Archive | Scott v. Saint John’s Church in the Wilderness

Petition for Rehearing in Scott v. Saint John’s Church in the Wilderness, Seeking a Hold for McCullen v. Coakley

I’ve blogged quite a bit about Scott v. Saint John’s Church in the Wilderness, a First Amendment pro-life protester case in which my cocounsel and I filed a cert petition earlier this year. The Court recently denied certiorari in that case, but two weeks later it granted certiorari in McCullen v. Coakley, another First Amendment pro-life protester case.

We’ve therefore filed a petition for rehearing, asking the Court to hold Scott pending the result in McCullen, and then perhaps granting the petition, vacating the decision below, and remanding for reconsideration in light of McCullen (a so-called “GVR”). Though the issues raised in McCullen and Scott aren’t identical, the petition explains how the outcome of McCullen may affect the outcome of Scott, and how that can justify a hold for a possible GVR. The petition also discusses the Court’s power to grant a rehearing (within the 25-day period following denial of cert, as authorized by the Court rules) in order to hold a case for a newly granted case.

In any event, I know some of our readers have been interested in Scott, so I thought I’d blog about this latest development. […]

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Supreme Court Denies Review in “Gruesome Images” Case (Scott v. Saint John’s Church in the Wilderness)

I’m sorry to report that the Supreme Court has refused to hear our petition in this case. As usual, the Court has not given any reasons for the denial. The matter thus remains where it stood before the petition — some lower courts think that restricting gruesome images (and harsh words, such as signs calling abortion providers “murderers”) in places where young children can see them is constitutional, while others think it violates the First Amendment. A denial of certiorari is not a decision on the merits, so all the lower court decisions stand as precedents within their own jurisdictions, but as a conflicting body of law for other jurisdictions.

I’m naturally disappointed in the result, but I’m very happy to have participated in the case: It was a fight that was very much worth fighting, even though we lost. And I want to express my thanks to all the people who helped on the case:

  1. My cocounsel — Tom Brejcha, Peter Breen, and Jocelyn Floyd of the Thomas More Society (not to be confused with the Thomas More Law Center) and Rebecca Messall of the Messall Law Firm.
  2. Seth Fortin, a UCLA law student who helped me a great deal with the petition.
  3. Bruce Johnson and Ambika Doran of Davis Wright Tremaine LLP and Prof. Geoffrey Stone, who were counsel on the free speech scholars’ amicus brief, and the signatories, Profs. Floyd Abrams, Amy Adler, Jack Balkin, Vince Blasi, David Cole, Ronald Collins, Alan Dershowitz, Norman Dorsen, Daniel Farber, Kent Greenfield, Seth Kreimer, Sanford Levinson, Robert O’Neil, Martin Redish, Suzanna Sherry, Geoffrey Stone, Nadine Strossen, Jonathan Varat, and James Weinstein.
  4. Prof. Ed Gaffney, who was counsel on the Religion Clauses scholars’ amicus brief, and the signatories, Salam Al-Marayti and Profs. Michael Ariens, Thomas Berg, Zachary Calo, Bob Destro, Carl
  5. […]

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Liberals, Free Speech, and “Gruesome Images” of Aborted Fetuses

The Scott v. Saint John’s Church in the Wilderness case (in which I’m representing petitioners pro bono) has been in the news a bit, including both in the New York Times and in the conservative media, and I’ve seen quite a few comments complaining about how “liberals seek to ban photos of aborted children” or how “liberals” are hypocrites on free speech here or how “liberals” are the opponents of plaintiffs’ free speech rights.

But this strikes me as a vast oversimplification. For instance, when the Colorado Supreme Court refused to consider the speakers’ petition for review, two Justices — the conservative Allison Eid and the liberal Michael Bender — voted to hear the case. To answer one of the commenters at National Review Online, who asked “Where are you liberal first amenders anyway?,” Chief Justice Bender was there with Justice Eid. I’m not sure quite how the other Justices are best categorized, but at least one of the conservatives (Justice Coats) voted not to hear the case; the third Justice who I hear described as conservative, Justice Rice, did not participate. [UPDATE:] And the decisions from other courts stating that the First Amendment protected the public display of aborted fetuses, and that the desire to shield children from the images didn’t justify restricting the images, came mostly from liberal judges — Center for Bio-Ethical Reform, Inc. v. Los Angeles County Sheriff Dept. (9th Cir. 2008), was written by arch-liberal Judge Pregerson and joined by liberal Judges Fletcher and Berzon, and Center for Bio-Ethical Reform v. City of Springboro (6th Cir. 2007), was written by Clinton appointee Judge Clay and joined by Clinton appointee Judge Moore and Reagan appointee Judge Bell (a district court judge sitting by designation).

