Injunctions justified partly by picketers' display of gruesomepictures
stevenjamar at gmail.com
Wed Oct 29 09:57:00 PDT 2008
Yes, I agree with Eugene on this -- but I fear (a word used advisedly here)
that secondary effects reasoning of Renton could be extended to exactly the
sort of thing at issue here -- gruesome war images or abortion images and so
on, and that the concern of protecting children could be treated as
sufficient under the Renton test for other settings which are more closely
analogous to the pornography zoning cases in imagery than RAV, Playboy, etc.
In any event, while I remain dismayed at my students' difficulty with
content and viewpoint and secondary effects, I am even more dismayed when
the courts continue to show such confusion, especially when it is not
necessary to do so.
I sometimes wonder if the law might not be a bit easier to understand and to
apply in this area if we treated some things as lesser-protected speech --
like pornography -- and so subject to some regulation (but not banning or
significant limits -- essentially using a variant of the time place and
manner test. And maybe this could be extended to significantly disturbing
Such limits on the way the message is communicated is "manner" sort of
restriction, no? What is different is that it is ultimately content based.
Or could a statute that banned all gruesome and disturbing images brom being
displayed in public fora (not theaters, and such, but on the street for
example) pass as content neutral? It would be hard for such a label to
catch pornography, though.
On Wed, Oct 29, 2008 at 12:37 PM, Volokh, Eugene <VOLOKH at law.ucla.edu>wrote:
> I agree that Renton is a muddled opinion, but the Court has, to its
> credit, sharply limited its reasoning outside the context of erogenous
> zoning -- see, e.g., R.A.V, Nationalist Movement, Playboy Enterprises, and
> the like.
> *From:* conlawprof-bounces at lists.ucla.edu [mailto:
> conlawprof-bounces at lists.ucla.edu] *On Behalf Of *Steven Jamar
> *Sent:* Wednesday, October 29, 2008 9:36 AM
> *Cc:* CONLAWPROF at lists.ucla.edu
> *Subject:* Re: Injunctions justified partly by picketers' display of
> I think some of the confusion may come from Renton v. Playtime and the
> redefinition of content-neutral as being measured by the motivation to
> regulate not the content per se, but rather the secondary effects of the way
> (manner, time, place) the message is being conveyed. The court wrote:
> "In short, the Renton ordinance is completely consistent with our
> definition of "content-neutral" speech regulations as those that "are *
> justified* without reference to the content of the regulated speech." "
> The court gets worse as it starts down the road of confusing content with
> viewpoint regulation:
> "The ordinance does not contravene the fundamental principle that underlies
> our concern about "content-based" speech regulations: that 'government may
> not grant the use of a forum to people whose veiws it finds acceptable, but
> deny use to those wishing to express less favored or more controversial
> With the Supreme Court writing stuff like this, it is hard to fault lower
> courts for not doing a sharper job on destinguishing content from viewpoint
> and secondary effects as really content-based but limited intrusion with
> non-content-based justifications for the intrusion -- time, place manner
> limitations on expression of some types of content because of the disruptive
> nature of them -- the secondary effects -- rather than because of the
> content per se.
> On Wed, Oct 29, 2008 at 12:03 PM, Volokh, Eugene <VOLOKH at law.ucla.edu>wrote:
>> I'm inclined to say that restrictions on picketing, justified by
>> a concern that the gruesomeness of the pictures that the picketers have
>> displayed shocked children, are content-based, and likely
>> unconstitutional under strict scrutiny. Thus, for instance, say that
>> antiwar protesters are protesting outside a church, arguing that the
>> church's backing of pro-war ideologies is helping contribute to the
>> carnage, and displaying posters of dead civilians. An injunction
>> against such protesting justified by a desire to protect children from
>> the disturbing posters would be constitutional.
>> Oddly, St. John's Church v. Scott, 2008 WL 3877826 (Colo. App.),
>> treats the purpose of "protect[ing] children who were present" against
>> the display of gruesome posters (posters that were "highly disturbing to
>> both adults and children in the congregation because of their
>> gruesomeness or goriness apart from any message intended to be
>> conveyed") as content-neutral. "Frightening and gruesome images of dead
>> bodies are a method of communicating a viewpoint. Consequently,
>> restriction of such methods to protect children does not restrict the
>> communication of the viewpoint itself. Therefore, we conclude that
>> protection of children from the undeniably gruesome pictures at issue
>> here is a proper content-neutral purpose."
>> I take it that this is just a basic and not uncommon confusion
>> between viewpoint-neutrality and content-neutrality -- though the images
>> are disturbing without regard to the viewpoint they convey, it is their
>> communicative content (their representing dead human bodies, rather than
>> just random splotches of red on paper) that makes them disturbing. And
>> I take it that the fact that the injunction is justified by this
>> communicative impact requires strict scrutiny. Am I missing something
>> here? Thanks,
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> Prof. Steven Jamar
> Howard University School of Law
> Associate Director, Institute of Intellectual Property and Social Justice
> (IIPSJ) Inc.
> To post, send message to Conlawprof at lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
> Please note that messages sent to this large list cannot be viewed as
> private. Anyone can subscribe to the list and read messages that are
> posted; people can read the Web archives; and list members can (rightly or
> wrongly) forward the messages to others.
Prof. Steven Jamar
Howard University School of Law
Associate Director, Institute of Intellectual Property and Social Justice
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