Some of my colleagues who are disgusted by the Phelps family’s freak shows nevertheless worry that state laws restricting funeral protests can’t withstand First Amendment challenges and will merely end up enriching the Phelpses.
Perhaps — but I think these laws are worth risking a court challenge. As a New York Times article reports, nine states have recently passed funeral protest bills and 23 others, including Kansas, will likely soon vote to pass one.
Most of these laws have been crafted in a reasonable, measured way with an eye to passing legal muster. They don’t ban speech but regulate it with “time/place” provisions that federal courts have recognized as one of the few constitutionally valid ways to limit speech.
“A funeral home seems high on the list of places where people legitimately could be or should be protected from unwanted messages,” Michael C. Dorf, a constitutional scholar at the Columbia University Law School, noted in the piece.
Others legal experts cite as precedent a 1988 U.S. Supreme Court case upholding a law that sought to keep anti-abortion pickets away from a private home.
At any rate, it’s interesting and telling that the Phelpses are largely avoiding states where the laws have passed , according to the article. I say call their bluff — and err on the side of protecting grieving families from vicious, uncivil, in-your-face harassment.
Posted by Randy Scholfield
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