Are Protests With Gruesome Imagery on Landis Constitutional?

If you’re a frequent flyer at the Student Union or Landis Green, chances are you’ve seen people protesting. The subject of these protests varies, but most of them make their point by using signs with verbal political messaging. 

However, some of these protests will have images on them; some even have gruesome images. The subjects of these protests on the Green and outside the Integration Statue range from war to abortion and everything in between.

The basis of this article has nothing to do with a practical argument about whether or not these protesters are morally wrong for using these images. It most certainly doesn’t intend to take a stance on the subjects of the protests either. Rather, the question at hand asks whether the First Amendment protects this type of protesting on campus.

Obscenity

While some might categorize this speech colloquially as obscene, it’s important to make the distinction that, constitutionally speaking, the gruesome imagery doesn’t qualify that way. What does make something qualify as obscene is actually sort of surprising — it basically just pertains to sexual material. 

The test used to determine what does and doesn’t count as obscene was created in the case Miller v. California. The Miller test requires the fulfillment of three conditions. One, the speech is prurient (pruriency means having an “unhealthy” interest in sex). Two, the speech is offensive to the average adult. And three, there is no political or social value in the speech.

These conditions are intentionally vague, markedly the first one; good luck figuring out what a “healthy” interest in sex is as it pertains to speech. This is to give more protection to speech as opposed to less, lots of speech that could probably be classified as obscene is seldom prosecuted for this reason.

Ginsberg’s Implications

Why do I bring all of this up if it doesn’t even apply to gruesome imagery protesting on campus? Simply, I think that understanding the line of reasoning behind the Miller test helps explain why the gruesome imagery protests as they exist on campus may at least be limited in its protection by the First Amendment.

Even though obscene speech is still rarely prosecuted, the legal justification behind allowing that legal framework at all has to do with an interest in protecting the public. Not only that, it helps us understand another case that deals with distributing graphic material to minors, Ginsberg v. New York. 

Ginsberg v. New York sets the precedent that distributing graphic material (that is not technically obscene for adults) to minors is illegal. This precedent of making the protection of minors from that speech paramount, along with the idea from Miller that the public should be protected from obscene material, leads us to our final precedent destination.

Saint John’s Church in the Wilderness v. Scott was a case that relates very closely to the kinds of gruesome imagery protests we see on campus. A group organized a protest with gruesome images to be displayed outside of a church. The group knew there were many children in the church and made it so they were visible to those children when the church-goers came outside for a scheduled activity.

The Colorado Supreme Court ruled that it was unlawful to have gruesome (mind you, not obscene) imagery in an area where children could clearly see it. The United States Supreme Court rejected the writ of certiorari from the protesters, so the precedent of not allowing gruesome imagery in an area where children can see it is binding law.  

Vulnerable, Captive Audience 

So, this begs two questions. One, can the gruesome imagery protesters on campus have their signs out in public where children very well could be exposed to them? Two, is the general public being forced into being a captive audience because of the way some of these protesters choose to place their signage?

For question one, it certainly seems like following the precedent set by the Saint John’s Church case tells us the imagery placed in public is not protected by the First Amendment. Would placing a gruesome sign in the middle of a public park be protected under the understanding of the law that Saint John’s provides us? Probably not.

It’s reasonable to expect children to be walking around FSU with their older siblings and parents in much the same way it’s reasonable to see them at a public park. Perhaps this means that these gruesome signs are not protected.

For question two, it also seems like the public is being forced to view the posters without an upshot. Looking at the way obscenity law intends to protect the public from disturbing imagery (although this certainly differs from obscenity because of the political value and lack of prurient nature associated with these signs), it would follow that the same treatment might be applied to captive audiences in public spaces.

Maintaining the Health of the First Amendment

This is not to say gruesome imagery shouldn’t be allowed in protests. Its use can be very effective in creating change. However, there’s a delicate balance here between protecting the public and speech. Frankly, I’m not wise enough to find that perfect mean. 

Perhaps a warning sign before being exposed to the images could ensure the protesters are protected but also negate the problems pointed out in the previous two questions. 

It isn’t a matter of whether this type of protest should exist on campus, but rather whether or not it’s constitutional as it exists. I think that it’s reasonable to say the way it currently exists might not be protected.

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