"I tried to explain to Robert that he was being arrested for the overly graphic pictures" of aborted fetuses

|The Volokh Conspiracy |

Last fall, Robert Rudnick was arrested for displaying pictures of aborted fetuses; here is the relevant text from the police report, which makes that clear:

I observed an older Dodge van pulling a small pull behind trailer with very graphic signs taped on both the units. The pictures were of [babies] that had been aborted.

I initiated a traffic stop on the vehicle and identified the driver and owner as Robert A. Rundick …. I was advised by [another police officer] by two way radio, that Robert had been stopped on 07-27-14 at 15:20 hrs. and was advised that the pictures were very graphic and disturbing, Robert agreed to remove them while in city limits. Officer Allen completed a report.

I asked Robert if this incident happened on 07-27-14 and he would not answer me. Robert stated that he had rights. I stated to Robert that yes he is correct.

I read Robert his Miranda rights and asked if he understood his rights, Robert just stared at me. I placed Robert under arrest for Disorderly Conduct and he was handcuffed. I asked him to sit in my patrol unit in the backseat. I tried to explain to Robert that he was being arrested for the overly graphic pictures. Robert would not say anything….

A citizen … passing by, called into the Police Dept. and stated that she drove past the vehicle with her youth son and he was very upset at what he seen on the van.

Fortunately, on Monday a North Dakota trial court dismissed the charges against Rudnick; there was no written opinion, but Rudnick's defense—on which I was delighted to consult pro bono—was based on the First Amendment. For more on why such speech should be seen as constitutionally protected (as it has been by most, though not all, courts that have considered the matter), see my Gruesome Speech article, forthcoming in the Cornell Law Review.

My congratulations to Ashley Flagstad (Pringle & Herigstad), who argued the case, and Jocelyn Floyd (Thomas More Society) and Tom Brejcha (Thomas More Society), who did the brief.

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