The US Supreme Court declined on Monday to take up a potentially important First Amendment case that would have examined whether a Colorado appeals court ignored fundamental free-speech protections when it upheld a court order blocking antiabortion protesters from waving poster-sized photos of aborted fetuses at members of a church engaged in an Easter procession.
The case sought to test the scope of a demonstrator’s right to use gruesome images as part of an attempt to deliver an effective message in a protest on a public street.
The targeted church, St. John’s in the Wilderness Episcopal Church in Denver, sued the protesters, arguing that the demonstration disrupted the religious procession and subjected young children to graphic and disturbing images during what was meant to be an inspiring display of religious devotion.
The injunction was issued after the church sued the protesters for creating a public nuisance and disrupting its services.
Lawyers for the protesters attacked the court order as an impermissible content-based restriction on free speech in a public area. They said it runs counter to a long line of Supreme Court precedents upholding a right to present obnoxious and offensive speech in public places.
“The restriction targets content that the petitioners see as critical to their underlying message,” wrote UCLA law professor Eugene Volokh in his brief urging the court to take up the appeal.
“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,” he wrote. “Words, especially words on a sign glimpsed by a passerby, cannot effectively capture that. A photograph can.”
The brief said that explicit photos of the victims of lynchings helped advance the cause of the civil rights movement in the United States and that photographs of Holocaust victims helped fully expose the evil of Nazism.
The church’s lawyer, Russell Stewart of Denver, urged the high court to reject the appeal.
“The parishioners of Saint John’s Church in the Wilderness have no interest in suppressing [the protesters’] message; they simply want to pray and worship in peace,” he wrote in his brief to the court.
Mr. Stewart said the court’s First Amendment precedents do not allow protesters to engage in the intentional disruption of religious services. “One’s religious worship may not be disturbed by others anxious to preach a different religious or social philosophy,” he said.
In a friend-of-the-court brief, a group of prominent law professors and First Amendment scholars denounced the Colorado appeals court decision as “a startling and dangerous departure from fundamental First Amendment doctrine.”
“In this situation, the Colorado court restrained speech aimed at contributing to a vigorous public debate about a profoundly important and controversial political issue,” the brief said. “It restricted that speech not in a private place, like the home, not in a regulated medium, like broadcasting, but on public streets, parks and sidewalks.”
The brief added: “Although it is easy to understand the impetus underlying the injunction, the First Amendment does not permit the government to restrict fully-protected expression in a public place in order to shield children from unsettling images.
“If this injunction is allowed to stand, its rationale would know no bounds. The government could also censor brutal images of war, of the Holocaust, of real-world murder scenes, of natural disasters, and of man-made tragedies.”
The brief noted: “Such a doctrine would be unthinkable in a society dedicated to robust, wide-open, informed, passionate and intelligent public discourse.”
The case was Kenneth Tyler Scott and Clifton Powell v. Saint John’s Church in the Wilderness (12-1077).