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

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.

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.

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.

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.