Ban on picketing funerals

[Volokh, Eugene]

    David, how far would you go?  Would it be constitutional for the
city to cede the land around abortion clinics to the clinics, so they
could completely ban protests within 100 feet of the entrances (or at
least in the frontage facing the entrance)?  How about if the city
decided to cede the land around every business entrance?

    Also, I take it that if the city cedes the land around each home to
its owner, that would mean that not just picketing but parading,
leafleting, and so on would be barred throughout the whole neighborhood
(at least unless the speakers get permission from some neighbors, and
limit themselves to the neighbors' frontage).  Constitutional?

    Eugene
-----Original Message-----
From: DavidEBernstein at aol.com [mailto:DavidEBernstein at aol.com] 
Sent: Tuesday, January 03, 2006 3:41 PM
To: Volokh, Eugene; conlawprof at lists.ucla.edu
Subject: Re: Ban on picketing funerals


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