Think of the Children: Using IIED to Reformulate Disturbing Speech Restrictions

Abstract

The Colorado State Court of Appeals recently upheld an injunction restricting public displays of aborted fetuses. The court held that the restriction passed strict scrutiny because the state had a compelling interest in protecting children from the psychological harm of “disturbing images” and the injunction was narrowly tailored. This marked the first time an injunction had been upheld on this rationale. This Note critiques that holding and others. It contends that while some federal and state courts have recognized the interest in protecting the psychological wellbeing of children from disturbing speech as compelling, the interest is not supported by precedent. It then argues that courts have formulated the interest with a breadth that is flawed and antithetical to the First Amendment. It concludes by proposing that the state’s interest in protecting children from disturbing speech should be reformulated in the mold of intentional infliction of emotional distress.