Ninth Circuit Says “NO” To Heckler’s Veto, “YES” to CBR’s RCC Outside Of Schools

Dear Pro-Life Friends,

On July 21, 2008, we received an e-mail message from a seventeen-year-old girl who lives in Toledo, OH.  She had just seen some of our CBR abortion video and photos.  Her response proved once again how powerfully these images can cut through the fear and confusion which surrounds crisis pregnancy and abortion:  “I am currently pregnant and thought about getting … [an abortion] and my sister told me about this website so I looked and totally changed my mind.”

The pictures which “totally changed” her mind about killing her baby are the same photos we display on the sides and backs of the huge box trucks we drive around middle schools and high schools as students are arriving at the start of the class day.  And on July 2, 2008, the United States Court of Appeals for the Ninth Circuit affirmed our First Amendment right to do so.  The thirty-four page Ninth Circuit decision (which you can read in its entirety on our website at: overturned a U.S. District Court ruling which had gone totally against us.  We had unsuccessfully sued the Dodson Middle School and the Los Angeles County Sheriff’s Department for threatening us with arrest if we ever again drove our aborted baby billboard trucks within sight of this school.  After getting hammered by the District Court, my first reaction was despair over what seemed the great misfortune of having gotten tangled up with exceptionally incompetent school administrators and sheriff’s deputies and a very confused judge, all in the same case!  But for Christians, there is no such thing as “fortune” and what man intended for evil, God used for good.  (Please see also these article links on our website:  Associated Press, July 2, 2008, “Court rules for anti-abortion activists in LA case” and, TV, Los Angeles, July 2, 2008, “Rights Violated After Aborted Fetus Pics Removed From Campus.”) 

But by losing so badly in District Court and then winning so resoundingly on appeal, we obtained a written appellate decision which is long and detailed and which unambiguously confirms our right to show students the truth about abortion.  It is now binding precedent far beyond California.  The Ninth Circuit covers Alaska, Arizona, Hawaii, Idaho, Montana, Nevada, Oregon and Washington (as well as Guam and the Northern Mariana Islands) and the decision will have influence in jurisdictions even where it isn’t binding.

This case is important because the court reaffirmed a long-standing principle by stating that “the government cannot silence messages simply because they cause discomfort, fear or even anger” — or as the Court said elsewhere, speech which “is unpopular with bottle throwers.”  This legal principle is called the “heckler’s veto” and it simply means that hecklers will not be given a veto over speech or photos by which they are offended.  And we do, of course, frequently encounter “hecklers” who are eager to “veto” our abortion photos by “throwing” objects at us.  The Appellate Court’s opinion documents this fact:

On the day Plaintiff’s [CBR] were at Dodson Middle School, Assistant Principal [Art] Roberts observed some children stopping on the sidewalks and staring at the photographs of aborted fetuses, while others momentarily stood in the middle of the street.  Faculty members also reported ‘abnormal’ difficulty getting children onto the campus.

Assistant Principal Roberts … saw a number of children express anger over Plaintiff’s graphic display.  He also overheard a group of boys planning to throw rocks at the truck.  The group disbanded only after Roberts confronted them.  Assistant Principal Roberts observed two or three girls crying.  He also said that at least one class spent time discussing the truck’s displayed images of aborted fetuses.

But the opinion also quotes the section of my discovery statement which explains why we must use these shocking photos despite the fact that students are invariably upset by them:

Gregg Cunningham, [The Center for] Bio-Ethical Reform’s Executive Director, acknowledged in his deposition that he has seen students ‘faint,’ ‘become physically ill,’ ‘weep,’ ‘avert their gaze,’ and ‘leave the room’ in response to these pictures.  Cunningham said that the ‘typical’ reaction is disbelief.  He defended …[CBR’s] display of aborted fetuses, saying that ‘[s]tudents are routinely exposed to disturbing images, whether it’s airliners exploding into skyscrapers or choose your atrocity.’  Cunningham also asserted that exposing children to such pictures is the best way to teach them about the ethical issues involving abortion:  ‘You can’t teach inexpressibly horrific historical fact … [by relying exclusively] on the written or spoken word.  Teachers who teach about racial injustice use pictures of black people being beaten to their knees for trying to register to vote.’  

The Court’s opinion also quotes CBR’s belief that “students who are old enough to have an abortion, are old enough to see an abortion.”  The judges further discussed our conclusion that students who are shown an abortion are far less likely to have one.

All of which begs the question:  If an early, unborn baby is “just a blob of tissue,” why would a photo of an aborted, first-trimester fetus “upset” or “anger” students?  The administrators at Dodson Middle School weren’t concerned that students were having abortions; they were concerned that students were seeing abortions.  Their real fears were almost certainly political but they dared not admit that they didn’t want students to change their minds about “a woman’s right to choose.”  So they dummied up absurd safety arguments.

What was really going on here was pure trial tactics.  School officials and the Los Angeles County Sheriff’s Department were attempting to nullify the “heckler’s veto” doctrine by creating a “children’s exception.”  Their argument was that since abortion photos are distracting and because middle school and high school students are more easily distracted than adults, our photos should be banned from streets near schools for safety reasons.

