I have previously argued that the Supreme Court’s holding that the intentional infliction of emotional distress of funeral mourners is protected speech is a special form of First Amendment madness. The Court suggested that place restrictions on speech near a funeral might be constitutional, and the Eighth Circuit Court of Appeals has upheld that position. Earlier this month, Creve Coeur, Missouri passed an ordinance forbidding picketing within 300 feet of a funeral during the time period an hour before and an hour after the event. See here. Why is Creve Coeur passing this ordinance? It is obviously in reaction to the Westboro Baptist Church, the one organization specializing in funeral protests, the same organization that inflicted intentional infliction of emotional distress in Snyder v. Phelps. Passing even a content-neutral ordinance with the intention of squelching the speech of a particular speaker or organization is clearly an illicit purpose.
My concern is not that the First Amendment has become complicated. That has been true for many years. My complaint is that the Court has launched a war on common sense. The intentional infliction of emotional distress should not be a constitutional right, and statutes passed to squelch particular speakers should not be constitutional. The Court has generally managed to protect speech that should not be protected (think violent video games) and allowed sanctions against speech that should be protected (think of various dissent cases including sleeping in Lafayette Park to protest government homeless policies). This is not a cause for celebration.