City releases memo on Freedom of Speech; won’t stop anti-abortion protestor

The City of Des Moines released a memo related to a protestor who stands on Marine View Drive near 216th Ave. S. holding an anti-abortion sign that depicts what appears to be a dead fetus.

As we posted on Jan. 22, numerous residents have expressed concerns about the protestor and his sign, both to The Waterland Blog and directly to the city.

Many parents have also shared their concerns over young children seeing the man’s sign.

“The City has received a number of complaints in the last few weeks from concerned citizens regarding an individual demonstrating on City sidewalks with a graphic anti-abortion sign,” said Assistant City Tim George. “This issue is one that has been addressed many times across the country in all levels of courts as well as the Ninth Circuit Federal Court and the United States Supreme Court.”

The city’s statement was prepared late last week by the City Attorney’s Office, and it’s been shared with the City Council and the Des Moines Police Department.

“Understandably this exhibition has caused a public outcry due to the graphic nature of the display and has resulted in calls to the City for action to stop the demonstration,” the city said.

However – despite the public outcry, the city has decided that it cannot force the man off the public sidewalk, due to his protections under the First Amendment.

The only action the city might take “could be regulated under City Codes unrelated to speech such as the City’s Noise Ordinance or Traffic Code if the conduct interfered with pedestrian or vehicle travel,” the city added.

The city’s statement concludes:

“This case clearly states that controversial speech that may be seen by children is given the same Constitutional protection as any other type of protected speech. City intervention in this issue must be limited to actions unrelated to the content of the speech.”

Here’s the full statement (download PDF here):

Date: Jan. 22, 2015

To: Des Moines City Council

From: Tim George, Assistant City Attorney

Re: Freedom of Speech, Obscenity, and Minors

This memo provides an overview of the state of the law on Public Speech, Obscenity, and the exposure of controversial speech to minors. Recently in the City of Des Moines, an individual has been displaying a large sign on the public sidewalk exhibiting what appears to be a dead fetus presumably in support of a “pro-life” agenda. Understandably this exhibition has caused a public outcry due to the graphic nature of the display and has resulted in calls to the City for action to stop the demonstration. This memo highlights a few of the significant number of cases addressing this type of issue and ultimately concludes that City intervention must be limited to action unrelated to the content of the speech.

Public Speech:

Picketing and leaf-letting are expressive “speech” activities protected by the First Amendment. United States v Grace, 461 U.S. 171, 176, 75 L. Ed. 2d 736, 103 S. Ct.1702 (1983). The United States Supreme Court has held that citizens in public debate must tolerate insulting and even outrageous speech in order to provide adequate breathing space for the freedoms protected by the First Amendment. Speech does not lose its protected character simply because it may embarrass others or coerce them into action. NAACP v Claiborne Hardware Co., 458 U.S. 886M 910, 73 L. Ed. 2d 1215, 102 S. Ct. 3409 (1982).

Furthermore, places historically associated with the free exercise of expressive activities, such as streets and sidewalks, are considered “public forums”. Grace, at 177. In such places, the First Amendment sharply curtails the government’s ability to permissibly restrict expressive conduct.

Nevertheless “the First Amendment does not guarantee the right to communicate one’s views at all times or places or in any manner that may be desired.” Heffron v. International Soc’y for Krishna Consciousness, Inc., 452 U.S. 640, 647, 69 L. Ed. 2d 298, 101 S. Ct. 2559 (1981). A state may impose reasonable time, place and manner retractions upon all expression, whether written, oral or symbolized by conduct. Clark v. Community for Creative Non-Violence, 468 U.S. 288, 82 L. Ed. 2d 221, 227, 104 S. Ct. 3065 (1984). Such restrictions are valid if they “are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.” Grace, at 177 “A major criterion for a valid time, place, and manner restriction is that the restriction ‘may not be based upon either the content or subject matter of speech.’” Heffron, 425 U.S. at 648.

