‘Grisly’ images allowed at antiabortion protests
Shopping centers in California that allow demonstrations by antiabortion groups must permit displays that might be considered “grisly or gruesome” under a ruling that the state Supreme Court left intact Wednesday.
The case, from Orange County, is an offshoot of the state high court’s landmark 1979 ruling declaring a right, under the California Constitution, to engage in political speech and activity at shopping malls. While the U.S. Constitution protects free speech only from government interference, the state court said a large shopping center was the modern equivalent of a town square or meeting place where people came to exchange ideas as well as spend money.
In the current case, an antiabortion group called the Center for BioEthical Reform wanted to picket shopping centers in Irvine and Newport Beach in 2015 to protest alleged contributions to Planned Parenthood by companies affiliated with stores at the centers.
The Irvine Co., which owns the centers, said it would allow peaceful protests outside the stores but would not permit “grisly or gruesome displays.” One of the picket signs showed an image that the group described as a 7week embryo “moments before abortion” and another displayed an 8week fetus “moments after abortion” with a severed head and body parts displayed.
The organization challenged the center’s regulation and put its demonstrations on hold to await a final ruling. In July, a state appeals court said the shopping center could impose some restrictions, such as keeping the protesters away from store entrances and prohibiting them from using body cameras that could take videos of passersby. But the court said the “grisly or gruesome” ban violated free speech.
Noting that the shopping center would allow images that it considered beautiful or pleasant, the court said, “These value judgments are precisely what our Constitution protects against” by safeguarding freedom of expression.
The mall’s rule is “a contentbased restriction,” Justice David Thompson said in the 30 ruling by the Fourth District Court of Appeal in Santa Ana.
Although another state appeals court in 1987 upheld an identical restriction on demonstrations at a shopping mall, Thompson said courts have given stronger protections to free speech since then. He cited a 2010 U.S. Supreme Court ruling that struck down a federal law banning the sale of videos showing cruelty to animals and the high court’s 2011 ruling overturning California’s ban on the sale of violent video games to minors.
In a separate opinion, Justice Richard Aronson said restrictions on public displays of “horrifying and graphic speech” might be justified to protect young children from longlasting psychological harm, but there was no evidence that the displays in this case would harm youngsters who visited the shopping center.
The center’s owners did not appeal the ruling, but the state’s high court said Wednesday it had considered, and rejected, a proposal to review the case on its own. The court left the appellate decision on the books as a binding precedent for trial courts statewide.
Attorney Robert Muise of the American Freedom Law Center, which represented the antiabortion group, said the court’s action was a victory for free speech.
“The speech that needs the most protection is speech that some people consider offputting,” he said. “The images convey messages that words are incapable of conveying.”
A lawyer for the shopping center could not be reached for comment.
The case is Center for BioEthical Reform vs. The Irvine Co., S257750.