Funerals and Free Speech

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11 Responses

  1. Societal norms have broken down, likely out of frustration and feelings of impotence, causing “speakers” to use methods of last resort.

    It’s not a First Amendment issue. It’s a human decency issue. As views have become increasingly polarized and differences more extreme, human decency has become the expendable victim. This is a very sad state of affairs.

  2. Patrick S. O'Donnell says:


    I’ve rarely had occasion to comment on your posts, but I’ve enjoyed (and learned much from) all of them. I’m sympathetic to if not in full agreement with much of your argument, here as before, and very much appreciate the careful and thoughtful way you’ve discussed and analyzed your subject matter on this blog. One of my favorite bloggers is Christopher Borgen at Opinio Juris, also at St. John’s: what a fortunate institution to be blessed with such exemplary, knowledgeable, and ethically-oriented academics! I very much look forward to reading your book. Thanks again for your edifying visit to CO.

    All good wishes,


  3. Had I not read this entry, I would not have known about this at all (I reside elsewhere)… but the dilemma is most certainly one which is disturbing, even if interesting to consider. As Scott mentions, this issue is itself an human decency issue – rather, a lack of it – and yet… the impacts are quite difficult. It could even lead to violence.

    I approach it this way: Every aspect of public life is in itself a commons – but each commons has different rules. Cemeteries are easy enough – a law for those who cannot abide the social norm of that commons can and should be put in place with great delicacy.

    But there is a further issue. It is a matter of time before these protests happen in front of the houses of the bereaved (if not already). We know that it is in poor taste, that a grieving family deserves space – at least we should know that – and that particular aspect will be the most difficult to tackle, as the establishing of boundaries will impact the use of other commons.

    It is sad that we have reached a level where we have to consider such things… in the name of God, no less.

  4. Tim Zick says:

    Thanks, Patrick, for your kind note and your comments.

    I empathize with Scott’s comment regarding human decency. It would be preferable if these speakers respected the dignity of the parents and other mourners. But as vile and incoherent as it is, this is still expression of some viewpoint. I would hate to see other speakers punished as a result of Westboro’s poor taste and judgment. Frankly, as is very often the case, the best official policy may have been to ignore these “protests” — as difficult as that might have been under the circumstances. Westboro’s leaders have gained more publicity for their message as a result of the rapid and in some cases constitutionally suspect legislative responses (some of the funeral protest laws have been invalidated on overbreadth/tailoring grounds). I have seen the church’s leaders on cable news channels, which must pain the families greatly.

    Taran anticipates movement of the place of contest to public areas near the home. The Frisby case precludes “targeted picketing,” and many localities have successfully defended buffer zones that protect residential privacy and repose. Here, again, one has to draw lines carefully. I should certainly add the residential protest to the list of toughest cases — along with the sidewalk counselor and funeral protester. More “legitimate” reasons for picketing and protesting near residences do exist, however. The home is something of a sanctuary in terms of one’s “privacy”; but it is not a fortress. Where to draw that line is one among many very difficult First Amendment questions relating to public (commons) speech.

  5. Sorry for the praise says:

    I guess P. O’Donnell beat me to it, but I just wanted to note that Prof. Zick’s posts here are always insightful, topical, and worthwhile. I don’t really have a comment other than that.

  6. Dave2 says:

    Scott’s comment looks to be pretty useless. When the Nazis wanted to march in Skokie, that was also a human decency issue, but it certainly didn’t make the First Amendment issue go away.

  7. Jerry Sloan says:

    I wonder if anyone would care to comment on how the case of Jerry Falwell v. Larry Flynn might affect any appeals.

    As I recall the Supremes sided with Flynn and his parody and said no matter how offensive it was to Falwell and no matter how deeply he was grieved he could not collect $ 200,000 for his pain and suffering.

    What is the difference in the Falwell case and this one?

    The Phelps Klan is probably the most repulsive group in the country in the last 25 years. If the 1st Amendment means anything at all, it was written with Fred Phelps and his family in mind.

  8. erin says:

    Tim Zick does not know what he is talking about. I would like to slap some sense into him.

  9. tim zick says:

    Very insightful.

  10. kmac says:

    it seems to me that a shield which is only used to protect those whom no one seeks to attack is no real shield at all.

  11. ksmac says:

    it seems to me that a shield which is only used to protect those whom no one seeks to attack is no real shield at all.