FUNERAL PICKETING IN THE UNITED STATES

The death of a family member or friend is a painful experience and can be particularly poignant when the person is relatively young, and has died suddenly and violently. The recent conflicts in Iraq and Afghanistan have meant that the families of some forces personnel have experienced just such a loss, and have gathered together to mourn them at funeral and memorial services. Jesus tells us that those who mourn are blessed and will be comforted, but mourning is, as Rutledge puts it, ‘one of the most private and painful of human experiences’ and is one where ‘the emotional impact of death raises the need for privacy’.Footnote ¹ It seems highly likely that, if asked, most people would consider that mourners had a right to mourn privately, free from distress caused by protesters or pickets even where the funeral is a public event, such as the funeral of Margaret Thatcher, which was accompanied by shouted comments from protesters as the coffin passed through streets on the way to the funeral service at St Paul's Cathedral.Footnote ²

In recent years a number of funerals in the United States have been subjected to the practice of ‘funeral picketing’ by members of the Westboro Baptist Church (WBC). The WBC has picketed at the funerals of some American forces personnel who have been killed on active service and at other high-profile funerals such as those of the victims of the Boston Marathon bombing and the children killed in the Newtown school shooting in Connecticut. These pickets have caused distress to family members and wide public outrage. The WBC is a small fundamentalist church based in Kansas whose members believe that God is bringing about these deaths as a means of punishing America for its tolerance of homosexuality. WBC funeral picketers typically gather on the route of the funeral cortège or close to the church where the funeral is to take place, singing and carrying placards with slogans such as ‘God hates fags’ and ‘Thank God for dead soldiers’. Despite the death in 2014 of Fred Phelps, the founder and pastor of the WBC, church members have announced their intentions to continue funeral picketing. In carrying out these pickets, the WBC has principally argued that it is exercising its right of freedom of speech, although it has also sometimes argued that it is exercising the right to freedom of religion. Both of these rights are guaranteed by the First Amendment of the US Constitution.Footnote ³

The rights of mourners affected by the activities of the WBC are less clear because the US Constitution does not include an express right to privacy, but the protection of privacy has been regarded as a matter on which states and the federal government may legislate. For example, in Frisby v Schultz Footnote ⁴ the US Supreme Court confirmed the constitutionality of a municipal ordinance protecting a person from picketing at his home, holding that there ‘is no right to force speech into the home of an unwilling listener’ or to subject a ‘captive audience’ to a targeted campaign which they cannot escape or avoid.Footnote ⁵ The widespread public condemnation of the activities of the WBC has led to legislation at both a federal levelFootnote ⁶ and a state level, with over forty states passing legislation which, while not banning funeral picketing, has imposed limits on the time and place where funeral pickets may occur.Footnote ⁷ Although it has wide public support the legislation has proved contentious, being the source of considerable academic debate and of litigation.Footnote ⁸

While US law does allow some limits on where funeral picketers may express their opinions, the US Supreme Court has, in Snyder v Phelps,Footnote ⁹ made it clear that the expression of those opinions, however hurtful or distressing, cannot be the basis of a claim for damages against the picketers. The funeral of Matthew Snyder, who had been killed on active service in Iraq, had been picketed by members of the WBC. His father sued the WBC for damages for (inter alia) intentional infliction of emotional distress and intrusion upon seclusion and privacy. At first instance he was awarded nearly $11 million in compensatory and punitive damages. In subsequent appeal hearings the amount was gradually reduced. Finally the US Supreme Court held by a majority of eight to one that the WBC's right of freedom of speech on matters of public importance shielded the church from any tortious liability arising from its picketing, including actions for intentional infliction of emotional distress. The family was also required to pay the WBC's court costs of $16,000. The decision of the Supreme Court followed a long line of decisions in which it has been held that the right to express opinions on a matter of public interest, even where such opinions are offensive or disagreeable to others, is a ‘bedrock principle’ of US constitutional law.Footnote ¹⁰

Although funeral picketing of the type practised by the WBC has not taken place in England, pickets have been threatened on a number of occasions. In 2008 members of the WBC threatened to picket the General Assembly of the Church of Scotland when it met to ratify the appointment of a gay minister, and in 2009 members of the church intended to picket the performance of a play at Basingstoke School.Footnote ¹¹ These pickets did not take place because members of the WBC intending to carry out the pickets were banned from entering the United Kingdom by the Home Secretary. Nevertheless, the issue raises two interesting questions: what action could be taken by police and church authorities if funeral picketing were to take place in England, and what remedies might be available to mourners subjected to the practice?

