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Free Speech Victory in Georgia -- Though It Shouldn't Have Gone This Far:

I heard about the initial arrest, but didn't have the time to blog about it -- now it looks like the prosecutor has done the right thing:

On the day after Thanksgiving, [Robert Dean] Roethlisberger [Jr.] drove a truck with [14-feet-long] banners displaying images of aborted fetuses, including a bloody and headless torso. Roethlisberger works for Operation Rescue, a national anti-abortion organization.

Roethlisberger, 44, of Belton, Mo., had been charged under a provision of Georgia law that makes it a crime to use "obscene and vulgar or profane language" in the presence of a person under age 14.

[Gwinnett County Solicitor Rosanna Szabo dropped the charge, and stated,] "I have reviewed the evidence and law in this case, and concluded that the physical display of the images in question -— as shocking and offensive as they are -— does not constitute 'obscene and vulgar or profane language' as specifically prohibited by this statute."

I'm glad Ms. Szabo dismissed the charges, but they should never have been filed in the first instance. It's quite clear that, disturbing as the images might be, they are protected by the First Amendment (and are very, very far from the obscenity exception, even the broader version of the exception that may be present when the material is visible by minors).

M. Lederman (mail):
OK, can't say that I disagree -- but then presumably, Eugene, you think likewise about the frivolousness of SG/FCC petition in the Bono "fuckin' brilliant" case? That's the real outrage, isn't it?
12.12.2007 4:09pm
WHOI Jacket:
What if it were a more "politically neutral" subject? Like he was driving around with pictures of Motorcycle accident victims or wheat thresher accident victims?

Or a picture of a child with gunshot wound to the head with blood dripping from it? Even a cartoon of one?
12.12.2007 4:37pm
cjwynes (mail):
If he had stated his intention to drive that truck back and forth in front of an abortion clinic or park it in an adjacent parking lot, I suspect there would be at least a few judges willing to issue restraining orders. I think the assessment that this is well within the range of protected speech needs to be qualified somewhat, even if we conclude it doesn't come near the obscenity exception and that it ought not be charged criminally.
12.12.2007 4:39pm
just another cynic:
Pictures of war horrors? Pictures of animal abuse? Pictures of aborted fetuses?

It all depends on whether I like the content of the message. See Hill v. Colorado (holding that pro-lifers should just shutup and go away, and accept that their robed masters have settled the issue).

And with all due respect to Prof. Lederman, no, the Bono case is not the real outrage, not compared to the selective stifling of pro-life speech. His was just the right to swear, but Cohen notwithstanding, allowing it or not is frivolous either way. This almost-prosecution, and Hill, are all about cutting off one side in a political debate, and specifically about cutting off a tactic that may offend some, but may -- gasp -- work in persuading others what's going on.
12.12.2007 5:22pm
Daniel Chapman (mail):
I almost wonder if the statue is void on its face for being overbroad since it includes a prohibition of "profane" speech.
12.12.2007 5:25pm
bittern (mail):
Isn't this much cherished notion that you can inflict yourself on other people a creation of the 20th century, and not the - ahem - "original intent" of the founders?

I was reading some presumably fringe conservative historian a few years ago, who wrote that a right to speak among ourselves was established, not some license to go bother strangers. And Robert Madman Bork clearly had some qualms. Not surprisingly, the Internet does not appear to be fertile ground for such considerations. Can anyone direct me?

Anyway, clearly everyone today is enamored of the idea of "sharing" all their feelings, so my interest in the question is academic, so to speak.
12.12.2007 5:37pm
Ralph Phelan (mail):
I hope cjwynes is wrong, but fear he is right, that a lot of judges would rule neither on the basis of free speech issues nor on the basis of concerns about the public nuisance cost of displaying gruesome images, but on the basis of the political intent of display.
12.12.2007 5:39pm
PJT:
Wait? Is it relevant whether or not offensive material is related to an issue of political debate?

