Following the Supreme Court’s March 2011 ruling protecting funeral protestors’ picketing rights in Snyder v. Phelps, legislators continue to advocate for the regulation of this controversial form of expression. Fall 2011 saw passage of state laws to curb protest activity, but successful challenges to such laws as well. Meanwhile, parties agreed to a settlement in a noteworthy challenge to a journalist’s arrest by police patrolling the 2008 Republican National Convention protest in St. Paul, Minn. The continued debate surrounding the limits of acceptable conduct at protests demonstrates that Snyder’s narrow holding has failed to put the issue to rest.
Furor Over Funeral Protest Activity Fails to Abate Post-Snyder
Spurred by persistent, disruptive protests led by political and religious groups, states continue to attempt to pass laws placing limits on funeral demonstrations. These protests, frequently led by members of the Westboro (Kan.) Baptist Church, often target military funerals and aim to convey the group’s belief that overseas deaths of U.S. soldiers represent God’s punishment of America for its tolerance of homosexuality.
In September 2011, New York became one of 45 states imposing funeral protest limitations when Gov. Andrew Cuomo signed into law two bills circumscribing picketer behavior at funerals. Proposed as S. 5605 and set to take effect in March 2012, Ch. 528 N.Y. Sess. Laws 2011 triples the buffer zone between protestors and any religious or memorial service from 100 to 300 feet. Violators would face a misdemeanor charge for violating the law, which was co-sponsored by Sens. Lee Zeldin (R-Shirley) and Joseph A. Griffo (R-Rome). Purporting to have balanced the constitutional right to free speech with the ability of families to freely mourn deceased soldiers, Griffo said in a press release following the bill’s legislative approval on June 16 that although free speech is an American right, “it is a tremendous misuse of that freedom to use the funerals of our veterans as a vehicle for protests.”
A second measure, proposed as S.3901A, gives the state and its communities discretion to establish 1,000-foot zones around funeral events on public land, to implement a mandatory permit system for funeral demonstrations within 1,000 feet of a military funeral, and to impose fines of up to $5,000 for failure to comply. The law, Ch. 527 N.Y. Sess. Laws 2011, took effect on Nov. 22, 2011. In a press release following Gov. Cuomo’s signing, the law’s sponsor, Sen. Jack M. Martins (R-Mineola) said, “The Supreme Court let us down. While we have freedom of speech, it shouldn’t infringe on a family’s and a community’s right to mourn with dignity.”
Enforcement of these laws may prove problematic, because although local communities are permitted to define the permit process, they may not target a particular group or message. In a September 26 interview with WHAM-TV Channel 13 in Rochester, N.Y., Barrie Gewanter, director of the Central New York Chapter of the American Civil Liberties Union (ACLU), said that the creation of protest zones raises legal questions concerning the permissible scope of restrictions. “An analysis would be applied in court … to see whether or not there was really a problem with a 100-foot barrier, and whether the 300-foot barrier is necessary,” Gewanter said.
Funeral picketing was at the center of the Supreme Court of the United States’ March 2011 decision in Snyder v. Phelps. The court held in Snyder that First Amendment protections extended to Westboro’s antagonistic military funeral picketing. Finding that the church’s speech addressed matters of public concern and occurred in a public place, Chief Justice John Roberts wrote for the majority that “As a Nation we have chosen … to protect even hurtful speech on public issues to ensure that we do not stifle public debate.” The decision denied a damages award sought by a deceased soldier’s father who alleged tort liability for infliction of emotional distress by the church. Snyder v. Phelps, 131 S. Ct. 1207 (March 2, 2011). (For a full discussion of the Supreme Court’s opinion and reactions to its decision, see “Supreme Court Ruling Protects Funeral Picketers” in the Winter/Spring 2011 issue of the Silha Bulletin.)
The court did not decide the constitutionality of content neutral state laws seeking to directly regulate protests. Justice Roberts wrote that “Westboro’s choice of where and when to conduct its picketing is not beyond the Government’s regulatory reach — it is ‘subject to reasonable time, place, or manner restrictions’ that are consistent with the standards announced in this Court’s precedents.” Justice Stephen Breyer concurred, underscoring this limitation and arguing that the court’s decision did “not hold or imply that the State is always powerless to provide private individuals with necessary protection” from invasions of privacy or inflictions of emotional distress.
