Funeral Rights and Speech Rights

The new federal ban on funeral protests sacrifices liberty in an ostentatious display of patriotism.

On June 21, 1989, the U.S. Supreme Court overturned a Texas law that made flag burning a state crime, ruling that it violated the First Amendment right to freedom of speech. A month later, Rep. Jack Brooks (D-Texas) introduced a bill that made flag burning a federal crime. Approved by Congress that fall, the new law was overturned by the Supreme Court the following year.

The Sanctity of Eternal Rest for Veterans Act, signed into law by President Obama last week, seems destined for the same fate. The law, which prohibits protests within 300 feet of a military funeral from two hours before the ceremony until two hours afterward, represents the same sort of willful constitutional defiance as the short-lived federal ban on flag burning, sacrificing liberty in an ostentatious display of patriotism.

Sen. Olympia Snowe (R-Maine) introduced the ban on funeral protests a month after the Supreme Court ruled that the First Amendment barred the father of Matthew Snyder, a Marine killed in Iraq, from obtaining damages for the emotional distress that the Kansas-based Westboro Baptist Church caused by picketing on public property near the Westminster, Maryland, church where Snyder's memorial service was held in 2006. "Any distress occasioned by Westboro's picketing," Chief Justice Roberts wrote for the eight-justice majority, "turned on the content and viewpoint of the message conveyed, rather than any interference with the funeral itself."

Westboro's message—that God is killing Americans out of anger over our tolerance of homosexuality—is morally absurd, and its tactics, using tragedies such as Matthew Snyder's death to generate publicity for its hateful harangues, are deliberately outrageous. The church, which consists mostly of its pastor, Fred Phelps, and his family, has been picketing funerals for more than two decades, holding up signs with slogans such as "God Hates Fags," "God Blew Up the Soldier," "Thank God for Dead Soldiers," "Thank God for 9/11," and "AIDS Cures Fags."

Westboro's illustrations of God's wrath include not just dead soldiers but police officers, firefighters, victims of natural disasters, and even little girls murdered by deranged gunmen. The Phelpses proudly call themselves "the most hated family in the U.S."

But as Chief Justice Roberts observed, the First Amendment is necessary to protect controversial speech in particular, since that's the only sort of speech people seek to suppress. Although Roberts did say that protests such as Westboro's are "subject to reasonable time, place, and manner restrictions," the Court's precedents suggest the newly enacted restrictions do not qualify as reasonable.

In 1994 the Court rejected several restrictions that a Florida court had imposed on anti-abortion protesters, including bans on approaching patients within 300 feet of an abortion clinic and on picketing within 300 feet of a clinic employee's home. Three years later, reviewing a federal injunction, it overturned a 15-foot floating buffer zone around cars and people heading to and from abortion clinics. If these restrictions were unjustifiably broad, it is hard to see how the newly established 300-foot buffer zone, especially when combined with the two-hour exclusion before and after funerals, can pass muster.

In a 2008 North Carolina Law Review article, University of Missouri law professor Christina Wells noted that state restrictions on funeral protests (also prompted by Westboro's activities) "go far beyond" preventing disruption of funerals, seeking to "protect mourners from offensive rather than intrusive protests." She argued that the laws, some of which have been ruled unconstitutional by federal judges, aim to defend a "civility-based privacy interest" that has no basis in American law.

That notion is reflected in the new federal law, which applies to any protest that "tends to disturb the peace or good order" of a military funeral, language that encompasses quiet, nonintrusive demonstrations with messages that offend passers-by—just the sort of speech the First Amendment is supposed to protect. The despicable Phelpses revel in their notoriety. Why feed their sense of self-importance by making them into First Amendment martyrs?