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.

britney (mail) (www):
I think this is yet another waste of time on debating a dead issue really who cares if someone pickets someone elses funeral maybe the person was a bad person or stood for bad things!
4.4.2006 9:04pm
Sasha (mail):
If someone's fired for First Amendment activity while working at a state-owned mortuary, is there funeral Pickering?
4.4.2006 9:08pm
Adam K:
That is the worst pun I have ever read in my life. Accordingly, I fully plan to steal it and pawn it off as my own in order to impress fellow law nerds.
4.4.2006 9:46pm
Sasha (mail):
Here's another one that you can use for free: "It's not just eerie, it's Erie and its progeny!"
4.4.2006 10:04pm
Mike BUSL07 (mail) (www):
britney, are you being sarcastic? If not, please consult the threads below for the views held by Mr. Justice Holmes on sterlization. Just kidding.

But seriously, consult them.
4.4.2006 10:06pm
Mike BUSL07 (mail) (www):
This OWH jr quote needs reposting to this thread:

A pun does not commonly justify a blow in return. But if a blow were given for such cause, and death ensued, the jury would be judges both of the facts and of the pun, and might, if the latter were of an aggravated character, return a verdict of justifiable homicide.
4.4.2006 10:10pm
Walk It:
4.4.2006 11:46pm
Dave Hardy (mail) (www):
britney, are you being sarcastic?

Ms. Spears trolls at the VC only because she is interested in recent First Amendment caselaw. That, and she has the hots for legal intellectuals and wants to get into some of the posters' pants.
4.4.2006 11:55pm
While I do think the picketting of funerals is an entirely unfortunate issue, I somewhat question the sudden interest in banning Mr. Phelps activities. No one seriously suggested that his picketers should be banned from picketting funerals of homosexual citizens, indeed still no one has said such pickets however morally repugnant most people found such actions should be prohibitted in law.

Now that soldiers funerals are being picketted however apparently states are being galvanized into action. The Chicago Tribune article Professor Volokh links to mentions the Patriot Guard Riders who follow along with Fred Phelps and try to protect soldiers families from his vile message.

To my knowledge there was no similar outcry when Mr. Phelps felt the urge to trash gays, no states to my knowledge passed laws banning his protests after he picketted Matthew Shepard's funeral. There was a momentary national outrage to be sure, and people shook their heads, wagged their fingers but in the end we all just forgot about it and went about our lives.

My question is, what makes a soldier's family's pain more signifigant than a grieving mother who had her son brutalized and now has to deal with the jeers of people screaming that he's eternally damned to the nether pits of hell? I'm not saying our soldiers lives are worth less than gays, and I'm saying that all families dealing with the grieving process should be treated with dignity and respect or none should. I just personally find it disgraceful that nothing was attempted sooner and that suddenly what Fred Phelps is doing is getting coverage and the final condemnation.

It almost feels like the public was quietly "ok" with Fred Phelps bashing gays, but now that he's moved on to a wider, more "accepted" group its suddenly horrible.
4.5.2006 12:13am
Anonymous Koward:
What about on-line funerals?

So, if you're not playing World of Warcraft(WOW) more than 40 hours a week, and you're a while (sic) male in North America, then you're in the minority it seems. As am I. I've never played WOW. Not because I don't like it, but because I stopped playing virtual reality video games across the internet when my hands stopped working properly. About a year ago.

Anyhoo, apparently, about a month ago, this WOW player died in real life. So, she was really, actually, quite dead. As a tribute to her, her friends signed into his account, and resurrected her character inside the game. Then, her friends lined up in inside the game WOW to pay their respects to her in virtual reality. Kind of weird, but hey, think of the money you save on airfare.

So, all of her klan shows up on the shores of some lake inside the WOW game, and they form this long solemn line to pay their respects. Only, while they're waiting in line, members of their rival Alliance klan(Serenity NOW and Gnomeland Security) appear unexpectedly and massacre everyone. Including the recently deceased character. They kill her first, and then annihilate everyone there to mourn her passing. And, of course, they capture a video of the entire escapade and set it to a soundtrack, and upload it for all the world to see. I'm not making this up. Who could? However, the nerd consensus is that they were holding the wake in Winterspring, a "contested zone on a PvP server", so, apparently that was not such a bright move, in nerd-space.

Here's another video from WOW where some guys are planning a skirmish, but apparently Leroy bolts prematurely and gets them all killed. High res version here.