Funeral protest ordinances like New York’s and Maryland’s in Snyder are routinely struck down as unconstitutionally vague and overbroad. The U.S. Court of Appeals for the 8th Circuit affirmed one such determination on Oct. 5, 2011, holding that a St. Louis, Mo. suburb’s ban on protests within 300 feet of a funeral service impermissibly curtailed First Amendment rights. The city of Manchester adopted the law into its municipal code in 2007 in response to activities of Westboro members. The restriction prohibited “picketing” and “other protest activities,” which it defined as conduct “disruptive or undertaken to disrupt or disturb a funeral or burial service. Shirley and Megan Phelps-Roper, members of the Westboro church, brought a First Amendment challenge to the law.
The U.S. District Court for the Eastern District of Missouri held that Manchester had no significant interest “in protecting funeral attendees from unwanted communication,” relying on the 8th Circuit’s comparable holding in Phelps-Roper v. Nixon which asserted that individuals have less constitutionally-protected privacy outside the home. The 8th Circuit affirmed this holding, but disagreed with the district court’s determination that the law was a content-based regulation that restricted speech based solely on its topic. “The ordinance does not favor some topics or viewpoints over others and it ‘appl[ies] equally to all demonstrators, regardless of viewpoint,’” the court wrote. “It is not a regulation of speech but a regulation of the place where some speech may occur.” The court also acknowledged that the U.S. Court of Appeals for the 6th Circuit reached the opposite result in 2008 in Phelps-Roper v. Strickland when it held that Ohio legislators had a significant government interest in protecting funeral participants from disruption. Nevertheless, the 8th Circuit opted to adhere to Nixon, contributing to an inter-circuit split that may ultimately be resolved by the Supreme Court. Phelps-Roper v. Manchester, NO. 10-3197 (8th Cir. 2011), Phelps-Roper v. Nixon, 545 F.3d 685 (8th Cir. 2008), Phelps–Roper v. Strickland, 539 F.3d 356 (6th Cir. 2008)
The plaintiffs in Manchester were represented by ACLU attorney Tony Rothert, who in an interview with the Associated Press (AP) the day after the October 5 decision said that “These broad laws that prevent standing with a sign silently on a sidewalk do not further any government interest that would justify setting aside the First Amendment.”
Comparable holdings were reached throughout fall 2011 in cases involving funeral picketing laws adopted in Nebraska and Michigan. On September 9, the U.S. District Court for the Eastern District of Michigan struck down a provision of a statute prohibiting conduct that intended to “adversely affect” a funeral setting. The suit was filed in 2009 by the ACLU of Michigan after an army veteran and his late wife were arrested in the middle of participating in a friend’s funeral procession for displaying signs and bumper stickers on their van critical of the Bush administration. In finding in favor of the challengers who brought the suit, the court wrote that the law was “unconstitutional on its face under the First and Fourteenth Amendments” by being overbroad and vague. Lowden v. Clare County, No. 1:09-cv-11209, 2011 WL 3958488 (E.D. Mich. 2011)
The 8th Circuit issued a per curiam (unsigned) opinion on October 20, vindicating the Manchester case’s reasoning by invalidating a comparable Nebraska funeral picketing law in Phelps-Roper v. Troutman. The statute at issue, the Nebraska Funeral Picketing Law(Neb. Rev. Stat. 28-1320.03), restricted picketing at a funeral from one hour before the funeral until two hours afterward, and defined “picketing” as “protest activities … within three hundred feet of a cemetery, mortuary, church or other place of worship during a funeral.” Westboro successfully challenged the legislation, with the 8th Circuit striking down the law based on its decision in Nixon. Phelps-Roper v. Troutman, No. 10-2601, 2011 WL 4975771 (8th Cir. 2011)
However, the three judges on the panel in Troutman each wrote concurrences urging the entire panel of 8th Circuit judges to reconsider the Nixon decision. In his concurring opinion, Judge Clarence Beam said that although Nixon was correct in holding that the First Amendment’s free speech mandate outweighs a “court-fashioned” right of privacy, the court failed to weigh against freedom of expression the countervailing interests of “free exercise [of religion]” and the “right of … peaceabl[e] … assembl[y]” enumerated in the First Amendment. Beam also took note of the Supreme Court’s explicit refusal to decide the constitutionality of picketing regulation in Snyder, writing that this omission opened the door for the circuit to reconsider the issue. “I believe that it is constitutionally sound, in the balancing test we must make in a case such as this, to employ other expressly enumerated First Amendment rights as we decide whether to erect a constitutional shield for the family and friends of this deceased against the self-centered verbal and written thrusts of appellant in the name of free speech,” he wrote.
