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Federal District Court Strikes Down Parts of Funeral Picketing Ban,

in McQueary v. Stumbo (E.D. Ky. Sept. 26, 2006) (Caldwell, J.). The challenged provision, 2006 Kentucky Laws Ch. 50, sec. 5, read:

A person is guilty of interference with a funeral when he or she at any time on any day: ...

(b) Congregates, pickets, patrols, demonstrates, or enters on that portion of a public right-of-way or private property that is within three hundred (300) feet of an event specified in paragraph (a) of this subsection; or

(c) Without authorization from the family of the deceased or person conducting the service, during a funeral, wake, memorial service, or burial:

1. Sings, chants, whistles, shouts, yells, or uses a bullhorn, auto horn, sound amplification equipment or other sounds or images observable to or within earshot of participants in the funeral, wake, memorial service, or burial; or

2. Distributes literature or any other item.

The court held that, though this provision should be analyzed under the law governing content-neutral speech restrictions, and though the court "that the state has an interest in protecting funeral attendees from unwanted communications that are so obtrusive that they are impractical to avoid," the law is unconstitutional, partly because the 300-foot buffer zone is too large. I think that's largely right, for reasons described here.

Henri LeCompte (mail):
Not being a lawyer, I guess I lack the training to see the threat to our liberty posed by preventing cruel weirdos from taunting bereaved family members.
10.2.2006 6:48pm
logicnazi (mail) (www):
I still don't understand what makes federal cemetaries public forums equivalent to the sidewalk outside abortion clinics.

Congress can certainly ban protesters from entering federal buildings. They can even rent out rooms in those federal buildings and let the renters deny access to people whose message they disagree with so long as they rent out the rooms in a content neutral fashion.

I don't see why a graveyard is not merely an outdoor location similar to a courthouse or other specific federal building. Yes public access is allowed for particular specific purposes but not if such access interferes with the usage of the area.

As for your earlier analysis it seems to prove too much. In particular it would prove a federal court should not be able to prohibit silent protestors who hold up signs talking about evidence that was excluded from the case. Surely they could still exclude such protestors if the courts were destroyed and they had to hold the court session on federal land outside.

I fail to see how restricting anyone but invited funeral guests from delivering their message at a funeral is any different than preventing anyone but the participants in the court case inform the jury of evidence.
10.2.2006 7:01pm
Bryan DB:
Henri,
Perhaps you would see it more clearly if you imagined that the legislation was targeted at any particular message you'd like to get across through words or speech. Do not rest your judgment on the "easy" cases; think of the harder ones.
10.2.2006 7:02pm
Adam K:

Not being a lawyer, I guess I lack the training to see the threat to our liberty posed by preventing cruel weirdos from taunting bereaved family members.



It doesn't take a lawyer to understand why banning speech simply because it is unpopular might be problematic under the First Amendment.

Or, it wouldn't, if our public elementary and high schools weren't completely inept.
10.2.2006 7:27pm
PatHMV (mail) (www):
I'd just like to point out that there's no constitutional requirement that states make battery a crime in all circumstances. Rather than a no-protest zone, I'd make a 300-yard no battery zone, such that no person who strikes another person within 300 yards of a veteran's funeral would be guilty of battery. Or make it an affirmative defense, perhaps...
10.2.2006 7:32pm
Peter Wimsey:
I'd just like to point out that there's no constitutional requirement that states make battery a crime in all circumstances. Rather than a no-protest zone, I'd make a 300-yard no battery zone, such that no person who strikes another person within 300 yards of a veteran's funeral would be guilty of battery. Or make it an affirmative defense, perhaps...



Because Fred Phelps might protest at a veteran's funeral, but he will draw the line at slapping the bereaved? Maybe...

(Realistically, this would almost certainly have an unconstitutional chilling effect on speech, since it could be applied to any unpopular viewpoint.)
10.2.2006 7:48pm
PatHMV (mail) (www):
Well, I'm just going where my Wimsey takes me... Of course I'm not seriously arguing for such a law (I'll have to research what happened to the "beat a flagburner" laws). BUT, I know some of the guys who volunteer to shield funeral goers from Phelps vileness. In any fight, my money's on their side winning, not Phelps'.

I'm working on a post over at Stubborn Facts on the topic right now. Stop by in a few and see what I come up with. I'm not sure the chilling effect argument would necessarily prevent such a statute. But I'm going to need to look into the history of the "beat a flag burner" laws.
10.2.2006 8:07pm
curious (mail):
Tort law recognizes special rules for funeral / mortal remains type situations. I see no problem with recogizing that same "special case" instinct in a content-neutral way in this context. (Yes, Bryan DB, s to *any* viewpoint.)

