Pro-life freedom of expression case: Analysis

Opinion analysis of the case against Andy Stephenson and Kathryn Attwood (nee Sloane) by Gregg Cunningham, Executive Director of The Center For Bio-Ethical Reform:

On September 18, 2012, Judge Stephen Nicholson of the Brighton Magistrate’s Court, issued a strong defence of freedom of speech in an opinion in the case of Andrew Stephenson and Kathryn Attwood (hereinafter referred to as Andrew Stephenson), acquitted of charges related to three alleged violations of Section 5(b) of the Public Order Act, for displaying graphic abortion images outside abortion clinics.  The judge explained that he “had not been persuaded” that Mr. Stephenson’s signs were “threatening, abusive, or insulting,” as required for convictions under Section 5(b).  Mr. Stephenson directs The Center For Bio-Ethical Reform – UK (CBR-UK) and Abort67 is an abortion photos display project of his organisation.

Additionally, Judge Nicholson explicitly rejected police and Crown Prosecutors’ arguments that Mr. Stephenson should have displayed pictures which were less graphic, or pictures which were smaller, or that his pictures should have been made available only upon request.  He also ruled that the police acted improperly when they confiscated abortion photo signs without authority to do so.

This outcome was an enormous victory for freedom of expression in the UK and much of the credit goes to Mr. Stephenson’s legal team, Solicitor Michael Phillips, Barrister Paul Diamond and Andrea Williams, CEO of Christian Concern.  Gregg Cunningham, director of CBR-US, the American affiliate of CBR-UK, designed the signs at issue, the protocols for their display, and provided consulting advice on trial strategy and tactics in Mr. Stephenson’s criminal defense.

Judge Nicholson further noted Mr. Stephenson’s reliance on social reform strategy and tactics pioneered by British abolitionist William Wilberforce.

In 18^th and 19^th century Britain, slave traders and slave owners employed coercive pressures to impose a moratorium on information regarding the slave trade and slavery.  The UK abortion industry is equally committed to suppressing information about abortion.  Slave traders rightly feared that a fuller public awareness of the essential character of slavery would give rise to political pressures to more restrictively regulate and eventually abolish slavery.  The fear of reform seems equally threatening to abortion providers such as the British Pregnancy Advisory Service (BPAS).  The information blackout related to slavery was greatly facilitated by the fact that slavery was invisible in Britain because it was confined almost entirely to the distant British West Indies.  Abortion is every bit as invisible in the UK today as slavery was in the 1700s and 1800s.

Edmond Burke hailed abolitionist William Wilberforce as the greatest communicator of his age, but decades of essays and speeches by abolitionists accomplished little change in public opinion regarding slavery.  The abolitionists concluded that there were no words which were adequate to convey a full understanding of forced labor.

Reformers, therefore, turned to graphic slave pictures of the sort which caused immense alarm and distress.  They used these pictures to outrage the public and motivate willingness to sign petitions which were later delivered to Parliament.

Artist William Blake provided shocking, photo-realistic, lithographic prints of slaves being tortured to death.  In the process, the abolitionists incurred so much public enmity that they were physically threatened, and attacked, and had to be accompanied by armed bodyguards.

Wilberforce knew, however, that voters would never sign his petitions and consumers would never boycott slave-produced sugar, rum, molasses, coffee or tobacco, until everyone understood the human cost being paid to bring these commodities to market.  Horrifying pictures would be required to make the privations of slavery visible and real.

Wilberforce biographers are nonetheless unanimous in their praise of the great former’s graciousness.  He never disparaged his adversaries.  His Christian faith forbade him from personalising his exposés with invective against those who facilitated or practiced or supported slavery.  He carefully avoided any signage which was threatening, abusive or insulting, not because there was any Public Order Act then in force, but because he knew that personalizing the issue of slavery only served to change the subject in a most counterproductive manner.

Mr. Stephenson and his Abort67 motives and methods closely and consciously follow those of Wilberforce and the abolitionists.

Throughout the Stephenson trial, anti-abortion campaigners were frequently mischaracterized as “protestors.”  But Mr. Stephenson isn’t in front of BPAS clinics to “protest.”  He is there to inform.

His principal purpose is not to “debate” women.  He is there to empower women.

A widely distributed NHS/BPAS “abortion care” brochure claims that abortion “gently” removes a “pregnancy.”  Passersby who see Abort67 photos of human embryos and fetuses, before and after abortion, might reasonably conclude that abortion is rather an act of violence which kills a baby.

Many pregnant women have told Abort67 staff and volunteers that they would have aborted their pregnancies had they not seen our pictures.  Many post-abortive women have told Abort67 staff and volunteers that they would not have aborted their pregnancies had they seen abortion pictures.  For these women, abortion pictures were literally a matter of life and death.

When BPAS withholds vital clinical information from vulnerable, pregnant mothers it is being abusive and insulting.  It is being manipulative and exploitative.  Doing so renders the concept of “informed consent” a propaganda charade.

The National Health Service (NHS) website section on “informed consent” declares that it is unethical to withhold distressing information related to a patient’s condition, even if that patient insists that the information not be disclosed.

