The Bright Coast

Progressive Thoughts from San Diego Alums on Law, Politics, and Culture

SCOTUS upholds funeral protests

Posted by brightcoast on March 2, 2011

Roberts wrote the majority opinion stating that the First Amendment protects the rights of such “outspoken” groups as Westboro Baptist, who protest at funerals of deceased homosexual soldiers.

What ever happened to Time, Place, and Manner restrictions? The Court noted that the protestors followed police instructions, and maintained a 1000 feet distance from the church, but regardless of the political message, what ever happened to the sanctity of a funeral, and respecting the rights of the mourners. Since when does freedom of speech mean that any fundamentalist group can set up shop and stir up some media attention merely to feed their self-centered and hateful group.

I find this sort of speech distinguishable from the court’s jurisprudence  on events such as parades because, while the content of the speech may be just as (if not more) vile, people can generally choose not to attend or otherwise avoid being subject to the distasteful speech, whereas here the mourners have no choice but to be subjected to the incredibly insensitive demonstrations. It seems as though the 1st Amendment protection in this case actually serves as a governmental endorsement of this sort of speech.

In the name of maintaining content neutral standards, I suggest Congress pass a statute prohibiting the protest of funerals of military members (or otherwise private citizens–as the argument to protect all governmental figures may be prohibited under the notion that they are public figures, and thus not privy to the same speech protections) within a more reasonable distance, say a mile. This simultaneously maintains the integrity of the mourning and funeral process, but also allows a forum for the passionate protestors to find alternative sites to express their hatred. I’m sure it would still garner the media attention these AWs are looking for, but would make for a more respectful and still constitutional process.

It is worth noting that the actual cause of action seems to be the intentional infliction of emotional distress or IIED.

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