Fitting it into the doctrine might be tricky, but I've got to think the tort precedent and its long historical pedigree would be very useful.

I'm generally an all-but-card-carrying ACLU guy. This is literally the first time I've ever thought to myself, what the #### are they *thinking*? Just awful stuff.
10.2.2006 8:18pm
curious (mail):
Just read Eugene's earlier post. And he gets it exactly right here: "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."

His next comment is: "On the other hand, I do worry about the slippery-slope risks from any new exception to free-speech principles." This is a good point, lord knows in these times, best to have as few chinks in our rights as possible. But I've got to think that the tort law analogy would help carve out the genuinely special case here.
10.2.2006 8:23pm
Adam K:

I'm generally an all-but-card-carrying ACLU guy. This is literally the first time I've ever thought to myself, what the #### are they *thinking*? Just awful stuff.


It appears they're defending decided First Amendment jurisprudence. Imagine that.
10.2.2006 8:24pm
Realist Liberal (mail):
Generally I think this decision is right. I think there is even more to it. There are much better ways to silence people like this than government. The Patriot Riders are a perfect example of using 1st Amendment rights of your own to counter those of someone else.
10.2.2006 8:29pm
curious (mail):
Oh, Adam K. So predictable, so easy, so antithetical to anything like a real discussion. I seriously don't even get the point. Are you all fired up to have scored a totally awesome snark on the internet?

Ah well, hope you enjoyed it.
10.2.2006 8:36pm
Constantin:
If I was on a jury where the defendant was charged with assaulting some guy as he disrupted a veteran's funeral to prove some point about gay people, the defendant would be eating dinner at home the night after the verdict. (Yes, I know they don't lock you up right away, but you know what I mean...)

I would not care what the law said, or what the jury instructions were.
10.2.2006 8:57pm
John (mail):
You are worried about a slippery slope? Gee, like that slippery slope we've been on for decades that gives funeral processions precedence in many traffic situations. Why, god knows where that will lead! Teamsters will want special traffic laws for thier rigs; the ACLU will ask for special treatment for campers' caravans; and it will just go on and on.
10.2.2006 9:09pm
Oren (mail):
This is no more distasteful than letting Nazis march through the middle of a town filled with holocaust veterens.

Let's face it, the 1st amendment compels us to allow stupid and distasteful displays - it is the core strength of our system that we trust the populace to swallow its rage and let the crazies burn themselves out with their own hate.
10.2.2006 9:10pm
Sk (mail):
I just attended a funeral, in Kansas, at which th Phelps family picketed. The bikers were there also.

Logicnazi- I don't think the issue is behavior at a government owned grave site. Its behavior on the sidewalk outside of a church in any urban or suburban neighborhood. The funeral takes place in a church. The sidewalk, perhaps thirty feet away, is public property. What do we do?

At the funeral in Topeka, the picketing site was probably within (approximately) 300 feet of the church-but it was in essence a block away. There were a handful of the Phelps gang (I didn't even walk by them to get to the church), and easily 50-several hundred bikers holding US flags (again, it was easy to get to the church via the other side, or in my case down a side street, and barely see the Phelps family-but the Bikers were all over the place.

The church itself was overcrowded, standing room only. Thus, the entire atmosphere was a bit of an event-the protesters, the dozens or hundreds of flags, the church overflowing with civilians and soldiers.

In spite of the fact that it was, in essence, reasonably managed (I think the family could have easily gotten to the Church without seeing the picketters-again, by entering from the opposite side), I agree with Henri-its a complete joke that they are allowed to picket at a private funeral (even if it is close to public property). I don't really care that much about their message-I'm more disgusted that they communicate it in the forum they do-they attacked bereaved family members. If they chose to picket in the name of something I agree with, I still think they should be banned.

There are no first amendment absolutists. Some want to ban child porn, some want to ban abortion picketing, some want to ban libel and slander, some want to ban yelling 'fire' in a crowded theatre, some want to ban political spending just prior to elections, some want to ban 'fighting words.' (Picketing at funerals could easily be defined as 'fighting words,' for instance). Everyone has exceptions to the first amendment-everyone. It just happens that most lawyers, and the judges they become, don't think picketing bereaved family members deserves to be one of the exceptions.

