When the United States Supreme Court in 2011 effectively upheld the right to protest in connection with funeral services, in Snyder v. Phelps, it left open the opportunity for Congress, state legislatures and municipalities to determine reasonable time, place and manner restrictions on such public demonstrations.
But the justices also made clear that free speech, particularly political speech, will be zealously guarded against unwarranted regulation.
This report — prepared for the Newseum Institute’s First Amendment Center by a team of law students from the Columbus School of Law at The Catholic University of America — examines the legal and legislative responses, as of Jan. 1, to Snyder v. Phelps.
Among the report’s findings:
• Both the Sixth and Eighth Circuits have now concluded that funeral picketing statutes that limit the restrictions on a person’s speech to a specific area, time, and near funeral or burial events within “fixed buffer zones” constitutional, but that so-called “floating buffer zones,” with indefinite area and time restrictions are unconstitutional.
• The emergence of a buffer-zone case involving abortion clinics on the 2013-14 docket of the Supreme Court is evidence of the ever-present necessity of balancing freedom of speech against reasonable time, place, and manner restrictions — particularly given designation in some instances of mourners and others as a “captive audience” vulnerable to speech-based assaults
• In light of current precedent, states and municipalities seeking to fashion constitutional funeral picketing statutes would do well to make the statutes as narrow as possible with limited space and time restrictions that avoid the kind of floating buffer zones associated with funeral processions.
State funeral picketing statutes are likely to be upheld as constitutional so long as they contain specific limitations on the size and time of the exclusion zone, as well as the limiting the restrictions to funerals or burial events.