for Krishna Consciousness, Inc. – Established guidelines for assessing the constitutionality of time, place, and manner restrictions, emphasizing content neutrality and the necessity of serving significant governmental interests.
• ROE v. WADE – Recognized the constitutional right to privacy in decisions regarding abortion, underscoring the state's compelling interest in protecting this right.
• NEAR v. MINNESOTA – Defined the doctrine of prior restraint and its general prohibition under the First Amendment, highlighting exceptions only for unprotected speech.
• Police Department v. Mosley – Reiterated that government restrictions on expression must not be based on its content or message.
• COX v. LOUISIANA and CAMERON v. JOHNSON – Affirmed the state's authority to regulate picketing in sensitive areas like courthouses to prevent interference with justice administration.

These cases collectively inform the court's approach in evaluating the validity of the injunction, ensuring that restrictions are carefully balanced against constitutional protections.

Legal Reasoning

The court's reasoning is anchored in the principle that while free speech is a fundamental right, it is not absolute and can be subject to reasonable restrictions. The injunction's place restriction was deemed content-neutral, targeting the manner of expression rather than its message. The court acknowledged the significant state interests in maintaining unimpeded access to medical facilities and protecting individuals, especially children, from coercive and harassing speech.

For content restrictions, the court applied strict scrutiny, requiring the prohibition of specific words ("kill," "murder") to serve a compelling state interest and to be narrowly tailored. The presence of children at the picketing site elevated the state's interest in preventing psychological harm, justifying some level of content restriction.

However, recognizing the dissenting opinions, the court conceded that certain provisions of the injunction might be overly broad and thus remanded for narrowing to ensure that restrictions are directly related to the specific circumstances—namely, the presence of children.

Impact

The decision in Share v. Bering sets a nuanced precedent for future cases involving picketing near sensitive locations. It underscores the judiciary's role in meticulously balancing free speech against individuals' rights to access medical services without harassment. By upholding place restrictions and permitting narrowly tailored content restrictions in specific contexts, the court provides a framework for evaluating similar conflicts between expressive activities and access rights. This case also emphasizes the importance of considering vulnerable populations, such as children, in the formulation of legal restrictions.

Complex Concepts Simplified

To better understand the judgment, it's essential to clarify two key legal concepts:

• Prior Restraint: This refers to government actions that prevent speech or expression before it occurs. The Supreme Court generally prohibits prior restraints unless dealing with unprotected speech, such as obscenity or incitement to violence.
• Time, Place, and Manner Restrictions: These are regulations that restrict when, where, and how speech can occur. For such restrictions to be valid, they must be content-neutral, serve significant governmental interests, be narrowly tailored, and leave open ample alternative channels for communication.

In Share v. Bering, the place restriction falls under the category of time, place, and manner restrictions, aiming to regulate the conduct surrounding speech rather than the content of the speech itself. The content restriction, however, approaches the boundaries of prior restraint by limiting specific words used during picketing.

Conclusion

The Supreme Court of Washington's decision in Share v. Bering adeptly navigates the intricate balance between safeguarding free speech and protecting individuals' rights to access medical services without harassment. By upholding content-neutral place restrictions and allowing narrowly tailored content restrictions in the presence of children, the court acknowledges the complexities inherent in regulating expressive activities. The remand for further narrowing of the injunction ensures that future rulings will maintain this delicate balance, preventing undue infringement on free speech while addressing legitimate state interests. This case serves as a critical reference point for similar disputes, highlighting the judiciary's pivotal role in upholding constitutional protections amidst societal conflicts.