A Cowardly Supreme Court Refuses to Find That Gruesome Abortion Photos Are Protected by the First Amendment

The law, lawyers, and the court.
Aug. 14 2013 6:27 PM

The Supreme Court’s First Amendment Cowardice

They should have overturned a ruling that bars gruesome abortion photos. Instead, they ducked. 

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The Colorado court sets the value of all of that imagery aside for another principle: the government’s interest in protecting children from harm. The judges reach back to a 1968 decision that barred the sale of soft-porn magazines to children under 17. But since then, the Supreme Court has far more often weighed in on the side of not restricting speech just because it might hurt kids to see or hear it. In 2011, the justices struck down a California ban on the sale of violent video games to kids, saying that it would be a mistake to “create a wholly new category of content-based regulation” just for speech directed at children. (In the same year, the Supreme Court also let the reviled Westboro Baptist Church hold up signs like “Thank God for Dead Soldiers” and “God Hates Fags,” outside a military funeral, despite the grief of the father of the Marine being buried.) The court has also let drive-in movie theaters show movies with full-scale nudity even though kids may see it.

Other courts that have heard cases about gruesome fetus pictures have understood that free speech must trump concerns about children’s delicate sensibilities. In cases in which the police stopped anti-abortion protesters who were driving around in trucks plastered with photos, passing kids and schools, the 6th and 9th U.S. Circuit Courts of Appeals both ruled in favor of the protesters. “It would be an unprecedented departure from bedrock First Amendment principles to allow the government to restrict speech based on listener reaction simply because the listeners are children,” the 9th Circuit said.

Yes, exactly. I understand why parents don’t want their kids to see blood and death and gore. When my kids were little, my husband and I often cut the picture out of the front page of the newspaper so a violent image wouldn’t light up their nightmares. I also live a few blocks from an abortion clinic. On weekends, when protesters stood outside with their giant posters of tortured-looking fetuses dripping in blood, I used to drive around the block to avoid passing by. I remember once toying with the idea that those pictures are a form of gore porn that kids should be spared.

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But whatever our parental instincts, that just can’t be right. As Volokh puts it, “One can sympathize with parents’ desire to shield their children from speech that the children might find disturbing. But if the government can use the force of law to suppress any speech that a court may find concerns parents, that is in the court’s view ‘highly disturbing to children,’ and that leads at least one child to avert her eyes and be ‘upset,’ then the government would have broad power over public speech.”

I’ve also learned this lesson as my kids have gotten older: Sometimes disturbing pictures prompt crucial conversations. That’s true of the posters outside the abortion clinic near our house. One day when I did drive by them, my kids asked what they were, and I explained. And, you know, I was glad afterward. Abortion is divisive and difficult and also of huge significance, politically and morally. I want my kids to think about it. OK, not in preschool, but long before they turn 18. As usual, Judge Richard Posner (an occasional Slate contributor) has the quote I’m looking for: Children “must be allowed the freedom to form their political views on the basis of uncensored speech before they turn eighteen, so that their minds are not a blank when they first exercise the franchise.”

The more I think about it, the more outrageous I find it that along with Colorado, other lower courts—the 8th Circuit, the Washington state Supreme Court, and the Wyoming Supreme Court—have held or suggested that anti-abortion protesters can be barred from holding up their signs for the sake of the children. The First Amendment can’t waver because some people think a particular form of speech is offensive or graphic. There simply is no neutral, unbiased way to decide. So we have to allow for it all. Parents, not the government, have to decide what their kids can handle and how to help children who are bombarded by images that are scary.

I don’t know why the Supreme Court didn’t take the Colorado case. You’d think this is one justices on the left and the right could agree on, as they have in other recent First Amendment cases. Liberals as well as conservatives came out strongly in favor of Supreme Court review. It was a missed opportunity, especially because there’s another case on the docket about a Massachusetts law that makes it a crime for abortion protesters to gather on the sidewalk within 35 feet of a clinic. The courts should be united on this particular question about abortion: The government can’t stop people from showing pictures of it.

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