pageok
pageok
pageok
Funeral Picketing:

Fred Phelps, a cruel parody of a Christian, has pioneered the practice of protesting people's funerals. Starting with the 1980s, he and his people picketed funerals of gays while carrying signs saying things like "God Hates Fags." Now, they picket 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).

Delightful. But is it constitutionally protected? A bunch of readers asked me to blog about this, so I composed this piece for National Review Online to answer that question.

101 Comments
Funeral Picketing:

An interesting Chicago Tribune article on statutes and proposed statutes aimed at restricting such picketing. Here's my First Amendment analysis of such laws.

27 Comments
Congress Enacts Anti-Funeral-Picketing Bill:

An AP story, as posted on the CNN site, reports:

Demonstrators would be barred from disrupting military funerals at national cemeteries under legislation approved by Congress and sent to the White House....

Under the Senate bill, approved without objection by the House with no recorded vote, the "Respect for America's Fallen Heroes Act" would bar protests within 300 feet of the entrance of a cemetery and within 150 feet of a road into the cemetery from 60 minutes before to 60 minutes after a funeral....

Here, however, are the relevant parts of the bill:
(a) Prohibition- No person may carry out--

(1) a demonstration on the property of a cemetery under the control of the National Cemetery Administration or on the property of Arlington National Cemetery unless the demonstration has been approved by the cemetery superintendent or the director of the property on which the cemetery is located; or

(2) with respect to such a cemetery, a demonstration during the period beginning 60 minutes before and ending 60 minutes after a funeral, memorial service, or ceremony is held, any part of which demonstration--

(A)(i) takes place within 150 feet of a road, pathway, or other route of ingress to or egress from such cemetery property; and

(ii) includes, as part of such demonstration, any individual willfully making or assisting in the making of any noise or diversion that disturbs or tends to disturb the peace or good order of the funeral, memorial service, or ceremony; or

(B) is within 300 feet of such cemetery and impedes the access to or egress from such cemetery....

One can still fault the bill on various grounds. One possible problem is that this seems to punish people who engage in demonstrations if even one participant engages in "noise or diversion that ... tends to disturb the peace." Another is that it's not exactly clear what qualifies as a "road, pathway, or other route of ingress to or egress from"; would it just be the driveway that leads only to the cemetery, or would it also be any city street that would lead to the cemetery as well as to other places? (That vagueness can, I suppose, be cured by judicial construction, though it can nonetheless be faulted.)

Nonetheless, the law does seem to do less than "bar protests within 300 feet of the entrance of a cemetery and within 150 feet of a road into the cemetery from 60 minutes before to 60 minutes after a funeral." It bars only access-impeding demonstrations within 300 feet of the cemetery entrance, and only demonstrations that involve "noise or diversion that disturbs or tends to disturb the peace or good order of the ... ceremony" within 150 feet of the entrance road. If the latter provision is interpreted the way it has been in other laws that contain this language, it will be simply a content-neutral ban on speech that disturbs because of its noisiness and not its message. This would likely make the law constitutional, because of the limitation to disrupting or access-impeding demonstrations, possibly except for the one-loud-demonstrator-makes-all-liable provision.

Perhaps the "barred from disrupting" in the opening paragraph might be said to capture the extra requirement of blocking access or causing disruption. Still, it seems to me that in context, the AP story may well be reasonably read as simply asserting that the bill "would bar protests within 300 feet of the entrance of a cemetery and within 150 feet of a road into the cemetery from 60 minutes before to 60 minutes after a funeral." And that paints the law as quite a bit broader than it actually is.

Many thanks to reader Jeffrey Williams for the pointer to the AP story.

UPDATE: Commenter Jason Fliegel correctly points out that the ban applies to all demonstrations -- including favorable ones -- not just to protests. I was using protest as an imprecise term for demonstration, but it's better to be precise, especially if all it means is changing one word; I've therefore changed the post (in which I used the term "protest") accordingly.

17 Comments
More on Newly Passed Federal Anti-Funeral-Picketing Bill:

Some commenters on my earlier post faulted Congress for restricting (though not banning) only picketing around national cemeteries, which as I understand it mostly limits the law to military funerals. Why doesn't it apply to "funerals of gays or 'normal people?'"

Because restricting noncommercial conduct around all funerals would be pretty clearly outside Congress's enumerated powers (even setting aside the First Amendment constraints on those powers). Even as to this law, there's some question whether Congress has the enumerated power to restrict noncommercial conduct on state-run streets outside federal cemeteries; but at least there Congress has a plausible case that such restrictions are necessary and proper to protecting activities that take place on federal property. (As to restrictions on picketing around military funerals, there's also a somewhat more far-fetched case that such restrictions are necessary and proper to helping raise armies.) But a restriction on all funeral picketing, with no connection to federal activities, would be pretty clearly unconstitutional.

19 Comments
AP Error About Funeral Picketing Restriction Makes Its Way Into New York Times:

Today's story in the New York Times says:

Under the Senate bill, approved without objection by the House with no recorded vote, the "Respect for America's Fallen Heroes Act" would bar demonstrations within 300 feet of the entrance of a cemetery and within 150 feet of a road into the cemetery from 60 minutes before to 60 minutes after a funeral.
But as I wrote a few days ago, the law bars only access-impeding demonstrations within 300 feet of the cemetery entrance, and only demonstrations that involve "noise or diversion that disturbs or tends to disturb the peace or good order of the ... ceremony" within 150 feet of the entrance road. If the latter provision is interpreted the way it has been in other laws that contain this language, it will be simply a content-neutral ban on speech that disturbs because of its noisiness and not its message.

There are some possible problems with the law, which I discuss in more detail here. But the law does not, as the AP — and now the New York Times — suggests, "bar protests within 300 feet of the entrance of a cemetery and within 150 feet of a road into the cemetery from 60 minutes before to 60 minutes after a funeral."

By the way, does anyone know what's a reasonably reliable way of alerting the AP — not the particular newspaper that has run an AP story — to errors in its stories? Do any of you have a sense of whether such messages would be worthwhile? (For instance, do newspapers that rerun stories work off the master on the AP site, so that if the master gets corrected, future copies will no longer have the error? Have you ever had success yourselves with getting AP to make such corrections?) It would have been good if I could have persuaded the AP to correct the error when the story first ran; on the other hand, I don't want to take the time to send them messages about future errors if it seems likely that such messages will be futile.

Thanks to fellow lawprof Eric Freedman for the pointer.

UPDATE: Commenter Jason Fliegel correctly points out that the ban applies to all demonstrations -- including favorable ones -- not just to protests. I was using protest as an imprecise term for demonstration, but it's better to be precise, especially if all it means is changing one word; I've therefore changed the post (in which I used the term "protest") accordingly.

17 Comments
ACLU Backs Funeral Picketers:

The ACLU has filed suit on behalf of a religious group that pickets military funerals with anti-gay messages. The suit challenges the state of Missouri's law barring picketing near military funerals. An equivalent federal measure was signed into law earlier this year. According to the Washington Post:

The church and the Rev. Fred Phelps say God is allowing troops, coal miners and others to be killed because the United States tolerates gay men and lesbians. . . .

In the lawsuit the ACLU says the Missouri law tries to limit protesters' free speech based on the content of their message. It is asking the court to declare the ban unconstitutional and to issue an injunction to keep it from being enforced, which would allow the group to resume picketing.

UPDATE: I neglected to note that Eugene has addressed the constitutionality of limits on funeral picketing in this article for National Review Online (and here on the VC).

109 Comments
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).

23 Comments
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.

42 Comments