Tuesday, March 28, 2006
Our fractious society generates conflicts over the use of public land. Here is a bizarre one: States are reacting to anti-gay protests at military funerals (organized by a virulent anti-gay religious group) by considering broad laws to ban demonstrations near funerals. The Illinois legislature is considering a law to outlaw protests within 200 feet of a funeral. By outlawing all such protests – and thus being “content-neutral” -- Illinois obviously hopes to avoid legal claims that the law violates free speech. One complication, however, is that the law would also have the effect of barring labor pickets by cemetery workers.
The American Civil Liberties Union has been lobbying against such laws. In Minnesota, the ACLU has asserted that even “cruel, distasteful” speech is protected by the First Amendment and has warned that funeral protest bans could be vulnerable to legal challenge. Could the fact that such laws plainly are motivated by a desire to stop the anti-gay protests form a basis for arguing successfully that the laws do regulate content?