First Amendment Question Forum

purell2 · Post by **purell2** » Wed May 02, 2012 4:40 pm

Hey guys,

Quick question:

When evaluating funeral picketing regulations (i.e. no picketing within 100 feet of funeral), do you use the O'Brien expressive conduct test or the Clark-type TPM test? Also, are fighting images subject to 1A protection?

Thanks!

westbayguy · Post by **westbayguy** » Wed May 02, 2012 4:46 pm

Is this another lame attempt to get help on a final?

I.P. Daly · Post by **I.P. Daly** » Wed May 02, 2012 4:47 pm

westbayguy wrote:Is this another lame attempt to get help on a final?

I was about to write several things, but that's a really good question.

purell2 · Post by **purell2** » Wed May 02, 2012 4:48 pm

studying for a final? not allowed?

How would I be on the internet if I were in the middle of an exam? Exam software locks the computer.

Detrox · Post by **Detrox** » Wed May 02, 2012 5:05 pm

purell2 wrote:studying for a final? not allowed?

How would I be on the internet if I were in the middle of an exam? Exam software locks the computer.

People posting questions from their take home exams have made this forum a tough place to get help in preparation.

purell2 · Post by **purell2** » Wed May 02, 2012 5:12 pm

Agh.. I didn't even think about that. Understood.

blong4133 · Post by **blong4133** » Wed May 02, 2012 5:13 pm

O'Brian is for expressive conduct (i.e. burning a flag, burning draft cards). Picketing is arguably a speech issue.

It would be a "time place manner" restriction. It's only saying that you can't picket within 100 yards. So you could go to 101 yards and picket and it's fine. Not prohibiting picketing in general.

Fighting images are protected by the first amendment.

I.P. Daly · Post by **I.P. Daly** » Wed May 02, 2012 5:20 pm

You'd have to look at the statute. Is it a content-based or content-neutral? Also, does the statute involve regulating speech on a traditional public forum (e.g., public sidewalk (Perry))? Generally, the furnal cases involve public forums analysis. See Snyder v. Phelps, 131 S. Ct. 1207 (citing the Clark analysis).

Traditional public forums can only be regulated through content-neutral time, place, and manner restrictions. If the restrictions involve the content of public forum speech, the restrictions will be deemed presumptive unconstitutional; and they will be struck down unless shown to be necessary, and narrowly drawn, to serve a compelling state interest (e.g., Capitol Square case).

As noted by the poster above, the O'Brien analysis generally applies to expressive & non-expressive conduct, such as a prohibition on burning draft cards.

purell2 · Post by **purell2** » Wed May 02, 2012 5:24 pm

Thank you both!! I was reading an outline that referenced the Westboro Baptist Church and I wasn't sure what the latest decisions held about fighting images/ TPM for funeral protests

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