A funeral for free speech?

Monday, April 17, 2006

This op-ed originally appeared in Legal Times (April 17, 2006) and is reprinted with permission.

Decency respects the dead, whereas the First Amendment respects freedom. Which kind of respect should prevail when the two collide?

Specifically, can funeral protests be outlawed without abridging the First Amendment? That question is being widely ignored in the rush to enact federal and state laws to ban such forms of free expression.

The conflict has arisen because members of the Topeka, Kansas-based Westboro Baptist Church have been demonstrating at the funerals of American soldiers killed in Iraq. Armed with signs and slogans, they proffer a bold (and wrong-headed, in the minds of many) charge: God is taking America’s finest because our nation tolerates homosexuality.

Understandably, such public expressions of heartless protest offend the families and friends of the dead. And many legislatures have responded quickly to their concerns. In doing so, however, lawmakers have been overlooking significant First Amendment problems with the resulting legislation.

Passing laws
Thirty-two states are now considering or have passed laws criminalizing funeral protests. At least nine states — Arkansas, Indiana, Kentucky, Missouri, Nebraska, Oklahoma, South Dakota, Virginia, and Wisconsin — have already enacted such laws.

At the national level, Sen. Evan Bayh (D-Ind.) recently introduced the Dignity for Military Funerals Act of 2006 (S-2452). The Senate bill would prohibit “picketing,” which is defined as “protest activities … within 300 feet of a cemetery, mortuary, or church” from one hour before the funeral of any military member to one hour after the conclusion of the funeral. The measure carries a penalty of up to five years’ imprisonment for violating the restriction.

On the House side, there is the Respect for America’s Fallen Heroes Act of 2006 (HR 5037). The proposed law would prohibit picketing at cemeteries under the control of the National Cemetery Administration and at Arlington National Cemetery. Section 4 of the measure also provides: “It is the sense of Congress that each State should enact legislation to restrict demonstrations near any military funeral.”

The state measures take different forms, but most impose a distance requirement on picketers or a flat ban on protests from an hour before to an hour after all funerals, not just military ones.

Still others target “fighting words” on signs. These laws are premised on a rarely used legal doctrine arising from the Supreme Court decision in Chaplinsky v. New Hampshire (1942). It is designed to punish face-to-face personal insults that incite an immediate breach of the peace.

This doctrine has limited, if any, applicability to the recent funeral protests because of the lack of close proximity allowing physical contact, the lack of a direct provocation to violence, and the lack of imminence of an actual, significant breach of the peace. (And if somehow all these elements were present, the funeral-protest legislation would be unnecessary because existing laws against breach of the peace would suffice to handle the situation.)

Supporters also contend that such measures protect familial privacy. But the “privacy” claim is difficult to comprehend because it hinges not on information being publicly disclosed that is otherwise private, but rather on the content of what is publicly expressed at the funerals.

Supporters also contend that family members cannot mourn in peace when confronted by offensive, hateful messages. But families certainly can mourn in peace. They can mourn in peace inside a church or temple, inside a funeral home or a private cemetery, or inside their homes. Their mourning ceases to be private, however, when they seek to mourn in public places.

Offensive speech
Even if the messages of the funeral protesters are offensive, one of the core purposes of the First Amendment is to protect offensive, obnoxious, and even repugnant speech. The late Justice William Brennan Jr. put it eloquently in a 1989 flag-burning case, Texas v. Johnson: “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

First Amendment jurisprudence also wars with laws that discriminate based on content and, particularly, viewpoint. Content-based and viewpoint-based laws are presumptively unconstitutional and seldom survive the “strict scrutiny” by which they must be judged.

Some argue that the funeral-protest laws are no more than reasonable time, place, and manner restrictions that do not discriminate based on content. But that is not the case. The stated or actual purpose of most, if not all, of these measures is to silence objectionable messages.

If protesters like the tiny band of Westboro Baptist Church rabble-rousers are prohibited from displaying obnoxious messages, but family supporters like the Patriot Guard Riders (a group of motorcyclists who attend funerals to honor the dead and to shield the family from protesters) are allowed to display laudatory messages, then there is viewpoint discrimination.

