Liberals, Free Speech, and “Gruesome Images” of Aborted Fetuses

The Scott v. Saint John’s Church in the Wilderness case (in which I’m representing petitioners pro bono) has been in the news a bit, including both in the New York Times and in the conservative media, and I’ve seen quite a few comments complaining about how “liberals seek to ban photos of aborted children” or how “liberals” are hypocrites on free speech here or how “liberals” are the opponents of plaintiffs’ free speech rights.

But this strikes me as a vast oversimplification. For instance, when the Colorado Supreme Court refused to consider the speakers’ petition for review, two Justices — the conservative Allison Eid and the liberal Michael Bender — voted to hear the case. To answer one of the commenters at National Review Online, who asked “Where are you liberal first amenders anyway?,” Chief Justice Bender was there with Justice Eid. I’m not sure quite how the other Justices are best categorized, but at least one of the conservatives (Justice Coats) voted not to hear the case; the third Justice who I hear described as conservative, Justice Rice, did not participate. [UPDATE:] And the decisions from other courts stating that the First Amendment protected the public display of aborted fetuses, and that the desire to shield children from the images didn’t justify restricting the images, came mostly from liberal judges — Center for Bio-Ethical Reform, Inc. v. Los Angeles County Sheriff Dept. (9th Cir. 2008), was written by arch-liberal Judge Pregerson and joined by liberal Judges Fletcher and Berzon, and Center for Bio-Ethical Reform v. City of Springboro (6th Cir. 2007), was written by Clinton appointee Judge Clay and joined by Clinton appointee Judge Moore and Reagan appointee Judge Bell (a district court judge sitting by designation).

And as to “liberal first amenders” more broadly, many of them signed on to an amicus brief of First Amendment scholars supporting our petition. The list included leading First Amendment lawyer Floyd Abrams and Profs. Amy Adler, Jack Balkin, Vince Blasi, David Cole, Ronald Collins, Alan Dershowitz, Norman Dorsen, Daniel Farber, Kent Greenfield, Seth Kreimer, Sanford Levinson, Robert O’Neil, Martin Redish, Suzanna Sherry, Geoffrey Stone, Nadine Strossen, Jonathan Varat, and James Weinstein; all or nearly all of them, I think, are very much “liberal first amenders.” Yale Prof. Jack Balkin, of course, is the founder of Balkinization, a very liberal law professor blog. Chicago Prof. Geoffrey Stone, who signed the brief as cocounsel as well as a signatory, is another highly prominent liberal law professor (as his Huffington Post columns show). It’s hard to be more of a “liberal first amender” than Georgetown Prof. David Cole. New York Law School Prof. Nadine Strossen is the past president of the ACLU; NYU Prof. Norman Dorsen was president of the ACLU before her. Harvard Prof. Alan Dershowitz is Alan Dershowitz. And there are many other illustrious and liberal names on the list.

To be sure, the debate about abortion-related speech on the Court has sometimes split in some measure along liberal/conservative lines. In Hill v. Colorado (2000), the speech restriction was upheld by the liberal Justices and Chief Justice Rehnquist and Justice O’Connor, with conservative Justices Scalia, Kennedy, and Thomas dissenting; the lineup was similar in Madsen v. Women’s Health Center (1994). In Schenck v. Pro-Choice Network (1997), there was the same split as to one free speech claim, though the other free speech claim was upheld by all the liberals except Justice Breyer plus all the conservatives. Finally, Frisby v. Schultz (1988), dealt with a general ordinance banning residential picketing, but involved picketing of an abortion provider, at a time when abortion providers were disproportionately targeted by residential picketing. And there the liberals were more in favor of protecting the speech than the conservatives were: The votes for speech protection were the liberal Justices Brennan, Marshall, and (in large measure) Stevens, with the votes against speech protection coming from the conservative Justices (Chief Justice Rehnquist and Justices O’Connor, Scalia, and Kennedy) plus the liberal Justice Blackmun.

But all those cases involved restrictions that were at least argued to be content-neutral — here, the restriction is an overtly content-based restriction, of the sort that both liberals and conservatives on the Court (and off it) have generally viewed extremely skeptically. And, as I mentioned, we’re fortunate to have an illustrious array of liberal professors who were willing to go on the record in support of the Court’s reviewing and overturning the decision below (as well as a liberal Colorado Chief Justice who wanted his own court to review the case). There are plenty of liberals who are willing to support free speech here, and there are some conservatives (though not, I hope, on the U.S. Supreme Court) who were willing to see it restricted. Generalizations about the supposed liberal position on this case are, I think, inaccurate.