Wednesday, January 12, 2011
Prompted by concerns over planned protests at the funerals of victims of Saturday's shootings, Arizona passed emergency legislation. Arizona SB1101 provides:
13-2930. Unlawful protest activities; classification; definition
A. A PERSON SHALL NOT PICKET OR ENGAGE IN OTHER PROTEST ACTIVITIES, AND AN ASSOCIATION OR CORPORATION SHALL NOT CAUSE PICKETING OR OTHER PROTEST ACTIVITIES TO OCCUR, WITHIN THREE HUNDRED FEET OF THE PROPERTY LINE OF ANY RESIDENCE, CEMETERY, FUNERAL HOME, CHURCH, SYNAGOGUE OR OTHER ESTABLISHMENT DURING OR WITHIN ONE HOUR BEFORE OR ONE HOUR AFTER THE CONDUCTING OF A FUNERAL OR BURIAL SERVICE AT THAT PLACE.
B. A PERSON WHO VIOLATES THIS SECTION IS GUILTY OF A CLASS 1 MISDEMEANOR.
C. FOR THE PURPOSES OF THIS SECTION, "OTHER PROTEST ACTIVITIES" MEANS ANY ACTION THAT IS DISRUPTIVE OR THAT IS UNDERTAKEN TO DISRUPT OR DISTURB A FUNERAL OR BURIAL SERVICE.
As the LA Times reports, "The [legislature's] actions were prompted by the Westboro Baptist Church, a publicity-seeking Kansas congregation known for demonstrating at the funerals of U.S. soldiers, arguing that their deaths are retribution by God for America's acceptance of homosexuality. The church announced it would protest [9-year-old shooting victim Christina] Green's funeral, scheduled for Thursday, because the family is Catholic." Church members also protested at the funeral of Vice-President Joe Biden's mother.
In signing the bill, Arizona Governor Jan Brewer stated that the law will prohibit "despicable acts of emotional terrorism" and "assure that the victims of Saturday’s tragic shooting in Tucson will be laid to rest in peace with the full dignity and respect that they deserve." Brewer's statement also noted that Arizona joined "46 other states in a brief at the United States Supreme Court filed in support of the right of grieving families to seek a civil remedy against those that choose to protest and disrupt the funerals of their loved ones."
The reference is to Snyder v. Phelps, argued before the United States Supreme Court in October. While Snyder v. Phelps involves an action for intentional infliction of emotion distress and does not directly involve a state or municipal regulation of protest activities, the First Amendment is a central defense of the church's protests.
An excellent constitutional analysis of the funeral protest statutes and regulations is Christina Wells' Privacy and Funeral Protests, 87 N.C. L. Rev. 151 (2008), available on ssrn. Professor Wells (pictured left), of University of Missouri School of Law, argues that funeral protest laws seek to protect a "civility-based privacy right" that is not doctrinally recognized rather than an "intrusion-based privacy right" which has been recognized.
Certainly Governor Brewer's statements support Wells' argument.
Wells ultimately concludes:
Litigation over the legitimacy of funeral protests, however, has the potential to make very bad law. The combination of an ill- defined interest, unclear doctrine, and controversial protests has “exercise[d] a kind of hydraulic pressure” that threatens to engulf our understanding of this issue. It has caused state officials and courts to respond out of emotion rather than with careful analysis of the Court’s precedents. The resulting law, if it remains, will have a lasting and detrimental impact on our free speech jurisprudence.
Wells' citations of the 41 states having funeral protest laws (fn 37) can now be amended to include Arizona.