You asked about the constitutionality of prohibiting protests at funerals.

Statutes prohibiting protests at funerals have been challenged as violations of the free speech provisions of the First Amendment of the U. S. Constitution. There is no decision on such a statute that is binding on Connecticut from the U. S. Supreme Court, the federal 2^nd Circuit Court of Appeals, or a Connecticut court. But three decisions from federal district courts in other states (Kentucky, Missouri, and Ohio) provide guidance on the issues involved and how the First Amendment applies to these statutes.

When analyzing a statute that impacts speech, a court must consider whether its regulation of speech is content-based or content-neutral. A content-based statute prohibits a complete area of speech or certain perspectives in an area of speech. These statutes are subject to the highest degree of scrutiny and must be necessary and narrowly tailored to achieve a compelling public interest. A content-neutral statute is one that regulates speech without reference to the content of the speech. A content-neutral statute is subject to intermediate scrutiny and is valid if it is narrowly tailored to serve a significant government interest and leaves ample alternative channels of communication.

All three district court cases considering statutes regulating funeral protests found the statute content-neutral. One did so based on the parties' agreement, one did so because it found the statute's text did not describe speech by its content, and the third found factors making the statute both content-based and content-neutral before concluding that the statute's text indicated that it was predominantly content-neutral.

Once a statute is determined content-neutral, courts look to see if it is narrowly tailored to serve a significant government interest and leaves ample alternative channels of communication.

All three district courts found that the statute involved a significant government interest: protecting citizens from disruptions during events associated with a funeral or burial service. But based on the specific statutes at issue, the courts differed on whether they were narrowly tailored to achieve that interest. The court in the Missouri case upheld the statute, which prohibited protests within a buffer zone around a funeral and within a “floating” buffer zone around the path of a funeral procession. The court in the Ohio case found that the fixed buffer zone prohibiting protests around a funeral was not substantially broader than necessary and provided ample alternative channels of communication but found the “floating” buffer zone prohibiting protests around a funeral procession was not narrowly tailored and burdened substantially more speech than necessary.

The court in the Kentucky case found that the two statutory provisions being challenged burdened substantially more speech than necessary to prevent interferences with a funeral or to protect funeral attendees from unwanted, obtrusive communications that are otherwise impractical to avoid. The court found a provision prohibiting all gathering and demonstrating within 300 feet of a funeral prohibited activities and communications that would not interfere, were not unwanted, and were not so obtrusive that they could not be avoided. It found the 300 foot buffer zone too large because it encompasses public sidewalks and streets, restricts private property owners' speech on their own property, and restricts communications intended for the general public on matters completely unrelated to the funeral as well as messages targeted for funeral participants.

The court also rejected another provision prohibiting all unauthorized sounds within earshot of or images observable to funeral participants. The court found that this was a blanket prohibition instead of prohibiting unreasonable or interfering sounds or images that was substantially broader than necessary to prohibit interference with a funeral.

A statute that regulates speech can also be challenged as overbroad or vague. The court in the Missouri case, with little analysis, rejected a challenge that the statute was overbroad or vague. Another case, in Kansas, found that a statute regulating funeral protests was unduly vague for prohibiting certain conduct “before” and “after a funeral” and not specifying more precisely the times the prohibition applied (Phelps v. Hamilton, 122 F. 3d 1309 (10^th Cir. 1997) discussing district court ruling).

When analyzing a statute that impacts speech, a court must consider whether its regulation of speech is content-based or content-neutral. A content-based statute prohibits a complete area of speech or certain perspectives in an area of speech. A content-neutral statute is one that regulates speech without reference to the content of the speech.

In all three district court cases, the courts found the statute content-neutral. In the Missouri case, the court found that the statute's text showed that it was content-neutral because it did not describe speech by its content (Phelps-Roper v. Nixon, 2007 WL 273437 (W. D. Mo. 2007)). In the Ohio case, the parties agreed that the statute was content-neutral (Phelps-Roper v. Taft, 1: 06 CV 2038 (N. D. Ohio March 23, 2007)).

