[JURIST] The US Court of Appeals for the Ninth Circuit ruled [opinion, PDF] Wednesday that the First Amendment protected an anti-abortion group's right to display graphic pictures of early-term aborted fetuses outside of a California middle school. The Center for Bio-Ethical Reform (CBER) [advocacy website], a pro-life advocacy group, filed a lawsuit [complaint, PDF] in federal court in 2003 against the school and the Los Angeles County Sheriff Department after sheriff's deputies acting under California Penal Code § 626.8 [text] stopped two of its members for circling a Rancho Palos Verdes public school in a large truck plastered with the images. The court found that the deputies and the school were protected by the doctrine of qualified immunity [backgrounder] with respect to the CBER's First Amendment violation claim, but it distinguished between constitutionally problematic statutes which criminalized expressive behavior based on the disruptive content of the expressed message, and those that criminalize disruptive means of expression. Judge Harry Pregerson wrote:

As a whole, the language of § 626.8 does not evidence any intent to criminalize a person’s behavior based on a listener’s reaction to the content of his speech. We thus conclude that the California courts would construe § 626.8 to apply to speech only when the disruption caused by the speaker is caused by the manner of the speech. Controversial words and images that, because of their content, upset the listener and cause the listener to behave disruptively are not covered by the statute.

Under our narrow construction, § 626.8 does not apply to Plaintiffs’ conduct in driving their trucks around Dodson Middle School….Construing § 626.8 as we do, the statute provided no basis to prohibit Plaintiffs from continuing to drive their vehicles around the school before classes began.

Section 626.8 was the only authority cited by Defendants in asking Plaintiffs to leave, and thus provided the only possible source of a significant governmental interest necessary to restrict Plaintiffs’ speech in a public forum…Misapplying a statute is not a significant governmental interest. Defendants have suggested no other significant governmental interest to justify restricting Plaintiffs’ speech. We therefore hold that the Deputy Sheriffs violated Plaintiffs’ First Amendment right of free speech.

Relying on a similar interpretation of the First Amendment, the Court of Appeals for the Ninth Circuit in January upheld the right of Arizona residents to purchase specialty license plates bearing the slogan "Choose Life" [JURIST report]. That court ruled [opinion, PDF] that the Arizona License Plate Commission violated the First Amendment free speech rights of the Arizona Life Coalition (ALC) [advocacy website] when it refused an application to print the group's anti-abortion message on state-issued license plates in 2002. The court explained that the Commission's actions constituted viewpoint discrimination in violation of the First Amendment because they ultimately denied the ALC's application based on the content of their message.