The right to show a gruesome image

Should protesters who are against legalized abortion be allowed to hold signs and posters showing aborted fetuses?

They can in Minnesota, but not in Colorado.

In 2005, Kenneth Tyler Scott and Clifton Powell led a demonstration outside Saint John’s Church in the Wilderness, a Denver-area church they said was liberal, embraced Bill Clinton, and ran astray of teachings of the Bible. They held signs of aborted fetuses. Although they never entered church property, the church sued them for private negligence and won.

Subsequent rulings in the appeal court and the state supreme court limited the time they could demonstrate, blocking out Sunday worship time. They were barred from setting foot on the block around the church and portions of a neighboring block.

The court said it was necessary to protect children “from exposure to certain images of aborted fetuses and dead bodies.”

Is it? The U.S. Supreme Court is about to decide whether it’s something the Supreme Court needs to decide.

Eugene Volokh, who writes the law blog, The Volokh Conspiracy, took the case and filed his brief this week to the high court. He’s a professor of law at UCLA, writing today…


I’m not opposed to abortion myself, and I understand the sentiment behind the decision, but it strikes me as potentially very dangerous. The same arguments could apply to other disturbing images — for instance, images used by some animal rights protesters, by anti-war activists, anti-drone strike activists, and so on. The arguments aren’t even limited to images; see Bering v. SHARE (Wash. 1986), which used the same rationale to hold that an injunction could ban “picketers’ oral use of the words ‘murder,’ ‘kill,’ and their derivatives.”

And beyond that, it seems to me that the upholding of new content-based restrictions, especially on political speech, helps undermine the strength of First Amendment protections more generally. I think the Ninth Circuit was quite right in taking the opposite view in Center for Bio-Ethical Reform, Inc. v. Los Angeles County Sheriff Dep’t (9th Cir. 2008), and rejecting a “‘minors’ exception to the prohibition on banning speech because of listeners’ reaction to its content.” “It’s for the children” has long been a slogan for all sorts of restrictions on individual rights, some justifiable but some not. I’d rather that the strong rule against content-based speech restrictions on political speech not fall victim to this slogan as well.

Why not? Because it would be easier to prevent publication of things like this, for example — a Tibetan monk immolating himself to protest persecution. Gruesome indeed, but does it serve a purpose in informing people? Volokh says it does.

There’s another area where this question might ring a bell for Minnesotans, however: The Westboro Baptist Church picketing the funerals of soldiers.

After church members picketed the February 2006 funeral of Andrew Kemple in Anoka (he was killed in Iraq), the Minnesota Legislature followed other states in passing legislation making it a crime to “disrupt” a funeral.

It mirrored a law passed in Missouri, which a federal court blocked. Supporters appealed to the U.S. Supreme Court then to decide the issue. It did so in 2011. Ruling against the Maryland father of a soldier killed, the court said the protesters had the right to protest. It wasn’t close; eight of the nine justices agreed.

  • snaab

    I had just read the three posts over at Volokh, and was happy to see you link to them and also take on the topic.

    Sure, some images are difficult for children, but as Volokh notes from Judge Posner,

    “children below voting age 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.”

    Regarding Snyder v. Phelps, the Court got it right, and although Alito had an emotional dissent, the facts of the case clearly showed the Phelps had stayed within all the restrictions in place by the local municipality, and were not breaking any laws. Snyder’s own father never saw the protests, and only heard about them after the fact on the local tv news. Though troubling for that family, they did not suffer harm, they never saw it happen.

  • BJ

    followed the link to Volokh. Understood the blog post, comments are deep.

  • Jeff

    Isn’t this similar to the rules about what can and can’t be shown on broadcast TV? You can’t show some things when kids are more likely to see them but you can show it late at night. If these are images that couldn’t be shown on the 6pm news, can they be shown on the street, regardless of what else is going on around them? (Yes, I know the FCC doesn’t have jurisdiction over signs on the street. I’m just sayin’…)

  • Adam j

    Private nuisance not negligence