Ban on picketing funerals

[DavidEBernstein at aol.com]

If the fighting words doctrine is dead, it's dead, but if it still exists I 
think that yelling at a grieving family at a funeral that the deceased is going 
to hell and you're happy about it is much more "fighting words" than any of 
the examples below, partly because it's directly aimed at a particular 
individual, partly because the recipients are in a perilous emotional state to begin 
with and hence more vulnerable, and partly because most Americans take their 
religion seriously, and there would be literally nothing worse than your 
son/brother/husband going to Hell.

In a message dated 2/19/2006 1:04:28 AM Eastern Standard Time, 
VOLOKH at law.ucla.edu writes:
Is that consistent with the rather narrow definition of fighting words 
adopted by Cohen v. California and Texas v. Johnson?  Also, I take it that picket 
signs that refer to "scabs" or "baby-killers," even when those words would be 
understood as referring to some in the audience (strikebreakers or abortion 
providers) would be constitutionally protected, even though the subjects of these 
insults might start a fight -- if so, then wouldn't the same apply to funeral 
picketing?  

David E. Bernstein
Visiting Professor
University of Michigan School of Law
Professor
George Mason University School of Law
http://mason.gmu.edu/~dbernste
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