November 22, 2014

Colorado Court of Appeals: Prohibition on Demonstrating with Gruesome Images on Posters Was Narrowly Tailored and Supported by Compelling Government Interest

The Colorado Court of Appeals issued its opinion in St. John’s Church in the Wilderness v. Scott on April 26, 2012.

First Amendment—Law of the Case Doctrine.

This appeal followed the remand ordered in St. John’s in the Wilderness v. Scott, 194 P.3d 475 (Colo.App. 2008) (St. John’s I).The order was affirmed.

Plaintiffs, St. John’s Church in the Wilderness and two parishioners, Charles I. Thompson and Charles W. Berberich, brought claims for private nuisance and conspiracy to commit private nuisance against defendants Kenneth Tyler Scott and Clifton Powell. Specifically, defendants had demonstrated their opposition to abortion and homosexuality on the public street and sidewalk across the street from the church during an outdoor Palm Sunday service that began on Church property. Defendants shouted and carried signs, some of which included images of aborted fetuses.

On appeal, defendants contended that St. John’s I wrongly abridged their First Amendment rights and, because controlling law had changed since St. John’s I was decided, the Court of Appeals need not follow it as law of the case. St. John’s I expressly addressed the arguments that defendants raised here, and the new cases cited by defendants follow established precedent. Therefore, the Court declined to address those issues decided by St. John’s I.

Defendants also contended that the trial court failed to obey directions imposed in St. John’s I. On remand, the trial court removed “at all times on all days” and added “on days on which they engage in any conduct proscribed by this injunction.” Although the original prohibition was vacated, the court did not abuse its discretion with this new language.

Defendants further contended that prohibiting speech that causes parishioners “to become physically upset” and the prohibition from carrying posters “depicting gruesome images of mutilated fetuses or dead bodies” impermissibly restrict their First Amendment rights. The prohibition related to speech causing members of the congregation “to become physically upset” was vacated. Plaintiffs conceded that prohibiting “shouting or yelling . . . in a manner reasonably calculated to . . . disrupt parishioners’ ability to worship” and the church’s “ability to use its property for worship services” adequately protects their interests. On the other hand, the language prohibiting the gruesome posters was affirmed. The court determined the prohibition was narrowly tailored, and was supported by a compelling governmental interest in protecting children from disturbing images.

Summary and full case available here.

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