And as to “liberal first amenders” more broadly, […]

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Scott v. Saint John’s Church in the Wilderness — Briefs and New York Times Article

Today’s New York Times has an article by Adam Liptak about Scott v. Saint John’s Church in the Wilderness, the case in which I filed a cert petition recently. In that case, as many readers may recall, the Colorado Court of Appeals upheld an injunction that bars my clients from (among other things) displaying “gruesome images” of aborted fetuses outside a church. The court acknowledged that this was a content-based speech restriction, but said that the injunction passed the “strict scrutiny” required for such restrictions, because it was supposedly narrowly tailored to a compelling government interest in shielding children from such speech. Our petition argues that the Supreme Court should consider the case, because lower courts disagree on whether such content-based restrictions are constitutional.

The briefing is now done — just yesterday I filed the reply brief — and we expect the Court to consider the case in late May or early June. [UPDATE: Today the clerk’s office noted in the docket that the petition would be first considered at the Court’s conference on May 30.] Here is where you can get the material, if you’re interested in the case:

  1. The decision below.
  2. The petition for certiorari.
  3. The amicus brief of free speech scholars (Profs. Floyd Abrams, Amy Adler, Jack Balkin, Vince Blasi, David Cole, Ronald Collins, Alan Dershowitz, Norman Dorsen, Daniel Farber, Kent Greenfield, Seth Kreimer, Sanford Levinson, Robert O’Neil, Martin Redish, Suzanna Sherry, Geoffrey Stone, Nadine Strossen, Jonathan Varat, and James Weinstein).
  4. The amicus brief of Religion Clauses scholars (Salam Al-Marayti and Profs. Michael Ariens, Thomas Berg, Zachary Calo, Bob Destro, Carl Esbeck, Marie Failinger, Edward Gaffney, Richard Garnett, Douglas Kmiec, Faisal Kutty, Michael Stokes Paulsen, Michael Perry, Richard Stith, and Lynn Wardle).
  5. The amicus brief of historians of art and photography (Profs.
  6. […]

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Amicus Brief Supporting the “Gruesome Images” Petition, from Liberal Free Speech Scholars

The fourth amicus brief supporting our Scott v. Saint John’s Church in the Wilderness cert petition is the Brief of Constitutional Law Professors, filed by Bruce Johnson and Ambika Doran of Davis Wright Tremaine LLP and by Prof. Geoffrey Stone (Chicago).

The brief is signed by Profs. Floyd Abrams (visiting at Yale), Amy Adler (NYU), Jack Balkin (Yale), Vince Blasi (Columbia), David Cole (Georgetown), Ronald Collins (Univ. of Washington), Alan Dershowitz (Harvard), Norman Dorsen (NYU), Daniel Farber (Berkeley), Kent Greenfield (Boston College), Seth Kreimer (you have an amicus in Pennsylvania), Sanford Levinson (Texas), Robert O’Neil (Virginia), Martin Redish (Northwestern), Suzanna Sherry (Vanderbilt), Geoffrey Stone (Chicago), Nadine Strossen (New York Law School), Jonathan Varat (UCLA), and James Weinstein (Arizona State).

I feel confident saying that all or nearly all of these academics are fairly labeled liberals, and likely support the right to abortion. Indeed, many of them are among the most prominent liberal law professors in the country, and two are former Presidents of the ACLU — Norman Dorsen (1976 to 1991) and Nadine Strossen (1991 to 2008).

It thus especially pleases me, though it doesn’t surprise me, that they signed on to a brief supporting full First Amendment protection for speech with which they probably very much disagree. […]

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Amicus Brief Supporting the “Gruesome Images” Petition, from Religion Clauses Scholars

The third amicus brief supporting our Scott v. Saint John’s Church in the Wilderness cert petition is the amicus brief of Religion Clauses scholars — Salam Al-Marayti (Muslim Public Affairs Council) and Profs. Michael Ariens (St. Mary’s), Thomas Berg (St. Thomas), Zachary Calo (Valparaiso), Bob Destro (Catholic), Carl Esbeck (Missouri), Marie Failinger (Hamline), Edward Gaffney (Valparaiso), Richard Garnett (Notre Dame), Douglas Kmiec (Pepperdine), Faisal Kutty (Valparaiso), Michael Stokes Paulsen (St. Thomas), Michael Perry (Emory), Richard Stith (Valparaiso), and Lynn Wardle (BYU); Edward Gaffney wrote the brief.

