Privacy and Funeral Protests

Abstract:     
This Article examines the free speech implications of funeral protest statutes. Enacted in response to the Westboro Baptist Church, whose members protest at funerals to spread their antigay message, such statutes restrict a broad array of peaceful expressive activity. This Article focuses on the states’ interest underlying these statutes - protecting mourners’ right to be free from unwanted intrusions while at funeral services. Few would argue against protecting funeral services from intrusive protests. These statutes, however, go far beyond that notion and protect mourners from offensive, rather than intrusive, protests. As such, they do not conceive of privacy as protection from intrusion. Rather, they conceive of privacy as protecting human dignity from breaches of civility. American law does not traditionally recognize this conception of privacy. How then do such statutes come to rely on it? To some extent, the fault lies with the Supreme Court’s free speech jurisprudence, which has been somewhat unclear regarding the nature of the privacy interest it weighs against free speech rights. Although a careful read of the Court’s cases shows that it rejects an interpretation of privacy as protecting against breaches of civility, its jurisprudence sends mixed signals. Lower courts hearing challenges to funeral protest statutes have misread the Court’s jurisprudence and have recognized a privacy right to be free from offensive messages while attending funerals. If allowed to stand, these decisions will work a dramatic change in the Court’s doctrine.

Keywords: funeral protest, funeral picketing, privacy, captive audience, Phelps, free speech, first amendment, constitutional law

JEL Classifications: K10, K30

Accepted Paper Series