Free Speech

Court Upholds Right to Display Signs Depicting Aborted Fetuses

A sound decision Monday from a federal district court in Michigan.

|The Volokh Conspiracy |

Michael Mattia opposes abortion, and stands on street corners in Center Line, Michigan displaying signs that contain, among other things, graphic images of aborted fetuses. City authorities ordered him to stop, citing (1) local ordinance § 46-146, which provides,

[a]ny person who shall make or assist in making any noise, disturbance, trouble or improper diversion, or any rout or riot, by which the peace and good order of the city are disturbed, shall be guilty of a breach of the peace, and disorderly conduct

and (2) local ordinance § 5150, which the city attorney read as

prohibit[ing] all signs, notwithstanding the content, displayed on any street corner, public right-of-way or sidewalk.

Monday, a federal district court granted a preliminary injunction against enforcement of the ordinances against Mattia's speech, concluding that the city's actions likely violated the First Amendment:

[1.] The court concluded that the application of § 46-146 to Mattia was unconstitutional:

The plaintiff argues that the defendants impermissibly applied this section against him based on the content of his sign. In his verified complaint and supporting affidavit, Mattia contends that Sgt. Dempsey told him that the police had received complaints about his sign. According to Mattia, Dempsey explained that a sign with text and without a picture of an aborted fetus would be permissible.

Dempsey described his sign as "so shocking" that it is not given constitutional protection. And Dempsey concluded, says Mattia, that his sign was disturbing the peace by inspiring calls to the police, declaring that the sign was disturbing on a "psychological level." The plaintiff also says that Dempsey told him that a drawing not as "vile" or "grotesque" as the image on the plaintiff's sign would be allowed….

[T]he plaintiff furnished a short video that captures the exchange between the plaintiff and Sgt. Dempsey on August 26, 2016. The plaintiff shot the video on his cell phone. The video corroborates Mattia's account of what happened …. Although at times the sound is muffled by wind, it is clear from the recording that Dempsey did use the words "so shocking," "vile," and "grotesque" with respect to the plaintiff's sign. When the plaintiff asked how he was disturbing the peace, Dempsey simply responded that people were calling and complaining.

Dempsey did not identify any specific traffic issues. Moreover, the intersection and flow of traffic is visible on the video, and it does not appear that there were any traffic issues at the time of recording….

[I]t is difficult to identify the defendants' prohibition against the plaintiff's sign display as anything but a content-based restriction. The defendants argue that the text of section 46-146 is content-neutral. They argue that the ordinance was adopted with a content-neutral purpose and that it is supported by a significant government interest in public safety. But here, that is largely beside the point. As in Bible Believers v. Wayne County (6th Cir. 2015), where the police enforced a similar ordinance against an evangelical Christian group whose offensive anti-Islamic demonstration was cut off at a festival celebrating Arab culture, it was "irrelevant whether the [police's plan was] content-neutral because the officers enforcing it [were] ordained with broad discretion to determine, based on listener reaction, that a particular expressive activity [was] creating a public danger." The court found "[i]t … indisputable that the [police] acted against the Bible Believers in response to the crowd's negative reaction. Such is the case here.

It is quite obvious that the Center Line police enforced section 46-146 against Mattia based on viewer reaction. The ordinance does not define what amounts to a disturbance, trouble, or improper diversion. And the record indicates that Dempsey could not point to any identified disturbance other than the complaints received. He emphasized that the shocking content of the plaintiff's sign motivated the calls, and that amounted to disturbing the peace.

As the Sixth Circuit noted in Bible Believers, this type of "heckler's veto is precisely that type of odious viewpoint discrimination" the First Amendment safeguards against. Because content-based restrictions are "presumptively invalid," the plaintiff has shown a strong likelihood of success on the merits of this claim.

(2) And the court concluded that § 1510 was likely unconstitutional as applied as well (which led it not to reach Mattia's claim that the ordinance is unconstitutionally overbroad):

[T]he city attorney's letter … interpreted the several subsections of ordinance 1510, read together, to mean that the law "prohibits [all] signs, not withstanding the content, displayed on any street corner, public right-of-way or sidewalk." Considering that public sidewalks are traditional public fora, that restriction is manifestly overinclusive: it burdens substantially more speech than necessary. It is not difficult to imagine a narrower interpretation that would allow the display of a protest sign, but would restrict the sign's size, or limit display within a certain distance from the intersection, or even curtail some of the activity during rush hour on the city's main streets. But none of that was even suggested by the city's letter ….

As noted above, the city has identified legitimate governmental interests for its restrictions: traffic safety and aesthetics. But even if the ordinance were narrowly tailored to achieve those ends, the record undermines the defendants' asserted justifications. They offer only a conclusory argument that a sign like the plaintiff's causes traffic issues; they have not shown that the plaintiff's sign actually caused traffic issues. Sgt. Dempsey averred in his affidavit that it was "clear" at the intersection that the plaintiff's sign was interfering with traffic. But in the plaintiff's video, it is not apparent that there are any traffic issues, nor did Dempsey refer to anything specific….

Quite right, I think; if you're interested in this general subject, have a look at my Gruesome Speech (Cornell L. Rev. 2015).

