Restriction on display of signs depicting aborted fetuses

[David Cruz]

This underscores what I have always regarded as the fundamentally
misguided nature of the doctrinal proposition that a facially content-
based restriction could/should be treated as content-neutral if its
purpose might be described without reference to content (although query
whether preventing distraction or fright could EVEN be properly so
described).

David B. Cruz
Professor of Law
University of Southern California Law School
Los Angeles, CA 90089-0071
U.S.A.


On Tue, 27 Jul 2004, Volokh, Eugene wrote:

> 	In yesterday's Frye v. Kansas City (Mo.) Police Dep't, the
> Eighth Circuit held that police officers could order anti-abortion
> protesters to move their large signs that depict aborted fetuses so the
> signs couldn't be seen from the road.  The Court held the restriction
> was content-neutral (!) because it was aimed at preventing drivers from
> being distracted, and also noted that it might be upheld as a means of
> shielding very young children from "frightening" images.  See
> http://www.ca8.uscourts.gov/opndir/04/07/032134P.pdf
>
> 	Can this be right, given Erznoznik?  Is Justice Scalia correct
> after all that there's a special (and illegitimate) exception being
> carved out by courts for anti-abortion speech?  Could a city restrict,
> say, flagburning on similar grounds, when the flagburning is visible
> from the street?
>
> 	Eugene