MAINTAINING ORDER AT FUNERALS AND MEMORIAL SERVICES IN ENGLAND

Some indication of how the police might treat funeral picketing can be given by looking at the response to similar events with the potential to distress mourners which have taken place in this country. For example, in 2010 members of a group calling itself Muslims Against Crusaders interrupted an Armistice Day service by chanting ‘British soldiers burn in Hell’, loudly and repetitively during the two minutes’ silence.Footnote ¹² Despite their claims to be exercising their right of freedom of expression, members of this group were arrested and prosecuted under section 5 of the Public Order Act 1986, which makes it an offence to use threatening or abusive words or behaviour or to display any writing, sign or other visible representation which is threatening, abusive or insulting within the hearing or sight of a person likely to be caused harassment, alarm or distress. Such action was possible because under Article 10 of the European Convention on Human Rights (ECHR) the right of freedom of expression is a qualified right, and states may impose restrictions which are ‘necessary in a democratic society’ in the interests of (inter alia) public safety, the prevention of disorder or crime and the protection of the reputation or rights of others.

Nor would it avail protesters or funeral picketers to assert that in taking part they were manifesting their religious beliefs (as the WBC have claimed) as, although the right to manifest religion is granted under Article 9 of the Convention, this too is a qualified right subject to similar restrictions as the right of freedom of expression. For example, the right of a devout Hindu to have his body cremated in accordance with Hindu religious practice was refused on the grounds of an affront to public decency when it was believed that the practice would take place in the ‘open air’ (although once it was discovered that it would in fact take place within a building the right was upheld by the Court of Appeal).Footnote ¹³ And in Connolly v DPP Footnote ¹⁴ the prosecution of a committed Christian who had sent photographs of dead foetuses to pharmacists in an attempt to dissuade them from selling the ‘morning-after pill’ was held not to breach her Article 9 and 10 rights. However, any limits imposed on the exercise of these Convention rights must be proportionate. In Öllinger v Austria Footnote ¹⁵ the European Court of Human Rights (ECtHR) held that the prohibition of a silent demonstration by six people at a war memorial service to SS soldiers killed in the Second World War was disproportionate and a breach of the demonstrators' Article 10 rights, even when the right of the cemetery users to exercise their Article 9 right was taken into consideration.

Although funeral picketing may appear to be a modern practice, it is clear that in the past funerals and burials have been the subject of disruption sufficient for Parliament to legislate for the maintenance of order.Footnote ¹⁶ A number of provisions of older statutes remain in force, and might be used by secular and church authorities were funeral picketing to take place. Under section 59 of the Cemeteries Clauses Act 1847 it is an offence for any person to wilfully and unlawfully disturb any persons assembled in a cemetery for a burial. Section 7 of the Burial Laws Amendment Act 1880 makes it an offence to interfere with the decent and orderly burial of a person by any riotous, violent or indecent behaviour, or to wilfully obstruct a burial. Under section 36 of the Offences Against the Person Act 1861 it is an offence to obstruct or prevent by threats or force any clergyman or minister from celebrating divine service or otherwise officiating in any church, chapel, meeting house or other place of worship, or to prevent such person from the performance of his or her duty in the lawful burial of the dead in any churchyard or other burial place. Finally, and for the purposes of this Journal perhaps the most important of these older statutory provisions, section 2(1) of the Ecclesiastical Courts Jurisdiction Act 1860 provides for the offence of ‘riotous, violent, or indecent behaviour’:

1. (a) in any cathedral church, parish or district church or chapel of the Church of England;

2. (b) in any chapel of any religious denomination;

3. (c) in any place certified under the Places of Worship Registration Act 1855; or

4. (d) in any churchyard or burial ground whether during the celebration of divine service or at any other time.Footnote ¹⁷

The police may be called to arrest those committing an offence under section 2 of the 1860 Act, but section 3 also provides that offenders may ‘immediately and forthwith’ be apprehended by the churchwardens of the parish where the offence is committed.Footnote ¹⁸ The repeal of these offences was recommended by the Law Commission, but the Report of the Select Committee on Religious Offences in England and Wales 2003 noted that 60 prosecutions had been brought under the 1860 Act between 1997 and 2002, and they have therefore been retained on the statute book.Footnote ¹⁹

In addition to these statutes, under canon law the churchwardens (and sidespersons) of a Church of England parish church are under a duty to ‘maintain order and decency in the church and churchyard, especially during the time of divine service’ and may use reasonable force to turn offenders out of church.Footnote ²⁰ Barber has argued that, in the case of a Church of England cathedral or a non-Anglican place of worship, where there are no churchwardens to act, ‘every person present at such an incident, although not fixed with a duty to do so, is entitled to use reasonable force to remove any person disturbing the decency of the time or place’ and that ‘anyone doing so would not be guilty of an offence under the ecclesiastical law, or of assault and battery’.Footnote ²¹ This view is supported by the very old case of Lever v Hide Footnote ²² and by the fact that when Peter Tatchell and others from OutRage! interrupted the Archbishop of Canterbury's Easter sermon in Canterbury Cathedral in 1998, the police declined to charge a cathedral steward who admitted attacking Tatchell.Footnote ²³

COULD MOURNERS SEEK DAMAGES FOR EMOTIONAL DISTRESS?