Among other things, this brief makes the argument that content-based restrictions on speech in traditional public fora (such as sidewalks) remain unconstitutional outside churches, and that while there may be good manners reasons and strategic reasons for critics to avoid harsh speech outside churches, the First Amendment does not allow government-imposed limits on such speech. […]

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Amicus Brief Supporting the “Gruesome Images” Petition, from Historians of Art and Photography

The second amicus brief supporting our Scott v. Saint John’s Church in the Wilderness cert petition is the amicus brief of Historians of Art and Photography — Profs. Dora Apel (Wayne State), Stephen Eisenman (Northwestern), Renée C. Hoogland (Wayne State), Paul Jaskot (DePaul), William J. Thomas Mitchell (Chicago), Terence Smith (Pittsburgh), John Tagg (Binghamton), and Rebecca Zorach (Chicago). The brief was drafted by Trevor Anderson, Joseph G. Gilliland, and Ben Smyser of the Emory Law School Supreme Court Advocacy Project; the counsel of record and the Project’s Faculty Advisor is Prof. Sarah Shalf.

As the identity of the amici suggests, this brief goes into substantial detail on the historical value of photographs — including especially “gruesome” photographs of war and brutality — in American political life. This detail is what makes especially persuasive (in my own highly biased view) the brief’s main argument, which I quote here from the Summary of Argument:

Photographs, especially gruesome photographs, can speak with a power that text often cannot. Since the Civil War, people have used the photograph’s ability to stir emotion and engender visceral understanding to provoke debate about some of the most important issues our nation has faced, namely, issues of war. Unsurprisingly, many of the most important war images have been “gruesome.” Yet under the Colorado Court of Appeals’ interpretation the First Amendment, these photos would be subject to ban from public display precisely because they are evocative. Because the Colorado Court of Appeals’ opinion presents a threat to an historically-grounded method of expression that lends itself naturally to vibrant debate, this Court should grant certiorari and reverse.

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Amicus Brief Supporting the “Gruesome Images” Petition, from the Center for Bio-Ethical Reform

Last month, I blogged about a pro bono cert petition that I had filed in Scott v. Saint John’s Church in the Wilderness. The Colorado Court of Appeals upheld an injunction that bars my clients from (among other things) displaying “gruesome images” of aborted fetuses outside a church; the court acknowledged that this was a content-based speech restriction, but said that the injunction passed the “strict scrutiny” required for such restrictions, because it was supposedly narrowly tailored to a compelling government interest in shielding children from such speech. Our petition argues that the Supreme Court should consider the case.

Today, four friend of the court briefs were filed supporting the petition; I plan on blogging briefly about each, and linking to each. The other side’s brief in opposition was also initially due today, but they have gotten an extension until May 6; I will blog a link to that brief as well, when it is filed.

The first brief I wanted to mention was the brief from the Center for Bio-Ethical Reform. The Center also demonstrates using similar images, and has litigated similar cases in the past. The brief’s general approach and perspective is quite similar to that in the petition. […]

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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

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Speech That Can Be Seen by Children — Sexually Themed and Otherwise

My blog posts about Scott v. Saint John’s Church in the Wilderness led readers to ask about the cases that allow the government to limit the exposure of children to sexually themed speech. Here’s what the petition for certiorari says about those cases; the discussion is necessarily brief, because the point of the petition is to argue that the case is worth the Court’s consideration — if the Court agrees to hear the case, then the merits briefs will discuss this in more detail:

Though sexually-themed speech has long been seen as less protected for minors than other speech is, see Brown v. Entertainment Merchants Ass’n, 131 S. Ct. 2729, 2735-36 (2011); Ginsberg v. New York, 390 U. S. 629 (1968), this Court has nonetheless held that even material that many might see as unsuitable for minors — large, full-color, moving depictions of nudity on a drive-in screen — may be publicly displayed where minors can see it. Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975). Even such obtrusive images are constitutionally protected unless the nudity is so pornographic and lacking in serious value that it fits within the “obscene-as-to-minors” exception set forth by Ginsberg. A fortiori, speech that has serious political, moral, and religious value for minors and that is not sexually themed must be at least as constitutionally protected as nudity on drive-in screens, even where children can see it.

