Maryland Law Review Volume 71 | Issue 4 Article 17 Building Picket Fences: Maryland’s Funeral Picketing Law After Snyder v. Phelps Michael Bakhama Follow this and additional works at: http://digitalcommons.law.umaryland.edu/mlr Part of the First Amendment Commons Recommended Citation Michael Bakhama, Building Picket Fences: Maryland’s Funeral Picketing Law After Snyder v. Phelps, 71 Md. L. Rev. 1231 (2012) Available at: http://digitalcommons.law.umaryland.edu/mlr/vol71/iss4/17 This Casenotes and Comments is brought to you for free and open access by the Academic Journals at DigitalCommons@UM Carey Law. It has been accepted for inclusion in Maryland Law Review by an authorized administrator of DigitalCommons@UM Carey Law. For more information, please contact [email protected]. Comment BUILDING PICKET FENCES: MARYLAND’S FUNERAL PICKETING LAW AFTER SYNDER v. PHELPS ∗ MICHAEL BAKHAMA In an episode of HBO’s television drama Six Feet Under, funeral director David Fisher presides over the funeral of a young man named Marc Foster, who has been brutally murdered for being gay.1 David, a devout Christian who is secretly gay, angrily confronts a group of anti-homosexual picketers at Foster’s funeral as they shout “God hates fags!” and “Your son is burning in hell!” at Foster’s griev- ing family.2 One of the more vocal picketers proudly proclaims, “God killed Marc Foster and I’m here to celebrate!”3 In a fit of anger, Da- vid rushes his antagonist and punches him in the face before being restrained by the police.4 In the United States today, dramas similar to the one portrayed in this scene occasionally unfold around the Westboro Baptist Church (“Westboro”), a radically anti-gay organization that has gained noto- riety in recent years for picketing military funerals.5 Westboro’s of- fensive signs and slogans (most infamously “God Hates Fags”) pro- voke public anger and, on some occasions, have led to violence.6 In Copyright © 2012 by Michael Bakhama. ∗ The author is a second-year student at the University of Maryland Francis King Carey School of Law, where he is a staff member of the Maryland Law Review. He would like to express his gratitude to Professor Maxwell L. Stearns, Dean Mark A. Graber, Kristina Foehrkolb, Molly K. Madden, and Nabeela Abid for their invaluable insight, guidance, and assistance throughout the writing process. He also thanks his mother, Caroline Harris, and grandmother, Lea Harris, for their love and support. 1. Six Feet Under: A Private Life (HBO television broadcast Aug. 19, 2001). 2. Id. 3. Id. 4. Id. 5. Barbara Bradley Hagerty, A Peek Inside the Westboro Baptist Church, NPR.ORG (Mar. 2, 2011), http://www.npr.org/2011/03/02/134198937/a-peek-inside-the-westboro-baptist- church. 6. See, e.g., 5 Arrested for Attacks on Anti-Gay Protesters at Military Funeral, FOX NEWS (May 22, 2006), http://www.foxnews.com/story/0,2933,196487,00.html (reporting a vio- lent altercation between area residents and Westboro protesters, after which five people were criminally charged). For additional information on this subject, see THE MOST 1231 1232 MARYLAND LAW REVIEW [Vol. 71:1231 Maryland, a recent incident attracted national attention. Westboro founder Fred Phelps, his daughters, and his grandchildren picketed the funeral of fallen marine Matthew Snyder.7 The picketing oc- curred just prior to Snyder’s funeral service, on a plot of public land located about 1,000 feet from the funeral site.8 Unlike David Fisher, Snyder’s father had the good fortune to avoid the protesters on the way to and from his son’s funeral.9 But when he went home and watched news coverage of the protest, he experienced shock and an- ger.10 In Snyder v. Phelps,11 the United States Supreme Court held that the First Amendment shielded Phelps from paying compensatory damages to Snyder for the emotional distress inflicted by Phelps’s speech.12 Although it generated public controversy,13 the Court’s 8-1 decision reflected a well-justified extension of its prevailing First Amendment jurisprudence, under which speech related to social and political concerns enjoys special constitutional protection.14 After Phelps’s protest at Snyder’s funeral, the Maryland General Assembly passed a statute that prohibits picketing within 500 feet of funeral services.15 While Snyder properly shielded Westboro picketers from tort liability,16 it did not address the constitutionality of such “buffer zone” laws.17 HATED FAMILY IN AMERICA (BBC 2007) (documenting Westboro’s beliefs, activities, and picketing of funerals for U.S. soldiers) and AMERICA’S MOST HATED FAMILY IN CRISIS (BBC 2011) (interviewing several of Phelps’s estranged family members who left the church after the first documentary). 7. Snyder v. Phelps, 131 S. Ct. 1207, 1213 (2011). 8. Id. 9. Id. at 1213–14. 10. Id. 11. 131 S. Ct. 1207 (2011). 