On April 4, the American Freedom Law Center (AFLC) filed a “Friend of the Court” brief in the United States Supreme Court, urging the Court to review and reverse a Colorado Appellate Court decision which banned the public display of “gruesome” abortion images because they might offend children. AFLC’s brief was filed on behalf of the Center for Bio-Ethical Reform, Inc. (CBR), a nonprofit, social reform organization that makes extensive use of graphic images of abortion to promote its pro-life policy initiatives.
On March 20, 2005, several pro-life activists led a peaceful demonstration on a public sidewalk outside of a church in Denver, Colorado, to protest the Church’s pro-abortion position. During the demonstration, the pro-life protesters held signs displaying, among other things, graphic pictures of aborted fetuses. None of the protestors trespassed or physically obstructed any of the parishioners. Furthermore, police were present during the demonstration, and there were no arrests.
As a result of this demonstration, a lawsuit was filed against the protestors, alleging private nuisance and civil conspiracy to commit private nuisance. The lawsuit also sought to enjoin the public display of “gruesome” images.
A state district court found the protestors liable for the civil offenses and issued an injunction, which was appealed. The Colorado Appellate Court upheld the injunction, which prevented the pro-life protestors from “displaying large posters or similar displays depicting gruesome images of mutilated fetuses or dead bodies” on the public sidewalks.
Robert Muise, AFLC Co-Founder & Senior Counsel, commented: “This injunction is nothing more than an effort to hide the brutality of abortion from the public. Shutting down free speech under the guise of ‘protecting the children’ is simply another perverse argument advanced by the pro-abortion propagandists.”
As AFLC argued in its brief to the Supreme Court:
Methods of expression are not fungible. An effective way to remove an unpopular message from public discourse is to relegate the speaker to ineffective means of expressing his message. The First Amendment guarantees the right to influence the political process; it is not merely a right to catharsis. Consequently, it is the off-putting, unpopular, and, when necessary, “gruesome” message that requires the greatest protection and the greatest audience access.
Muise continued: “The fact that ‘gruesome’ images may actually offend some persons or create a visceral reaction in others does not lessen their constitutionally protected status; it enhances it.”
David Yerushalmi, AFLC Co-Founder and Senior Counsel, added, “It is a clearly established principle of First Amendment jurisprudence that a listener’s reaction or, as in this case, a viewer’s reaction to speech is not a legitimate basis for regulation. The First Amendment knows no heckler’s veto, and there is no ‘minors’ exception to this well-established rule.”
As AFLC concluded in its brief:
[B]anning abortion imagery from the public square because the government deems it “gruesome” is a pernicious form of censorship that suppresses ideas and thus directly conflicts with our profound, national commitment to the principle that debate on controversial public issues should be uninhibited, robust, and wide-open. Indeed, “gruesome” images of abortion convey a message that words are incapable of expressing—a message that requires the full mantel of protection under the First Amendment.