Steve
10.2.2006 9:18pm
arbitraryaardvark (mail) (www):
It seems like the states have given Phelps a new revenue model - legal fees for knocking down these unconstitutional rules.
See also, Iraq &Al Quieda, Br'er Rabbit and the briar patch.
10.2.2006 9:23pm
Bryan DB:
" It just happens that most lawyers, and the judges they become, don't think picketing bereaved family members deserves to be one of the exceptions."

That's probably a good thing, because most non-lawyers and non-judges would happily ban all forms of speech that make them the least bit uncomfortable. That's no First Amendment at all.
10.2.2006 10:37pm
chrismn (mail):
I think arbitraryaardvark has it right.

I'm not sure the Phelps family believes its own words. This is a scam.

1) Do something outragous like protest at a funeral.

2) Get a local government to shut you down.

3) Sue with members of your own family as part of the legal team.

4) Win a first amendment suit.

5) Get legal fees to above mentioned family members.

Isn't America great!
10.2.2006 11:03pm
keypusher (mail):
Not being a lawyer, I guess I lack the training to see the threat to our liberty posed by preventing cruel weirdos from taunting bereaved family members.





It doesn't take a lawyer to understand why banning speech simply because it is unpopular might be problematic under the First Amendment.


I don't hate it because it's unpopular. I hate it because it's vile. Banning
10.2.2006 11:28pm
keypusher (mail):
Sorry, screwed up the last post. Banning the likes of Phelps at funerals will destroy the first amendment, you say? Sorry, that's the sort of fantasy the weaker-minded sort of law student will buy.
10.2.2006 11:30pm
leftyposter:
Banning people from hurling abuse at the bereaved at funerals: Affront to American values and the First Amendment. Danger of slippery slope. Unconstitutional.

Stripping the right of habeas corpus, creating a system of kangaroo courts, rewriting the laws on torture to allow the executive to order anyone tortured for any reason without any possibility of review by anyone: Very difficult issue. Not sufficiently important to merit the research to form an opinion. Ultimately, unproblematic.
10.3.2006 12:32am
Fub:
PatHMV:

Consider that the court did not strike down this section:
A person is guilty of interference with a funeral when he or she at any time on any day:

(a) Blocks, impedes, inhibits, or in any other manner obstructs or interferes with access into or from any building or parking lot of a building in which a funeral, wake, memorial service, or burial is being conducted, or any burial plot or the parking lot of the cemetery in which a funeral, wake, memorial services, or burial is being conducted;
At any funeral there are likely creative ingress and egress paths which several friends of mourners might take to aid enforcement of that section.

Logicnazi:

I think at least near a trial court session, that "silent protestors who hold up signs talking about evidence that was excluded from the case" would more likely be charged with obstruction of justice or jury tampering, or such attempts. At least I recall those charges being mentioned when police were shooing away protestors at one such situation I saw years ago.
10.3.2006 1:40am
Eugene Volokh (www):
leftyposter: First Amendment: A topic I've studied and written about for 15 years. I know the precedents and arguments inside and out. I can offer an expert analysis with relatively little work, and have in the post I'd linked to. If anyone wants to argue with me about it, or criticize me for supposedly erring, I'll have the answer at the tip of my fingers.

Torture and habeas: None of the above. You probably know more about the subject than I do. Other than that, the comparison is perfect.

Funny how people are so eager to demand that other people do extra work, and that other people expose themselves to risk of error.
10.3.2006 2:59am
Chin up! (mail):
In these troubled times I hope all conservatives remember the immortal words of their republican Chairman of the Congressional Committee for the protection of missing and exploited children.

"Get a ruler and measure it for me."
10.3.2006 6:03am
logicnazi (mail) (www):
Fub,

It doesn't really matter what they are charged with the point is in some circumstances established fourth ammendment law allows the government to prohibit messages because their content interferes with necessery government buisness. Someone wearing a 'Fuck the Draft' jacket would have first ammendment protections in that courtroom but individuals whose speech touches on content about the case do not.

My confusion was why similar laws couldn't be enacted to prevent speech which interferes with the substantive point of funerals. However, I see where I made my error. I assumed the protesting was taking place on funeral grounds in a fashion that made it impossible to hear the sermon without hearing people chant insults. If the speech is really happening on recognized public forums (streets, sidewalks) and the only concern is that the members of the funeral party will have to see it on their way to and from the event then I totally agree that it has first ammendment protection.

