New Life in the First Amendment: Funeral Protest Statutes after McCullen v. Coakley
45 Pages Posted: 3 Feb 2015
Date Written: January 31, 2015
Forty-six states and the U.S. Congress have passed funeral protest statutes to counter the notorious practices of the Westboro Baptist Church, but are the statutes constitutional?
The recent Supreme Court case of McCullen v. Coakley on the parallel issue of abortion clinic buffer zones suggests that they are not. First, the Court restored speech rights by reaffirming that the governmental interest of protecting people from unwanted communication while in traditional public fora is content based. Second, the Court struck down a statute as failing to be narrowly tailored, despite the Court’s application of intermediate scrutiny. While lower courts have upheld broad funeral protest statutes, the Supreme Court now shows that even facially content-neutral statutes do not give legislatures carte blanche to substantially burden speech.
The Sixth and Eighth Circuit Courts have upheld broad funeral protest statutes, but McCullen shows a far more speech-protective Supreme Court.
In light of this precedent, lower courts should rule that existing funeral protest statutes are unconstitutional. However, this article proposes a more moderate “line of sight” legislative solution that would preserve the protestors’ First Amendment rights while protecting funeral attendees’ interest in avoiding disruptive protests during funerals. This workable solution is narrowly tailored to serve the valid state interest of preventing funeral disruptions.
Keywords: McCullen, Coakley, Frisby, Schultz, City of Manchester, Strickland, Phelps, Phelps-Roper, Westboro Baptist Church, buffer zone, captive audience, content neutral, content based, Snyder, Madsen, Hill, funeral protest, funeral picket, traditional public forum, privacy interest, listener reaction
JEL Classification: K10, K13, K14, K19, K30, K40
Suggested Citation: Suggested Citation