Today’s Phelps-Roper v. Strickland upholds a ban on “‘picketing’ or ‘other protest activities,’ within 300 feet of the funeral or burial service, from one hour before until one hour after the funeral or burial service.” (“Other protest activities” is defined as “any action that is
disruptive or undertaken to disrupt or disturb a funeral or burial service or a funeral
procession.”)
The court concludes that the ban is content-neutral, serves the important government interest in “protect[ing] the citizens of Ohio from disruption during the events associated with a funeral or burial service,” including disruption in the sense of “unwanted communication that implicates … privacy interests” of a “captive audience.” And:
Individuals mourning the loss of a loved one share a privacy right similar to individuals in their homes or individuals entering a medical facility. Indeed, the Supreme Court has already recognized the privacy right of individuals to control the body and death images of deceased family members sufficient to prevent their disclosure under the Freedom of Information Act. See Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157 (2004). In Favish, the Supreme Court held that an individual’s request for death scene photographs of a public official were protected from disclosure under Exemption 7(C) of the Act “when the family [of the decedent] objects to the release of photographs showing the condition of the body at the scene of death.” Id. at 160. The Court based its holding on cultural traditions and common law protections….
The concerns for a survivor’s rights articulated in Favish are perhaps even greater in the context of a funeral or burial service. As the Favish Court observed, burial rites implicate the most basic and universal human expression “of the respect a society shows for the deceased and for the surviving family members.” A funeral or burial service is a moment of collective, shared grief when many come to pay their final respects to the deceased and to offer comfort to one another. As such, funeral attendees “have a personal stake” in “objecting to unwarranted public exploitation that … intrud[es] upon their own grief.” Unwanted intrusion during the last moments the mourners share with the deceased during a sacred ritual surely infringes upon the recognized right of survivors to mourn the deceased.
Furthermore, just as a resident subjected to picketing is “left with no ready means of
avoiding the unwanted speech,” mourners cannot easily avoid unwanted protests without sacrificing their right to partake in the funeral or burial service. And just as
“[p]ersons who [] attempt[] to enter health care facilities … are often in particularly vulnerable physical and emotional conditions,” Hill v. Colorado, it goes without saying that funeral attendees are also emotionally vulnerable.Phelps-Roper, however, contends that funeral attendance is voluntary and funeral attendees
can merely “avert their eyes” from undesired communication to avoid funeral protests. To begin with, attendance at a funeral or burial service cannot be dismissed as nothing more than a “voluntary” activity. As Respondents assert, “deep tradition and social obligation, quite apart from the emotional support the grieving require,” compel individuals to attend a funeral or burial service. Furthermore, if individuals “want to take part in an event memorializing the deceased, they must go to the place designated for the memorial event.” Friends and family of the deceased should not be expected to opt-out from attending their loved one’s funeral or burial service. Nor can funeral attendees simply “avert their eyes” to avoid exposure to disruptive speech at a funeral or burial service. The mere presence of a protestor is sufficient to inflict the harm.
The Circuit, though, relied partly on the fact that “The Funeral Protest Provision, by its terms, does not necessarily proscribe marching or walking within the 300-foot zone,” so in principle such a march would still be allowed, even during the funeral, so long as it isn’t sufficiently “disrupt[ive] or disturb[ing],” whatever exactly that means.
I sympathize with the funeral attendees whom the law is aimed at protecting, but I don’t think this analysis quite works.
1. To begin with, I’m not sure that the law — as interpreted by the Sixth Circuit itself — is in fact content-neutral. The court concludes that “The Funeral Protest Provision only restricts picketing or other protest activities that are directed at a funeral or burial service,” and thus wouldn’t apply to hypothetical picketing of a business near the funeral home. But that, I think, makes the law content-based, because whether a protest is “directed at a funeral or burial service” appears to refer to whether the message of the protest comments on the funeral.
If the law banned all picketing within 300 feet of the funeral where the picket line passed by the entrance, that would be a content-neutral definition of directedness, but that’s pretty clear not what the law does. That’s why I infer that picketing critical of the deceased that is located on a small patch of sidewalk 200 feet from the sidewalk is covered by the law. And it’s covered, under the Sixth Circuit’s interpretation, only because its message relates to the funeral.
2. The precedents on which the court relies upheld much narrower restrictions than the law did. Frisby only upheld a ban on picketing “before or about” the home; Madsen struck down a ban on picketing within 300 feet of an abortion provider’s home; and Colorado v. Hill likewise upheld a ban that left people free to picket near the abortion clinic. (The law in Hill barred people from approaching within eight feet of someone to give them a leaflet or display a sign, but not from standing not far from the clinic with a sign.) The Sixth Circuit tries to minimize the significance of these differences, but I didn’t find that part of the court’s analysis persuasive — though perhaps the court’s conclusion that marches past the funeral location remain allowed by the ordinance would indeed sufficiently limit the scope of the ordinance.
For the Eighth Circuit’s 2007 decision granting a preliminary injunction against a somewhat different funeral picketing ordinance, see Phelps-Roper v. Nixon. That decision seems inconsistent with the Sixth Circuit’s, though there is no square circuit split yet: The Eighth Circuit held only that the Phelpsians had a fair chance of success on their First Amendment claim, and that therefore a preliminary injunction should be granted. (Some preliminary injunction decisions involve definitive rulings on certain questions of law, but the Eighth Circuit decision expressly declined to make such a definitive ruling.)