NEXT: Starting in 2018, Life in Prison for Oregon Sex Crimes

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  1. What about gruesome speech or images uttered only for the purpose of shocking the viewer, by someone who gets his gratification that way? Maybe he enjoys having his billboard as the center of attention. Is it protected even though there is no “cause” that is being promoted? If not, is any “cause” sufficient to immunize any image no matter how gruesome and how unrelated to the cause? For example, the image is being used only to attract attention and has no connection to the message.

    1. If you have to reference the content of the message in order to determine whether it passes whatever test then it is a content-based restriction. And other than possible obscenity (which likely would cover the material you describe under an original understanding but not modern) I’m not sure any of the non-protected categories cover that,

      1. And other than possible obscenity (which likely would cover the material you describe under an original understanding but not modern)

        Roth v. United States appears to have limited obscenity to “material which deals with sex in a manner appealing to prurient interest — i.e., material having a tendency to excite lustful thoughts,” because the court said that obscenity, like libel, had always been an exception to the right of free speech and so the
        First Amendment likely had not been intended to change this. However, the court at the same time sites many early laws prohibiting prophaneness, cursing and swearing, which didn’t seem to require a connection to a prurient interest.

    2. To which the obvious response, and the one perfectly consistent with the First Amendment, is ignore him.

      1. To which the obvious response, and the one perfectly consistent with the First Amendment, is ignore him.

        What if the image gives your kids nightmares and makes them fearful, because they never dreamed such things were possible and are really too young to discuss these subjects? Are the billboard creator’s actions protected because they have redeeming social importance?

        1. I once had a nightmare about the entire world being turned into purple chewable Tylenol. I don’t think the 1A exception “causes nightmares in kids” is manageable. I also think it defeat the entire purpose of the 1A if you limited its application only to when the government agreed that the speaker’s message had “redeeming social importance” or when the government approved of the speaker’s intent.

          1. In my example, the speaker had no message and his intent was only to amuse himself by shocking others.

            1. I think the answer is that courts generally shouldn’t strip speech of First Amendment protection just because of their guess as to the speaker’s purposes; see http://www.law.ucla.edu/volokh/purpose.pdf for more details. Part of the problem is the human tendency to ascribe bad purposes to people whose speech we dislike, and good purposes to people whose speech we sympathize with. Relatedly, even speakers who have a motive that the law allows may well be deterred from speaking by the risk that a prosecutor will misperceive the motive.

              But in any event, even if the law ought to consider a speaker’s purpose in some situations, I think there needs to be really good reason for such a dangerous inquiry. Is there a real problem with speakers having no message and intending only to amuse themselves by shocking others by buying billboard space for images that cause nightmares for children? Can you point to some specific examples? If not, then I don’t see why we should try to carve out some new First Amendment exceptions for a problem that, in my experience, doesn’t really exist.

              1. > Is there a real problem with speakers having no message and intending only to amuse themselves by shocking others by buying billboard space for images that cause nightmares for children?

                There’s a real problem with speakers having *reckless disregard* for the effect of such images on children (or on other people who may involuntarily see them).

                There’s also a real problem with speakers whose motivation is *substantially* to shock involuntary viewers or listeners, such as the Westboro Baptist Church picketing funerals. I don’t think that because there’s a deminimis amount of genuine speech in there that should be a blank check to shock people as much as they want. (Especially since it’s possible to describe pretty much any attempt to shock in terms of speech regardless of whether that’s your actual motivation.)

              2. It appears they want a “Special Snowflake” exemption. Unfortunately it probably melted while the 1A was being written during the summer. 😉

  2. Suppose the high school football player who knelt during the national anthem (from last week’s discussion topic) chose instead to carry a protest sign. Would that be protected by the First Amendment?

    1. Suppose a student at a high school event held up a sign that said “Bong Hits for Jesus.”

  3. Hmmmm. What about a sign showing images of naked women?

    1. Or, a sign showing images of someone stabbing a six-year-old child in the eye with a fork?

    2. You ask, I answer, see here. The short answer: Constitutionally protected, see Erznoznik v. City of Jacksonville (1975), at least unless the naked women are doing something more than just being naked.

      1. Whoops, should have been clearer — my answer was to your naked women point. The images of someone stabbing a six-year-old child in the eye with a fork (perhaps in an ad for a horror movie?) would likewise be protected, but there’s no Supreme Court cases squarely on tine.

        1. Well, the Miller test does have three prongs.

          1. I want to marry great Unknown’s comment.

        2. However, if the ordinance in question had been limited to sexually explicit nudity it might not have been thrown out.

          In this case, assuming the ordinance is aimed at prohibiting youths from viewing the films, the restriction is broader than permissible. The ordinance is not directed against sexually explicit nudity, nor is it otherwise limited.

          Also, the court suggested in footnote 6 that it may not in all cases be permissible to “force public confrontation with the potentially offensive aspects of the work.”

          It has also been suggested that government may proscribe, by a properly framed law, “the willful use of scurrilous language calculated to offend the sensibilities of an unwilling audience.” … In such cases, the speaker may seek to “force public confrontation with the potentially offensive aspects of the work.” … It may not be the content of the speech as much as the deliberate “verbal [or visual] assault,” … that justifies proscription. … In the present case, however, appellant is not trying to reach, much less shock, unwilling viewers. Appellant manages a commercial enterprise which depends for its success on paying customers, not on freeloading passersby. Presumably, where economically feasible, the screen of a drive-in theater will be shielded from those who do not pay.

  4. Superstitious, stale-thinking boors have rights, too.

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