Protect Mourners' Rights, But Not at Expense of First Amendment

The quiet reverence of a funeral service held in honor of a fallen soldier is punctuated by the jarring retort of a 21-gun salute. A folded American flag, once draping the coffin of the deceased, is handed respectfully to the surviving spouse. A few short words “from a grateful nation” are uttered, followed by a crisp salute and the solemn playing of “Taps.” A few yards away mulls a group of protesters holding signs and chanting “Thank God for dead soldiers.” It’s the juxtaposition of these two rituals that is at the heart of one University of Missouri professor’s examination of the legal issues surrounding privacy and free speech.

Christina Wells, Enoch H. Crowder Professor of Law at the MU School of Law, found that recent legislation enacted in response to funeral protests conducted by members of the Westboro Baptist Church of Kansas may restrict a broad range of expressive activities, including peaceful protests. A careful examination of the statutes, some of which have been upheld in lower courts, reveals that they are designed to protect mourners from offensive rather than intrusive protests, a distinction that is important, Wells said.

“The instinct to regulate or punish is powerful and understandable. Such regulation, however, poses significant issues for freedom of speech. Our outrage shouldn’t overshadow reasoned legal response,” Wells said.

Lower courts, after hearing legal challenges to the funeral protest statutes, have essentially said a person has a privacy right to be free from offensive messages while attending funerals. If those decisions are allowed to stand, they could have an impact on freedom of speech doctrine, Wells said. According to Wells, the First Amendment allows some regulation of protests near funerals, but how and why government officials restrict such protests also matters.

“While few would argue against protecting funeral services from intrusive protests, these statutes go far beyond that notion,” Wells said. “Funerals are worthy of protection and respect, but to allow them greater protection than what is given to other gatherings or rituals is inconsistent with longstanding free speech principles.”

Wells said the combination of vague terms, unclear doctrine and controversial protests threatens to cloud the difficult task of balancing privacy and free speech rights and has caused state officials and courts to respond out of emotion rather than analysis of the Court’s precedents.

“These court decisions may have a lasting and detrimental effect on our free speech jurisprudence.” Wells said. “Most of us desperately want the Westboro Baptist Church to treat funeral goers with greater respect. As long as protesters’ speech is part of public discourse, free speech principles allow regulators to do only so much to require an outward showing of civility and respect.”

Wells’ research on the first amendment and funeral protest is slated for publication in the North Carolina Law Review, Vol. 87, 2008.