A Colorado Case Raises Key Questions About When a Demonstration Becomes A Private Nuisance, and How Much Gory Material Children Should Be Able to Be Exposed To


The U.S. Supreme Court recently declined to grant review in the very interesting case of Saint John’s Church in the Wilderness v. Scott. In this column, I’ll discuss the opinion of the Colorado Court of Appeals in the case, and the issues that it raises.

The Denver, Colorado case arose when two men, Kenneth Tyler Scott and Clifton Powell—and five or six other people—led a demonstration on Palm Sunday near the Church in question, in order to protest against abortion and homosexuality. The demonstrators positioned themselves in the street, across the street, and on their own parked cars.  At least one demonstrator was shouting, and others held up signs that graphically depicted aborted fetuses. One protester also shouted directly at the Church’s parishioners.

The Church and some of its parishioners, in response—and likely trying to avoid the prospect of future protesters—then went to court, where they sought and received a permanent injunction against any future, similar such demonstrations at the Church.

The injunction was based on the theory that the demonstrators had caused a private nuisance.  The court thus issued a permanent injunction against Scott and Powell individually, forbidding each of their entering the Church’s premises, obstructing access to the Church, and/or entering and obstructing access to the Church through their surrogates (surrogates, here, likely meaning their co-protesters or anyone else whom they might recruit in their efforts). The court also ordered restrictions on any noise-making by Scott and Powell occurring near the Church.

The Private Nuisance Claim Against Scott and Powell: The Elements of the Claim

As the court noted, prevailing upon a private nuisance claim requires that the plaintiffs prove three key elements:  (1) that the defendant’s conduct unreasonably interfered with the use and enjoyment of the plaintiff’s property;(2) that the interference was so substantial that it would have been offensive or caused inconvenience to a reasonable person in the community; and (3) that the interference was either negligent or intentional.

Based on this standard, the court held that Powell had indeed created a private nuisance, and that Scott and Powell had also conspired together to create a private nuisance.  (Not only that, it seems that under the three-part test, the interference at issue was likely intentional, not negligent, based on how Scott and Powell had positioned themselves vis-à-vis the Church.)

Were these holdings correct?  Possibly, but possibly not.   The best evidence for Scott and Powell was the deposition of a police officer who had been on the scene, and who had therefore witnessed the demonstrations at issue. The officer described Scott and Powell as peaceful, not shouting; and he said that he did not think that the demonstrations had interfered with anyone’s ability to worship.

However, the court held otherwise, crediting the priests’ and parishioners’ claims that Scott’s voice could be heard during the outside processions (for which the Church had procured a parade permit, specifically to ensure that the processions would be unimpeded) and on the Church’s East Lawn, to the extent that it substantially interfered with the services—even causing one parishioner to be unable to concentrate sufficiently to sing hymns, as he usually would have. Given these allegations, it seems clear that a private nuisance was proven, based on the three elements listed above.

The Injunction Against Scott and Powell

Based on the testimony that the court heard, it also issued an injunction so that Scott and Powell would not be able to repeat their past behavior, and once again create a nuisance and violate the Church’s rights.  Thus, the injunction prohibits Scott and Powell from entering the Church’s property—an act that might be expressive if Scott and Powell belonged to the Church, but is not expressive, but rather violative, under these circumstances.  The injunction also prohibits Scott and Powell from obstructing access to the Church, and doing the same via surrogates—which, given the presence of Scott and Powell’s co-protesters in this situation, is a scenario that realistically might occur.

The Protection of Children as a Possible Reason to Censor Disturbing Images on Demonstration Posters

Another significant aspect of the case, beyond its interesting application of the law of private nuisance, derived from the presence of many children—approximately 200—at the church service.  Some of the children apparently saw the posters of mutilated fetuses that the demonstrators were holding up as the children proceeded to church, and were traumatized by seeing them.  Indeed, two examples of children being upset by the posters are cited in the court’s opinion, and some adults also complained about the posters’ “gruesomeness or goriness.”  Even some adults, too, seem to have thought the posters to be unnecessarily upsetting generally.

On this point, the court cited a set of lower-court cases that recognize that certain images can, indeed, harm very young children. The kinds of images that the lower courts have listed include images of aborted fetuses, as were shown on the posters in this case, and other “frightening and gruesome images such as pictures of dead bodies.”

It will be very interesting to see if the High Court someday takes a case in this vein.  Pretty much everyone can agree on the point that some images are completely inappropriate for very young children to see. But how young is too young?  And what if the images at issue, though severely disturbing, are also truly and vitally educational—such as images of Holocaust victims? If we want our children to live in peace, then they need to see images of war, and of human suffering. Surely, they shouldn’t, for instance, need to wait until they are older than Anne Frank to read her famous, heartbreaking Diary.

We’ve seen a spate of high-school free-speech cases go through the courts in the last few years, some involving the Internet.  And with today’s more Internet-savvy students, I expect to see more school-speech cases in the middle-school context now—for instance, if a precocious, Internet-bred 7th or 8th grader puts an image, or screed, on his or her middle-school newspaper’s website and, told to take it down, simply moves it onto his or her Facebook page instead.

In the end, this is truly a new generation, so much so that, at some grade level, we may become less worried about our children seeing disturbing photos, than we are about our children’s circulating disturbing photos, and thinking nothing of it.

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