Abort67, however, never forces information on passersby.  Their campaigners post notice signs along avenues of approach to abortion photo displays and respect decisions by passersby who amend their route or avert their gaze to avoid the pictures.

BPAS says women come to Wistons to access “care.”  To many passersby, that contention seems more credible before than after they see Abort67 pictures of human embryos and fetuses, before and after abortion.

Abort67 signs don’t state conclusions about abortion.  The pictures speak for themselves.  These signs are Socratic in that they tacitly invite passersby to reason to their own conclusions about abortion.  The group doesn’t use these signs to express viewpoints.  They are used to reveal facts.

Abort67 doesn’t have to protest abortion.  When they display abortion photos, abortion protests itself.  There is, therefore, no need to gratuitously guild the lily by sensationalising, editorialising, sermonising or moralising.

Abort67 signs consist of impersonal photographs, not personal attacks.  A personal attack is an ad hominem. Oxford English Dictionary defines ad hominem as “… (of an argument or reaction) directed against a person rather than the position they are maintaining ….”

Oxford English Dictionary defines the Public Order Act’s term “abusive” as “extremely offensive and insulting,” and statute’s term “insulting” as “disrespectful or scornfully abusive”.  This definitional overlap means the words “abusive” and “insulting” are substantially synonymous.

But Abort67 signs cannot “heap abuse” or “hurl insults” because they employ no invective.  Oxford English Dictionary defines “invective” as “insulting, abusive, or highly critical language.”  Abort67 signs contain no substantive language, critical or otherwise.  They express no value judgments.  They make no declarative statements whatsoever.

Abort67 signs deal with issues, not with individuals or organizations.  They consist of instructive pictures, captioned with no pejorative terms.  A non-judgmental image, by definition, cannot insult.  Insults are intrinsically judgmental.

Judge Nicholls ruled that a complainant's feelings of "distress" or "alarm" under Section 5(b) are only actionable if they are caused by a sign which is objectively abusive" or "insulting" (laying aside the "threatening" prohibition which the Crown Prosecutor agreed is irrelevant in this case).  The concepts of abuse or insult in this context require a finding that some element of the sign was demeaning or disparaging (in the common understandings of the connotations of the words "abuse" and "insult") to foreseeable viewers.  Medically accurate pictures of embryos and fetuses, before or after an abortion, without more, can neither demean nor disparage.

These photos are captioned only as to age. They are non-judgmental. They express no opinion concerning the humanity of the fetus or the inhumanity of abortion. They express no opinion regarding the morality of those who obtain or perform or support abortions.

The best evidence that Abort67 signs are content-neutral is the frequency with which passersby contemplate the images and then ask whether Abort67 is for or against abortion.  Notwithstanding their alarm and distress at what they see, they remain uncertain as to whether Abort67 promotes or opposes abortion.   

Judge Nicholson affirmed that the nature of the content of the signs is an objective test (abusive or insulting -- which must mean demeaning or disparaging).  The nature of the reactions of passersby is a subjective test (alarming or distressing -- but only actionable if the alarm or distress was caused by an objectively abusive or insulting sign). 

Mr. Stephenson freely concedes that pictures of embryos and fetuses, before and after abortion, are alarming and distressing to many passersby – but only because abortion is alarming and distressing.  The signs, however, are not objectively abusive or insulting because they are neither derogatory nor denigrating.  The fact that the pictures alarm and distress does not, in-and-of-itself, criminalise their public display.  The solution to the problem of angry passersby threatening violence obligates the police to control the crowd, not silence the disfavored speech which provokes the threats.

William Wilberforce was figuratively on trial in this Brighton courtroom, as Mr. Stephenson’s co-defendant.  Had Mr. Stephenson been found guilty of these charges, Mr. Wilberforce would have been guilty in his day had the Public Order Act been in effect and misapplied to his virtually identically campaigns.   It cannot have been the intention of Parliament that the UK Public Order Act be misconstrued as banning the social reform methods of the abolitionists. 

Social reform is invariably a disorderly process.  The only society with nearly perfect public order is North Korea.  But injustice also abounds there because there can be no justice where social reform is impossible, and social reform is indeed impossible when activists are forbidden from confronting the culture with evidence of society’s complicity in injustice.

The UK abortion industry advocates are now demanding that for additional charges be filed against Abort67 under additional statutes, but the most likely candidates are even less relevant to anti-abortion campaigning than the Public Order Act proved to be.

Champions of commercial abortion are also insisting that Parliament find new ways to criminalise the act of showing mothers outside BPAS clinics, what BPAS does to babies inside those clinics.  That is a political debate we welcome, because we intend to educate law enforcement officials on the law concerning freedom of expression and urge Parliament to expand to the rest of the UK, the freedom of speech newly conferred in Sussex. 

The UK is no longer a homogenous society with few disagreements and little need to protest.  Increasing cultural diversity and political pluralism have given rise to social tensions which are best relieved through vigorous public debate – even when that debate involves disfavored speech (shocking pictures are symbolic speech).  It is time to bring British freedom of expression laws into the 21^st century.