The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Here is the sign, which was put up by Marion Stanford, alongside several signs supporting Democratic politicians; the Dallas Morning News (Brianna Stone) reports that Texas Agriculture Commissioner Sid Miller claims that the sign was intended to depict one of Justice Kavanaugh's daughters, but there seems to be no evidence of that.
The sign apparently drew various complaints, such as that the sign was "pornography" or "a graphic depiction of child abuse." But it is indubitably constitutionally protected speech. It doesn't fit within the "obscenity" exception or even the "obscenity-as-to-minors" doctrine (which might be relevant because it's displayed where minors can see it)—that obscenity is limited to material that is in some sense erotically appealing to some people. It's not "child pornography," which is limited to speech that uses photographs or videorecordings of real children, and that shows them having sex or lewdly exhibiting their genitals. It may be offensive to some people, but of course offensive speech is fully constitutionally protected. That would be true even if the image was indeed intended to refer to a real child, though I see no real reason to think that it does.
If the police indeed threatened Ms. Stanford with arrest for this, or otherwise demanded that she remove the sign, that would be a clear First Amendment violation. But even if they just came to ask her to remove the sign, making clear that this is just a matter of keeping good relations among neighbors and not something that she is required to do, that strikes me as wrong. (I think there is sometimes some room for such conversations initiated by some government officials, especially if they make clear that this is just a request and not a demand; but that shouldn't be a task for the police, it seems to me.)
For a different sort of suppression of Kavanaugh-nomination-related speech, see this item from College Fix (Jennifer Kabbany):
Earlier this week a mob of students, enraged by a pro-Brett Kavanaugh tabling effort at the University of Texas at Austin put together by its Young Conservatives of Texas chapter, encircled and yelled at its members while chanting obscenities. Several students were also filmed grabbing the young conservatives' signs out of their hands and ripping them up.
One student told the conservatives if they did not want their signs ripped up they should not have written such offensive things. The signs stated phrases such as "#MeToo gone #TooFar," "KavaNotGuilty" and "No Campus Kangaroo Courts in Congress."
In the wake of that melee, campus authorities are reviewing the incident, UT Austin spokesman J.B. Bird told The College Fix.
"Because of federal privacy law, the university does not talk about specific student discipline cases," he said. "Damaging another person's sign is a violation of university rules. The Dean of Students has reached out to students involved to determine appropriate action. University Police are also reviewing potential criminal violations."
I lead with the Marion Stanford story, because the alleged speech suppression there was coming from government officials, and in the Texas story government officials weren't responsible and might even be taking steps to punish the perpetrators, if the allegation is correct. But both strike me as troubling, and worth noting.
Thanks to reader Matthew Caplan for the pointer to the first story, and InstaPundit for the pointer to the second.