Monday, January 17, 2011


Last week Arizona passed SB1101 to address threats by the Westboro Baptist Church that its members would picket the funeral of Christina Taylor Green, a nine-year old victim of the Rep. Gabrielle Gifford shooting.  The new bill makes it a class 1 misdemeanor to picket or protest within 300 feet of the property line of any residence, cemetery, funeral home, church or other establishment, before, during or after a funeral.   

In October, I posted an article discussing the undecided U.S. Supreme Court case, Snyder v. Phelps, which regards a multi-million dollar emotional distress verdict spawned by a Westboro Baptist Church funeral protest.  In that case, Phelps and the Westboro Baptist Church argued before the U.S. Supreme Court that funeral protests are a protected form of the free speech.  Therefore, the multi-million dollar verdict against Phelps and other protester defendants should be overturned. 

The new Arizona law will have no effect on the outcome of Snyder v. Phelps .  However, the new Arizona law, SB1101, is related because it is designed to limit the type of speech that Westboro Baptist Church argued it was entitled to speak--funeral protests.  After all, SB1101 funeral protesters will be limited in the times of the protests and the location of the protests.  

So, does the new law violate the First Amendment? Answer: Quite possibly.  A similar funeral protest law in Missouri was found unconstitutional in August, 2010.  (A copy of the ruling can be found here.)  Arizona's law is a restriction on free speech.  Restrictions on free speech are Constitutional if the restrictions meet "tests" concocted  by the Supreme Court to guide lower court judges.  In the Missouri case, the Court found that law could not meet two of the tests:  (1) Whether the law serves a significant goverment interest, and (2) Whether the law is narrowily tailored to meet that interest.

These test are complex and beyond the scope of this ariticle.  However, from a practical stand point, the tests are designed to allow limits on speech that is disruptive to everyday society.  So, what makes speech disruptive?  Frequently govement regulations in the name of public safty are upheld. A good example would be a law that causes protesters to hold signs below a certain size and height so that the signs do not block street signs; or a law that causes protesters to not protest near street intersections so as to not interfere with traffic. 

We will need to wait and see whether this law becomes another hot button at the U.S. Supreme Court.  However, given the Missouri case, this law could once again put Arizona in the national spotlight. 

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