Death, Grief and Freedom of Speech: Does the First Amendment Permit Protection Against the Harassment and Commandeering of Funeral Mourners?

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t is often said, albeit sometimes for rhetorical effect, that the First Amendment protects the speech we hate just as rigorously as the speech we value. In some ways, Synder v. Phelps tests our commitment to this principle as severely as any case in recent memory. There is virtually unanimity among Americans of all religions or political persuasions that the expressive conduct of the defendants directed at the mourners attending a funeral of a soldier killed in Iraq was despicable and contemptible. Indeed, it is hard for us to keep our minds focused on the free speech issues raised by this case given our visceral instinct simply to vent about the defendants’ utter lack of human decency.

Yet the Phelps case does raise important questions about government’s ability, consistent with the First Amendment, to protect individuals who are uniquely vulnerable from hurtful speech at particular times and locations. In this article, we take up the question of whether certain kinds of speech directed at funeral mourners can be restricted without running afoul of constitutional guarantees and, assuming that some limitations on such speech are permissible, whether certain forms of restrictions on speech are more or less constitutionally appropriate ways of accomplishing this goal. Of particular significance, we analogize to and borrow from various lines of authority - residential picketing of abortion provider cases, abortion clinic access cases, hospital patient protection cases, tort cases dealing with the mishandling of human bodies, telephone and other harassment cases, and so-called “compelled speech” cases in which the First Amendment has been held not to permit individuals to be “used” as mere instruments for the speech of others - to suggest that categorical and doctrinal lines are and can be drawn to permit government to reach odious conduct of the kind at issue in Phelps. We point to two specific features of the Phelps scenario - the well-recognized vulnerability of the victims, and the distinctive way in which the speakers disregarded the victims’ essence as autonomous beings and misused the mourners’ torment as means to an end - that would justify some meaningful regulation under existing doctrine.
Original languageEnglish (US)
Pages (from-to)368
JournalCardozo Law Review de novo
StatePublished - 2010


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