Restriction on display of signs depicting aborted fetuses

[Volokh, Eugene]

	I agree with David -- but given Forsyth County, R.A.V, Reno v.
ACLU, and the Boos plurality, it seems to me clear that the law is
content-based even under the Renton analysis, since the distraction is
caused by the offensiveness of the speech.

> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu 
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of David Cruz
> Sent: Tuesday, July 27, 2004 10:05 AM
> To: conlawprof
> Subject: Re: Restriction on display of signs depicting aborted fetuses
> 
> 
> 
> 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
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