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By CHARLES C. HAYNES
First Amendment Center
For those of us who worry about the vitality of free speech in the “land of the free,” the news this week isn’t good.
On June 10, the U.S. Supreme Court refused to review a Colorado appeals court decision banning anti-abortion activists from displaying “gruesome images” of mutilated fetuses that might be seen by children.
The case that precipitated the appeals court ruling, Scott v. St. John’s Church in the Wilderness, concerns an anti-abortion protest that took place several years ago on a public sidewalk near a Denver church — a church the protesters believed had fallen away from the teachings of the Bible by supporting abortion.
Although the protest couldn’t be seen or heard from within the church, the demonstration was timed to coincide with the church’s outdoor Palm Sunday procession.
Parishioners, including children, could look across the street and see the graphic images carried by the picketers.
According to the appeals court, censoring the speech of anti-abortion protesters is justified because the state has a compelling interest in “protecting children from certain images of aborted fetuses and dead bodies.”
The court’s concern for the sensibilities of children is understandable. But consider the dangers of restricting content of political speech in public spaces merely because children might be disturbed by the message.
As the petition asking the Supreme Court to overturn the decision points out, “children under 12 are present in many locations. They often come with their families to parks. They accompany their parents to go shopping … Their parents drive them down streets, from which they can see protesters on sidewalks. If the decision below is allowed to stand, speech in all these places could be restricted.”
Moreover, compelling pro-lifers to tone down their message in public places deprives the movement of one its most effective tools.
Opponents of abortion use graphic images precisely because photographs convey a message about what they believe is the brutality of abortion — a message that can’t be delivered in words alone.
If government can ban pro-life groups from displaying “gruesome images” because they might upset children, government could also ban animal rights activists, anti-war protesters, and any number of other groups from employing potentially disturbing photographs to promote their cause.
Lower courts have been divided about the power of government to put content-based restrictions on political visual messages in public places in order to shield children.
Such images enjoy higher First Amendment protection in some places than in others.
That’s why it is disappointing that the Supreme Court did not take the Colorado case as an opportunity to clear up the confusion — and, one would hope, make clear that government may not restrict robust political speech in the public square anywhere in America.
After all, the ability to “shock the conscience” depends on the right to shock the viewer — a right that is at the very heart of free speech.
Charles C. Haynes is director of the Religious Freedom Education Project at the Newseum. He writes extensively on religious liberty and religion in American public life.