A Time to Mourn: Balancing the Right of Free Speech Against the Right of Privacy in Funeral Picketing
128 Pages Posted: 8 May 2007 Last revised: 17 Mar 2008
The issue of funeral picketing has received national media coverage and has resulted in a frenzy of legislation in a short amount of time. The group responsible for the funeral picketing, Westboro Baptist Church, has targeted soldiers killed in Iraq and Afghanistan, homosexuals, political figures and even children. Some may want to dismiss Westboro as a fringe group that should not be taken seriously, but they have been taken seriously by at least twenty-seven states, the federal government, and mourners who have been eyewitnesses to the group's tactics.
Funeral picketing raises crucial First Amendment issues including whether the Supreme Court's interest in protecting unwilling listeners and captive audiences is broad enough to cover mourners. This article is a reflection on whether the state should recognize mourning as a legitimate interest and whether that interest should be properly balanced against the right of Free Speech. In an attempt to respond to this issue, the majority of the state legislatures have produced laws that are unconstitutional because of their geographic overbreadth. This article examines the legislative response to funeral picketing and proposes ways the statutes can be constitutionally defensible. This article also argues for expansion of the captive audience doctrine and illustrates why privacy in mourning is as important as privacy in one's home. The issue of funeral picketing and the privacy interest in mourning has generated very little, if any, legal scholarship. I intend for this article to fill a void in the literature and provide guidance to legislatures and courts who will undoubtedly be wrestling with this issue in years to come.
Keywords: funeral picketing, protest, funeral, privacy, constitutional law, content-neutral, legislation, Westboro, Phelps, mourn, captive audience, Snyder, emotional distress. picketing, military, patriot guard riders, Respect American Fallen Heroes Act, mourn, homophobia, burial, Kansas, church, Frisby
JEL Classification: K10, K19, K23, K39, K41, K42, D73, H77, H73, K40
Suggested Citation: Suggested Citation