Kentucky Funeral Protest Law Held Unconstitutional

[Douglas Laycock]

  Here's a real set of facts to test Alan's question.  No litigation
pending.

  A synagogue occupies a small city block.  On one side is a
commecial thoroughfare.  There are residences on the other three
sides.  The synagogue fronts on one of the side streets.  Most of the
worshipers arrive by car, park in the residential neighborhood, and
walk to the synagogue from the side opposite the commercial
thoroughfare.

  Palestinian protestors have picketed the synagogue during services,
every Sabbath for several years. Some of them station themselves on
the commercial thoroughfare, where they can reach the audience of
people driving by, and no one proposes to restrict that.  Others
station themselves on the narrow sidewalk on the residential side
street, forcing worshipers to run a gauntlet of protestors to reach
the synagogue.  There are occasional confrontations, although both
sides have generally been pretty well behaved.  There is a
significant minority of the membership of the synagogue that have
stopped attending -- either they no longer come to Sabbath services
or they go elsewhere.  There is evidence of children running out in
the street to avoid the protestors. 

  Can the city, or a court, move these protestors back to the area
between the commercial thoroughfare and the sidewalk leading to the
entrance to the synagogue, so that arriving worshipers have an
unobstructed passage to the synagogue? 

  Does it matter that this apparently perpetual protest has had ample
opportunity to deliver its message, and by now seems much more
designed to intimidate and harass than to persuade?  But it is not
entirely without persuasive intent.  The protestors say they want the
congregation to fully understand how badly Israel treats the
Palestinians, so they will stop contributing to charities that
support Israel.  Surely the regular attenders at the synagogue have
received that message by now.  But sometimes there are new members,
or visitors from out of town.  And maybe some of the old members will
finally see the light if there are enough repetitions.  So the claim
of an attempt to persuade never drops to zero.

  Quoting Alan Brownstein aebrownstein at law.ucdavis.edu[1]:

* * * * *

  >This raises an issue this list has addressed in the past -
> whether the fact that certain land adjacent to public walkways is
used
> for purposes that are starkly inconsistent with public protest and
> debate (in part because of the special vulnerability of those
entering
> the land to use it for its intended purpose) justifies more
restrictions
> on speech on the public walkways than would ordinarily be the case.
> Possible land uses that might fit in this class would include
cemeteries
> and funeral homes, medical clinics, and houses of worship
(particularly
> when life cycle events are being celebrated).
>
> Most members of the list seemed disinclined to support such an
analysis.
> Do list members believe these laws protecting mourners at funerals
> should be struck down as unconstitutional?
>
> Alan Brownstein
>

Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713

Links:
------
[1] mailto:aebrownstein at law.ucdavis.edu

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