The Logic of the “Gruesome Images” Injunction Would Justify Restrictions in Many Places

Some comments on my Scott v. Saint John’s Church in the Wilderness posts ask whether this injunction can be upheld on the grounds that it’s limited to speech near a church. Here’s what the petition has to say about that:

Content-based restrictions on supposedly “gruesome” political, religious, and moral advocacy are presumptively unconstitutional even if they are limited to a narrow physical area. See, e.g., Boos v. Barry, 485 U.S. 312 (1988). But in any event, the logic of this case, and of others like it, would justify restrictions in a broad range of places.

Children under 12 are present in many locations. They often come with their families to parks. They accompany their parents to go shopping. Their parents take them to fairs, outside which protesters might be speaking. Their parents drive them down streets, from which they can see protesters on sidewalks. If the decision below is allowed to stand, speech in all these places could be restricted.

Of course, parks are traditional public fora, but so are sidewalks. If a content-based restriction on political speech on sidewalks is upheld because of the supposedly compelling interest in shielding children, a content-based restriction on political speech in parks would be upheld on the same grounds.

Nor can such content-based restrictions be sufficiently narrowed on the grounds that churches and church attendees somehow deserve special protection from speech that attendees or their children may find disturbing. The decision below defined the supposedly compelling interest in this case as shielding children, not shielding churches or worshippers. App. 24a. Two of the cases it relied on did not deal with speech near churches. Bering, 721 P.2d at 924; Operation Save America, 275 P.3d at 442.

And religious institutions, like other institutions that play an important role in spreading ideas, are often fitting targets for criticism. Some people may believe that certain churches are not properly speaking out against evil, a failure that is especially harmful precisely because the church characterizes itself as a force for good in society. Some may believe that certain churches are harming society (or the world or the environment) by preaching against contraceptives or abortion.

Some may believe that certain churches are morally responsible for crimes committed by their ministers. Some may believe that certain churches are teaching dangerous theological doctrines. Nailing ninety-five theses to a church door might today be a technical trespass, but displaying signs containing those theses on a nearby sidewalk has to be constitutionally protected.

Perhaps because of this, this Court has never allowed any special restrictions on speech outside churches. Churches, to be sure, are places for constitutionally protected First Amendment activity. But so are political rallies, movie theaters, bookstores, or the headquarters of the NRA and the ACLU, yet protesters are free to express their disapproval of such events and places. Churches, bookstores, and advocacy groups are all equally protected from governmental suppression of their speech or worship. Yet those who want to protest outside churches, bookstores, and advocacy groups are all equally protected by the First Amendment as well.

Indeed, providing special protection from criticism to places where people engage in religious expression would likely violate the Establishment Clause under this Court’s precedents, just as providing special exemptions from taxes to religious publications has been held to violate the Establishment Clause. See Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989) (lead opinion); id. at 26 (Blackmun, J., concurring in the judgment); id. at 25-26 (White, J., concurring in the judgment on freedom of expression grounds). Just as the government may not give special financial benefits to “writings promulgating the teaching of the faith,” id. at 14, so the government may not set up special criticism-free zones outside events that promulgate the teaching of the faith.