In the Kentucky case, the court found factors pointing in both directions. The court found that the statute was content-based because it was (1) at least partially aimed at prohibiting protests at funerals by a particular group (Westboro Baptist Church members), (2) motivated by a specific desire to restrict their ability to demonstrate at soldiers' funerals, and (3) concerned for violent confrontations with the group and concern for listeners' reaction to speech is not content-neutral. But the court also found that the statute was content-neutral because it (1) protected the freedom of those attending a funeral to exercise their rights of freedom of assembly and religion, (2) was motivated by preventing all interferences with all funerals, and (3) prevented people from unwanted communications regardless of content or communicator.

The court then determined that the predominant motivation was content-neutral because (1) the statute's text applies to all speakers and all communications whether likely to incite violence or not and (2) the statute's plain language and the government's stated justifications showed that the state's predominant purpose was content-neutral (McQuery v. Stumbo, 453 F. Supp. 2d 975 (E. D. Ky. 2006)).

A statute that is content-neutral is valid if it is narrowly tailored to serve a significant government interest and leaves open ample alternative channels for communication of the information.

All three cases found that the statute involved a significant government interest. They discuss U. S. Supreme Court rulings stating that the government has an interest in protecting citizens from unwanted communications in certain settings. This interest is not to protect citizens from offensive communications but to protect a substantial privacy interest from being invaded in an essentially intolerable manner. This includes when someone is at home or is a “captive audience” and the communications are so obtrusive that they cannot be avoided.

In the Missouri case, the court stated that spectators at a funeral are a captive audience because they cannot leave without missing the opportunity to pay their last respects to the deceased. The court stated that the government must show that substantial privacy interests are being invaded in an essentially intolerable manner when limiting discourse in efforts to protect others, but picketing soldiers' funerals and belittling their sacrifices are intolerable actions, making protecting funeral attendees a substantial state interest. The court also stated that there is an interest in protecting funeral attendees' rights to free exercise of religion (Phelps-Roper v. Nixon, 2007 WL 273437, (W. D. Mo. 2007)).

In the Ohio case, the court also concluded that the state has an interest in protecting mourners, a captive audience, from unwanted speech. The court cited a U. S. Supreme Court decision in a different context recognizing that family members have a personal stake in honoring and mourning their dead and unwarranted public exploitation intrudes on their grief and tends to degrade the rites and respect they seek to accord the deceased. The court stated that a funeral is a deeply personal, emotional, and solemn occasion and because mourners are a captive audience unable to avoid communications simply by averting their eyes, the state has a significant interest (Phelps-Roper v. Taft, 1: 06 CV 2038 (N. D. Ohio March 23, 2007)).

The court in the Kentucky case also found that the state had an interest in protecting funeral attendees from unwanted communications that are so obtrusive that they are impractical to avoid. But it provided more analysis.

The court stated that the statute's restrictions extend to public streets and private property, and individuals have a First Amendment right to speak on a public street and on their own property about a public issue, even where the speech is distasteful. It found that the state has a significant interest in prohibiting interference with funerals, because the state has an interest in guaranteeing citizens the right to participate in events or demonstrations of their choosing without being subjected to interference by other citizens. Regarding the state's interest in protecting citizens from unwanted communications, the court found it less clear whether or to what extent that interest is a legitimate justification for restricting speech. While the Supreme Court has recognized an interest in protection from unwanted communications in some circumstances (such as prohibiting picketing in front of a residence), the court stated that it generally resists expanding the limited right to be left alone inside their homes to public spaces, even when the messages may prove offensive to the listener.

The court concluded that a funeral is a deeply personal, emotional, and solemn occasion and attendees have an interest in avoiding unwanted, obtrusive communications that is at least similar to a person's interest in avoiding them at home. It found attendees to be a captive audience because to take part in an event memorializing the deceased, they must go to the place designated for the event (McQuery v. Stumbo, 453 F. Supp. 2d 975 (E. D. Ky. 2006)).

