Academic

Wells on Funeral Protests

By Lawrence Solum

Christina E. Wells (University of Missouri School of Law) has posted Privacy and Funeral Protests on SSRN.  Here is the abstract:

This article examines the free speech implications of funeral protest statutes. Enacted in response to protests by the Westboro Baptist Church, such statutes restrict a broad array of expressive activity, including peaceful protests. This article focuses on the states' interest underlying such statutes - protecting mourners' right to be free of unwanted intrusions while at funeral services.

While few would argue against protecting funeral services from intrusive protests, these statutes go far beyond that notion. A careful examination reveals that the statutes are designed to protect mourners from offensive rather than intrusive protests. As such, they do not conceive of privacy as protection from intrusion. Rather they conceive of privacy as protecting human dignity from breaches of civility. American law does not traditionally recognize this conception of privacy. How then do such statutes come to rely on it?

To some extent the fault lies with the Supreme Court's free speech jurisprudence which has been remarkably unclear regarding the nature of the privacy interest it weighs against free speech rights. Although a careful read of the Court's cases shows that it rejects an interpretation of privacy as protecting against breaches of civility, its jurisprudence sends mixed signals. Lower courts hearing challenges to funeral protest statutes have misread the Court's jurisprudence and recognized a privacy right to be free from offensive messages while attending funerals. If allowed to stand, these decisions will work a dramatic change in the Court's doctrine. The article suggests ways that the Supreme Court must clarify its doctrine regarding privacy interests in order to avoid potential future confusion.

Full post as published by Legal Theory Blog on April 07, 2008 (boomark / email).