First Amendment: Gore Good, Genitals Bad

Blocks away from the newest specialty store opened by First Amendment crusader/pornographer Larry Flynt — a man whose many court appearances helped define the legal boundaries of free speech — anti-abortion activists on the sidewalks around Fountain Squa

Blocks away from the newest specialty store opened by First Amendment crusader/pornographer Larry Flynt — a man whose many court appearances helped define the legal boundaries of free speech — anti-abortion activists on the sidewalks around Fountain Square July 9 showed downtown workers and visitors to the 2012 World Choir Games graphic depictions of fetuses mutilated by abortion.

While Flynt has been convicted of pandering obscenity for peddling smut in Cincinnati, graphic displays of gore don’t face the same kind of limitations that sexual speech does.

“It’s generally the case that the (U.S.) Supreme Court has been more tolerant of regulations of sexually explicit speech,” said Dan Tokaji, First Amendment expert and professor at the Ohio State University Moritz College of Law. 

Tokaji said it’s a lot harder to restrict expressions involving gore, because any law restricting First Amendment rights must be precisely worded.

“For example, I don’t know how you would come up with a precisely-worded, non-vague law restricting anti-abortion signs displaying fetuses,” he said. “It’s hard for me to imagine any that wouldn’t violate the First Amendment.”

The signs displayed by volunteers for Columbus-based Created Equal showed both babies in the womb as well as dismembered fetuses — tiny arms and legs, blown-out rib cages or faces missing skulls, often bathing in blood and placental fluid and placed near quarters or dollar bills to give a sense of scale.

Created Equal executive director Mark Harrington said the goal isn’t to shock people into changing their minds, but to get their attention and to start a conversation about abortion.

“We know it’s going to bother people, but that’s the point — to get them to think,” Harrington said. “It (the graphic image) is not the whole story; we have to have a debate and information. We’re not hoping they see the image and change their mind right away.”

Volunteers stand near the graphic signs and hand out literature to anybody who is interested. Harrington said about 20 percent of passersby were strong supporters, while about 20 percent were ardently opposed — some even went as far as to knock over some of the signs.

Rusty Daniels, a 29-year-old who works with Segway Cincinnati, was one of those opposed, though he didn’t knock over any signs.

“I think they’re disturbing,” Daniels said. “I think there’s a time and a place for things like that, but I don’t know if a public square in the middle of the day is the place for that.”

Though Harrington believes reactions like Daniels’ are regrettable, he said there’s no doubt that his group’s method is effective.

That’s why People for the Ethical Treatment of Animals (PETA) uses it, said Manager of Campaigns Ashley Byrne.

PETA is known for public protests involving varying levels of nudity, as well as graphic, gory images of animal cruelty. 

A 2010 protest outside of an Avondale KFC had two women wearing boots, gloves, earmuffs and not much else covered by a sign reading, “The naked truth: KFC tortures chicks.”

Byrne said shocking people can be an effective way to get a message out.

“Once you have people’s attention, they’re usually pretty shocked by the cruelty behind the scenes at slaughterhouses or fur farms or in the meat industry, and the shocking image becomes less of a focus than the reason behind why we’re doing it,” she said.

Byrne said most complaints about PETA protests come from business owners whose companies are being protested. She said the group researches local laws before visiting a city to make sure their protesters won’t be arrested for public indecency.

Ohio’s public indecency law prohibits the exposure of genitals and public sex acts. Cincinnati City Prosecutor Charles Rubenstein says the law does not forbid the exposure of female breasts.

However, Rubenstein said case law precedent dictates that in order to not be obscene, any public display must have some literary, scientific or other value. 

He said there’s nothing in city or state code prohibiting graphic displays like those used by Created Equal or PETA.

Harrington said his group doesn’t plan on stopping with Cincinnati or even Ohio. They have protests at the University of Cincinnati and Northern Kentucky University planned for this fall and plan on moving through seven battleground states: Ohio, Florida, North Carolina, Virginia, Pennsylvania, Missouri and Iowa.

“The reason we use this method is because historically social action movements have used images of injustice to change public policy,” he said. 

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