JURIST Guest Columnist Christina Wells of the University of Missouri School of Law says that to restrict peaceful protests aimed at disseminating a message simply because we find that message offensive is inconsistent with common sense notions of privacy and the spirit of the First Amendment….

Since 2006 the Reverend Fred Phelps and the Westboro Baptist Church have gained notoriety for their controversial protests at funerals of soldiers killed in the Iraq and Afghan wars. Members of the church typically gather at such funerals chanting and displaying signs with slogans such as “God Hates You,” “You’re Going to Hell,” “Semper Fi Fags” and “Thank God for Dead Soldiers.” According to church members, they protest at such funerals to disseminate their message that soldiers’ deaths are a result of this country’s willingness to embrace homosexuality.

Not surprisingly, many people are outraged at the protestors’ behavior, which they perceive as abhorrent and disrespectful of mourners during an especially vulnerable time. Forty states have enacted laws restricting protests near funerals in order to protect the privacy of grieving friends and family. At least one family has sued Phelps and other church members, claiming that protests at their son’s funeral amounted to invasion of privacy and intentional infliction of emotional distress. A federal court recently upheld a multi-million dollar jury verdict in that case. (Snyder v. Phelps, 533 F. Supp. 2d 567 (D. Md. 2008).

These statutes and the individual invasion of privacy lawsuit raise an important question for free speech law — when do protestors invade the privacy of those attending a funeral? This issue is of no small consequence for free expression. Supreme Court precedents recognize privacy as an important interest supporting restrictions of speech in some instances but it is not clear what the term “privacy” means in the context of funeral protests or whether funeral protests invade mourners’ privacy in any sense recognized by tort or free speech law.

The argument that funeral protests invade mourners’ privacy assumes that such protests are especially unwanted and invasive intrusions into mourners’ grief. Certainly, one can envision a number of scenarios in which protests would constitute such an intrusion — i.e., noisy and distracting protests near a funeral ceremony, persons who peacefully protest while actually attending a funeral ceremony, or protests that amount to harassment of mourners as they enter and leave funerals. All such scenarios involve protestors who invade a relative zone of seclusion created by mourners in order to grieve with family and friends. There is little argument that protestors’ free speech rights outweigh mourners’ privacy rights in such situations.

Many funeral protests, however, do not involve such scenarios. Yet government officials and individual families attempt to restrict them in the name of privacy nonetheless. Such attempts reveal how nebulous the notion of “invasion of privacy” is and reflect the dangers of restricting expression based on such an amorphous interest.

In Snyder v. Phelps, for example, Matthew Snyder’s father sued Phelps and other church members for invasion of privacy based upon their protests outside of Snyder’s funeral. Although the protestors held signs similar to those described above, they complied with all local laws and police orders and remained a certain distance from the funeral. Nevertheless, Snyder sued for invasion of privacy because he viewed footage of the protests at his son’s funeral on television later that day. The federal court held that a reasonable jury could find that the protestors intruded upon Snyder’s privacy because when he “turned on the television to see if there was footage of his son’s funeral, he did not ‘choose’ to see close-ups of the defendants’ signs and interviews with Phelps.”

The court’s willingness to uphold the invasion of privacy verdict in Snyder ignores the law and erodes our right to free expression. The invasion of privacy tort generally requires an intrusion into something, such as a home or other building, or interference with a zone of seclusion that an individual or group has created while in public, such as a funeral ceremony. But Snyder’s father did not allege interference with such a zone of privacy. Rather, he alleged that his privacy was invaded by viewing footage of the funeral at some distance from it and well after the fact.

Such a claim does not involve speech that intrudes upon or substantially interferes with a secluded event. Rather it involves speech that offends the listener because of its outrageous content. While Snyder’s father has every reason to be outraged at the protestors’ behavior, making their message actionable simply because it is offensive flies in the face of decades of free speech law, which protects speech that is “provocative and challenging,” “induces conditions of unrest,” and “even stirs people to anger.” (Terminiello v. Chicago, 337 U.S. 1 (1949)).

Criminal statutes that restrict peaceful protests within certain distances and times of funeral ceremonies (usually 500 feet and an hour before and after) pose similar problems for free expression. It is reasonable to restrict obstructive, disruptive and harassing protests at or near funeral ceremonies. Statutes restricting peaceful protests, however, do not aim at preventing disruption. Their sheer breadth precludes an argument that they aim only at speech that intrudes into a secluded space. Rather, many statutes prohibit even the most peaceful of protests that occur near funerals. Accordingly, such statutes protect mourners not from the intrusiveness of such protests but, rather, from the offensive of such protests. Although free speech law protects “captive audiences” from certain kinds of unwanted speech, the Supreme Court has not recognized the right of captive audiences to be free from offensive messages when in public spaces. To do so, it has noted “would effectively empower a majority to silence dissidents simply as a matter of personal predilections.” (Cohen v. California, 403 U.S. 15 (1971))

It would be a mistake for courts to extend the captive audience doctrine to allow broad restrictions of peaceful funeral protests. Our legitimate outrage at the behavior of the Westboro Baptist Church should not blind us to the state of the law. There are many instances in which disruptive and harassing protests can be regulated. Some of the Westboro Baptist Church’s actions may fall within such regulations. But to restrict peaceful protests aimed at disseminating a message simply because we find that message offensive is inconsistent with common sense notions of privacy and the spirit of the First Amendment.

Christina Wells is the Enoch H. Crowder Professor of Law at the University of Missouri School of Law. Her forthcoming article, Privacy and Funeral Protests, can be accessed at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1106363.
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