Why isnt the only relevant factor how offensive it is to the general public? I for one am as offended by pictures of dead babies as I am pornography.
12.12.2007 6:05pm
Randy R. (mail):
Come now, it's not only liberals who don't like free speech and seek to create a one-sided debate. Conservatives sometimes complain that any speech that they don't like violates their right to religion, and they use that in an attempt to stifle any postive statements about gays.
12.12.2007 7:05pm
Jason F:
Speaking of the First Amendment and Georgia, I wonder how many are familiar with the case of Gordon Lee? Here is a decent overview of his case, but the short version is this: Mr. Lee runs a comic book store. On Halloween 2004, Mr. Lee was giving out free comic books to kids and he accidentally gave out a copy of a comic book depicting the first meeting between Pablo Picasso and Georges Braques. This comic featured nudity -- Picasso is shown naked -- and Lee was indicted on various counts, most of which were subsequently dismissed.

Since this summary was written, Mr. Lee went to trial. Prior to the trial, the judge granted a motion in limine barring the prosecution from talking about Mr. Lee's prior "record" -- he had once had to sue the Rome, Georgia police after they seized tens of thousands of dollars worth of comics from him. Of course, the prosecutor started discussing Mr. Lee's record during the opening statement, leading to an immediate declaration of mistrial.
12.12.2007 7:51pm
KJJ:
I agree with the dismissal. However, I find it troubling that images of dead fetuses are protected meanwhile sexually explicit images depicting consenting adults are illegal in this country.
12.12.2007 8:20pm
AK (mail):
I for one am as offended by pictures of dead babies as I am pornography.

You wouldn't have been offended by these images. They weren't "babies." They were "fetuses," or "choices," or "the products of conception," or what have you.

You're not using Murder, Inc. Planned Parenthood-approved euphamisms. Get with the program, sparky!
12.12.2007 8:53pm
Elais:
AK

I presume you would have no problem with a truck with pictures showing the dead corpses of women who died of botched abortions in your neighborhood?

Or perhaps a truck with unseen photos of victims of US torture?

What would offend YOU AK and would you still defend the right of someone who ticks you off like that?
12.12.2007 9:00pm
tvk:
Actually, I am not sure the decision is right. I have a problem with 14 foot banners of anything, especially anything bloody and gory. We surely would have no problem restricting 14-foot banners of, say, non-obscene pornography. I would have thought this a valid content-neutral time-place-manner restriction.

Now if there was selective enforcement going on due to content, it would be a different story. But if the only reason he got cited is because something he was displaying something bloody and gory is far too much detail than any self-respecting audience would wish to see, then please tell me whether I have a right to play NC-17 movies on a 14-foot screen at the local park.
12.12.2007 9:09pm
Cornellian (mail):
I for one am as offended by pictures of dead babies as I am pornography.

I suspect very few men hold that view.
12.12.2007 9:18pm
JohnAnnArbor:
Hey, I think I saw that truck driving near Michigan Stadium on game day a year or two ago.
12.12.2007 9:52pm
ReaderY:
Would it be illegal for anti-war protestors to display the CIA waterboarding videos?

What's the difference?
12.12.2007 10:03pm
ReaderY:
...putting aside state secrets considerations and considering the issues of political advocacy vs. not having to view content one finds graphic and uncomfortable displayed by protesters advocating beliefs one finds disagreeable.
12.12.2007 10:06pm
Kelvin McCabe:
These same images have been spotted by myself in Chicago (on 5 ft tall poster boards spanning a city block) several times. Once in front of the Art Institute on Michigan Avenue during summer tourist season and once at Daley Plaza.

I don't have a problem with the 1st amendment rights of these guys to voice their opposition to abortion in this manner -however useless I may believe it to be for their pet cause- I do strongly object, however, to their use of a bunch of little kids holding the signs up. Does it make the message stronger when a 7yr old is the one holding the sign of what can only be described as a partial birth abortion (the "fetuses" looked like delivered babies who were covered in blood and had mutilated bodies)? Using kids as pawns in the parents' or churches own cause is utterly ridiculous. Especially when motorists and passerby's consistently cuss/yell/argue/throw stuff/etc... at the people(and kids) holding the signs. The ploy doesn't work for me, and in fact, might be an argument in favor of 135th trimester abortions of the parents using their kids in this manner!
12.12.2007 10:15pm
whit:
this is a great victory, and i agree the case never should have been filed in the first place.

