In its decision earlier this year in Snyder v. Phelps, the Supreme Court controversially held that the First Amendment protected the speech of protesters at a Maryland military funeral against tort claims. In vindicating the free speech rights of the members of the fringe Westboro Baptist Church, the Court noted that the funeral picketers were unquestionably engaged in expressive activity, were doing so on a matter of “public concern,” and were protesting in a public space where they had a right to be. At the same time, however, Justice Roberts’s opinion noted pointedly that even core protected speech was subject to content-neutral “time, place, and manner” restrictions. Since the funeral protests in question took place before Maryland had any state law in place regulating such speech, the court did not deliver an opinion on what would have constituted a reasonable statutory restriction under the circumstances.

Unsurprisingly, several states have acted in the months since Snyder to enact legislation aimed at curbing the widely-reviled practices of the Westboro Baptists and similar organizations.

In Maryland, the state legislature has since enacted a buffer zone of 100 feet around funerals; more than 40 states now place some kind of geographical restrictions on funeral protests, with buffer zones ranging from 100 to 1000 feet.

In New York, Governor Andrew Cuomo last week signed two related laws intended to strengthen protections against disruptive protests. The first, to take effect early in 2012, triples the buffer zone around religious services, funerals, burials or memorial services to 300 feet from its original extent of 100 feet. The second, potentially more problematic, bill authorizes local governments throughout the state to erect buffer zones of up to 1000 feet and to institute a permit process for protests.

The State of Missouri saw its own protest restrictions ruled unconstitutional in federal court last fall, and has doggedly responded in the wake of Snyder by passing a new set of restrictions strongly similar to the invalidated old ones. The Missouri laws impose time limitations in addition to geographical barriers: protests are restricted for a period between two hours before and two hours following a funeral. The California legislature had recently considered a similar piece of legislation – S.B. 888 – before Governor Jerry Brown vetoed it last week, claiming that his hands were tied by Snyder.

This newest round of state legislation has already drawn protest from civil liberties advocates – ACLU chapters have already threatened to challenge the New York and Missouri laws – despite the general popularity of such restrictions. Because the Supreme Court failed to address the reasonableness of state statutory schemes in Snyder, the matter remains unsettled. However, the Court’s First Amendment jurisprudence does provide some general guideposts, and the state restrictions are vulnerable to constitutional challenge on two basic grounds.

 

The first potential criticism of funeral protest laws is that they lack content-neutrality. It is well-established that even a facially neutral statute will fail to pass constitutional muster if the evidence indicates that the “government has adopted a regulation of speech because of disagreement with the message it conveys.” (Clark v. CCNV). The government must have an independent basis, “justified without reference to the content” of the speech, to advance its own interests by regulation. Protesting groups may well argue, as the Westboro Baptists have consistently argued, that demonstration regulations are merely a pretext for restricting their particular viewpoint. As the court has long recognized and the Snyder holding reaffirmed, however, state and local governments have a significant interest in upholding public order and preventing disturbances; a facially neutral regulation which advances the government’s interest in public order can thus be content neutral even if its burden, in this case, happens to fall primarily on hostile demonstrators rather than favorable ones.

There may be a stronger argument, however, that some state restrictions are vulnerable to charges of unconstitutional as-applied content discrimination.  Statutory permit schemes in which local officials are afforded “unguided discretion” in their decision making have historically been subject to abuse (see Forsyth City v. Nationalist Movement). If New York’s scheme, for instance, leads to a demonstrable pattern of local officials’ denying permits to controversial or anti-military groups, then it is unlikely to survive constitutional challenges.

Even if a government restriction is content neutral, of course, it must satisfy two further criteria: (1) it must be narrowly tailored to serve a significant government interest, and (2) it must “leave open ample alternative channels” for the expression (Ward v. Rock Against Racism). With regard to the first point, it seems clear that the more extensive geographic buffer zones have a tenuous, at best, connection to the government’s legitimate interest in preventing disorder. At least in the past, courts have agreed. In striking down Missouri’s first set of anti-protest laws last year, the Eastern District of Missouri found that the government had failed to meet its burden of showing that its regulation was “narrowly tailored.” Furthermore  the Snyder court noted, the Westboro protesters at the Phelps funeral almost certainly would not have fallen within the scope of a narrowly drawn regulatory scheme. There, the protesters were almost entirely out of sight during the funeral, and there was never any serious threat of a disturbance to the service itself. Phelps’s father did not learn of the hateful content of the picketers’ messages until after the event.

Perhaps more importantly, the potent mixture of time and place restrictions implemented in regulations like those of Missouri may well fall short of the “ample alternative channels” requirement. Shepherding protesters into “free speech zones” out of sight and earshot, and forcing them to refrain from protesting during the targeted event itself, can substantially dilute their ability to deliver their message; other means of protest may lack the immediacy and impact that they desire. In his Snyder dissent, Justice Alito made it clear just how little sympathy he felt for predicaments of this type: “They may write and distribute books, articles, and other texts; they may create and disseminate video and audio recordings; they may circulate petitions …” etc. The weight of the Court’s precedent, however, weighs against any regulation which effectively functions as a total-medium ban: “No one is to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place.” (Schneider v. State).

Much of the political discourse on this issue has focused, understandably, on the privacy and dignity “rights” of bereaved families rather than the speech rights of extremist fundamentalists. As a legislative sponsor of the Missouri bill put it, protests threaten the “right to be mourned and remembered in an environment of peace, respect and compassion.” An approach to defending funeral protest laws by focusing on the special rights of the bereaved is certainly not inconceivable, but it has been seemingly foreclosed by Snyder. “Captive audience” doctrine has limited scope—the Court has recognized special grounds for special protection for residential privacy (Frisby v. Schultz), but it has more generally held that the Constitution affords no protections against being offended in a public place. Seven Justices found in Snyder that captive audience doctrine had no application to the funeral protest at issue, despite the intimacy and emotional significance which set a funeral apart from nearly every other “public” ceremony.

As long as the government’s interest in regulating funeral protests is characterized as primarily the maintenance of public order—and other administrative functions like preserving access to public areas—the scope of acceptable protections will be limited. It seems fair to say that while narrow geographic perimeters like Maryland’s 100-foot buffer zone may well survive, the more sweeping geographical and temporal restrictions proposed or passed in recent months will have difficulty standing up to courts’ scrutiny.

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1 Comment

  1. Noah Kaplan says:

    I think there is another ground on which the new regulations may be vulnerable to as applied challenges, selective enforcement. At the Snyder funeral, there were people all the way up to the church door holding supportive signs and waving American flags, while the Phelps church was kept so far away that they couldn’t be seen. Under these new laws, it’s hard to imagine a local police force telling school children waving American flags that they have to stay back 1000 feet. If, as enforced, these laws limit only speech activity that is critical of the military or the government, they would be almost certainly vulnerable to challenge.

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