Funeral Picketing and Residential Picketing:

I've tried to explain recent posts why I think this particular verdict against the Phelpsians is unconstitutional, because the intentional infliction of emotional distress tort and the invasion of privacy tort can't properly be used to punish such speech. But may a legislature permissibly enact statutes banning funeral picketing, perhaps by analogy to many jurisdictions' bans on residential picketing?

I discussed this in some measure last year; and it seems to me that indeed a content-neutral ban on picketing immediately in front of a place in which a funeral is being conducted would likely be upheld, just as content-neutral bans on picketing immediately in front of home are upheld.

But the bans would have to be content-neutral, rather than relying on criteria such as "outrageous[ness]" or "offensive[ness]," which invite an inquiry into the speaker's viewpoint. Compare Carey v. Brown, which struck down a residential picketing ban because the ban had a content-based exception for labor picketing.

The bans would also have to be narrow. Even as to residential picketing, the Court upheld restrictions in large part because they left open the alternative of parading through the neighborhood, and later struck down an injunction that created a 300-foot no-picketing buffer zone around certain residences. It's hard to see how, given this, the Court would uphold a ban that would cover the Phelpsians' speech 1000 feet away from the church at which the funeral was taking place.

Of course, the consequence of these limitations is that people would still be able to express their anti-American, anti-gay, cruel, unduly personalized, and just plain disgusting views in places where the bereaved could see them -- on radio programs (should such a program invite the speakers as guests or take their calls), in picket signs that aren't right in front of the funeral but are visible from the funeral procession, in press releases that some media outlets may report on, on Web sites, and the like. But repugnant as this speech may be, it seems to me that the First Amendment requires that it be tolerated.

John Kindley (mail) (www):
Prof. Volokh:

Part of your argument is based upon what First Amendment jurisprudence currently says; and part is based on how you think it should be interpreted, the direction it should go, and policy / "slippery slope" arguments (which, as you identify as a libertarian, I'll assume are based on corresponding notions of natural justice). I'll defer to you on the former part of your argument but question your conclusions with regard to the latter part of your argument. Specifically, I don't think that natural justice and policy/slippery slope considerations require that "people would still be able to express their anti-American, anti-gay, cruel, unduly personalized, and just plain disgusting views . . . in picket signs that aren't right in front of the funeral but are visible from the funeral procession . . . ."

If I imagine an anarchist but for the most part just society that is not entirely pacifist, I think that family and friends of the deceased would be well within their rights to chase such protesters away from the vicinity of the funeral, clean out of sight and out of hearing. As things stand now, however, family and friends would get themselves in trouble with the government for doing so, and the burden is on people who would say that they should indeed incur consequences from the government to justify why this is so. On the other hand, in a just natural society that respects personal space and free speech, I don't think friends and family of the deceased would be justified in going out of their way to disrupt a protest taking place a mile away or across town, or to somehow prevent people like the Phelpsians from calling into radio stations, issuing press releases, or posting their hateful garbage on websites, and the like.

I wonder whether we haven't fetishized public protesting and overstated its importance in the discourse and truth-seeking that the First Amendment was designed to protect. Certainly when such protests intentionally, coercively and aggressively invade the space of the objects of their protest, even in public places, considerations of personal space and the right to be left alone are just as important from the freedom-loving point of view as the right to free speech. (And I don't think we can arbitrarily set the boundaries of personal space with something like a 300 ft. "buffer zone." Seems like it has more to do with whether the speaker is intentionally and coercively imposing his speech on another in a way that the other can't avoid, e.g., if the protesters in this case got advance notice of the funeral procession route and set up their protest and held their abominable signs along that route.)