i think some of the best free-speech cases (most interesting to me) have come from abortion cases - the nuremberg website case, for instance.

curiously, the same people who would think it's ok (and imo it should be ok) for war protesters to protest military recruiters and/or ban them from campus, think that any kind of speech protesting abortion, especially within a statute mile of a clinic shouldn't be allowed.

i agree with the whole thing about using kids, WHOMEVER does it - i've seen them used in war protests, for various political cause, etc. but it's hardly something new. it's pretty disgusting and manipulative.

"I presume you would have no problem with a truck with pictures showing the dead corpses of women who died of botched abortions in your neighborhood?"

how is this relevant though? the whole point of the 1st amendment is to protect the kind of speech that offends people. there is a LOT of stuff that is 100% constutional that is also incredibly offensive.

maybe they should trotted out the RICO statute against this guy (not like this hasn't been done before against abortion protestors)...
12.12.2007 10:32pm
whit:
to edit the above: i do think it's ok for war protestors to PROTEsT recruiters. i think they should not be able to ban them from public college campuses, or those that receive public funds.
12.12.2007 10:35pm
Eugene Volokh (www):
Randy R: You write, "Conservatives sometimes complain that any speech that they don't like violates their right to religion, and they use that in an attempt to stifle any postive statements about gays." I'm not quite sure what that refers to -- can you point me to some instances of this?
12.12.2007 11:28pm
tvk:
whit, military recruiters have no more an inherent right to recruit on private university property than abortion protesters have to protest inside the abortion clinic. The Soloman amendment confers a statutory right to do the recruiting. I don't see how your analogy can possibly work.

Moreover, military recruiters are agents of the government, facing war protesters during the act of recruiting is part of their jobs. Abortion clinic clients are private citizens who never signed up for an entire mile of harassment.
12.13.2007 12:26am
AK (mail):
Elias, my man:

I presume you would have no problem with a truck with pictures showing the dead corpses of women who died of botched abortions in your neighborhood?

Correct! I would have a problem with pictures of "live" corpses of women who died of botched abortions.

But wait a second: are we talking about "botched abortions" resulting from [tired cliche]coathangers in back alleys[/tired cliche], or are we talking about "botched abortions" resulting from abortions done by non-physicians in states that don't require a medical license to perform them?

Or perhaps a truck with unseen photos of victims of US torture?

I definitely wouldn't have a problem with any photo that was unseen!

What would offend YOU AK and would you still defend the right of someone who ticks you off like that?

The standard definition of "obscenity" would offend me, and no, I wouldn't defend anyone's right to display obscene material, because I don't think they have the right to do it. But like I said, my mind isn't made up on whether gory but non-sexual photographs could be considered "obscene." I'm open to the possiblity that they could be.
12.13.2007 12:51am
AK (mail):
It's quite clear that, disturbing as the images might be, they are protected by the First Amendment (and are very, very far from the obscenity exception, even the broader version of the exception that may be present when the material is visible by minors).

It's "clear"? Then perhaps you can provide a single case in which a restriction on gory public displays was struck down on first amendment grounds. A first amendment expert should instantly be able to come up with a case on point.

I suspect that no such case exists, otherwise we'd have a cite, either from you or a commenter. This just doesn't seem like the kind of thing that has ever come up before. Analogizing from sexual obscenity cases is definitely helpful but not convincing. Tell me: what is it about these displays of gore that place them "very, very far from the obscenity exception"?

I could easily see time/place/manner restrictions placed on these sorts of displays. Gory photographs, whether of abortions, open-heart surgery, or gunshot wounds, are likely to distract drivers. I can't possibly imagine that there's an absolute constitutional right to parade gigantic gory images up and down a street in front of a sidewalk cafe where people are trying to eat.

