Michigan is one of thirty seven states to enact laws regarding funeral protests in the United States, stemming in large part from the Respect for America’s Fallen Heroes Act. The act prohibits protests within 300 feet of any cemetery under the control of the National Cemetery Administration and for sixty minutes before and after any funeral. It also urges states to enact similar laws. Obviously, these laws bring up numerous constitutional questions. Lawsuits have been filed in several states, including Kentucky’s McQueary v Stumbo where a judge struck down parts of the law claiming, that while the regulation was content-neutral and respected privacy interests of families, the law was not specific enough to be consistent with the Constitution. So if courts are already declaring these laws unconstitutional, why are they still enforced in many states? What arguments are used to justify their existence?
The Kentucky court touched on two of the main ones: privacy rights of families and content neutrality. There are also protest limit precedents and fighting words. I will try to touch on all of these in order to make some sense of the murky legal waters in which these lawsuits find themselves. Let’s first deal with the privacy issue.
One of the major court cases considered when discussing the privacy issue is Frisby v. Schultz, which prohibits picketing within a certain distance of private residences, citing a captive audience. The Supreme Court has echoed the sentiments of these funeral protest laws in National Archives and Records Administration v. Favish when it stated “Family members have a personal stake in honoring and mourning their dead and objecting to unwarranted public exploitation that, by intruding upon their own grief, tends to degrade the rites and respect they seek to accord to the deceased person who was once their own.” Clearly, these rulings could be used to justify these laws, however, neither seem to deal with any of the privacy torts. Intrusion could be used to justify these laws because a protest could be seen as a physical intrusion into a person’s private space, but I’m not sure the privacy of a funeral is quite as substantial as the privacy of the private residence as established in Frisby. It is obvious the courts want funerals to fall under privacy rights, but I’m unsure as to the stability of these claims.
Moving on from privacy, we can look at the precedent set for limits to protests, such as the 500 feet required in the Michigan law. Again, we can cite Frisby v. Schultz for this because it stated the fixed zone still allowed for plenty of other alternatives for the speech. Other cases like Boos v. Barry, Madsen v. Women's Health Center, and even a Supreme Court ruling in Hill v. Colorado have upheld various numerical restrictions on protest zones. The Supreme Court in Hill v. Colorado took a decidedly libertarian approach to the issue when it stated that a "bright-line prophylactic rule may be the best way to provide protection, and, at the same time, by offering clear guidance and avoiding subjectivity, to protect speech itself." However, several funeral protest laws have been overturned based on the degree of restriction to speech the specific size of the restricted space imposes. Since the courts can’t even reach a consensus among themselves, it is doubtful these precedents will help us make much sense of the issue either.
Perhaps the most compelling argument toward the constitutionality of these laws is the assertion of content neutrality. In almost every case dealing with these laws, the court has found the restrictions on protests to be content neutral. I’d have to agree. Having read numerous statutes, none apply these restrictions solely to individuals who would show sentiments against the deceased or the deceased family. Most deal with disturbing the peace and fighting words, which are already established exceptions to First Amendment rights. In theory, the statute would apply to both the Westboro Baptist Church and Patriot Guard Riders alike. However, many point out that simply the wording of the laws constitutes viewpoint discrimination because of the word protest. This would certainly imply that the signs are not meant to show respect and loved for the deceased. I also wonder if there isn’t some validity to this claim as well.
After exploring the issue instead of coming to a conclusion, I find myself only more unwilling to pass judgment on the issue. While certainly protecting the family who has lost a loved one is a sentiment I want whole-heartedly to support, I’m not sure I’m willing to do so with the understanding that it is inconsistent with the First Amendment. Therefore, I would suggest the Supreme Court take the first opportunity it gets to review this issue and carefully consider the issues at hand. As the Hill Court stated, I really do believe a carefully crafted bright-line rule is the best way to finally lay this issue to rest. I would hope that once it is all said and done, the opinion embodies the sentiments expressed in this quote by Ronald Collins and David Hudson Jr in the Legal times: “The highest respect we can pay to our fallen war dead is to respect the principles for which they made the supreme sacrifice. We honor them by honoring those principles of freedom — even when a callous few vainly attempt to demean the dignity rightfully due them.”
Also used in researching this post:
McCarthy, Robert F. "The Incompatibility of Free Speech and Funerals: A
Grayned-Based Approach for Funeral Protest Statutes." Ohio State Law
Journal 68 (2007): 1470-1507. LexisNexis Academic. LexisNexis. 6 Apr.
2009
I was having a difficult time trying to decide which side was correct in the case for my blog this week too! You lay out both points of view very well, but I still think protests ought not to be allowed at funerals. Courts have found many similar laws to be constitutional.