Posted by Peenie Wallie on April 04, 2006 at 08:10 PM
4.5.2006 12:31am
SmokeandAshes (mail):
Dear Kendall

Lets see if this will clarify something for you. Thankfully in America the murder of Matthew Shepherd was an abhoration not a routine occurrence but sadly the loss of soldiers, due to combat as well as accidental causes, occurs much more frequently. The reason the people are upset about the Wacko Phelps showing up at funerals is because it happens more often. Thank you for accusation of bigotry but you might look into the mirror every once and a while
4.5.2006 12:42am
Dear SmokeandAshes

Let me see if I can clarify something for you. Fred Phelps did not exclusively target Matthew Shepard. He has been known for the last decade repeatedly picketting funerals of gays. He has been known to pickett schools just because a student was gay and got an award or made some publicity. When the Harvey Milk Highschool opened in New York (a HS designed as a tolerant but not exclusively gay school though the media covered it as a "gay highschool) Fred Phelps loaded up the troops and picketted THAT.

When Diane Whipple was mauled to death by a pitt bull while the media focused on the tragedy of her death Fred Phelps focused on her lesbianism and picketted HER funeral.

Fred Phelps has repeatedly and consistently since the 1980s picketed funerals of AIDs victims. Fred Phelps hasn't protested at just one gay funeral in 20 years, he's picketed at hundreds perhaps thousands. But wouldn't expect you to understand that. The media only covers him when its a "sensational" event. The death of Matthew Shepard galvanized the country on the issue of gay discrimination (regardless of any recent controversy over why he was killed) and Fred Phelps merely took advantage of the publicity. He didn't get his start there, he simply came to YOUR attention then.

Fred Phelps is a man who takes pleasure in peoples pain. Fred Phelps decides to demonize, hate, and picket at sensitive places in emotional times to get a reaction. And no one cared until it happened to a soldier.
4.5.2006 12:57am
Eugene Volokh (www):
Kendall: Kansas -- which is Fred Phelps' home -- banned funeral picketing in 1992. A Chicago Sun-Times, July 15, 1992, reports that this law was enacted following a spate of local picketing of funerals of AIDS victims. Topeka also banned funeral picketing. And "[t]he day before Shepard's funeral, the Casper [Wymoing] City Council adopted [a] 50-foot no-protest zone for all funerals in the city."
4.5.2006 1:14am
Thank you for that context Professor, its much appreciated and I think does address my concern for the most part.
4.5.2006 1:17am
SmokeandAshes (mail):
Kendall - First I apologize for my tone. I should not have been snotty in my response to you. But, I have been aware of Mr. Phelps' activities for a long time now. He is one of the most vile things. My annoyance was with the proposition that no one cared until it was a soldier's funeral, in that you are wrong. A quick google found that in 1992 Kansas was trying to regulate this nutjob's picketing.
Running for the U.S. Senate, Phelps gets a remarkable 30.8% of the ballots cast in the Democratic primary even as he terms his opponent a "bull dike" [sic].

Largely in response to Phelps' and his followers' harassment of gays and others, the Kansas legislature passes laws regulating funeral picketing and penalizing stalking, and amends a statute outlawing telephone harassment to include faxes."
4.5.2006 1:34am
SmokeandAshes - Appology accepted and I do appreciate that context. Its a very emotional issue and I do understand some areas already addressed it, I just think most areas decided to be reactive to Phelps (only reducing his ability to protest when he's directly and currently doing so in response to a gay person's funeral in a city) before and are suddenly taking a proactive approach to Phelp's protests (as evidenced by funeral laws in states where Phelps is not currently protesting)
4.5.2006 1:48am
I joined the Patriot Guard Riders in part because I'd hate to see the First Amendment eroded by "bad facts" like Phelps. Counter-speech is a better answer than legislation in most cases, and it's been quite effective in this one.
4.5.2006 10:45am
Gotta back Kendall on this one. To say that Kansas and the Casper, Wyo City Council actions mean people really cared about this picketing before it involved soldiers' funerals is silly. (Who knew Casper had a city council?)

The reality is that this story did not get nearly the same level of national play until it happened to more "sympathetic" people. To the extent the Matthew Sheppard or Kansas cases got attention, that only came in the context of pointing out how loony Phelps was, not how up in arms the entire country was about his actions.
4.5.2006 11:37am
I'd say there is a bias, but its not due to sexual orientation.

The funeral of soldiers get more attention than gay funerals for the same reason that the funeral of a police officer or fire fighter killed in the line of duty gets more attention than funeral of one that retired decades before their death.