Statutes that serve a significant government interest must be narrowly tailored to serve that interest and leave open ample alternative channels for communication. A statute is narrowly tailored if it does not burden substantially more speech than necessary to further the government's legitimate interests. This requirement is met if the statute promotes a substantial government interest that would be less effectively achieved without it. The statute cannot regulate expression in a way that a substantial portion of the burden on speech does not serve to advance its goals.

Based on the specific statutes at issue, the three district courts differed on whether the statutes were narrowly tailored to achieve that interest.

The court in the Missouri case upheld the statute, which prohibited protests within a buffer zone around a funeral and within a “floating” buffer zone around the path of a funeral procession. The court cited cases upholding a buffer zone in a different context and found ample alternative channels for speech because people may still protest outside the times and places prohibited by statute and the statute does not prohibit delivering a message to the public by other means (Phelps-Roper v. Nixon, (2007 WL 273437 (W. D. Mo. 2007)).

The court in the Ohio case found that the fixed buffer zone prohibiting protests around a funeral was not substantially broader than necessary to achieve the state's legitimate interest. It also found that the statute provides ample alternative channels of communication outside of the prohibited times and places and by allowing other means of communication. But the court found that a “floating” buffer zone prohibiting protests around a funeral procession was not narrowly tailored and burdened substantially more speech than necessary. Because it floats, the court found this provision's overbreadth to be real and substantial when compared to its legitimate sweep (Phelps-Roper v. Taft, 1: 06 CV 2038 (N. D. Ohio March 23, 2007)).

Kentucky. The court in the Kentucky case found that the two challenged statutory provisions burdened substantially more speech than necessary to prevent interferences with a funeral or to protect funeral attendees from unwanted, obtrusive communications that are otherwise impractical to avoid.

The court first addressed a provision that prohibited all gathering and demonstrating within 300 feet of a funeral. The court found that:

1. in addition to prohibiting intrusive activities, it prohibited activity that would not interfere and communications that are neither unwanted nor so obtrusive that they cannot be avoided;

2. it does not distinguish whether or not an activity interferes with a funeral, is authorized by attendees, is visible to attendees, or can be heard by attendees; and

3. the 300 foot buffer zone is substantially larger than those upheld in Supreme Court cases, encompasses public sidewalks and streets, restricts private property owners' speech on their own property, and is large enough to restrict communications intended for the general public on a matter completely unrelated to the funeral as well as messages targeted for funeral participants.

The court also rejected another provision that prohibited all unauthorized sounds within earshot of or images observable to funeral participants. The court found that:

1. the prohibitions apply whether the activities are capable of interfering with the funeral or not;

2. it is a blanket prohibition instead of prohibiting unreasonable or interfering sounds or images;

3. it is substantially broader than necessary to prohibit interference with a funeral because sounds that are simply within earshot are not necessarily so obtrusive as to be impractical to avoid;

4. the images observable provision burdens substantially more speech than necessary to prohibit interference or to protect from obtrusive, unavoidable images because images may be avoided by averting the eyes or, when inside, pulling the curtains; and

5. read literally it prohibits all unauthorized distribution of literature occurring anywhere during a funeral, with no geographic restriction and even if limited to where distribution is observable or within earshot it burdens substantially more speech than necessary.

The court concluded that the provisions were not narrowly tailored to serve a significant government interest and were unconstitutionally overbroad (McQuery v. Stumbo, 453 F. Supp. 2d 975 (E. D. Ky. 2006)).

The Missouri court also, with little analysis, rejected a challenge that the statute was overbroad or vague. The court rejected challenges that the statute did not specify when a funeral ends, did not define picketing, and was vague in prohibiting protests “in front of or about” a funeral location. The court concluded that these terms had plain meanings that a person of ordinary intelligence could clearly ascertain (Phelps-Roper v. Nixon (2007 WL 273437 (W. D. Mo. 2007)).

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