Order Banning Aborted Fetus Pictures Near Boy Scouts Gathering Held Unconstitutional

From today’s Wyoming Supreme Court decision in Operation Save America v. Town of Jackson (Wyo. Apr. 10, 2012); the result seems quite correct to me:

Because the TRO imposes content-based restrictions on OSA’s speech in a traditional public forum, the TRO is subject to strict scrutiny.

The Town cites the need to protect children attending the Boy Scout Elk Fest from disturbing images of aborted and dismembered fetuses as its compelling government interest in support of the TRO. It further asserts an interest in preserving the peace, order, safety and tranquility of the Boy Scout Elk Fest.

The need to protect the psychological well being of children has been recognized as a compelling government interest. Sable Communications, 492 U.S. at 126; Ginsberg, 390 U.S. at 638, 88 S.Ct. at 1280. The Supreme Court, however, has declared that that interest is not without boundary [citing Brown v. Entertainment Merchants Ass’n, the violent video games case –EV]….

Our concern in the present case is not with the general proposition that protecting youth is a compelling government interest, but is instead with the record. The record contains no evidence concerning the injury or potential injury to children from viewing the images displayed by OSA, and of particular importance in the context of the request for injunctive relief, evidence of irreparable harm to the children. The affidavit of Lt. Gilliam describes the contact OSA had with youth in the community and describes the materials OSA showed to the young audience, but it does not describe how those materials impacted them, or could impact them. In the absence of such evidence, the government has not made its required showing of an “actual problem” in need of solving. Brown, 131 S.Ct. at 2738; Playboy, 529 U.S. at 816.

We turn then to the Town’s concerns with a breach of the peace. While a government does have a recognized interest in maintaining peace in its community and at its events, the Supreme Court has held that this is not a basis to proscribe speech, unless that speech is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Texas v. Johnson, 491 U.S. 397, 409 (1989); see also Brandenburg v. Ohio, 395 U.S. 444, 447, 89 S.Ct. 1827, 1829, 23 L.Ed.2d 430 (1969)….

The evidence the Town submitted concerning the potential for a breach of peace as a result of the OSA demonstrations was an incident in which a counter-protestor tried to run over an OSA member with his vehicle. Lt. Gilliam’s affidavit reported that this individual was arrested and charged. The record contains no evidence that OSA engages in speech that is directed at inciting violence or is likely to produce imminent lawless action, and in the absence of such evidence, we conclude that prohibiting OSA’s speech is not supported.

For a similar case, see Center for Bio-Ethical Reform, Inc. v. Los Angeles County Sheriff Dep’t (9th Cir. 2008); for a case that upheld such a restriction (in my view, incorrectly), see Bering v. Share (Wash. 1986)

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