Cite me a case, please. Otherwise, please explain to me why a photograph of a penis going into a rectum can be cosnsitutionally restricted, but a photograph of, say, fecal material coming out of a rectum cannot.
12.13.2007 1:10am
Jmaie (mail):
The Solomon amendment does not confer a right to recruit. It allows for the denial of certain types of funding to institutions which ban recruiters.

Nobody is forced to take government money....
12.13.2007 1:49am
Chris_t (mail):
Eugene, I can't say for sure from reading the article, but I doubt charges were "filed" at all. I think the defendant was cited and summonsed to court, and then the prosecutor dropped it.
12.13.2007 6:51am
DrObviouSo (mail):
This wouldn't be an issue if Roethlisberger's O-line could block worth a damn.
12.13.2007 11:17am
KJJ:
Then perhaps you can provide a single case in which a restriction on gory public displays was struck down on first amendment grounds.


AK- Professor Volokh is 100% correct. Gruesome images of abortions, violence or even defecation can not be legally obscene unless they are sexually explicit. Therefore, the First Amendment protects pictures of dead fetuses and abortions, regardless of how offensive they may be.

There is a significant amount of caselaw which supports this position. Recent example include numerous video game statutes struck down because they restricted protected material (graphic violence, gore etc.)
12.13.2007 12:36pm
AK (mail):
KJJ:

Cite a case.
12.13.2007 1:39pm
AK (mail):
KJJ:

I'll elaborate, because I believe we're talking past each other.

To the extent that "obscenity" requires sexual content, gory photographs that do not depict sexual content cannot be "obscene."

But speech does not have to have any sort of sexual content to be subject to time/place/manner restrictions. So the first amendment protects gory photographs, but the first amendment does not grant an unlimited right to display them in a time, place, and manner of your choosing.

My biggest point in asking for a case is that I just don't think gory non-sexual speech have been addressed by many of the Circuit Courts of Appeal, much less the Supreme Court. It wouldn't suprise me that you could cite cases from state courts or District courts, but that doesn't really tell us much about the state of the first amendment's protection of gory photographs.

As other commenters have noted, the sensibilities of average people are just as likely (if not more likely) to be offended by a gory photograph than an "obscene" photograph. I really don't follow the rationale for permitting restrictions on sexual photographs if equally (or more) distrubing photographs of gory violence cannot also be restricted. We could even use the same standard that we use for obscenity: does the photograph have any serious artistic or literary value?

Gore cannot be "obscene" because it's not sexual. But that doesn't mean that the Supreme Court could not someday decide that disturbing violent content falls in a category analogous to "obscenity." I don't think the Supreme Court has addressed that question. If it has, please cite a case.
12.13.2007 2:01pm
KJJ:
AK- here are 2 cases which hold that the First Amendment protects offensive material unless it's sexually explicit.

Miller v. California, 413 U.S. 15 (1973)- A landmark First Amendment case which established the 3-prong Miller Test for obscenity. The 2nd prong of the test is whether a work appeals to the "prurient interest".

American Amusement Machine Association, et al. v. Kendrick, et al. 244 F.3d 572 (7th, 2001)

Time-place-manner restrictions can not be content based. They must be "content neutral". The exception is sexually oriented material.

Gore cannot be "obscene" because it's not sexual. But that doesn't mean that the Supreme Court could not someday decide that disturbing violent content falls in a category analogous to "obscenity."



I suppose that someday the Supreme Court could expand the definition of obscenity. However under the current law gross pictures of abortions and grusome video games are protected by the First Amendment.
12.13.2007 2:21pm
AK (mail):
I suppose that someday the Supreme Court could expand the definition of obscenity. However under the current law gross pictures of abortions and grusome video games are protected by the First Amendment.

Thanks for Miller, but I think you're reading it too broadly. The Court takes a nude dancing/pornography/obscenity case almost every term. Obscenity - sexual speech - is a richly-developed area of First Amendment law. Miller and its progeny are focused on a binary inquiry: is the speech obscene or not? You're reading Miller to say "the only speech that can possibly be regulated on the basis of content is obscenity." Miller didn't consider violence/gore. That inquiry wasn't part of the question presented.