12. Id. at 1220–21. 13. See, e.g., Devin Dwyer, Westboro Baptist Church to “Quadruple” Funeral Protests After Rul- ing, ABC NEWS (March 2, 2011), http://abcnews.go.com/Politics/Supreme _Court/westboro-baptist-church-quadruple-military-funeral-protests-supreme/story?id= 13039045#.TwOl09S0wiA (noting opposition to the Court’s ruling by “a coalition of mili- tary families”). 14. See infra Part II.A. 15. See infra Part I.C.2. 16. See infra Part II.A. 17. Snyder’s lawsuit against Phelps did not implicate any such statutes, so the Court mentioned them only in passing. See Snyder, 131 S. Ct. at 1218 (“Maryland’s law . was not in effect at the time of the events at issue here, so we have no occasion to consider how it might apply to facts such as those before us, or whether it or other similar regulations are constitutional.”). 2012] FUNERAL PICKETING LAWS 1233 A recent split between the Courts of Appeals for the Sixth and Eighth Circuits on the constitutionality of two laws similar to Mary- land’s may soon be resolved as the Eighth Circuit rehears its case. Analyzing two virtually identical laws, creating 300-foot buffer zones around funerals during and for one hour before and after services, the Sixth Circuit upheld the law18 while the Eighth Circuit initially in- validated the buffer zone.19 At the time of this writing, the Eighth Circuit has vacated its opinion and will rehear the case en banc. This Comment argues that the Eighth Circuit was right to grant a rehearing because its initial decision was incorrect.20 The statutes at issue in these cases, like Maryland’s new statute, are constitutional be- cause they are content-neutral laws that are narrowly tailored to serve the important governmental interest of protecting mourners’ privacy at funerals, and allow picketers ample alternative communicative channels.21 Reasonable time, place, or manner regulations22 of this nature do not infringe on picketers’ First Amendment rights.23 Ra- ther, they are valid measures designed to protect the privacy of vul- nerable mourners who may be otherwise held captive to unwanted speech at funerals.24 I. LEGAL BACKGROUND Freedom of speech enjoys a historic pedigree in the United States.25 The most important legal manifestation of American socie- ty’s commitment to free speech can be found in the First Amendment 18. Phelps-Roper v. Strickland, 539 F.3d 356, 373 (6th Cir. 2008). 19. Phelps-Roper v. City of Manchester, 658 F.3d 813, 816–17 (8th Cir. 2011), vacated, reh’g en banc granted (Dec. 7, 2011). 20. See infra text accompanying note 171. 21. See infra Part II.B. 22. See infra Part II.C.1. 23. See infra Part II.C.2. 24. See infra Part II.B. 25. See ZECHARIAH CHAFEE, JR., FREE SPEECH IN THE UNITED STATES 21 (1969) (arguing that the Framers and ratifiers of the First Amendment “intended to wipe out the common law of sedition, and make further prosecutions for criticism of the government, without any incitement to law-breaking, forever impossible in the United States of America”). But see LEONARD WILLIAMS LEVY, LEGACY OF SUPPRESSION: FREEDOM OF SPEECH AND PRESS IN EARLY AMERICAN HISTORY, at vii–viii (1960) (contending the framing generation believed in a narrower scope for freedom of expression than Chafee suggested, and that broad li- bertarian theories of the First Amendment were not commonly advanced until after 1798, when the Jeffersonians used them to politically oppose the speech-restrictive Alien and Sedition Acts of the Adams Administration). For an intellectual history of the American Revolution that documents the rise of radical libertarian thought in late colonial America, see generally BERNARD BAILYN, THE IDEOLOGICAL ORIGINS OF THE AMERICAN REVOLUTION (1967). 1234 MARYLAND LAW REVIEW [Vol. 71:1231 to the Constitution, which guarantees that “Congress shall make no law . abridging the freedom of speech, or of the press . .”26 Near- ly a century ago, the Supreme Court incorporated this key protection against the states through the Due Process Clause of the Fourteenth Amendment.27 Thus, the First Amendment protects an individual’s right to freedom of expression from infringements posed by both the federal government and the states. This Part begins with a brief introduction to First Amendment theory and principles.28 Next, it surveys some constitutional limits on a state’s ability to impose criminal and civil liability for speech-based crimes and torts, focusing on the Court’s most recent landmark First Amendment case, Snyder v. Phelps.29 This is followed by a discussion of constitutional limits on a state’s power to enact content-neutral sta- tutes that impose incidental burdens on speech.30 Particular atten- tion in this discussion is given to Maryland’s statute regulating picket- ing near funerals, as well as cases analyzing similar statutes.31 A.