Why the “Gruesome Images” Restriction Is a Serious Burden on Pro-Life Protesters’ Speech

This Court has been dealing with restrictions on pro-life speech for about 20 years. See Hill v. Colorado, 530 U.S. 703 (2000); Cloer v. Gynecology Clinic, Inc., 528 U.S. 1099 (2000) (Scalia, J., joined by Thomas, J., dissenting from the denial of certiorari); Lawson v. Murray, 525 U.S. 955 (1998) (Scalia, J., concurring in the denial of certiorari); Williams v. Planned Parenthood Shasta-Diablo, Inc., 520 U.S. 1133 (1997) (Scalia, J., joined by Kennedy & Thomas, JJ., dissenting from the denial of certiorari); Schenck v. Pro-Choice Network of Western N.Y., 519 U.S. 357 (1997); Lawson v. Murray, 515 U.S. 1110 (1995) (Scalia, J., concurring in the denial of certiorari); Winfield v. Kaplan, 512 U.S. 1253 (1994) (Scalia, J., joined by Kennedy & Thomas, JJ., dissenting from the denial of certiorari); Madsen v. Women’s Health Center, Inc., 512 U.S. 753 (1994). Just this Term, this Court granted certiorari and summarily reversed in Lefemine v. Wideman, 133 S. Ct. 9, 10 (2012) (per curiam), which involved a fee dispute arising from a challenge to such a restriction. Lower courts have been dealing with such restrictions for nearly 40 years.

Such restrictions have sometimes been evaluated under relatively modest levels of First Amendment scrutiny. Some of the cases, for instance, have concluded — often controversially — that the restrictions were content-neutral, and were thus subject only to intermediate scrutiny. See, e.g., Hill, 530 U.S. at 719-25; Madsen, 512 U.S. at 763-68. Other cases have arisen in nonpublic fora, where the government has broad power to restrict speech. See, e.g., Center for Bio-Ethical Reform, Inc. v. City & County of Honolulu, 455 F.3d 910, 920 (9th Cir. 2006).

But the restriction on “gruesome images” does not fall into any of these zones of lesser First Amendment protection. Rather, the restriction is frankly content-based, as the court below acknowledged. App. 18a. It applies to a quintessential traditional public forum, a public sidewalk. And it does not enjoy the support of a single Supreme Court precedent involving political speech on any other subject. “[T]his wolf comes as a wolf.”

Moreover, the restriction targets content that petitioners see as critical to their underlying message. In Cohen v. California, 403 U.S. 15, 26 (1971), this Court stressed that a content-based restriction on certain words — even vulgarities — risked interfering with the expression of ideas. In Texas v. Johnson, 491 U.S. 397, 416 & n.11 (1989), this Court held that free speech protection “is not dependent on the particular mode in which one chooses to express an idea,” partly because “messages conveyed without use” of certain visual imagery may be less forceful than “those conveyed with it.” And this conclusion is even more applicable to a content-based restriction on the display of photographs of aborted fetuses, pictures that convey messages in ways that words cannot equal.

Even some pro-abortion-rights commentators acknowledge that much of the public support for abortions stems from the natural human reaction, “out of sight, out of mind.” For instance, Professor Laurence Tribe writes,

Many [people], who can readily envision the woman and her body, who cry out for her right to control her destiny, barely envision the fetus within that woman and do not imagine as real the life it might have been allowed to lead. For them, the life of the fetus becomes an … invisible abstraction.

Laurence Tribe, Abortion: The Clash of Absolutes 5 (1980). A born baby is visible, and leaves a visible body if it is killed. Fetuses are invisible while they are developing in the womb, and they are generally disposed of quickly after an abortion, so they remain unseen even then.

Petitioners believe that the way to portray what they see as the brutality and inhumanity of abortion — and the personhood of the fetus — is to show exactly what the abortion produces. Words, especially words on a sign glimpsed by a passerby, cannot effectively capture that. A photograph can.

Photographs of lynching victims showed the evil of lynching in a way that words could not. “[O]ne horrific apparition after another makes visceral what one dares not imagine.”

Likewise, such photographs affected public opinion in a way that words could not. Emmett Till’s mother, reacting to her son’s lynching in 1955, displayed her son’s body in a glass-topped casket “so mourners could see her son’s ghastly injuries. Photographs of Till’s body in the coffin published in Jet Magazine became powerful images of the civil rights movement.” As Till’s cousin would later say, “[N]o one would have believed it if they didn’t see the picture or didn’t see the casket. … [W]e was always as a people, African Americans, was fighting for our civil rights, but now we had the whole nation behind us.”

Photographs of Holocaust victims similarly helped show the evil of Nazism in ways words could not easily convey. In the words of playwright Arthur Miller,

[During World War II,] it was by no means an uncommon remark that we had been maneuvered into this war by powerful Jews who secretly controlled the Federal Government. Not until Allied troops had broken into the German concentration camps and the newspapers published photographs of the mounds of emaciated and sometimes partially burned bodies was Nazism really disgraced among decent people and our own casualties justified.

Photographs of those who died or were gruesomely injured during the Vietnam War likewise affected public opinion in a way words could not. “[P]ictures of victims — of a Buddhist monk immolating himself, of a napalmed Vietnamese girl running in terror along a highway, and … of a terrorist being shot by a general — helped turn public opinion against the war.”

More recently, Time magazine displayed on its cover (which would have been visible on newsstands to many children) a portrait of a woman who had had her nose cut off by the Taliban for escaping her abusive in-laws; the cover bore the caption, “What Happens If We Leave Afghanistan.” Cover, Time, July 29, 2010. The editor explained that he chose to print the image, despite the fact that it “will be seen by children, who will undoubtedly find it distressing,” because,

[T]he image is a window into the reality of what is happening — and what can happen — in a war that affects and involves all of us. I would rather confront readers with the Taliban’s treatment of women than ignore it. I would rather people know that reality as they make up their minds about what the U.S. and its allies should do in Afghanistan.

Richard Stengel, The Plight of Afghan Women: A Disturbing Picture, Time, July 29, 2010. Petitioners likewise want to show people a window into the reality of what is happening in what they see as a holocaust that affects and involves all of us. They likewise would rather confront readers with America’s treatment of fetuses than ignore it. And they would rather people know that reality as they make up their minds about what Americans should do with regard to abortion.

The restriction thus censors petitioners’ speech to the many adults whom petitioners are trying to reach. But it also restricts minors’ ability to see — in its most convincing form — political, moral, and religious speech that is directly relevant to their lives. Regrettably, many American girls are getting pregnant, and participating in the making of decisions about abortion, even in their early teens. (The boys who impregnate the girls may play a role in making these decisions, too.) Moreover, some of these girls and boys may be making decisions about whether to have sex based partly on the ready availability of abortion.

And decisions about abortion and sex, which can influence the entire path of the girls’ and boys’ future lives, are themselves inevitably influenced by what those children have learned in the years before that decision. As Judge Posner has noted, 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.” American Amusement Machine Ass’n v. Kendrick, 244 F.3d 572, 577 (7th Cir. 2001). Likewise, children must be allowed the freedom to form their moral, religious, and political views about abortion on the basis of uncensored speech before they reach the age when they have to decide whether to have an abortion.