Some signs used by pro-life protesters to spur a public reaction against abortion may be graphic, but that doesn’t mean they’re illegal and can be confiscated, according to a new ruling from the Minnesota Supreme Court.
The decision reversed the criminal convictions of pro-life protesters Ron Rudnick and Luke Otterstad, who displayed the signs on an overpass in the Twin Cities suburb of Anoka during the run-up to the 2004 national elections.
One sign displayed a large color photograph of an aborted infant; the other branded a local congressional candidate as “pro-abortion.” The two were jailed by police, their signs were taken away, and they were convicted of causing a “criminal nuisance.”
But the state’s highest court unanimously reversed the convictions, determining that prosecutors simply failed to prove their case: that the signs created any danger to the public.
“Our decision does not foreclose the possibility that some sign might distract motorists in such a way as to endanger the public and constitute a public nuisance. Nor does our decision require a police officer on the scene to wait until an accident occurs or is threatened before intervening. An officer can and should use his or her experience and expertise to determine whether a sign constitutes a danger to a considerable number of members of the public before that danger manifests itself in injuries,” the court opinion said.
“But to maintain a conviction … for endangering the safety of the public, the state must prove through testimony and evidence that the public was in fact endangered. Here, the state has not done so,” the opinion said.
“Graphic photos are controversial even among pro-lifers,” said Tom Brejcha, chief counsel of Thomas More Society, which argued the case. “We urge that they be used prudently and sparingly – with warning signs wherever possible.
“But our society has to confront the brutal, bloody realities of this murderous atrocity, as mere abstract rhetoric too often fails to trigger the deep, visceral reaction needed to overcome contemporary America’s bland indifference to this carnage,” he said.
The protesters were arrested and jailed twice for holding the signs in view of traffic in Anoka. Fines and prison sentences were imposed, although they were suspended pending the appeals.
But the court’s conclusion in the case said the prosecution hadn’t proven the signs were a criminal “nuisance” or that the city’s sign ordinance even applied. Two other justices agreed with former NFL star-turned-judge Alan Page that the defendants’ First Amendment rights were violated because the prosecution was “content-based,” or targeting the pro-life message.
“It is impossible to convey certain messages, including the message that pro-lifers Rudnick and Otterstad sought to convey – with all its emotional content – without the use of graphic anti-abortion images,” Brejcha said. “The First Amendment protects political speech that is annoying and even offensive, including speech that stirs people to anger or produces deeply unsettling effects. Those who disagree with a speaker’s message must not suppress or criminalize it, but answer it with more speech.”
Justice G. Barry Anderson, who wrote the main opinion for the court, said the two men described their actions as “a protest against abortion and Patty Wetterling’s candidacy for the U.S. House of Representatives.”
But, “as evidence of a danger to the public, the state presented: the fact that an anonymous phone call was made about the signs; the fact that an accident occurred … and that a second accident occurred earlier; the fact that a driver … yelled at appellants that they had created a traffic hazard, and the nature of appellants’ display,” Anderson wrote.
“None of those pieces of evidence, alone or in the aggregate, establishes that appellants’ signs endangered a considerable number of members of the public,” he wrote. “In short, nothing in the record connects the accidents with the display.”
In Page’s concurring opinion, he noted that “it is clear on this record that the state’s prosecution of appellants under that statute was content-based and therefore barred by the First Amendment.”
“[A]bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content,” the concurrence said.