Although the proposed federal laws are necessarily limited to military funerals (because of Article I jurisdictional constraints), this is not so in the states. Thus, in the states that ban or regulate public “protests” at all funerals, it would be illegal to protest at the funeral of someone like Lee Harvey Oswald, President John F. Kennedy’s contemptible assassin.

The point here is less a legal one than a policy one. Do we really want to say, categorically, that all protests at all funeral events conducted in public are beyond the pale of decency? Is there no such thing as righteous anger against the dead? Consider the case of John Wilkes Booth. When his remains were finally released for burial, rightfully indignant Americans understandably desired to manifest their moral outrage against the man who murdered President Abraham Lincoln.

Yet once the law starts to carve out exceptions as to which public funeral protests are or are not permitted, then, of course, it violates the content-neutrality principle of the First Amendment.

Additionally, under both the proposed federal and state laws, it would be illegal for a sincerely religious group to raise protest placards with messages such as: “Pray for the souls of our fallen men and women who died in America’s unholy war.” They might, however, be able to hold signs that read “Pray for an end to war,” provided such messages are not deemed to be “protest activities.”

This example suggests the potential vagueness and overbreadth problems of such laws. Equally important, it points to the policy problem of deciding what constitutes unlawful protests. That is, do the drafters of these laws really want to say that public prayer (or the call to it) could well be synonymous with protests and thus illegal? Or do they assume that prayer will be “tolerated,” provided it is acceptable prayer (that is, prayer acceptable to those who sit in judgment on it)?

Not like abortion clinics
Supporters of these funeral-protest laws also point to laws that established buffer zones outside abortion clinics. In Hill v. Colorado (2000), a badly divided Supreme Court upheld a 1993 Colorado law that created a buffer zone of sorts around those entering and exiting abortion clinics.

That precedent, however, lends little real support for funeral protest legislation. There are important differences between the funeral protests and those abortion-clinic protests.

First, the abortion-clinic case concerned the constitutional right of access to reproductive health services. In the funeral protest context there is no conflicting constitutional right to balance against the right of free speech. There is simply no constitutional right to have a public funeral free of protests.

Second, the Colorado case involved an eight-foot restriction on persons approaching patients within 100 feet of the facilities. Such restrictions are far less troublesome than the 300- to 1,000-foot restrictions in the various funeral-protest measures. The reason is that the greater the required distance between protesters and the object of their protest, the greater the likelihood that such protests will be rendered ineffective or meaningless.

Finally, proponents urging bans or restrictions on funeral protests assert that the Supreme Court has upheld laws banning residential picketing. In Frisby v. Schultz (1988), a divided Court allowed certain restrictions on protests at a particular residence. As Justice Sandra Day O’Connor put it, “the home is different.” The point, as she saw it, is that while “we are often ‘captives’ outside the sanctuary of the home and subject to objectionable speech,” Americans are not required to welcome unwanted speech in their homes. Under this reasoning, funeral protesters could not rally in front of a home in which, for example, bereaved Jewish mourners were sitting shiva.

But the situation is different where the unique sanctuary of the home is not involved. There, even mourners may well be subject to objectionable speech.

And notwithstanding Frisby, the Court has also said that various other forms of unwanted expression (such as leafleting and door-to-door proselytizing) are constitutionally protected even in residential settings. Thus, even in the unique setting of the home, absolute bans on expression are not tolerated.

Furthermore, there is the concern ably articulated by UCLA law professor Eugene Volokh in a National Review Online article: “Once the supposedly narrow exception for residential picketing is broadened to cover funeral picketing, these two exceptions … could then be used as precedents in arguments for more exceptions (say, for churches or for medical facilities), which would eventually swallow the rule.”

And this possibility is more than abstract. Westboro Baptist Church announced on April 3 that it was expanding its picketing policy to include American soldiers maimed in Iraqi bombings. The possibility of this sort of speech at hospitals is now far from remote, and one to which legislators will likely respond.

In all of this, it is well to remember what the government can rightfully regulate in the funeral context. This includes noise levels, obstructionist behavior, disorderly conduct, trespassing, crowd size, genuine threats, and even fighting words, if indeed that’s what they are (and not merely provocative or offensive speech). All of these restrictions should allow families the reasonable ability to conduct funerals, while still preserving the constitutional right of political protest.

It is a simple truth: 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.