I'm wondering what went into the thinking of the ACLU's decision to file suit on behalf of Fred Phelps' God Hates Fags "church group":

KANSAS CITY, Mo. -- A Kansas church group that protests at military funerals nationwide filed suit in federal court, saying a Missouri law banning such picketing infringes on religious freedom and free speech.

The American Civil Liberties Union filed the lawsuit Friday in the U.S. District Court in Jefferson City, Mo., on behalf of the fundamentalist Westboro Baptist Church, which has outraged mourning communities by picketing service members' funerals with signs condemning homosexuality.

The church and the Rev. Fred Phelps say God is allowing troops, coal miners and others to be killed because the United States tolerates gay men and lesbians.

Missouri lawmakers were spurred to action after members of the church protested in St. Joseph, Mo., last August at the funeral of Army Spec. Edward L. Myers.

The law bans picketing and protests "in front of or about" any location where a funeral is held, from an hour before it begins until an hour after it ends. Offenders can face fines and jail time.

In this case I would think that picketing a cemetary would bear some similarity to picketing a private home, restrictions on which the Supreme Court has generally permitted. A cemetary has never been a traditional public forum; it is a place where people expect a certain tranquility, and come with a certain vulnerability. It strikes me as very similar to a hospital. I suspect the Supreme Court's abortion-picketing cases -- roundly criticized by Scalia -- which have generally upheld restrictions on protests of abortion clinics, staff homes, etc. -- will be found analogous and will apply.

Although oddly enough, come to think of it, the ACLU, despite its general absolute-free-speech position, has rarely come to the aid of the first amendment rights of abortion protestors.

But in general, I'm inclined to agree with reasonable time, place, and manner restrictions, because this goes to the right to be left alone. The right to protest is not an unlimited right to force people to listen to the message at all times and places. Protesting in front of someone's house crosses the line that separates free speech from simple harrassment. It's a bit like receiving repeated, unwanted telephone calls. Just as free speech does not allow the God Hates Fags people to call people repeatedly on the phone for purposes of harassment, they shouldn't have a right to show up at someone's house and wave signs.

In Frisby v. Schultz, 487 U.S. 474, anti-abortion protesters (with the ACLU filing briefs) demanded the right to picket the home of a doctor who performed abortions, contending that the following local law was unconstitutional:

"It is unlawful for any person to engage in picketing before or about the residence or dwelling of any individual in the Town of Brookfield." App. to Juris. Statement A-28.

The ordinance itself recites the primary purpose of this ban: "the protection and preservation of the home" through assurance "that members of the community enjoy in their homes and dwellings a feeling of well-being, tranquility, and privacy." Id., at A-26. The Town Board believed that a ban was necessary because it determined that "the practice of picketing before or about residences and dwellings causes emotional disturbance and distress to the occupants . . . [and] has as its object the harassing of such occupants." Id., at A-26 - A-27. The ordinance also evinces a concern for public safety, noting that picketing obstructs and interferes with "the free use of public sidewalks and public ways of travel." Id., at A-27.

On May 18, 1985, appellees were informed by the town attorney that enforcement of the new, revised ordinance would begin on May 21, 1985. Faced with this threat of arrest and prosecution, appellees ceased picketing in Brookfield and filed this lawsuit in the United States District Court for the Eastern District of Wisconsin. The complaint was brought under 42 U.S.C. 1983 and sought declaratory as well as preliminary and permanent injunctive relief on the grounds that the ordinance violated the First Amendment.

There simply is no right to force speech into the home of an unwilling listener.

The Court also upheld the ordinance because a home, by its nature, is a captive audience:

The First Amendment permits the government to prohibit offensive speech as intrusive when the "captive" audience cannot avoid the objectionable speech. See Consolidated Edison Co. v. Public Service Comm'n of New York, 447 U.S. 530, 542 (1980). Cf. Bolger v. Youngs Drug Products Corp., supra, at 72. The target of the focused picketing banned by the Brookfield ordinance is just such a "captive." The resident is figuratively, and perhaps literally, trapped within the home, and because of the unique and subtle impact of such picketing is left with no ready means of avoiding the unwanted speech. Cf. Cohen v. California, 403 U.S., at 21 -22 (noting ease of avoiding unwanted speech in other circumstances). Thus, the "evil" of targeted residential picketing, "the very presence of an unwelcome visitor at the home," Carey, supra, at 478 (REHNQUIST, J., dissenting), is "created by the medium of expression itself." See Taxpayers for Vincent, supra, at 810. Accordingly, the Brookfield ordinance's [487 U.S. 474, 488] complete ban of that particular medium of expression is narrowly tailored.

But a funeral only happens once, because we only die once, and people come there to honor us, and to grieve. The people there are not only a captive audience with no way to escape, but many of the loved ones are in a precarious mental state. Literally, they are in pain. The idea that they should have to endure protesters -- of any kind -- at such an event strikes me as obscene. I think it's far more invasive, harassing, and egregious than a protest in front of a home.

If the Missouri statute is not a perfect example of a permissible time, place, and manner restriction, I don't think anything would be.

I'd also note that the nothing in the statute (the text of which has been posted in comments to Jonathan Adler's post) singles out Fred Phelps or his particular message. It simply prohibits funeral protests, and it would apply equally to anti-war protesters, anti-gay protesters, anti-union protesters or anti-abortion protesters. A hero has just as much right to an undisturbed funeral as a villain*, and those who mourn the dead have a right to do so without being made a captive audience.

*I'd go so far as to say that mass murderers (and even people guilty of worse crimes, like Ken Lay) have the right to protest-free funerals.

But what about protests at weddings?