Likewise, in Brown, this Court specifically rejected a call to carve out a special First Amendment rule for speech to children. The government in that case sought to uphold a ban on the distribution of violent video games to children, by analogy to limits on the distribution of sexually themed material to children. Brown, 131 S. Ct. at 2734. This

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Supreme Court Petition Challenging Injunction Against Display of “Gruesome Images” Where Children Can See Them

Monday I filed a cert petition in Scott v. Saint John’s Church in the Wilderness, together with co-counsel Rebecca Messall, Thomas Brejcha, Peter Breen, and Jocelyn Floyd. I’m pleased to say that I’ve taken on the project pro bono, because I think it involves a very important First Amendment issue.

The decision below, by the Colorado Court of Appeals, upheld an injunction barring “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 years of age attending worship services and/or worship-related events at plaintiff church.” The court agreed the injunction was content-based, but upheld it under strict scrutiny, concluding that it was supported by a compelling government interest in “protecting the physical and psychological well-being of minors.” The Colorado Supreme Court refused to hear the case, despite dissents from denial of review by noted conservative Justice Allison Eid (a former Supreme Court clerk, for Justice Clarence Thomas) and noted liberal Chief Justice Michael Bender.

I’m not opposed to abortion myself, and I understand the sentiment behind the decision, but it strikes me as potentially very dangerous. The same arguments could apply to other disturbing images — for instance, images used by some animal rights protesters, by anti-war activists, anti-drone strike activists, and so on. The arguments aren’t even limited to images; see Bering v. SHARE (Wash. 1986), which used the same rationale to hold that an injunction could ban “picketers’ oral use of the words ‘murder,’ ‘kill,’ and their derivatives.”

And beyond that, it seems to me that the upholding of new content-based restrictions, especially on political speech, helps undermine the strength of First Amendment protections more generally. I think the Ninth Circuit was quite right in taking the opposite view […]

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Why the “Gruesome Images” Restriction Is a Serious Burden on Pro-Life Protesters’ Speech

This Court has been dealing with restrictions on pro-life speech for about 20 years. See Hill v. Colorado, 530 U.S. 703 (2000); Cloer v. Gynecology Clinic, Inc., 528 U.S. 1099 (2000) (Scalia, J., joined by Thomas, J., dissenting from the denial of certiorari); Lawson v. Murray, 525 U.S. 955 (1998) (Scalia, J., concurring in the denial of certiorari); Williams v. Planned Parenthood Shasta-Diablo, Inc., 520 U.S. 1133 (1997) (Scalia, J., joined by Kennedy & Thomas, JJ., dissenting from the denial of certiorari); Schenck v. Pro-Choice Network of Western N.Y., 519 U.S. 357 (1997); Lawson v. Murray, 515 U.S. 1110 (1995) (Scalia, J., concurring in the denial of certiorari); Winfield v. Kaplan, 512 U.S. 1253 (1994) (Scalia, J., joined by Kennedy & Thomas, JJ., dissenting from the denial of certiorari); Madsen v. Women’s Health Center, Inc., 512 U.S. 753 (1994). Just this Term, this Court granted certiorari and summarily reversed in Lefemine v. Wideman, 133 S. Ct. 9, 10 (2012) (per curiam), which involved a fee dispute arising from a challenge to such a restriction. Lower courts have been dealing with such restrictions for nearly 40 years.

Such restrictions have sometimes been evaluated under relatively modest levels of First Amendment scrutiny. Some of the cases, for instance, have concluded — often controversially — that the restrictions were content-neutral, and were thus subject only to intermediate scrutiny. See, e.g., Hill, 530 U.S. at 719-25; Madsen, 512 U.S. at 763-68. Other cases have arisen in nonpublic fora, where the government has broad power to restrict speech. See, e.g., Center for Bio-Ethical Reform, Inc. v. City & County of Honolulu, 455 F.3d 910, 920 (9th Cir. 2006).

But the restriction on “gruesome images” does not fall into any […]

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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 […]

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