In this situation, the corner of 216th Ave S. and Marine View Drive would be considered a public forum as it has historically been used as a site for political demonstrations. The City’s ability to restrict expressive conduct at this location is sharply curtailed under the Constitution and would be limited to time, place, and manner restrictions upon all expression and only if the restrictions are narrowly tailored to serve a significant government interest. It is unlikely any restriction on speech at this location would survive constitutional analysis.

Expressive conduct at this site could be regulated under City Codes unrelated to speech such as the City’s Noise Ordinance or Traffic Code if the conduct interfered with pedestrian or vehicle travel.

Examples of state regulation of protests and expressive conduct that have been found Constitutional include prohibiting anti-abortion protestors from protesting within 30 feet of an entrance to a medical clinic, limiting the use of a “bull-horn” that produced excessive noise in violation of a nice ordinance, and arresting anti-abortion protestors who entered a roadway and created a danger to passing vehicles.


A number of citizens have questioned whether the content of the display, specifically a dead fetus, would be prohibited under obscenity laws. Obscene speech is not protected under the First Amendment.

RCW 7.48A.010 states that “lewd matter” is synonymous with “obscene matter” and means any matter:

(a) Which the average person, applying contemporary community standards, would find, when considered as a while, appeals to the prurient interest: and

(b) Which explicitly depicts or describes patently offensive representations or descriptions of:

(i) Ultimate sexual acts, normal or perverted, actual or simulated; or
(ii) Masturbation, fellatio, cunninglingus, bestiality, excretory functions, or lewd exhibition of the genital area; or
(iii) Violent or destructive sexual acts, including but not limited to human or animal mutilation, dismemberment, rape or torture, and

(c) Which, when considered as a while, and in the context in which it is used, lacks serious literary, artistic, political or scientific value.

To meet the state law definition of obscenity, the matter must meet all three requirements above. Importantly, the matter must contain some aspect of sexuality found in subsection (a) and (b).

Here, the photograph of what appears to be a dead fetus is not sexual in nature and therefore would not meet the definition of lewd matter or obscene matter under state law.

Exposure to Children:

A number of citizen comments and objections have related to the location of the demonstration along a bus route and the potential exposure of graphic images to school children. This issue was specifically addressed in the United States Court of Appeals, Ninth Circuit, in Center for Bio-Ethical Reform v. Los Angles County Sheriff’s Department (download PDF here). In this case, the Center for Bio-Ethical Reform posted large images of first term aborted feasts on the sides of trucks and drove them around local schools in the Los Angeles area in order to expose school children to the “reality of abortion.” After receiving complains from school officials, the Sheriff’s Department stopped one of the trucks and ordered the vehicle not to return to the area of the school. The Center subsequently sued the Sheriff’s Department.

The Court found that “the government cannot silence messages simply because they cause discomfort, fear, or even anger; in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.”

In regards to children, the Court went on to state:

[c[hildren 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 “minors” exception to the prohibition on banning speech because of listeners’ reaction to its content. 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. Center for Bio-Ethical Reform at p. 790.

This case clearly states that controversial speech that may be seen by children is given the same Constitutional protection as any other type of protected speech. City intervention in this issue must be limited to actions unrelated to the content of the speech.


9 Responses to “City releases memo on Freedom of Speech; won’t stop anti-abortion protestor”
  1. speters says:

    City of Des Moines RCW 7.48.120
    Nuisance defined
    Nuisance consists in unlawfully doing an act, or omitting to perform a duty, which act or omission either annoys, injures or endangers the comfort, repose, health or safety of others, offends decency, or unlawfully interferes with, obstructs or tends to obstruct, or render dangerous for passage, any lake or navigable river, bay, stream, canal or basin, or any public park, square, street or highway; or in any way renders other persons insecure in life, or in the use of property.
    [Code 1881 § 1235; 1875 p 79 § 1; RRS § 9914.]

