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Funeral Picketing:

Jonathan Adler's post about the ACLU's opposing a funeral picketing ban leads me to repost my earlier piece on the subject (for links, see the original in 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).

Steveo987 (mail):
Thanks for the insightful analysis, Eugene. At the end of the article, you note "how cruel and contemptible many of the funeral picketers have been." Are you aware of anyone else picketing funerals (of any variety), other than Phelps and his family?
7.24.2006 3:36pm
Joel B. (mail):
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.

I don't know the hard thing for me, is I feel like how much further can we go down the slippery slope? It's already to the point where virtual child pornography is protect, and yet a myriad of campaign related speech is not. Additionally, there are already numberous hate-crimes and hate speech acts already on the books, so I guess I mean, realistically, how much further can we go down the slippery slope? At some point shouldn't we just admit we're at the bottom? I mean what's the consistent application of some law that works out to this kind of law? Is there any rational other than, whatever wins in court is free speech, but whatever loses isn't?
7.24.2006 3:46pm
velvel t:
A legislator in one of the states (Tennessee or Louisiana, if memory serves correctly) introduced a bill making the thrashing of a flag burner a misdemeanor carrying no civil liability and a $5.00 fine. The bill did not pass. Might that be something to consider here?
7.24.2006 3:58pm
cirby (mail):
It's an amazing testament to the patience and overall "niceness" of Americans that Phelps isn't a grease spot on someone's bumper by now.
7.24.2006 4:06pm
shiftyone:
On the other hand, I do worry about the slippery-slope risks from any new exception to free-speech principles.
I agree wholeheartedly.
Speaking of slippery slopes.....Why not have the bush admin. counsel offer advice. They seem to have done a wonderful job of making SURE that anyone that had anything but cheers for their side during public campaign appearances was physically rounded up and enclosed in a cage called a "free speech zone"...quite often several blocks away and almost always out of earshot or sight of the rally. I'm sure the same logic could be adapted to fit this issue, and to the best of my knowlege, their behavior has been upheld in court.
7.24.2006 4:13pm
M. Simon (mail) (www):
Surprisinly (or not) Fred is a strong Democrat and worked on the Gore Campaign.

Surprisinly the military is not fond of fags either.

Does any one see the logic in this?

Let me see if I can encapsulate Fred's argument:

God hates fags. The military does't like fags. So military deaths are God's punishment for America tolerating fags.

Fortunately there are a bunch of bikers who show up at Fred's events to drown out his free speech with loud motorcycles. No tickets for excessive loudness that I have heard of.

Is this a great country or what?
7.24.2006 4:52pm
Eugene Volokh (www):
Velvel T: Denying people the same legal protection that the law normally provides to speakers because of the viewpoints that the speakers are expressing would also violate the First Amendment. (I know of no cases that are squarely on point to that, perhaps because legislatures so rarely try to do this, but that's a pretty basic First Amendment principle -- the government generally may not retaliate against people because of the viewpoints they express, and while this no-retaliation principle has its boundaries, retaliation in the form of refusing to provide legal protection would qualify.)
7.24.2006 5:03pm
SteveW:
Mississippi has a new statute prohibiting the use in protests of the name of a deceased member of the armed forces without the permission of the deceased person's family. Full statute here.

Interestingly, the Mississippi law also prohibits picketing at the home of the family of the deceased service member on the day of the funeral.
7.24.2006 5:38pm
DosPeros (mail):
I grew up in Topeka, Kansas - the unfortunate hometown of Fred Phelps and the Westboro Baptist freaks. I grew up going to Gage Park "World Famous" Zoo and seeing the delightful signs with silhoutes of bent-over men and "God Hate's Fags". I'm now a lawyer in Missouri and, by the way, Fred Phelps is a debarred attorney and his family is composed of attorney's. He is nuts, but he is not stupid. Anyway, so I have had a life time to think about the 1st Amendment as it applies to Phelps. While we can not pass a "speech" law based on content, I think it possible to pass an assault law based on inflamatory speech the lessens the charges and incentives people to be more polite. I'm reminded of a particularly county in Mississippi that did this with flag burning. "Can you burn an American flag is something county, Mississippi?" reporter asks. Sherriff reply, "Absolutely, but I wouldn't. It's a ten dollar fine the patriot that punches the stupid son-of-a-*&^*." Now that is the American way.
7.24.2006 5:58pm
Redman:
I seem to recall that federal courts have enjoined pro life groups from setting up outside abortion clinics and shouting to the ex moms to be.

I suppose the legal reasoning is the shouting constitutes inteference with a constitutional right ...

If there is a constitional right to interrupt a pregnancy which would have resulted in birth, is there a constitutional right to bury the dead --- i.e. bury someone who's life has been "interrupted" by something other than his mother's decision? I suppose the answer is "no."

These funeral protests will continue until the day when they picket the wrong funeral.
7.24.2006 6:35pm
JohnAnnArbor:

Surprisinly the military is not fond of fags either.


The Congress makes the laws the military operates under. The "military" as such has no opinion on the matter.
7.24.2006 6:40pm
John (mail):
Where did the 100-200-300 foot numbers come from?