In Snyder one cause of action was a claim for damages for emotional distress caused by the picketers. Mourners subjected to funeral picketing might be distressed by the activities of funeral picketers but it is clear from the English case law that an action for damages in respect of any emotional distress falling short of the narrow limits of ‘nervous shock’ would not succeed. Although the classic case of Wilkinson v Downton Footnote ²⁴ was based on the intentional infliction of distress by words, liability for this category of damage was curtailed by subsequent decisions and continues to be treated warily by English courts. In Wong v Parkside Health NHS Trust Footnote ²⁵ the Court of Appeal denied a cause of action in tort for distress falling short of psychiatric injury. The decision of the House of Lords in Wainwright v Home Office Footnote ²⁶ also demonstrates the continuing reluctance of the English courts to grant damages for hurt feelings. Lord Scott considered that such distress was ‘no sufficient reason why the law of tort should be fashioned and developed with a view to providing compensation in money to the victim’.Footnote ²⁷ Hewson has commented on the difficulties of allowing legal claims to be brought for ‘outraged sensibilities’, citing the sociologist Furedi, who, having analysed actions for distress, had concluded that the subjective nature of the feeling of ‘victimhood’ was one which would make it difficult to draw any clear definitions about what kinds of encounters or incidents should be compensated in law.Footnote ²⁸

COULD MOURNERS SEEK DAMAGES FOR BREACH OF PRIVACY?

The second major claim in Snyder was for invasion of privacy. Privacy is difficult to define, but at its simplest is what Warren and Brandeis famously called the ‘right to be let alone’.Footnote ²⁹ Moreham has argued that privacy should be defined as ‘the state of desired inaccess or as a freedom from unwanted access’ and that the courts should recognise a right to privacy where a person has a ‘reasonable desire not to be accessed in the circumstances’.Footnote ³⁰ Funerals take place in a public place and are generally open to all wishing to attend, but this does not mean that most mourners would accept that this meant that they could be subjected to unwanted access by funeral picketers.

Under the current English law it is unlikely that mourners subjected to funeral picketing would succeed in an action for damages for invasion of privacy. As the House of Lords has held in Wainwright v Home Office Footnote ³¹ and Campbell v Mirror Group Newspapers,Footnote ³² there is ‘no over-arching, all-embracing cause of action’ for invasion of privacy.Footnote ³³ The closest that current English law comes to an action for breach of privacy is an action for breach of confidence. Article 8(1) of the ECHR provides that ‘everyone has the right to respect for his private and family life, his home and his correspondence’ but in Wainwright the House of Lords expressed the view that compliance with the Convention did not mean that a new general tort of invasion of privacy needed to be invented, but simply that existing rules might need to be extended to protect Convention rights. The courts have proved willing to extend the tort of breach of confidence to include wrongful disclosure of information, such as publication of photographs taken at the private wedding ceremony of a celebrity couple in Douglas v Hello! Ltd,Footnote ³⁴ the publication of information about a famous model in Campbell Footnote ³⁵ and the publication of photographs of the claimant purportedly taking part in a ‘Nazi sex orgy’ in Moseley v News Group Newspapers Ltd.Footnote ³⁶ The courts have also dispensed with the traditional requirement of some kind of confidential relationship between the claimant and the defendant, now requiring only that the claimant show what Lord Nicholls in Campbell called ‘a reasonable expectation of privacy’ of the information held to have been wrongly disclosed.Footnote ³⁷ However, this is as far as the courts have yet gone in extending the law of privacy; in absence of disclosure of information about the claimant there would appear to be no cause of action.

COULD FUNERAL PICKETING BE ACTIONABLE AS A NUISANCE?

Funeral picketing as practised by the WBC is unlikely to be regarded as a private nuisance. It takes place on public roads and as such would not involve an interference with a claimant's right to enjoy land. A claimant would also lack standing to bring a nuisance action as this is dependent on the claimant having a legal interest in the land affected by the nuisance.Footnote ³⁸ On the other hand it could be argued that, as funeral picketing is a practice which most members of the public are likely to find distasteful or even abhorrent, it could be regarded as a public nuisance. Public nuisance has been described as ‘a rag-bag of odds and ends’ covering a wide variety of activities threatening the public welfare.Footnote ³⁹ Picketing on a public road has been held to be a nuisanceFootnote ⁴⁰ and in Church of Jesus Christ of the Latter Day Saints and Others v Price Footnote ⁴¹ the defendant was held to have committed a nuisance when he repeatedly accosted members of the church outside the church premises and interfered with the activities of church missionaries in a manner which caused offence to church members. Although public nuisance is generally a crime, prosecuted by the Attorney-General or by the local authority,Footnote ⁴² individual members of a class affected by the nuisance may bring an action for damages in tort if they have suffered special damage which is ‘particular, substantial and direct, over and above that suffered by the public at large’.Footnote ⁴³ This action also has the advantage that, unlike the tort of private nuisance, it is not necessary to have an interest in land.Footnote ⁴⁴