Nudity on drive-in movie screens

is constitutionally protected — signs containing dead fetuses are forbidden. Yup, that’s the First Amendment rule that seems to apply in the Eighth Circuit (Missouri, Minnesota, and some neighboring states).

The first part of the rule (that nudity on drive-in movie screens is constitutionally protected) has been well-established since 1975, when the Supreme Court struck down a ban on such nude displays in Erznoznik v. City of Jacksonville. The Court concluded that

1. the offensiveness of the speech to some viewers generally can’t justify restricting it,

2. the presence of children who can view the material can’t justify restricting it either, unless it’s “obscene as to minors” (which requires it to be not mere nudity, but rather sexually explicit), and

3. the risk of traffic accidents caused by drivers being distracted by the nudity can’t justify a selective ban: “By singling out movies containing even the most fleeting and innocent glimpses of nudity the legislative classification is strikingly underinclusive. There is no reason to think that a wide variety of other scenes in the customary screen diet, ranging from soap opera to violence, would be any less distracting to the passing motorist.”

So that’s the law, set forth by the Supreme Court. Agree with it or not, there it is.

But just today, the Eighth Circuit held that police officers may require anti-abortion protesters to put down their three-by-five-foot signs containing color photographs of aborted fetuses. Why? Well, because they supposedly distract drivers, and perhaps also because they are “frightening” to “very young children.” What about Erzoznik? The majority says nothing about it (except for one indirect citations that doesn’t even begin to explain how this case is different from that one).

The one possible distinction between this case and Erznoznik is that here some drivers did specifically complain that they were distracted. One can imagine that the police might have therefore thought that this speech was unusually distracting, much more so than any other kind of sign or billboard that drivers might see.

But I’m extremely skeptical about rules that give the police the discretion to make such decisions (and the Court has been skeptical about such discretionary rules, too, where speech restrictions are concerned). There’s no objective metric for deciding which images are more distracting than others. Nor is the frequency of driver complaints much of a neutral metric — we’re all much more likely to complain about things that are distracting and ideologically offensive to us than we are about things that are distracting but appealing. Moreover, once people learn that “Officer, I find those signs distracting” is a good way to get the signs taken down, people will be much more likely to make that sort of claim.

And of course these sorts of distraction claims can be made against any speech that some people find offensive enough. I’m sure that some people are offended to the point of distraction by flagburning, by Confederate flags, by anti-veteran messages, or by a wide range of other speech. Under the Eighth Circuit’s reasoning, whenever a few drivers make such an objection, and police officers decide to credit the objection — something that’s almost entirely up to the officers’ own judgment — the speech can be suppressed.

This is a really bad decision, one that I hope either the Eighth Circuit sitting en banc or the Supreme Court will quickly reverse. I’ve been somewhat skeptical of some Justices’ claims that the Court has been treating anti-abortion speech worse than other speech. But here the Eighth Circuit is indeed allowing restrictions on anti-abortion speech that are flatly inconsistent with the rule for speech generally. (The same, I think, was true for the Nuremberg Files case from the Ninth Circuit a couple of years ago, which I’m sorry the Court refused to hear.)