The case started in 2005, when abortion protesters did just that outside St. John's Cathedral in Denver on Palm Sunday. Parishoners were upset, especially since children were at church that day, and the church sought an injunction against the protesters. It was granted, but the protesters think it violates their rights.
The injunction states that the protesters are barred from displaying posters "depicting gruesome images of mutilated fetuses or dead bodies" that may be seen by children under twelve on Sundays from 7 a.m. to 1 p.m. and also half an hour before any religious service starts and half an hour after it ends. In addition, the protesters cannot shout in a way that would disturb church services.Protesters Kenneth Scott and Clifton Powell appealed the court-ordered injunction, but were unsuccessful. The appeals court justified the injunction by saying it was "narrowly tailored" in the interest of protecting children. After the Colorado Supreme Court declined to hear the case, Scott and Powell appealed to the U.S. Supreme Court with help from the Chicago-based Thomas More Society, a national pro-life law firm. On Monday, the nation's highest court also declined to weigh in but did not give a reason why.
"Obviously, we're disappointed that the court didn't take the case, but it's frankly never unexpected -- because the odds are worse than a hundred to one," says Tom Brejcha, president and chief counsel of the Thomas More Society.
But Brejcha expects that the high court won't be able to ignore the issue for long. Lower courts have split on cases involving what Brejcha terms "content-based censorship" for the benefit of children, and he says the court's refusal to hear the Colorado case will make the subject even more pressing in the future. "This is a very, very serious issue that is really at the cutting-edge of First Amendment law," he says, "and it will be there more prominently now that the court has declined to hear this case."
In their petition to the Supreme Court, lawyers for Scott and Powell argued that the protesters believe the fetus photos are necessary "to show exactly what the abortion produces." To back up their argument, they cited examples from history.
"Photographs of Holocaust victims similarly helped show the evil of Nazism in ways words could not easily convey," the petition says. It also mentions the case of Emmett Till, who was lynched in 1955. "Photographs of Till's body in the coffin published in Jet Magazine became powerful images of the civil rights movement," it notes.
Brejcha notes that the petition received support from a wide array of First Amendment scholars, including two past presidents of the American Civil Liberties Union. Religion scholars weighed in as well, as did art historians. "Photographs, especially gruesome photographs, can speak with a power that text often cannot," wrote an attorney who filed an amicus curiae brief on behalf of several art historians and professors.
The Thomas More Society will be watching for similar cases, Brejcha says, and will likely continue to ask the Supreme Court for its opinion. "We'll be keeping track," he says.