BERGER v. CITY OF SEATTLE - ACLU of Washington

262 BERGER v. CITY OF SEATTLE
the liberty of speech and discussion inherent to a traditional
public forum). Public park-goers certainly have no “substantial
privacy interest,” Cohen, 403 U.S. at 21, that must be
defended; they are in the public sphere. See also Lehman v.
City of Shaker Heights, 418 U.S. 298, 303-04 (1974) (advertising
space on public streetcars is not a “First Amendment
forum” like a “park,” and a streetcar “captive audience” is in
a situation “different from the traditional settings where First
Amendment values inalterably prevail.”). If a captive audience
is to be found at the Seattle Center, such an audience
could be found in just about any public park anywhere. For
that matter, people walking down the street usually want to
get where they are going; on the majority’s rationale, they
would be “captive” also, because they have no choice but to
walk from here to there. Any such result would be deeply at
odds with our law, as it would swallow entirely the broad protection
of speech in public fora.
But the majority does not only import captive audience law
into a context in which it simply does not apply. It also relies
on a wholly inapposite line of cases concerning the unique
privacy and self-determination interests involved in protecting
abortion clinics and medical facilities: The majority justifies
upholding the captive audience rule by pointing out that the
thirty-foot buffer zone the Seattle Center wishes to impose is
about the same size as the buffer zone at issue in Madsen v.
Women’s Health Center, 512 U.S. 753 (1994).
The interests involved in Madsen, however, could not be
more different than those we consider here. In that case, the
Supreme Court upheld a state court’s injunction creating a 36-
foot buffer zone around the entrances of an abortion clinic in
which picketing and demonstrating, among other activities,
were barred. Id. at 768-71. The idea that park-goers are in any
way similarly situated to the patients and doctors of an abortion
clinic under siege by hostile protestors, is absurd. 13 The
13 Even the process by which the buffer zone was designed and upheld
in Madsen is entirely distinct. In Madsen, abusive abortion protesters were