Supreme Court Petition Challenging Injunction Against Display of “Gruesome Images” Where Children Can See Them

Monday I filed a cert petition in Scott v. Saint John’s Church in the Wilderness, together with co-counsel Rebecca Messall, Thomas Brejcha, Peter Breen, and Jocelyn Floyd. I’m pleased to say that I’ve taken on the project pro bono, because I think it involves a very important First Amendment issue.

The decision below, by the Colorado Court of Appeals, upheld an injunction barring “displaying 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 and/or worship-related events at plaintiff church.” The court agreed the injunction was content-based, but upheld it under strict scrutiny, concluding that it was supported by a compelling government interest in “protecting the physical and psychological well-being of minors.” The Colorado Supreme Court refused to hear the case, despite dissents from denial of review by noted conservative Justice Allison Eid (a former Supreme Court clerk, for Justice Clarence Thomas) and noted liberal Chief Justice Michael Bender.

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.

This is why I took the case, and why I hope the Court will grant cert and reverse. I blog below two excerpts from the petition, for those who are interested — one on the importance of the particular speech involved here, and one on how the principle in this case can affect speech on a wide range of other topics. (I won’t blog about the conflict among lower courts, or other items that I discuss in the petition.)`