In reply to someone else's point yes there are first ammendment absolutists, this just doesn't mean literally any spoken word can't be outlawed (ordering a hit).
10.3.2006 7:00am
Hugh59 (mail) (www):
If someone wants to protest a funeral of one of my family members, then I feel I have the right to beat the bejeesus out of them! There is a point where words become "fighting words" and where a reasonable person can be expected to lose control and become violent.

The purpose of the law is to keep us from taking the law into our own hands. Sooner or later, someone is going to take a shotgun to these fools...then we would have to say that the law has failed.
10.3.2006 7:38am
sk (mail):
"That's probably a good thing, because most non-lawyers and non-judges would happily ban all forms of speech that make them the least bit uncomfortable. That's no First Amendment at all."

BryanDB-
The problem with this is that you are replacing one arbitrary collection of 1st Amendment exceptions (based on public outrage, or legislative passing of laws, etc) with a different arbitrary collection of 1st Amendment exceptions (based on what former students of expensive law schools, who later in life become judges, think). Our current 1st Amendment package protects erotic dancing and picketting bereaved family members at funerals, but allows the banning of political speech in the immediate runup to political elections (!). Perhaps a different arbitrary collection of 1st Amendment exceptions would allow the banning of erotic dancing (if weird collections of people like democratic voters wanted it), allowed the banning of picketting of bereaved family members at funerals (if those same collection of citizens judged thus), but actually allowed political speech during elections. We don't know.
Sixty years ago, fighting words doctrine was acceptable because the small group of judges and lawyers thought it was. Today its not acceptable because a different small group of judges don't think it is. Similarly with stripping-and spending money for speech during elections, and picketting funerals. They've all changed over time because the opinions of law school graduates have changed over time. If that isn't arbitrary, how do you define arbitrary?

Steve
10.3.2006 9:49am
sk (mail):
Interesting column by George Will exploring just how political speech is being limited in run-ups to elections. This is how the 1st Amendment is being interpreted today.


http://www.msnbc.msn.com/id/ 15078348/site/newsweek/page/2 /print/1/displaymode/1098/

Note you will have to make one long address-I had to break it into less than 60 character strings.

Sk
10.3.2006 9:59am
SeaLawyer:
This is one case where the families right to not be harassed at a funeral trumps the protesters right to protest.
10.3.2006 11:04am
Clayton E. Cramer (mail) (www):

In these troubled times I hope all conservatives remember the immortal words of their republican Chairman of the Congressional Committee for the protection of missing and exploited children.
I hope you remember that he was one of a small number of Republicans who opposed a constitutional amendment concerning gay marriage because his homosexuality turned out to have been an open secret on Capitol Hill--and who received $27,000 in contributions from the Human Rights Campaign PAC. But keep telling yourself, there's no connection between his sexual orientation and his interest in little boys.
10.3.2006 11:30am
Fub:
sk wrote:
Note you will have to make one long address-I had to break it into less than 60 character strings.
Or you could use the "Link" button on the posting form.

1. Copy the URL into your clipboard.
2. Highlight the text or your comment you wish to display as a link
3. Click the "Link" button on the posting form.
4. Paste the URL into the pop-up box.

Viola! And base vile! Your link is nicely displayed as a piece of text, like this.

HTH.

logicnazi wrote:
It doesn't really matter what they are charged with the point is in some circumstances established fourth ammendment law allows the government to prohibit messages because their content interferes with necessery government buisness. ...

My confusion was why similar laws couldn't be enacted to prevent speech which interferes with the substantive point of funerals. However, I see where I made my error. I assumed the protesting was taking place on funeral grounds in a fashion that made it impossible to hear the sermon without hearing people chant insults.
True. The courts call those a "compelling state interest", which in conjunction with other findings trumps the First Amendment. I mistakenly thought you were comparing the relatively peaceful conduct of the courthouse protest with the relatviely disorderly conduct of the graveyard protest.
10.3.2006 12:21pm
sk (mail):
"In reply to someone else's point yes there are first ammendment absolutists, this just doesn't mean literally any spoken word can't be outlawed"

You call yourself logicnazi, and this is the best you can do?

Sk
10.3.2006 12:24pm
abb3w:
There's a slight distinction between the 1977 pro-Nazi march in Chicago, and the picketing of military funerals: time. As abominable as the Holocaust was, the 1977 march was over thirty years after the horrible events in question, allowing time enough for a normal grieving process. Picketing during a funeral is essentially targeting someone during the period when they are most psychologically vulnerable and least capable of rational response. It's like trying to taunt an angry dog. Perhaps the legislatures could craft a statute recognizing this as an affirmative defense to (non-aggravated) assault by funeral mourners on such protesters, reducing it from (say) a class 1 to a class 3 felony.

