The Question in the “Gruesome Images” Cases Affects Much More Than Pro-Life Speech

Important as the abortion debate may be by itself, the implications of the decision below and of other similar cases go far beyond that debate. Gruesome images often reflect gruesome deeds. One powerful way of opening people’s eyes to what the speaker sees as cruelty is by showing them pictures of the results of that cruelty — pictures that are often gruesome.

Thus, photographs of lynchings, which would surely be covered by the injunction’s reference to “gruesome images … of dead bodies,” bring home to viewers the vileness of the crime. Depictions of the dead and near dead from Nazi concentration camps made vivid what was otherwise hard to fully grasp. Images of those butchered in a war crime, or even killed in “ordinary” war, can be powerful calls for justice or for peace.

Photographs of the horribly ill can illustrate what a speaker thinks is shameful lack of funding for treatment, prevention, or research. Animal rights activists show gruesome images of animals to illustrate what they see as the inhumanity of factory farming, or of keeping animals for meat altogether. A photograph of a woman who has bled to death from an illegal abortion could be used to argue for keeping abortion legal. And such images may also carry a dual condemnation: They can condemn both the action that has lead to the gruesome results, and those institutions — such as churches — that (in the speaker’s view) should have helped fight the action but remained silent or even supported it.

Many viewers might disagree with the claim that these images are evidence of evil actions. Many might think, for instance, that the deaths depicted by the images are the result of reproductive freedom, just and necessary war, sensible medical funding decisions, or the permissible consumption of animals. But whether or not these images persuade the viewer, the First Amendment protects people’s rights to try to use such images to persuade.

Nor will the scope of the decision below be materially diminished by the requirement that the images be “gruesome” or that they “caused or could cause psy-chological harm,” App. 23a. “Gruesome” is an imprecise term, at least as imprecise as “contemptuous[]” or “annoying,” both of which this Court has found to be unconstitutionally vague.

The court’s attempt to clarify the term — by relying on the dictionary definition, “inspiring horror or repulsion; fearful, grisly, hideous,” App. 26a — hardly helps. The definition can easily be read by hostile judges, juries, and prosecutors to cover many depictions of death and injury. And this is especially likely to happen if the government actors disapprove of the message that the depictions are being used to convey, and thus have a deliberate or subconscious inclination to find an excuse to suppress that message.

Likewise, what “causes or could cause psychological harm” cannot be defined with anything close to scientific certainty, and decisionmakers can easily set the bar quite low for speech of which they disapprove. Consider, in this very case, the findings that the Court of Appeals saw as sufficient to show “psychological harm”:

• Parents were concerned about the effect the posters had upon their children;

• The posters’ gruesome images were highly disturbing to children in the congregation apart from any message they intended to convey;

• The priest’s seven-year-old daughter buried her face in her hymnal as she passed defendants’ posters and remained upset about the images several days later.

App. 23a. (Indeed, the trial court never found that such disturbance rose to the level of actual or likely psychological harm, App. C, and no expert evidence on the subject was introduced; “caused or could cause psychological harm” was the Court of Appeals’ characterization.)

One can sympathize with parents’ desire to shield their children from speech that the children might find disturbing. But if the government can use the force of law to suppress any speech that a court may find concerns parents, that is in the court’s view “highly disturbing to children,” and that leads at least one child to avert her eyes and be “upset,” then the government would have broad power over public speech. And that is especially so for speech that can be rightly upsetting because it depicts what speakers believe is murder, whether of fetuses, lynching victims, war casualties, or farm animals.

Photographs, of course, are not syllogisms. Photographs of awful things attempt to awaken viewers’ consciences with an appeal to humans’ most basic moral and emotional reactions. The photographs are not rationalistic debate. They would not be at home in a university economics or philosophy department.

Yet how many people’s opinions about abortion, animal rights, or even pacifism stem entirely from rationalistic debate? Much of what we believe comes not just from logic but from experience — from what we have seen, and from the visceral moral reactions that this seeing has aroused. Photographs, even of gruesome things, are unparalleled in their ability to make us see things that we otherwise might have ignored.

This Court, of course, has stressed that the Constitution protects not just “the cognitive content” of speech, but also “that emotive function which, practically speaking, may often be the more important element of the overall message.” Cohen v. California, 403 U.S. at 26. Sound as that analysis was as to the vulgarity in Cohen, it is doubly sound as to pictures intended to trouble the conscience and inspire radical rethinking of beliefs.

The reasoning of the decisions that uphold bans on “gruesome images,” or gruesome words such as “killer” and “murderer,” thus cannot just be limited to pro-life advocacy. Just as there is “no indication — either in the text of the Constitution or in [this Court’s] cases interpreting it — that a separate juridical category exists for the American flag alone,” Texas v. Johnson, 491 U.S. at 417, so there is no indication that a separate juridical category exists for photographs of aborted fetuses.

Indeed, the reasoning of such decisions is not even limited to photographs. This Court has not distinguished verbal and visual expression, even as to obscenity, where such a distinction might be most plausible. See Kaplan v. California, 413 U.S. 115, 119 (1973). And Bering, one of the cases on which the opinion below relied, barred the spoken use of the words “killer” and “murderer” where children are present. Those words, the court reasoned, “inflict[] trauma upon the children overhearing such references” and thus constitute “physical and psychological abuse” of the children in the audience. 721 P.2d at 933, 935. If decisions such as the one below are allowed to stand, they would offer a further precedent for restrictions on other supposedly traumatizing verbal arguments.

This Court has long noted the danger that restrictions on some speech could serve as a potent precedent for restrictions on much more speech. One important reason for this Court’s decision in Cohen was that upholding a ban on a particular vulgarity would leave “no readily ascertainable general principle” for rejecting broader bans. 403 U.S. at 25. Likewise, in Texas v. Johnson, this Court noted that allowing bans on flag burning “would be to enter territory having no discernible or defensible boundaries.” 491 U.S. at 417. And in Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 55 (1988), this Court pointed to the lack of any “principled standard to separate” the scurrilous attack in that case from a much broader range of political debate.

As this petition has argued, allowing content-based restrictions on “gruesome” images or supposedly “trauma”-inducing words in a traditional public forum would likewise jeopardize a wide range of speech. Unless courts impose an unprincipled and blatantly viewpoint-based limitation on such precedents, the precedents would allow the suppression of political speech on many topics. “[T]he First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings.” W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 641 (1943).