Anti-abortion activists had a right to display graphic photographs of aborted fetuses outside a public middle school, the 9th Circuit ruled.
The court reversed the district court's ruling that the speech was disruptive and violated a state penal code.
Judge Pregerson said the code, if applied to the aborted fetus photos, would "appear to be just the kind of accession to the heckler's veto outlawed by the case law."
Members of the Center for Bio-Ethical Reform drove a truck displaying enlarged pictures of first-term aborted fetuses around the perimeter of Dodson Middle School in Rancho Palos Verdes, Calif., in order to "discourage teenage abortion."
The school called the Los Angeles Sheriff's Department, and officers stopped the truck, searched it and ordered the driver to take the "Reproductive Choice Campaign" elsewhere. One deputy allegedly explained that the protest violated a state penal code, and that the anti-abortionists had to leave because they were "driving these pictures around the school with offensive language, and ... scaring kids."
The protesters sued the sheriff's department, the assistant principal of the school and several individual officers, claiming the defendants unconstitutionally suppressed their speech under the guise of enforcing a penal code.
The appellate court expressed "serious concerns about the constitutionality of the statute as applied," but ultimately did not rule on its constitutionality. The court found that the code prohibiting disruptive speech did not apply to the plaintiffs, because it restricts the manner - not the content - of disruptive speech.
The court rejected the argument that the circumstances of the case, including the fact that the recipients of the message were children, made the protest disruptive.