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Volokh Conspiracy

Court Upholds Right to Display Signs Depicting Aborted Fetuses

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


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).