    State of Washington RCW 9.66.010 Public Nuisance
    A public nuisance is a crime against the order and economy of the state. Every place

    (1) Wherein any fighting between people or animals or birds shall be conducted; or,

    (2) Wherein any intoxicating liquors are kept for unlawful use, sale or distribution; or,

    (3) Where vagrants resort; and

    Every act unlawfully done and every omission to perform a duty, which act or omission

    (1) Shall annoy, injure or endanger the safety, health, comfort, or repose of any considerable number of persons; or,
    (2) Shall offend public decency (dead fetus photos)
    (3) Shall unlawfully interfere with, befoul, obstruct, or tend to obstruct, or render dangerous for passage, a lake, navigable river, bay, stream, canal or basin, or a public park, square, street, alley, highway, or municipal transit vehicle or station; or,
    (4) Shall in any way render a considerable number of persons insecure in life or the use of property; (a public sidewalk and street)
    [1994 c 45 § 3; 1971 ex.s. c 280 § 22; 1909 c 249 § 248; 1895 c 14 § 1; Code 1881 § 1246; RRS § 2500.]

  2. BirchCreek says:

    Thank you City Des Moines for your thoughtful, and well reference, reply.
    I was surprised at how quickly citizens are ready to take away the speech rights of others just because they find them uncomfortable.

  3. AB in DM says:

    Isn’t it funny how all of the little tyrants came out of the woodwork on this guy exercising his Constitutional rights? I am embarrassed for my fellow citizens and their utter lack of knowledge about our founding document.

    These same folks will just as quickly stifle all other rights ensconced in the Bill of Rights when it becomes inconvenient for them. Nobody has a right to NOT be offended. If you don’t like what this guy has to say, just avert your eyes. Afraid your poor children can’t handle the sight? Take another route. So simple.

    • speters says:

      I can assure BC & AB that when the founding fathers wrote the Constitution they never thought some old flake would be standing on a road with his fifth on public display.

    • Rick says:

      I don’t think us “little tyrants” want to stifle the man’s free speech. I’m happy to let the freak protest, just loose the offensive sign. It’s a public nuisance. To that extent, sorry, yes, I do have the right to not be offended.

  4. Cassie says:

    Ahem, folk, perhaps a lesson in constitutional law would help here. NOT ALL FORMS OF SPEECH ARE PROTECTED.

    There is case law against harmful, obscenity, and fight words or displays. The city lawyer chose to cite the sexual nature clause but other case laws and federal exceptions to freedom of speech apply here. The fact that it would be a challenge perhaps is what is keeping DM from making an effort.

    Oh by the way to the DM Council, PD, and Lawyer, um the naked form to me is sexual in nature, because storks don’t bring babies, as you may believe… Babies come from sexual contact, except in one case WAY back when. There are those in our society as sad as it is, that pass this guy that perhaps find the naked child a sexual display, they are nude.

  5. Rick says:

    Thanks for the reply DM, but afraid it isn’t very thoughtful. Nobody is arguing this man’s right to protest. Rather we are all offended by him. I would think speters post, above, defining public nuisance, spells out a more apropos reason to rid our city of this blight. There are a lot of us who are offended.

  6. Rhonda says:

    This man is a nuisance! I was up at MRHS today and this man was standing out there, admittedly on the “public” sidewalk, with his abhorrent sign facing into the classrooms. I am NOT a tyrant and although I disagree with this man, I have never felt as though he didn’t have the right to protest. What he DOES NOT have the right to do is disrupt my daughter’s education, which he does everytime a student points out the window to let his or her classmates know that the “gross old abortion guy” is outside. How, pray tell, can I “take another route” or can my kid when she’s sitting in school?

    I am disgusted by his smug attitude and disgusting signage.

  7. Bill says:

    Free speech. Maybe we should do something about that pesky little loophole, whatever amendment it is…….

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