The difference is that the soldier was doing something that essentially, at the moment of death, was an act of keeping others from peril. People naturally feel more grateful to a person who gives their life for others (John 15:13 comes to mind to most Christians and certainly most soldiers). I have no doubt that if Phelps dared picket the funeral of a gay fire fighter that died in a house fire; he would draw more negative attention than if he picketed the funeral of a soldier who died in a war far away.
4.5.2006 12:18pm
Leland -
I have no doubt that if Phelps dared picket the funeral of a gay fire fighter that died in a house fire; he would draw more negative attention than if he picketed the funeral of a soldier who died in a war far away.

BT: Right. So, when was the last time you guys were in New York City?

FRED: Well, it hasn't been long ago. We've been up there three times since Sept. 11 picketing with big signs that say "Thank God For Sept. 11" and that the FDNY is a fag fire department.

BT: Why's that?

FRED: Well because they're laced with fags and their fag agenda and their chaplain was fag priest named Mychal Judge

If you didn't know, Father Mychal Judge was quietly, openly gay. Father Mychal Judge was a member of the Franciscan order of Catholic Priests. Father Mychal judge was a member of Dignity, a gay catholic group. Father Mychal Judge was killed administering last rights to a dying person on september 11. And Father Mychal Judge's funeral was picketed by Fred Phelps because Father Mychal judge was a homosexual.
4.5.2006 12:53pm
Eugene Volokh (www):
Kendall's thesis seems to me plausible, for some of the reasons that Leland mentions, as well as because of hostility to homosexuals. But "not unlikely" isn't the same as "supported by the evidence." I pointed to the Kansas and Topeka laws because those were the places where Phelps was most active, and the Caspar ordinance because Kendall himself brought up the Shepard funeral picketing, and because this was the most prominent example of Phelps' outside-Kansas funeral picketing.

To support the weak version of Kendall's and Josh's thesis -- which is that people's concern about funeral picketing was depressed by the fact that the funerals were of gay people -- would require some more information about how often Phelps was picketing funerals of gays outside Kansas. The strong version of their thesis, which is that "no one cared until it happened to a soldier" and that "people [didn't] really care[] about this picketing before it involved soldiers' funerals," is mistaken. Getting a state law passed is not generally very easy (getting a city ordinance passed isn't trivial, either, though it's easier). People obviously did care, and cared a considerable amount, though there still remain the questions of whether they would have cared more if the funerals were of straights (that would reflect anti-gay bias) or if the funerals were of soldiers (that would reflect Leland's description of pro-our-defender bias).
4.5.2006 1:40pm
Thorley Winston (mail) (www):
Question: could a city council, rather than prohibiting funeral picketing outright, merely require that those who wish to picket obtain a permit to do so at some designated time in advance (say 20 or 30 days)? Would this fall under the ability to regulate time, manner, and place or would it not be considered "content neutral" if it only applied to pickets but not funerals?
4.5.2006 1:58pm
Fran (mail) (www):
I would think that it is common knowledge that less accepted members/groups of society would be less likely to garner any support from the media.

I would also think that the law that passed in Kansas wasn't motivated from the desire to protect gays. The law passed to help protect fundamental christians from the potential backlash from the rest of society as to their association as christians with the Phelps group.
4.5.2006 2:05pm
Thorley Winston - Wouldn't such a law by necessity ban all picketing at funerals held where burial takes place in less than 20 days?
4.5.2006 2:55pm
That is, to be clear, wouldn't it ban all picketing where the funeral and burial ocurred less than 20 days after the funeral was scheduled and made a known event to would be protestors?
4.5.2006 2:57pm
I suspect another reason that Phelps is getting a lot of attention now is that I imagine every soldier's funeral gets some media coverage by local press at least, so what is going on is more blatant and obvious to more people. I know that where I live, the death in Iraq or Afghanistan of anyone with a local connection ("local connection" = 50 - 100 miles away and sometimes even if they just have family here but haven't lived here in a long time) is featured in the local news. Some of the more "local" locals have several news stories and press attending the funerals. Hence, first hand observations by the press of the picketing that are more likely to make it into follow up news stories.

If the vast majority of us died I suspect the local press wouldn't much notice, though the paper would be happy to sell our survivors obituary space. If my funeral was somehow picketed, it would be a "done deal" with no pictures or pithy quotes (and not much change to recreate it) by the time the press was notified, if they even were.

With the soldiers, though, you can literally "follow the dots" and see the pattern develop, plus the press has, more or less, advance notice of where he and his hateful band will show up. I also wonder how many of these protests were in National Cemeteries. Did he ever picket at Arlington National Cemetery?
4.5.2006 4:51pm
4.5.2006 6:00pm