I'll rephrase my quesiton: has the specific question of the regulation of violence/gore been considered by the Court? If it hasn't, we can't simply say that gore is protected on the basis of dicta in an obscenity case.
12.13.2007 5:49pm
whit:
"whit, military recruiters have no more an inherent right to recruit on private university property than abortion protesters have to protest inside the abortion clinic. The Soloman amendment confers a statutory right to do the recruiting. I don't see how your analogy can possibly work."

it works because i said PUBLIC UNIVERSITY or university that TAKES PUBLIC MONEY.

and as correctly noted, you are free to be free from military recruiters on a campus IF you give up federal monies.

that is fair. anti-recruiter-people want to BAN recruiters from campus (which also shows their incredible paternalism... they don't think people should be able to hear the pitch (and protest) and make their own decisions. they want to keep the recruiters away. classic example of nanny actions by liberals).

"Moreover, military recruiters are agents of the government, facing war protesters during the act of recruiting is part of their jobs. Abortion clinic clients are private citizens who never signed up for an entire mile of harassment"

which shows how liberals reframe the debate. anti-abortion protest isn't free speech, it's "harassment". this is how the left gets around free speech. speech that they disagree with is not free speech, it's "harassment" or "hate speech". and of course, they also invent the non-existent right not to feel harassed or made to feel icky by words that offend you.

get real.

protest is american. if a patient seeking an abortion (and note I support that. i am pro-choice) can't stand to hear ideas and see pictures that offend them, that's just too darn bad. you don't have the right to NOT see or hear ideas that offend you, as long as you are in a public place. and last i checked, most abortion clinics are surrounded by PUBLIC PROPERTY as are most recruiting stations.

you are absolutely right. recruiters should have to deal with protest. they do. abortion clinics and patients should also have to deal with protest. note also that recruiter protests do not just affect the "govt. agents" (recruiters). they affect the potential enlistees who are trying to access the recruiters and/or hear their pitch.

there are numerous accounts of recruiters being literally chased from campus, and college students who WANT to hear the recruiters complaining that they couldn't access them.

free speech means free speech. it's not 'harassment' when it's expression of ideas that the left finds distasteful
12.13.2007 7:39pm
Randy R. (mail):
Eugene: " You write, "Conservatives sometimes complain that any speech that they don't like violates their right to religion, and they use that in an attempt to stifle any postive statements about gays." I'm not quite sure what that refers to -- can you point me to some instances of this?"

Sure. In fact, recently in Montgomery County, the school board voted to include information in its sex ed classes about homosexuality. The Christian Coalition and others opposed any and all mention of homsexuality at all, and one of their grounds was that homosexuality violates their religious beliefs, and therefore imposes on their 1st amendment rights.

This happens all the time: Any positive mention of gays, or even a neutral statement as innocuous as "gay people exist" is viewed as promoting homosexuality (because all statements about gays should be condemnatory, and if they aren't, then they are 'promoting' it, see?). And if you promote homosexuality, then you are violating freedom of religion.

So yes, some conservatives seek to stifle freedom of speech from time to time. they usually fail, however.
12.14.2007 10:15am
Eugene Volokh (www):
Randy R.: Hmm; seems to me that citizens' attempts to control what the government says are very different from attempts to control what private individuals say. Thus, for instance, I would praise voters' attempts to stop their government from expressing racist (or Young Earther) views, but condemn people's attempts to use the law to stop private individuals from expressing the same views -- nor would I even see much similarity between the two kinds of attempts.
12.14.2007 6:09pm
Randy R. (mail):
Yes, I suppose there is a difference. But nonetheless, it is an attempt to silence people they disagree with, which was my original point.

Another point. Before Lawrence v. Texas, there would often be shareholder initiatives that would seek to prevent stock companies from providing domestic partner benefits. Their point was that since gay sex was illegal in some states, then the company should not be offering a benefit that encourages illegal activity.

Perhaps that too is a little off topic, but that is another case of individuals trying to prevent certain conduct or policy on a private, not gov't, entity.

Trust me, there is no shortage of conservatives seeking to invoke whatever they can to silence certain views or benefits with regards to gays.
12.15.2007 5:21am