Bad facts make bad law: Court okays police action against protestors with anti-abortion signs

Frye v. Kansas City Police Dept., 2004 U.S. App. LEXIS 15366 (8th Cir.) July 26, 2004 Filed

Police arrested five anti-abortion demonstrators who waved giant pictures of aborted fetuses about two feet from a busy intersection in Kansas City, MO in 2001. Police said that drivers were nearly running into the backs of other vehicles. They arrested demonstrators who did not move further away from the road.

The demonstrators sued the police, claiming violation of their federal constitutional rights of free speech and assembly, equal protection, and freedom from false arrest.

On July 26, 2004, the 8th Circuit court affirmed the lower court's ruling that the police officers granting the police qualified immunity.

Click below for my analysis and how this could apply to library meeting rooms.

This case interests me because it raises the "heckler's veto" aspect of the First Amendment - an aspect that directly affects libraries that have meeting rooms. Library meeting rooms are a type of public forum, and groups that book them cannot be turned away because they have an offensive message - whether it's anti-abortion, pro-abortion, pro-Aryan or whatever -- even if the library expects the group to attract an angry crowd.

Courts jealously guard citizens' controversial and shocking messages because speech "may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger." (Terminiello v. Chicago).

Safety is important, without question. Hardly anyone wants more traffic accidents or riots. But the CONTENT of the signs should not be the deciding factor. In the Frye case, protestors were singled out on the basis of the content of their message (and the viewers' response, i.e. the "heckler's veto).

Judge Beam's dissent supplies additional facts which show that content was a factor in Frye:

Sergeant William Wranich also testified about the scene. He observed that drivers were pulling over, not because of an impaired view, but because some of appellants' signs offended them. He also describes the order to remove the signs:

A. They were given an option to remove the signs, but they could protest as long as they weren't using the offensive signs.

Q. Do you recall any officer ordering that specific signs be confiscated?
. . .
A. The order was that anyone holding the sign, refusing to give up the sign would be arrested.
. . .
Q. Okay. And when you say they were given a chance to put down the sign, did that include all of the signs that were present that day?

A. It was the offensive signs, the ones that the traveling public had complained about that were offensive.

The record shows that Captain Tarwater told the demonstrators that "if they refused to put away the disturbing, graphic photos, they would be placed under arrest." And the tickets the officers issued charge that the appellants "did unlawfully . . . obstruct a public street by hindering or impeding the free and uninterrupted passage of traffic, by displaying graphic matter causing a traffic hazard by causing drivers to become emotionally distraught and causing them to swerve and slam on their brakes."

Libraries should make sure their policies and procedures are truly content neutral. As Judge Beam wrote in his dissent, the city could have passed a content-neutral safety ordinance: "If signs create a visual distraction, a city can regulate, within limits, how close protestors can stand to the street. It can limit the size of signs. But it can't choose which messages demonstrators can display near the street."

I know that's not much help to libraries faced with white supremacists who want to book a meeting room. The York (PA) Martin library was sued by the ACLU when it required a $1 million in liability insurance and a bond to cover security costs from the white supremecist group, the World Church of the Creator. I read that the library and the group came to a settlement agreement: no bond and no more than 25 people allowed in. Not sure if that is accurate, how it turned out, or if the library then had to apply the same policy to future groups. If someone knows more, let me know.

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I just read Eugene Volokh's post on this case, and he points out the 8th Circuit also ignored the Supreme Court's 1975 decision striking down a city ordinance that banned drive-in theaters from showing movies with even brief scenes of nudity.

"By singling out movies containing even the most fleeting and innocent glimpses of nudity the legislative classification is strikingly underinclusive. There is no reason to think that a wide variety of other scenes in the customary screen diet, ranging from soap opera to violence, would be any less distracting to the passing motorist." -Erznoznik v. City of Jacksonville

Comments

[Fred Meone]

Here's a story about bad law that you won't believe...
http://www.startribune.com/stories/357/4921352.html