What is it that the protesters can't be X feet from? The gravesite? The cemetary? The funeral procession? Does this relate to private cemetaries, i.e., private land, public land, or both?
7.24.2006 7:02pm
DonBoy (mail) (www):
A couple of points on the Missisippi law:

--it refers to "intent to disrupt" a funeral. Does that include silently holding signs 990 feet away from a funeral, which seems like it wouldn't disrupt it? Does "disrupt" have a legal definition addressing this question?

--in the context of gay service members, the fact that the law does not define "family" presumably means that Phelps could picket the home of the deceased's same-sex partner of many years, and not be in violation. (A law in Massachusetts, with the same text, would be a different matter.) That doesn't fall under the category of "unintended consequence", since the legislature, if asked, would say that's what they meant, but it struck me.
7.24.2006 7:23pm
Eugene Volokh (www):
Redman: Did you have a chance to look at the part of my post in which I discuss the abortion clinic picketing cases?
7.24.2006 7:58pm
Lively:
velvet t:

A legislator in one of the states (Tennessee or Louisiana, if memory serves correctly) introduced a bill making the thrashing of a flag burner a misdemeanor carrying no civil liability and a $5.00 fine. The bill did not pass. Might that be something to consider here?

I'm assuming you mean burning the American flag in protest. I wonder what would happen if someone would burn a "rainbow" or "gay" flag in protest. Could be charged with hate speech.
7.24.2006 10:10pm
glangston (mail):
Funerals can best be protested by non-attendance. It's not as if the celebrant is running for public office and giving a speech. Write a negative obit or a book. Harassing a funeral is simply a violation of the peace.

Can one protest a Bar Mitzvah or birthday party?

I honestly don't see any free speech issue at a funeral....the deceased is already the victim of a gag order, and not from the court. And how is a funeral necessarily a public event? I submit they're as private as it's opposite, birth, and should be protected.
7.24.2006 11:54pm
logicnazi (mail) (www):
So I'm pretty absolutist about free speech but I don't see why the government can't effectively ban this practice. I suspect I am missing some important detail.

Now either the cemetaries are or are not public property. If they are not public property there is no problem so I'm assuming these are government graveyards. However, the mere fact that something is government property doesn't require the government to allow protestors to protest or even access to the property. Anti-war protestors can protest outside of a miltary base but they don't get any 1st ammendment right to enter the base even if this means they can't convey their message to the many soldiers who choose to stay on base. Right?

Similarly the government has the power to rent out parks to private parties for limited periods of time. Certainly this renting has to be content neutral and the anti-soldier protestors might be able to rent the cemetary and hold their protest on their own. However, the government can certainly enfore the provision of renting the cemetary out to one group at a time.

So why doesn't the government just rent out the cemetery to the family of the dead victim for a short period of time. Then during that rental period the family has the power to exclude whoever they want from the funeral.

In other words this appears to be a private function so I don't see how conducting it on government land causes these free speech concerns. Even if so it seems the government has the right to restrict protestors from entering certain areas, e.g., inside government offices, even if they allow tour groups. A senator can invite all sorts of tour groups inside his offices but doesn't have to let in people carrying big signs berating him that he thinks might distract his staff.

I must be missing something here.
7.24.2006 11:55pm
Eugene Volokh (www):
Logicnazi: No-one doubts a private cemetery's right to exclude protesters. I think there's little trouble with excluding protesters even from a government-owned cemetery. The serious constitutional issue arises when the government bans protesters from the sidewalks outside the cemetery, which are generally considered -- alongside other sidewalks -- traditional public forums, open to speech.
7.25.2006 12:52am
Alan K. Henderson (mail) (www):
All this business about funeral protests remind me of the days when feminist organizations were demanding protest-free zones around abortion clinincs - and succeeding in some cases. Anyone know how the ACLU sided on that issue?
7.25.2006 1:37am
Kevin L. Connors (mail) (www):
As a vet, I despise the picketer's actions. But I will defend to my dying breath their right to do so.
7.25.2006 1:56am
Thorley Winston (mail) (www):

All this business about funeral protests remind me of the days when feminist organizations were demanding protest-free zones around abortion clinincs - and succeeding in some cases. Anyone know how the ACLU sided on that issue?


I'm not sure if this was one of those issues where the national organization left it up to each local branch to decide what to do, but a cursory google search suggests that many of the local branches litigated on behalf of the protesters arguing that their free speech rights were violated by the law.
7.25.2006 11:10am
Aultimer:
Phelps isn't dumb, and neither are the legislatures of the 50 states. Fifty different protest laws will require the Phelps and/or ACLU to spend many years and dollars to hash out the constitutional from the unconstitutional. The Patriot Guard Riders will continue to show up to shield the families. At some point Phelps will find some other nutty obsession, or at least have a good bit less money to travel around and annoy the rest of us.

The legislators get a cherry for their voting record, the families are better protected that they were and Phelps is out some time and money. Even if all 50 laws fall, it's a positive outcome.
7.25.2006 12:19pm
Colin (mail):
The legislators get a cherry for their voting record, the families are better protected that they were and Phelps is out some time and money. Even if all 50 laws fall, it's a positive outcome.

Except that if the laws are unconstitutional, then it's not a positive outcome. Passing a law that you know is an unconstitutional burden on a protected liberty simply to look good to constituents isn't a good thing, even if its putative purpose is to protect good people from bad people.
7.25.2006 1:06pm