I'm inclined to distinguish such things as abortion clinic protests by suggesting that people do have a right to protest conduct or speech with which they disagree as it is happening. Objectionable conduct or speech "opens the door", so to speak, to contrary speech and protest. Such a principle would preclude, e.g., residential picketing of an abortionist's home, which I don't think would be a bad thing -- i.e., I don't think the discourse of this nation would suffer because of such a preclusion (and I'm pro-life and as an undergrad participated in abortion clinic protests). I suppose the Phelpsians would respond by saying that they're not only protesting homosexuality but the actual celebration and "conduct" of this funeral, that this dead soldier should not be mourned by his family because he was part of the military of a nation which protected homosexuality. Now, that's just B.S., and maybe we'll just have to exercise our common sense and recognize the special case that funerals present by enacting a statute which prohibits protesting a funeral anywhere within sight or hearing of the funeral or the funeral procession. I don't see how such a statute could run afoul of the First Amendment properly interpreted in light of natural justice, because it seems that the natural right to mourn one's dead child in peace is every bit as fundamental as the right to free speech. Indeed, the right to mourn one's dead child in peace would seem to be protected by the other part of the First Amendment having to do with free exercise of religion. (Government action being implicated because in the absence of a robust recognition of this right family and friends of the deceased would be prevented from, or punished for, exercising their natural right to chase the protesters out of sight or hearing of the funeral.)
11.8.2007 7:29am
Jamesaust (mail):
I suppose there are two potential differences between this case and, at least, the Madsen case (the 300 foot restriction).

A. In the Madsen case, there was a permanent injunction setting out the 300 foot barrier from the abortion clinic. As such, there was criminal liability attaching to violation of that injunction. Here, this is merely a civil tort case. Thus, in Madsen the state was the party 'restricting' the speech whereas in the Phelps case (a) the state is not restricting anything, and (b) the 'restriction' is only upon that excess of action reasonably calculated to cause distress to and invade the privacy of persons. Protesters are not criminally liable for their harassment under this civil decision.

B. Barrier restrictions that are temporary in nature (during an even such as a funeral) are clearly less limiting to speech than those that are permanent. As a consequence, while a 300 foot barrier might be unreasonable around an abortion clinic or a home that are permanently (as long as they are clinics or homes) 'off limits,' in contrast a 300 foot barrier from a funeral of limited duration might be seen as a de minimus limitation -- protesters can protest all they want once mourners have left. How tangible is a restriction on speech that applies to only 8,759 hours of an 8,760 hour year?

(Query: if the "Dogs Are Superior Society" cannot get a parade permit for Avenue X for Y Hour on Day Z because the "Cats Are Superior Society" is parading at that moment at that spot and are offered instead Avenue X+1 or Hour Y+1 or Day Z+1, are the "Dogs" being deprived of their speech rights?)
11.8.2007 6:03pm
TDPerkins (mail):
Two posts from another thread which could be better placed here:

Does Prof. Volokh think Chaplinsky v. New Hampshire was wrongly reasoned?

If you do Sir, I cannot agree.

In fact, merely that few if any have risen to the bait does not mean the Phelpsians speech is not intended to be a "direct personal insult" by which they can pretext a lawsuit and thereby obtain funds.

Certainly they are not any "essential part of any exposition of ideas*" which are "a step to truth*" and "any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.*"

*Quotes from Murphy in Chaplinsky.

In short, are you of the opinion anyone should be legally able to say anything to anyone in any vaguely public venue, even when affecting an inherently nonpublic event such as a private funeral?

And if you are not comfortable with juries deciding the issue, are you comfortable with juries deciding to protect persons interfering with such speech, as is likely to happen when the Phelpsian's "speech" meets that test?

I do not feel it is the job of government to protect any and all speech at any time without regard to the burden to the public peace.

They can shout from their porch what they want, subject to the same decibel restrictions as anyone else. From streetcorners there can constitutionally be limits.

To be the more clear, I can agree the case at hand was wrongly decided insofar as one point at issue is concerned, emotional damages.

But I feel disallowing bans on such speech is requiring the public to afford the Phelpsians a podium, where there is clearly no requirement we afford them a printing press, in short, it is constitutionally acceptable that such all but perfectly repugnant speech be excluded from the involuntarily public sphere of the street--who should have to leave their route to avoid them? For those who use the street, this is compelled hearing of speech.

How's that constitutional?

Yours, TDP, ml, msl, &pfpp
11.11.2007 11:34am