Bustos Law Firm

Texas Changes Funeral Picketing Law

In First Amendment, Texas Law on September 26, 2011 at 8:51 AM

During the 82nd regular legislative session of the Texas legislature, an amendment to the Texas Penal Code was passed that will affect the right to picket near a funeral service in the state. This law, introduced as HB 718, amends § 42.055(b) of the Texas Penal Code to further restrict the times when a person can lawfully picket a funeral.

The original provision was made effective on May 19, 2006, and made it illegal for a person to picket within “1,000 feet of a facility or cemetery being used for a funeral service” during the period beginning one hour before the service begins and ending one hour after the service is completed. As of September 1, 2011, and because of HB 718, it is a punishable offense to picket within 1,000 feet of a facility or cemetery being used for a funeral service during the period beginning three hours before the service begins and ending three hours after the service is completed. For five years, the one hour before and after a funeral service was sufficient to protect a grieving family from possible offensive picketers. What changed since 2006? Why is Texas changing the law now?

The answer: Snyder v. Phelps, 131 S.Ct. 1207 (2011), a highly controversial case decided by the Supreme Court on March 2, 2011. Matthew Snyder was an American soldier who was killed in action in Iraq. His funeral service was held in his hometown of Finksburg, Maryland. Fred Phelps, the head of the Westboro Baptist Church in Kansas, along with his fellow parishioners, decided to picket near Snyder’s funeral around the same time. The Phelps group informed local authorities in Maryland of their intent to picket near the funeral site while the funeral was taking place. They followed all local laws and restrictions, did not yell or use profanity, and were never violent.

The problem with the picketers, however, was their signs’ messages. The signs contained such statements as “God Hates the USA/Thank God for 9/11,” “America is doomed,” and “Thank God for Dead Soldiers.” Snyder’s father brought suit based on the content of the signs the picketers carried and the effect they had on him. It took a trial at the district court level, an appeal to the Fourth Circuit, and an opinion from the Supreme Court to resolve the matter. The Supreme Court concluded that Phelps and the members of his church were addressing matters of public import, on public property, in a peaceful manner, and in full compliance with the guidance of local officials. They were not liable for any harm Snyder may have suffered because their speech was protected.

While the First Amendment does afford a vast protection over free speech, states have the power to impose content-neutral time, place, and manner restrictions. See Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984). Texas’s HB 718 is an exercise of that power.

Currently forty-four states have laws restricting protests; some only restrict protests held near or around military funeral services. Of these, most states impose minimal restrictions on the distance that a picketer must keep between himself and the cemetery or funeral location, ranging from 300 to 500 feet. At the time of the Supreme Court’s decision, Maryland’s restriction only mandated that picketers stay 100 feet away; the state has since amended the law to impose a 500 feet restriction.

Texas, however, has one of the most restrictive laws regarding funeral picketing, imposing a 1,000 feet buffer between a funeral service and a picketer. This was true even before the amended law became effective on September 1. Perhaps the amendment to the funeral restriction was just a sign from the Texas legislature that, while the freedom of speech is a right so fundamental that even speech which is offensive or hurtful will be protected, states still have the power to protect their citizens during difficult times.

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