Legal Commentary

Funeral Picketing and Residential Picketing

By Eugene Volokh

I?ve tried to explain recent posts why I think this particular verdict based on funeral picketing is unconstitutional, because the intentional infliction of emotional distress tort and the invasion of privacy tort can?t properly be used to punish such speech. But may a legislature permissibly enact statutes banning funeral picketing, perhaps by analogy to many jurisdictions? bans on residential picketing?

I discussed this in some measure last year; and it seems to me that indeed a content-neutral ban on picketing immediately in front of a place in which a funeral is being conducted would likely be upheld, just as content-neutral bans on picketing immediately in front of home are upheld.

But the bans would have to be content-neutral, rather than relying on criteria such as ?outrageous[ness]? or ?offensive[ness],? which invite an inquiry into the speaker?s viewpoint. Compare Carey v. Brown, which struck down a residential picketing ban because the ban had a content-based exception for labor picketing.

The bans would also have to be narrow. Even as to residential picketing, the Court upheld restrictions in large part because they left open the alternative of parading through the neighborhood, and later struck down an injunction that created a 300-foot no-picketing buffer zone around certain residences. It?s hard to see how, given this, the Court would uphold a ban that would cover the Phelpsians? speech 1000 feet away from the church at which the funeral was taking place.

Of course, the consequence of these limitations is that people would still be able to express their anti-American, anti-gay, cruel, unduly personalized, and just plain disgusting views in places where the bereaved could see them ? on radio programs (should such a program invite the speakers as guests or take their calls), in picket signs that aren?t right in front of the funeral but are visible from the funeral procession, in press releases that some media outlets may report on, on Web sites, and the like. But repugnant as this speech may be, it seems to me that the First Amendment requires that it be tolerated.

Full post as published by The Volokh Conspiracy on March 08, 2010 (boomark / email).