Funeral picketing vs. residential picketing

[Volokh, Eugene]

	Some have tried to defend the Snyder decision by analogy to bans
on residential picketing.  I think there are huge differences between
residential picketing bans (which are content-neutral, narrow, and
relatively clear) and the IIED tort and the intrusion upon seclusion
tort relied on in this case.

	But even setting aside the law under which the verdict was
reached, and focusing just on the conduct, consider the Court's rules
about residential picketing:

	1.  Focused residential picketing "taking place in front of"
someone's residence may indeed be banned.  Frisby.

	2.  But this is partly because "ample alternatives remain,"
including "marching" through the neighborhood, so long as they don't
stay in front of a house.  The Court didn't hold that marches through
residential neighborhoods may not be constitutionally barred, but it
seems to me pretty clear given the Court's past jurisprudence that they
are indeed protected (though they can be limited to avoid sleep time, to
minimize noise, and possibly to limit the number of participants).

	3.  On top of that, a ban on residential picketing within 300
feet of a residence is unconstitutional.  Madsen v. Women's Health
Center.

	Here, Phelps held up his signs -- disgusting as they were --
1000 feet from the church at which the funeral was held; that takes him
outside Frisby and squarely within the holding of Madsen, it seems to
me.  Plus the IIED tort, unlike the Frisby ordinance, would seem to
apply not just to focused picketing, but to marches through the
neighborhood (since those could be just as outrageous and distressing as
the picketing).  Perhaps the Court would and should uphold a different
doctrine for funeral picketing, which allows bans on all funeral-related
speech that might be visible from any part of a funeral motorcade,
without the limitations that have been developed for the residential
picketing doctrine.  But Frisby is not itself much support for such a
ban.

	Eugene