First Amendment to the Constitution of the United States of America

First Amendment to the Constitution of the United States of America:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Friday, July 31, 2015

Silencing Westboro: Did Governor Jindal Find the Formula?

The Westboro Baptist Church does despicable things at funerals.  At the hundreds of funerals its members have protested, desperate for attention, they hold signs with messages such as "You're Going to Hell" and "Thank God for Dead Soldiers."

These messages are uncouth and unpopular and rightly so.  Yet, it seemed the Church was on a roll when, in 2011, it won an 8-1 decision in the US Supreme Court called Snyder v Phelps. The Court held that the Church's offensive speech was protected and could not give rise to civil liability for a claim called intentional infliction of emotional distress (pretty much what it sounds like) when the father of a slain soldier sued because Church members picketed outside his son's funeral.  The Court explained that, although some of the signs related to the Snyder family, most addressed broader topics that were ostensibly of public concern -- e.g., gays in the military.

In the Snyder case, the Church complied with all local police directives. The picketing took place on a 10 by 25 foot plot of public land, behind a fence, 1,000 feet from the church where the funeral was held.  The funeral procession passed within 200 to 300 feet of the picketers.  The picketing was peaceful and not loud.  Snyder successfully sued for $10.9 million in damages before his judgment was eventually overturned by the Supreme Court.  "Simply put," wrote Chief Justice Roberts, "the church members had a right to be where they were."

This was in part because Maryland, where the picketing in the Snyder case took place, had no funeral picketing law at the time.  Now it does, like nearly every other State.  The Court noted this and held that it would not decide whether such regulations are constitutional because Maryland had no such law at the time.

So, it seemed that Westboro could insult funeral-goes to its shriveled-heart's content...?

But then, a shooter killed two movie-goers in Lafayette, Louisiana.  The shooter apparently was a Westboro sympathizer.

When Louisiana Governor (and presidential candidate) Bobby Jindal heard that Westboro might come to the victims' funerals he warned:  "If they come here to Louisiana, if they try to disrupt this funeral, we're going to lock them up," Jindal said during an interview on Sunday's Meet the Press. "We're going to arrest them. They shouldn't try that in Louisiana. We won't abide by that here."

Jindal then issued an executive order directing authorities to "strictly enforce" Louisiana's disturbing the peace law, which prohibits any "utterance, gesture, or display designed to disrupt a funeral," and "intentionally blocking, impeding, inhibiting, or in any other manner obstructing or interfering, within five hundred feet" of a funeral or funeral procession.

Curiously, Jindal's executive order was not on the Governor's website until after the funerals commenced and possibly after they were over.  I was checking the Governor's website throughout the day.

Jindal's threats worked.  The Westboro protestors did not show up.

This is not really new.  The City of Charleston temporarily banned funeral protests within 300 feet of a funeral following the recent, tragic shootings there.

And after the recent, terrible shootings in Chattanooga, the Mayor of that town issued an order stating that any picketing, protesting or demonstrating within 500 feet of a funeral or memorial service is considered "offensive" under Tennessee law and is prohibited.

I can't tell if the Westboro protestors showed up in Charleston or Chattanooga.

Is this all constitutional?  Probably not.  But, practically, it's working ... at least it worked in Louisiana.

In Synder, the Supreme Court left the door open to legitimate time, place and manner restrictions for funeral protests.  But, vague terms prohibiting "gestures" or "utterances"  that would "inhibit" a funeral from 500 feet away are tough to square with the First Amendment.  And is all picketing around funerals "offensive" in Chattanooga?  What about the counter-protestors who often show up to shame Westboro, as they deserve to be shamed, and support the fallen.  Also, it doesn't help much that the clear intent of the temporary Charleston law and Jindal's threats were unequivocal: "We're going to arrest them."  That strongly suggests (as if there were any doubt) that the rules and enforcement are viewpoint-based, which is a First Amendment no-no.

But, if Westboro won't show up or fight it, then maybe this is the formula for silencing Westboro: pass a law, even a temporary one, restricting funeral protests and make it clear that the law will be enforced (with prejudice if necessary) and, adding on, keep an executive order mandating that enforcement out of public view or commentary until after it is too late to challenge it. 

As much as I really don't like what the Westboro people say and do, I am not comfortable with vague laws that restrict speech coupled with threats to arrest peaceful protestors.  I am also unimpressed that Governor Jindal boasts about his support for the Second Amendment (see his Twitter account), even in the face of a mass shooting, but seems to have such little regard for the (appropriately unpopular) First Amendment rights of the Westboro Church, as recognized by the Supreme Court just a few years ago.

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