For more than 20 years, the members of a church have publicized their message by picketed over 600 funerals for military service members. During one of these pickets, congregation members picketed on public land adjacent to public streets near a U.S. Marine’s funeral. The picketers had notified the authorities prior to the funeral of its intent to picket at the time of the funeral, and the picketers complied with direction in presenting their protest. None of the picketers entered the funeral site property, appeared at the cemetery, shouted or use profanity, nor was there any demonstration of violence.
Whether the church’s demonstration near a funeral is protected under the First Amendment?
Yes. Speech that is directed at the matters of public concern is at the heart of the protection of the First Amendment.
The Court held that First Amendment speech issues turn “largely on whether that speech is of public or private concern, as determined by all the circumstances of the case.” The Court identified two instances in which speech is a matter of public concern: first, “when it can ‘be fairly considered as relating to any matter of political, social, or other concern to the community,’” [quoting Connick v. Myers, 461 U.S. 138 (1983)], and when it “is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public,” [quoting San Diego v. Roe, 543 U.S. 77 (2004)]. The inappropriate or controversial nature of the speech is not relevant to the determination of whether it is directed at a public concern.
In this case, even though the church’s demonstration was connected to a funeral, the Court held that this, by itself, did not alter the nature of its public speech. The church’s signs, exhibited on a public land next to a public street, reflected condemnation of much in society. The church’s lawful choice of where to present these concerns did not modify its public concern to a private one.
562 U.S. 443, 131 S. Ct. 1207 (2011)