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. 

Pro Life Protester yelling alongside a graphic image of an aborted fetus.
An anti-abortion protester yells as thousands of abortion-rights supporters take part in the March for Women's Lives on April 25, 2004, in Washington, D.C.

Photo by Mario Tama/Getty Images

Emily Bazelon Emily Bazelon

Emily Bazelon is a Slate senior editor and the Truman Capote Fellow at Yale Law School. She is the author of Sticks and Stones.

In Kansas, where restricting abortion is a frequent pastime, pro-life groups are making an amazing argument to the Wichita City Council. They’re trying to shut down the abortion clinic of the late Dr. George Tiller—the doctor who was murdered by an anti-abortion zealot in 2009—by saying that its presence causes too much disruption. The anti-abortion groups argued the neighborhood around the clinic should be rezoned to bar the clinic because of clashes between protesters and the escorts who help women get into the clinic. And in particular, because children shouldn’t see the graphic posters that protesters carry. Almost 14,000 people signed the rezoning petition.

Let’s set aside the hypocrisy of complaining that children shouldn’t see gruesome images that the anti-abortion protesters themselves are displaying. That’s irritating, but it’s not the big problem here. What’s truly of concern is that an argument about shielding children is being wielded to stop a constitutionally protected adult activity. Even odder and more worrisome: A few courts, most recently in Colorado, have actually bought the notion that it’s the government’s job to protect children from graphic images of abortion—and barred anti-abortion protests as a result.

In other words, the opponents of abortion have more to lose from the save-the-children argument than the backers of any abortion clinic. But in the end, we all lose, because this is our collective right to free speech. The Supreme Court this week said it would not hear an appeal of the Colorado ruling. The justices’ decision to duck this one instead of standing up for the First Amendment is completely baffling.

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The facts: In 2005, anti-abortion protesters gathered on the sidewalk—a quintessential public space—outside an Episcopal church in Denver before a Palm Sunday service. They yelled and held up posters of mutilated fetuses or dead bodies. About 200 kids came to church that day, and some of their parents said they were frightened. The priest’s 7-year-old daughter put her face in her hymnal as she passed the posters and reportedly felt upset for days about what she’d seen.

The church went to court to stop the protesters. They won an injunction that applies to any protests in an entire block around the church, from 7 a.m. to 1 p.m. on Sundays and also from a half an hour before until half an hour after every religious event. The order bars the display of “large posters or similar displays depicting gruesome images of mutilated fetuses or dead bodies in a manner reasonably likely to be viewed by children under 12 years of age attending worship services.”

On appeal, the Colorado Court of Appeals admitted that this is not a “content-neutral” restriction on speech. That matters a great deal. If the government wants to bar all protesters from blaring their messages over a loudspeaker on residential streets at midnight, it often can. This is what’s called a content-neutral restriction on the time, place, and manner of speech. It doesn’t involve the government in disfavoring one point of view or argument. But telling abortion protesters that they can’t hold up posters of bloody fetuses precisely targets the content that is “critical to their underlying message,” as their brief, written by UCLA law professor Eugene Volokh, argues.

Other courts have recognized this and allowed anti-abortion protesters to use whatever images they want. The images “are jarring, their shock value unmistakable. Presumably, that was the point,” the U.S. Court of Appeals for the 3rd Circuit wrote in 2010. And think of all the other sorts of gruesome and disturbing photographs that give life to the cliché that a picture is worth a thousand words. Volokh ticks them off in his brief: Photos of lynchings, of butchering during war, of horribly ill people, of slaughtered animals for an animal rights protest.