No, it's not very civilized, but it might fly in states that recognize "the sum'bich needed killin" defenses. (Wasn't there a US senator acquitted of murder on that basis?)
10.3.2006 1:22pm
Realist Liberal (mail):
Out of sheer morbid curiousity I went to Clayton Cramer's website. I just realized that this guy is a teacher at a university. I really wish there was a way to keep ideologues out of the classroom (that is true of right-wing as well as left-wing, I battled both of them in undergrad).
My only hope is that maybe he is like John Yoo (definately a shade right leaning). I have several friends who had him and said that he is one of the most balanced teachers they have had. I can only hope the same is true of Clayton Cramer (although I seriously doubt it).
10.3.2006 3:10pm
Thief (mail) (www):
Sheesh. Whatever happened to "speak no ill of the dead?"

The fact that it takes a federal law to enforce what should be a basic matter of courtesy is a sad commentary on our society.

Quoth Huey Freeman, "Whatever happened to standards? Bare minimums?"
10.3.2006 3:35pm
RI Lawyer:

But keep telling yourself, there's no connection between his sexual orientation and his interest in little boys.


I realize this is off topic, but I have to respond. I'd wager there is no more connection between his sexual orientation and his interest in little boys than there is in a heterosexual man's interest in little girls. It's the age that is issue and not the gender.
10.3.2006 3:51pm
Owen Hutchins (mail):

1. Sings, chants, whistles, shouts, yells, or uses a bullhorn, auto horn, sound amplification equipment or other sounds or images observable to or within earshot of participants in the funeral, wake, memorial service, or burial; or



Seems to me that this says that if I honk my horn at some guy that cuts me off, and it's within "earshot" of a funeral, I could be charged under this.
10.3.2006 10:13pm
Owen Hutchins (mail):

(c) Without authorization from the family of the deceased or person conducting the service, during a funeral, wake, memorial service, or burial:

-snip-

2. Distributes literature or any other item.


or if I handed out tissues...
10.3.2006 10:14pm
Ken Arromdee:
Picketing during a funeral is essentially targeting someone during the period when they are most psychologically vulnerable and least capable of rational response.

By this reasoning, the day after September 11, the government could have banned either anti-American or anti-Muslim speech or both.
10.4.2006 2:05am
David M. Nieporent (www):
Clayton, you're in rare form yet again, but I've got news for you: you're the only one here who appears to be obsessed with the combined topics of sex and little boys. Foley liked 16 year olds, apparently. Pedophilia and ephebophilia are very different.

(Incidentally, Clayton makes it explicit, but I've got to think that it's the whole gay issue that makes the Foley thing seem especially disgusting to people. If it turned out he was turned on by high school cheerleaders, people might think his behavior completely inappropriate (grown men shouldn't actually be discussing sex with teenage girls, particularly ones they work with), but not nearly as 'icky.')
10.4.2006 4:51am
Clayton E. Cramer (mail) (www):
RI Lawyer writes:


I realize this is off topic, but I have to respond. I'd wager there is no more connection between his sexual orientation and his interest in little boys than there is in a heterosexual man's interest in little girls. It's the age that is issue and not the gender.


David M. Niporent writes:

Clayton, you're in rare form yet again, but I've got news for you: you're the only one here who appears to be obsessed with the combined topics of sex and little boys. Foley liked 16 year olds, apparently. Pedophilia and ephebophilia are very different.
One of you says that age is the issue; the other defends his interest in underage boys. Make up your mind!

And guess what: if Foley had been chatting up 16 year old girls like this, the disgust would have been no different.

Just to be explicit about this: there's a number of studies that find a correlation between having been sexually abused as a child and adult homosexuality. If there's a causal connection (and there might be multiple causes of adult homosexuality), it would be easy to see how being prematurely sexualized might well cause sexual confusion as an adult. The opposite direction is impossible.

There's also a strong correlation between child sexual abuse and a wide range of later problems, including substance abuse, and I don't think too many people seriously doubt that one plays a crucial role in causing the other. There's also a strong correlation between adult homosexuality and substance abuse. Gee, do you see a possible reason why these might have substantial overlap?
10.4.2006 3:00pm