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.

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.

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.

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.

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.

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).

(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.)

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.