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Court censors anti-abortion protest for sake of traffic flow

By Charles C. Haynes
First Amendment Center senior scholar

Large color posters of mutilated fetuses are hard to miss — especially when held by anti-abortion protesters standing near a busy intersection.

But should provocative messages be censored because some people who see it are offended?

The answer is yes, according to the police department in Kansas City, Mo. And on July 26 the police got federal judicial support for their view when a three-judge panel of the 8th U.S. Circuit Court of Appeals dismissed a civil rights case filed by the anti-abortion demonstrators.

This conflict first erupted three years ago when police officers got complaints from some passing drivers about “offensive signs.” After talking to a number of the motorists (who had stopped to express outrage), the police decided that the graphic photos were a traffic hazard — and they told the protesters to either relocate or stop displaying the images at the side of the road. When the demonstrators refused, five were arrested.

Although the charges were later dropped, 11 of the protesters filed suit, alleging that the police officers had violated their First Amendment rights to freedom of speech and assembly.

In a 2-1 vote, the appeals court sided with the police, ruling that removing the offending signs did not amount to censorship and was a “reasonable restriction” necessary for the safe flow of traffic.

Now let’s get this straight: Protesters exercising their freedom of expression are arrested because motorists offended by the message are illegally impeding traffic.

Sounds like a classic “heckler’s veto” to me. Free speech isn’t free if it can be silenced because someone is offended. When the police see a traffic problem, why not ticket the drivers who are violating the law by holding things up rather than arresting the protesters who have a First Amendment right to get their message out?

Of course, photos of dismembered fetuses are attention-grabbing (that’s why the demonstrators use them). But if police can regulate “offensive” expression on roadsides in the interest of traffic safety, then what else gets banned? Billboards with bloody seals put up by the People for the Ethical Treatment of Animals? Graphic images of car crashes sponsored by Mothers Against Drunk Driving? And who decides?

The police claim that “driver distraction” is the only issue, not the content of the message on the posters. If that’s the case, then photos of scantily clad women advertising “adult clubs” on interstate highways might be next to go. Or even those eye-catching ads for Victoria’s Secret. Roadside signs, including those waved by kids offering to wash your car, are distracting — that’s the whole point.

In siding with the police, two judges in the 8th Circuit have defanged the First Amendment — applying its protections only to speech that doesn’t offend. Moreover, the judges have misunderstood the role of government: Police are there to protect our constitutional right to free speech, not to side with those who don’t want to hear or see the message.

Let’s hope that on appeal — or in some future case — the dissenting judge prevails. In two simple sentences, Judge C. Arlen Beam reminds us of a core principle of First Amendment freedom:

“I dissent because the Constitution does not allow a small group of passersby to censor, through their complaints, the content of a peaceful, stationary protest. The First Amendment knows no heckler’s veto, even in an abortion case.”

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