Funerals and Free Speech

funeral_protest.jpg First, thanks to Dan and the other authors for giving me a platform from which to discuss issues relating to public expression as well as other miscellaneous matters. I have greatly enjoyed my guest stint here at CoOp, and am especially grateful to those who have engaged my arguments with thoughtful comments.

In my final post, I want to discuss one of the most difficult cases I have encountered in my study of public speech rights. Many readers are likely already aware of the protest activities of the Westboro Baptist Church, a fundamentalist congregation based in Topeka, Kansas. The church’s members — which consist primarily of relatives of a single family — have drawn public attention and ire for protesting at the funerals of service men and women killed in Iraq and Afghanistan. (Members have also protested near military hospitals.) Their “message” is that God is killing American soldiers to punish the United States for “condoning” homosexuality. The protesters tend to stand — peacefully for the most part, but quite noticeably — on sidewalks and other public properties near the entrance to cemeteries. They hold signs conveying messages like “God Hates Fags” and “Thank God for Dead Soldiers.” The protesters’ presence is obviously deeply upsetting to families and friends who have come to pay their last respects. Three dozen states and Congress have enacted statutes that attempt to limit, in a variety of respects, the time, place, and manner of “funeral protests.” The First Amendment Center has a useful summary of the protests and the legal response to them. In a first-of-its-kind lawsuit, the parent of one marine whose funeral was picketed by Westboro members has filed a tort lawsuit against the church, alleging intentional infliction of emotional distress. That trial is currently taking place in Maryland federal court.

One of the things that I find most fascinating about real-space expressive contests is their tendency to challenge our commitment to ideals of “robust and wide open” debate and liberty to offend and provoke others. Of course, content on the Web offends and challenges sensibilities too. But on the sidewalks and streets, as elsewhere on the tangible expressive topography, the offense is felt when and how it hurts most — in person and in real time and space. Because the message is delivered at or very near the point of contest, the audience has a much more difficult time avoiding it. The speech and speakers involved in funeral protests push hard at the First Amendment envelope. Indeed, many wonder how this sort of expression can possibly be defended. I am not concerned here with setting appropriate spatial boundaries — i.e., whether a 200- or 500-foot “buffer zone” is constitutionally permissible. Rather, I am interested in what makes this case so difficult at its core. I address that issue after the jump, and also offer a basis for granting this kind of expression some public space that differs from many of the abstract principles usually cited.

Defending the funeral protester necessitates resort to abstract justifications for expressive rights — ones that apply regardless of the reprehensibility of the message or messenger. Protection for such speech rests upon fundamental commitments to principles like neutrality, autonomy, and self-government. This is, of course, nothing new insofar as First Amendment precedent and tradition are concerned; Nazis, racists, and terrorists have also received some First Amendment protection. For many, however, that doesn’t really make abstract support for this new group of hate-mongers any more acceptable. Further, the vulnerability of the targeted audience (although Westboro obviously seeks publicity on a much broader scale as well) makes the case especially difficult. Isn’t there something that can be done to shield mourners from this sort of public display? In this respect, the funeral protest resembles contests involving abortion clinic “sidewalk counselors,” who seek access to the more intimate space of a vulnerable audience. Restricting speech based on audience vulnerability or sensibility seems a slippery path. Even asking, as the jury was recently instructed to do in the Maryland tort suit, whether the speaker’s actions “would be highly offensive to a reasonable person,” may invite dilution of public expression based on listeners’ reactions. The First Amendment generally precludes this, even if the expression is, as here, particularly despicable. Finally, there is the difficulty in identifying any coherent message in these “protests.” Divine retribution for the nation’s sins is not a novel (or even crazy) idea; but the suggested means of retribution strikes one as only faintly related to some divinely inspired plan. (If God wanted us to see our errors, why not speak to us more directly?) In any event, incoherence of a speaker’s message is no more grounds for denying First Amendment protection than is offensiveness.

These are all well-worn justifications and responses. But they are also, as I say, somewhat unsatisfying. Because the speaker and message are so problematic and these justifications wanting, it may be helpful to focus instead on the critical public space issue presented. One of the central arguments in my book is that our public expressive topography has suffered a slow but steady erosion. The spaces we have left — including all of the sidewalks and public thoroughfares — are critical to the survival of any tangible public expressive culture. This is not an abstract concern. In this light, small contests like the ones concerning funeral protests attain a significance well beyond the speakers and their hateful message. Restricting or supressing the Westboro protesters will likely mean denying supporters the opportunity to pay last respects as well (even silently and respectfully). Well, one might say, that’s no big loss — sidewalks near cemeteries do not seem appropriate places for public expression. More generally and seriously, restricting this expression on grounds of audience offense or sensibility will set a negative precedent for future public contests, at many other places on the expressive topography. It will provide yet one more justification for denying speakers an effective opportunity to engage others in a physical setting. The abortion clinic precedents, which are now being cited in the funeral protest cases, tend to bear out that concern. No one likely would mourn the absence of the Westboro protesters. But we ought to be mindful of the loss of public space that may result from defeating (or seriously restricting) them. That, at least for me, is a more comfortable basis for granting even despicable speech like this some public breathing space.

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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.