Kenneth T. Scott opposes abortion, and he says so in public. Sometimes he holds up large pictures of aborted fetuses. Sometimes he makes his points near churches that he believes are not doing enough to combat abortion.
A couple of years ago, the Supreme Court ruled that hateful antigay protests at military funerals deserved First Amendment protection. It will soon decide whether to hear a sequel, this one involving Mr. Scott.
On Palm Sunday in 2005, he and other protesters turned up near an Episcopal church in Denver. As the parishioners re-enacted Jesus’ entry into Jerusalem in an outdoor ceremony, Mr. Scott stood on a parked car on public property and addressed the procession from about 20 feet away.
Some observers said he was loud. Others said he was screaming. He showed large pictures of aborted fetuses. About 200 children were present, and some of them became upset.
The church sued, and a Colorado court issued an order barring Mr. Scott from engaging in various kinds of disruptive conduct near the church when services are under way. Most of the restrictions were not based on what he had to say. Those parts of the order were, as lawyers would put it, content neutral.
But one part of the order raises a difficult First Amendment question: It bars Mr. Scott from “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.”
In a candid ruling last year, the Colorado Court of Appeals said the order was meant to suppress Mr. Scott’s speech based on its content, something the government can do only if it has an exceptionally good reason. There was such a reason here, the court said: a “compelling government interest in protecting children from disturbing images.” The court noted in passing that the ban might seem to bar some depictions of the crucifixion.
In urging the justices not to hear the case, the church, St. John’s Church in the Wilderness, said it had “no interest in suppressing petitioner’s message” and just wanted to let its parishioners “pray and worship in peace.”
“The congregation could not pray and participate meaningfully in the Palm Sunday service without being forced to view gruesome images,” the brief said.
Mr. Scott is represented by Eugene Volokh, a prominent First Amendment specialist at the University of California, Los Angeles.
“Religious institutions, like other institutions that play an important role in spreading ideas, are often fitting targets for criticism,” he wrote in his petition seeking Supreme Court review.
“Nailing 95 theses to a church door might today be a technical trespass,” he said, referring to the manifesto from Martin Luther that helped spark the Reformation. “But displaying signs containing those theses on a nearby sidewalk has to be constitutionally protected.”
Lower courts have issued conflicting rulings about whether pictures of aborted fetuses may be banned from public places because they disturb children. In 2008, for instance, the United States Court of Appeals for the Ninth Circuit, in San Francisco, considered what to do about “a truck that displayed enlarged, graphic photographs of early-term aborted fetuses around the perimeter of a public middle school.” Some students started crying; others discussed throwing rocks at the truck.
The appeals court said that none of that mattered and that it would be “an unprecedented departure from bedrock First Amendment principles to allow the government to restrict speech based on listener reaction simply because the listeners are children.”
The Wyoming Supreme Court, by contrast, last year said the constitutionality of a court order banning the display of “disturbing images of aborted and dismembered fetuses” turned on “evidence concerning the injury or potential injury to children from viewing the images.”
The United States Supreme Court has endorsed different standards where children are involved only for materials concerning sex or that are broadcast over the airwaves. In 2011, the court refused to go further, striking down a California law that barred the sale of violent video games to minors.
Professor Volokh said that allowing the presence of children to limit what adults may see could justify all sorts of pernicious restrictions on speech. Mr. Scott’s images, he added, provided valuable information to young people.
“Regrettably, many American girls are getting pregnant, and participating in the making of decisions about abortion, even in their teens,” he told the justices, adding: “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.”
Mr. Scott’s petition in the case, Scott v. St. John’s Church in the Wilderness, No. 12-1077, is supported by an impressive array of First Amendment lawyers and scholars, including Floyd Abrams, Jack M. Balkin, David D. Cole, Sanford Levinson, Geoffrey Stone and Nadine Strossen. Many of them are liberals who support abortion rights.
“The decision below represents a startling and dangerous departure from fundamental First Amendment doctrine,” the brief said. “The Constitution does not permit the government to restrict speech because it offends or disturbs others.”
A second supporting brief, from religion scholars, was critical of Mr. Scott for his incivility. “But this is not a case for Miss Manners,” it said.
A third one, from art historians, traced how disturbing images have shaped public understanding of conflicts from the Civil War to Iraq. Photographs of abuses at Abu Ghraib prison, for instance, “are incontrovertibly gruesome” and “to say that they would be disturbing to children is an understatement.”
In an interview, Professor Volokh said vivid images are “very often the most effective way of conveying a moral truth.” As far as his client was concerned, Professor Volokh said, “the gruesomeness of the image reflects the gruesomeness of the act.”