The disingenuous Mr. Roberts asserted that “The students’ arrival causes ‘heavy traffic’ around the school.  This traffic can become a safety hazard when drivers or pedestrians become upset, angry or distracted.”  Thank Heaven, the Court quickly dismissed this absurdity.  Should we criminalize every distraction to which kids might be exposed as they arrive at school?  Should sheriff’s deputies abandon speed traps and set up “sign traps” to ambush drivers of box trucks which display distracting signs?  Advertising signs are designed to distract!  That is the whole idea!  Should the McDonald’s hamburger delivery trucks which display giant photos of “Quarter-Pounders wth Cheese and Bacon” be banned for fear that students who believe “meat is murder” might, because of their youth, more easily become “upset, angry or distracted”?

Our three-judge panel did acknowledge that students might more easily become “upset, angered and distracted.”  And they also conceded that these reactions could have safety implications.  But the Court, nonetheless, flatly rejected the Defendants’ attempt to grant students a “heckler’s veto” on safety or any other grounds:

Children may well be particularly susceptible to distraction or emotion in the face of controversial speech, and may not always be expected to react responsibly.
* * *
There is, however, no precedent for a ‘minor’s’ exception to the prohibition on banning speech because of listeners’ reaction to its content [the Court also noted that there has never been a single reported case which has dealt with the subject].

It would, therefore, be an unprecedented departure from bedrock First Amendment principles to allow the government to restrict speech based on listener reaction simply because the listeners are children.
* * *
Unless we create a new exception to the “heckler’s veto” doctrine (which we do not do), applying Section 626.8 to Plaintiff’s [CBR’s]speech would be unconstitutional.

The Court went on to note the obvious fact that the California Legislature could theoretically enact a statutory minor’s exception to the ban against “hecklers’ vetoes.”  But the judges declined to speculate on the hypothetical constitutionality of such an effort.  It seems unlikely, however, that this Court would embrace the State’s attempt to create a minor’s exception after rejecting the County’s effort to do the same.  The fact that the State might use the legislative process where the County employed a litigation strategy in a futile attempt to achieve the same purpose seems irrelevant.  It is the violence which would be done the First Amendment and difficulty of applying such a subjective exception which would almost certainly bring it down.  We can assure you, however, that in the unlikely event that such an exception were created by the State, we stand ready to litigate it all the way to the U.S. Supreme Court.  For any judge to essentially declare that it is safe for students to have abortions but unsafe for them to see abortions, would be too perverse to pass even the lowly “snicker test.”

The Court also ruled that it was unreasonable for sheriff’s deputies to detain our drivers for seventy-five minutes while the officers struggled in vain to find something with which to charge us.  The judges remanded the case to the trial court to determine, among other things, whether the search of our vehicles was properly conducted in terms of obtaining our permission to do so (our staff denies the proper permission was ever requested or granted).

The Appellate Court emphasized that we had merely driven past the school without engaging in behavior which was, in and of itself, disruptive.  This is yet another example of our careful planning and training paying major dividends.  When we show horrifying photos, our conduct is unfailingly lawful, reasonable and respectful.  We don’t give the police or the courts any excuse to change the subject and make us the issue.  Our refusal to trespass, or make excessive noise, or block vehicular or pedestrian traffic, etc., denies our adversaries any opening to ban our presence because of our behavior — when their real motive would be to suppress our photos.

Perhaps most amazingly, the Los Angeles Times, July 3, 2008, quoted Planned Parenthood officials in a bizarre story headlined “Federal court upholds abortion foes’ 1st Amendment rights”:

Mary-Jane Wagle, chief executive of Planned Parenthood, Los Angeles, said her group was concerned that young children may be exposed to graphic and jarring images without proper discussion in school or at home.

‘Certainly we know they will be horrified, but will they understand what they see?  We don’t know,’ Wagle said.  ‘We really believe that what’s important is for families to talk about these issues at home, in a safe place.’  

She admits that our pictures of what she does to babies all day long at Planned Parenthood are “graphic” and “jarring” and “horrifying” but she is going to keep doing it anyway!  And what would be the proper discussion to have with students who see this “horror”?  How about, “Don’t kill your baby!”  She wants the discussions to take place somewhere that is “safe” for born children but she has no regard for the “safety” of the unborn children for whose “horrifying” slaughter she is responsible.  Will students “understand what they see?”  We have yet to encounter any student who did not understand that our photos depict an act of violence which kills a baby.  These abortionists are so confused that we couldn’t possibly make up the things they say!

This impulse to cover up these photos has become so pervasive that even some pro-life organizations and Christians side with the pro-aborts in hiding the visual reality that abortion is an act of violence that kills a baby.  These pictures make everyone so nervous that almost no one wants to mention them, much less show them!  If we don’t show the truth, we certainly can’t count on others to do it for us.

But we know that they save lives and bring sinners to repentance and motivate slackers to get involved in pro-life activism.  That is why we are so thankful for your willingness to help us show the truth!

Lord bless,

Gregg L. Cunningham

Executive Director

P.S.  On July 17, 2008, a twenty-eight-year-old healthcare professional from Georgetown, TX, wrote us after seeing our abortion video and here is what she had to say:

“I knew abortion was disgusting; I knew it was murder.  I never thought of it as genocide or that it was comparable to the Holocaust until I visited your website.  I am a Neonatal ICU nurse and have cared for infants that were younger than the 24-weeker you showed that was murdered by abortion who not only lived but flourished in the long term.  The denial of their basic right to life is criminal.  The pictures spelled out to me how fully formed a baby is early in the pregnancy.”

If a neonatal intensive care unit nurse needed to see the pictures to fully understand the truth about abortion, you can imagine how much ignorance there is among students.  Please help us reach more of them!

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Posted in News, Politics, Press Release, Social Reform, Truck Billboards (RCC)

how much longer will we remain silent?

I will use my life to save theirs…