The Ninth Circuit Court of Appeals (of all circuits) has just issued a rather significant free speech case related to the right to protest abortion. According to the L.A. Times story:
The 1st Amendment rights of two anti-abortion activists were violated when they were ordered to stop circling a Rancho Palos Verdes middle school in a truck displaying graphic photos of aborted fetuses, a federal appellate court ruled Wednesday.
Overturning an earlier district court judgment, a U.S. 9th Circuit Court of Appeals panel unanimously ruled that school officials and sheriff's deputies violated the men's free speech rights by ordering them to leave the school's neighborhood.
The court in its ruling on a lawsuit brought by the activists cited the concept of a "heckler's veto," which states that free speech cannot be limited based on listeners' reactions to the content.
The activists' "speech was permitted until the students and drivers around the school reacted to it, at which point the speech was deemed disruptive and ordered stopped," Judge Harry Pregerson wrote in the ruling. "This application of the statute raises serious 1st Amendment concerns."
The 7-by-20-foot truck with photos of first-term fetuses on three sides appeared near Dodson Middle School around 7:30 a.m. March 24, 2003, as students arrived. Several stopped to stare at the photos, which showed fetuses with small hands and feet and the word "choice" in quotation marks and big block letters, according to court documents.
As a legal matter and without having read the decision issued by the court, my first reaction is that the court made the right decision. The right to free speech, while not absolute, is certainly broad enough to protect the speech of these two men driving their fetus-mobile around Rancho Palos Verdes. After all, if the commercial-based semi-pornographic images that often grace our billboards are permitted in the name of free speech, then it seems that these images, which obviously fall within the category of the more highly-protected political speech, should be permitted. So, without reviewing all of the relevant facts or precedents, my gut reaction is that the court made the right decision.
Still, I am troubled by this. It gets back to the idea that I learned as a kid: just because you can do something doesn't mean that you should do something. Hence, while it is perfectly legal to smoke cigarettes, it doesn't mean that it is a good idea to smoke cigarettes. While it is perfectly legal to go bar-hopping in a shady part of town doesn't mean that it is a good idea to do so.
Although I remain outspoken in my opposition to abortion, I do not believe that anything that can be done to stop abortion should be done to stop abortion. In this case, driving this fetus-mobile around a middle school strikes me as a very poor idea and a counter-productive tactic. Forcing people to see an image that they don't want to see without warning is simply a poor way to present the issue of abortion reasonably.
Moreover, the organization responsible for this fetus-mobile (the Center for Bioethical Reform) already knows that it shouldn't spring these horrendous images on people without warning. The Center's website opens with a graphic video about abortion on its home page. The video, however, doesn't simply spring up when the home page is opened. Rather, it begins with a warning. The page announces: "Warning: Graphic Abortion Video to begin in X seconds", and the proceeds to count down the time until the video starts.
So, if the Center felt it necessary to put a warning on its website before showing a graphic video about the horrors of abortion, why in the world would it think that driving the fetus-mobile around a middle school where 11- to 14-year-old children could see it would be okay? As a father, I think I would be rightfully upset, and I am on the Center's side with respect to their ultimate goal.
To repeat: I am not opposed to the Center or most of its work. Christians should be directing their energies to stopping abortion -- a blight on this world that I believe future generations will look back upon as a time of great sadness since we have legally made it possible to kill helpless, unwanted human beings. But opposing abortion doesn't mean that anything that can be done to stop abortion ought to be done. While the fetus-mobile doesn't quite reach the insane level of bombing abortion clinics or killing abortion providers, it is a poor way to reach out with our message of respect for life to a secular world.