ReplyDeleteIn my last blog, I wrote about a law that used a specific distance to keep protesters away from medical patients. This law was found constitutional because of a test found in Ward v. Rock Against Racism. I feel this test would be applicable here. For the law to be constitutional:
1. the regulation is about where the speech can occur, not its content
2. the regulation wasn't created because of the message of the speech
3. the state's interest in creating the regulation wasn't related to the content of the speech
i.e. the law is content-neutral, like you said. I feel the privacy of the family is also a sound argument for the law's constitutionality. The attendees at a funeral are generally wanted by the family of the deceased, and I feel it is perfectly reasonable to ask someone unwanted to leave. In the specific instance you mentioned at the beginning of your blog, the outcome was reasonable because the family wanted the anti-Bush couple there. If unwanted people won't leave is where the issue comes in. This is why I feel cases concerning these laws should be considered on an ad-hoc basis, but with the consideration that the laws are constitutional.
I really enjoyed reading your posting. It was intellectually stimulating. This is a touchy subject but the same could be said about everything the Supreme Court hears. I believe that everyone should have the right to protest or picket so long as they have a permit and depending on the situation a police escort. Protesting certain spaces should not be outlawed merely because it makes others feel uncomfortable or gives rise to controversy since these are usually the expectations of a protest. Still, even though protesting at someone’s funeral is distasteful and rude, it should not be unconstitutional. People have different opinions and sentiments towards the actions of people while they are alive and these should not be rendered without merit even though one does not agree with them. Hypothetically-speaking, protests outside Hitler’s funeral would not necessarily ignite a firestorm as do reports of the Westboro Baptist Church’s plans of protesting outside the funerals of American soldiers. But if anything, the Westboro Baptist Church and their childish antics demonstrate the effectiveness of our legal system. They have a right to protest just as we have a right to speak against their actions.
ReplyDeleteThis argument reminds me of the case Tinker v. Des Moines Independent Community School District in which the Supreme Court handed down a decision that prevented the regulation of expression by students merely because it was deemed controversial. Instead, an overt disruption to the daily activities of the school had to exist before appropriate actions could be taken by school officials. Pundits may argue that a protest may disrupt the assumed normalcy of events in a funeral therefore these should be outlawed. But this could be said of any situation in which opposing ideologies come together.
The only way I could see that protesting be prevented at funerals would be through an approach of trespassing. If the funeral home or the cemeteries are private property, then those who are not affiliated with the event should not be granted entrance. Those who violate this should rightfully have the police called on them. This defense maintains a level of respect for the families of the dead while not violating the constitutional right of freedom of assembly and of speech of those who desire to speak their thoughts. Overall, this is a very interesting and captivating topic to be discussed.
I'd like to start by saying you lay out the issues very well. It occurs to me that I may have been neglecting to say this in my previous comments to people, but I certainly meant to say it. My apologies.
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On issues like this I realize that we sometimes need to be reminded WHY we live in a society of laws. To some people, there will always be things more sacred than civic duty or obligation to the law. The concept of "family" is ancient and runs deeper in who we are than judicial precedent or even the Constitution. I hold my family as more precious than my own self, and I know many of the people I know feel the same way. And so, we have this First Amendment, this cryptic writing that seems so simple and yet can be twisted to mean so many different things. We like to believe that it was set down to do good things, to offer protection. Today it is considered by and large something horrific to "enforce morals". The presumption is that it is perfectly fine to enforce the law precisely to the letter of the text, regardless of its spirit, but because not everyone shares the same set of moral principles, the expectation of any morality is unreasonable.
I don't agree with this commonplace perspective.
Officials are struggling to find legally sound reasons to prohibit picketing at funerals, and I support that, no matter how strongly I feel about the First Amendment. One solution may be to classify any hate speech at a funeral as necessarily fighting words because the sensitivities of those present can be reasonably expected to be different than usual and somewhat unpredictable.
My father, thank God, is still with us today, and he is a veteran. If a twisted organization like the WBC were to show up at his funeral and harrass me and my family when we were feeling the most vulnerable, I have little doubt that myself and several other men in my family would be facing murder charges. (We'd request a jury trial). I don't think that this is an unusual response.
A funeral has never been a reasonable public forum. Even guests of the family, by all reasonable expectations, keep their mouths shut if they have anything negative to say about the deceased. That's the commonly-understood nature of a funeral. There is no basis to claim that a funeral used to be a public forum, and that any laws that say otherwise are restricting a pre-existing right. It has never been a "right" to protest at a funeral, and so Congress has not passed any laws abridging such a right.
Freedom Riders may or may not be protesters. I view them as extended Paul bearers. They always ask the permission of the family before they make plans to show up, and are therefore guests to the event.
Even in states where there are laws prohibiting picketing AT funerals, allowances are made so that the picketing can go on in certain places, far removed from the ceremony. The protestors have a right to speak, but that does not mean they have legal authority to force police to force the grieving family to listen.