Posted by Eugene Volokh:
Funeral Picketing:
http://volokh.com/archives/archive_2006_07_23-2006_07_29.shtml#1153765674
[1]Jonathan Adler's post about the ACLU's opposing a funeral picketing
ban leads me to repost [2]my earlier piece on the subject (for links,
see the original in [3]National Review Online):
Fred Phelps has pioneered the charming practice of protesting
people's funerals. It began with picketing funerals of gays while
carrying signs saying things like "God Hates Fags." It then moved
on to picketing funerals of soldiers with signs saying things like
"Thank God for 9/11" and "Thank God for Dead Soldiers" (the theory
being that God is punishing America for its toleration of
homosexuality).
There is a move afoot in some cities and states to ban this
practice; most recently, the Minnesota senate and house of
representatives have enacted such a law, though some differences in
the versions remain to be ironed out. Wisconsin enacted such a law
late last month. Are such bans constitutional?
It turns out that the government (a) can ban loud picketing outside
funerals, and (b) can probably ban all picketing immediately
outside the funeral, but (c) must allow picketing or marching
relatively near to funerals. How near is impossible to tell, but
picketers can't be required to stay 300 feet or more away; they
probably have to be allowed to march past the funeral, and perhaps
even to picket, say, 100 or 200 feet away.
1. The government generally may not ban picketing based on its
content � for instance, banning anti-gay picketing, anti-military
picketing, hostile picketing, or picketing that uses pejoratives
such as "fag." Thus, if the government wants to ban critical
demonstrations outside funeral homes, it also has to ban
demonstrations of support. See Carey v. Brown (1980).
([4]Click here to see the rest of the piece.)
2. The government also may not ban offensive picketing on the grounds
that it will supposedly start fights. Though "fighting words" can be
banned, that category is generally limited to epithets addressed to a
particular insulted person. Even though many attendees at a funeral
will be quite upset at speech that condemns the decedent, or gays as a
whole, soldiers as a whole, or Americans as a whole, that's not enough
to strip the speech of protection. See Cohen v. California (1971).
3. The government generally may not impose even content-neutral bans
on all picketing or all picketing in certain places � for instance,
all picketing around schools, all picketing around abortion clinics,
and the like. The Supreme Court has long recognized picketing and
demonstrating as an important means of communicating one's views to
the people present at the place being picketed. Other means of
communication � newspaper ads, billboards, and the like � are not seen
as adequate substitutes, either because they're much more expensive or
because they don't reach the same audience. The Court has upheld some
limits on abortion-clinic picketing, but those limits have usually
been quite narrow � for instance, fairly small no-picketing zones
around the entrance aimed at keeping people from obstructing access to
the clinic, or no-approach zones in which picketers and leafleters can
stand with their signs but can't approach passersby. See Hill v.
Colorado (2000).
4. The government generally may impose content-neutral limits on noisy
picketing, picketing that blocks traffic, and so on, but must do this
through regulations of the number or volume level of picketers, and
not through bans on picketing. See Madsen v. Women's Health Center
(1994). A ban on disrupting funerals would fit within this principle
only if it defines "disrupt" to mean disrupt through noise or traffic
obstruction, rather than through the content of its offensive message.
Likewise, a ban on "violent, abusive, indecent, profane, boisterous,
unreasonably loud or otherwise disorderly conduct" within 500 feet of
a funeral would be constitutional if it is read as being limited to
violent or unreasonably loud conduct, but not if it is read to cover
insulting signs.
5. The Court has recognized one place where picketing can be banned
(if the ban is content-neutral): outside the targeted person's home.
In Frisby v. Schultz (1989), the Court held that focused picketing
immediately outside a person's home can be banned to protect the
especially important interest in residential privacy. "Although in
many locations, we expect individuals simply to avoid speech they do
not want to hear," the Court reasoned, "the home is different." "The
State's interest in protecting the well-being, tranquility, and
privacy of the home is certainly of the highest order in a free and
civilized society." "[T]he home [is] 'the last citadel of the tired,
the weary, and the sick,' and ...'[p]reserving the sanctity of the
home, the one retreat to which men and women can repair to escape from
the tribulations of their daily pursuits, is surely an important
value.'"
This doesn't literally cover picketing around funerals, but it's a
good bet that courts will find that the interest in protecting the
privacy of the grieving at a funeral is at least as strong as the
interest in protecting the privacy of people at their homes. The chief
danger is the slippery slope: Once the supposedly narrow exception for
residential picketing is broadened to cover funeral picketing, these
two exceptions (one older and one new) could then be used as
precedents in arguments for more exceptions (say, for churches or for
medical facilities), which would eventually swallow the rule. But I
suspect that courts would nonetheless be willing to recognize funerals
as places where picketing is unusually intrusive, much more so than
even at hospitals and abortion clinics.
6. Yet even the power to ban residential picketing isn't limitless: In
Madsen v. Women's Health Center (1994), the Court specifically
rejected an injunction that banned residential picketing within 300
feet of the homes of abortion-clinic employees. "[T]he 300-foot zone
around the residences in this case," the Court reasoned, "is much
larger than the zone provided for in the ordinance which we approved
in Frisby[, which] ... was limited to 'focused picketing taking place
solely in front of a particular residence.' By contrast, the 300-foot
zone would ban '[g]eneral marching through residential neighborhoods,
or even walking a route in front of an entire block of houses.'" Thus,
a 1000-foot buffer zone around funeral homes or even a 300- or
(probably) 200- or 100-foot zone would be unconstitutional. Marches
through the neighborhood, including ones that briefly pass by the
funerals, would remain constitutionally protected; likewise for
picketing some distance away from the funeral home.
7. Finally, to be constitutional, even a limited content-neutral
no-picketing zone must be defined with sufficient precision. A Kansas
funeral-picketing law, for instance, was struck down in 1995 because
it banned picketing "before" and "after" funerals without defining
those terms. (It has since been reenacted with more precise terms.)
I'm not sure what legislatures should do about funeral picketing. I
strongly sympathize with the desire to shield the grieving, especially
given how cruel and contemptible many of the funeral picketers have
been; I also think little would be lost to public debate if funeral
picketing is banned. On the other hand, I do worry about the
slippery-slope risks from any new exception to free-speech principles.
In any case, though, I've tried to explain above what First Amendment
law is now, whether or not that's the way it should be.
([5]Click here to hide most of the above.)
References
1. http://volokh.com/archives/archive_2006_07_23-2006_07_29.shtml#1153705843
2. http://nationalreview.com/comment/volokh200603230730.asp
3. http://nationalreview.com/comment/volokh200603230730.asp
4. file://localhost/var/www/powerblogs/volokh/posts/1153765674.html
5. file://localhost/var/www/powerblogs/volokh/posts/1153765674.html
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