The Volokh Conspiracy

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).

(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.

(Click here to hide most of the above.)