Settlement Reached Over 2008 RNC Journalist Arrest
Journalist Amy Goodman, host of the syndicated radio and television news show “Democracy Now!”, announced on Oct. 3, 2011 that a final settlement was reached in a federal lawsuit brought by Goodman and her show’s producers Sharif Abdel Kouddous and Nicole Salazar against the cities of Minneapolis and St. Paul as well as Secret Service personnel. Goodman filed the lawsuit in 2010 in response to incidents at the 2008 Republican National Convention (RNC) when three journalists were arrested by police patrolling the event and their press credentials were confiscated by a Secret Service agent. The terms of the settlement awarded the plaintiffs a total of $100,000, with both cities agreeing to pay a combined $90,000 and the federal government paying $10,000. The settlement also requires the two cities’ police departments to develop and implement a policy properly educating police officers of the First Amendment rights of the press and public concerning police operations, including correct protocol for dealing with press covering demonstrations.
More than 40 journalists were arrested and detained during the RNC in St. Paul and Minneapolis from Sept. 1, 2008 to Sept. 4, 2008, including local news and television reporters, photographers, and videographers, as well as journalists working for national news outlets. Goodman was among the event’s high-profile arrests, and was taken into police custody after approaching a line of riot police to request the release of Kouddous and Salazar, who had previously been arrested. (For a full account of the arrests, the city’s decision to decline prosecuting members of the media, and reaction to the event, see “Dozens of Journalists Arrested at Republican National Convention in St. Paul” in the Fall 2008 issue of the Silha Bulletin.)
In the 2010 lawsuit, Goodman v. St. Paul, the plaintiffs alleged that law enforcement policies and conduct during the RNC led to unlawful arrests and unreasonable use of force, violating their First Amendment right to report on matters of public concern and law enforcement’s public actions. The lawsuit was filed on behalf of the plaintiffs by the Center for Constitutional Rights (CCR), which framed the policies and actions of law enforcement as “part of a larger civil liberties crisis that has been intensifying at an alarming rate over the past decade.” The plaintiffs claimed violation of First Amendment rights and the Fourth Amendment’s protection from unreasonable search and seizure, as well as common law false arrest, assault, and negligence. Attorneys Steven Reiss from the New York-based law firm Weil, Gotshal and Manges LLP and Albert Goins of Minneapolis contributed pro bono assistance in the case.
CCR attorney Anjana Samant said in an interview for an October 3 Reporters Committee for Freedom of the Press (RCFP) story that the $100,000 figure was driven by principle. “It was a payment for their anger and frustration and the anxiety that was caused. It’s an acknowledgement that their Constitutional rights were violated,” Samant said. Goodman said she will donate her portion of the settlement award to “Democracy Now!”.
Attorneys for the local governments and law enforcement agencies downplayed the significance of the settlement in an October 3 Associated Press (AP) report, noting that the settlement contains no admission of liability. Jon Iverson, who represented the local governments and law enforcement agencies, said that police had policies in place before the convention to protect the rights of journalists and would be happy to repeat the training. However, the CCR will provide input in the development of new police training programs, and has set a deadline for the proposed program plans to be sent to the Center for approval by December 2011.
Speaking at an October 3 press conference announcing the settlement, Goodman, Kouddous, and their counsel characterized the settlement as a vindication of the right of journalists to gather news free from interference by authorities. Goodman called it a “major step forward” and expressed hope that police departments covering protests like Occupy Wall Street could learn from her case. “[T]his largest settlement to come out of the 2008 RNC arrests should be a warning to police departments around the country to stop arresting and intimidating journalists,” she said. (For additional information, see “Occupy Wall Street Produces Legal and Ethical Issues for Journalists” on page 7 of this issue of the Silha Bulletin.)