Ban on picketing funerals

[DavidEBernstein at aol.com]

I'd be in favor of ceding public land around houses of worship to the houses 
of worship, with some sort of public movement easement.  Then the churches 
could ban any loiterers out front, including picketers (such as the ghastly 
individuals here in Ann Arbor who picket Shabbat morning services every week).  
Certainly, the houses of worship in the private community my parents live in 
don't have any problems with picketers disrupting services. 

And it's not just houses of worship: I'd do the same thing for residential 
property: individuals should have the right to quiet enjoyment of their "castle" 
without the disruption, and moreover the implicit intimidation, involved in 
picketing.

In a message dated 1/3/2006 6:27:44 PM Eastern Standard Time, 
VOLOKH at law.ucla.edu writes:
    Well, they surely *could* be distinguished based on emotional
fragility of the mourners -- but recall that even Hill v. Colorado
didn't justify a total ban on protesting outside abortion clinics, and
stressed that the protesters were still free to speak so long as they
didn't approach within 8 feet of people without their permission.

    Also, given City of Ladue v. Gilleo, is the possibility of
coming to the location after the burial really an adequate alternative,
given that it would reach a very different (and likely much smaller)
audience?

    I guess what troubles me is how much this seems like the
slippery slope in action.  Frisby justified itself as being such a
narrow decision, only about residential picketing, and only about
content-neutral restraints.  Hill then justified itself as being a
similarly narrow decision, only about approaches within 8 feet of
another, and supposedly (though far less clearly) a content-neutral
restriction, too.  Now we're seeing them deployed to justify a rather
different restriction.  Presumably if that's upheld, we'll be seeing
that as an analogy to something still broader.  Look, if I were sure
this would just be used against Phelps and his gang, I wouldn't lose
much sleep (cf. the Court's point in Hustler v. Falwell).  But this sure
seems to be a growth area for speech restrictions.

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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