Ban on picketing funerals

[Volokh, Eugene]

	I share Prof. Zick's misgivings about the way doctrine has been
stretched here, but I wonder whether Hill can be stretched quite this
far.  Even Hill didn't uphold a ban on all picketing near abortion
clinics -- abortion protesters remain free to protest, just not to
approach people within 8 feet for purposes of protest, education, and
counseling.  The St. Joseph ordinance seems considerably broader than
that, and doesn't seem to leave open ample alternative channels for
reaching the same audience.

	Eugene


Tim Zick writes:

This is merely another example of the "spatial tactics" that have been
used in numerous contexts in the past two decades or so to contain
political and other forms of charged expression.  The areas near
funerals and churches are only the latest to be contested.  Clay County,
TN passed a resolution barring demonstrations within 5,000 feet of any
funeral service.  This effectively placed protesters in the county
sanitation lot at the edge of town.  Cases like Hill and Frisby (not to
mention Ward, which sets forth a less than vigorous TPM standard) are
being interpreted as authorizing the creation of free-speech and
speech-free zones in public places.  The most disturbing was the protest
"cage" at the Democratic National Convention in Boston last summer.  

If protesters can be barred from approaching abortion clinic patrons
"for the purpose of counseling, etc." (Hill) then I don't see why the MO
"picketing or other protest activities" language is problematic.  This
assumes, of course, that there is no evidence of discriminatory
enforcement.  This also assumes that Hill was something other than an
abortion-speech case, a point open to argument (as Justice Scalia
pointed out in his dissent).  The state interests are to prevent the
disruption of funeral services and to protect the "privacy" of family
and friends attending the funeral.  These would certainly be deemed
important state interests under Ward.  Hill provides some support for
the protection of privacy and repose, even on public sidewalks.  And
funeral participants, like clinic patrons, are psychologically
vulnerable.  The MO authorities would have been better off, in terms of
tailoring, had they, like Clay County, designed a specific "zone" for
protests and pickets.  But unless it is unconstitutionally vague, "in
front of or about" probably meets the Ward tailoring standard as well.  

I think this is how the analysis plays out under current doctrine.  I
would add that I don't think the government owns the sidewalks and
streets; I think Harry Kalven was right:  the government holds these
places in trust, and speakers have a presumptive "easement" there to
discuss matters of public concern.  The public forum doctrine has
substantially diminished that easement, if it in fact can still be said
to exist.        


Tim Zick
Associate Professor of Law
St. John's University School of Law
718-990-6633
zickt at stjohns.edu  
   


  -----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Tuesday, January 03, 2006 5:40 PM
To: conlawprof at lists.ucla.edu
Subject: Ban on picketing funerals

      In November, St. Joseph, Missouri enacted an ordinance (sec.
20-194) that provides:

      "It shall be unlawful for any person to engage in picketing or
other protest activities in front of or about any church, cemetery or
funeral establishment within one hour prior to the commencement of any
funeral, and until one hour following the cessation of any funeral.
Each day on which a violation occurs shall constitute a separate
offense.  Violation of this section shall be a misdemeanor.

      "For the purposes of this section, 'funeral' means the
ceremonies, processions and memorial services held in connection with
the burial or cremation of the dead."

      Is the picketing ban constitutional, by analogy to Frisby v.
Schultz?  What about the ban on "other protest activities" -- if this
prohibits leafleting that criticizes the dead person, but allows
leafleting that praises him, is that unconstitutionally content-based?

      Eugene
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